Chapter 8: Discipline

    3301-51-05(K)(20)

    8.1 General - 3301-51-05(K)(20)(b)(i)

    8.2 Code of Conduct Violations: Short Term Removals - Not a Change of Placement - 3301-51-05(K)(20(b)(i)and (ii)

    8.3 Code of Conduct Violations: Removals of More Than 10 Cumulative School Days - Change of Placement]]

    8.4 Special Circumstances: Removals Involving Drugs, Weapons, or Serious Bodily Injury

    8.5 Manifestation Determination - 3301-51-05(K)(20)(e)and (f)

    8.6 Protections for Children Not Yet Eligible for Special Education and Related Services]] - 3301-51-05(K)(24)(a-d)

    8.1 General

    State Performance Plan (SPP):

    (See Overview in the Introduction for more information on the SPP.)

    SPP 4:
    Rates of suspension/expulsion
    A: Percent of districts identified by the state as having a significant discrepancy in the rate of suspensions and expulsions of children with disabilities for greater than 10 days in a school year; and
    B: Percent of districts identified by the state as having a significant discrepancy in the rates of suspensions and expulsions of greater than 10 days in a school year of children with disabilities by race and ethnicity. (20.U.S.C. 1416 (a)(3)(A); 1412(a)(22)) (Significant discrepancies in discipline rates are those in which the rates of suspensions and expulsions for children with disabilities exceed those for typical children by at least one percent.)

    Intent:

    To ensure that a child with a disability is not denied a free and appropriate public education (FAPE) in the least restrictive environment (LRE) due to a behavior that may be the result of the child's disability.

    Timelines:

    See timelines by specific topic.

    REQUIREMENT

    3301-51-05
    (K) Conflict resolution
    (20) Authority of school personnel
    (b) General
    (i) School personnel under this rule may remove a child with a disability who violates a code of student conduct from the child’s current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than ten consecutive school days in a school year (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 paragraph (K)(26) of this rule).

    GUIDANCE

    General

    The terms discipline and punishment are often used interchangeably, but they do not have the same meaning. Discipline is instruction. Discipline teaches or reinforces skills that have a long-term positive effect on a child's behavior. Punishment is a "quick fix" and often does not solve a problem and, used in isolation, stops only the immediate behavior.

    School districts implementing effective school-wide behavioral support systems are equipped to implement the requirements of IDEA 2004 proactively.

    The rights specific to children with disabilities are included in the discipline provisions of IDEA 2004, as well as in provisions for developing a child's IEP.

    The IEP provisions require the IEP team to address behavior for "a child whose behavior impedes the child’s learning or that of others," and also requires the "use of positive behavioral interventions and supports and other strategies to address that behavior."

    Short term removals of not more than 10 consecutive school days in a school year may be utilized for children with disabilities without the provision of individualized education program (IEP) services.

    The functional behavior assessment (FBA) and behavioral intervention plan (BIP) that are mandatory in certain disciplinary situations should be viewed as tools to promote desirable behaviors in children. IEP teams use the FBA and BIP to proactively address the individual needs of children who exhibit challenging behavior. Used in this way, these processes compliment proactive, school-wide positive behavioral supports.

    In-school suspensions
    Removing a child from his or her assigned classroom for inappropriate behavior may constitute a removal. In-school suspensions are not counted if the child:

    • Is afforded the opportunity to continue to make appropriate progress in the general curriculum; and
    • Continues to receive the services designated on the IEP.

    However, if a child is removed from his or her current setting for part of a school day and is not afforded these benefits, the partial removals count toward the 10 cumulative school days. Any partial day of removal counts as a full day for the purposes of the cumulative 10-day rule.

    Transportation
    If transportation is included as a related service on the child’s IEP and is not being provided due to disciplinary removal(s), the child’s IEP is no longer being implemented and the total number of days missed in instruction must be counted in the 10 consecutive days of removal.

    If the child is transported to his or her special services or programs by other means (e.g., school reimbursed transportation by parents or relative, or by taxi, van or contracted services paid for by the school), the day(s) would not count toward the cumulative 10-day total.

    If a child's IEP does not include transportation as a related service and the child is removed from regular transportation and services are interrupted because the child is not able to attend school, the district does not count those days toward the 10 cumulative days of removal. This may, however, be a denial of a free appropriate public education (FAPE). The child's IEP team will need to determine if the child is being denied FAPE and if they can take appropriate steps to ensure that the child is provided FAPE.

    Districts should consider whether the behavior on the bus is similar to behavior in a classroom that is addressed in an IEP, and whether the child’s behavior on the bus should be addressed in the IEP or in a behavioral intervention plan for the child (Federal Register August 14, 2006 pg. 46715).

    REQUIREMENT

    3301-51-05
    (K)Conflict resolution
    (20) Authority of school personnel
    (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 conduct, the school district must notify the parents of the decision and provide the parents the procedural safeguards notice described in paragraph (I) of this rule.

    3301-51-05
    (H) Prior notice by the school district; content of notice
    (3) Notice in understandable language
    (a) The notice required under paragraph (H)(1) of this rule must be:

    (i) Written in language understandable to the general public; and
    (ii) Provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.

    (b) If the native language or other mode of communication of the parent is not a written language, the school district must take steps to ensure:

    (i) That the notice is translated orally or by other means to the parent in the parent’s native language or other mode of communication;
    (ii)That the parent understands the content of the notice; and
    (iii) That there is written evidence that the above requirements in paragraphs (H0(3)(b)(i) and (H)(3)(b)(ii) of this rule have been met.

    GUIDANCE

    Procedural safeguards notice

    • School personnel must notify the parents the day the decision is made to remove a child, if that removal constitutes a change of placement, and must provide the parents the procedural safeguards notice Whose IDEA Is This? in the parents' native language, unless it is clearly not feasible to do so. If it is not feasible, school districts must ensure that the written notice is translated in written form or orally or by other means, so the parents understand the content of the notice.
    • Districts must make good faith efforts to notify the parents, and written evidence of the attempts must be kept. Efforts should include multiple methods and multiple attempts, such as phone calls, mail, home visits or using parent mentors. Districts should document attempts.

    REQUIREMENT

    3301-51-05
    (K)Conflict resolution
    (20) Authority of school personnel
    (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 rule, is appropriate for a child with a disability who violates a code of student conduct.

    GUIDANCE

    Case by case determination: unique circumstances

    Factors such as a child’s disciplinary history, ability to understand consequences and expression of remorse, as well as supports provided to a child with a disability before the violation of a school code, could be unique circumstances considered by school personnel when determining whether a disciplinary change in placement is appropriate for a child with a disability (Federal Register, pg. 46714, August 14, 2006).

    REQUIREMENT

    3301-51-05
    (K) Conflict resolution
    (26) Change of placement because of disciplinary removals
    (a) For purposes of removals of a child with a disability from the child’s current educational placement under paragraphs (K)(20) to (K)(25) of this rule, a change of placement occurs if:

    (i) The removal is for more than 10 consecutive school days; or
    (ii) 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.

    GUIDANCE

    Change in placement

    A "change in placement" because of disciplinary removals is defined in 3301-51-05(C)(5)(a) as "a change from one option on the continuum of alternative placements to another."

    Short-term removals of 10 consecutive days or fewer in a school year do not constitute a change of placement. School personnel must decide if additional removals beyond the first removal for 10 consecutive school days constitute a change of placement.

    A change of placement occurs if:

    • The removal is for more than ten consecutive school days; or
    • The child has been subjected to a series of removals that constitute a pattern;
      (a) Because the series of removals total more than ten 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.

