Please note: This document has not been revised to reflect the new requirements of the Individuals with Disabilities Education Act as reauthorized in 2004.

 

Discipline Procedures for Students with Disabilities

January 2001


Table of Contents

 

Introduction

Glossary of Terms

Overview of Discipline Procedures
        Questions and Answers on Overview of the Disciplinary Process

Manifestation Determination
        Questions and Answers on Manifestation Determination

Functional Behavioral Assessment and Behavioral Intervention Plan Requirements for Students Subject to Disciplinary Action
        Questions and Answers on Functional Behavioral Assessments and Behavioral Intervention Plans

Free Appropriate Public Education for Students with Disabilities Subject to Discipline
        Questions and Answers on FAPE

Interim Alternative Educational Settings
        Questions and Answers on IAES

Expedited Due Process Hearings
        Timelines for Expedited Due Process Hearings

Rights of Students Not Identified by the CSE as Having a Disability

Appendix A
        Section 202(c) of the Controlled Substances Act (Schedules of Controlled Substances)

INTRODUCTION

The 1997 reauthorization of the Individuals with Disabilities Education Act (IDEA) and the implementing federal regulations incorporate significant changes in the procedures for disciplining students with disabilities. Subsequently, New York State enacted legislation (Chapter 311 of the Laws of 1999) and the Board of Regents adopted regulations (Part 201 of the Regulations of the Commissioner) to implement the federal requirements. In July 2000, the New York State Legislature enacted comprehensive school safety legislation. The Safe Schools Against Violence Act (SAVE) requires schools to make a number of significant changes in their policies and practices designed to help make our schools safer.

Safe and responsible schools are schools that have strong leadership; a caring faculty; family, community and student participation in the design of programs and policies; a safe physical environment; schoolwide policies to promote and support responsible behaviors; prevention and intervention programs that are sustained, coordinated, and comprehensive; interventions that are based on careful assessment of student needs; staff that are provided with training and support to help them implement programs and approaches; and interventions that are monitored and evaluations that are conducted to ensure that the programs are meeting measurable goals and objectives. Safe schools (1) provide intensive interventions for a few children; (2) intervene early for some children; and (3) build a schoolwide foundation for all children that supports positive discipline, academic success, and mental and emotional wellness. While schoolwide policies and practices that promote and support responsible behaviors and early intervention programs will, in most schools, meet the needs of most students, individualized intensive interventions will be needed for a relatively small number of students (Footnote 1).

Schools that take prompt and proactive steps to address behavior problems when they first appear by providing positive supports and strategies will, in many cases, eliminate the reoccurrence of such a behavior and the need to take more drastic measures, such as suspension or removal. For those students who require intensive and individualized interventions, the individualized education program (IEP) development process includes requirements specifically related to addressing student behaviors:

In addressing student behaviors that may impede learning, school personnel should consider a range of positive supports and strategies and interventions beyond removals and suspensions. Discipline policies and practices and behavioral intervention plans should include a variety of interventions such as addressing a student’s motivation, social skills, and problem solving abilities and using positive reinforcement and logical consequences. In addition, a school may use interventions such as study carrels or after school detention and in-school suspension (appropriate instruction is provided to the student, although in another room). In-school suspension must ensure that appropriate instruction is provided by qualified teachers. Many schools have structured their in-school suspension programs to include instructional strategies to address behaviors such as social skill instruction, anger management, conflict resolution and problem solving skill instruction.

While there are formal disciplinary procedures in place, it is critical that parents and educators realize the importance of communication and informal relationships in resolving discipline issues. The formal discipline process is often unnecessary when parents, educators and students have opportunity to develop cooperative partnerships. Collaborative discussions of this type often lead to creative and student specific solutions which support appropriate behavior and educational achievement. If parents or school officials believe that a student’s placement is not appropriate, they should work together through the CSE to recommend an appropriate change. Collaborative and cooperative partnerships between parents, educators and students are more likely to result in support of appropriate changes to the placement of a student with a disability where such a change will meet the needs of the student, will result in improved learning for the student and will ensure a safe environment.

The following key points from the publication Safeguarding Our Children: An Action Guide (Footnote 2) highlights certain principles that research or expert-based experience show have a significant impact on success of prevention and intervention plans for students with behavior problems.

Principles Underlying Behavior Intervention

  • Share responsibility by establishing a partnership with the child, school, home, and community.

  • Inform parents and listen to them when early warning signs are observed. Parents should be involved as soon as possible.

  • Maintain confidentiality and parents' rights to privacy.

  • Develop the capacity of staff, students, and families to intervene.

  • Support students in being responsible for their actions.

  • Make interventions available as early as possible.

  • Use sustained, multiple, coordinated interventions. It is rare that children are disruptive only in school.

  • Analyze the contexts in which behavior problems occur.

  • Build upon and coordinate internal school resources.

GLOSSARY OF TERMS

The following acronyms and terms are defined for purposes of this document:

Alternative Instruction
Minimum instruction required for a student of compulsory school age who is suspended from school. Alternative instruction must be provided for a minimum of one hour daily for an elementary student and two hours daily for a secondary student.

Behavioral Intervention Plan (BIP)
A plan that is based on the results of the functional behavioral assessment and, at a minimum, includes a description of the problem behavior, global and specific hypotheses as to why the problem behavior occurs and intervention strategies to address the behavior.

Business Day
Monday through Friday, except for federal and State holidays (unless holidays are specifically included in the designation of business day).

Committee on Special Education
A committee on special education, subcommittee on special education, or other multidisciplinary team established in accordance with Education Law section 4402 or, in the case of a preschool student with a disability, the committee on preschool special education.

Compulsory School Age
Age six to the end of the school year when the student turns age 16. (In city or union free school districts with more than 4,500 inhabitants, the board of education may require students who are not employed to attend school until the end of the school year in which the student turns 17.)

Conduct and Discipline Policy
A written policy designed to promote responsible student behavior developed in accordance with section 100.2(l) of the Regulations of the Commissioner.

Controlled Substance
A drug or other substance identified under schedule I, II, III, IV or V in section 202(c) of the Controlled Substances Act (see Appendix A).

Disciplinary Change in Placement
A suspension or removal from a student’s current educational placement that is either:

  • for more than ten consecutive school days; or

  • for a period of ten consecutive days or less if the student is subjected to a series of suspensions or removals that constitute a pattern because they accumulate to more than ten school days in a school year and because of such factors as the length of each suspension or removal, the total amount of time the student is removed and the proximity of the suspension or removals to one another.

Expedited Due Process Hearing
An impartial hearing conducted in an expedited manner in accordance with section 201.11 of the Regulations of the Commissioner.

Free Appropriate Public Education (FAPE)
For students with disabilities suspended or expelled from school, as defined in 34CFR section 300.121(d).

Functional Behavioral Assessment (FBA)
The process of determining why a student engages in behaviors that impede learning and how the student’s behavior relates to the environment. The functional behavioral assessment includes, but is not limited to:

  • the identification of the problem behavior;

  • the definition of the behavior in concrete terms;

  • the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors); and

  • the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it.

Hearing Officer
An individual appointed by the board of education or superintendent to conduct a section 3214 superintendent’s hearing.

Illegal drug
A controlled substance other than a substance legally possessed or used under the supervision of a licensed health-care professional or a substance that is otherwise legally possessed or used under the authority of the Controlled Substances Act or under any other provision of Federal law.

Impartial Hearing Officer (IHO)
An individual assigned by a board of education or by the Commissioner to hear an appeal and render a decision in accordance with section 200.5(i) of the Regulations of the Commissioner of Education.

Individualized Education Program (IEP)
A written statement developed, reviewed and revised in accordance with section 200.4 of the Regulations of the Commissioner that includes the components specified in section 200.4(d)(2) of the Regulations to be provided to meet the unique educational needs of a student with a disability.

Individuals with Disabilities Education Act (IDEA)
Federal law relating to the education of students with disabilities.

In-School Suspension
When the student remains in the school he or she regularly attends but receives instruction in another room for disciplinary reasons.

Interim Alternative Educational Setting (IAES)
A temporary educational placement for a period of up to 45 calendar days, other than the student’s current placement at the time the behavior precipitating the IAES placement occurred, that:

  • enables the student to continue to progress in the general curriculum, although in another setting;

  • enables the student to continue to receive those services and modifications, including those described on the student’s current IEP, that will enable the student to meet the goals set out in such IEP; and

  • includes services and modifications to address the behavior which precipitated the IAES placement that are designed to prevent the behavior from recurring.

Long-term suspension
A suspension of more than five consecutive school days.

Manifestation Determination
A review of the relationship between the student’s disability and the behavior subject to disciplinary action.

Prior Notice
Written statements provided to the parents of a student with a disability within a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation or educational placement of the student or the provision of a free appropriate public education to the student.

