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2461a AdmGuide_Disciplining Special Education Students

When the behavior of a student who is eligible under the IDEA is such so as to justify serious disciplinary action,
school personnel may consider any unique circumstances, on a case-by-case basis, when determining whether to
order a change in placement for a student with a disability who violates a code of student conduct. When a student
violates the school's code of conduct, the school must consider whether the disciplinary removal will result in a
change in placement. Generally, a student may be subject to in-school or out-of-school suspension for a
cumulative total of ten (10) days in any one (1) school year without resulting in a change of placement and without
having to provide services during the suspension. Federal law permits a suspension of ten (10) consecutive school
days for one (1) incident. However, Wisconsin law only allows a ten (10) days suspension if a notice of
expulsion hearing has been sent to the student and the parents. If not, five (5) days is the longest suspension
allowed if no notice of expulsion is sent. If the disciplinary removal is for more than ten (10) consecutive school
days, or otherwise results in a change of educational placement, the School District must conduct a manifestation
review, as discussed below. Under certain circumstances, the student may be unilaterally placed in an Interim
Alternative Education Placement, for possession of a weapon or illegal drugs at school, and the third form of
disciplinary action is expulsion from school. Each will be dealt with in the following guidelines.
 
Short-Term Removals/Suspensions
 
The principal may remove a student from his/her current placement for short-term periods not to exceed five (5)
consecutive days, or ten (10) consecutive days if a notice of expulsion is sent (see "expulsion" below), for one (1)
incident during the school year. If the total cumulative days exceed ten (10) days during a school year, services
must be provided. Such short-term suspensions from a program are not considered a change in educational
placement unless they produce a pattern, and generally the procedural safeguards associated with the change of
placement are not required. The local educational agency (LEA) representative, however, should stay alert to the
possible need to convene a student's IEP Team to review the appropriateness of the current IEP and its
implementation and to determine whether or not the behavior and its frequency creates the need for, or review of, a
Functional Behavior Assessment (FBA) and Behavior Intervention Plan (BIP) (see below). An FBA and BIP should
be used proactively to address behavior concerns prior to discipline; this policy addresses the required use of a
FBA or BIP in the context of discipline.
 
Interim Alternative Educational Placement
 
A student may be placed in an Interim Alternative Educational Setting (IAES) under one of the following conditions:
 
    A. An IAES has been made a part of the student's IEP.
 
    B. The student has been found to possess or carry a weapon, or possess or use illegal drugs, or sell or solicit
        the sale of a controlled substance, or inflict serious bodily injury upon another person while at school, on
        school premises or at a school function (see below).
 
        The District LEA may unilaterally place a student in an IAES for forty-five (45) school days, regardless of
        whether the behavior was a manifestation of the student's disability, if the student is found to have engaged in
        any of the conduct listed in paragraph B, above. For the purposes of paragraph B, the following definition shall
        apply:
 
            1. The definition of "weapon" is as follows: A weapon, device, instrument, material, or substance animate
                or inanimate, that is used for, or is readily capable of causing death or serious bodily injury, except that
                such term does not include a pocket knife with a blade less than two and one-half (2 1/2) inches long.
 
            2. The definition of "serious bodily injury" is as follows: The term "serious bodily injury" means bodily injury
                which 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.
 
            3. The definition of "controlled substance" is as follows: The term "controlled substance" means a drug or
                other substance identified under schedule I, II, III, IV or V in Section 812(c) of Title 21 of the U.S. Code.
 
            4. The definition of illegal drug is as follows: The term "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.
 
        The IEP Team should determine the IAES and it should be a more restrictive placement in which the IEP
        goals may be served. On the day a student is placed in an IAES for violation of the weapon or drug provision,
        the LEA representative shall notify the parents of the decision and provide the parents with a copy of the
        procedural safeguards to which they are entitled (use the procedural safeguards produced by the State
        Department).
 
        If the student engages in conduct which will result in a change in placement to an IAES (including a unilateral
        forty-five (45) day placement under paragraph B), the student's IEP Team must be convened no later than ten
        (10) days after the decision to change the student's placement to conduct a manifestation determination (see
        below).
 
        If the parents appeal a student's placement in an IAES under this section, the student shall remain in the
        IAES placement pending the decision of a hearing officer or until the expiration of the forty-five (45) day
        placement, whichever occurs first, unless the parents and the LEA agree otherwise.
 
    C. The student is considered to be dangerous to himself/herself and/or others as determined by an independent
        hearing officer through an expedited due process hearing. The IEP Team may, however, choose to go directly
        to circuit court to obtain authority to remove a student to an IAES without involving a hearing officer.
 
        If the LEA believes that maintaining the current placement of a student is substantially likely to result in injury
        to the student or to others, the LEA may request a hearing to initiate a change in placement. If the hearing
        officer finds that maintaining the current placement of a student is substantially likely to result in injury to the
        student or to others, the hearing officer may order a change in placement to an appropriate IAES for forty-five
        (45) school days.
 