    The school district determines on a case-by-case basis whether a pattern of removals constitutes a change of placement. School district personnel must review relevant information regarding the child's behavior, including the child's individual education program (IEP). School personnel should take into consideration the following questions:

    • Were the behaviors resulting in the initial 10 days of removal related to the child's disability?
    • Were a functional behavior assessment (FBA) conducted and a behavior intervention plan (BIP) put into place?
      • If the child's behavior impedes his or her learning or the learning of others, are there behavioral goals in the child's IEP?
      • If so, was the IEP implemented?
    • Are the code of conduct violations substantially similar? Do they constitute a pattern?
    • Has a review of discipline referrals for the past and present school years been conducted to identify any similarities? (See Discipline - 8.1 General).

    Case-by-case determination when there is a pattern of removals

    School personnel consider any unique circumstances:

    • The child’s disciplinary history;
    • The child’s ability to understand consequences;
    • The child’s expression of remorse; and
    • Supports provided or not provided the child with a disability before the violation of a code of conduct.

    REQUIREMENT

    3301-51-05
    (K) Conflict resolution
    (25) Referral to and action by law enforcement and judicial authorities
    Rule of construction. Nothing in this rule 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. Transmittal of records shall be done in accordance with paragraph (R)(2) of rule 3301-51-04 of the Administrative Code.

    3301-51-04
    (R) Referral to and action by law enforcement and judicial authorities
    (2)Transmittal of records to authorities

    (a) A school district, county board of MRDD, and other educational 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.
    (b) A school district, county board of MR/DD and other educational agency reporting a crime under this rule shall transmit copies of the child’s special education and disciplinary records only to the extent the transmission is permitted by the Family Educational Rights and Privacy Act of 1974, August 1974, 20 U.S.C. 1232g (FERPA).

    GUIDANCE

    Transmittal of records to authorities

    "In an emergency, FERPA permits school officials to disclose, without consent, education records, including personally identifiable information from those records, to protect the health or safety of children or other individuals. At such times, records and information may be released to appropriate parties such as law enforcement officials, public health officials and trained medical personnel. This exception is limited to the period of the emergency and generally does not allow for a blanket release of personally identifiable information from a child's education records." (U.S. Department of Education, Family Policy Compliance Office,Balancing Student Privacy and School Safety: A Guide to the Family Educational Rights and Privacy Act for Elementary and Secondary Schools. Retrieved January 2007 @ FERPA@ED.Gov.)

    REQUIREMENT

    Maintain data on rates of suspension and expulsions

    3301-51-03
    (C) Disproportionality
    (1) General
    The Ohio Department of Education and each school district must provide for the collection and examination of data to determine if significant disproportionality based on race and ethnicity is occurring in the state and the school districts of the state with respect to:

    (c) The incidence, duration, and type of disciplinary actions, including suspensions and expulsions.

    (2) Review and revision of policies, practices, and procedures
    In the case of a determination of significant disproportionality with respect to the identification of children with disabilities, or the placement in particular education settings of these children, in accordance with paragraph (C)(1) of this rule, the Ohio Department of Education must:

    (a) Provide for the review and, if appropriate, revision of the policies, procedures, and practices used in the identification or placement to ensure that the policies, procedures, and practices comply with the requirements of the IDEA.
    (c) Require the school district to publicly report on the revision of policies, practices, and procedures described under paragraph (C)(2)(a) of this rule.

    (D) Data Reporting
    (1) Each school district shall maintain an education management information system and submit data to the Ohio Department of Education pursuant to rule 3301-14-01 of the Administrative Code.

    GUIDANCE

    Maintain data on rates of suspension and expulsions

    School district personnel submit disciplinary data to the Ohio Department of Education through the Educational Management Information System (EMIS). Child discipline data elements that are reported are:

    • Building Internal Retriever Number (IRN) where discipline incident took place;
    • Date of discipline;
    • Discipline reason;
    • Discipline sequence number – the order in which the discipline incident occurred;
    • Whether or not the child was referred for Alternate Educational Services;
    • Total discipline days; and
    • Type of discipline.

    School district personnel maintain and use disciplinary data such as office referrals and suspension and expulsion records so that potential problems may be identified and proactive approaches can be used to provide positive behavioral supports and interventions for all children.

     

    8.2 Code of Conduct Violations: Short Term Removals - Not a Change of Placement

    State Performance Plan (SPP):

    (See Overview in the Introduction for more information on the SPP.)

    SPP 4:
    Rates of suspension/expulsion:
    A: Percent of districts identified by the State as having a significant discrepancy in the rate of suspensions and expulsions of children with disabilities for greater than 10 days in a school year; and
    B: Percent of districts identified by the State as having a significant discrepancy in the rates of suspensions and expulsions of greater than 10 days in a school year of children with disabilities by race and ethnicity. (20.U.S.C. 1416 (a)(3)(A); 1412(a)(22)) (Significant discrepancies in discipline rates are those in which the rates of suspensions and expulsions for children with disabilities exceed those for typical children by at least one percent.)

    Intent:

    To ensure that a child with a disability will receive appropriate educational services if removed from school for a code of conduct violations for more than 10 cumulative school days in a school year.

    Timelines:

    • Notify parents: Not later than the day the decision is made to suspend a child.
    • Determine and provide services: Beginning on the 11th cumulative day of removal in a school year.
    • If necessary, review and modify existing behavior intervention plan (BIP).
    • If necessary, conduct a functional behavior assessment (FBA) and develop a BIP.

    REQUIREMENT

    3301-51-05
    (K) Conflict resolution
    (20) Authority of school personnel
    (b) General

    (i) School personnel under this rule may remove a child with a disability who violates a code of student conduct from the child's current placement to an appropriate interim alternative setting, another setting , or suspension for not more that ten consecutive school days (to the extent those alternatives are applied to children without disabilities), and for additional removals of not more than ten 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 paragraph (K)(26) of this rule.

    (ii) After a child with a disability has been removed from the child’s current placement for ten school days in the same school year, during any subsequent days of removal the school district must provide services to the extent required under paragraph (K)(20)(d) of this rule.

    (c) Additional authority
    For disciplinary changes in placement that would exceed ten 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 (K)(20)(e) of this rule, 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 (K)(20)(d) of this rule.

    ORC 3313.66 Suspension, expulsion or permanent exclusion – removal from curricular or extracurricular activities.

    (A) Except as provided under division (B)(2) of this section, the superintendent of schools of a city, exempted village, or local school district, or the principal of a public school may suspend a child from school for not more than ten school days. The board of education of a city, exempted village, or local school district may adopt a policy granting assistant principals and other administrators the authority to suspend a child from school for a period of time as specified in the policy of the board of education, not to exceed ten school days. If at the time a suspension is imposed there are fewer than ten school days remaining in the school year in which the incident that gives rise to the suspension takes place, the superintendent may apply any remaining part or all of the period of the suspension to the following school year. Except in the case of a child given an in-school suspension, no child shall be suspended unless prior to the suspension such superintendent or principal does both of the following:

    (1) Gives the child written notice of the intention to suspend the child and the reasons for the intended suspension and, if the proposed suspension is based on a violation listed in division (A) of section 3313.662 of the Revised Code and if the pupil is sixteen years of age or older, include in the notice a statement that the superintendent may seek to permanently exclude the child if the child is convicted of or adjudicated a delinquent child for that violation;
    (2) Provides the child an opportunity to appear at an informal hearing before the principal, assistant principal, superintendent, or superintendent’s designee and challenge the reason for the intended suspension or otherwise to explain the child’s actions.

