Disciplining Students with Disabilities

 

May a student with a disability be suspended or removed from school?


School districts may suspend or remove a disabled student from school in accordance with the
procedures and safeguards set forth in both federal and state law and regulations (20 USC § 1415(k); 34
CFR §§ 300.530–37; Educ. Law § 3214(3)(g), 4404(1); 8 NYCRR Part 201).


Students with disabilities attending summer school are entitled to the same discipline safeguards
applicable during the regular school year (LIH v. N.Y. City Bd. of Educ., 103 F.Supp.2d 658 (E.D.N.Y.
2000)).


Who may suspend or remove from school a student with a disability?


It depends on the length of the suspension or removal. A school board, the superintendent of schools, or
a building principal may order the placement of a student with a disability into an appropriate interim
alternative educational setting (IAES), another setting, or suspension for a period not to exceed five
consecutive school days and the amount of time that a nondisabled student would be subject to suspension
for the same behavior (20 USC § 1415(k)(1)(B); 34 CFR § 300.530(b)(1); 8 NYCRR § 201.7(b)).


A superintendent of schools, either directly or upon recommendation of a hearing officer designated to
conduct a student disciplinary hearing pursuant to Education Law section 3214(3)(c), (g) may order the
placement of a student in an appropriate IAES, another setting or suspension for up to 10 consecutive
school days, inclusive of any period of suspension imposed pursuant to the above paragraph. The duration
of the superintendent’s suspension may not exceed the time a nondisabled student would be subject to
suspension or removal for the same behavior (20 USC § 1415(k)(1)(B); 34 CFR § 300.530(b)(1); 8
NYCRR § 201.7(c)). The superintendent may order additional suspensions of not more than 10
consecutive school days in the same school year for separate incidents of misconduct that do not
constitute a disciplinary change of placement.


Under New York law, the school district must conduct a disciplinary hearing to determine if the student
is guilty of the misconduct before a suspension penalty beyond five school days can be imposed (Educ.
Law § 3214(3)(g)). The same applies to students presumed to have a disability for discipline purposes
and to declassified students (Educ. Law § 3214(g)(2); 8 NYCRR § 201.5; Appeal of a Student Presumed
to Have a Disability, 35 Ed Dept Rep 492 (1996).


Are there any limitations on the authority to suspend or remove a student with a disability?


Yes. A student with a disability may not be suspended or otherwise removed from school for either a
five or 10-school-day period (see 54:76) if the suspension or removal would result in a disciplinary
change in placement based on a pattern of suspensions or removals (20 USC § 1415(k)(1)(B); 34 CFR §
300.530(b)(1); 8 NYCRR § 201.7(d).


In addition, according to the U.S. Department of Education, Office of Civil Rights Midwestern
Division, Kansas City (Mo.), an in-school suspension may constitute a significant change in placement or
count towards a pattern of suspension or removals that violates Section 504 of the Rehabilitation Act,
depending on the nature and quality of the education services provided to the student and their
comparability to services provided prior to the in-school suspension (Dunkin (Mo) R-V Sch. Dist., OCR
Decision, 52 IDELR 138 (Jan. 2009)). Section 504 prohibits discrimination on the basis of disability. In
one case, an in-school suspension passed scrutiny under that law because the student received
assignments to work on, had visits from his regular education teacher, and also had visits from his special
education teacher in order to receive special education services (Id.).


What constitutes a disciplinary change in placement?


Generally, a suspension or removal of a student with a disability constitutes a disciplinary change in
placement if it is for:


• more than 10 consecutive school days (34 CFR § 300.536(a)(1)), or


• 10 consecutive school days or less, if the student is subjected to a series of suspensions or removals
that constitutes a pattern because they add to more than 10 school days in a school year, the child’s
behavior is substantially similar to behavior in prior incidents that resulted in suspension or removal,
and because of additional factors such as the length of each suspension or removal, the total amount
of time the child is removed, and the proximity of the suspensions or removals to one another (34
CFR § 300.536(a)(2); 8 NYCRR § 201.2(e))


The determination whether a suspension constitutes a disciplinary change of placement based on a
pattern of removals is made on a case by case basis, depending on the particular student and facts
involved, and is subject to review through due process and judicial proceedings (34 CFR § 300.536(b); 8
NYCRR § 201.2(e)). A school superintendent may not offer options as part of a student disciplinary
process that would change the placement of a student with disabilities. Any such change may only occur
by recommendation of the district’s committee on special education (Appeal of a Student with a
Disability, 52 Ed Dept Rep, Dec. No. 16,371 (2012).


