Change in Placement: The 10-Day Rule, Interim Alternative Settings, etc.

 

A disciplinary change of placement occurs for a student with a disability if: (1) The removal is for more than 10 consecutive school days; or (2) he student has been subjected to a series of removals that constitute a pattern because the series of removals total more than 10 school days in a school year; because the student's behavior is substantially similar to the student's behavior in previous incidents that resulted in the series of removals; and because of additional factors, such as the length of each removal, the total amount of time the student has been removed, and the proximity of the removals to one another. 34 C.F.R. § 300.536.

Suspensions And The Ten-Day Rule:  If the suspension is for 10 school days in a school year or less, FAPE is not required.  Suspension for more than 10 school days is considered a long term suspension and a disciplinary change of placement.  The IDEA protects students with disabilities in disciplinary proceedings that may result in long term suspension or expulsion as those are changes of placement..  Suspensions over 10 days in a school year requires a Manifestation Determination Review (MDR).

State law defers to federal law.  States often have a law that says something along the lines of “the suspension or expulsion of children with disabilities, as defined in [State statute section], shall be in accordance with the [IDEA] and federal regulations issued pursuant to the [IDEA].” 

A disciplinary “change of placement” occurs for a student with a disability if: (1) The removal is for more than 10 consecutive school days; or (2) the student has been subjected to a series of removals that constitute a pattern because the series of removals total more than 10 school days in a school year; because the student's behavior is substantially similar to the student's behavior in previous incidents that resulted in the series of removals; and because of additional factors, such as the length of each removal, the total amount of time the student has been removed, and the proximity of the removals to one another.  34 C.F.R. § 300.536. 

The public agency determines on a case-by-case basis whether a pattern of removals constitutes a change of placement.  34 C.F.R. § 300.536(b)(1).  The public agency’s determination of whether a pattern of removals constitutes a change of placement is subject to review through due process and judicial proceedings.  34 C.F.R. § 300.536(b)(2).

Note that change of placement due to disciplinary removals is an exception to the general rule that parents must be within the group that makes any placement decisions. 34 C.F.R. § 300.327 (“Consistent with §300.501[c], each public agency must ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child.”  C.F.R. § 300.501[c], in turn, “Parent involvement in placement decisions,” states that “Each public agency must ensure that a parent of each child with a disability is a member of any group that makes decisions on the educational placement of the parent's child.”) 

Change of placement due to disciplinary removals is also an exception from the mandate that the least restrictive environment must be considered for placement decisions. 34 C.F.R. §§ 300.114 -120. 

However, parents must be notified of a change in placement for disciplinary removals. 34 C.F.R. § 300.530(h) (“Notification. On the date on which the decision is made to make a removal that constitutes a change of placement of a child with a disability because of a violation of a code of student conduct, the public agency must notify the parents of that decision, and provide the parents the procedural safeguards notice described in §300.504.”).           

"Stay Put" Placement During Pendency Of Due Process:  The IDEA provides that that during the pendency of judicial review of a due process decision, unless the State or local educational agency and the parents otherwise agree, “the child shall remain in the then-current educational placement of such child…until such proceedings have been completed.” 20 U.S.C. § 8 1415(j). Section 1415(j), commonly referred to as the “stay put” provision, requires the educational agency to maintain a disabled child's educational program until any placement dispute between the 10 agency and the child's parents is resolved. Sch. Committee of the Town of Burlington v. Mass. Dep’t of Educ., 471 U.S. 359, 359, 105 S.Ct. 1996, 1997 (1985). Stay put “functions as an ‘automatic’ preliminary injunction. The automatic stay-put exists because of “Congress’s sense that there is a heightened risk of irreparable harm inherent in the premature removal of a disabled child to a potentially inappropriate educational setting.” Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d 1036, 1040 (9th Cir. 2009).        

Continuation Of Educational Services During Removal:  The U.S. Department of Education has noted that "while children with disabilities removed for more than 10 school days in a school year for disciplinary reasons must continue to receive FAPE, we believe the [IDEA] modifies the concept of FAPE in these circumstances to encompass those services necessary to enable the child to continue to participate in the general curriculum, and to progress toward meeting the goals set out in the child's IEP. A public agency is not required to provide children suspended for more than 10 school days in a school year for disciplinary reasons, exactly the same services in exactly the same settings as they were receiving prior to the imposition of discipline. However, the special education and related services the child does receive must enable the child to continue to participate in the general curriculum, and to progress toward meeting the goals set out in the child's IEP."  See 71 Fed. Reg. 46,716 (2006).

Simply stated, a suspension, expulsion, or 45 day placement, should not result in a child with a disability falling further behind.  The setting for each student with a disability will depend on their individual needs and the various services available by the District/charter school to meet those needs.

Thus, a student who has an IEP (or a student with a 504 that falls under the EXCEPTION below) must receive educational services during his or her long term suspension or expulsion;  the services  must enable the student to continue to participate in the general education curriculum and progress toward meeting his or her goals as set forth in the student’s IEP.  Thus, technically, a student who has an IEP cannot be expelled; he/she can only be long-term suspended.  Additionally, the student must receive a FBA and behavioral intervention services and modifications designed to address the student’s behavior so it will not recur.  The IEP team is responsible for determining the appropriate services and the location where the services will be provided.

Students with only a 504 plan are not entitled to a FAPE during a long term suspension or expulsion. EXCEPTION – If state law has a provision for providing services to non-disabled students who are long term suspended or expelled then the school would still be obligated for provide services to disabled students.

Interim Alternative Educational Settings (IAES):   In certain cases, the student may be placed in an “interim alternative setting” [IAS] (also called an “interim alternative educational setting,” [IAES] or “interim alternative placement”) for no more than 45 school days without a manifestation determination review IF the student carried or possessed a weapon at school, knowingly possessed or used illegal drugs, sold or solicited controlled substances or inflicted serious bodily injury on someone else while at school or on school premises or at a school function.  34 C.F.R. §300.530 (f) and (g).