        In requesting an expedited hearing under this section, the LEA representative will provide the hearing officer
        with sufficient data for him/her to determine that:
 
            1. The school has demonstrated that keeping the student in the current placement would prove
                substantially likely to result in injury to the student or to others;
 
            2. The current placement is appropriate;
 
            3. The school has made reasonable efforts to minimize the risk of harm in the current placement, including
                the use of supplementary aids and services;
 
            4. The IAES meets the following requirements:
 
                    a. It has been designed by the student's IEP Team
 
                    b. It will enable the student to continue to participate in the general curriculum, although in another
                        setting, and continue to receive the related services and modifications in the student's IEP that are
                        designed to enable him/her to meet the IEP goals
 
                    c. It includes services and modifications designed to address the behavior which caused the request
                        for the IAES or any other behavior that results in the student being removed from his/her
                        educational placement.
 
                        The services and modifications must be so designed as to prevent the behavior from recurring.
 
        If the student has been placed in an IAES by a hearing officer because of danger to the student or others, the
        student is to continue in that placement pending the outcome of any appeal hearing or the expiration of the
        forty-five (45) school days, whichever happens first. If the forty-five (45) day placement expires prior to a
        decision by the hearing officer concerning the causal relationship dispute, the school may ask for an
        expedited hearing in order to determine whether the student should continue in another forty-five (45) day
        interim alternative educational placement. The school cannot unilaterally lengthen a forty-five (45) school day
        placement.
 
        Should the student's behavior be so serious that the IEP Team believes that the student cannot continue to
        be educated in a public school setting, and the parents agree, a forty-five (45) calendar day IAES may be
        used to determine if other services within the community or in a residential setting could appropriately
        address his/her needs.
 
Expulsion
 
If the District recommends that the student should be expelled from school, the parents and student are to be
notified in writing of the request for an expulsion hearing, accompanied by a notice of parentals rights, which
delineates all of the rights and procedural safeguards to which the parents and students have access in connection
with an expulsion. Within ten (10) school days following the decision to seek expulsion, the IEP Team is to
convene to conduct a manifestation determination to determine if the misconduct is related to the student's
disability (see below).
 
Manifestation Determination
 
Whenever the School District contemplates changing the placement of a student with a disability because of a
violation of the code of student conduct, the LEA must determine whether the conduct subject to discipline is a
manifestation of the student's disability. Within ten (10) school days of any decision to change the placement, the
LEA, the parents, and relevant members of the IEP Team (as determined by the parents and the LEA) shall review the student's file, including the student's IEP, any teacher observations, and any relevant information provided by
the parents to determine:
 
    A. If the conduct in questions was caused by, or had a direct and substantial relationship to, the student's
        disability; or
 
    B. If the conduct in question was the direct result of the LEA's failure to implement the IEP.
 
If the LEA, the parents and the relevant members of the IEP Team determine that either of the above statements
are applicable for the student, the conduct shall be determined to be a manifestation of the student's disability. If it
is determined that the conduct was a manifestation of the student's disability, then the IEP Team shall:
 
    A. Conduct an FBA and implement a BIP (see below), provided that the LEA has not conducted such an
        assessment prior to the behavior that resulted in change in placement.
 
    B. If a BIP has previously been developed, the LEA will review the BIP and modify it as necessary to address
        the behavior.
 
    C. The student must be returned to the placement from which the student was removed, of a weapon, or
        possession or use of illegal drugs, or sale or solicitation of a controlled substance, or for inflicting serious
        bodily injury upon another person while at school, on school premises or at a school function. The IEP team
        may determine as a team to revise the IEP.
 
If the IEP Team determines that the behavior is not a manifestation of the student's disability, the school may
apply disciplinary procedures to the same extent that it applies to the student's nondisabled peers. The IEP Team
is to ensure that a copy of the student's special education records and disciplinary records are forwarded to the
Board of Education for their consideration in the expulsion hearing. If the parents appeal the manifestation
determination, placement, pending appeal, is the disciplinary placement as determined by the District.
 
If the student is expelled, the District has a continuing responsibility for providing alternative educational service to
the student. The IEP Team shall consider the nature and extent of educational services to be provided in order to
make available a free and appropriate education (FAPE) to the student.
 
FBA and BIP
 
If it is determined that the conduct of a student with a disability was a manifestation of the student's disability, then
the IEP Team will either conduct an FBA and implement a BIP, or review the existing BIP.
 