A school district must inform parents of any decision to subject their child to a suspension or removal
that constitutes a disciplinary change in placement based on the child’s violation of the student code of
conduct on the date such a decision is made. Along with such notice, the district also must provide the
parents a copy of their procedural safeguards (34 CFR § 300.530(h).


Are there any exceptions to the disciplinary change in placement rule?


Yes. A student with a disability may be suspended or removed from school for a period that otherwise
would constitute a disciplinary change in placement (see 54:78) if the manifestation team 
determines that the student’s behavior was not a manifestation of the student’s disability, or it
involves the placement of a student in an interim alternative educational setting for
behavior relating to the infliction of serious bodily injury upon another, weapons, or illegal drugs or
controlled substances, or conduct that poses a risk of harm to the student or others (20 USC § 1415(k)(1)
(C); 34 CFR § 300.530(c), (g); 8 NYCRR §§ 201.7(d), (e), 201.8).


School personnel may consider any unique circumstances on a case-by-case basis when determining
whether to order a change in placement for a student with a disability who violates a code of student
conduct (20 USC § 1415(k)(1)(A); 34 CFR § 300.530(a); 8 NYCRR § 201.7(f)).


What is an interim alternative education setting?


An interim alternative education setting (IAES) is a temporary educational placement determined by
the committee on special education, other than the student’s current placement at the time the behavior
precipitating the IAES placement occurred (20 USC § 1415(k)(2); 34 CFR § 300.531; 8 NYCRR §
201.2(k).


Under what circumstances may a student with disabilities be placed in an interim alternative
education setting?


A superintendent of schools may opt to place a student in an interim alternative educational setting
(IAES) for the same amount of time that a child without a disability would be subject to
discipline but not more than 45 school days for each separate instance where the child:


• has inflicted serious bodily injury upon another person while at school, on school premises or at a
school function under the district’s jurisdiction;


• carries to or possesses a weapon at school, on school premises, or to or at a school function under the
district’s jurisdiction; or


• knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while
at school, on school premises, or a school function under the district’s jurisdiction (20 USC §
1415(k)(1)(G); 34 CFR § 300.530(g); 8 NYCRR § 201.7(e)).


In addition, an impartial hearing officer (IHO) may order the placement of a child in an IAES for up to
45 school days at a time if the school district shows by substantial evidence that maintaining the child in
his or her current placement is substantially likely to result in injury to the child or others. The IHO also
must consider the appropriateness of the student’s current placement, whether the district has taken steps
to minimize the risk of harm in the child’s current placement, and determine whether the proposed IAES
will provide the student the required level of services (20 USC § 1415(k)(3)(B); 34 CFR § 300.532(b)(2)
(ii); Educ. Law § 3214(3)(g)(3), (vii); 8 NYCRR § 201.8). For a description of the level of services that
must be provided in an IAES.


A student may be placed in an IAES on grounds of dangerousness and for misconduct relating to the
infliction of serious bodily injury, weapons, illegal drugs, or controlled substance even if the behavior
triggering the placement was a manifestation of the student’s disability (20 USC § 1415(k)(1)(G); 34 CFR
§ 300.530(g); 8 NYCRR §§ 201.9(c)(3).


Who determines the interim alternative educational setting (IAES) for a student with
disabilities?


The committee on special education determines the IAES for a student with a disability placed in an
interim alternative educational setting (20 USC § 1415(k)(2); 34 CFR § 300.531; 8 NYCRR §§ 201.2(k),
201.7(e)(1)).


