Discipline issues: Q&A from USDOE on IDEA 2004

Discussion in 'Special Ed 101' started by Sheila, Mar 7, 2007.

  1. Sheila

    Sheila Moderator

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    Questions and Answers
    On Discipline Procedures

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    January 2007



    The final regulations for the reauthorized Individuals with Disabilities Education Act (IDEA) were published in the Federal Register on August 14, 2006, and became effective on October 13, 2006. Since publication of the final regulations, the Office of Special Education and Rehabilitative Services (OSERS) in the U.S. Department of Education has received requests for clarification of some of these regulations. This is one in a series of question and answer documents prepared by OSERS to address some of the most important issues raised by requests for clarification on a variety of high-interest topics. Generally, the questions, and corresponding answers, presented in this Q&A document required interpretation of IDEA and the regulations and the answers are not simply a restatement of the statutory or regulatory requirements. The responses presented in this document generally are informal guidance representing the interpretation of the Department of the applicable statutory or regulatory requirements in the context of the specific facts presented and are not legally binding. The Q&As are not intended to be a replacement for careful study of IDEA and the regulations. The statute, regulations, and other important documents related to IDEA and the regulations are found at http://idea.ed.gov.

    The 2004 amendments to section 615(k) of the IDEA were intended to address the needs expressed by school administrators and teachers for flexibility in order to address school safety issues balanced against the need to ensure that schools respond appropriately to a child’s behavior that was caused by, or directly and substantially related to, the child’s disability. The reauthorized IDEA and final regulations include provisions that address important disciplinary issues such as: the consideration of unique circumstances when determining the appropriateness of a disciplinary change in placement; expanded authority for removal of a child from his or her current placement for not more than 45 school days for inflicting a serious bodily injury at school or at a school function; the determination on a case-by-case basis as to whether a pattern of removals constitutes a change of placement; and revised standards and procedures related to a manifestation determination.

    Authority: The requirements for discipline are found in the regulations at 34 CFR §§300.530 – 300.536.

    A. Safeguards

    Question A-1: What if the parent(s) of a child and the school personnel are in agreement about the child’s change of placement after the child has violated a code of student conduct?
    Answer: It is the longstanding position of the Department that there is no need to make a change of placement removal under the discipline provisions if there is agreement between school personnel and a child’s parents regarding a change in educational placement when the child has violated the school’s code of conduct. In short, the child’s placement may be changed.

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    Question A-2: When a parent consents to the initial provision of some, but not all, of the proposed special education and related services, do the discipline provisions apply if the child violates the school’s code of student conduct?

    Answer: Yes. In general, when a parent consents to the initial provision of some, but not all, of the proposed special education and related services listed in a child’s initial IEP, the child has been determined eligible for services and is entitled to all the protections of IDEA.

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    Question A-3: How are parents who believe that their child is in need of special education and related services informed that they must express their concerns in writing to the supervisory or administrative officials or the child’s teacher in order to receive the protections for disciplinary purposes in 34 CFR §300.534?

    Answer: Neither IDEA nor the regulations specifically address this issue. However, as part of its child find policies and procedures, a State may choose to include information regarding protections for disciplinary purposes that are provided under the IDEA when a parent submits in writing to school personnel their concerns regarding the child’s need for special education and related services. A State may also choose to address how notice about these written requirements will be provided to parents.

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    Question A-4: Under 34 CFR §300.534(b), a public agency is deemed to have knowledge that a child is a child with a disability if a parent expressed in writing a concern that their child needs special education and related services. What if a parent is unable to express this concern in writing?

    Answer: The requirement that a parent express his or her concern in writing is taken directly from the Act. However, there is nothing in the Act or regulations that would prevent a parent from requesting assistance to communicate his or her concerns in writing. The Department funds State-based Parent Training and Information Centers (PTIs) and Community Parent Resource Centers (CPRCs) to assist parents of students with disabilities. Information about the PTIs and CPRCs is found at http://www.taalliance.org/.

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    Question A-5: If a removal is for 10 consecutive school days or less and occurs after a student has been removed for 10 school days in that same school year, and the public agency determines, under 34 CFR §300.530(d)(4), that the removal does not constitute a change of placement, must the agency provide written notice to the parent?

    Answer: No. Under Part B, a public agency’s determination that a short-term removal does not constitute a change of placement is not a proposal or refusal to initiate a change of placement for purposes of determining services under §300.530(d)(4). Therefore, the agency is not required to provide written notice to the parent.

