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Special Education: Discipline

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What should happen?

  1. After 10 school days, students with disabilities under IDEA must get educational services, even if they have been suspended or expelled. Those services do not have to be at the school. This is not the case for students who do not have disabilities under IDEA.
  2. If the removal is a "change of placement," then an IEP Team must meet to decide appropriate services and make a "manifestation determination."

A "change of placement" is when a student:

  • is removed from school for more than 10 school days in a row, or
  • is removed from school for more than a total of 10 school days in a school year if the behaviors are "substantially similar."
    • The school decides if the series of short-term removals is a "change of placement" by looking at:
      • your child's behaviors,
      • the length of each removal,
      • the total amount of time your child is out of school, and
      • how close together the series of removals happened.

This means it is possible for there to be no change in placement when your child is removed from school for more than a total of 10 school days in a school year if those days are not in a row. If you disagree with the school's decision that the series of short-term removals, totaling more than 10 school days in a school year, is not a change in placement, you can request a due process hearing.

Why is this important?

If your child's behavior is because of her disability, she cannot be punished for it and kept out of school. Instead, her IEP must be changed to give her services to help her deal with her behaviors at school.

For example: If a student has Tourette's Syndrome and has a verbal tic of swearing, she cannot be suspended or recommended for expulsion because of inappropriate language so long as her language is a result of a verbal tic. Instead, her IEP should be changed to help her learn strategies for controlling or reducing her verbal tics.

Only an IEP Team can change a student's placement. So, an IEP Team meeting must be held to:

  • make a manifestation determination
  • and if needed, change the IEP

What happens at a manifestation determination meeting?

An IEP Team meeting is held to decide if your child's inappropriate behaviors and disability are "substantially related." You and relevant members of the IEP Team will meet. You and the school decide who the relevant members of the IEP Team will be for the manifestation determination. The IEP team will review:

  • all relevant information in your child's file,
  • your child's IEP,
  • any teacher observations, and
  • any relevant information provided by you. You can bring in outside evaluations or reports from your child's counselor for the team to review.

In deciding if there is a manifestation, the team will answer 2 questions:

  1. Was the behavior caused by or directly and substantially related to your child's disability?
  2. Was the behavior a direct result of the school's failure to implement your child's IEP?

If the answer to one of these questions is "yes," then there is a manifestation between your child's behavior and disability. Remember, you are an equal participant at an IEP Team meeting! Be sure to explain why you think your child behaved inappropriately and how you think it is related to his or her disability.

When there is a manifestation

When there is a manifestation, your child cannot be further disciplined. This means your child cannot be recommended for expulsion or continue to be suspended for that behavior. Instead, the IEP needs to be changed to address your child's behaviors. If the school did not follow the IEP, it must follow it immediately. The IEP team must also conduct a functional behavioral assessment (FBA) unless one was completed earlier. The FBA will try to figure out your child's behaviors by lookng at:

  • What are your child's triggers,
  • When does the behavior happen, and
  • What is your child trying to get from the behaviors (attention, avoidance, etc.).

Based on the FBA, a behavior plan must be put in place. If your child already had a behavior plan, it should be changed to address the inappropriate behavior. The behavior plan should become part of your child's IEP. Your child should also be returned to the placement she was in before she was removed from school, unless:

  • the IEP Team decides to change the placement at the meeting, or
  • the school places your child in an "interim alternative educational setting" (IAES)

When there is NOT a manifestation

If the IEP Team decides there is no manifestation, then your child can be disciplined just like any other student. This means he can be recommended for expulsion before a school board if the school wants him removed for more than 10 school days. See  Suspensions and Expulsions: Students Have Rights. Remember, your child must still receive educational services after being removed from school for more than 10 school days in a school year.

If you disagree with the manifestation determination, you can request a due process hearing. Your child will stay in his current educational placement (Stay Put). This can include the IAES if your child is placed there. You can ask for an expedited hearing. To learn more about due process hearings, see  IDEA: When Parents and Schools Disagree.

