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Discipline of IDEA Students with Disabilities��

Spring Directors Academy

February 29, 2024

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Disclaimer

  • This presentation provides general information and does not represent a complete recitation of the applicable law and policy in the topic area. The language used in these slides and during this presentation is approved for informational purposes only and should not be considered legal advice.

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Basic Overview of Discipline Procedures�

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Legal Framework

  • Most Relevant Federal Regulations
    • 34 C.F.R. 530 through 536
  • Most Relevant State Rules
    • NMAC 6.11.2.11 (Discipline of SWDs)
    • NMAC 6.11.2.12 (General Detention, Suspension, Expulsion Procedures)
    • NMAC 6.11.2.10 (Enforcement of Rules of Conduct, Includes Restraint and Seclusion Rules)
    • NMAC 6.31.2.1 through 6.31.2.14 (Special Education Rules)

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Key Concepts to Remember

In general, a student may not be disciplined for behavior that they are unable to control due to their disability.

  • Educators must maintain a continuity of educational services for the student despite the student’s objectionable behavior by:
    • keeping the student in school and addressing behavior through an FBA/BIP whenever possible
    • providing educational services after 10 cumulative school days of suspension or expulsion in any school year
    • adjusting the IEP when challenging behaviors continue because the school has not correctly identified or addressed a student’s individual needs
    • giving modifications to the IEP or BIP a chance to work before resorting to long-term suspension or expulsion
  • SWDs must be treated the same as similarly situated non-disabled children if normal discipline procedures are appropriate.
  • DOCUMENT, DOCUMENT, DOCUMENT!!!!!

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Do these rules apply?

Determine if student is a SWD

    • Does the student have an IEP or is the student awaiting an IEP to be completed?
    • If so, does the IEP have any exceptions to the LEA’s code of conduct of disciplinary procedures

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Suspicion of Disability

LEA is deemed to have knowledge that a student is an SWD if, before the behavior occurred:

  • The parent expressed concern in writing to supervisory or administrative personnel, or a teacher of the child, that the child is in need of special education and related services;
  • The parent requested an evaluation; or
  • A teacher, or other personnel, expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education of the agency or to other supervisory personnel of the agency.

Other information and situations may create a reasonable suspicion of a disability and need for special education or related services.

LEA is not deemed to have knowledge that a student is an SWD if :

  • evaluation or services were declined by parent or adult student or
  • the student was already determined to be ineligible for special education services through an evaluation.

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Suspicion of Disability

  • Teacher’s suspicions or specific concerns does not need to be in writing but must be communicated to the special education director or other supervisory personnel in order for the LEA to be deemed to have knowledge that the student may be a SWD.
  • Provision of MLSS interventions is not, in and of itself a basis for suspicion that a student is a SWD
    • However, the reason for the implementation may have some bearing on the determination that a suspicion may be reasonable.
    • Did the interventions arise because parents informed school that student may need special education or related services?
  • MDRs may not be postponed for the purposes of conducting an evaluation of a student suspected of needing special education or related services.
    • Improper or unreasonable delay in determining eligibility and developing and implementing the IEP could be considered a failure to implement the IEP for purposes of the MDR.
  • Expedited Evaluation
    • Must be provided in a shorter period of time than a typical evaluation

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Student is not and SWD

If student is not a SWD or not suspected of being a SWD, LEA may proceed with general disciplinary procedural rules and possible hearing.

    • Parents may request evaluation at this time
      • Expedited evaluation may be required, but discipline may be implemented while an eligibility determination is made.

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Discipline of SWDs

If student is an SWD:

Conduct an Informal Administrative Conference

      • interview witnesses, including staff and other students
      • allow the student an opportunity to explain the behavior

Determine if Disciplinary Action is Warranted and if so what action will be taken

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Best Practice: IEP team may need to meet prior to disciplinary proceedings

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Procedural Requirements

Notify the Parents

    • the misconduct
    • any alternative disciplinary action that will be taken pursuant to provisions included in the student’s IEP or BIP, and
    • The proposed disciplinary action, if any.
    • Parent Notice form in TA Manual

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10 Day Rule

    • More than 10 consecutive school days or removal from current placement to Interim Alternative Educational Setting (IAES)
    • Series of removals for more than 10 school days in a school year that constitutes a pattern
      • Because the child's behavior is substantially similar to the child's behavior in previous incidents that resulted in the series of removals; and
      • Because of such additional factors 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
      • LEA Makes the determination of a pattern, but it is subject to review
    • This could include informal removals and shortened school days resulting from behavior and/or disciplinary action.
    • DOCUMENT, DOCUMENT, DOCUMENT!!!!

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Discipline Decisions

Short-Term Suspensions

    • Can proceed with discipline but be sure to identify any 10 day patterns as described above.
    • What services will be provided to student during Short Term Suspension, if any? (School Admin and Teacher(s)).
    • Suspensions amount to more than 10 cumulative school days requires some services to continue to be provided even if the current removal does not meet the 10 day rule.

