Section 071-101-XVII - DISCIPLINE OF CHILDREN WITH DISABILITIES1.Authority of School Personnel [34 CFR 300.530] A. Case-by-case Determination 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. General (1) 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 10 consecutive school days (to the extent those alternatives are applied to children without disabilities), and for additional removals of not more than 10 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 under §300.536).(2) After a child with a disability has been removed from his or her current placement for 10 school days in the same school year, during any subsequent days of removal the public agency must provide services to the extent required under paragraph (D) of this section.C. Additional Authority For disciplinary changes in placement that would exceed 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 paragraph (E) of this section, 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, except as provided in paragraph (D) of this section.
D. Services (1) A child with a disability who is removed from the child's current placement pursuant to paragraphs (C), or (G) of this section must(a) Continue to receive educational services, as provided in §300.101(a), 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(b) 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.(2) The services required by paragraph (D)(1), (D)(3), (D)(4), and (D) (5) of this section may be provided in an interim alternative educational setting.(3) 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 10 school days or less in that school year, if it provides services to a child without disabilities who is similarly removed.(4) After a child with a disability has been removed from his or her current placement for 10 school days in the same school year, if the current removal is for not more than 10 consecutive school days and is not a change of placement under §300.536, school personnel, in consultation with at least one of the child's teachers, determine the extent to which services are needed, as provided in §300.101(a), 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.(5) If the removal is a change of placement under §300.536, the child's IEP Team determines appropriate services under paragraph (D)(1) of this section.E. Manifestation Determination (1) Within 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 SAU, the parent, and relevant members of the child's IEP Team (as determined by the parent and the SAU) 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-(a) If the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability; or(b) If the conduct in question was the direct result of the SAU's failure to implement the IEP.(2) The conduct must be determined to be a manifestation of the child's disability if the SAU, the parent, and relevant members of the child's IEP Team determine that a condition in either paragraph (E)(1)(a) or (1)(b) of this section was met.(3) If the SAU, the parent, and relevant members of the child's IEP Team determine the condition described in paragraph (E)(1)(b) of this section was met, the SAU must take immediate steps to remedy those deficiencies.F. Determination that Behavior Was a Manifestation If the SAU, 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) Either-(a) Conduct a functional behavioral assessment, unless the SAU had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the child; or(b) If a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior; and(2) Except as provided in paragraph (G) of this section, return the child to the placement from which the child was removed, unless the parent and the SAU agree to a change of placement as part of the modification of the behavioral intervention plan.G. 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 an SEA or an SAU;(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 an SEA or an SAU; 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 an SEA or an SAU.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 SAU must notify the parents of that decision, and provide the parents the procedural safeguards notice described in §300.504.
(1) Definitions(a) For purposes of this section, the following definitions apply:(i) 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)).(ii) 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.(iii) 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.(iv) 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. (Authority: 20 U.S.C. 1415(k)(1) and (7))2.Determination of Setting [34 CFR 300.531] The child's IEP Team determines the interim alternative educational setting for services under §300.530(c), (d)(5), and (g).
3.Appeal [34 CFR 300.532] A. General The parent of a child with a disability who disagrees with any decision regarding placement under §§ 300.530 and 300.531, or the manifestation determination under §300.530(e), or an SAU 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 complaint pursuant to §§ 300.507 and 300.508(a) and (b).
B. Authority of Hearing Officer (1) A hearing officer under §300.511 hears, and makes a determination regarding an appeal under paragraph (A) of this section.(2) In making the determination under paragraph (B)(1) of this section, the hearing officer may- (a) 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 §300.530 or that the child's behavior was a manifestation of the child's disability; or(b) 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.(3) The procedures under paragraphs (A) and (B)(1) and (2) of this section may be repeated, if the SAU believes that returning the child to the original placement is substantially likely to result in injury to the child or to others.C. Expedited Due Process Hearing (1) Whenever a hearing is requested under paragraph (A) of this section, the parents or the SAU involved in the dispute must have an opportunity for an impartial due process hearing consistent with the requirements of §§ 300.507 and 300.508(a) through (c) and §§ 300.510 through 300.514, except as provided in paragraph (C) (2) through (4) of this section.(2) The SEA or SAU is responsible for arranging the expedited due process hearing, which must occur within 20 school days of the date the complaint requesting the hearing is filed. The hearing officer must make a determination within 10 school days after the hearing.(3) Unless the parents and SAU agree in writing to waive the resolution meeting described in paragraph (C)(3)(a) of this section, or agree to use the mediation process described in §300.506-(a) A resolution meeting must occur within seven days of receiving notice of the due process complaint; and(b) 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 complaint.(4) A State may establish different State-imposed procedural rules for expedited due process hearings conducted under this section than it has established for other due process hearings, but, except for the timelines as modified in paragraph (C)(3) of this section, the State must ensure that the requirements in §§ 300.510 through 300.514 are met. [Section XV I.21.C(6)(a) and (b)](5) The decisions on expedited due process hearings are appealable consistent with §300.514.4.Placement during Appeals [34 CFR 300.533] When an appeal under §300.532 has been made by either the parent or the SAU, 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 §300.530(c) or (g), whichever occurs first, unless the parent and the SEA or SAU agree otherwise.
5.Protections for Children Not Determined Eligible for Special Education and Related Services [34 CFR 300.534] A. General A child who has not been determined to be eligible for special education and related services under this part and who has engaged in behavior that violated a code of student conduct, may assert any of the protections provided for in this part if the public agency had knowledge (as determined in accordance with paragraph (B) of this section) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.
B. Basis of Knowledge 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 §§ 300.300 through 300.311; or(3) The teacher of the child, or other personnel of the SAU, 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-
(1) The parent of the child-(a) Has not allowed an evaluation of the child pursuant to §§ 300.300 through 300.311; or(b) Has refused services under this part; or(2) The child has been evaluated in accordance with §§ 300.300 through 300.311 and determined to not be a child with a disability under this part.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 (D)(2) of this section.(2)(a) If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures under §300.530, the evaluation must be conducted in an expedited manner.(b) 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.(c) If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the agency and information provided by the parents, the agency must provide special education and related services in accordance with this part, including the requirements of §§ 300.530 through 300.536 and section 612(a)(1)(A) of the Act.6.Referral to and Action by Law Enforcement and Judicial Authorities. [34 CFR 300.535] A. Rule of Construction Nothing in this part prohibits an agency from reporting a 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. Transmittal of Records (1) An agency reporting a 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 a 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 the Family Educational Rights and Privacy Act.7.Change of Placement Because of Disciplinary Removals [34 CFR 300.536] A. For purposes of removals of a child with a disability from the child's current educational placement under §§ 300.530 through 300.535, a change of placement occurs if- (1) The removal is for more than 10 consecutive school days; or(2) The child has been subjected to a series of removals that constitute a pattern- (a) Because the series of removals total more than 10 school days in a school year;(b) Because the child's behavior is substantially similar to the child's behavior in previous incidents that resulted in the series of removals; and(c) 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.B.(1) The public agency determines on a case-by-case basis whether a pattern of removals constitutes a change of placement.(2) This determination is subject to review through due process and judicial proceedings.8.State Enforcement MechanismsFor enforcement of a written agreement reached as a result of mediation or resolution meeting, the SEA offers to parents and adult students the State complaint investigation procedure. The State complaint investigation procedure is not mandatory and will not delay or deny a party the right to seek enforcement of the written mediation agreement or resolution meeting agreement in a court of competent jurisdiction or in a district court of the United States. [34 CFR 300.537 provides the State the option of including enforcement.]
05-071 C.M.R. ch. 101, § XVII