Procedural Safeguards Notice
A written notice developed by the State Education Department that describes the rights for parents of children with disabilities, ages 3-21.

Removal
The removal of a student with a disability for disciplinary reasons from that student’s current educational placement, other than a suspension; and the change of placement of a student with a disability to an IAES by a superintendent of schools for behavior involving weapons, illegal drugs or controlled substances, or by an impartial hearing officer in a dangerous situation.

School Day
Any day, including a partial day, that students are in attendance at school for instructional purposes. The term school day has the same meaning for all students in school, including students with and without disabilities.

Short-term suspension
A suspension of five consecutive school days or less.

Student presumed to have a disability for discipline purposes
A student who the school district is deemed to have knowledge was a student with a disability before the behavior that precipitated disciplinary action under the criteria in IDEA and its regulations.

Student with a disability
A student with a disability or a preschool student with a disability as defined in sections 200.1(zz) and 200.1(mm) of the Regulations of the Commissioner.

Substantial evidence
Beyond a preponderance of evidence.

Superintendent or Superintendent of Schools
A superintendent of schools of a school district, including a community superintendent, or the chief school officer of an approved private school. Such term does not include a Board of Cooperative Educational Services (BOCES) district superintendent of schools.

Superintendent’s hearing
A disciplinary hearing conducted pursuant to Education Law section 3214(3)(c) and (g) by a superintendent of schools, or a hearing officer designated by a superintendent of schools, to determine whether a student should be suspended from instruction for more than five consecutive school days.

Suspension
A suspension pursuant to Education Law section 3214(3)(a) through (d).

Teacher Removal
Removal of a disruptive student by a teacher in accordance with section 3214(3-a) of the Education Law.

Weapon
A weapon, device, instrument, material or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than two and one-half inches in length.

OVERVIEW OF THE DISCIPLINARY PROCESS FOR
STUDENTS WITH DISABILITIES IN NEW YORK STATE

If a student violates the school code of conduct and is being considered for a suspension or removal, school personnel must ensure the following due process protections are provided to the student and to the student’s parent(s). For suspensions of five school days or less, the student's parent(s) or guardian must be provided with a written notice (section 3214 notice), and a follow-up telephone call if possible, within 24 hours of the incident leading to the suspension which describes the basis for the suspension and explains that the parent or guardian has a right to request an informal conference with the principal prior to the proposed suspension to discuss the incident and question any complaining witness(es) against the student. For suspensions in excess of five consecutive school days, the student's parent(s) or guardian must be provided with a written notice which indicates that the district proposes to suspend the student from school in excess of five consecutive school days, describes the basis for the proposed suspension, explains that the student has an opportunity for a fair hearing conducted by either the superintendent or hearing officer designated by the superintendent at which the student will have a right to question any witnesses accusing him/her of committing the misconduct charged and to present witnesses on his/her own behalf. Where possible, notification must also be provided by telephone. For any student of compulsory school age, the school must provide alternative education to the student during the suspension.

In addition to the above, which apply to all students in New York State, there are additional procedures and protections that apply to students with disabilities including:

  • the provision of a free appropriate public education to students who are suspended or removed for disciplinary reasons for more than ten school days in a school year;

  • the responsibility of schools to address behaviors that result in suspensions or removals for more than ten school days in a school year (functional behavioral assessment and behavioral intervention plans);

  • the determination of the relationship between the behavior and the student’s disability when a suspension or removal would result in a disciplinary change of placement (manifestation determination);

  • providing the parent of the student a copy of the procedural safeguards notice (special education rights) whenever a disciplinary action will result in a disciplinary change in placement (Footnote 3);

  • an expedited process (expedited due process hearings) to resolve disagreements between parents and schools regarding certain disciplinary actions;

  • protections for students who are not classified when a parent asserts that the school had knowledge, prior to the behavior that resulted in the disciplinary action, that the student was a student with a disability ("student presumed to have a disability for discipline purposes"); and

  • expedited evaluations of students suspected of having a disability during the time the student is suspended.

Among the significant changes in the procedures for the discipline of students with disabilities, school officials have increased authority to suspend or remove students with disabilities to interim alternative educational settings for offenses relating to illegal drugs, controlled substances or weapons. In instances when school personnel maintain that it is dangerous for a student to remain in his or her current educational placement, school officials can request an expedited due process hearing to move the student to an interim setting. School officials can remove a student with a disability from his or her current placement when necessary, even though the student had previously been removed earlier in that school year, as long as the removal does not constitute a "disciplinary change in placement."

The procedures relating to the discipline of students with disabilities require school personnel with authority to suspend or remove students to work closely with Committees on Special Education, establishing clear guidelines for communication and decision making on disciplinary matters. The following overview provides the framework for the actions that schools must take when determining that a student with a disability will be suspended or removed for behaviors that violate the school code of conduct. Subsequent sections of this document provide timelines and more detail on each of the requirements.

OVERVIEW STEPS IN THE DISCIPLINARY PROCESS

  1. Follow section 3214 procedures as you would for any student.

  • Send written parent notice

  • Make telephone call to the parent, if possible

  • Conduct an informal conference, upon request

  • Send a section 3214 hearing notice to the student’s parent

  • Conduct Superintendent’s hearing

  • Send a notice of the hearing results to the student’s parent

  1. Arrange for instruction, as appropriate, to be provided to the student.

  • If the student is of compulsory school age, arrange immediately for alternative instruction.

  • If the student is a student with a disability or a student presumed to have a disability and the disciplinary action will result in a suspension/removal for more than ten school days in a school year, provide FAPE based upon the recommendation of the student’s special education teacher or the CSE, as appropriate.

  1. Determine if the suspension/removal will result in first removing a student for more than ten school days in a school year or imposing a suspension or removal that constitutes a disciplinary change or placement. If yes,

  • Send CSE meeting notice to the parent with a copy of the procedural safeguards notice.

  • Convene a CSE meeting to address the student’s behavior, as required. (For subsequent removals that do not constitute a disciplinary change of placement, a CSE meeting is necessary if requested by one or more CSE members based on an individual review of the student’s behavioral intervention plan and its implementation).

  • Send prior notice to the parent of the CSE recommendation.

  • Provide education services to meet the FAPE requirement.

  1. Determine if the suspension/removal will constitute a disciplinary change of placement. If yes,

  • Send CSE meeting notice to the parent with a copy of the procedural safeguards notice.

  • Convene a CSE meeting to address the student’s behavior, as required (Footnote 4).

  • Convene a CSE meeting to conduct a manifestation determination.

  • If the behavior is related to the student’s disability, unless the parent and the district otherwise reach an agreement, immediately return the student to his or her current educational placement (except for suspensions to an IAES for drugs/controlled substances or weapons or removals to an IAES by an impartial hearing officer for dangerousness).

  • If the behavior is not related to the student’s disability, the student may be suspended or removed for the behavior.

  • If the student is suspended or removed, provide education services to meet the FAPE requirement.

  • Send prior notice of the CSE recommendations to the parent.

  1. Removal for behavior involving weapons, illegal drugs, or controlled substances.

  • Conduct a superintendent’s hearing.

  • Send a CSE meeting notice with a copy of the procedural safeguards notice to the student’s parent.

  • Convene a CSE meeting to determine the IAES setting and services to address the behavior.

  • At the discretion of the school superintendent, remove the student to an IAES for up to 45 calendar days.

  • Provide education services to meet the FAPE requirement in the setting determined by the CSE.

  • Convene a CSE meeting(s) to conduct a manifestation determination (Footnote 5) and assess and addresses the behavior.

  • Send prior notice of the CSE recommendations to the parent.

  1. If continuing the student in the current educational placement is substantially likely to result in injury to the student or to others.

  • Request an expedited impartial hearing to request the student be placed in an IAES for up to 45 calendar days (Footnote 6). Send a meeting notice to the student’s parent(s) with a copy of the procedural safeguards notice.

  • Convene a CSE meeting to determine manifestation.

  • Send prior notice of the CSE recommendations to the parent.

  • Provide substantial evidence that maintaining the current placement of the student is substantially likely to result in injury to the student or to others.

  • Provide a recommendation for the IAES setting to the impartial hearing officer (IHO).

  • If the student is removed to the IAES, provide education services to meet the FAPE requirement in the setting determined by the IHO.

  1. Parent disagrees with the manifestation determination or any decision regarding a disciplinary placement, including a decision to place the student in an IAES and requests a due process hearing.

  • Send procedural safeguards notice to the parent.

  • Provide the parent with the form to request a due process hearing or mediation.

  • Arrange for an expedited due process hearing.

  • Ensure pendency (current educational placement or the IAES).

  1. CSE receives a referral for initial evaluation of a student during the time a student is suspended or removed for disciplinary reasons (other than students presumed to have a disability for discipline purposes).

  • Conduct an expedited evaluation of the student.

  • Student remains in the educational placement determined by the school, which could include suspension.