              The IEP Team determines the IAES.  34 C.F.R. §300.531.  If parents disagree with the IAES that the IEP Team determines or a hearing officer selects, they can appeal by filing a due process complaint.  34 C.F.R. §300.532.  During the appeal process, the student will remain in the IAES until there is a final decision or until the expiration of the placement, whichever happens first; unless the public agency and parents agree otherwise. 34 C.F.R. §300.533.

              In closing:  Before discipline measures are imposed, school personnel should consider:  the individual student and his/her disability(ies),  the student’s IEP provisions and any behavior assessments they have, the behavior and severity of the misconduct, how many days of suspension the student has had that school year, and what discipline measures would be used for a nondisabled student who misbehaved in the same manner. 

Navigating the Manifestation Determination Review (MDR)

The IDEA protects students with disabilities in disciplinary proceedings that may result in long term suspension or expulsion. Suspension over 10 days in a school year requires a Manifestation Determination Review (MDR) (see below).  A student with a disability (with an IEP) may be suspended for up to 10 school days in a school year without FAPE being provided.  Suspension for more than 10 school days is considered a long term suspension. 

If a student with a disability may be suspended for more than 10 school days due to a code of conduct violation, the public agency, parents, and relevant IEP Team members (determined by parents and district) must have a meeting to determine whether the student’s behavior was a manifestation of his/her disability.  At the meeting, all relevant information in the student’s file, the IEP, teachers’ observations and any other relevant information parents provide must be reviewed in order to determine whether the conduct was caused by or had a direct and substantial relationship to the student’s disability, or whether the conduct was the direct result of the public agency’s failure to implement the student’s IEP.  If either of the two conditions above were met then there should be a determination that the conduct was a manifestation of the student’s disability.  If it is determined that it was the public agency’s failure to implement the student’s IEP, then the public agency must take immediate steps to remedy those failures.  34 C.F.R. §300.530(e).  When the determination is that the conduct was a manifestation of the student’s disability, then the IEP Team must either conduct an FBA (unless the public agency already conducted one before the behavior violation occurred) and implement a BIP for the student or, if there is already a BIP in existence for the student, then the public agency must review the BIP and modify the BIP if necessary to address the behavior, and the student must be returned to the placement from which he/she was removed – unless the parents and public agency agree to a change of placement as part of the BIP or modification to the BIP.

In cases where the behavior is determined to have NOT been a manifestation of the student’s disability and the disciplinary changes in placement will exceed 10 consecutive school days, the same discipline may be imposed on the student with disabilities as a student without disabilities.  However the student with an IEP must be provided with a FAPE; special educational services to enable the student to continue participating in the general education curriculum, even in another setting and make progress toward meeting the student’s IEP goals. Additionally, if appropriate, the student is to receive a FBA, behavioral intervention services and modifications to address the conduct so that it does not recur.  34 C.F.R. §300.530 (c) and (d).

If parents disagree with the outcome of the MDR, they may appeal by filing file an “Expedited Due Process Complaint.” 

Expedited Due Process Complaints and Hearings:  When a parent or the public agency disagrees with the decision regarding placement or interim placement or the manifestation determination may appeal the decision by requesting a hearing.  The party appealing, files a due process complaint.  The public agency is responsible for getting the expedited due process hearing done within 20 school days from receiving the complaint. The hearing officer has 10 days after the hearing to make his/her determination.  34 C.F.R. § 300.532.

If both the parent and the public agency do not agree in writing to waive the resolution meeting or agree to go to mediation then a resolution meeting must take place within 7 days of the filing of the due process complaint.  If the matter is not resolved within 15 days of the filing of the due process complaint the matter will proceed to hearing.

The decision is appealable by either party.  Check your State’s rules for the timeframe for filing an appeal.  In Arizona, the time frame is 35 days.

Students with Section 504 Plan:  Students with 504 plans have similar protections to those students with IEPs.  But there are some differences.  The public agency may discipline a student with a disability under Section 504 just as it would a student without a disability if the student is currently engaging in the illegal use of drugs or use of alcohol, or in possession of illegal drugs or alcohol.

Additionally, the public agency is not required to provide educational services during a long term suspension or expulsion to a student with a 504 that committed a violation that was determined not to be a manifestation of his/her disability.

Documentation required:  Provide parents with their Procedural Safeguards Notice and document every decision with a Prior Written Notice (“PWN”).  A public agency must provide parents with  a PWN whenever the school proposes or refuses "to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child." 34 C.F.R. § 300.503 (a).  The PWN must include a description of the action proposed or refused by the district, an explanation of why the district proposes or refuses to take the action, a description of each evaluation procedure, assessment, record, or report the district used as a basis for the proposed or refused action, a statement that the parents have protection under Part B's procedural safeguards and, if the notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained, sources for parents to contact to obtain assistance in understanding the provisions of Part B, a description of other options that the IEP team considered and the reasons why those options were rejected, and a description of other factors relevant to the district's proposal or refusal.

The PWN must be provided in language understandable to the general public and in the parent’s native language, or other mode of communication if the parent’s mode of communication is not a written language and then, if the parent’s mode of communication is not a written language, the notice must be translated orally or by other means to the parent in his or her native language or other mode of communication.  

A school district's failure to provide a PWN within a reasonable time before it implements a change constitutes a procedural violation that may result in a denial of FAPE.

For the MDR, have the Meeting Notice (stating date, time, location, attendees, and purpose), notes taken during MDR, and the decision, along with the PWN, and again, give parents their Procedural Safeguards Notice.