An Interim Alternative Education Setting (IAES)

The school can place a student with a disability in an "interim alternative educational setting" (IAES). They can do this even if the behavior is a manifestation of your child's disability. The only time your child can be placed in an IAES is if 1 of 4 things happened:

  1. your child had a weapon at the school, on school grounds or at a school event,
  2. your child had illegal drugs at the school, on school grounds or at a school event,
  3. your child inflicted serious bodily injury on another person at school, on school grounds or at a school event, or
  4. the school asked for and won a due process hearing before the State of Maine Department of Education because the school was afraid your child was dangerous and was "substantially likely" to injure himself or someone else.

IMPORTANT: If your child did not have a weapon or drugs at school or did not cause serious bodily injury to another person while at school, on school premises or at a school event, the school cannot just place him in an IAES. The school must request a due process hearing before putting your child in an IAES. At the hearing, the school must prove that your child's continuation in his current placement is "substantially likely to result in injury to the child or to others." If the school does not prove this, your child cannot be put in an IAES.

In all cases, the IAES can be for only 45 school days. It is a temporary placement that gives the IEP Team time to develop an appropriate IEP while keeping your child and the school safe. The IEP Team decides what the IAES should be. Remember, the IAES must allow your child to advance in the general curriculum, meet his IEP goals, and address his inappropriate behavior. Again, you are an equal participant in the IEP Team meeting. You can invite other people who know your child to the IEP Team meeting. For example, if your child has a counselor or case manager who can talk about your child's behaviors and needs, invite him/her to attend in person or by phone. Make sure that your child's needs are being met in the IAES.

Educational services during school removals

If a student with a disability is removed from school for more than 10 school days in a school year, he must get educational services. The school district must make the arrangements. The services will be somewhere other than the school. This is true even if your child is expelled after a school board hearing. The services must allow your child to:

  1. progress in the general curriculum,
  2. progress toward his IEP goals, and
  3. if appropriate, include a functional behavioral assessment (FBA) and a behavior plan that addresses the inappropriate behaviors that caused your child to be removed from school.

If the removal is a change of placement, the IEP Team will decide what the services are. The IEP will then be changed. If your child have been out of school for more than 10 school day in a school year because of a series of short-term suspensions that do not amount to a change of placement, the IEP Team does not have to meet. Instead, an appropriate school staff person can decide what the services will be during your child's removal after talking with one of your child's teachers.

Two hours of tutoring a day -- Watch out!

Tutoring by itself is probably not appropriate. It is a very restrictive placement because there is no peer interaction. Tutoring, along with other services, may be appropriate. Think about your child's IEP goals. How will they be addressed? Also think about how your child's inappropriate behaviors will be addressed? Remember, the educational services your child gets must allow him to advance in the general curriculum and meet his IEP goals.

If your child is tutored, the tutor must be a certified special education teacher, certified regular education teacher or an ed tech 3. The State regulations are clear that there is no maximum on the number of hours of tutoring a day. A school policy of giving 2 hours of tutoring a day is not appropriate. A tutoring program must be decided by the IEP Team and must be based solely on your child's needs, not school policy or practice. If tutoring will last more than 10 school days, a new IEP must be developed.

Can I refer my child to special education services if he has been suspended or expelled?

Yes. If you make a referral, the evaluation must happen quickly.

You can also claim the extra protections explained above (a manifestation determination and educational services when your child has been removed from school for more than 10 school days in a school year) if the school had knowledge that your child was a student with a disability. The school is deemed to know that if:

  1. you expressed concern in writing to a school administrator or your child's teacher that you believe your child needs special education services,
  2. you requested an evaluation of your child, or
  3. a teacher or other school staff expressed concerns about your child's pattern of behaviors to the special education director or other school staff person with supervisory responsibility.

Your child will not be eligible for the extra protections if:

  • the school requested an evaluation and you said no,
  • the school offered special education services and you said no, or
  • your child was evaluated and the IEP Team decided that she does not have a disability under IDEA.

Updated May 2013