Questions And Answers on Overview of the Disciplinary Process

1. What if a student’s parent(s) disagree with the superintendent's determination to suspend the student?

The student's parent(s) or guardian can appeal such determination to the board of education of the school district. The board of education remains free to accept the superintendent's determination in whole or in part or to reject the determination entirely.

2. What if a student's parent(s) or guardian disagrees with a board of education's determination to suspend the student?

The parent(s) or guardian has a right to appeal the board of education's determination to suspend the student to the Commissioner of Education pursuant to the provisions of Education Law section 310. The Commissioner will not consider an appeal challenging a superintendent's determination to suspend a student in excess of five school days unless and until the determination is first appealed to and finally determined by the board of education (Note: This includes an appeal from a determination by the superintendent that the student is not a student presumed to have a disability for discipline purposes). Information explaining how to file an appeal and the appeal process itself is available at the Department’s Office of Counsel Web site (www.counsel.nysed.gov) or by calling (518) 474-8927 and requesting written information.

3. What authority do school officials from Boards of Cooperative Educational Services (BOCES) have to suspend or remove a student with a disability for disciplinary reasons?

A district superintendent or principal from BOCES may impose short-term suspensions of students with disabilities. A long-term suspension may only be imposed by the superintendent of the school district that placed the student in the BOCES program. Any suspension or removal of a student with a disability from a BOCES program the student attends requires notification and communication with the district of the student’s residence to ensure the student’s full due process rights are protected and that the CSE can fulfill its responsibilities.

4. What authority do school officials from approved private schools and State-operated and State-supported schools have to suspend or remove a student with a disability for disciplinary reasons?

State regulations stipulate that a student with a disability may not be removed or transferred from an approved private in-state or out-of-state school without the recommendation of the CSE of the school district contracting for the education of the student. If a student with a disability violates the school’s policy on school conduct and discipline, the school does, however, have the authority to suspend or remove the student in accordance with Part 201 of the Regulations of the Commissioner. Sections 200.7 and 200.20 of the Commissioner’s Regulations require State-operated schools, State-supported schools, and approved private schools, including all approved preschool programs and Special Act School Districts, to develop a school conduct and discipline policy in accordance with section 100.2(l) of the Commissioner’s Regulations. The discipline of students with disabilities attending such schools must be consistent with Part 201 of the Commissioner’s Regulations. This means no student with a disability in such schools may be suspended or removed from his or her education program without the due process rights afforded by Section 3214 of the Education Law and Part 201 of the Commissioner’s Regulations. This requires that school officials from the school the student attends must notify and communicate with the district of the student’s residence in the event a student is suspended or removed for disciplinary reasons.

5. What authority do school officials from charter schools have to suspend or remove a student with a disability for disciplinary reasons?

Charter schools must provide constitutionally required due process protections and comply with the federal law and regulations, including the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act, pertaining to the discipline of students with disabilities. The application for approval as a charter school requires the school to indicate how it will meet these discipline requirements. While the public school is responsible for the CSE functions, it is the responsibility of the charter school to provide services as delineated in the IEP, including providing FAPE for students suspended.

6. May an assignment to another setting such as a BOCES center for discipline purposes be considered in-school suspension?

No. Any disciplinary action that removes a student to another setting other than the school the child regularly attends may not be considered an in-school suspension. Such a removal would constitute an out-of-school suspension.

7. May a BOCES provide the setting and education services for a student with a disability who is suspended or removed under the authority of a school superintendent or an impartial hearing officer?

Yes, if alternative instruction or FAPE is provided to the student, as appropriate.

8. Can the school district invoke an involuntary transfer of a student with a disability?

No. An involuntary transfer of a student with a disability is prohibited by section 3214(5) of the Education Law.

9. Would a removal or suspension for part of a day be considered a "school day" for purposes of determining when a student has been removed for ten school days or when there has been a disciplinary change of placement?

The United States Department of Education (USDOE) has defined a school day as "any day, including a partial day, which students are in attendance at school for instructional purposes." Based upon this definition, a removal for a "partial day" counts as one full day of removal.

10. Do the IDEA protections for students with disabilities subject to disciplinary action apply to a student with a disability who is enrolled in a summer school program?

Yes. In a recent decision, LIH v. New York City Board of Education, the court determined that IDEA’s discipline provisions apply to summer school.

11. Would a removal of a student from a teacher’s class by a teacher and/or an assignment to in-school suspension constitute a "removal"?

With respect to in-school suspensions, the USDOE has indicated that an in-school suspension would not constitute a removal as long as "the student is afforded the opportunity to continue to appropriately progress in the general curriculum, continue to receive the services specified on his or her IEP and continue to participate with nondisabled children to the extent they would have in their current placement." (64 FED. REGISTER No. 48, p.12619). An in-school suspension that does not meet these standards would count as a removal. These same criteria would be applied to teacher removals in accordance with Education Law section 3214(3-a). A principal can overrule a teacher removal of a student with a disability if such removal would result in a violation of the law or regulations for the discipline of students with disabilities.

12. Would suspension from bus transportation count as a "removal"?

The USDOE has indicated that a bus suspension would constitute a removal if transportation is a part of the student's IEP unless the school district provides transportation by some other means. In addition, even in instances when special transportation is not a part of a student’s IEP, a removal from transportation is tantamount to suspension from attendance if, because of the distance between a student's home and school and the absence of alternative public or private transportation, a district does not make appropriate arrangements to provide for the student's education.

13. May school personnel refer a student to law enforcement and judicial authorities if a student with a disability is alleged to have committed a crime?

Nothing in federal or State law or regulations prohibits a school from reporting a crime committed by a student with a disability to appropriate authorities. In addition, nothing in federal or State law prevents law enforcement and judicial authorities from exercising their responsibilities with regard to the application of federal and State law to crimes committed by a student with a disability.

If school officials report a crime committed by a student with a disability, they must ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by appropriate authorities to whom a crime has been reported. However, a school reporting a crime may transmit copies of the student’s special education and disciplinary records only to the extent that the transmission is permitted by the Family Educational Rights and Privacy Act. The USDOE has indicated that "with regard to indicating that a student is a special education student and identifying a contact person who can provide appropriate information to authorities to whom a crime is reported ..., under the confidentiality requirements of these regulations... and those of the Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. 1232g), personally identifiable information (such as a student’s status as a special education student) can only be released with parental consent except in certain very limited circumstances." (64 FED.REGISTER No. 48, p.12631).

14. What is the authority of school personnel to refer a student with a disability to Family Court to designate the student as a "Person in Need of Supervision" (PINS)?

While school officials have the authority to file a PINS petition on a student with a disability in order to assist them in retaining the student in his/her existing program, school officials may not circumvent the IDEA requirements by initiating a PINS petition to change the student’s educational placement. (See Matter of Beau "II", 95 N.Y. 2d 234(2000)).

The following sections provide the requirements, technical assistance charts and questions and answers specifically relating to the topics of:

  • manifestation determinations.

  • assessing and addressing behaviors.

  • providing a free appropriate public education during suspensions or removals (FAPE).

  • interim alternative educational settings.

  • expedited due process hearings.

  • the rights of students presumed to have a disability for discipline purposes and students referred for an initial evaluation during a suspension or removal.

MANIFESTATION DETERMINATIONS
Reference: Section 201.4 of the Regulations of the Commissioner

A manifestation determination (Footnote 7) is a determination of whether there is a relationship between the student’s disability and the behavior that is subject to the disciplinary action. The determination must be made by the CSE and other qualified individuals in a meeting.

The requirement to conduct a manifestation determination comes into play only when school officials seek to impose a suspension or removal that constitutes a disciplinary change of placement (i.e., a suspension or removal of a student with a disability from his or her educational placement for more than ten consecutive days; or a suspension or removal for a period of ten consecutive days or less if the student is subjected to a series of suspensions or removals that constitute a pattern because they add up to more than ten school days in the school year and because of such factors as the length of each suspension or removal, the total amount of time the student is removed and the proximity of the suspensions or removals to one another). Conversely, the CSE is not required to conduct a manifestation determination for suspensions or removals of ten days or less in the school year, or for subsequent short-term suspensions or removals (less than ten cumulative days) that do not constitute a pattern of removal.

Specifically, the CSE must convene a meeting to make a manifestation determination whenever:

  1. school officials impose a suspension or removal that constitutes a disciplinary change of placement.

  2. the superintendent of schools decides to place a student in an interim alternative educational setting (IAES) for behavior involving weapons, illegal drugs or controlled substances.

  3. an impartial hearing officer decides to place a student in an IAES when it has been determined that continuing the student’s placement is substantially likely to result in injury to the student or to others.

