Discipline for Students with Disabilities
Students with disabilities receive procedural protection in regard to discipline. The purpose of these protections is to ensure that the student is not being disciplined due to their disability and to protect the student's opportunity and availability for education. Per the Individuals with Disabilities Education Act (IDEA), IEP teams must consider the use of positive behavioral interventions and supports, and other strategies to address the behavior of a child whose behavior impedes the child’s learning or that of others. This allows the student to be educated in the least restrictive environment (LRE) and for the student to receive FAPE (Free, Appropriate Public Education).
A student with a disability is a child who has an IEP and is receiving special education. If the child does not receive special education but the school should have known/knew of the disability, parent/guardian has expressed behavior/support concern to school in writing, the school personnel has expressed additional support concern to other school personnel, the parent has recently asked for an evaluation, the school has noted the behavior concern, an IEP has been distributed but not yet signed, the same discipline protections under IDEA may apply. However, if the student's parent had refused special education and/or evaluations, then protections would not apply.
In Massachusetts, if you're child remains in school but has been removed from regular classroom activities for more than half of the in-session school day, then that is considered an in-school suspension.
Keep track of days in which you learned that your child was removed from their classroom due to behavior and the removal/return times.
If half the day or more had passed, then this should be counted towards the students' in-school suspension. There is a 10-day trigger.
In-school suspensions include interim alternative educational settings (IAES).
If your child has been sent home early (you've been asked to pick the student up) -- that is a school suspension.
If you receive the call requesting a pickup, ask the school personnel if the child is being suspended. Should the pickup occur, the school should document it as a suspension.
If you pick up your child, this should be counted toward the student's suspension day count.
Short Term Suspensions - Ten consecutive days or less
Long Term Suspension - More than ten consecutive days or ten cumulative days in a school year. See 10 Day Rule below.
The school is only required to provide services during periods of removal to a child with a disability who has been removed from his or her current placement for 10 school days or less in that school year if it provides services to a child without disabilities who is similarly removed. Sec. 300.530 (d)(3)
Behavior Intervention Plan (BIP)
If your child has a Behavior Intervention Plan and has been suspended, the BIP must be reviewed and revised after every new suspension. If the child does not have a BIP, then the parent and school should discuss if a Functional Behavior Analyses should be conducted (which will be used to create the student's BIP).
Functional Behavior Analysis (FBA)
A Functional Behavior Analysis (FBA) is conducted to determine the motivation behind the undesired behavior. A BIP will be created using the FBA data with the end goal of the student using a socially acceptable behavior, achievable by the student and supported by staff/home, in lieu of the undesirable behavior.
10 Day Rule
If the school is trying to suspend your child, or change placement, for more than 10 days (cumulatively or consecutively) in a school year, first, the school has to conduct a Manifestation Determination Review (MDR). The child's special education Team is required to discuss whether the behavior for which the student is being disciplined is either: 1) substantially related to the student’s disability or 2) a result of the district’s failure to implement the student’s IEP.
Importantly, it is the parent’s burden to prove the student’s behavior was a manifestation (behavior stemmed from your child's disability).
Within 10 school days of the decision to change the placement with the student's school Team, two questions must be answered in the manifestation determination process:
Was the child’s behavior caused by, or did it have a “direct and substantial relationship to” the child’s disability? or
Was the behavior the direct result of a failure on the part of the school, district, to implement the student’s IEP?
If it is found that both questions are answered "no," thus not a manifestation of the disability, then the student can be disciplined. However, the school is still to provide educational services for students with IEPs (not required for students with 504s).
If "yes" to one or both of the manifestation determination questions (only one is required), then the school cannot do any further discipline and the student is to return to their educational placement unless the parent and school agree to an alternative placement.
Special education students who bring weapons or drugs to school, or who cause serious bodily injury to a person can be sent by the school to an interim placement (determined by the Team) for 45 days regardless of the result of the manifestation determination review. Otherwise, an agreement between school and parent on placement must occur.
Serious Bodily Injury: defined in USC 1365(g) to mean a bodily injury that involves a substantial risk of death; extreme physical pain; protracted and obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ or faculty. [615(k)(7)(D)]
* A 45-day extended evaluation is not a change in placement and stay-put rights will not apply if a parent would like their child to remain at the educational facility conducting the evaluation.