What level of services must a school district provide to a student with a disability placed in an
interim alternative educational (IAES) setting?


A student with a disability who is placed in an IAES must:


• continue to receive educational services that enable the student to continue to participate in the
general curriculum, although in another setting, and to progress toward meeting the goals set out in the
student’s individualized education program and


• receive, as appropriate, a functional behavioral assessment and behavioral intervention
services and modifications that are designed to address the behavior violation so that it
does not recur (20 USC § 1415(k)(1)(D); 34 CFR § 300.530(d); 8 NYCRR §§ 201.2(k), 201.10(c),(d)).


What level of services must be offered to students with disabilities during suspensions or
removals other than those involving placement in an interim alternative educational setting?


During suspensions or removals for periods of up to 10 school days in a school year that do not
constitute a disciplinary change in placement, a school district must provide students with
disabilities of compulsory education age with alternative instruction on the same basis as nondisabled
students. With respect to students who are not of compulsory education age, a district must provide
services only to the extent they are provided to nondisabled students of the same age who have been
similarly suspended (34 CFR § 300.530(d)(3); 8 NYCRR § 201.10(b)).


School personnel, in consultation with at least one of the student’s teachers determines the services to
be provided to a student with a disability during subsequent suspensions or removals for periods of 10
consecutive 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 in placement, regardless of the manifestation
determination. The services provided must enable the student to continue to participate in the
general curriculum and to progress toward meeting the goals in the student’s individualized education
program (IEP), and to receive, as appropriate, a functional behavioral assessment, behavioral intervention services, and modifications that are designed to address the behavior violation so it does not recur (8 NYCRR § 201.10(c)). The same applies to suspensions or removals in excess of 10 school days in a school year that constitute a disciplinary change of placement, except it is the committee on special education that determines the services to be provided (8 NYCRR § 201.10(d).


What is a manifestation determination?


A manifestation determination consists of a review of the relationship between a student’s disability
and the behavior subject to disciplinary action (8 NYCRR § 201.4(a)). Its purpose is to determine
whether the conduct in question was:


• caused by or had a direct and substantial relationship to the student’s disability, or


• the direct result of the school district’s failure to implement the student’s individualized education
program (20 USC § 1415(k)(1)(E); 34 CFR § 300.530(e); 8 NYCRR § 201.4(c))


Such a determination must be based on a review of all relevant information in the student’s file
including the student’s individualized education program (IEP), any teacher observations, and
any relevant information provided by the student’s parents (34 CFR § 300.530(e)(1); 8 NYCRR §
201.4(c)).


The manifestation determination must be made immediately, if possible, but no later than 10 school
days after an authorized school authority makes a decision to either place the student in an
interim alternative educational setting or impose a suspension that constitutes a
disciplinary change of placement (34 CFR § 300.530(e)(1); 8 NYCRR § 201.4(a). The
remedy imposed by the commissioner of education for the failure to conduct a timely manifestation
determination is expungement of the pre-manifestation determination suspension from the student’s record
(Appeal of D.W., 52 Ed Dept Rep, Dec. No. 16,436 (2012)).


Immediate steps must be taken to remedy any deficiencies in the student’s IEP or placement, or their
implementation, identified during the manifestation determination review process (34 CFR § 300.530(e)
(3); 8 NYCRR § 201.4(e)).


Who conducts a manifestation determination?


A manifestation team conducts a manifestation determination. That team must include:


• a representative of the school district knowledgeable about the student and the interpretation of
information about child behavior,


• the student’s parent, and


• relevant members of the CSE as determined by the parent and the school district.


Districts must provide parents written notification prior to any manifestation team meeting (20 USC §
1415(k)(1)(E)(ii); 34 CFR § 300.530(e)(1), (2); 8 NYCRR § 201.4(b)).


What happens if the student’s behavior is deemed a manifestation of the student’s disability?