The purposes of the manifestation determination are:

  • to ensure that a student is not being suspended or removed for behaviors that are related to his or her disability (Footnote 8);

  • to determine if a disciplinary action may be imposed to the same extent as for a nondisabled student; and

  • to ensure that the school identifies any deficiencies in the student’s IEP or placement or in their implementation and take immediate steps to remedy those deficiencies.

The following chart summarizes the required procedures for conducting a manifestation determination.

MANIFESTATION DETERMINATION

CONSIDERATIONS AND DETERMINATION CRITERIA

What

Who

When

  1. Consider all relevant information pertaining to the behavior including:
  • evaluation and diagnostic results and information supplied by the parents of the student;
  • observations of the student; and
  • the student’s IEP and placement.
  1. Then determine that, in relation to the behavior subject to disciplinary action,
  • the student’s IEP and placement were appropriate and the special education services, supplementary aids and services and behavioral intervention strategies were provided consistent with the student’s IEP and placement.
  • the student’s disability did not impair the ability of the student to understand the impact and consequences of the behavior subject to disciplinary action; and
  • the student’s disability did not impair the ability of the student to control the behavior subject to disciplinary action.
CSE and other qualified individuals in a meeting. Immediately, but in no case later than ten (10) school days after the decision is made
  • to impose a suspension or removal that constitutes a disciplinary change of placement; or
  • to change the placement of a student with a disability to an IAES by a superintendent or an impartial hearing officer.

 

DECISION

If any of the standards in #2 above are not met, the behavior must be considered a manifestation of the student’s disability.

 

RESULTING ACTIONS

  • A student with a disability may not be suspended or removed from his or her current educational placement for violation of school rules following a determination by the CSE that the behavior is a manifestation of the student’s disability, except for:

  • instances when the parents and the school district otherwise agree;

  • removals to interim alternative educational settings by school superintendents for weapons, illegal drugs or controlled substances offenses;

  • removals by impartial hearing officers when it is determined that maintaining the student’s current placement is substantially likely to result in injury to the student or to others.

  • If the behavior is determined not to be a manifestation of the student’s disability, a disciplinary suspension or removal may be imposed to the same extent as for a nondisabled student, except that the student with a disability must receive a free appropriate public education.

  • If the CSE identifies any deficiencies in the student’s IEP or placement or in their implementation, it must take immediate steps to remedy those deficiencies.

 

MANIFESTATION DETERMINATION CHECKLIST

I. IDENTIFY STUDENT BEHAVIOR SUBJECT TO DISCIPLINARY ACTION

II. CONSIDER RELEVANT INFORMATION

  • Evaluation and diagnostic results

  • Observations of the student

  • Student’s IEP and placement

III. DETERMINE, IN RELATIONSHIP TO THE BEHAVIOR SUBJECT TO DISCIPLINARY ACTION, IF:

  • The student’s IEP and placement is appropriate.

  • Special education services, supplementary aids and services and behavioral intervention strategies were provided consistent with the student’s IEP and placement.

  • The student’s disability did not impair the ability of the student to understand the impact and consequences of the behavior.

  • The student’s disability did not impair the ability of the student to control the behavior.

IV. DETERMINATION:

  • All of the above factors are met: The behavior is NOT related to the student’s disability.

  • One or more of the above factors were not met: The behavior IS related to the student’s disability.

V. DEFICIENCIES IN THE IEP OR ITS IMPLEMENTATION TO BE ADDRESSED:

______________________________________________________________________________

______________________________________________________________________________

Questions and Answers on Manifestation Determinations

1.  Must a manifestation determination be made at a separate meeting of the CSE?

No. The meeting to conduct a manifestation determination may be conducted at the same meeting convened to develop an assessment plan or behavioral intervention plan, or a meeting to review and modify a behavioral intervention plan or its implementation or at a meeting to determine the setting for an interim alternative educational setting placement. In deciding whether to conduct a manifestation determination at the same meeting at which other decisions (such as developing a behavioral assessment plan) are to accomplished, the CSE must recognize the complex decision making required for a manifestation determination. CSEs should allot sufficient time and structure to the meeting to complete the required task. In addition, the participants at the meeting to conduct the manifestation determination must include the required CSE members and other qualified individuals. The "other qualified individuals" may include individuals who are knowledgeable about how a student’s disability can impact on behavior or on understanding the impact and consequences of behavior and individuals who are knowledgeable about the student and his or her disabilities and strengths.

2.  Must a school district wait until a superintendent's hearing is convened pursuant to Education Law section 3214 and a finding of guilt is made before asking its CSE to meet and make a manifestation determination?

No. Nothing in federal or State law prohibits a school district from obtaining a manifestation determination prior to a determination of guilt at a superintendent's hearing. When appropriate, the CSE may meet to make a manifestation determination before, or simultaneously with, the superintendent's hearing. If it is later determined that the student did not commit the act that is subject to discipline, the question of record expungement would be handled the same way such matters are addressed for nondisabled students.

3.  After the first time a manifestation determination is made by the CSE, must a school district cause another manifestation determination to be made each time it is considering suspending a student thereafter?

The CSE must be convened to make a manifestation determination each time school officials decide to impose a suspension or removal that constitutes a disciplinary change of placement. Conversely, it is not necessary to conduct a manifestation determination for suspensions or removals of ten cumulative days or less in the school year or for subsequent suspensions or removals of ten consecutive days or less that do not constitute a disciplinary change in placement.

When school officials seek to impose a suspension that does not constitute a disciplinary change in placement, parents can request a CSE meeting to consider whether the student is receiving appropriate services, especially if they believe that there is a relationship between the student’s disability and the behavior resulting in the suspensions. In addition, when a student has already been suspended or removed for ten cumulative days or more during the school year and officials seek to impose other suspension(s) or removal(s) of ten school days or less, a parent or other individual could question whether a disciplinary change of placement, which would require a manifestation determination, has occurred because of an alleged pattern of removals.

4.  In conducting a manifestation review, must the CSE determine that all special education, supplementary aids and services and behavioral intervention strategies were provided, consistent with the IEP and placement?

No. The determination whether such special education, services and interventions were provided is made in relationship to the behavior that is the subject of the disciplinary action. For example, if a student with a physical disability is to be suspended for more than ten school days for possession of alcoholic beverages on school property, the district's failure to provide all occupational therapy sessions required by the IEP need not automatically result in a determination that the misconduct was a manifestation of the student's disability. However, if, during this review, the CSE identifies any deficiencies in the student’s IEP, placement or in the implementation of the IEP, the CSE must take immediate steps to remedy those deficiencies.

5.  What is the consequence of the manifestation determination for students who have been removed to an interim alternative educational setting (IAES) for up to 45 days by a superintendent for offenses involving illegal drugs, controlled substances or weapons, or by an impartial hearing officer when it has been determined that maintaining the student in his or her current educational placement is substantially likely to result in injury to the student or to others?

If the CSE concludes that the student’s behavior was not related to his or her disability, the student may be subjected to the same disciplinary measures applicable to nondisabled students. In these instances, the disciplinary removal from a regular placement could be as long as the disciplinary removal applied to a nondisabled student, except that appropriate services must be provided to the student. However, information derived through the process of making the manifestation determination may be helpful in identifying services and modifications that are designed to address the behavior in a manner that reduces the likelihood of recurrence and in identifying deficiencies in the student’s IEP or placement.

FUNCTIONAL BEHAVIORAL ASSESSMENTS AND
BEHAVIORAL INTERVENTION PLAN REQUIREMENTS

Reference: Section 201.3 of the Regulations of the Commissioner

Beginning when a student with a disability has first been suspended or removed for more than ten school days in a school year, or when a suspension or removal has been imposed that will constitute a disciplinary change in placement, the CSE is required to act to ensure that the behavior that resulted in the disciplinary action is addressed. The intent of these requirements is to ensure that appropriate supports and strategies are in place to prevent the reoccurrence of the behavior that might result in further suspensions or removals, and that the CSE monitors the implementation of the behavioral intervention strategies in the IEP or the behavioral intervention plan. It is important to note that the CSE must address a student’s behavior that resulted in such a suspension or removal whether it is, or is not, related to the student’s disability.

The following charts summarize the procedural responsibilities for functional behavioral assessments and behavioral intervention plans for students subject to disciplinary action.

CSE RESPONSIBILITIES FOR FUNCTIONAL BEHAVIORAL ASSESSMENTS
AND BEHAVIORAL INTERVENTION PLANS

FIRST TIME A STUDENT IS SUSPENDED OR REMOVED FOR MORE THAN TEN SCHOOL DAYS
IN A SCHOOL YEAR OR SUBSEQUENT SUSPENSIONS OR REMOVALS IN THE SAME SCHOOL YEAR THAT CONSTITUTE A DISCIPLINARY CHANGE OF PLACEMENT

What

Who

When (Footnote 9)

Convene a CSE meeting to develop a functional behavioral assessment (FBA) plan.

OR

Convene a CSE meeting to review and modify, if necessary, an existing behavioral intervention plan (BIP) and its implementation.

