Ala. Admin. Code r. 290-8-9-.09

Current through Register Vol. 42, No. 7, April 30, 2024

Section 290-8-9-.09 - Discipline Procedures

When the IEP Team, including the parents, agrees to a change in placement for disciplinary reasons, there is no requirement to implement the following discipline provisions.

(1)Authority of School Personnel.

(a) School personnel may consider any unique circumstances on a case-by-case basis when determining whether a change in placement, consistent with the other requirements of this section, is appropriate for a child with a disability who violates a code of student conduct.

(b) School personnel under this section may remove a child with a disability who violates a code of student conduct from his or her current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than ten (10) consecutive school days (to the extent those alternatives are applied to children without disabilities), and for additional removals of not more than ten consecutive school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change of placement).

(c) After a child with a disability has been removed from his or her current placement for ten (10) school days in the same school year, during any subsequent days of removal the public agency must provide services to the child with a disability who is removed from the child's current placement. The child must continue to receive educational services, so as to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP, 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.

(d) For disciplinary changes in placement that would exceed ten (10) consecutive school days, if the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child's disability pursuant to this rule, school personnel may apply the relevant disciplinary procedures to children with disabilities in the same manner and for the same duration as the procedures would be applied to children without disabilities. When there is a change of placement, the child must continue to receive educational services, so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP; 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. The educational services may be provided in an interim alternative setting.

(e) A public agency is only required to provide services during periods of removal to a child with a disability who has been removed from his or her current placement for ten (10) school days or less in that school year, if it provides services to a child without disabilities who is similarly removed.

(f) After a child with a disability has been removed from his or her current placement for ten (10) school days in the same school year, if the current removal is for not more than ten (10) consecutive school days and is not a change of placement under this rule, school personnel, in consultation with at least one of the child's teachers, determine the extent to which services are needed so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP.

(2)Change of Placement Because of Disciplinary Removals. The child's IEP Team determines the interim alternative educational setting for services.

(a) For purposes of removals of a child with a disability from the child's current educational placement, a change of placement occurs if the removal is for more than ten (10) consecutive school days, including partial school days of a half day or more, or the child has been subjected to a series of removals that constitute a pattern because the series of removals total more than ten (10) school days in a school year, because the child's behavior is substantially similar to the child's behavior in previous incidents of misconduct 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. The public agency (a minimum of an administrator and the student's special education teacher) determines on a case-by-case basis whether a pattern of removals constitutes a change of placement. This determination is subject to review through due process and judicial proceedings.

(b) 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 LEA must notify the parents of that decision, and provide the parents the procedural safeguards notice.

(c) Manifestation Determination.

1. Within ten (10) school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the LEA, the parent, and relevant members of the child's IEP Team (as determined by the parent and the LEA) 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 LEA's failure to implement the IEP.

2. The conduct must be determined to be a manifestation of the child's disability if the LEA, the parent, and relevant members of the child's IEP Team determine that either condition in paragraph one is met.

3. If the LEA, the parent, and relevant members of the child's IEP Team determine that there was a failure to implement the IEP, the LEA must take immediate steps to remedy those deficiencies.

(d) Determination that Behavior was a Manifestation. If the LEA, the parent, and relevant members of the IEP Team make the determination that the conduct was a manifestation of the child's disability, the IEP Team must:

1. Conduct a functional behavioral assessment, unless the LEA had conducted a functional behavioral assessment during the previous 18 months before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the child, or

2. If a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior, and

3. Except as provided in Special Circumstances, 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.

(e) Special Circumstances. School personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child's disability, if the child:

1. Carries a weapon to or possesses a weapon at school, on school premises, or to or at a school function under the jurisdiction of the SEA or an LEA,

2. 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 the SEA or an LEA, or

3. Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of the SEA or an LEA.

(f) Definitions. For purposes of this section, the following definitions apply:

1. Controlled substance means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act ( 21 U.S.C. 812(c) ).

2. Illegal drug means a controlled substance, but does not include a controlled substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act or under any other provision of Federal law.

3 Serious bodily injury has the meaning given the term ''serious bodily injury" under paragraph (3) of subsection (h) of section 1365 of title 18, United States Code.

4. Weapon has the meaning given the term ''dangerous weapon" under paragraph (2) of the first subsection (g) of section 930 of title 18, United States Code.

(3)Appeal. The parent of a child with a disability who disagrees with any decision regarding disciplinary placement or manifestation determination under these rules, or an LEA that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others, may appeal the decision by requesting a hearing. The hearing is requested by filing a due process hearing request.

(a) Authority of Hearing Officer. A hearing officer hears, and makes a determination regarding an appeal under this section. In making the determination, the hearing officer may return the child with a disability to the placement from which the child was removed if the hearing officer determines that the removal was a violation of disciplinary requirements, or that the child's behavior was a manifestation of the child's disability, or order a change of placement of the child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others. This process may be repeated if the LEA believes that returning the child to the original placement is substantially likely to result in injury to the child or to others.

