Discipline Issues under IDEA

Manifestation Determination

• Case by case determination for students who violate the student code of conduct that results in more than 10 school days of school removal requires a manifestation determination (20 USC 1415(k)(1)(A) and (B))
• Participants must include parent and relevant members of PET (as determined by parent and school) and must review all relevant information in student’s file, including IEP, teacher observations and other relevant information provided by the parents (20 USC 1415(k)(1)(E))
• The questions that must be considered (only one need be yes for a manifestation to be found)
1. If the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability, or
2. if the conduct in question was the direct result of the school’s failure to implement the IEP.
   20 USC 1415(k)(1)(E)(i) and (ii)
• If manifestation is found
• a functional behavior assessment must be conducted and a behavior intervention plan (BIP) must be implemented or modified as necessary to address the behavior and
• student must be returned to the placement (s)he was removed from unless agreement between parent and school to place elsewhere as modification of BIP (20 USC 1415(k)(1)(F))
• If no manifestation if found
  • student may be disciplined like non-special ed students (ie, expulsion) (20 USC 1415(k)(1)(c))
  • student is still entitled to a FAPE if expelled (20 USC 1415(k)(1)(D))
  • Parent may appeal manifestation determination by requesting a due process hearing (20 USC 1415(k)(3))

Services after 10 school days of removals (cumulative or consecutive)

• If student is removed from school regardless of the manifestation finding,
• (s)he must received education services that enable him/her to participate in the general education curriculum (although in another setting) and
• progress toward IEP goals, and
• receive a functional behavioral assessment and behavioral intervention services and modifications to address behavior
• 20 USC 1415(k)(1)(D)

Interim Alternative Educational Setting (IAES)

• Can last for a maximum of 45 school days, regardless of the manifestation determination IF
• Carries/Possesses Weapon,
• Possesses or Uses Illegal Drugs,
• Sells or Solicits sale of controlled substance or
• inflicted serious bodily injury
• at school, on school grounds or at school function
• 20 USC 1415(k)(1)(G)
• All other grounds to place in an IAES can only occur after school proves at a due process hearing that the student’s staying in his/her current placement is "substantially likely to result in injury" to self or to others (20 USC 1415(k)(3)(A) and (B)(ii)(II))
• PET determines the IAES (cannot be a unilateral decision by school administration) (20 USC 1415(k)(2))
• If parent disagrees with appropriateness of IAES, (s)he may request a due process hearing
• Expedited: 20 school days for hearing, 10 schools days afterwards for decision (20 USC 1415(k)(4)(B))
• "Stay Put" is IAES until the 45 school day maximum time permitted has expired (20 USC 1415(k)(4)(A))
• What does this mean:
• A placement of 2 hours of tutoring a day is either
• A violation of IDEA because a FAPE is not provided, it’s not the LRE, and/or it wasn't determined by a PET, or
• School is not treating tutoring like an IAES but is instead suspending the student for more than 10 days in violation of the students due process rights to an expulsion hearing before the school board under 20-A MRSA 1001(9)

Discipline and non-identified IDEA students

• A referral for special education may occur during or after the student has been suspended or expelled. In that case, the evaluation must be expedited (20 USC 1415(k)(5)(D))
• Students not yet eligible for IDEA may be protected by procedures (manifestation determination, IAES, functional behavior assessment and behavior interventions) if school had knowledge that the student had a qualifying disability before the behavior occurred (20 USC 1415(k)(5)(A))
• Basis of knowledge (20 USC 1415(k)(5)(B))
• Parent submitted written concerns that child needs special ed and related services to school administration or child’s teacher
• Parent requested evaluation, or
• Student behavior
• Teacher or other school staff expressed specific concerns about behaviors to special ed director or other school supervisory personnel
• Exception: Parent did not consent to evaluation, refused services, or the student was evaluated and determined ineligible for services (20 USC 1415(k)(5)(c))