CSE

No later than ten business days after first suspending or removing a student for more than ten school days in a school year or imposing a suspension or removal that constitutes a disciplinary change of placement, including a change of placement to an IAES for illegal drugs, controlled substances or weapons.
Convene a CSE meeting to develop and implement a behavioral intervention plan based on the results of the FBA if the student does not have an existing BIP. CSE As soon as practicable after developing the behavioral assessment plan and completing the assessments required by the plan.

 

SUBSEQUENT SUSPENSIONS OR REMOVALS IN THE SAME SCHOOL YEAR THAT
DO NOT CONSTITUTE A DISCIPLINARY CHANGE IN PLACEMENT

What

Who

When

Review an existing behavioral intervention plan and its implementation. Each CSE member individually reviews. As soon as practicable after the suspension or removal is initiated or imposed.
Convene a CSE meeting if one or more members believe modifications to the plan or its implementation are needed.
  • Review the student’s behavioral intervention plan and its implementation.
  • Modify, as necessary, the behavioral intervention plan and its implementation.

CSE

As soon as practicable after any of the CSE members indicate the need to convene a meeting.

In conducting a functional behavioral assessment (FBA), the CSE determines why a student engages in behaviors that impede learning and how the student’s behavior relates to the environment. This must include, but is not limited to:

  • the identification of the problem behavior;

  • the definition of the behavior in concrete terms;

  • the identification of the contextual factors (e.g., environmental, physical, instructional approaches, or other events) that contribute to the behavior, including cognitive (e.g., memory, problem-solving ability, ability to plan, initiate and/or inhibit behavior, ability to monitor behavior, attention, perception, organizing processes) and affective factors (e.g., emotional factors such as mood swings, depression, frustration tolerance); and

  • the formulation of a hypothesis or a theory regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it.

Once a functional behavioral assessment has been conducted, a behavioral intervention plan (BIP) for that behavior must be developed and implemented. The BIP must be based on the results of the FBA and, at a minimum, must include:

  • a description of the problem behavior;

  • global and specific hypotheses as to why the problem behavior occurs. A specific hypothesis is a statement that specifies the events or factors that trigger the behavior and the function that behavior serves for the student. A global hypothesis identifies those broad influences in the student’s life (such as health, routines, relationships and student skills) that relate to the behavior; and

  • intervention strategies to address the behavior.

In designing intervention strategies, the CSE should consider the results of the functional behavioral assessment, the student’s strengths and the concerns of the parent. The behavioral intervention plan should include positive strategies to address, as appropriate, the events or situations that trigger a behavior, instruction in alternative skills, consequences, and long-term prevention. The CSE should also determine the supports, if any, needed by school personnel (e.g., administrative, material, environmental, instructional or informational supports) to implement those strategies and a plan to evaluate the effectiveness of the behavioral intervention plan.

The July 1998 memorandum Guidance on Functional Behavioral Assessments for Students with Disabilities (Policy 98-05) provides further information on conducting an FBA.

Committee on Special Education
GUIDELINES FOR ASSESSING AND ADDRESSING BEHAVIORS

Functional Behavioral Assessment

Behavioral Intervention Plan
  • Develop a plan to conduct a functional behavioral assessment of the student’s behavior or review an existing functional behavioral assessment:

  • Identify the behavior that needs to be assessed.

  • Determine how the function of the student’s behavior and the circumstances and factors associated with both the occurrence and non-occurrence of the behavior will be assessed.

  • Determine who will be responsible for conducting the planned assessment.

  • Determine who will coordinate the written report of the assessment.

  • Establish a date for the assessments to be completed.

 

 

 

 

  • Develop or review an existing behavioral intervention plan based on the results of the functional behavioral assessment:

  • Identify the behavior.

  • Define the behavior in concrete terms.

  • Select supports and interventions to address, as appropriate:

  • antecedent and setting events

  • alternative skills instruction

  • consequence strategies that build skills and reduce problem behaviors

  • long-term prevention

  • support for team members

  • Identify resources available, or that need to become available, to implement the plan.

  • Identify who will do what, when and how.

  • Determine a plan for monitoring the effectiveness of the supports and interventions.

  • Develop a timetable for the review and monitoring of the plan.

  • Determine what, if any, changes need to be made to a student’s IEP and/or behavioral intervention plan as a result of review.

Questions and Answers on Functional Behavioral Assessments and Behavioral Intervention Plans

1.  When must the student’s behavioral intervention plan be developed and implemented?

If a student does not have an existing behavioral intervention plan, one must be developed and implemented as soon as practicable after the CSE meeting to develop the assessment plan and completing the assessments required by the plan. The meeting to develop the assessment plan must be held not later than ten business days after first suspending or removing a student with a disability for more than ten school days in a school year or imposing a suspension or removal that constitutes a disciplinary change in placement, including a change in placement to an IAES for behavior related to weapons, illegal drugs or controlled substances.

If a student has an existing behavioral intervention plan, it must be reviewed and, if appropriate, revised not later than ten business days after first suspending or removing a student with a disability for more than ten school days in a school year or imposing a suspension or removal that constitutes a disciplinary change in placement, including a change in placement to an IAES for behavior related to weapons, illegal drugs or controlled substances. The behavioral intervention plan must be implemented as soon as practicable after the CSE meeting.

2.  Must the behavioral intervention plan be part of the student’s IEP?

The CSE must, if a student has behaviors that impede his or her learning or that of others, ensure that the student’s IEP appropriately addresses the behavioral needs of the student, including a statement of positive supports and strategies to be provided to the student. If the CSE has proactively addressed behavior that impedes the student’s learning or that of others in the development of the IEP, and has included those strategies, including positive behavioral interventions, strategies and supports in the IEP, the student’s IEP could constitute the behavioral intervention plan.

When the CSE develops a separate behavioral intervention plan, the plan does not have to be part of the IEP unless incorporating it in the IEP is the only way to ensure that school personnel responsible for its implementation are fully informed of their responsibilities. Generally, behavioral intervention plans are more detailed than IEPs in identifying specific interventions to address a particular behavior. They need to be dynamic and responsive to experience gained through implementation. They usually have to be reviewed and revised frequently as data is collected to determine the effectiveness of the interventions. If the behavioral intervention plan is part of the student’s IEP, the CSE must be reconvened each time there is a proposed change to the BIP.

3. What is the relationship between the student’s IEP and the behavioral intervention plan?

In the process of developing an IEP for a student whose behavior impedes his or her learning or that of others, the CSE must consider, when appropriate, strategies, including positive behavioral interventions and supports to address that behavior. These considerations should be based on a functional behavioral assessment that was conducted as part of the student’s individual evaluation and the concerns of the parents for the education of their child. If, in considering the student’s behavioral needs, the CSE determines the student needs a particular device or service (including an intervention, accommodation, or other program modification) in order for the student to receive a free appropriate public education, a statement to that effect must be included on the IEP. The IEP must identify, as appropriate, the student’s present level of performance (including strengths, needs and abilities), the goals and objectives or benchmarks related to behavior, the special education supports and services, including accommodations and modifications to assist the student to achieve the goals and objectives, and the supports needed by school personnel to implement the IEP.

A behavioral intervention plan contains the detailed methods and strategies (i.e., the who, what, when, where and how) that will be used to assist the student in achieving the goals and objectives in the area of behavior.

4. May school personnel suspend or remove a student for a behavior when the student’s IEP or behavioral intervention plan identifies behavioral strategies designed to correct the behavior that do not include suspension or removal?

"If a child’s IEP or behavior intervention plan addresses a particular behavior, it generally would be inappropriate to utilize some other response, such as suspension, to that behavior." (64 FED. REGISTER No. 48 p. 12415)

FREE APPROPRIATE PUBLIC EDUCATION FOR
STUDENTS WITH DISABILITIES SUBJECT TO
DISCIPLINARY SUSPENSION OR REMOVAL

Reference: Section 201.10 of the Regulations of the Commissioner of Education

New York State Education Law requires alternative instruction to be provided to any student who is of compulsory school age who is suspended for disciplinary reasons. Therefore, the requirement for alternative education applies to a student with a disability of compulsory school age during the first ten days in a school year that he or she is suspended.

After the first ten days of suspension in a school year, education services must be provided to a student with a disability that meets the federal requirements for a free appropriate public education. The definition of free appropriate public education (FAPE) that applies to students suspended or removed for disciplinary reasons has different meanings depending on several factors including:

  • the number of days a student has been suspended or removed;

  • whether those removals constitute a pattern and therefore result in a "disciplinary change in placement";

  • whether the behavior has been determined to be related to the disability; and

  • whether the student has been placed in an interim alternative educational setting.

While there is no limit on the number of days a student with a disability may be suspended or removed for disciplinary reasons in a school year, the school district must provide FAPE to that student once the student has been removed for more than ten cumulative days in a school year.

