Special Education Discipline

As districts implement the discipline protections for students with a disability under the IDEA these include the obligation to consider positive behavior interventions and supports for a student whose behavior impedes their learning or the learning of others. 

A change of placement occurs when: 

The removal is for more than 10 consecutive school days. 

The student has been subjected to a series of removals that constitute a pattern because of the following: 

The series of removals total more than 10 school days in a school year. 

The student’s behavior is substantially similar to the student’s behavior in previous incidents that resulted in the series of removals. 

Such additional factors as the length of each removal, the total amount of time the student has been removed, and the proximity of the removals to one another. 

When a student with a disability is removed due to a violation of a district’s code of student conduct for more than 10 nonconsecutive school days in the same school year, the district must determine whether a change of placement has occurred due to a series of removals involving substantially similar behaviors which constitute a pattern. When making this determination, the behavior, proximity, and length of removal for the incident in question and all prior incidences must be reviewed and considered together. 

A removal with these conditions is considered a pattern of removal and therefore is a change of placement. The district must make this determination for each subsequent removal, which includes both in-school suspensions, out-of-school suspensions, and in some instances short term removals from class which occur on a regular basis. 

On the date the decision is made to make a removal, which constitutes a change of placement of a student with a disability because of a violation of a code of student conduct, the district must: 

Provide notice to the parent. 

Provide procedural safeguards. 

Within 10 school days of the date of removal the district must conduct a manifestation determination review. 

Educational Services in a Change of Placement 

When a removal is considered a change of placement, the IEP team must determine appropriate services, to be provided during the student’s removal. When a removal is not considered a change of placement, school personnel, in consultation with at least one of the student’s teachers, must make decisions about services to be provided during the student’s removal. In either case, the educational services must be individualized and allow the student to continue to participate in the general education curriculum and progress toward their IEP goals. 

A manifestation determination review (MDR) is an individual entitlement, for a student with an individualized education program (IEP), who has experienced a change of placement due to a violation of a district's code of student conduct. An MDR is also required when a district has a basis of knowledge the student is a student with a disability even if the student has not yet been found eligible for special education at the time of the proposed discipline. 

When must a manifestation determination review occur? 

According to IDEA, an MDR must occur within 10 school days of any decision to change the student’s placement because of a violation of a code of student conduct. Under IDEA, a change of placement occurs when: 

The removal is for more than 10 consecutive school days. 

The student has been subjected to a series of removals that constitute a pattern. 

• Because the series of removals total more than 10 school days in a school year;
• Because the student’s behavior is substantially similar to the student’s behavior in previous incidents that resulted in the series of removals. 
• Because of such additional factors as the length of each removal, the total amount of time the student has been removed, and the proximity of the removals to one another. 

When a change of placement occurs, an MDR must be held within 10 school days. Prior to removals of more than 10 cumulative school days, the district through a pattern of removals, may need to determine whether the student is demonstrating an emerging need (ex. increased behavioral issues impacting the school setting) and respond to the need, in order to provide a FAPE. 

An MDR may also be conducted for a student who is not determined eligible for special education but there was a basis of knowledge prior to the behavior that precipitated the disciplinary action.  

Who should be included in an MDR?  

The parent and relevant members of the IEP team (as determined by the parent and the district) must be included in the MDR. 

What happens during an MDR? 

During the MDR the participants complete a thorough review and carefully consider the relevant information in the student’s file including student’s IEP, course grades, progress reports, anecdotal notes, as well as information received from the parent. The review of relevant information is intended to present a picture of the whole child and not a specific focus on the category of eligibility. The participants must determine whether the conduct in question, which resulted in a change of placement, was a manifestation of the student’s disability. To make this determination, the MDR participants must answer two questions: 

1. Was the conduct in question caused by, or did it have a direct and substantial relationship to, the student’s disability? 
2. Was the conduct in question the direct result of the district’s failure to implement the student’s IEP? 