    GUIDANCE

    Child with a disability who violates a code of student conduct

    The school district follows the standard disciplinary procedures that are applicable to all children:

    • Give the child written notice of the intention to suspend and reasons for suspension; and
    • Provide the child an opportunity to appear at an informal hearing.

    Give the child’s special education and disciplinary records to the person making the decision about the disciplinary action.

    • The superintendent designates this person. The designee may be the superintendent, building principal or other administrative personnel.
    • Applicable records include the child’s current IEP; evaluation team report (ETR); behavior intervention plan (BIP) if applicable; functional behavior assessment (FBA) if applicable; office disciplinary reports and a reporting of the total number of days of removal.
    • Consider all relevant information regarding the child’s behavior, including any information in the child’s IEP. Review the child’s previous behaviors to determine whether the behaviors taken cumulatively are substantially similar. Make each decision on a case-by-case basis.

    The [discipline] requirements do not permit using repeated disciplinary removals of ten school days or less as a means of avoiding the change of placement options (Federal Register, August 14, 2006 pg. 46715).

    Services are NOT required to be provided during the first ten cumulative days in a school year unless children without disabilities are provided services.

    Short term removals of not more than 10 cumulative school days in a school year may be used for children with disabilities without the provision of services unless children without disabilities are provided services.

    In-school suspensions/alternative in-school settings
    Removing a child from his or her assigned classroom for inappropriate behavior may constitute a removal. In-school suspensions are not counted if the child:

    • Is given the opportunity to continue to make appropriate progress in the general curriculum; and
    • Continues to receive the services designated on the IEP.

    However, if a child is removed from his or her current setting for part of a school day and is NOT afforded the above benefits, the partial removals count toward the 10 cumulative school days. Any partial day of removal counts as a full day for the purposes of the cumulative ten-day rule.

    Transportation as a related service on the IEP
    If transportation is included as a related service on the child’s IEP and transportation is not being provided due to disciplinary removal(s), the child’s IEP is no longer being implemented and the total number of days missed in instruction must be counted in the cumulative 10 days of removal.

    If the child is transported to his or her special services or programs by other means (e.g., school reimbursement transportation by parents or relative, or by taxi, van or contracted services paid for by the school), then the day(s) would not count towards the cumulative 10-day total.

    Transportation not as a related service on the IEP
    If the child is removed from regular transportation, i.e., transportation is NOT listed as a related service on the child's IEP, and services are interrupted because the child is not able to attend school, this may be a denial of a free appropriate public education (FAPE). The district does not count those days toward the 10 cumulative days of removal. The child's IEP team will need to determine if the child is being denied FAPE and if they can take appropriate stemps to ensure that the child is provided FAPE.

    Districts should consider whether the behavior on the bus is similar to behavior in a classroom that is addressed in an IEP and whether the child’s behavior on the bus should be addressed in the IEP or a BIP for the child (Federal Register, August 14, 2006 pg. 46715).

    REQUIREMENT

    3301-51-05
    (K) Conflict resolution
    (20) Authority of school personnel
    (d) Services

    (iv) After a child with a disability has been removed from the child’s current placement for ten school days in the same school year, if the current removal is for not more than ten consecutive school days and is not a change of placement, school personnel, in consultation with one of the child’s teachers, determine the extent to which services are needed, as provided in rule 3301-51-02 of the Administrative Code, 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.

    3301-51-05
    (K) Conflict resolution
    (20) Authority of school personnel
    (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 disciplinary provisions of IDEA, is appropriate for a child with a disability who violates a code of student conduct.

    3301-51-05
    (K) Conflict resolution
    (20) Authority of school personnel
    (d) Services

    (i) A child with a disability who is removed from the child’s current placement pursuant to paragraphs (K)(20)(C) or (K)(20)(g) of this rule must:

    (a) Continue to receive educational services, as provided in rule 3301-51-02 of the Administrative Code, 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.

    GUIDANCE

    Additional short-term removals beyond 10 cumulative schools days

    • Any removal or series of removals of more than 10 cumulative school days in the same school year, or a series of removals that suggest a pattern and are considered to be a change in placement, require the school district to provide services to enable the child to continue to participate in the general curriculum, although in another setting, and to make progress toward meeting the goals set out in the child's IEP.
    • In order to ensure FAPE, school personnel consult with one of the child’s teachers who is knowledgeable of his or her IEP, or the IEP team, to determine services. Services must begin on the 11thcumulative day of removal in a school year.
    • Services must be provided to enable the child to continue to make progress in the general curriculum and to progress toward meeting the goals on his or her IEP.

    To determine that these additional removals constitute a change of placement:

    • School personnel must decide if additional removals constitute a change of placement. Is this additional removal appropriate?
    • School district personnel review the child’s previous behaviors to determine whether the behaviors taken cumulatively are substantially similar. This decision is made on a case-by-case basis. Relevant information is considered regarding the child’s behavior, including the child’s IEP. To make this decision, school personnel take into consideration the following questions:
      • Have factors such 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 been considered?
      • Were the behaviors resulting in the initial 10 days of removal related to the child’s disability?
      • Were a functional behavior assessment (FBA) and behavior intervention plan (BIP) conducted and in place?
      • If the child's behavior impedes his or her learning or the learning of others, are there behavioral goals in the child's IEP?
      • If so, was the IEP implemented?
      • Are the code of conduct violations substantially similar? Do they constitute a pattern?
      • Has a review of discipline referrals for the past and present school years been conducted to identify any similarities?

    Case-by-case determination

    School personnel also consider any unique circumstances which could include factors such as:

    • The child's disciplinary history;
    • The child's ability to understand consequences;
    • The child's expression of remorse; and
    • Supports provided or not provided the child with a disability before the violation of a code of conduct.

    If it is determined that the short term removal IS a change of placement, refer to Discipline - 8.3 Change of Placement.

    If it is determined that the short term removal IS NOT a change of placement, continue reading this section.

    Services

    • Any removal or series of removals of more than 10 cumulative school days in the same school year, or a series of removals that suggest a pattern and are considered to be a change in placement, require the school district to provide services to enable the child to continue to participate in the general curriculum, although in another setting, and to make progress toward meeting the goals set out in the child's IEP.
    • In order to ensure FAPE, school personnel consult with one of the child's teachers who is knowledgeable of his or her IEP, or the IEP team, to determine services.
    • Services begin on the 11th cumulative day of removal in a school year.
    • Services must be provided to enable the child to continue to make progress in the general curriculum and progress toward meeting the goals on his or her IEP.

    Functional behavior assessment (FBA)/behavior intervention plan (BIP)
    Short term removals from school may indicate the need for an FBA as well as behavioral intervention services and modifications to address the behavior, so that it does not recur.

     

    8.3 Code of Conduct Violations: Removal of More Than 10 Cumulative School Days - Change of Placement

    State Performance Plan (SPP):

    (See Overview in the Introduction for more information on the SPP.)

    SPP 4:
    Rates of suspension/expulsion
    A: Percent of districts identified by the State as having a significant discrepancy in the rate of suspensions and expulsions of children with disabilities for greater than 10 days in a school year; and
    B: Percent of districts identified by the State as having a significant discrepancy in the rates of suspensions and expulsions of greater than 10 days in a school year of children with disabilities by race and ethnicity. (20.U.S.C. 1416 (a)(3)(A); 1412(a)(22)) (Significant discrepancies in discipline rates are those in which the rates of suspensions and expulsions for children with disabilities exceed those for typical children by at least one percent.)