The following chart summarizes a school’s responsibilities to provide instruction to students with disabilities who are suspended or removed from schools.

PROVISION OF EDUCATIONAL SERVICES TO STUDENTS WITH DISABILITIES
SUSPENDED OR REMOVED FOR DISCIPLINARY REASONS

When

Responsibility

What

Education Services/FAPE

Days 1-10:
First 10 school days of suspension for students of compulsory school age

 


First 10 school days of suspension for students who are not of compulsory school age

School official imposing the suspension or other school personnel delegated such authority Setting for suspension and alternative instruction to be provided Alternative Instruction for students of compulsory school age:
Alternative instruction must be provided to the same extent as is provided to nondisabled students (Minimum 1 hour per day for elementary students; minimum 2 hours per day for secondary students).

For students not of compulsory school age:
Services to the same extent, if any, that the district provides to students without disabilities who are not of compulsory school age.

More than 10 days, and not a change of placement:
During subsequent suspensions or removals for periods of up to 10 school days or less that in the aggregate total more than 10 school days in a school year but do not constitute a disciplinary change of placement
School official imposing the suspension or other school personnel delegated such authority

School official in consultation with the student’s special education teacher

Setting for suspension

 

 

Services necessary to provide FAPE

Free appropriate public education:
Provide services to the extent necessary to enable the student to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the student’s IEP.
More than 10 days and a change of placement:
Suspensions or removals for periods in excess of 10 school days in a school year which do constitute a disciplinary change in placement - if the behavior is not a manifestation of the disability
School official imposing the suspension or other school personnel delegated such authority

CSE

Setting for suspension

 

 

Services necessary to provide FAPE

Free appropriate public education:
Provide services to the extent necessary to enable the student to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the student’s IEP.
Interim Alternative Educational Setting (IAES): Suspensions up to 45 calendar days to an IAES for illegal drugs/controlled substances/weapons

CSE

Determining the setting for the IAES that provides FAPE

 

 

 

 


Determining the services to address the behavior

Free appropriate public education:
The setting must be selected so as to:
  • enable the student to continue to progress in the general curriculum, although in another setting;
  • enable the student to continue to receive those services and modifications, including those described in the student’s current IEP, that will enable the student to meet the goals set out in that IEP; and
  • include services and modifications to address the behavior , that are designed to prevent the behavior form recurring.
Interim Alternative Educational Setting (IAES): Removals for up to 45 calendar days to an IAES by Impartial Hearing Officer (IHO) when there is substantial evidence that maintaining the current placement will result in injury to the student or to others School personnel in consultation with the student’s special education teacher (may also consult with CSE)

 

IHO

 

 

 

Proposing the setting for the IAES that provides FAPE

Recommending services to address the behavior


Determining the setting based on a proposal by school personnel in consultation with the student’s special education teacher.

May be revised or modified by IHO

Free appropriate public education:
The setting selected by the IHO must:
  • enable the student to continue to progress in the general curriculum, although in another setting;
  • enable the student to continue to receive those services and modifications, including those described in the student’s current IEP, that will enable the student to meet the goals set out in that IEP; and
  • include services and modifications to address the behavior that are designed to prevent the behavior from reoccurring.

Questions and Answers on FAPE

1.  Must a school district provide alternative instruction to a student with a disability who has been suspended for less than ten days in a school year?

The school district must provide alternative instruction to a student with a disability who has been suspended for less than ten days in a school year if the student is of compulsory school age. If the student is not of compulsory school age, alternative instruction must be provided if such education services are otherwise provided to nondisabled students. The education service requirements for students with disabilities during the first ten days of suspension in a school year are the same as they are for nondisabled students. Alternative instruction must be provided for a minimum of one hour daily for an elementary student and two hours daily for a secondary student. If a student who is not of compulsory school age is suspended, alternative instruction is not required unless otherwise provided to nondisabled students. After the first ten days a student is suspended in a school year, the services provided to a student with a disability must meet the federal FAPE requirements.

2.  What constitutes acceptable alternative instruction for all students, including students with disabilities, suspended for less than ten school days in a school year?

Alternative instruction is not required to be identical in every aspect of the instructional program previously offered to the student. However, it must be substantially equivalent in content to the student’s program and sufficient to permit the student to complete required course work. Home tutoring, or the opportunity to attend instruction at another location outside of the regular classroom, is often used to meet a district's obligation to provide alternative instruction during a student's suspension. On the other hand, simply assigning a student to a study hall does not meet this obligation. Likewise, simply informing a student of the work covered during his/her absence and providing an opportunity to make up any tests missed while suspended does not meet a district's obligation.

3.  What is meant by a free appropriate public education that must be provided to students with disabilities suspended or removed from school for disciplinary reasons beyond ten school days in a school year?

Beginning on the 11th day of suspensions or removals in a school year, a student with a disability has the right to a free appropriate public education. This means that the student must receive instructional services necessary for the student to progress in his or her course work (general curriculum) and to appropriately advance toward achieving his or her IEP goals.

If the student is placed in an interim alternative educational setting (IAES), the setting must provide services to enable the student to progress in the general curriculum and to continue to receive those modifications and services, including those described in the student’s current IEP, that will enable the student to meet the IEP goals. The IAES must also include services to directly address the behavior that resulted in the disciplinary action designed to prevent the behavior from reoccurring.

4.  What factors must be considered to determine the extent of instructional services that need to be provided to an individual student?

The services that are necessary for a student with a disability who has been suspended or removed for disciplinary reasons will vary depending on the individual case. The type and extent to which instructional services need to be provided would depend on the length of the removal, the extent to which (i.e., the number of days) the student has been previously suspended or removed, and the student’s needs and educational goals. For example, a student who is suspended for an extended period for a behavior not related to his or her disability will likely need far more extensive services in order to progress in the general curriculum and advance appropriately toward meeting the goals on his or her IEP than would a student who is removed for only a few days.

5.  What is meant by "services for the student to continue to progress in the general curriculum"?

The requirement that the school must provide services for the student to continue to progress in the general curriculum does not mean the school needs to replicate a student’s entire program or that the student must participate in (attend) his or her courses. It does mean, however, that the student must be provided education services so that he or she can progress in the coursework, i.e., in the same curriculum provided by the school to nondisabled students. Therefore, honors level classes or electives in which a student is or would be enrolled in are part of the general curriculum for that student. This includes classes such as biology and chemistry that have lab requirements, and other classes such as auto mechanics that generally are taught using a hands-on component or specialized equipment or facilities, and that are considered to be a part of the general curriculum. Schools may incorporate a variety of instructional techniques and program modules (such as computer software programs, distance learning, work book programs) to enable the student to continue to progress in these types courses, even although the student is not receiving instruction in the school or facility the student normally attends. If a student is enrolled in a class that has lab requirements such as biology, education services must be provided to ensure the student can meet the lab requirements.

6.  What components of the IEP must be implemented during suspensions or removals of more than ten school days in a school year?

If a student is suspended or removed to an IAES, then the services and modification in the student’s current IEP that will enable the student to meet the goals set out in that IEP must be implemented. For other suspensions or removals, the special education programs and services provided to a student with a disability (such as special class, consultant teacher or resource room program) may be different during the suspension or removal. However, all other components of the student’s IEP (e.g., goals and objectives, test accommodations, positive behavioral supports and strategies) must be implemented during the suspension or removal. The CSE must review all the recommendations in a student’s IEP and determine which services must continue and what alternative services must be provided to ensure the student appropriately progresses toward his or her IEP goals.

School personnel and/or the CSE must review the goals and objectives or benchmarks and determine, based on such factors as the type of setting the student will be in and the length of time of the suspension or removal, what special education programs or services, including supplementary aids and services, will be necessary for the student to appropriately progress toward his or her IEP goals.

7.  Must the IEP be rewritten during the interim period of time the student will be in the suspension or removal to document the services that will be provided to meet the IEP goals?

No. For removal to an IAES, the services and modifications in the student’s current IEP that will enable the student to meet the goals set out in that IEP must be implemented, although in another setting. For other suspensions or removals that constitute a disciplinary change in placement, the CSE is required to document the services that will be provided to the student during the suspension or removal in prior written notice to the student’s parent(s).

Schools may develop an interim IEP for the student for the period of the suspension or removal. However, in developing an interim IEP, the usual timelines for IEP implementation do not apply. In other words, FAPE must be provided immediately, beginning on the 11th consecutive day of suspension or removal in the school year.

8.  Who determines the services that will be provided to the student?

  • If the suspension or removal does not result in the student being suspended or removed for more than ten school days in a school year, the school principal, school superintendent or other school official determines the education services to be provided to the student.

  • If the suspension or removal results in a removal for more than ten school days in a school year, but does not constitute a disciplinary change of placement, then school personnel (e.g., school principal, school superintendent or other official) in consultation with the student’s special education teacher will determine the services.

