Morgan County Schools
Bylaws & Policies
 

5605 - DISCIPLINE FOR SPECIAL EDUCATION STUDENTS

According to WV Code 18A-5-1, county boards of education are required to incorporate and implement a preventive discipline program. This may include the Responsible Students through School-Wide Positive Behavior Support Program (RS-SWPBS). If a student's behavior, regardless of the student's disability, impedes his/her learning or the learning of others, the IEP Team shall consider the use of strategies, including positive behavioral supports and interventions, to address the behavior. If the IEP Team determines that such services or supports are needed, they shall be included in the IEP and be implemented.

Students with disabilities who are subject to disciplinary actions by the County are entitled to all of the due process rights afforded students without disabilities under WV Code 18A-5-1a. In addition to these rights, IDEA 2004 provides added procedure and safeguards to a student with a disability whom the County is considering removing from his/her current educational placement for disciplinary reasons. When determining whether a change of placement is appropriate, the County shall consider any unique circumstances on a case-by-case basis. These procedures do not prevent County personnel from maintaining a safe environment conducive to learning that is critical for all students.

Disciplinary Change of Placement

A disciplinary change of placement is a removal from the student's current educational placement for more than ten (10) consecutive school days or series of removals that constitute a pattern. A pattern is established because the series of removals total more than ten (10) cumulative school days in a school year, that student's behavior is substantially similar to his/her behavior in the previous incident that resulted in the series of removals, and additional factors such as the length of each removal, the total amount of time the student is removed, and the proximity of the removals to one another are present. Whether a pattern of removals constitutes a change of placement will be determined on a case-by-case basis by school personnel. These determinations are subject to due process and judicial review.

In determining the number of cumulative days a student has been removed, consideration must be given to days of removal due to in-school suspension, partial day suspensions or bus suspensions. An in-school suspension is not considered as a day of suspension for purposes of this policy as long as the student is afforded the opportunity to continue to participate in the general curriculum, continue to receive services specified on the student's IEP and continue to participate with students without disabilities to the extent they would have in their current placement. Portions of a school day that a student has been suspended may be considered as removal in regard to determining whether there is a pattern of removals as defined in the preceding paragraph.

Whether a bus suspension counts as a day of suspension depends on whether the bus transportation is a part of the student's IEP. If bus transportation is a part of the student's IEP, a bus suspension must be treated as a suspension under this policy unless the County provides the bus service in some other way, because transportation is necessary for the student to obtain access to the location where services will be delivered. If bus transportation is not a part of the student's IEP, a bus suspension is not a suspension under this policy. In these cases, the student and the student's parent have the same obligation to get the student to and from school as a student without disabilities who has been suspended from the bus. However, the County should consider whether the behavior on the bus is similar to behavior in a classroom that is addressed in an IEP and whether the student's behavior on the bus should be addressed in the IEP or a behavior intervention plan.

The following sections delineate the actions a County shall take when the removal is or is not a change of placement.

Section 1 County Actions When Removals Are Not a Change of Placement

School personnel may remove any student, including a student with a disability, for up to ten (10) consecutive school days in a school year if the student violates the County's code of student conduct. During the initial ten (10) cumulative days of removal, services need not be provided to a student with a disability unless services are provided to students without disabilities. These removals must be applied to the same extent as they are applied to students without disabilities.

School personnel may remove a student with a disability for up to ten (10) consecutive school days per incident for separate acts of misconduct in a school year as long as the removals do not constitute a pattern resulting in a change of placement.

For each subsequent removal beyond ten (10) cumulative school days in a year that is not a change in placement, school personnel in consultation with at least one (1) of the student's teachers must determine the extent to which services are needed to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student's IEP.

County Actions When Considering a Disciplinary Change of Placement

A manifestation determination is required if the County is considering removing a student with a disability from his/her educational placement for disciplinary reasons beyond ten (10) consecutive school days or more than ten (10) cumulative school days when the County deems that a pattern exists. A manifestation determination is defined as a review of the relationship between the student's disability and the behavior subject to disciplinary action. Whenever considering disciplinary action that will result in a change of placement, the County shall:

 

A.

provide same day written notice of the removal and the procedural safeguards notice to the parent/adult student of the disciplinary action to be taken; and

   
 

B.

within ten (10) school days of any decision to change placement, meet with the parent and relevant members of the IEP Team (as determined by the parent and County) to conduct a manifestation determination by reviewing all pertinent information in the student's file, including the student's IEP, any teacher observations, and any relevant information provided by the parents to determine:

   
 

1.

if the conduct in question was caused by, or had a direct and substantial relationship to the student's disability; or

     
 

2.

if the conduct in question was the direct result of the County's failure to implement the IEP.

