Chapter 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).

     

Last Modified: 7/10/2013 1:16:03 PM