    Intent:

    To ensure that a child with a disability is provided educational services when removed from school for misconduct that may relate to the child's disability.

    Timelines:

    The day the decision is made to change the placement for a child with a disability
    Notify the child of the intent to suspend; notify the parents through prior written notice, provide procedural safeguards notice, Whose IDEA Is This? and send the parents the invitation to the manifestation determination meeting.

    Not later than 10 school days after the decision is made to take disciplinary action and change the placement of the child
    Conduct the manifestation determination.

    Within 10 days of the manifestation determination, start to conduct a functional behavioral assessment (FBA)
    If the behavior is a manifestation of the child’s disability, start to conduct a functional behavioral assessment. Complete the assessment as soon as possible, and implement a behavioral intervention plan (BIP) for the child.

    Within 10 days of the manifestation determination, if a behavioral intervention plan (BIP) has already been developed
    If the child's behavior is a manifestation of the child's disability, within 10 days of the manifestation determination, the IEP team reviews the BIP and the implementation of the plan, and modifies it to address the behavior subject to disciplinary action.

    Beginning on the 11th cumulative day of removal in a school year
    Provide services.

    REQUIREMENT

    3301-51-05
    (K) Conflict resolution
    (20) Authority of school personnel
    (b) General
    (i) School personnel under this rule may remove a child with a disability who violates a code of student conduct from the child's current placement to an appropriate interim alternative setting, another setting, or suspension for not more than ten consecutive school days (to the extent those alternatives are applied to children without disabilities), and for additional removals of not more than ten 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 (K)(26) of this rule).

    3301-51-05
    (K) Conflict resolution
    (20) Authority of school personnel
    (c) Additional authority
    For disciplinary changes in placement that would exceed ten 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 (K)(20)(e) of this rule, 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 (K)(20)(d) of this rule.

    3301-51-05
    (K) Conflict resolution
    (20) Authority of school personnel
    (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 school district must notify the parents of that decision and provide the parents the procedural safeguards notice described in paragraph (I) of this rule.

    3301-51-05
    (H) Prior notice by the school district; content of notice

    (3)Notice in understandable language

    (a) The notice required under paragraph (H)(1) of this rule must be:

    (i) Written in language understandable to the general public; and
    (ii) Provided in the native language of the parent or other mode of communication used by the parent unless it is clearly not feasible to do so.

    (b) If the native language or other mode of communication of the parent is not a written language, the school district must take steps to ensure:

    (i) That the notice is translated orally or by other means to the parent in the parent’s native language or other mode of communication;
    (ii) That the parent understands the content of the notice; and
    (iii) That there is written evidence that the above requirements in paragraphs (H)(3)(b)(i) and (H)(3)(b)(ii) of this rule have been met.

    3301-51-05
    (K) Conflict resolution

    (26) Change of placement because of disciplinary removals

    (a) For purposes of removals of a child with a disability, from the child's current educational placement under paragraphs (K)(20) to (K)(25) of this rule, a change of placement occurs if:

    (i) The removal is for more than ten consecutive school days; or
    (ii) 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) The school district determines on a case-by-case basis whether a pattern of removals constitutes a change of placement. This determination is subject to review through due process and judicial proceedings.

    3301-51-05
    (K) Conflict resolution
    (20) Authority of school personnel

    (a) Case-by-case determination

    (i) School personnel may consider any unique circumstances on a case-by-case basis when determining whether a change in placement is appropriate for a child with a disability who violates a code of student conduct.

    3301-51-05
    (K) Conflict resolution
    (20) Authority of school personnel

    (e) Manifestation determination

    (i) 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 school district, the parents, and relevant members of the child's IEP team (as determined by the parents and the school district) must review all relevant information in the child'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 school district’s failure to implement the IEP.

    (See Discipline - 8.5 Manifestation Determination).

    GUIDANCE

    Notify parents no later than the day the decision is made to suspend

    The school district follows the standard disciplinary procedures that are applicable to all children:

    • Send the child written notice of the intent to suspend and the reasons for suspension, and notify the parents.
    • Provide the child an opportunity to appear at an informal hearing.

    The school district provides parents:

    • Prior written notice of the decision to suspend; and
    • A copy of their procedural safeguards notice, Whose IDEA Is This?

    Give the child's special education and disciplinary records to the person making the decision about the disciplinary action.

    The superintendent designates this person. The designee might be the superintendent, building principal or other administrative personnel.
    Applicable records include the child’s current individualized education program (IEP), evaluation team report (ETR), behavior intervention plan (BIP) if applicable, functional behavior assessment (FBA) if applicable, office disciplinary reports and a reporting of the total number of days removed.

    Case-by-case determination: unique circumstances

    Factors such as a child's disciplinary history, ability to understand consequences and expression of remorse as well as supports provided to a child with a disability prior to the violation of student conduct, could be unique circumstances considered by school personnel when determining whether a disciplinary change in placement is appropriate for a child with a disability (Federal Register, August 14, 2006, pg. 46714).

    Conduct the manifestation determination

    (See Discipline - 8.5 Manifestation Determination).

    • School personnel and the parents determine relevant members of the IEP team to conduct the manifestation review. Team members may include the parents, principal, intervention specialist, regular educator, the child, when appropriate, and other qualified personnel.
    • The invitation to the manifestation meeting should be sent with the intent to suspend or expel to meet the timeline to complete the review.
    • The manifestation determination review must be conducted 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.

    Notify team members of the time and location of the meeting.
    Identify and collect all relevant information needed to conduct the review.
    Conduct the manifestation determination. (See Discipline - 8.5 Manifestation Determination).

    REQUIREMENT

    3301-51-05 (K) Conflict resolution
    (20) Authority of school personnel

    (f) Determination that the behavior WAS a manifestation

    If the school district, the parents, 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:
    (i) Either:

    (a) Start to conduct a functional behavioral assessment within 10 days of the manifestation determination and complete the assessment as soon as is practicable, unless the school district had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavior intervention plan for the child; or
    (b) If a behavioral intervention plan had already been developed, within 10 days of the manifestation determination, review the behavioral intervention plan and the implementation of the plan, and modify it, as necessary, to address the behavior subject to disciplinary action; and

    (ii) Except as provided in paragraph (K)(20)(g) of this rule (special circumstances involving weapons, illegal drugs or serious bodily injury), return the child to the placement from which the child was removed, unless the parent and school district agree to a change the placement as part of the modification of the behavioral intervention plan.

    3301-51-05
    (K) Conflict resolution
    (20) Authority of school personnel
    (e) Manifestation determination
    (i) Within ten 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 school district, the parent, and relevant members of the child’s IEP team (as determined by the parent and the school district) must review all relevant information in the child's file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents to determine:

    (b) If the conduct in question was the direct result of the school district’s failure to implement the IEP,

    (iii) If the school district, the parent, and relevant members of the child’s team determine the conduct in question was the direct result of the school district’s failure to implement the IEP, the school district must take immediate steps to remedy those deficiencies.

    GUIDANCE

    Determination that the behavior WAS a manifestation of the child's disability

    Review and modify child’s behavior intervention plan (BIP) or start to conduct a functional intervention assessment (FIA):

    • The school district arranges for the IEP team meeting (at a mutually agreed upon time and place) and notifies IEP team members of the time and location of the meeting.
    • The team will consider the given behavior that precipitated the disciplinary change of placement.
    • The purpose of the meeting is to review and modify the child’s behavior intervention plan as needed to address the problem behavior, or to plan and begin conducting a functional behavior assessment and create a behavior intervention plan, if one is not in place.
    • The behavior interventions should be implemented as soon as is practical.