If the County, the parent and relevant members of the IEP Team determine that either of the conditions described in 1. and 2. were met, the conduct must be determined to be a manifestation of the student's disability, and the County shall take immediate steps to remedy those deficiencies.

County Actions When Conduct is Determined to Be a Manifestation of the Student's Disability

The IEP Team shall:

 

A.

conduct a FBA and develop a BIP if one has not been completed; or

     
 

B.

review the existing BIP and revise as needed to address the current behavior(s); and

     
 

C.

return the student to the placement from which the student was removed unless the parent and the County agree to a change of placement as part of the modification of the BIP as determined by the IEP Team.

County Actions When Conduct is Determined Not to Be a Manifestation of the Student's Disability

 

A.

determine appropriate disciplinary action, which may include relevant disciplinary procedures applicable to students without disabilities;

   
 

B.

convene IEP Team to develop an IEP that specifies the educational services to be provided to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student's IEP; and

   
 

C.

provide, as appropriate, a functional behavioral assessment and behavior intervention services and modifications that are designed to address the behavior violation so that it does not recur.

District Actions When a Behavior Violation Involves Weapons, Illegal Drugs or Serious Bodily Injury

Regardless of whether the behavior is a manifestation of the student's disability, the County may remove a student to an interim alternative educational setting (IAES) for not more than forty-five (45) school days, if the student:

 

A.

carries or possesses a weapon at school, on school premises or at a school function; or

   
 

B.

knowingly possesses, carries, or uses illegal drugs or sells or solicits the sale of a controlled substance, while on school premises or at a school function; or

   
 

C.

inflicts serious bodily harm to another person at school, on school premises, or at a school function.

The County shall use the following definitions when removing students because of the above special circumstances:

 

A.

Weapon 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 a term does NOT include a pocket knife with a blade of less than two and one-half (2 1/2) inches in length (18 U.S.C. Section 930 (g)(s)).

     
 

B.

Illegal drug a controlled substance, a drug or other substance identified under schedules I, II, III, IV or V in Section 202(c) of the Controlled Substance Act (21 U.S.C. 812 (c)).

   
 

An illegal drug does not include a controlled substance that is legally possessed or used under the supervision of a licensed health care professional or used under any other authority under that Act or under any other provision of Federal law.

   
 

C.

Serious bodily harm a bodily injury that involves:

   
 

1.

substantial risk of death;

   
 

2.

extreme physical pain;

   
 

3.

protracted and obvious disfigurement; or

     
 

4.

protracted loss or impairment of the function of the bodily member, organ or mental faculty.

The IAES must enable the student to receive educational services and participate in the general education curriculum, (although in another setting) and to progress toward meeting the goals set out in the student's IEP. As appropriate, the setting must include a functional behavioral assessment and behavioral intervention services and modifications to address the behavior violation so that it does not recur.

Hearing Officer Actions Resulting in a Change of Placement

Through an expedited due process hearing, County administrators may ask a WVDE hearing officer to remove a student with a disability to an appropriate IAES if the County believes that maintaining the current placement of the student is substantially likely to result in injury to the student or others. The hearing officer may order a change of placement to an appropriate IAES for not more than forty-five (45) school days. This procedure may be repeated if the County believes the student would be dangerous if returned to the original placement.

FAPE Requirements in an Interim Alternate Educational Setting (IAES)

If the student's placement will change to an IAES, the IEP Team shall create/select an IAES that enables the student to:

 

A.

continue to receive education services so as to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in his/her IEP; and

     
 

B.

receive, as appropriate, an FBA and behavioral intervention services to address the behavior violation so that it does not recur.

Additional Disciplinary Considerations

 

A.

Requesting an Expedited Hearing

   
 

An expedited hearing is a hearing conducted by a WVDE special education due process hearing officer, that occurs within twenty (20) school days of the request with a decision rendered within ten (10) school days of the hearing.

   
 

An expedited due process hearing may be requested if:

   
 

1.

the parent/adult student disagrees with:

   
 

a.

the manifestation determination decision; or

   
 

b.

any decisions of the IEP Team regarding a change of placement during a disciplinary proceeding; or

   
 

c.

the decision regarding the student's placement in an IAES.

   
 

2.

the County believes that maintaining the current placement is substantially likely to result in injury to the student or to others.