If the behavior is a manifestation of the student’s disability, the committee on special education must conduct a functional behavioral assessment and implement a behavioral intervention plan (BIP) for the student, or review and modify, as necessary, an already existing BIP. In addition, with the exception of students placed in an interim alternative educational setting, students must be returned to the placement from which they were removed unless the parent and the school district agree to a change of placement as part of the modification of the student’s BIP (20 USC § 1415(k)(1)(F); 34 CFR § 300.530(f); 8 NYCRR §§ 201.3, 201.4(d), 201.7(e)).


What is a functional behavioral assessment?


A functional behavioral assessment (FBA) involves the process of determining why a student engages
in behaviors that impede learning and how the student’s behavior relates to the environment (8 NYCRR §
200.1(r)). It must be conducted when a student’s behavior impedes his or her learning or that of others (8
NYCRR § 200.4(b)(1)(v); Danielle G. v. N.Y. City Dep’t of Educ., 2008 U.S. Dist. LEXIS 60192
(E.D.N.Y. Aug. 7, 2008)).


An FBA 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, and
the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs,
and probable consequences that serve to maintain it (8 NYCRR § 200.1(r)). The FBA must be based on
multiple sources of data and provide information in sufficient detail to form the basis for a behavior
intervention plan (BIP). It may not be based solely on a student’s history of presenting
problem behavior (8 NYCRR § 200.22(a)(2), (3)).


On that basis, it would be premature and improper for a committee on special education to conduct an
FBA and develop a BIP for a student transitioning from an early intervening program to preschool, before
the student attends the recommended placement (M.M. v. N.Y. City Dep’t of Educ., 583 F.Supp.2d 498
(S.D.N.Y. 2008)).


Similarly, a school district’s failure to conduct a FBA might not rise to the level of denying a free
appropriate public education to a student whose individualized education program 
provides for the use of interventions, supports and strategies that address the student’s behavior, if the
effectiveness of such interventions, supports and strategies informed the decision to not conduct the FBA
(A.C ex. rel. M.C. v. Bd. of Educ. of the Chappaqua CSD, 553 F.3d 165 (2d Cir. 2009); but see L.O. v.
N.Y. City Dep’t of Educ., 822 F.3d 95 (2d Cir. 2016)).


When must a committee on special education (CSE) conduct a functional behavioral
assessment (FBA) in connection with a student disciplinary matter?


The CSE must conduct an FBA and implement a behavior intervention plan (BIP) for a
student with a disability related to a disciplinary matter whenever the student’s suspension or removal
constitutes a disciplinary change of placement and the conduct is a manifestation
of the student’s disability (8 NYCRR § 201.3(a)).


If the student already had a BIP, the CSE must review the plan and its implementation for any necessary
modifications (8 NYCRR § 201.3(b)).


What type of professionals conduct a functional behavior assessment (FBA)?


Neither federal nor state law specifies who should conduct an FBA. However, the Office of Special
Education Services (OSEP) at the U.S. Department of Education has indicated that school districts are
responsible for ensuring that “properly trained professionals” are available to conduct FBAs (Letter to
Janssen, OSEP Response to Inquiry, 51 IDELR 253 (June 5, 2008)).


What is a behavioral intervention plan?


A behavioral intervention plan (BIP) consists of a plan that is based on the results of a functional
behavioral assessment and, at a minimum, includes a description of the problem behavior,
global and specific hypotheses as to why the behavior occurs, and intervention strategies to address the
behavior (8 NYCRR § 200.1(mmm)).


Intervention strategies, including the use of time out rooms and emergency interventions, must be used
consistent with standards prescribed in commissioner regulations (8 NYCRR § 200.22).
In addition to specified instances related to student discipline, the committee on special
education also must consider the development of a BIP when:


• a student exhibits persistent behavior that impedes his or her learning or that of others, despite
consistently implemented general schoolwide or classroomwide interventions;


• a student’s behavior places the student or others at risk of harm or injury; and


• a student is being considered for a more restrictive program or placement as a result of his or her
behavior (8 NYCRR § 200.22(b))


A student’s need for a BIP must be documented in the student’s individualized education program (IEP)
and revised at least annually. The IEP must indicate if a particular device or service, including
an intervention, accommodation, or other program modification is needed to address the student’s
behavior that impedes his or her learning or that of others (8 NYCRR § 200.22(b)(2)). The IEP also must
specify scheduled intervals for monitoring regular progress in the implementation of a student’s BIP (8
NYCRR § 200.22(b)(5)).