    If the child’s behavior is a manifestation of the child’s disability, school personnel must:

    • Remedy deficiencies in the IEP, placement or IEP implementation. Questions that should be considered:
    • Were goals and objectives appropriate?
    • Was the IEP implemented?
    • Was the placement appropriate?
    • Has the child received the supplementary aids and services indicated in the IEP?
    • Were behavior intervention strategies appropriate?

    Review the existing behavior intervention plan (BIP) and modify the functional behavior assessment (FBA), if needed, to address the behavior subject to disciplinary action. (See IEP - 7.5 Special Factors and Considerations).

    • Does the child have a BIP?
    • If so, review the BIP and revise it if necessary to address the behavior subject to disciplinary action.
    • If not, develop a BIP after the FBA has been conducted.

    If the BIP does not already exist, start to conduct a FBA and create and implement a BIP. (See IEP - 7.5 Special Factors and Considerations).

    • Has the child had an FBA?
    • If not,provide prior written notice, obtain written parental consent,develop an assessment plan, begin to conduct the FBA and create the BIP.
      • If an FBA is conducted either to determine whether the child is, or continues to be, a child with a disability, or to determine the nature and extent of the special education and related services that the child needs, then an FBA is an evaluation or a reevaluation and parental consent is required.
      • If the parents do not give written parental consent for the FBA, the school district may, but is not required to, use procedural safeguards (including the mediation and due process procedures)to pursue the evaluation. See Procedural Safeguards - 5.3 Parent Consent for Evaluation.

    School personnel can begin to conduct an FBA to determine the purpose (avoidance or escape, attention or sensory needs) the behavior serves the child.

    • Collect historical and background data by reviewing cumulative folders, IEPs, evaluation team reports (ETRs), intervention assistance teams (IATs) minutes, statewide assessments scores, attendance and discipline files;
      • Parental consent is not required if the district is not conducting an evaluative process,but merely collecting or reviewing data that already exists.
    • Conduct indirect assessments such as rating scales, interviews and checklists;
    • Determine the target behavior for behavioral intervention planning; and
    • Develop a hypothesis identifying the context of the behavior, a description of the problem behavior and the function of the behavior.

    School personnel will be unable to collect direct observational data or to verify the hypothesis during the child's removal from school. As soon as the child returns, school personnel should begin to collect direct observational data to verify the hypothesis and to develop behavioral interventions and supports so that the behavior does not recur.

    School personnel and the parents should develop a plan to return the child to school.

    REQUIREMENT

    Determination that behavior was NOT a manifestation

    3301-51-05
    (K) Conflict resolution
    (20)Authority of school personnel
    (c) Additional authority
    For disciplinary changes in placement that would exceed ten 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 (K)(20)(e) of this rule, 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 (K)(20)(d) of this rule.

    (d) Services
    (i) A child with a disability who is removed from the child’s current placement pursuant to paragraphs (K)(20(c) or (K)(20)(g) of this rule must:

    (a) Continue to receive educational services, as provided in rule 3301-51-02 of the Administrative Code, so as to enable the child to continue to participate in the general 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.

    GUIDANCE

    Child’s behavior was NOT a manifestation

    If the team determines that the child’s behavior is not a manifestation of the child’s disability:

    • School personnel apply disciplinary procedures applicable to all children; and
    • The IEP team meets, if needed, to review and modify the child’s IEP to address the behavior.

    REQUIREMENT

    3301-51-05
    (K) Conflict resolution
    (20)Authority of school personnel
    (d) Services
    (i) A child with a disability who is removed from the child's current placement pursuant to paragraphs (K)(20(c) or (K)(20)(g) of this rule must:

    (a) Continue to receive educational services, as provided in rule 3301-51-02 of the Administrative Code, so as to enable the child to continue to participate in the general 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.

    (ii)The services required by paragraph (K)(20)(d)(i), (K)(20)(d)(iii), (K)(20)(d)(iv), and (K)(20)(d)(v) of this rule may be provided in an interim alternative educational setting.
    (v) If the removal is a change of placement under this rule, the child's IEP team determines appropriate services under paragraph (K)(2)(d)(i) of this rule.

    GUIDANCE

    Services for child with a disability removed from current placement

    After a child with a disability has been removed from the child’s current placement for 10 school days in the same school year, during any subsequent days of removal the school district must provide services.

    Any removal or series of removals of more than 10 school days in a school year requires the school district to provide services by day 11 to the extent determined necessary to:

    • Enable the child to appropriately progress in the general curriculum;
    • Appropriately advance toward achieving the goals of his or her IEP; and
    • Receive, as appropriate, a functional behavior assessment and behavioral intervention strategies to address the behavior so that it does not recur.

    The IEP team determines services to:

    • Enable the child to make appropriate progress in the general curriculum and advance toward achieving the goals of his or her IEP; and
    • If the conduct was a manifestation of the child’s disability, provide the child, as appropriate, an FBA and behavioral intervention services and modifications that are designed to address the behavior so it does not recur.

    The school district provides services beginning on the 11thcumulative day of removal in a school year.

    REQUIREMENT

    3301-51-05
    (K) Conflict resolution
    (22) Appeal
    (a) General
    The parent of a child with a disability who disagrees with any decision regarding placement under paragraphs (K)(2) and (K)(21) of this rule, or the manifestation determination under paragraph (K)(20)(e) of this rule, or a school district 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 paragraphs (K)(7) and (K)(8) of this rule.

    GUIDANCE

    Parents of a child with a disability who disagree with placement decision

    The parents or school district may request an expedited due process hearing. (See Procedural Safeguards - 5.16 Expedited Due Process Hearing).

     

    8.4 Special Circumstances: Removal Involving Drugs, Weapons, or Serious Bodily Injury

    State Performance Plan (SPP):

    (See Overview in the Introduction for more information on the SPP.)

    SPP 4:
    Rates of suspension/expulsion
    A: Percent of districts identified by the State as having a significant discrepancy in the rate of suspensions and expulsions of children with disabilities for greater than 10 days in a school year; and
    B: Percent of districts identified by the State as having a significant discrepancy in the rates of suspensions and expulsions of greater than 10 days in a school year of children with disabilities by race and ethnicity. (20.U.S.C. 1416 (a)(3)(A); 1412(a)(22)) (Significant discrepancies in discipline rates are those in which the rates of suspensions and expulsions for children with disabilities exceed those for typical children by at least 1%.)

    Intent:

    To provide guidance to school personnel regarding a child with a disability whenever special circumstances constitute a removal of the child to an interim alternative educational setting (IAES).

    Timelines:

    The day the decision is made to change the placement for a child with a disability
    Notify the child of the intent to suspend; notify the parents through prior written notice and provide procedural safeguards notice, Whose IDEA Is This?, and send the invitation to the mainifestation meeting to the parents.

    Not later than 10 school days after the decision is made to take disciplinary action and change the placement of the child
    Conduct manifestation determination.

    Within 10 days of the manifestation determination, start to conduct a functional behavioral assessment (FBA)
    If the behavior is a manifestation of the child's disability, start to conduct a functional behavioral assessment (FBA), complete the assessment as soon as possible and implement a behavioral intervention plan (BIP) for the child.

    Within 10 days of the manifestation determination if a behavioral intervention plan (BIP) has already been developed
    If the child's behavior is a manifestation of the child's disability, within 10 days of the manifestation determination, the IEP team reviews the BIP and the implementation of the plan and modifies it as appropriate to address the behavior subject to disciplinary action.

