22-000-009 Vt. Code R. § 4300-4312

Current through February, 2020
Section 22-000-009-4300-4312 - Discipline Procedures for Children Who are Not Eligible for Special Education Services, but Who Are or May Be Qualified Individuals with Disabilities under Section 504 of The Rehabilitation Act of 1973 (29 U.S.C. Section 794; 34 C.F.R. Section 104 et seq.)

In addition to the general disciplinary procedures found within Rule 4311, and in accordance with 34 C.F.R. §104.36, the following procedures apply to children who are qualified individuals with disabilities as defined by Section 504 of the Rehabilitation Act of 1973 (hereinafter Section 504 ).

(1) A Section 504 child shall not be removed from his or her current educational placement for disciplinary reasons for more than 10 consecutive school days in a school year unless the following procedures have been completed:
(a) Are-evaluation, as defined by 34 C.F.R. §104.35; and
(b) A determination by the child's Section 504 team that the conduct is not a manifestation of his or her disability.
(2) A Section 504 child shall not be removed from his or her current educational placement for disciplinary reasons for more than 10 cumulative days in a school year when the removals constitute a change in placement as defined in Rule 2360.2(d)(1) unless the following procedures have been completed:
(a) Are-evaluation, as defined by 34 C.F.R. §104.35; and
(b) A determination by the child's Section 504 team that the conduct is not a manifestation of his or her disability.
(3) When it is determined by a child's 504 team that the conduct is not a manifestation of the child's qualifying disability, the child may be disciplined in the same manner, and subject to the same disciplinary consequences, as a non-disabled child, including suspension or expulsion without the provision of services.
(4) When it is determined by a child's Section 504 team that the conduct is a manifestation of his or her qualifying disability, a change in program or placement may be implemented by the child's Section 504 team and the child's Section 504 team may respond to the conduct by designing, amending and/or enforcing a plan of behavior management.
(5) If, at the time of the occurrence of conduct that gives rise to consideration of removal of a child from his or her current educational placement for more than 10 consecutive school days in a school year, the child is believed to be a qualified individual with a disability under Section 504, a Section 504 evaluation shall be completed prior to imposition of the removal.
(a) If the evaluation results in a determination that the child is a qualified individual with a disability under Section 504, the discipline procedures in this rule shall be followed.
(b) If the evaluation results in a determination that the child is not a qualified individual with a disability under Section 504, the discipline procedures in Rule 4311 shall be followed.
(6) If, at the time of the occurrence of conduct that gives rise to consideration of removal of a child who is believed to be a qualified individual with a disability under Section 504 for more than 10 cumulative school days in a school year, and the removals constitute a change in placement as defined in Rule 2360. 2(d)(1), a Section 504 evaluation shall be completed prior to imposition of the removal.
(a) If the evaluation results in a determination that the child is a qualified individual with a disability under Section 504, the discipline procedures in this rule shall be followed.
(b) If the evaluation results in a determination that the child is not a qualified individual with a disability under Section 504, the discipline procedures in Rule 4311 shall be followed.
(7) If a child who is a qualified individual under Section 504 possesses or carries a weapon, as defined in Rule 4313. 9(a), to school or at a school function, he or she may be placed in an interim alternative educational setting (IAES) in accordance with the procedures set forth in Rule 4313.9 and Rule 1253. The child's 504 team shall determine the IAES, and the services provided in the IAES, in accordance with the procedures set forth in Rule 4313.9. It is the intent of this section to discipline a child who is a qualified individual under Section 504 in the same manner as children who are eligible for special education when they possess weapons at school or at school functions.
(8) When a parent disagrees with disciplinary action taken by a LEA, the parent may request an impartial due process hearing, and the procedures in Rules 2365.1.6(c) through 2365.1.9 shall apply. In addition to or in lieu of a due process hearing a parent may file a complaint with the U.S. Department of Education Office for Civil Rights.
(9) A hearing officer may order a change in the placement of a child who is a qualified individual under Section 504 to an appropriate IAES for not more than 45 calendar days, if the hearing officer, in an expedited due process hearing:
(a) Determines that the LEA has demonstrated by substantial evidence, which for purposes of this section shall mean a preponderance of the evidence, that maintaining the current placement of the child is substantially likely to result in injury to the child or others;
(b) Considers the appropriateness of the child's current placement;
(c) Considers whether the LEA has made reasonable efforts to minimize the risk of harm in the child's current placement, including the use of supplementary aids and services; and
(d) Determines that the IAES that is proposed by school personnel will enable the child to continue to progress in the general curriculum. The services provided to and modifications made for the child in the IAES shall be designed to address and prevent the child's offending behavior.
(10) This Rule (4312) shall not apply when a responsible agency takes disciplinary action against a Section 504 child if:
(a) The misconduct for which the child is being disciplined pertains to the use or possession of illegal drugs or alcohol at school or at a school function; and
(b) The child is currently engaging in the use of alcohol or illegal drugs.

In this instance, the Section 504 child shall be disciplined in accordance with Rule 4311.

22-009 Vt. Code R. § 22-000-009-4300-4312