   
 

A decision of a hearing officer in an expedited hearing may be appealed to Federal or State District court.

   
 

When a request for an expedited hearing has been made, the student shall remain in the IAES pending the decision of the hearing officer or until the expiration of the disciplinary removal, whichever occurs first unless the parent and the State Education Agency (SEA) or County agree otherwise.

   
 

See Chapter 11 of the West Virginia Board of Education Policy 2419 for an explanation of regular and expedited due process hearing rights and procedures.

   
 

B.

Parent/Adult Student Request for Evaluation of a Disciplined Student

   
 

If a request for an evaluation of a student who is not currently eligible for special education is made during the period in which the student is subject to disciplinary measures, the evaluation must be conducted in an expedited manner. Pending the results of the evaluation, the student remains in the educational placement determined by County officials, which can include suspension or expulsion without educational services if services cease for students without disabilities.

   
 

1.

if the student is subsequently determined eligible for special education, the County will immediately:

   
 

a.

convene an IEP Team meeting to develop an IEP.

   
 

b.

conduct a manifestation determination.

   
 

1)

If the behavior was caused by or had a direct and substantial relationship to the student's disability, the disciplinary action shall be set aside, and the student shall be provided appropriate educational services in the LRE.

     
 

2)

If the behavior was not caused by or did not have a direct and substantial relationship to the student's disability, the student is subject to the disciplinary action as determined by school personnel, but s/he is still entitled to receive FAPE, which must be defined by the IEP Team. Educational services cannot cease for more than ten (10) school days in a school year. Educational services shall be provided to the extent necessary to allow the student with a disability access to the general education curriculum and the opportunity to advance toward achieving the goals set out in his/her IEP.

   
 

2.

If the evaluation team determines that the student is not a student with a disability and is not eligible for special education, s/he will be subject to the same disciplinary actions as all other students without disabilities who engage in comparable behaviors.

   
 

C.

Protections for Students Not Yet Eligible for Special Education

   
 

A student who has not been determined eligible for special education and related services and who has violated any rule or code of conduct of the County may assert the protections of the IDEA 2004 if the County had knowledge that the student was a student with a disability before the behavior that precipitated the disciplinary action occurred.

   
 

1.

Basis of knowledge

   
 

With limited exceptions, which are described in item 2. Of this section, the County will be deemed to have knowledge that an individual is a student with a disability if one or more of the following is true:

   
 

a.

The parent/adult student has expressed concern to County professional personnel that results in written documentation that the student may need special education and related services.

     
 

b.

The parent/adult student has requested in writing that the student be evaluated for special education.

   
 

c.

The student's teacher or other County personnel have expressed concern about a pattern of behavior demonstrated by the student directly to the director of special education or to other County supervisory personnel in accordance with the County's established child find system and referral process.

   
 

2.

No basis of knowledge

   
 

The County will be deemed not to have knowledge that an individual is a student with a disability if one or more of the following is true:

   
 

a.

An evaluation was conducted and a determination was made that the student did not have a disability

   
 

b.

The parent/adult student did not give written consent for an evaluation; or

   
 

c.

The parent/adult student refused special education services.

   
 

If the County did not have a basis of knowledge that a student was a student with a disability prior to taking disciplinary measures, the student is subjected to the same disciplinary measures applied to all other students who engage in comparable behaviors.

   
 

D.

Referrals to and Action by Law Enforcement and Judicial Authorities

   
 

The County may report a crime committed by a student with a disability to appropriate authorities. The IDEA 2004 does not prevent State law enforcement or judicial authorities from exercising their responsibilities, with regard to the application of Federal and State law, for crimes committed by a student with a disability.

   
 

If a student brings a firearm to school, law enforcement must be contacted pursuant to the Gun-Free Schools Act.

     
   
 

If the County reports a crime, it will ensure that copies of the special education and disciplinary records of the student are provided to the appropriate law enforcement authorities for their consideration, to the extent the release of records is permitted by the FERPA and WV Board of Education policy 4350. Generally, the release of records requires parent or adult student consent.

   
 

E.

Transfer of Discipline Records

   
 

WV Code 18A-5-1a requires that whenever a student transfers to a new school in West Virginia, the principal of the school from which the student transfers shall provide written record of any disciplinary action taken against the student to the principal of the school to which the student transfers. WV Board of Education policy 4350 describes the procedures and record requirements for transfer of records between WV schools.

IDEA 2004
WV Code 18A-5-1 and 18A-5-1a
State Board policies 2419 and 4373

Revised 8/7/12

© Neola 2012