    Beginning on the 11th cumulative day of removal in a school year
    Provide services.

    REQUIREMENT

    3301-51-05
    (K) Conflict resolution
    (20) Authority of school personnel
    (g) Special circumstances
    School personnel may remove a child to an interim alternative educational setting for not more than forty-five school days without regard to whether the behavior is determined to be a manifestation of the child’s disability, if the child:

    (i) Carries a weapon to or possesses a weapon at school, on school premises, or to or at a school function under the jurisdiction of the Ohio Department of Education or a school district;
    (ii) 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 the Ohio Department of Education or a school district; or
    (iii) Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of the Ohio Department of Education or a school district.

    GUIDANCE

    Definitions: drugs, weapons, controlled substances, serious bodily injury

    The definitions of weapons, drugs, controlled substances and serious bodily injury are found in additional federal legislation as indicated below:

    • Dangerous 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 term does not include a pocket knife with a blade of less than 2 ½ inches in length. (Federal Register, August 14, 2006, pg. 46723.)
    • Controlled substance: 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) as amended and specified in the Anabolic Steroids Control Act of 2990, November 1990, 21 U.S.C. 812 (c).
    • Illegal drug: A controlled substance, not including 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.
    • Serious bodily injury: Bodily injury that 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. 18 U.S.C. 1365 (h)(3)

    REQUIREMENT

    3301-51-05
    (K) Conflict resolution
    (20) Authority of school personnel
    (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 student code of conduct, the school district must notify the parents of that decision and provide the parents the procedural safeguards notice described in paragraph (I) of this rule.

    3301-51-05
    (H) Prior notice by the school district; content of notice
    (3) Notice in understandable language
    (a) The notice required under paragraph (H)(1) of this rule must be:

    (i) Written in language understandable to the general public; and
    (ii) Provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.

    (b) If the native language or other mode of communication of the parent is not a written language, the school district must take steps to ensure:

    (i) That the notice is translated orally or by other means to the parent in the parent’s native language or other mode of communication;
    (ii) That the parent understands the content of the notice; and
    (iii) That there is written evidence that the above requirements in paragraphs (H)(3)(b)(i) and (H)(3)(b)(ii) of this rule have been met.

    3301-51-05
    (K) Conflict resolution
    (26) Change of placement because of disciplinary removals
    (a) For purposes of removals of a child with a disability from the child's current educational placement under paragraphs (K)(20) to (K)(25) of this rule, a change of placement occurs if:

    (i) The removal is for more than ten consecutive school days; or
    (ii) The child has been subjected to a series of removals that constitute a pattern:
    (a) Because the series of removals total more than ten 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) The school district determines on a case-by-case basis whether a pattern constitutes a change of placement. This determination is subject to review through due process and judicial proceedings.

    (K) Conflict resolution
    (20) Authority of school personnel
    (a) Case-by-case determination
    School personnel may consider any unique circumstances on a case-by-case basis when determining whether a change of placement, consistent with the other requirements of this rule, is appropriate for a child with a disability who violates a code of student conduct.

    (e) Manifestation determination
    (i) 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 school district, the parents, and relevant members of the child's IEP team (as determined by the parent and the school district) must review all relevant information in the child'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 school district's failure to implement the IEP.

    (g) Special circumstances
    School personnel may remove a child to an interim alternative educational setting for not more than forty-five school days without regard to whether the behavior is determined to be a manifestation of the child’s disability, if the child

    (i) Carries a weapon to or posses a weapon at school, on school premises, or to or at a school function under the jurisdiction of the Ohio Department of Education or a school district;
    (ii) 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 the Ohio Department of Education or a school district; or
    (iii) Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of the Ohio Department of Education or a school district.

    3301-51-05
    (K) Conflict resolution
    (21) Determination of setting
    The child's IEP team determines the interim alternative educational setting for services under paragraph (K)(20) of this rule.

    3301-51-05
    (K) Conflict resolution
    (20) Authority of school personnel
    (d) Services
    (i) A child with a disability who is removed from the child's current placement pursuant to paragraphs (K)(20)(c) or (K)(20)(g) of this rule must;

    (a) Continue to receive educational services, as provided in rule 3301-51-02 of the Administrative Code, so as to enable the child to continue to participate in the general 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 behavior assessment, and behavioral intervention services and modifications that are designed to address the behavior violation so that it does not recur.

    GUIDANCE

    Removals for weapons, drugs and serious bodily injury

    School district personnel may remove a child to an interim alternative educational setting (IAES) for up to 45 school days, without regard to whether the behavior was a manifestation of the child's disability, if the child:

    • Carries a weapon to or possesses a weapon at school, on school premises or to or at a school function under the jurisdiction of the Ohio Department of Education or a school district;
    • 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 the Ohio Department of Education or a school district; or
    • Has inflicted serious bodily injury upon another person while at school, on school premises or at a school function under the jurisdiction of the Ohio Department of Education or a school district.

    Procedural safeguards and notice

    Notify parents: not later than the day the decision is made to expel the child for a weapon or drug offense or for inflicting srious bodily injury and provide the parents with a procedural safeguards notice, Whose IDEA Is This?, and Prior Written Notice to Parents PR-01 form.

    • The school district follows the standard disciplinary procedures that are applicable to all children:
      • Send the child written notice of the intent to expel and the reasons for expulsion and notify the parents.
      • Provide the child an opportunity to appear in an informal hearing.
    • The school district provides parents:
      • Prior written notice of that decision;
      • A copy of their procedural safeguards notice, Whose IDEA Is This?

    Give the child's special education and disciplinary records to the person making the decision about the disciplinary action

    • The superintendent designates this person. The designee might be the superintendent, building principal or other administrative personnel.
    • Applicable records include the child's current IEP, evaluation team report (ETR), behavior intervention plan (BIP) if applicable, functional behavior assessment (FBA) if applicable, office disciplinary reports and a reporting of the total number of days removed.

    Consider any unique circumstances based upon the child’s records, which could include factors such as:

    • The child's disciplinary history;
    • The child's ability to understand consequences;
    • The child's expression of remorse; and
    • Supports provided or not provided to the child with a disability prior to the violation involving drugs, weapons or serious bodily injury.

    Convene the IEP team to determine the interim alternative educational setting (IAES)

    • The school district arranges for the IEP team meeting at a mutually agreed upon time and place and notifies IEP members, including the parents, of the time and location of the meeting.
    • The purpose of the IEP team meeting is to determine the interim alternative educational setting (IAES).
      • An IAES must be selected that enables 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.
      • When determining the appropriate IAES, a school district must not limit an IEP team to a single placement option (e.g., home instruction). If home instruction is provided for a child, the services provided must satisfy the above requirements.
      • Whether a child's home would be an appropriate IAES would depend on the particular circumstances of the individual case, such as the length of the removal, the extent to which the child previously has been removed from his or her regular placement, and the child’s individual needs and educational goals. (Federal Register, August 14, 2006, pg. 46722.)
      • If home instruction is the interim alternative educational setting (IAES), the IEP team determines how much home instruction is necessary to provide a free and appropriate public education (FAPE) for each child. The amount of home instruction is based on educational need and not the reimbursement formula, i.e., one hour per day removed.

    Conduct the manifestation determination

     

    8.5 Manifestation Determination

    State Performance Plan (SPP):

    (See Overview in the Introduction for more information on the SPP.)

