By Hillary D. Freeman, Esq.
Students who qualify for special education and related services under the IDEA shall not be punished the same as regular education students for behaviors that are a product of their disabilities. Instead, the IEP team shall determine whether discipline is appropriate and if so, the team shall determine the appropriate type of discipline. This is particularly true for students with mental health challenges.
In considering the appropriate form of discipline, consideration must be given to the student and his or her disability, effectiveness of past discipline, whether the student can comprehend that his or her behavior violated the school’s code of conduct, discipline given to typical students, the severity of the misconduct, and the number of suspensions the student has been given over the course of the school year.
Regulations under the IDEA preclude students with disabilities from being suspended more than 10 cumulative days during the year. Once the student has reached his or her limit, the district must conduct a Manifestation Determination meeting to assess whether the student’s conduct is substantially related to his or her disability. If so, then the student must undergo a Functional Behavioral Assessment (FBA)and subsequently develop a Behavior Intervention Plan (BIP)
The school district is not required to provide services to students who have been removed from their placement for 10 days or less provided typical students are being treated the same way. In the case of a student with a disability who has been removed from his or her current placement for more than 10 cumulative or consecutive school days in the school year, the district board of education shall provide services to the extent necessary to enable the student to progress appropriately in the general education curriculum and advance appropriately toward achieving the goals set out in the student’s IEP.
In extreme cases, 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. Specifically, this may occur when the student is found to be in possession of a weapon; possesses or uses illegal drugs; and/or has inflicted serious bodily injury upon another. In these cases, the IEP team shall determine the appropriate interim alternative setting.
The parent of a child with a disability who disagrees with any decision regarding placement, or the manifestation determination may appeal the determination by requesting a hearing.
Hillary Freeman, Esq. is an attorney who practices in the area of disability law. She has a brother with autism. http://www.freemanlawoffices.com/
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