Presented by:
Elvin W. Houston
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A bus suspension counts as a day of removal
if the IEP calls for transportation, the student
is suspended from the bus as a disciplinary
measure, and the district provides no other
form of transportation. OSERS Questions and
Answers on Serving Children with Disabilities
Eligible for Transportation, 53 IDELR 268
(November 1, 2009).
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An in-school suspension day counts as a day of removal
unless it meets Department of Education criteria for a smart
ISS. When in doubt count.
“[I]t has been the Department’s long term policy that an inschool suspension would not be considered a part of the days
of suspension addressed in §300.530 as long as the child is
afforded the opportunity to continue to appropriately
participate in the general curriculum, continue to receive the
services specified on the child’s IEP, and continue to
participate with non-disabled children to the extent they
would have in their current placement. This continues to be
our policy.” 71 Fed. Reg. 46715 (August 14, 2006).
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You must begin providing services when your days of
removal total more than 10 in a school year.
“… school personnel, in consultation with at least one
of the child’s teachers, [must] determine the extent
to which services are needed, as provided in §
300.101(a)[guarantee of a FAPE], 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.” 34 C.F.R. § 300.530(d)(4).
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It is not the role of the IEP team or special
education hearing officer to determine
whether the child committed a violation of
the student code of conduct or the proper
penalty under the code of conduct. District
of Columbia v. Doe ex rel. Doe, 51 IDELR 8
(D. D.C. 2008).
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The IDEA regulations do not prohibit the school
from reporting crimes committed by students with
disabilities. Where such crimes constitute a violation
of the school's code of student conduct, school
authorities may use the relevant discipline
provisions related to short-term and long-term
removals. To the extent that such criminal acts also
result in an injury that meets the definition of
"serious bodily injury," the removal provisions of 34
CFR § 300.530(g) would apply. OSERS Questions
and Answers on Discipline Procedures, 52 IDELR 231
(June 1, 2009), Q/A C-2.
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When conducting a manifestation determination review
for a student with emotional disturbance, examine the
underlying nature of the emotional disturbance and
consider the student’s behavior across settings and
across time.
Fitzgerald v. Fairfax County Sch. Bd., 50 IDELR 165 (E.D.
Va. 2008). “Kevin's anxiety was the ‘primary basis for his
disability classification,’ rather than the occasional
"juvenile outburst[s]" of acting inappropriately in class
with friends. The evaluations setting forth Kevin's
eligibility under the IDEA described his headaches and
school absences, but noted no social problems; indeed,
Kevin was described as ‘academically capable and socially
popular.’"
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When conducting a manifestation determination review
for a student with an other health impairment due to
ADHD, probe the circumstances surrounding the
misconduct before concluding the student’s misconduct
was caused by the ADHD.
Fitzgerald v. Fairfax County Sch. Bd., 50 IDELR 165 (E.D.
Va. 2008). “Even assuming Kevin's disability did cause
him to be drawn into inappropriate behaviors at times,
the record makes pellucidly clear that far from being
drawn into the paintball shooting incident, Kevin played a
predominant role in planning and executing it. … Kevin
simply made a bad decision; he must now live with the
consequences.”
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You must conduct a manifestation
determination review within 10 days of a
decision to make a disciplinary change of
placement even under special circumstances
(drugs, weapons, serious bodily injury). A.P.
by A.P. and M.S. v. Pemberton Township Bd.
of Educ., 45 IDELR 244 (D. N.J. 2006).
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The term “serious bodily injury” means bodily injury
which involves-- (A) a substantial risk of death; (B)
extreme physical pain; (C) protracted and obvious
disfigurement; or (D) protracted loss or impairment of
the function of a bodily member, organ, or mental
faculty. 18 U.S.C. § 1365(h)(3).
The term “bodily injury” means-- (A) a cut, abrasion,
bruise, burn, or disfigurement; (B) physical pain; (C)
illness; (D) impairment of the function of a bodily
member, organ, or mental faculty; or (E) any other injury
to the body, no matter how temporary. 18 U.S.C. §
1365(h)(4).
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Even if there is no basis of knowledge, “if a request
is made for an evaluation of a child during the time
period in which the child is subjected to
disciplinary measures ... the evaluation must be
conducted in an expedited manner.” 34 C.F.R. §
300.534(d)(2)(i). See OSEP Letter to Combs (August
15, 2008) (concluding that district could not rely
on RTI process as a justification for refusing
expedited evaluation).
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