The FBA should include:
 
    A. The specific behavior(s) of concern, including the intensity, frequency, and duration;
 
    B. The setting where the behavior usually occurs, e.g., cafeteria, transition periods, bus, regular classroom,
        etc.;
 
    C. The circumstances antecedent to the behavior;
 
    D. The consequences of the behavior;
 
    E. Conditions that may impact the behavior, e.g., medications, diet, schedule, etc.;
 
    F. The apparent purpose of the behavior;
 
    G. Modifications/interventions attempted to change the behavior; and
 
    H. Behaviors that would serve as functional alternatives to the target behavior.
 
In addition, a BIP may need to be developed by the IEP Team and made a part of the student's IEP.  The BIP
should clearly describe the target behavior(s) and the appropriate behavior that is sought, the positive
reinforcements that will be used to modify the target behavior, and the progressive consequence that will be
invoked if the target behavior does not change. The plan should address methods such as time-out, safe-haven,
and more restrictive placements from the regular classroom when conditions warrant, etc., all of which focus on
remediating or improving a student's behavior rather than on disciplining behavior. The plan should also describe
who will be involved in the intervention (classroom teacher, aide, specialists), their respective roles and
responsibilities, and how the data will be collected to assess the effectiveness of the intervention.
 
SUSPENSION* OR REMOVAL TO ALTERNATIVE EDUCATIONAL SETTING**
 
No further discipline contemplated                     Further discipline contemplated
and removal is for ten (10) days or less              within ten (10) days of suspension
(strong encouragement to review                       or removal.
and address behavior and the IEP if
necessary).
 
                                                                     In the cases of removal to alternative educational
                                                                     setting for more than ten (10) school days, the LEA,
                                                                     the parents and relevant members of the IEP Team
                                                                     must also consider causal relationship (manifestation
                                                                     determination).*
 
                                                                     If the LEA, the parents, and relevant members of the
                                                                     IEP Team determine that the conduct subject to discipline
                                                                     was a manifestation of the student's disability, then the
                                                                     LEA must convene an IEP Team to develop/review the
                                                                     functional behavior assessment plan (FBA) and appro-
                                                                     priate behavior interventions (BIP).
 
*Suspensions of ten (10) school days or less, accumulating to no more than ten (10) days per school year may be
  unilaterally levied by the school.
 
**Removal to an alternative educational setting for a maximum of forty-five (45) calendar days unilaterally if the
  student brings a weapon to school or to a school function, or knowingly possesses or uses illegal drugs, or sells,
  or solicits the sale of a controlled substance while at school or at a school function.
 
CAUSAL RELATIONSHIP MANIFESTATION DETERMINATION*
 
Student violates code of conduct
 
School decides to request expulsion or change to interim alternative educational placement for more than ten (10)
days
 
Same day
 
School notifies parents of decision and procedural safeguards
 
Within ten (10) school days:
 
The LEA, parents and relevant members of the IEP Team must consider and determine causal relationship
between the student's disability and the conduct subject to discipline.
 
    Manifestation determination:
 
        1. Review the student's file (including relevant information from parents);
        2. Observations of the student;
        3. Student's IEP and placement;
        4. Whether the conduct in question was caused by, or had a direct and substantial relationship to, the
            student's disability;
        5. Whether the conduct in question was the direct result of the LEA's failure to implement the IEP.
 
*This determination may be made at the same IEP Team meeting where the functional behavioral assessment and
behavior plan are discussed.
 
Causal Relationship
 
Causal relationship exists if the IEP Team answers "yes" to #4. or #5. If there is a causal relationship, then the
IEP Team must conduct a FBA and BIP (if no FBA/BIP exists), or review the existing BIP and modify it as
necessary to address the behavior; and return the student to the placement from which s/he was removed (unless
the student is subject to a unilateral forty-five (45) days placement).
 
No Causal Relationship
 
Follow school's expulsion procedures (see AG 5610). Send special education records and disciplinary records to
be considered in expulsion hearing. 
 
Parents file request for due process hearing. (If the student has been placed in an interim educational placement
for weapons or drugs, the student remains there unless the forty-five (45) calendar day period expires.)
 
Hearing officer reviews the causal relationship decision (according to above criteria).
 
Change in Placement By Hearing Officer of a Student Who Is Dangerous
 
Hearing officer may assign student to an appropriate interim alternative educational setting for not more than forty-
five (45) calendar days IF the school can demonstrate by substantial evidence:
 
    A. Current placement is substantially likely to result in injury to self/others;
 
    B. Appropriateness of current placement;
 
    C. School has made reasonable efforts to minimize risk of harm in current placement, including the use of
        supplementary aids and services; and
 
    D. Interim alternative educational setting is:
 
            1. Determined by the IEP Team
 
            2. Will enable the student to continue to participate in the general curriculum (although in another setting)
 
                and
 
               Continue to receive services and modifications to enable student to meet IEP goals;
 
            3. Will include services and modifications designed to address behavior so that it does not re-occur.
 
The hearing is an expedited procedure.
 
Approved/Adopted:  July 13, 2009
 
 
ĉ
Shari Weinstock,
Jul 28, 2011, 1:48 PM