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In-School Suspensions

    • Is it subject to the 10 day rule?
      • the child is afforded the opportunity to continue to appropriately participate in the general curriculum;
      • the child continues to receive the services specified on the child’s IEP; and
      • the child continues to participate with nondisabled children to the extent they would have in their current placement.

Transportation Suspension

    • Is the transportation in student’s IEP?

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Informal Removals and Shortened School Days

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    • In general, the use of informal removals to address a child’s behavior, if implemented repeatedly throughout the school year, could constitute a disciplinary removal from the current placement.
    • Discipline Procedures generally apply unless all three of the following factors are met:
      • the child is afforded the opportunity to continue to appropriately participate in the general curriculum;
      • the child continues to receive the services specified on the child’s IEP; and
      • the child continues to participate with nondisabled children to the extent they would have in their current placement.
    • A practice of shortening a child’s school day as a disciplinary measure could be considered a denial of FAPE if the child’s IEP Team does not also consider other options such as additional or different services and supports that could enable a child to remain in school for the full school day.

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If a Removal constitutes a change of placement

Long Term Suspensions (More Than 10 Days)

Expulsions

Pattern of Behavior (Change of Placement)

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    • MDR Required
    • Should be conducted prior to formal hearing to impose discipline required under state rules.
    • School must ensure that student continues to receive FAPE (although modified) throughout these MDR and discipline proceedings

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Manifestation Determination

Manifestation Determination Review is NOT

    • to determine whether the student actually committed the offense or whether the penalty for an offense is too harsh.
    • to determine whether the student thinks he or she can or cannot follow rules, and whether the student knows the difference between right and wrong

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Note: MDRs may be conducted outside of situations in which removals constitute a change of placement.

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Manifestation Determination (NOTICE)

Notice must be provided to Parent of MDR Meeting on date of decision to impose removal.

    • Notice must include:
      • The date and time of the MDR meeting
      • A copy of the school’s procedural safeguards notice
      • Notice that the parents are entitled to invite relevant persons (including members of the student’s IEP team) to serve as members of the MDR team
      • A description of the action proposed or refused by the district (including the length of the proposed exclusionary period, and the start date)
      • An explanation of why the district proposes or refuses to take the action (this would include a description of the misconduct)
      • A description of other options considered and the reasons why those options were rejected (in other words, what other disciplinary sanctions were considered and rejected, and the reasons why were they rejected)
      • A description of the parents’ right to challenge decisions by means of the state-level complaint procedures or a request for due process hearing.

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Manifestation Determination

Manifestation Determination Review

    • MDR Meeting must be held as soon as possible but within 10 days of decision to remove and before any actual discipline proceedings are initiated
    • MDR must be conducted by the LEA, parent, and any relevant members of the IEP team

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Manifestation Determination

    • MDR team must review all relevant information in the student's file, including the child's IEP, any teacher observations, and any relevant information provided by the parents to determine:
      • if the conduct in question was caused by or had a direct and substantial relationship to, the child's disability; or
      • if the conduct in question was the direct result of the administrative authority's failure to implement the IEP
    • If either of the above are determined to be true, the MDR Team must conclude that the behavior was a manifestation of the student’s disability
    • If neither of the above are determined to be true, LEA may proceed with general disciplinary proceedings.
    • Notice must be provided regarding the determination to parent in a similar form to a PWN

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Manifestation Determination

If the behavior is determined to be a manifestation of the student’s behavior, the IEP Team must either:

    • Conduct a FBA, unless the LEA had conducted a FBA before the behavior that resulted in the change of placement occurred, and implement a BIP for the child; or
    • If a BIP already has been developed, review the BIP, and modify it, as necessary, to address the behavior; and
    • return the child to the placement from which the child was removed, unless the parent and the LEA agree to a change of placement as part of the modification of the behavioral intervention plan.
    • The LEA and IEP team MUST also address any IEP implementation issues identified by the MDR Team.

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Manifestation Determination

If the behavior is not determined to be a manifestation of the student’s behavior, the IEP Team must:

    • Ensure the FAPE is still provided to student
    • Determine what services and placement (IAES) is appropriate during the period of removal.
    • Consider conducting an FBA and creating a BIP

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Special Circumstances

LEAs may be permitted to unilaterally remove a SWD to an IAES if the behavior or misconduct involves the following Special Circumstances:

        • Drugs (not alcohol)
        • Weapons
        • Serious Bodily Injury
    • Removals related to these special circumstances may be imposed for not more than 45 school days
      • IEP Team should meet to consider IAES and the provision of FAPE
      • MDR must still be conducted with the same notice and procedural requirements
    • Impact of determination does not change, but the removal to IAES may still continue for up to 45 days even if the behavior was determined to be a manifestation of student’s disability.

