DISCIPLINE OF STUDENTS DISCIPLINE OF STUDENTS WITH DISABILITIESWITH DISABILITIES

ByBy

Jason H. BallumJason H. BallumReed Smith LLPReed Smith LLP

901 E. Byrd Street901 E. Byrd StreetSuite 1700Suite 1700

Richmond, VA 23219Richmond, VA 23219804-344-3443804-344-3443

jballum@reedsmith.comjballum@reedsmith.com

DISCIPLINE OF STUDENTS WITH DISCIPLINE OF STUDENTS WITH DISABILITIESDISABILITIES

Provision of Services During Provision of Services During DisciplineDiscipline

Students with disabilities are Students with disabilities are entitled to a free appropriate entitled to a free appropriate public education even while under public education even while under discipline (except for the first 10 discipline (except for the first 10 days of removal).days of removal).

TEN DAY RULETEN DAY RULE

School personnel may remove to:School personnel may remove to: an interim alternative educational settingan interim alternative educational setting another setting oranother setting or suspensionsuspension

For not more than 10 school days andFor not more than 10 school days and To the same extent as for children without To the same extent as for children without

disabilitiesdisabilities

How do you calculate 10 How do you calculate 10 school days?school days?

Q: Is it cumulative in a school year or Q: Is it cumulative in a school year or 10 days at a time?10 days at a time?

A: YesA: Yes

When You Exceed 10 Days of When You Exceed 10 Days of RemovalsRemovals

10 DAYS AT A TIME OR A CUMULATIVE 10 DAYS AT A TIME OR A CUMULATIVE OF 10 DAYS IN A YEAR, THEN OF 10 DAYS IN A YEAR, THEN 1. PROVIDE EDUCATIONAL SERVICES1. PROVIDE EDUCATIONAL SERVICES 2. (If cumulative) CONSIDER WHETHER A 2. (If cumulative) CONSIDER WHETHER A

PATTERN EXISTSPATTERN EXISTS NO PATTERN = NO MDRNO PATTERN = NO MDR

If you are unsure – Call Special If you are unsure – Call Special Education Education

When does a pattern exist?When does a pattern exist?

Series of removals total more than Series of removals total more than 10 days in a school year10 days in a school year

Behavior is substantially similar to Behavior is substantially similar to previous behavior that resulted in previous behavior that resulted in series of removals; ANDseries of removals; AND

Consideration of length of removals, Consideration of length of removals, proximity of removals and total time proximity of removals and total time removed.removed.

Authority when there is no Authority when there is no change in placementchange in placement

Child is removed for more than 10 days Child is removed for more than 10 days in year, but not more than 10 in year, but not more than 10 consecutive days, AND no change of consecutive days, AND no change of placement (no pattern)placement (no pattern)

School personnel, in consultation with School personnel, in consultation with at least one of child’s teachers at least one of child’s teachers determine services and location for determine services and location for servicesservices

MANIFESTATION DETERMINATIONMANIFESTATION DETERMINATION

Must be made within 10 school days Must be made within 10 school days of the decision to change the of the decision to change the placement as a result of a violation placement as a result of a violation of the code of student conduct.of the code of student conduct.

MANIFESTATION TEAMMANIFESTATION TEAM

The team consists of:The team consists of: the LEAthe LEA the parentthe parent relevant IEP team membersrelevant IEP team members

the relevant IEP team members are the relevant IEP team members are determined by the parent and the LEAdetermined by the parent and the LEA

MDR TEAM MDR TEAM CONSIDERATIONSCONSIDERATIONS

Must review:Must review: all relevant information in the student’s all relevant information in the student’s

filefile the IEPthe IEP any teacher observationsany teacher observations any relevant information provided by any relevant information provided by

the parentsthe parents

MDR TESTMDR TEST

Was the conduct in question caused Was the conduct in question caused by, or had a direct and substantial by, or had a direct and substantial relationship to, the child’s disability?relationship to, the child’s disability?

Was the conduct in question the direct Was the conduct in question the direct result of the LEA’s failure to result of the LEA’s failure to implement the IEP?implement the IEP? Again, no reference to placement or FAPEAgain, no reference to placement or FAPE

If the team answers yes to either of If the team answers yes to either of the two MDR questions, there is a the two MDR questions, there is a manifestation.manifestation.

