OVERVIEW OF THE MAJOR DISCIPLINE PROVISIONS IN THE 1999 IDEA REGULATIONS PREPARED BY ROBERT SILVERSTEIN, J.D., DIRECTOR OF THE CENTER FOR THE STUDY AND ADVANCEMENT OF DISABILITY POLICY AT THE GEORGE WASHINGTON UNIVERSITY SCHOOL OF PUBLIC HEALTH AND HEALTH SERVICES 2021 K STREET, N.W. , SUITE 800 WASHINGTON, D. C. 20006 (202) 496-8452 (V/TTY) (202) 467-2251 (FAX) E-MAIL: IHORXS@GWUMC.EDU MARCH 18, 1999 INTRODUCTION On June 4, 1997, President Clinton signed into law the Individuals with Disabilities Education Act Amendments of 1997 (Public Law No.105-17). The 1997 Amendments to IDEA included specific provisions addressing the discipline of children with disabilities. On October 22, 1997, the U.S. Department of Education published in the Federal Register proposed regulations governing part B of IDEA (which guarantees a free appropriate public education to all children with disabilities) and requested comments from the public. After reviewing over 6,000 comments, on March 12, 1999 the U.S. Department of Education published in the Federal Register final part B regulations. The purpose of this paper is to describe the major provisions in the final regulations applicable to the disciplining of children with disabilities. The paper describes: The authority of school personnel and others to remove a child with a disability from his or her current placement; When educational services must begin for a child with a disability; Functional behavioral assessments and behavioral intervention plans; Manifestation determinations; and Application of the stay put provision. A detailed analysis of all revisions to the IDEA regulation is set out in a separate document entitled oA UserAs Guide to the 1999 IDEA Regulationso prepared by the author. AUTHORITY OF SCHOOL PERSONNEL AND OTHERS TO REMOVE A CHILD WITH A DISABILITY FROM HIS OR HER CURRENT PLACEMENT SHORT-TERM REMOVALS. School personnel can remove a child with a disability for short periods of time (even over the parentAs objections) as long as the removal does not constitute a change in placement. A change in placement occurs when a child is removed for more than 10 consecutive school days or when a child is subjected to a series of removals that constitute a pattern because they cumulate to more than 10 school days in a school year. Factors to consider in determining whether a pattern exists, include length of removal, the total amount of time the child is removed and the proximity of the removals to one another. Thus, multiple short-term removals (i.e., 10 consecutive days or less) for separate incidents of misconduct are permitted (to the extent removals are permitted for nondisabled children for the same offense) as long as those removals do not constitute a change in placement i.e., there is no pattern. These short-term removals are permissible whenever discipline is appropriate and is administered consistent with the treatment of nondisabled children. Also school personnel should be aware of constitutional due process protections that apply during these periods for all students, including students with disabilities. See Goss v. Lopez, 419 U.S. 565 (1975). See IEP Q&A#40. School personnel may not use their ability to suspend a child for 10 days or less at a time on multiple occasions in a school year as a means of avoiding appropriately considering and addressing the childAs behavior as a part of providing FAPE to the child (IEP Q and A #38) DISCIPLINE WHEN THE BEHAVIOR OF A CHILD WITH A DISABILITY IS NOT A MANIFESTATION OF HIS/HER DISABILITY. If the IEP team concludes that the behavior of a child with a disability was not a manifestation of the childAs disability, the child can be disciplined in the same manner as nondisabled children, except that appropriate educational services must be provided (see below). This means that if nondisabled children are long-term suspended or expelled for a particular violation of school rules, the child with disabilities may also be long-term suspended or expelled, except that appropriate educational services must be provided. WEAPONS, DRUGS. School authorities can unilaterally remove a child with a disability from the childAs regular placement for up to 45 days at a time if the child has brought a weapon to school or to a school function (or is found to have a weapon that he or she obtained while at school or a school function) or knowingly possessed or used illegal drugs or sold or solicited the sale of controlled substances while at school or a school function. If school officials believe that it would be dangerous to return the child after the 45 days, they can ask an impartial hearing officer to order that the child remain in the interim alternative educational setting for an