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Discipline for Children with IEPs

Disciplining a child with a disability is one of the most complicated issues surrounding the Individuals with Disabilities Education Act of 2004.  Parents, a lot of times, feel helpless and don’t know who or where to turn when their child with a disability is constantly acting out at school and being suspended.  This article will help explain what rights your child with an IEP has when dealing with discipline issues.

Suspension for less than 10 days

The school may suspend a child with a disability who violates a code of student conduct for up to 10 days in any school calendar year.  The decision to suspend for up to 10 days will be at the discretion of the Principal to determine whether suspension is the appropriate punishment for the child’s actions.

During the suspension, for 10 days or less, the school does not have to provide services to this child unless they would provide services to a child without disabilities who is similarly suspended.

Suspension for more than 10 days

The school may make disciplinary changes in placement that would exceed 10 days, if the behavior that caused the violation of the school code is determined not to be a manifestation of the child’s disability.

In order to determine if the behavior is a manifestation of the child’s disability a  manifestation IEP meeting must be held within 10 days of the conduct.  At which time the IEP team must consider all relevant information, including the IEP, any teacher observations, and any information supplied by the parents.  The IEP team must then answer two questions:

  1. Was the conduct caused by, or had a direct and substantial relationship to the child’s disability; and
  2. Was the conduct the direct result of the School’s failure to implement the IEP.

If the answer to either of those questions is yes, then by law, the behavior was a manifestation of the disability.  If the answer is no to both questions, then the school personnel may then apply the same disciplinary procedures to children with disabilities in the same manner and for the same duration as the procedures would be applied to children without disabilities.

After a child with a disability has been removed from their current placement for 10 school days in the same school year, during any subsequent days of removal the school must provide educational services.  These educational services should 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.

If the conduct was a manifestation of the child’s disability

If it is determined that the behavior was caused by the disability (“a manifestation of the disability”) then the school must perform a functional behavioral assessment (“FBA”) and implement a behavioral intervention plan (“BIP”).  If there is already a BIP in place then the IEP team must review and modify the plan to address the ongoing behaviour so that it does not recur.

If the conduct was a manifestation of the child’s disability then the School must return the child to the placement from which the child was removed, unless the parent and the School agree to a change of placement as part of the modification of the BIP.

The 45 Day Exception

School personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child’s disability, if the conduct involves weapons, illegal drugs or serious bodily injury.

Serious bodily injury has been defined to mean bodily injury which involves— (A) a substantial risk of death; (B) extreme physical pain; (C) protracted and obvious disfigurement; or (D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

It would still be required for the School to provide educational services while the child is in the alternative educational setting.  Home schooling would be an acceptable alternative educational setting for this 45 day period.

Notification Requirements to Parents

On the date on which the decision is made to make a removal that constitutes a change of placement of a child with a disability because of a violation of a code of student conduct, the school must notify the parents of that decision, and provide the parents with prior written notice.

For purposes of removals of a child with a disability from the child’s current educational placement, a change of placement occurs if the removal is for more than ten consecutive school days or the child has been subjected to a series of removals that constitute a pattern:

  1. Because the series of removals total more than ten school days in a school year;
  2. Because the child’s behavior is substantially similar to the child’s behavior in previous
    incidents that resulted in the series of removals; and
  3. 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

Due Process Rights

The parent of a child with a disability who disagrees with any decision regarding placement, or the manifestation determination, or a School that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others, may appeal the decision by requesting a due process hearing.  If the parents request a due process hearing the current educational placement would remain the same under a stay put unless a 45 day exception exists.  The hearing officer has the authority to:

  1. Return the child with a disability to the placement from which the child was removed if the hearing officer determines that the removal was a violation of law or that the child’s behavior was a manifestation of the child’s disability; or
  2. Order a change of placement of the child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others.

Due process hearings regarding discipline issues are handled on an expedited basis which must occur within 20 school days of the date the complaint requesting the hearing is filed.  The hearing officer must make a determination within 10 school days after the hearing.  Just like all due process decisions the losing party can appeal to state or federal courts.

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