The question regarding failure to implement the IEP is twofold. The first question is whether the programs and services described in the IEP were provided as written. If yes, then no further discussion is needed. If no, the second part of the discussion is whether the failure to implement the IEP as written directly resulted in the behavior in questions. In order for the MDR participants to determine whether the behavior was a manifestation of the disability, the questions may require robust discussion of individual circumstances. Participants should avoid predetermining the answers to the above questions before the MDR is held. Decisions should be reached during the MDR and achieved through consensus rather than voting. The district should keep detailed documentation of all considerations. 

An answer of yes to one of the above questions, indicates the conduct in question was a manifestation of the student’s disability. The district must then take immediate steps to ensure all the following discipline protections occur: 

1.The student returns to the prior placement, unless: 

• The parent and district agree on a change of placement as part of a modification of the positive behavior support plan (PBSP). 
• The conduct in question involved weapons, drugs, or serious bodily injury. 

2. The IEP team must conduct a functional behavioral assessment (FBA) and create a PBSP, unless: 

• The student already has an FBA prior to the behavior which resulted in a change of placement. 
• The student already has a PBSP, in which case the team must review the PBSP and revise as necessary. 

3. When the conduct in question is a result of the IEP team’s failure to implement the IEP, the district must remedy deficiencies of IEP implementation. 

When the conduct in question is determined not to be a manifestation of the student’s disability the district may apply the same discipline procedures in the same manner and for the same duration, as are applied to nondisabled students. The district must: 

1. Provide educational services so the student can continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals in their IEP. 
2. Consider an FBA, when one has not already been completed, and a BIP. 
3. The district may need to develop an IEP for an interim alternative education placement where educational services will be provided in an interim alternate education setting in order to allow the student to participate in the general education curriculum and progress toward meeting IEP goals. 

What happens if there is no agreement on whether the student’s behavior was or was not a manifestation? If the parents, the district, and the relevant members of the student’s IEP Team cannot reach consensus or agreement on whether the student’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.

The parent of the child with a disability has the right to exercise procedural safeguards by requesting mediation and/or a due process hearing to resolve a disagreement about the manifestation determination. A parent also has the right to file a state complaint alleging a violation of Part B related to the manifestation determination. 

An Interim Alternative Education Setting (IAES) is an appropriate setting determined by the student’s IEP Team or an administrative law judge in which the child is placed for no more than 45 school days. This setting enables the child to continue to receive educational services so as to enable them to participate in the general education curriculum (although in another setting) and to progress toward meeting the goals set out in the IEP. As appropriate, the setting includes an FBA and behavioral intervention services and modifications to address the behavior violation so that it does not recur. 

While IDEA does not specify the alternative setting in which educational services must be provided in an IAES, the determination of an IAES must be selected to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student’s IEP. This determination will depend on the circumstances of each individual student’s case. 

Generally, the appropriateness of an IAES will depend on individual circumstances. For removals under IDEA's regulations, the student’s IEP Team, which includes the parent, determines the appropriate IAES. IDEA's regulations states 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 student’s IEP.” Therefore, the IEP Team likely will need to consider other options beyond “home instruction” when determining the appropriate IAES. 

For a student who has been removed from their current educational placement for disciplinary reasons, home instruction could be delivered through a virtual, in-person, or hybrid approach. Virtual home instruction or hybrid instruction could be additional options for an IEP Team to consider when determining the appropriate IAES for a student with a disability as long as the services allow the student to continue to participate in the general education curriculum and progress toward meeting the goals set out in the student’s IEP. However, districts should be cautious about excluding a student with a disability from their regular educational program to provide virtual instruction for the sole purpose of responding to a student’s behavior. Removing a student from the regular education program without ensuring behavioral supports have been made available throughout a continuum of placements, including in a regular education setting, could result in an inappropriately restrictive placement and denial of a free appropriate public education (FAPE).