additional 45 days and can request subsequent extensions. SUBSTANTIAL LIKELIHOOD OF INJURY (HEARING OFFICER) If school officials believe that a child with a disability is substantially likely to injure self or others in the childAs regular placement, they can ask an impartial hearing officer to order that the child be removed to an interim alternative education setting for a period of up to 45 days. If school officials believe that it would be dangerous to return the child after the 45 days, they can ask an impartial hearing officer to order that the child remain in the interim alternative educational setting for an additional 45 days and can request subsequent extensions. SUBSTANTIAL LIKELIHOOD OF INJURY (COURT ORDER). School officials may seek to obtain a court order to remove a child with a disability from school or to change a childAs placement if they believe that maintaining the child in the current educational placement is substantially likely to result in injury to the child or others. REFERRAL TO LAW ENFORCEMENT OFFICIALS. School officials can report crimes committed by children with disabilities to appropriate law enforcement authorities to the same extent as they do for crimes committed by nondisabled students. WHEN SERVICES MUST BEGIN FOR A CHILD WITH A DISABILITY REMOVAL FOR UP TO 10 SCHOOL DAYS IN A SCHOOL YEAR. Services need not be provided to a child with a disability during the first ten school days in a school year that a child is removed for violations of school conduct rules when necessary and appropriate to the circumstances and if services are not provided to a child without disabilities who have been similarly removed. SHORT TERM REMOVALS THAT DO NOT CONSTITUTE A CHANGE IN PLACEMENT AFTER CHILD HAS ALREADY BEEN REMOVED FOR UP TO 10 SCHOOLS DAYS IN A SCHOOL YEAR. After a child has been removed from his or her current placement by school personnel for more than 10 school days in the same school year, subsequent short term removals are permissible as long as they do not constitute a change in placement; however, services must be provided to the extent necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the childAs IEP. In this situation, school personnel, in consultation with the childAs special education teacher, determine the extent to which services are necessary. 3. REMOVALS WHEN CHILDAS BEHAVIOR IS NOT A MANIFESTATION OF DISABILITY AFTER CHILD HAS ALREADY BEEN REMOVED FOR UP TO 10 SCHOOL DAYS IN A SCHOOL YEAR. After a child has been removed from his or her current placement for more than 10 cumulative school days in a school year, subsequent removals by school personnel for behavior that is not a manifestation of his or her disability are permissible; however, services must be provided to the extent necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the childAs IEP. The childAs IEP team determines the extent to which services are necessary. REMOVALS FOR WEAPONS AND DRUGS In addition to the short-term removals described above, removals to interim alternative educational placements for up to 45 days by school personnel are permissible for weapons or drug offenses (whether or not the offenses are a manifestation of the childAs disability). However, the IEP team must determine the extent to which services must be provided in interim alternative educational settings. Placements in such settings must: -be selected so as to enable the child to continue to progress in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the childAs current IEP, that will enable the child to meet the goals set out in that IEP and -include services and modifications to address the childAs behavior (conduct relating to weapons and drugs) that are designed to prevent the behavior from recurring. REMOVALS BY HEARING OFFICERS FOR BEHAVIOR THAT IS SUBSTANTIALLY LIKELY TO RESULT IN INJURY TO CHILD OR OTHER In addition to the short-term removals described above, removals to interim alternative educational placements for up to 45 days by a hearing officer are permissible based on a determination that maintaining the current placement of the child is substantially likely to result in injury to the child or to others if he or she remains in the current placement (whether or not the offenses are a manifestation of the childAs disability). The hearing officer must determine that the interim alternative educational setting that is proposed by school personnel, who have consulted with the childAs special education teacher, meets the following requirements: -be selected so as to enable the child to continue to progress in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the childAs current IEP, that will enable the child to meet the goals set out in that IEP and -include