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    Question A-6: If a teacher or other school personnel has concerns that a child may need special education and related services, must this concern be made in writing to school officials in order for the public agency to be deemed to have knowledge that the child is a child with a disability?

    Answer: No. Teachers or other LEA personnel are not required to submit a written statement expressing concerns about a pattern of behavior demonstrated by the child under 34 CFR §300.534(b)(3); however, State child find policies may provide guidelines regarding how teachers and other school personnel should relate their concerns regarding a child’s need for special education and related services. The Department encourages those States and LEAs whose child find or referral processes do not permit teachers to express specific concerns directly to the director of special education of such agency, or to other supervisory personnel of the agency, to change these processes to meet this requirement. (Analysis of Comments and Changes 46727.)

    B. Definitions

    Question B-1: What options are available for school personnel when a student with disabilities commits a serious crime, such as rape, at school or a school function?

    Answer: Under most State and local laws, school personnel must report certain crimes that occur on school grounds to the appropriate authorities. The IDEA regulations (34 CFR §300.535(a)) do not prohibit the school or public agency from reporting crimes committed by students with disabilities. In addition, where such crimes constitute a violation of the school’s code of student conduct, school authorities may use the relevant discipline provisions related to short-term and long-term removals, including seeking a hearing to remove the student to an interim alternative educational placement if maintaining the current placement is substantially likely to result in injury to the child or others. To the extent that such criminal acts also result in an injury that meets the definition of “serious bodily injury,” the removal provisions of 34 CFR §300.530(g) would apply. The definition referenced in §300.530(i) currently reads:

    As defined at 18 U.S.C. 1365(h)(3)], the term serious bodily injury means bodily injury that involves—
    1. A substantial risk of death;
    2. Extreme physical pain;
    3. Protracted and obvious disfigurement; or
    4. Protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

    Certain Federal cases have held that rape did meet this definition of serious bodily injury because the victim suffered protracted impairment of mental faculties.

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    Question B-2: What is the definition of “unique circumstances” as used in 34 CFR §300.530(a), which states that “school personnel may consider any unique circumstances on a case-by-case basis when determining whether a change in placement, consistent with the other requirements of this section, is appropriate for a child with a disability who violates a code of student conduct.”

    Answer: The Department believes that “what constitutes ‘unique circumstances’ is best determined at the local level by school personnel who know the individual child and all the facts and circumstances regarding a child’s behavior…. Factors such as a child’s disciplinary history, ability to understand consequences, expression of remorse, and supports provided to a child with a disability prior to the violation of a school code [of student conduct] could all be unique circumstances considered by school personnel when determining whether a disciplinary change in placement is appropriate for a child with a disability.” (Analysis of Comments and Changes 46714.)

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    Question B-3: May a public agency apply its own definition of “serious bodily injury?”

    Answer: No. As specifically set out in IDEA, the term “serious bodily injury” is defined at 18 U.S.C. 1365(h)(3) and cannot be altered by States or local school boards. The definition is included in the answer to question B-1, and also in the Analysis of Comments and Changes (46723). In addition, there are Federal cases interpreting this definition.

    C. Interim Alternative Educational Setting (IAES)

    Question C-1: What constitutes an appropriate interim alternative educational setting?

    Answer: What constitutes an appropriate interim alternative educational setting will depend on the circumstances of each individual case. An IAES must be selected so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP. (Analysis of Comments and Changes 46722.)

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    Question C-2: May a public agency offer “home instruction” as the sole IAES option?

    Answer: No. For removals under 34 CFR §300.530(c), (d)(5), and (g), the child’s IEP Team determines the appropriate interim alternative educational setting (34 CFR §300.531). Section 615(k)(1)(D) of the Act and 34 CFR §300.530(d) are clear that an appropriate IAES must be selected “so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.” Therefore, it would be inappropriate for a public agency to limit an IEP Team to only one option when determining the appropriate IAES. As noted in the Analysis of Comments and Changes (46722) accompanying the final regulations:

    Whether a child’s home would be an appropriate interim alternative educational setting under 34 CFR §300.530 would depend on the particular circumstances of an individual case such as the length of the removal, the extent to which the child previously has been removed from his or her regular placement, and the child’s individual needs and educational goals. In general, though, because removals under 34 CFR §§300.530(g) and 300.532 will be for periods of time up to 45 days, care must be taken to ensure that if home instruction is provided for a child removed under §300.530, the services that are provided will satisfy the requirements for services for a removal under 34 CFR §300.530(d) and §615(k)(1)(D) of the Act.