  • If the suspension or removal constitutes a disciplinary change of placement, including a removal to an IAES for offenses relating to illegal drugs, controlled substances or weapons, then the CSE must determine the services to be provided to the student.

  • If the removal is to an IAES by an impartial hearing officer, the IHO determines whether the setting proposed by school personnel in consultation with the student’s special education teacher, meets the statutory criteria for FAPE.

9.  How many hours of instruction must a student with a disability receive during suspensions or removals beginning on day 11 of a school year?

Federal and State laws and regulations do not specify the numbers of instructional hours a student with a disability must receive during a suspension or a removal. However, while there is flexibility in the number of hours and extent of services to be provided to the student, under no circumstances does it mean that no services will be provided. Minimally, a student must receive no less than ten hours a week for secondary students and five hours a week for elementary students. The burden is on school personnel and CSEs to make an individual determination of the kinds of services and the number of instructional hours necessary for the student to continue to progress in his or her coursework and towards the IEP goals. That means that the student must receive instruction in each of his or her courses, including instruction to prepare for tests, and, if a student is enrolled in a class that has lab requirements such as biology, education services to ensure the student can meet the lab requirements. In addition, the student must receive special education services to ensure he or she appropriately progresses to meet his or her IEP goals.

10.  May a student’s parent(s) request a due process hearing if he or she disagrees with the services that will be provided to the student during disciplinary suspensions or removals?

Yes. A student’s parent(s) may request an expedited due process hearing if the parent(s) disagrees with a CSE’s determination of the services provided to the student.

11.  How will a student’s parent(s) be notified that the services are sufficient to help the student progress in the general curriculum and meet his or her IEP goals?

In addition to receiving the report cards from the student’s school, the parent(s) must also continue to be regularly informed of their child’s progress toward the annual goals on his or her IEP and the extent to which that progress is sufficient to enable the student to achieve the goals by the end of the year.

INTERIM ALTERNATIVE EDUCATIONAL SETTINGS
Reference: Sections 201.7 and 201.8 of the Regulations of the Commissioner of Education

A student with a disability may be removed by school officials to an interim alternative educational setting (IAES) for up to 45 calendar days if the student carries or possesses a weapon to or at school, on school premises, or to or at a school function or knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function. If school personnel maintain that it is dangerous for the student to return to the placement prior to the student’s removal to an IAES, they may initiate an expedited due process hearing to obtain an order from an impartial hearing officer, in accordance with the process described below, allowing them to maintain the student in the IAES or in another IAES for an additional period up to 45 days. The procedure may be repeated as necessary.

An impartial hearing officer (IHO) may order a change in placement of a student with a disability to an IAES for not more than 45 calendar days if the impartial hearing officer determines that the school district has demonstrated by substantial evidence that maintaining the current placement of the student is substantially likely to result in injury to the student or to others. In making this decision, the IHO must consider the appropriateness of the student’s current placement and whether the school has made reasonable efforts to minimize the risk of harm in the student’s current placement, including the use of supplementary aids and services. The IHO must determine that the IAES proposed by school personnel meets the federal standard for an IAES.

An IAES is a setting that must:

  • be selected to enable the student to:

  1. continue to progress in the general curriculum; and

  2. continue to receive those services and modifications, including those described in the student’s current IEP, that will enable the student to meet the IEP goals; and

  • include services and modifications to address the behavior that is subject to disciplinary action. These services and modifications must be designed to prevent the behavior from recurring.

A student whose behavior may warrant a removal to an interim alternative educational setting may first be removed by school personnel for not more than ten consecutive days or until the removal otherwise constitutes a disciplinary change of placement. During that ten-day or less removal, alternative instruction (for students who have not already been removed for ten school days in the school year) or FAPE (beginning on the 11th day of removal in the school year) as determined by school personnel in consultation with the student’s special education teacher would be provided. This allows time for the CSE or the IHO, as appropriate, to determine the setting for the interim alternative educational setting.

The following chart summarizes the requirements relating to placements in an IAES.

INTERIM ALTERNATIVE EDUCATIONAL SETTINGS

Suspension or Removal to an IAES

Type of Hearing

Length of Removal

Setting

Illegal Drugs/Controlled Substances/Weapons - removal by a school superintendent:

Student carries or possesses a weapon to or at school, on school premises, or to or at a school function

Student knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function.

Section 3214 Superintendent’s hearing For each incident:
Up to 45 calendar days. Cannot exceed period of suspension ordered by the
superintendent. Cannot exceed the amount of time that a nondisabled student would be suspended for the same behavior.
Determined by the CSE
Dangerous situations - removal by an impartial hearing officer (IHO):

The IHO must:
1. Determine that the school district demonstrated by substantial evidence that maintaining the current placement of the student is substantially likely to result in injury to the student or to others.

2. Consider the appropriateness of the student’s current placement.

3. Consider whether the school district has made reasonable efforts to minimize the risk of harm in the student’s current placement, including the use of supplementary aids and services.

4. Determine that the IAES proposed by school personnel is an appropriate setting.

Impartial hearing pursuant to 8NYCRR Section 200.5(i) For each incident:
Up to 45 calendar days.

This procedure may be repeated as necessary.

Determined by the IHO based on a setting proposed by school personnel in consultation with the student’s special education teacher.

In proposing the setting, school personnel may rely on the judgements of the CSE.

The IHO may revise or modify the proposed placement as necessary to meet the statutory standard.

Questions and Answers on IAES

1.  Can the setting for a suspension or an interim alternative educational placement of a student with a disability be the student’s home for suspensions or removals of more than ten school days in a school year?

The FAPE requirement for students with disabilities will require schools to consider alternate educational settings for students with disabilities during suspensions. Whether home instruction would be an appropriate setting for a suspension or removal would depend on the particular circumstances of an individual case. Such factors as the length of the removal, the extent to which the child previously has been removed from his or her regular placement and the student’s needs and educational goals must be considered. The obligation is on the school district to ensure that, whatever setting the student is placed in, the services provided to the student will ensure the student progresses in the general curriculum and satisfy the requirements of a free appropriate public education.

2.  What is the role of the Board of Education (BOE) in reviewing/implementing a CSE recommendation for an IAES for illegal drugs/controlled substances/weapons?

The school official determines the disciplinary change of placement to an IAES. It is the responsibility of the CSE to determine the setting of the IAES. Where a school district needs to enter into a contract with another entity to implement an IAES, such contract is subject to ratification by the board of education of any and all associated expenditures. Consistent with the district’s responsibility to provide services under federal and State law, board action may not delay or interfere with the implementation of the IAES.

3.  If a school is in recess, do those days count toward the 45-day removals to an IAES?

Yes. If a school is in recess (i.e., vacations, holidays, summer break) during a portion of the 45 calendar days, the recess does not "stop the clock" on the 45 days.

4.  CSE determination of the setting count towards the 45 days?

The school may first suspend the student for up to ten consecutive school days (providing education services, as appropriate) while convening the CSE to determine the setting. At the end of that ten-day period, or earlier if feasible, the student would be placed in the IAES for up to 45 calendar days.

5. What happens if a student is placed in an IAES by a school superintendent for offenses involving illegal drugs, controlled substances, or weapons and a subsequent manifestation determination is that the behavior was not related to the student’s disability?

If the student has already been placed in an IAES and the manifestation determination is that the behavior is not related to the disability, the student may be suspended to the same extent a nondisabled student would be extended, except that FAPE must be provided to the student once the student has been suspended or removed for more than ten school days in a school year. An additional suspension or suspension to another setting may only be imposed in the penalty phase of a superintendent’s hearing. It is at the discretion of the school superintendent as to where the student would receive FAPE during any suspension or removal for behavior not related to the student’s disability.

EXPEDITED DUE PROCESS HEARINGS
Reference: Section 201.11 of the Regulations of the Commissioner of Education

Due process hearings requested to resolve certain disputes between parents and school personnel regarding disciplinary actions and to initiate temporary removals of students in dangerous situations must be resolved in an expedited manner. An expedited due process hearing is an impartial hearing conducted under the procedures specified in section 200.5 of the Regulations of the Commissioner. These are the same procedures under which other impartial hearings are conducted except that the timelines for the disclosure of evidence, completion of the hearing and mailing of the decision have been shortened.

The following charts summarize:

  • the timelines for conducting the hearing and mailing the decision.

  • the reasons an expedited due process hearing may be requested; and

  • the pendency (student placement during the due process hearing) applicable to each situation.

TIMELINES FOR EXPEDITED DUE PROCESS HEARINGS

ACTION

TIMELINE

Disclose evaluations:
Each party shall disclose to all other parties all evaluations completed as of that date and recommendations based on the offering party's evaluations that the party intends to use at the hearing.

