Discipline of Students Whose Eligibility for Special Education is Suspected
All students are expected to meet the requirements for behavior as set forth in the Falmouth Public School District Student Handbooks. Discipline is the responsibility of the school Principals, and all authority for discipline rests with them. The Individuals with Disabilities Education Act (IDEA), MGL Chapter 71B, 603 CMR 28.00, CMR 53.00 and related regulations require that additional provisions regarding discipline be implemented for special education students. In general, special education students may be suspended from their programs, just as any other student can be, for up to ten (10) school days per year. However, additional protections apply to students who have been found eligible for special education and to students for whom the school is deemed to have knowledge that the child might have a disability (i.e., students who have not yet been found eligible but the school had a basis of knowledge of a disability, including students who have been referred for initial evaluation). 34 CFR §300.354.
A change of placement because of a disciplinary removal occurs if a child with a disability is removed from their current educational placement for more than ten (10) consecutive school days, or the child is subjected to a series of removals that constitutes a pattern because: (1) the removals total more than 10 school days in a school year; (2) the child’s behavior is substantially similar to previous incidents that resulted in the series of removals; and (3) 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 constitute a pattern. 34 CFR § 300.536. In cases where a student’s disciplinary removal for current misconduct is for fewer than ten (10) consecutive school days but removals total more than ten (10) school days in the school year, or if the disciplinary removal for current misconduct is for eleven (11) or more consecutive school days, the district must immediately provide the parent(s)/guardian(s)/student age eighteen (18) or older with written notice of procedural safeguards and convene the Team within ten (10) days of the decision to suspend to conduct a manifestation determination.
The manifestation determination must take place within ten (10) school days of the decision resulting in the change of placement and be attended by the Special Education Building Administrator, the student’s parent(s)/guardian(s), student age fourteen (14) and older, and other relevant IEP Team members as determined by the district and parent(s)/guardian(s)/student age eighteen (18) or older. The determination made by the student’s Team, after review of all relevant information in the student’s file including the IEP, teacher observations, and relevant information provided by the parents, whether (1) the conduct in question was caused by or had a direct and substantial relationship to the child’s disability; or (2) the conduct in question was the direct result of the district’s failure to implement the student’s IEP. 20 USC 1415(k)(1)€(i); 34 CFR § 300.530(e).
If the answer to both questions is “no”, the conduct is not a manifestation of the student’s disability, and the district may apply relevant disciplinary procedures in the same manner and for the same duration as to students without disabilities. In addition, the IEP Team must also determine the extent to which special education services are needed to enable the student to continue to participate in the general education curriculum and to progress toward meeting IEP goals and must implement those services.
If the answer to either or both questions is “yes,” the Team must find that the conduct is a manifestation of the student’s disability. The district must return the student to their placement unless (1) parent and district agree to a different placement, (2) a hearing officer orders a new placement, or (3) the removal is for “special circumstances” under 34 CFR § 300.530(g). The district may opt to conduct a functional behavior assessment and develop a behavioral implementation plan, or review and modify an existing plan as needed. If the conduct was a direct result of failure to implement the IEP, the district must take immediate steps to remedy those deficiencies.
If the conduct for which the student is being disciplined involves “special circumstances” school personnel may remove the student to an interim alternative educational setting (IAES) for up to forty-five (45) school days, regardless of the manifestation determination. 34 CFR § 300.530(g). The IEP Team must determine the location of the IAES.
Special circumstances exist if the student:
- carries a weapon to or possesses a weapon at school, on school premises, or to or at a school function under the jurisdiction of a State or local educational agency (district); or
- knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency; or
- inflicts serious bodily injury upon another person 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 mental faculty while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency. 34 CFR § 300.530(g).
Additionally, a Massachusetts Bureau of Special Education Appeals Hearing Officer, under certain circumstances, may order a change in the placement of a student with a disability to an IAES for up to forty-five (45) days if the Hearing Officer determines that maintaining the current placement is substantially likely to result in injury to the student or others.
When a parent(s)/guardian(s)/student age eighteen (18) or older disagree(s) with the decision on the “manifestation determination” or with a decision regarding placement, the parent(s) / guardian(s) have the right to request an expedited due process hearing from the Bureau of Special Education Appeals.
Students not yet eligible for Special Education / Special provisions
A child who has not yet been determined to be eligible for special education and related services may assert the disciplinary protections under IDEA if the school had a basis of knowledge that the child is a child with a disability before the behavior that precipitated the disciplinary action occurred. The school is deemed to have knowledge if: (1) the child’s parent expressed concern in writing to administrative or supervisory personnel of the school or district that the child is in need of special education and related services; (2) the parent of the child had requested a special education evaluation; or (3) the child’s teacher or other school or district personnel expressed specific concerns to the director of special education or to other supervisory personnel about a pattern of behavior demonstrated by the child. The school or district is not deemed to have knowledge of a disability if (1) the parent has not allowed an evaluation or has refused special education and related services, or (2) the child has been evaluated and determined not to be a child with a disability. 34 CFR § 300.534.
If, however, a request is made for an evaluation to determine eligibility while the student is subject to disciplinary measures, the district must conduct the evaluation in an expedited manner. Pending the results of the evaluation, the student must remain in the educational placement determined by school authorities, which may include suspension or expulsion. If the student is determined eligible for an IEP as a result of the evaluation, the school district must provide the student with special education and related services in accordance with the IDEA.
Special education staff, Principals and guidance counselors shall be familiar with the regulations and the Falmouth Public School District procedures regarding eligible students. All suspensions are recorded in the Falmouth Public School District student management system and are submitted to DESE according to reporting requirements and timelines.