May parents challenge the placement of their child in an interim alternative educational
setting (IAES) and/or a determination that the child’s behavior is not a manifestation of his or her
disability?


Yes (20 USC § 1415(k)(3)(A); 34 CFR § 300.532(a); 8 NYCRR § 201.11(a)(3), (4)). In such an
instance, the school district must conduct an expedited due process hearing. A resolution meeting must
occur within seven days of the district receipt of the parental request for a hearing (8 NYCRR § 201.11(b)
(3)(i)). The expedited due process hearing must occur within 20 school days of the date the district
received the parental request for a hearing (20 USC § 1415(k)(4)(B); 34 CFR § 300.532(c); 8 NYCRR §
201.11(b)(3)(iii)).


During the pendency of the hearing or appeal, the child remains in the IAES pending the outcome of the
decision or until expiration of the IAES, whichever occurs first, unless the parents and the district agree
otherwise (20 USC § 1415(k)(4)(A); 34 CFR § 300.533; 8 NYCRR § 201.11(d).


Are the procedures that apply to the discipline of disabled students also applicable to
students who have not been classified as students with disabilities?


Yes, if the student is a student presumed to have a disability for discipline purposes, i.e., the school
district is deemed to have had knowledge, as defined by law and regulation, that the child was a child
with a disability before the misconduct occurred (20 USC § 1415(k)(5); 34 CFR § 300.534(a); Educ. Law
§ 3214(g)(2); 8 NYCRR § 201.5).


A school district will be deemed to have the requisite knowledge if prior to the behavior:


• the student’s parents expressed concern in writing, unless the parent cannot write, to district
supervisory or administrative staff or to one of the student’s teachers that the student is in need of
special education; or


• the parent requested an evaluation of the student; or


• one of the student’s teachers, or other district staff expressed specific concerns about a pattern of
behavior by the student directly to the director of special education or to other supervisory personnel
(20 USC § 1415(k)(5)(B); 34 CFR § 300.534(b); 8 NYCRR § 201.5(b); Appeal of a Student
Suspected of Having a Disability, 55 Ed Dep’t Rep, Dec. No. 16,912 (2016))


If there was no basis for knowledge, school officials can subject the student to the same disciplinary
measures applicable to nondisabled students who engaged in comparable behaviors. However, if the
student’s parents request an evaluation during the disciplinary removal, the district must conduct an
expedited evaluation (34 CFR § 300.534(d)(1), (2)(i); 8 NYCRR § 201.5(e)). Until completion of the
expedited evaluation, the student remains in the educational placement determined by the school district,
which can include suspension (20 USC § 1415(k)(5)(D); 34 CFR § 300.534(d)(2)(ii); 8 NYCRR §
201.6(c)).


Even if a district can be deemed to have had knowledge that a student is a student with a disability, the
student will not be presumed to have a disability for discipline purposes if the student’s parent did not
allow the student to be evaluated or refused services, or the committees on special education previously
determined the student is not a student with a disability (20 USC § 1415(k)(5)(C); 34 CFR § 300.534(c);
8 NYCRR § 201.5(c).


Due process safeguards apply, as well, to students who have been declassified but later exhibit
behavioral problems (Appeal of a Student Presumed to Have a Disability (South Country CSD), 35 Ed
Dept Rep 492 (1996)).


Are students with disabilities subject to a school district’s attendance policy?


Yes. However, a school district may not apply its attendance policy to a student with disabilities in
order to deny the student course credit where the absences are related to the student’s disability or to a
medical condition which would constitute a handicap under section 504 of the Rehabilitation Act (Appeal
of a Child with a Handicapping Condition, 32 Ed Dept Rep 56 (1992)).

 

 

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