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Special Circumstances

    • Dangerousness Determination
      • LEA may seek an order from a Due Process Hearing Officer to change the placement of a student because the student is substantially likely to result in injury to the student or others.
      • This may not be done unilaterally and an MDR should still be conducted
      • An order may be obtained even if the behavior is a manifestation of student’s disability.
      • These hearings are also expedited.
      • FAPE must continue to be provided and alternative IEP should be provided to hearing officer

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Reporting to Law Enforcement Authorities

  • The IDEA does not:
    • Prohibit an agency from reporting a crime committed by a child with a disability to appropriate authorities; or
    • Prevent state law enforcement and judicial authorities from exercising their responsibilities with regard to the application of federal and state law to crimes committed by a child with a disability.
  • If the school district reports a crime committed by a child with a disability, the district:
    • Must ensure that copies of the child’s special education and disciplinary records are transmitted for consideration by the authorities to whom the agency reports the crime to the extent permitted by FERPA

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Appeal of Discipline Decisions

Expedited Due Process Hearing Procedures related to Discipline

      • Disciplinary Action
      • Placement
      • MDR Determination
    • 20 day deadline for hearing
    • 10 day deadline for decision
    • Truncated Resolution and Mediation Timelines

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Preschool Children

  • Preschool children are entitled to all discipline procedures provided by the IDEA.
  • This includes children attending:
    • Preschools operated by the LEA
    • Preschools operated by another agency such as Head Start or community based child care
    • Private preschools when the child was placed by the LEA
  • Preschools not operated by the LEA should be informed of all procedures related to student discipline.
  • Review ECECD rules related to student discipline

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Student 1

  • Code of Conduct Violation
    • Fight with student

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  • Student’s disability Category
    • Other Health Impairment

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  • Student’s disability
    • ADHD

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  • Potential Disciplinary Action
    • 3 Days out of school suspension

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  • Prior Discipline
    • None

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Things To Consider�

    • Does the IEP or BIP have an alternative discipline plan for student?
    • Is it a removal which constitutes a change of placement?
    • Are there any special circumstances?
    • Is an MDR required for the potential discipline?
    • Is an MDR Needed? (IEP implementation, FBA/BIP)
    • Is it a Manifestation?
      • If so, what is required of the LEA?
    • Can the LEA move forward with potential discipline? (Where is the IAES)
    • Are services required to be provided to student during removal?

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Student 2

  • Code of Conduct Violation
    • Ditching Class

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  • Student’s disability Category
    • Specific Learning Disability

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  • Student’s disability
    • Dyslexia

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  • Potential Disciplinary Action
    • 3 Days of in-school suspension (ISS)

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  • Prior Discipline
    • 3 days of ISS for ditching class within 3 weeks
    • 6 days of ISS for disruptive conduct over a period of 6 months.

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Things To Consider�

    • Does the IEP or BIP have an alternative discipline plan for student?
    • Is it a removal which constitutes a change of placement?
    • Are there any special circumstances?
    • Is an MDR required for the potential discipline?
    • Is an MDR Needed? (IEP implementation, FBA/BIP)
    • Is it a Manifestation?
      • If so, what is required of the LEA?
    • Can the LEA move forward with potential discipline? (Where is the IAES)
    • Are services required to be provided to student during removal?

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Student 3

  • Code of Conduct Violation
    • Threatening another student with a handgun at school

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  • Student’s disability Category
    • Emotional Disturbance

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  • Student’s disability
    • Bipolar Disorder

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  • Potential Disciplinary Action
    • Remainder of school year (50 days)
  • Prior Discipline
    • 10 days of out-of school suspension threat to student on social media.
    • 3 days of ISS for vaping

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Things To Consider�

    • Does the IEP or BIP have an alternative discipline plan for student?
    • Is it a removal which constitutes a change of placement?
    • Are there any special circumstances?
    • Is an MDR required for the potential discipline?
    • Is an MDR Needed? (IEP implementation, FBA/BIP)
    • Is it a Manifestation?
      • If so, what is required of the LEA?
    • Can the LEA move forward with potential discipline? (Where is the IAES)
    • Are services required to be provided to student during removal?

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Student 4

  • Code of Conduct Violation
    • Disruptive conduct in the classroom
  • Student’s disability Category
    • No current Eligibility

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  • Student’s disability
    • Unknown, if any
    • Student has a BIP in place
    • Parent has recently and consistently requested to meet with school regarding behavioral and academic concerns.

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  • Potential Disciplinary Action
    • 5 day OSS
  • Prior Discipline
    • 7 Days of ISS for Disruptive conduct
    • 2 days of ISS for instigating a student conflict

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Things To Consider�

    • Does the IEP or BIP have an alternative discipline plan for student?
    • Is there a suspected disability?
      • If so, what is required?
    • Is it a removal which constitutes a change of placement?
    • Are there any special circumstances?
    • Is an MDR required for the potential discipline?
    • Is an MDR Needed? (IEP implementation, FBA/BIP)
    • Is it a Manifestation? If so, what is required of the LEA?
    • Can the LEA move forward with potential discipline? (Where is the IAES)
    • Are services required to be provided to student during removal?
    • Is an evaluation needed? If so, what is required by the LEA for the evaluation?

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Contact Information

Miguel Lozano

Chief Counsel

Special Education Division

Miguel.Lozano@ped.nm.gov

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Questions????