At least 3 business days prior to the hearing.
Complete the hearing:
An expedited due process hearing shall be completed within 15 business days of receipt of the request for a hearing, provided that the impartial hearing officer may grant specific extensions of such time period at the request of either the school district or the parent.
Within 15 business days of receipt of the request for a hearing, provided that the impartial hearing officer may grant specific extensions of such time period at the request of either the school district or the parent.

Mail the decision:
Impartial hearing officer mails the written decision to the parties.
Within 5 business days after the last hearing date, but in no event later than 45 calendar days after receipt of the request for a hearing, without exceptions or extensions.

EXPEDITED DUE PROCESS HEARINGS

Requested by

Reason

Student’s Placement Pending the Decision of the IHO, State Review Officer or Court  (Pendency) (Footnote 10)

School district To obtain an order of an IHO placing a student with a disability in an interim alternative educational setting (IAES) when school personnel maintain that it is dangerous for the student to be in his or her current educational placement. Student’s current educational placement.
School district To obtain an order of an IHO extending the placement of a student with a disability when school personnel maintain that it is dangerous to return the student to his or her current educational placement. IAES pending the decision of the IHO or until the expiration of the time period of the removal, but not to exceed 45 calendar days.
School district To obtain an order of an impartial hearing officer placing a student in an IAES during the pendency of due process proceedings when school personnel maintain that it is dangerous for the student to be in his or her current educational placement during such proceedings. IAES pending the decision of the IHO or until the expiration of the time period of the removal, but not to exceed 45 calendar days.
Parent of the student Disagrees with the determination of whether the suspension or removal constitutes a disciplinary change of placement. Student’s current educational placement (placement prior to disciplinary action) or, if the decision is that the student be placed in an IAES, the pendency placement is the IAES until the expiration of the time period of the removal or the IHO issues a decision, whichever occurs first, unless the parents and the district otherwise agree.
Parent of the student Disagrees with the CSE recommendation to change the placement of the student after the IAES term expires. After the term of the IAES placement, pendency is the student’s placement prior to placement in the IAES, except where the student is again placed in an IAES by an IHO where the district maintains it is dangerous for the student to remain in the current educational placement.
Parent of the student Disagrees with the determination that the behavior was not related to the student’s disability (manifestation determination). Current educational placement (placement prior to the disciplinary action) or, if a decision has been made to place the student in an IAES, the pendency placement is the IAES until the expiration of the time period of the removal or the IHO issues a decision.
Parent of the student Challenges the IAES The IAES determined by the CSE pending the decision of the IHO or until the expiration of the time period of the removal, but not to exceed 45 calendar days.

RIGHTS OF STUDENTS NOT IDENTIFIED BY THE CSE
AS HAVING A DISABILITY

STUDENT PRESUMED TO HAVE A DISABILITY FOR DISCIPLINE PURPOSES
Reference: Section 201.5 of the Regulations of the Commissioner

School officials are responsible to refer a student to the Committee on Special Education for an individual evaluation and determination of eligibility for special education services upon a written referral from a parent or another individual authorized (Footnote 11) to refer a student for special education services. To ensure that a school district acts in a timely and appropriate manner when there is knowledge that a student is suspected of having a disability, a certain student may be determined to be "presumed to have a disability for discipline purposes" and, therefore, afforded all the rights and protections of IDEA when such students are subject to suspensions and removals for disciplinary reasons.

The school official suspending or removing the student must, when a parent asserts that the school had knowledge that his or her child was a student with a disability prior to the behavior that precipitated the disciplinary action, make a determination as to the status of the student as a "student presumed to have a disability for discipline purposes." To make this determination, the school official must determine if one or more of the following criteria have been met:

  • the parent of the student has expressed concern to school district personnel in writing that the student is in need of special education, provided that such expression of concern may be oral if the parent does not know how to write or has a disability that prevents a written statement.

  • the behavior or performance of the student demonstrates the need for special education (in relation to one or more of the disability categories).

  • the parent of the student has requested that an individual evaluation of the student for special education services.

  • a teacher of the student, or other personnel of the school district, has expressed concern about the behavior or performance of the student to the director of special education or to other school district personnel in accordance with the district's established child find or special education referral system.

A student would not be considered presumed to have a disability for discipline purposes if the CSE had previously conducted an individual evaluation of the student, determined the student to be ineligible for special education services and provided prior written notice to the student’s parent(s) of that decision.

The following chart summarizes the responsibilities of school personnel in such instances:

PROCEDURES FOR DETERMINING IF A STUDENT IS A STUDENT
PRESUMED TO HAVE A DISABILITY FOR DISCIPLINE PURPOSES

WHAT

WHO

ACTIONS TO BE TAKEN

Parent asserts that the school had knowledge that the student was a student with a disability prior to the behavior that precipitated the disciplinary action.

Superintendent, principal or school official imposing the suspension or removal

Superintendent, principal or school official imposing the suspension or removal

 

 

CSE

Determine if the student is a student presumed to have a disability.

If no:
Suspend or remove the student as a nondisabled student.

If a request for an individual evaluation is made while the student is suspended or removed, refer to the CSE for an expedited evaluation.

If yes:
Conduct an individual evaluation, eligibility determination, develop the IEP, determine manifestation, and assess and address the behavior, as appropriate.

Parent disagrees with the determination of the school official that the student is not a student presumed to have a disability for discipline purposes.

Board of Education

 

 

Arrange for mediation or a due process hearing at the written request of the parent.

Pending the outcome of a due process hearing, the student remains in his/her current placement, which could include suspension.

STUDENTS REFERRED FOR INITIAL EVALUATION DURING A SUSPENSION
Reference: Section 201.6 of the Regulations of the Commissioner

Occasionally a student will be referred to a CSE for an initial evaluation during the time the student is suspended or removed from school for behaviors that violated a school conduct and discipline policy. In this instance, the CSE must conduct the evaluation in an expedited manner to ensure that the student is not subjected to long-term or repeated suspensions or removals that may, in fact, be due to a disability. However, the student remains in the placement determined by school officials, which could include suspension, during the time the expedited evaluation is being conducted and the CSE meeting is held to determine eligibility.

The following chart summarizes a school’s responsibility for expedited evaluations when a request for an individual evaluation is made during the period that a nondisabled student, who is not a student presumed to have a disability for discipline purposes, is suspended or is subjected to a removal for drugs/controlled substances or weapons:

WHO

RESPONSIBILITY

TIMELINE

The CSE Obtain parent consent and complete the individual evaluation Completed no later than 15 school days after receipt of the request for evaluation.
Determine eligibility in a meeting


If eligible, develop and implement the IEP

Meeting held no later than 5 school days after completion of the expedited evaluation.

Within 60 school days from consent to evaluate.

APPENDIX A
Section 202(c) of the Controlled Substances Act
(Schedules of Controlled Substances)


     

Footnotes

Footnote 1 and 2 - Dwyer, K. and Osher, D. (2000). Safeguarding Our Children" An Action Guide. Washington, D.C.: U.S. Departments of Education and Justice, American Institutes for Research. This document is available on the web at http://www.ed.gov/pubs/edpubs.html .

Footnote 3 - Disciplinary Change in Placement - A suspension or removal from a student’s current educational placement that is either: for more than ten consecutive school days; or for a period of ten consecutive days or less if the student is subjected to a series of suspensions or removals that constitute a pattern because they accumulate to more than ten school days in a school year and because of such factors as the length of each suspension or removal, the total amount of time the student is removed and the proximity of the suspension or removals to one another.

Footnote 4 - May be the same meeting as the CSE meeting to assess and address the student's behavior.

Footnote 5 - A manifestation determination would not preclude a placement in an IAES.

Footnote 6 - Schools may alternatively seek appropriate injunctive relief through the Court to move a student to another placement.

Footnote 7 - Manifestation determinations were formerly called "Nexus Determination."

Footnote 8 - Except for removals to an interim alternative educational setting for drugs, controlled substances or weapons or removals by an impartial hearing officer for dangerousness.

Footnote 9 - This meeting may be conducted at the same meeting when a manifestation determination or the determination of the IAES setting is being made.

Footnote 10 - If a decision of a State Review Officer agrees with the student's parents that a change of placement is appropriate, that placement must be treated as an agreement between the State or school district and the parents for purposes of pendency during any subsequent appeals (8NYCRR Section 200.5(l)(2)).

Footnote 11 - Individuals authorized to refer a student to the CSE include the student's parent or person in parental relationship; a professional staff member of the school district in which the student resides or the public or private school with student legally attends; a licensed physician; a judicial officer; the commissioner or designee of a public agency with responsibility for welfare, health or education of children; or, for purposes of referring one's self, a student who is 18 years or older, or an emancipated minor, who is eligible to attend the public schools of the district. For preschool students individuals authorized to refer to the CPSE also include an Early Childhood Direction Center, approved preschool programs and approved programs providing early intervention services.