ACTIONS TO TAKE WHEN ACTIONS TO TAKE WHEN THERE IS A MANIFESTATIONTHERE IS A MANIFESTATION

The student cannot be removed from school, The student cannot be removed from school, subject to 10 day rule.subject to 10 day rule.

The student returns to the placement from The student returns to the placement from which the child was removed unless the LEA which the child was removed unless the LEA and parent agree to another placement.and parent agree to another placement.

IEP team develops a behavioral assessment IEP team develops a behavioral assessment plan of change in placement.plan of change in placement.

ACTIONS TO TAKE WHEN ACTIONS TO TAKE WHEN THERE IS A MANIFESTATIONTHERE IS A MANIFESTATION

Complete an FBAComplete an FBA

Develop and implement a BIPDevelop and implement a BIP

If there is already a BIP:If there is already a BIP: review and modify as necessary to review and modify as necessary to

address the behavioraddress the behavior

IF NO MANIFESTATION IS IF NO MANIFESTATION IS FOUNDFOUND

Regular discipline procedures applyRegular discipline procedures apply

No FBA or BIP is necessary,No FBA or BIP is necessary, But consider whether appropriateBut consider whether appropriate

The same disciplinary procedures are The same disciplinary procedures are applied as for students without applied as for students without disabilities, but the student will disabilities, but the student will receive educational services in an receive educational services in an alternative settingalternative setting

45 DAY REMOVALS45 DAY REMOVALS School personnel may remove to an IAES:School personnel may remove to an IAES:

for not more than 45 school daysfor not more than 45 school days without regard to whether there is a without regard to whether there is a

manifestationmanifestation ifif

weaponsweapons drugsdrugs infliction of serious bodily injuryinfliction of serious bodily injury

WHAT IS SERIOUS BODILY INJURY?WHAT IS SERIOUS BODILY INJURY?

Bodily injury which involves:Bodily injury which involves: A substantial risk of death;A substantial risk of death; Extreme physical pain;Extreme physical pain; Protracted and obvious disfigurement; Protracted and obvious disfigurement;

oror Protracted loss or impairment of the Protracted loss or impairment of the

function of a bodily member, organ, or function of a bodily member, organ, or mental faculty.mental faculty.

Students Covered Under the Students Covered Under the IDEA But Who Are Not Yet IDEA But Who Are Not Yet

EligibleEligible Children for whom there is reason to Children for whom there is reason to

suspect a disabilitysuspect a disability

1. The parent expressed concern in writing 1. The parent expressed concern in writing to supervisory personnel that the child is in to supervisory personnel that the child is in need of special education and related need of special education and related services.services.

2. The parent of the child requested an 2. The parent of the child requested an evaluation of the child.evaluation of the child.

3. The teacher or other personnel of the 3. The teacher or other personnel of the LEA, expressed specific concerns to the LEA, expressed specific concerns to the director of special education or other director of special education or other supervisory personnel.supervisory personnel.

Students Covered Under the Students Covered Under the IDEA But Who Are Not Yet IDEA But Who Are Not Yet

EligibleEligible Children for whom there is reason to Children for whom there is reason to

suspect a disability (continued)suspect a disability (continued)

Exceptions: parent refused evaluations or Exceptions: parent refused evaluations or refused services or the student was refused services or the student was determined not to be a child with a disability. determined not to be a child with a disability. Provide PWN.Provide PWN.

Recommendations: if there is a reason to Recommendations: if there is a reason to suspect a disability, complete the evaluation suspect a disability, complete the evaluation and eligibility process ASAP. Provide home-and eligibility process ASAP. Provide home-based instruction until eligibility decision. If based instruction until eligibility decision. If eligible, do a MDR.eligible, do a MDR.

Children referred for special Children referred for special education services after the education services after the

misconductmisconduct If under discipline, student is entitled to an If under discipline, student is entitled to an

expedited evaluation and special expedited evaluation and special education services if determined to be education services if determined to be eligible eligible

There is not a right to a MDRThere is not a right to a MDR

Not entitled to reinstatement to the school Not entitled to reinstatement to the school setting he was in prior to the misconductsetting he was in prior to the misconduct

While the evaluation occurs, the student While the evaluation occurs, the student remains in the setting determined by remains in the setting determined by school authorities, which setting can school authorities, which setting can include remaining under discipline and include remaining under discipline and without serviceswithout services

THE ENDTHE END