    SPP 4:
    Rates of suspension/expulsion:
    A: Percent of districts identified by the State as having a significant discrepancy in the rate of suspensions and expulsions of children with disabilities for greater than 10 days in a school year; and
    B: Percent of districts identified by the State as having a significant discrepancy in the rates of suspensions and expulsions of greater than 10 days in a school year of children with disabilities by race and ethnicity. (20.U.S.C. 1416 (a)(3)(A); 1412(a)(22)) (Significant discrepancies in discipline rates are those in which the rates of suspensions and expulsions for children with disabilities exceed those for typical students by at least 1 percent.)

    Intent:

    To determine whether child's behavior that resulted in disciplinary actions was caused by or had a direct and substantial relationship to the child's disability.

    Timelines:

    The day the decision is made to suspend or expel
    Notify child of the intent to suspend or expel; notify the parents through prior written notice and provide procedural safeguards notice, Whose IDEA Is This?, and send the parents an invitation to the manifestation determination meeting.

    Within 10 school days of any decision to change the placement of a child with a disability due to a violaltion of a code of student conduct
    Relevant members of the child's individualized education program (IEP) team and other qualified personnel must conduct a manifestation determination review.

    Within 10 school days of the manifestation determination
    If the behavior is a manifestation of the child's disability, the IEP team meets to either:

    • Conduct a functional behavior assessment (FBA) and implement a behavior intervention plan (BIP); or
    • Review the existing FBA and BIP and modify as needed to address the behavior.

    REQUIREMENT

    3301-51-05
    (K) Conflict resolution
    (20) Authority of school personnel

    (e) Manifestation determination

    (i) Within ten 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 school district, the parent, and relevant members of the child's IEP team (as determined by the parent and the school district) must review all relevant information in the child'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 school district's failure to implement the IEP.

    (ii) The conduct must be determined to be a manifestation of the child's disability if the school district, the parent, and relevant members of the child's IEP team determine that a condition in either paragraph (K)(20)(e)(i)(b) or (K)(20)(e)(i)(b) of this rule was met.

    GUIDANCE

    Manifestation determination review

    School personnel:

    • And the parents determine the relevant members of the IEP team to conduct the manifestation review. Relevant members may include the parents, principal, intervention specialist, regular educator, related service personnel, someone with authority to make decisions, the child, when appropriate, and other qualified personnel.
    • Sends the parents an invitation to the meeting to conduct a manifestation determination along with a copy of the procedural safeguards notice, Whose IDEA Is This?. This notice should be sent with the intent to suspend or expel notice so the required timelines for conducting the review are met.
    • Arrange the team meeting (at a mutually agreed upon time and place) and notify team members of the time and location of the meeting.
    • Identify and collect all relevant information in the child’s file needed to conduct the review, including but not limited to:
      • The child's IEP;
      • Any teacher’s observations;
      • Evaluation data;
      • Relevant information provided by the parents; and
      • The functional behavior assessment (FBA), if conducted.
    • Convene the meeting and review relevant information.
    • Using the relevant information, the team must determine if the behavior resulting in disciplinary action was caused by, or had a direct, substantial relationship to, the child’s disability. To make this determination:
      • Consider placement appropriateness, supplementary aids and services and whether the child’s behavioral intervention strategies were appropriate and consistent with the IEP.
      • Analyze the child’s behavior across settings and across time.
    • If the team can answer yes to either of the following questions, the child's behavior was a manifestation of the disability:
      • Was the conduct in question caused by, or did it have a direct and substantial relationship to, the child's disability? or
      • Was the conduct in question the direct result of the school district’s failure to implement the IEP?

    REQUIREMENT

    3301-51-05
    (K) Conflict resolution
    (20) Authority of school personnel

    (f) Determination that the behavior was a manifestation

    If the school district, the parents, 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:
    (i) Either:

    (a) Start to conduct a functional behavioral assessment within 10 days of the manifestation determination and complete the assessment as soon as is practicable, unless the school district had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavior intervention plan for the child; or
    (b) If a behavioral intervention plan had already been developed, within 10 days of the manifestation determination, review the behavioral intervention plan and the implementation of the plan, and modify it, as necessary, to address the behavior subject to disciplinary action; and

    (ii) Except as provided in paragraph (K)(20)(g) of this rule (special circumstances involving weapons, illegal drugs or serious bodily injury), return the child to the placement from which the child was removed, unless the parent and school district agree to change the placement as part of the modification of the behavioral intervention plan.

    GUIDANCE

    Determination that the behavior WAS a manifestation

    If the school district and parents agree with the manifestation determination:

    • The child remains in the interim alternative educational setting (IAES) for 45 school days with services that enable the child to continue to make progress in the general curriculum and to progress on his or her IEP goals. However, if the behavior is determined to not be a manifestation of the child's disability, the school district may remove the child for a longer period of time, to the same extent a child without a disability would be removed.

    If the school district or parents disagree with the manifestation determination:

    • The school district or parents may request an expedited due process hearing. (See Procedural Safeguards - 5.16 Expedited Due Process Hearing.)
    • The child remains in the IAES until the decision of the hearing officer, or for the same period of time as children without disabilities if the behavior is not a manifestation of the child's disability, or 45 school days if the behavior is a manifestation of the child's disability.

    If the conduct in question was the direct result of the school district's failure to implement the IEP:

    School personnel must:

    • Remedy deficiencies in the implementation of the IEP.
    • Either conduct a functional behavior assessment (FBA) and implement a behavior intervention plan (BIP), or review the existing FBA and BIP and modify them as needed to address the behavior.

    If the child's behavior is a manifestation of the child's disability, school personnel must:

    • Review and modify the child's BIP or begin conducting an FBA:
      • The school district arranges for the IEP team meeting and notifies IEP team members of the time and location of the meeting.
      • The IEP team will consider the problematic behavior that precipitated the disciplinary change of placement.
      • The purpose of the meeting is to review and modify the child's BIP as needed to address the problem behavior, or to plan and begin conducting a FBA and create a behavior intervention plan,if one is not in place.
      • The behavioral interventions should be implemented as soon as is practical.
    • Remedy deficiencies, if any, in the IEP, placement or implementation of the IEP.
      • Were the goals and objectives appropriate?
      • Was the IEP implemented?
      • Was the placement appropriate?
      • Has the child received the supplementary aids and services indicated in the IEP?
      • Were behavior intervention strategies appropriate?
    • Review the existing BIP and modify it, if needed, to address the behavior.
      • Does the child have a BIP?
      • If so, does it need to be revised?
      • If not, does one need to be written?
    • Or, start conducting an FBA and create and implement a BIP.
      • Has the chid had an FBA?
      • If not,provide prior written notice, obtain written parental consent,develop an assessment plan, begin conducting the FBA and develop a BIP.
        • If an FBA is conducted either to determine whether the child is, or continues to be, a child with a disability, or to determine the nature and extent of the special education and related services that the child needs, then an FBA is an evaluation or a reevaluation and parental consent is required.
        • Parental consent is not required if the district is not conducting an evaluative process, but merely collecting or reviewing data that already exists.
        • If the parents do not give written parental consent for the FBA, the school district may, but is not required to, use procedural safeguards (including the mediation and due process procedures)to pursue the evaluation. See Procedural Safeguards - 5.3 Parent Consent for Evaluation.
      • Although the child has been removed from his or her current educational setting, school personnel can begin conducting an FBA to determine the purpose (avoidance or escape, attention or sensory needs) the behavior serves the child.
      • Collect historical and background data by reviewing cumulative folder, IEPs, IAT minutes, statewide assessment scores, attendance and discipline files;
      • Conduct indirect assessments such as rating scales, interviews and checklists;
      • Determine the target behavior for behavioral intervention planning; and
      • Develop a hypothesis, including the context of the behavior, description of the behavior and the function of the behavior.

