5605 - DISCIPLINING STUDENTS WITH DISABILITIES

School District Of Westfield

Administrative Guidelines

5605 - DISCIPLINING STUDENTS WITH DISABILITIES

When the behavior of a student 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 for a five(5) consecutive school day suspension, which may be extended an additional ten (10) days if a notice of expulsion hearing has been sent to the student and the parents. 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 parental 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 or multiple separate incidents of conduct in question 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.

The student must be returned to the placement from which the student was removed, unless the student is subject to a forty-five (45) day placement in an IAES for possession 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.

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 appropriate 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.