    D. Hearings

    Question D-1: Must a hearing officer make a sufficiency determination under 34 CFR §300.508(d), for an expedited due process complaint? In other words, does the hearing officer need to determine if the complaint meets the content standards listed in section 615(b)(7)(A) of the Act and 34 CFR §300.508(b)?

    Answer: No. The sufficiency provision does not apply to expedited due process complaints. See 34 CFR §300.532(a). As noted in the Analysis of Comments and Changes (46725) accompanying the final regulations:

    In light of the shortened timelines for conducting an expedited due process hearing under 34 CFR §300.532(c), it is not practical to apply to the expedited due process hearing the sufficiency provision in 34 CFR §300.508(d), which requires that the due process complaint must be deemed sufficient unless the party receiving the due process complaint notifies the hearing officer and the other party in writing, within 15 days of receipt of the due process complaint, that the receiving party believes the due process complaint does not include all the necessary content of a complaint as required in 34 CFR §300.508(b).

    E. Functional Behavior Assessments (FBA) and Behavioral Intervention Plans (BIP)

    Question E-1: Was the requirement for a “positive behavioral intervention plan” removed from the discipline regulations?

    Answer: No. Under 34 CFR §300.324(a)(2)(i), the use of positive behavioral interventions and supports must be considered in the case of a child whose behavior impedes his or her learning or that of others. The requirement that a child with a disability receive, as appropriate, a functional behavioral assessment and a behavioral intervention plan and modifications designed to address the child’s behavior now only applies to students whose behavior is a manifestation of their disability as determined by the LEA, the parent, and the relevant members of the child’s IEP Team under 34 CFR §300.530(e). As noted in the Analysis of Comments and Changes (46721) accompanying the final regulations: [emphasis added]

    Congress specifically removed from the Act a requirement to conduct a functional behavioral assessment or review and modify an existing behavioral intervention plan for all children within 10 days of a disciplinary removal, regardless of whether the behavior was a manifestation or not.

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    Question E-2: Under what circumstances must an IEP Team use functional behavior assessments (FBAs) and behavioral intervention plans (BIPs)?

    Answer: As noted above, pursuant to 34 CFR §300.530(f), FBAs and BIPs are required when the LEA, the parent, and the relevant members of the child’s IEP Team determine that a student’s conduct was a manifestation of his or her disability under 34 CFR §300.530(e). Under 34 CFR §300.324(a)(2), in developing an IEP for a student whose behavior impedes his or her learning or that of others, the IEP Team must consider the use of positive behavioral interventions and supports, and other strategies, to address the behavior. As part of this determination, an IEP Team may decide that an FBA and BIP are appropriate interventions and supports. Nothing in these regulations prohibits an IEP Team from determining, in other situations, that an FBA or BIP is appropriate for a child.

    F. Manifestation Determinations

    Question F-1: What recourse does a parent have if he or she disagrees with the determination that their child’s behavior was not a manifestation of the child’s disability?

    Answer: The regulations, at 34 CFR §300.532(a), provide that the parent of a child with a disability who disagrees with the manifestation determination under 34 CFR §300.530(e) may appeal the decision by requesting a hearing. A parent also has the right to file a State complaint alleging a denial of a free appropriate public education and to address a dispute between the parties by requesting voluntary mediation under 34 CFR §300.506.

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    Question F-2: What occurs if there is no agreement on whether a child’s behavior was or was not a manifestation of his or her disability?

    Answer: If the parents of a child with a disability, the LEA, and the relevant members of the child’s IEP Team cannot reach consensus or agreement on whether the child’s behavior was or was not a manifestation of the disability, the public agency must make the determination and provide the parent with prior written notice pursuant to 34 CFR §300.503.

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    Question F-3: Is the IEP Team required to hold a manifestation determination each time that a student is removed for more than 10 consecutive school days or each time that the public agency determines that a series of removals constitutes a change of placement?

    Answer: Section 300.530(e) requires that “within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct” the LEA, the parent, and relevant members of the child’s IEP Team must conduct a manifestation determination (emphasis added). Under 34 CFR §300.536, a change of placement occurs if the removal is for more than 10 consecutive school days, or if the public agency determines, on a case-by-case basis, that a pattern of removals constitutes a change of placement because the series of removals total more than 10 school days in a school year; the child’s behavior is substantially similar to the behavior that resulted in the previous removals; or because of such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another.
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