    School personnel will be unable to collect direct observational data or to verify the hypothesis during the child's removal from school. As soon as the child returns, school personnel should begin to collect direct observational data to verify the hypothesis and to develop behavioral interventions and supports so that the behavior does not recur.

    It may be necessary for school personnel and the parents to develop a plan to return the child to school.

    The child returns to the placement from which he or she was removed unless the parents and school personnel agree to a change of placement as part of the modification of the BIP.

    REQUIREMENT

    Determination that behavior was not a manifestation

    3301-51-05
    (K) Conflict resolution
    (20)Authority of school personnel
    (c) Additional authority
    For disciplinary changes in placement that would exceed ten 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 (K)(20)(e) of this rule, 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 (K)(20)(d) of this rule.

    (d) Services
    (i) A child with a disability who is removed from the child's current placement pursuant to paragraphs (K)(20(c) or (K)(20)(g) of this rule must:

    (a) Continue to receive educational services, as provided in rule 3301-51-02 of the Administrative Code, so as to enable the child to continue to participate in the general 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.

    GUIDANCE

    Determination that the behavior was NOT a manifestation

    If the team determines that the child’s behavior was not a manifestation of the child’s disability, school personnel may:

    • Apply disciplinary procedures in the same manner and for the same duration as would be applied to children without disabilities.
    • The IEP team meets, if needed, to review and modify the child’s IEP to address the behavior, or conduct an FBA and create and implement a BIP to address the behavior so that it does not recur. (See Guidance above.)
    • If the removal constitutes a change in placement, the IEP team determines services that enable the child to advance in the general curriculum and to progress in achieving the goals of his or her IEP.
      • FAPE must be provided to the child beginning on the 11th cumulative day of removal in a school year.

    REQUIREMENT

    3301-51-05
    (K) Conflict resolution
    (22) Appeal
    (a) General
    The parent of a child with a disability who disagrees with any decision regarding placement under paragraphs (K)(2) and (K)(21) of this rule, or the manifestation determination under paragraph (K)(20)(e) of this rule, or a school district 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 paragraphs (K)(7) and (K)(8) of this rule.

    GUIDANCE

    When parents challenge a manifestation determination

     

    8.6 Protections for Children Not Yet Eligible for Special Education and Related Services

    State Performance Plan (SPP):

    (See Overview in the Introduction for more information on the SPP.)

    SPP 4:
    Rates of suspension/expulsion:
    A: Percent of districts identified by the State as having a significant discrepancy in the rate of suspensions and expulsions of children with disabilities for greater than 10 days in a school year; and
    B: Percent of districts identified by the State as having a significant discrepancy in the rates of suspensions and expulsions of greater than 10 days in a school year of children with disabilities by race and ethnicity. (20.U.S.C. 1416 (a)(3)(A); 1412(a)(22)) (Significant discrepancies in discipline rates are those in which the rates of suspensions and expulsions for children with disabilities exceed those for typical children by at least one percent.)

    Intent:

    To ensure that school districts maintain protection for children under the Individuals with Disabilities Education Act (IDEA) while determining if the child was a child with a disability before the behavior that precipitated the disciplinary actions occurred.

    Timelines:

    • Expedited evaluation: If a request for an evaluation is made during the time the child is removed for disciplinary reasons, the evaluation must be conducted in an expedited manner, which means that an evaluation should be conducted in a shorter period of time than a typical evaluation conducted under IDEA, which must be conducted within 60 days of receiving parental consent for the evaluation.

    REQUIREMENT

    3301-51-05 
    (K) Conflict resolution

    (24) Protections for children not determined eligible for special education and related services
    (a) General
    A child who has not been determined to be eligible for special education and related services under this chapter of the Administrative Code and who has engaged in behavior that violated a code of student conduct may assert any of the protections provided for in this rule if the school district had knowledge (as determined in accordance with paragraph (K)(24)(b) of this rule) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.

    (b) Basis of knowledge
    A school district 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:

    (i) 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;
    (ii) The parent of the child requested an evaluation of the child pursuant to rule 3301-51-06 of the Administrative Code; or
    (iii) The teacher of the child, or other personnel of the school district, expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education of the school district or to other supervisory personnel of the school district.

    (c) Exception 
    A school district would not be deemed to have knowledge under paragraph (K)(24)(b) of this rule if: 
    (i) The parent of the child:

    (a) Has not allowed an evaluation of the child pursuant to rule 3301-51-06 of the Administrative Code; or
    (b) Has refused services under this chapter of the Administrative Code; or

    (ii) The child has been evaluated in accordance with rule 3301-51-06 if the Administrative Code and determined to not be a child with a disability.

    (d) Conditions that apply if no basis of knowledge

    (i) If a school district does not have knowledge that a child is a child with a disability (in accordance with paragraphs (K)(24)(b) and (K)(24)(c) of this rule) 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 (K)(24)(d)(ii) of this rule.
    (ii) 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 paragraph (K)(20) of this rule, the evaluation must be completed in an expedited manner.
    (iii) 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.
    (iv) If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the school district of residence and information provided by the parents, the school district of residence must provide special education and related services in accordance with this chapter of the Administrative Code, including the requirements of paragraphs (K)(20) to (K)(26) of this rule and Section 612(a)(1)(A) of the IDEA.

    GUIDANCE

     

    Protections for children not yet eligible

    • A child who has not been determined eligible for special education and related servies and who violated a school code of conduct may assert the IDEA protections if the school district is deemed to have had knowledge that this is a child with a suspected disability before the behavior that is subject to a violation of a code of school conduct occurred.
    • The school district whose Child Find or referral processes do not permit teachers to express specific concerns directly to the director of special education or to other supervisory personnel of the agency are encouraged to change these processes to meet this requirement.

    Basis of knowledge: deemed to have knowledge

    • A school district is deemed to have knowledge if:
      • The parents expressed concern in writing to supervisory or administrative personnel or a teacher of the child in the school district that the child is in need of special education and related services. This also applies if the parents express concern verbally if the parents are unable to write or have a disability and are unable to express the concern in writing;
      • The parents requested an evaluation of the child; or
      • The child's teacher or other school district personnel expressed specific concerns about a pattern of behavior demonstrated by the child to the director of special education or directly to other supervisory personnel of the school district.

    Basis of knowledge: deemed not to have knowledge

    • A school district would be deemed to not have knowledge if:
      • The parents have not allowed an evaluation of the child to take place;
      • The parents have refused special education services; or
      • The child had been previously evaluated and was determined to not be a child with a disability.

    Conditions that apply if there is no basis of knowledge

    • If a school district determines that it does not have knowledge that a child is a child with a disability that requires special education services before taking disciplinary measures against the child, the child may be subjected to the same disciplinary measures applied to children without disabilities.
    • If a request is made for an evaluation during the time period in which the child is subjected to disciplinary measures, the evaluation must be conducted in an expedited manner.

    Expedited evaluation

    • The expedited evaluation must be conducted in a shorter period of time than a typical evaluation and an evaluation under IDEA must be conducted within 60 days of receiving parental consent for the evaluation.
    • Until the evaluation is completed, the child remains in the educational placement determined by school personnel, which can include suspension and expulsion. If the child is determined to be a child with a disability, the school district shall provide special education and related services.

     

Last Modified: 7/10/2013 12:56:42 PM