(b) Expedited Due Process Hearing. Whenever a hearing is requested under this rule, the parents or the LEA involved in the dispute must have an opportunity for a due process hearing.

1. The SEA is responsible for arranging the expedited due process hearing, which must occur within 20 school days of the date the hearing request is received. The hearing officer must make a determination within ten (10) school days after the hearing.

2. Unless the parents and LEA agree in writing to waive the resolution meeting, or agree to use the mediation process, a resolution meeting must occur within seven days of receiving notice of the due process hearing request, and

3. The due process hearing may proceed unless the matter has been resolved to the satisfaction of both parties within 15 days of the receipt of the due process hearing request.

4. The decisions on expedited due process hearings are appealable consistent with the due process hearing rules.

(4)Placement During Appeals. When an appeal has been made by either the parent or the LEA under this rule, the child must remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period specified in this rule, whichever occurs first, unless the parent and the SEA or LEA agree otherwise.

(5)Protections for Children Not Determined Eligible for Special Education And Related Services.

(a) A child who has not been determined to be eligible for special education and related services under these rules and who has engaged in behavior that violated a code of student conduct, may assert any of the protections provided for in these rules if the public agency had knowledge, as specified below, that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.

(b) A public agency must be deemed to have knowledge that a child is a child with a disability if before the behavior that precipitated the disciplinary action occurred:

1. The parent of the child expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services,

2. The parent of the child requested an evaluation of the child pursuant to these rules, or

3. The teacher of the child, or other personnel of the LEA, 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.

(c) Exception. A public agency would not be deemed to have knowledge under paragraph (b) of this section if the parent of the child has not allowed an evaluation of the child, or has refused services under these rules, or the child has been evaluated and determined to not be a child with a disability under these rules.

(d) Conditions that apply if no basis of knowledge.

1. If a public agency does not have knowledge that a child is a child with a disability (in accordance with paragraphs (b) and (c) of this section) prior to taking disciplinary measures against the child, the child may be subjected to the disciplinary measures applied to children without disabilities who engage in comparable behaviors consistent with paragraph 2. that follows.

2. If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures, the evaluation must be conducted in an expedited manner. Until the evaluation is completed, the child remains in the educational placement determined by school authorities, which can include suspension or expulsion without educational services.

3. If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the public agency and information provided by the parents, the agency must provide special education and related services in accordance with these rules.

(6)Referral to And Action by Law Enforcement and Judicial Authorities.

(a) Rule of Construction. Nothing in these rules prohibits an agency from reporting an alleged crime committed by a child with a disability to appropriate authorities or prevents 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.

(b) Whenever law enforcement or judicial authorities are contacted by a public agency personnel reporting an alleged crime committed by a child with a disability, the IEP Team must, within two weeks of the child's return to a school setting:

1. Conduct a functional behavioral assessment, unless the LEA has conducted a functional behavioral assessment during the previous 18 months before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the child, or

2. If a behavioral intervention plan already has been developed, review the behavioral intervention plan and modify it, as necessary, to address the behavior.

(c) Transmittal of Records.

1. An agency reporting an alleged crime committed by a child with a disability must ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom the agency reports the crime.

2. An agency reporting an alleged crime under this section may transmit copies of the child's special education and disciplinary records only to the extent that the transmission is permitted by FERPA.

(7)Bus Suspension. Whether a bus suspension would count as a day of suspension would depend on whether the bus transportation is a part of the child's IEP. If the bus transportation is a part of the child's IEP, a bus suspension would be treated as a suspension unless the public agency provides the bus service in some other way because that transportation is necessary for the child to obtain access to the location where all other services will be delivered. If the bus transportation is not a part of the child's IEP, a bus suspension would not be a suspension. In those cases, the child and his or her parents would have the same obligations to get the child to and from school as a nondisabled child who had been suspended from the bus. However, education agencies must address whether the behavior on the bus is similar to behavior in a classroom that is addressed in an IEP and whether bus behavior should be addressed in the IEP or in a behavioral intervention plan for the child.

(8)In-School Suspension. A day of in-school suspension is not a removal from a child's educational program for disciplinary reasons as long as the child is afforded the opportunity to continue to appropriately participate in the general education curriculum, continue to receive the services specified on the child's IEP, and continue to participate with nondisabled children to the extent they would have in his or her current placement.

Ala. Admin. Code r. 290-8-9-.09

New Rule: Filed September 9, 1999; effective October 14, 1999. Amended: Filed December 14, 2000; effective January 18, 2001. Repealed and New Rule: Filed August 11, 2005; effective September 15, 2005. Repealed and New Rule: Filed June 14, 2007; effective July 19, 2007.

Author: Joseph B. Morton

Statutory Authority:Code of Ala. 1975, Title 16, Chapter 39; 20 U.S.C. 1400etseq.; 34 CFR §300.