services and modifications to address the childAs behavior (substantially likely to result in injury to self or others) that are designed to prevent the behavior from recurring. FUNCTIONAL BEHAVIORAL ASSESSMENTS AND BEHAVIORAL INTERVENTION PLANS DEVELOPING AN IEP, IN GENERAL. In the case of a child with a disability whose behavior impedes his or her learning or that of others, the IEP team, in developing the IEP, must consider, if appropriate, strategies, including positive behavioral interventions, strategies, and supports to address that behavior. INITIAL REMOVAL FOR MORE THAN 10 SCHOOL DAYS IN A SCHOOL YEAR. Either before or not later than 10 business days after first removing a child with a disability for more than 10 school days in a school year, the public agency must convene an IEP meeting to develop a functional behavioral assessment plan (if the LEA did not already conduct a functional assessment and if the LEA had not implemented a behavioral intervention plan). As soon as practicable after developing the functional behavioral assessment plan, and completing the assessments required by the plan, the LEA must convene an IEP meeting to develop appropriate behavioral interventions to address that behavior and must implement those interventions. If the child already has a behavioral intervention plan, the IEP team must meet to review the plan and its implementation and, modify the plan and its implementation as necessary, to address the behavior. SUBSEQUENT REMOVALS FOR MORE THAN 10 SCHOOL DAYS IN A SCHOOL YEAR. If subsequently, a child with a disability who has a behavioral intervention plan and who has been removed from his or her current educational placement for more than 10 school days in a school year is subjected to removal that does not constitute a change of placement, the IEP members shall individually review the behavioral intervention plan and its implementation and if one or more of the team members believe that modifications are needed, the IEP team shall meet to modify the plan and its implementation. 4. COMMENCING A REMOVAL THAT CONSTITUTES A CHANGE IN PLACEMENT. Either before or not later than 10 business days after commencing a removal that constitutes a change of placement (including an action relating to weapons or illegal use of drugs), the public agency must convene an IEP meeting to develop a functional behavioral assessment plan (if the LEA did not already conduct a functional assessment for the child with a disability and if the LEA had not implemented a behavioral intervention plan). As soon as practicable after developing the functional behavioral assessment plan, and completing the assessments required by the plan, the LEA must convene an IEP meeting to develop appropriate behavioral interventions to address that behavior and must implement those interventions. If the child with a disability already has a behavioral intervention plan, the IEP team must meet to review the plan and its implementation and, modify the plan and its implementation as necessary, to address the behavior. MANIFESTATION DETERMINATIONS CIRCUMSTANCES UNDER WHICH MANIFESTATION DETERMINATIONS ARE REQUIRED. School officials must conduct a manifestation determination review whenever they contemplate: removing a child with a disability for behavior relating to weapons or the illegal use of drugs seeking an order from a hearing officer to place a child in an interim alternative educational setting because of behavior that is substantially likely to result in injury to self or others or removing a child when such removal constitutes a change in placement for a child with a disability who has engaged in other behavior that violated any rule or code of conduct of the LEA that applies to all children. NOTICE TO PARENTS. Not later than the date on which the decision to take an action described above is made, the parents must be notified of that decision and provided the procedural safeguards notice. TIMING OF REVIEW. The manifestation determination review must be conducted immediately if possible, but in no case later than 10 school days after the date on which the decision to take an action described above is made. INDIVIDUALS TO CARRY OUT REVIEW . The IEP team and other qualified personnel in a meeting must conduct the manifestation determination review . APPLICATION OF THE STAY PUT PROVISION Except for cases involving weapons, drugs, and injury to self or others, the stay put provision (a child with a disability is entitled to stay in his or her then current placement pending resolution of due process and court action) applies to all actions contemplated by school officials, including findings in manifestation determination reviews ---------- End of Document .