Chapter 8: Behavior and Discipline

Removal of Students with Disabilities

All schools have a code of conduct, usually included in the student handbook, that defines acceptable and unacceptable student behavior. The school code of conduct also defines what action will be taken if a student breaks the rules, including suspension and expulsion.

Students who receive special education services are generally expected to follow school rules, unless their Individual Educational Program (IEP) states otherwise. Individuals with Disabilities Education Act (IDEA) '97 states that a determination of the appropriateness of disciplinary measures must be done on a case by case basis, in light of the circumstances of that incident. Were behavior interventions identified in the IEP implemented according to plan? Are provisions of the IEP inconsistent with school rules that apply to this situation?

10 DAY RULE

Maine's school discipline statute limits suspensions ordered by a building principal to a maximum of 10 school days. Any suspension exceeding 10 days requires a referral to the local school board for action. This 10 day limit also applies to a student receiving special education services, as long as it was determined that the student's violation of school rules was consistent with the IEP.

Removal for less than 10 school days

• School Board retains the authority to sanction identified students for misconduct consistent with their IEPs;
• Administrators may suspend up to a maximum of 10 consecutive days;
• For the first 10 days, consecutively or cumulatively, that a student is removed from school in a school year, the school is not required to provide Free Appropriate Public Education (FAPE), (i.e. a tutor, transportation or any other aspect of the IEP), unless those services are provided for students without disabilities who have been similarly suspended; and
• No Functional Behavioral Assessment (FBA) or Manifestation Determination Review is required until a student has been removed for more than 10 school days in a school year.

 

It should be noted that removal for any portion of the day, even as little as one hour, counts as one full day of suspension. The 10 day rule reflects 10 cumulative days of removal.

Removal for over 10 school days

Upon the 11th cumulative day of suspension, the school is required to:

• Provide notice and Procedural Safeguards to parent(s);
• Convene a PET meeting to:
  • Conduct a Manifestation Determination Review, to determine whether or not there is a link between the behavior of the student and their disability;
  • Conduct a Functional Behavioral Assessment (FBA);
  • Develop a Behavioral Intervention Plan (BIP) or revise the existing BIP;
  • A proactive approach would be to convene a PET meeting as soon as a pattern of behavioral problems is observed.

At this PET meeting:

• Initiate a FBA to determine what might be triggering the behavior;
• Use the FBA to identify options for behavior interventions, strategies, and positive supports; and
• Develop and implement a BIP prior to the 11th day.

There are occasions when removal may occur in excess of 10 cumulative days per year. Maine State Education Regulation (MSER), Chapter 101, states that short term removals for separate incidents of misconduct may occur, but only as long as they do not constitute a change in placement. In this case, the school is required to provide FAPE on the 11th day of removal and thereafter.

It is obviously in everyone’s best interest to try to prevent problems from escalating to the point that there is a suspension.

A pattern of removals for issues related to discipline may indicate ongoing problems that are not being adequately addressed through the IEP. Be sure to look at each situation closely and think about what could be done to help reduce the behavioral incidents.

“FAPE For Students Suspended or Expelled From School... B. In the case of a student with a disability who has been removed from his or her current placement for more than 10 school days in that school year, the public agency, for the remainder of the removals, must: 1. Provide services to the extent necessary to enable the student to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the student’s IEP.” (MSER, Chapter 101, Section 14.3 B 1, p. 92)

Change in Placement

FAPE must be provided for students with disabilities, regardless of whether or not it is determined that the behavior was a manifestation of their disability. School personnel, rather than the PET, determine the nature and extent of such services.

Change of Placement As a Result of Removal

Removal of a student with a disability from the student's current educational placement is considered a change of placement when:

• The removal is for more than 10 consecutive school days; or
• The student is subjected to a series of removals that constitute a pattern and they cumulate to more than 10 school days in a school year.

Factors such as the length of each removal, the total amount of time the student is removed, and the proximity of the removals to one another, must also be considered. The parent must be notified if there is a change in placement and a PET must be convened.

The change in placement rule also applies to students who have been removed from the school bus because the child is then not able to get to school.

Removal To An Interim Alternative Educational Setting

An Interim Alternative Educational Setting generally refers to a place or program outside the school in which FAPE services, including access to the general curriculum can be provided. The school may order that a student be removed to an interim alternative educational setting for up to 45 days when:

• The student knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or at a school function; or
• The student carries a weapon to or possesses a weapon at school or at a school function.

The Interim Alternative Educational Setting must be determined by the PET. FAPE services must be provided, including access to the general curriculum. The student must also receive any services or modifications not previously required by the IEP if necessary to prevent the behavior from recurring.

Schools and parents may request an expedited due process hearing to address removal of the student to an interim alternative educational setting. A hearing officer has the authority to remove a student to an interim alternative educational setting for up to 45 days. There must be substantial evidence that the student is likely to cause injury to themselves or to others if they remain in the current placement. This applies even if the behavior is a manifestation of their disability.

FMI: See, EXPEDITED HEARING, Chapter 7.