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OSERS Issues New Guidance on Discipline

Responding to requests for clarification of the new 2006 IDEA regulations issued in the area of student discipline, OSERS issued non-binding guidance entitled “Questions and Answers on Discipline Procedures”, found at 47 IDELR 227 (OSERS 2007).  In this commentary, OSERS states that the “2004 amendments to section 615(k) of the IDEA were intended to address the needs expressed by school administrators and teachers for flexibility in order to address school safety issues balanced against the need to ensure that schools respond appropriately to a child’s behavior that was caused by, or directly and substantially related to, the child’s disability.”

The Q&A itself is 5 pages long in dual-column PDF format, and addresses a number of questions apparently sent to the U.S. Department of Education by individuals and agencies seeking clarification.  Some highlights include:

  • If the parent and school are in agreement about a need for a change in placement following a disciplinary issue, there is no need to make a 45-day change in placement under the discipline regulations.  Just make the change in placement by agreement.
  • If a parent consents to the initial provision of some, but not all of the proposed special education services, the child is eligible for services and is entitled to all of the protections of IDEA.
  • Notice to parents about how to express concern that a child is in need of special education services and how to invoke the protections of IDEA in a disciplinary situation is not required by either IDEA or the regulations, but states may choose to address this in policies and procedures.
  • Short-term removals that do not constitute a change in placement do not require prior written notice to be provided to the parent.
  • Teachers and other school personnel who have concerns about a child who may need special education services are not required to express their concerns in writing in order for their concerns to constitute a “basis of knowledge” that the child is or may be a child with a disability.
  • Unique circumstances that may be considered in determining whether a change in placement is appropriate for a child with a disability may include disciplinary history, ability to understand consequences, expression of remorse, and supports provided prior to the misconduct.
  • A school district may not offer home instruction as the only option available for Interim Alternative Educational Settings (IAES).  Such setting must be selected to enable the child to continue to participate in the general education curriculum and progress toward goals set out in the child’s IEP.  Factors to be considered might include the length of removal, extent to which the child has previously been removed, the child’s individual needs and educational goals.
  • The “sufficiency provision” regarding the content of a due process hearing request does not apply to expedited hearings requested to challenge disciplinary actions, so hearing requests that do not meet the minimum sufficiency requirements for all other types of due process hearings must be maintained and heard.
  • FBA’s and BIP’s are required to be developed and/or reviewed and revised only when the school, parent and relevant members of the IEP team determine that the child’s conduct was a manifestation of his/her disability.
  • If the team does not reach concensus on the question of whether the conduct was a manifestation of the child’s disability, the school district must make the determination and provide prior written notice to the parent.
  • A manifestation determination is required within 10 days of any decision to impose a removal that constitutes a change in placement.  Change in placement occurs if the removal is for more than 10 consecutive school days, or if the school district determines that the removal is a change in placement because the series of removals totals more than 10 school days in the school year, the behavior is substantially similar to that resulting in previous removals, or because of additional factors such as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another.