1	“What’s He Done Now: Defending a Child Facing Disciplinary Removal Under IDEA 2004” Jerri Katzerman Managing Attorney Arizona Center for Disability Law Presentation for COPAA Conference April 1, 2006
2	First Things First – When is a Removal a Change in Placement? Short Term Removals -- NOT School personnel may remove a child with a disability for not more than 10 school days. 1415(k)(1)(B). FAPE not required School day means any day, including a partial day, that students are in attendance at school for instructional purposes. 34 C.F.R. §300.9(c)(1) (1999).
3	Multiple Short Term Removals? MAYBE -- Must exceed 10 cumulative school days Will be a change in placement if a series of removals constitute a “pattern” based on length of removal, total amount of time child is removed, and proximity of removals. 34 C.F.R. §300.519(b) (1999). Proposed regulations would add nature of the behavior to the analysis
4	Long Term Removals Black Letter Rule – A removal of more than 10 consecutive school days IS a change in placement.
5	Case-by-Case Determination “School personnel may consider any unique circumstances on a case-by-case basis when determining whether to order a change in placement for a child with a disability who violates a code of student conduct.” 1415(k)(1)(A).
6	Manifestation Determination Basic Assumptions – We do not punish children for conduct caused by the disability. If the conduct is not a manifestation of the disability, the student may be subjected to long term removal on the same basis as a child without a disability (subject to continuation of services).
7	The “Improved” Law: MD under IDEA 2004 When-- Must be determined within 10 school days of any decision to impose discipline that would result in a change in placement. 1415(k)(1)(E)(i).
8	Members of the Team Who Determines – The local educational agency, the parent, and “relevant” members of the IEP Team. 1415(k)(1)(E)(i). “Relevant” members of the IEP Team as determined by the parents and the LEA Open question – how to determine “relevant” members
9	Conduct of Manifestation Determination Review The group shall review all relevant information in the student’s “file,” including IEP, teacher observations, and any relevant information provided by the parents. 1415(k)(1)(E)(i). What is relevant? Who determines relevance?
10	Standard for Determination May determine that the conduct in question is a manifestation of the disability if: The conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or The conduct in question was the direct result of the district’s failure to implement the IEP. 1415(k)(1)(E)(i)(I)-(II).
11	Effect of Finding that Conduct IS NOT a Manifestation If conduct is not a manifestation of the disability, the student may be disciplined in the same manner and for the same duration as children without disabilities (subject to the continuation of services).
12	Continuation of Services/Not Manifestation The student shall: continue to receive educational services, as provided in section 1412(a)(1), 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 student’s IEP; and Receive, as appropriate, a functional behavioral assessment, behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur. 1415(k)(1)(D)(i)-(ii). Determination of alternative setting shall be made by the student’s IEP Team. 1415(k)(2).
13	Effects of Affirmative MD Finding If the group determines that the conduct is a manifestation of the disability, then the IEP Team shall: Conduct a functional behavioral assessment and implement a behavior intervention plan; or If behavior intervention plan already exists, review and modify as necessary; and Student returns to pre-removal placement, unless parent and school agree to a change as part of the BIP or special circumstances (weapons, drugs, serious bodily injury) apply. 1415(k)(1)(F).
14	Unilateral Removals School personnel may remove a student to an interim alternative educational setting (“IAES”) for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child’s disability in "special circumstances.” 1415(k)(1)(G).
15	Special Circumstances: Carries or possesses a weapon to or at school, on school premises, or to or at a school function; or Knowingly possesses or uses illegal drugs, or sells or solicits the sale or a controlled substance, while at school, school premises, or school function; or Inflicted serious bodily injury upon another while at school, school premises, or school function. 1415(k)(1)(G)(i)-(iii).
16	Defined by Federal Law: “Weapon” means weapon, device, instrument, material or substance that is used for or readily capable of causing death or serious bodily injury. A knife blade of less than 2 ½ inches is excluded. “Illegal drug” means a controlled substance, but not a controlled substance that is legally possessed “Serious bodily injury” means bodily injury that involves: Substantial risk of death Extreme physical pain Protracted and obvious disfigurement Protracted impairment of the function of a bodily member, organ or mental faculty
17	Interim Alternative Educational Setting The determination of the IAES must be made by the student’s IEP Team. 1415(k)(2). If conduct is a manifestation of the disability, the school must provide (or review) FBA/BIP even though special circumstances exist.
18	Removals by the Hearing Officer: The “Dangerousness” Exception School system may request a due process hearing if it believes that maintaining the current placement of a student is substantially likely to result in injury to self or others. 1415(k)(3)(A). Authority of Hearing Officer: May order that child be returned to pre-disciplinary placement; or Order a change in placement to an “appropriate” IAES for not more than 45 school days
19	Removal by Hearing Officer for “Dangerousness” Standard of Proof: Requirement that district prove dangerousness by substantial evidence is deleted in IDEA 2004 Proof by a mere preponderance of the evidence appears to be sufficient
20	Expedited Hearing The parties are entitled to an expedited hearing which shall occur within 20 school days of the date the hearing is requested and shall result in a determination within 10 school days after the hearing. 1415(k)(4)(B).
21	Maintenance of Current Educational Placement (“stay put”) “Except as provided in subsection (k)(4), during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed.” 1415(j).
22	Limitation on Stay Put When an appeal is filed, either by the parent or the district, the student must remain in the disciplinary setting pending the decision of the hearing officer or until the expiration of the removal, whichever occurs first, unless the parent and the district otherwise agree. 1415(k)(4).
23	Due Process Hearings/Appeals A parent may request a due process hearing to appeal any decision regarding placement or manifestation determination. 1415(k)(3)(A). The parties are entitled to an expedited hearing which shall occur within 20 school days of the date the hearing is requested and shall result in a determination within 10 school days after the hearing. 1415(k)(4)(B).
24	Notification Requirements Not later than the date on which the decision to take disciplinary action is made, the local educational agency shall notify the parents of that decision, and of all procedural safeguards. 1415(k)(1)(h).
25	Protections for Students Not Yet Eligible Still exists, but has been narrowed District is deemed to have knowledge that the child is a student with a disability and therefore entitled to IDEA protections if, before the behavior in question: The parent expressed concern “in writing” to supervisory or administrative personnel of the district, or a teacher of the child that the child needs special education; Parent requested an evaluation; or Teacher or other personnel expressed specific concerns about a pattern of behavior directly to the director of special education or other supervisory personnel. 1415(k)(5)(B).
26	Exception School system will not be deemed to have knowledge if: Parent refused an evaluation or services; or Child has been evaluated and was determined not to have a disability. 1415(k)(5)(C).
27	Expedited Evaluation If parent requests an evaluation during disciplinary proceedings, the district must complete it in an expedited manner. Placement pending completion of expedited evaluation is determined by the district. 1415(k)(5)(D)(ii).