There are four themes in the federal regulations that guide the discipline requirements:

• All children, including children with disabilities, deserve safe, well-disciplined schools and orderly learning environments;
• Teachers and school administrators should have the tools they need to assist them in preventing misconduct and discipline problems and to address these problems, if they arise;
• There must be a balanced approach to the issue of discipline of children with disabilities that reflects the need for orderly and safe schools and the need to protect the rights of children with disabilities to a free appropriate public education; and,
• Appropriately developed Individualized Educational Plans with well-developed intervention strategies decrease school discipline problems.

Also threaded throughout the federal law and regulations is the governing principle that students with disabilities are entitled to the same constitutional rights as students without disabilities. These fundamental rights include:

• Meaningful notice of an alleged violation of law or school division rules;
• The opportunity for the student to present an account of the incident; and
• The opportunity to appeal the disciplinary action which is imposed on the student.

While students with disabilities also have additional protections under the IDEA, school personnel must not overlook or dismiss the student's fundamental due process rights in any administrative disciplinary action taken with the student.

All students enrolled in the Rockingham County Public School system are subject to the operational policies of the school board, as found in the Rockingham County Public Schools Policy Manual, regardless of disability status. The policies relating to student discipline procedures are located in §§ JFC, JFCA, JFCC, JGA, and JGD.

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Key Provision: Students with disabilities may be suspended to an alternative setting or out of school for up to ten (10) school days per school year to the extent that such setting is also used for nondisabled students. Subsequently, a student with a disability may be removed for up to ten (10) consecutive school days for separate incidents of misconduct as long as the removals do not constitute a pattern.

Checklist for short-term suspensions:

• Check School Board Policy Manual (§JFC).
• Check if student has a disability or otherwise entitled to IDEA or §504protection.
• Initiate regular discipline procedures.
• Impose a short-term suspension to the extent removal would apply to students without disabilities.
• No educational services are required, unless services are provided to a student without disabilities who has been similarly removed.
• No manifestation determination review is required (up to ten (10) days).
• No functional behavioral assessment (FBA) or behavioral intervention plan (BIP) is required.
• No IEP meeting is required. An IEP meeting may be held if there is a need to revise the IEP to address educational and behavioral concerns.

Q. Who determines whether or not a pattern of removal exists?

A. The Rockingham County Public School system treats all removals for more than ten (10) days as a "change of placement," thus triggering a Manifestation Determination Review. As such, it is the Manifestation Determination Review team that determines the presence or absence of a pattern.

In defining a change of placement, i.e., whether a pattern exists, the regulations refer to the following factors:

• the length of each removal;
• the total amount of time the student is removed; and
• the proximity of the removals to one another.

It is recommended that "cause" (behaviors which resulted in the disciplinary removals) be considered. In reviewing the "cause" of the matter, school personnel may determine the relationship to the infraction to the reasons for the infraction (where the incident occurred; interactions with other people; requirements of a task; or, events that may have triggered these infractions). Therefore, if the infractions, albeit individual and distinct, share similarities (common elements) then it could be relevant in determining if a pattern exists.

You should be aware that the frequency and total time of removals, which, even if proper, may be indicative of substantial deficiencies in the IEP warranting an IEP review. The Office of Special Education Programs (OSEP) cautions that multiple short-term removals may not address or modify the student's inappropriate behavior and may, in fact, be reinforcing it. As OSEP further notes, the regulations and statute do not impose "absolute limits" on the number of days that a student can be removed from school in a school year. However, without evidence of adherence to a process to determine the existence of a "pattern," (such as FBA/BIP; manifestation determination reviews; IEP addendums), the school division may be vulnerable to due process actions.

Q. How should In-School Suspensions (ISS) be counted?

A. The regulations are silent regarding ISS. However, OSEP advises that ISS would not count in the days of suspension as long as the student:

• is afforded the opportunity to continue to appropriately progress in the general curriculum;
• continues to receive the services specified in the student's IEP; and
• continues to participate with nondisabled students to the extent the student would have in the current placement. Please note, ISS is considered a regular education setting.

Q. How are portions of a school day counted for purposes of suspension?

A. OSEP states in its analysis and comments to the federal regulations (IDEA) that portions of the day must be counted. OSEP further specified that a 1/2 day or less suspension is to be counted as a half day of suspension. If more than a 1/2 day, count as a day.

Q. Should bus suspensions be counted in consideration of short/long-term removals?

A. Yes. In Virginia, students with disabilities are entitled to be transported to and from the school and home at no cost in order to enable the student to obtain the benefit of educational programs and opportunities (Code of Virginia §22.1-221).

If alternative arrangements were not made for the student with a disability who has been suspended from the bus to receive educational services, then that bus suspension would count in the number of removal days.

Additionally, OSEP notes that the school division should consider whether the behavior on the bus should be addressed in the IEP. If the student has a behavioral intervention plan or behavioral intervention strategies in the IEP, the bus driver and aide need to be advised of any considerations regarding the student's behavior while being transported.

Q. What services must be provided the student with a disability during any short-term removal that does not constitute a change of placement?

A. Only such services that would be provided to nondisabled students who are so removed.

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Key Provisions:

• Long-term removals constitute a change of placement when:
  • more than ten (10) consecutive school days will be involved;
  • when cumulative school days (which constitute a pattern of similar behavior) exceed the ten (10) day mark.
• School personnel may place a student with a disability in an Interim Alternative Educational Setting (IAES) for forty-five (45) calendar days for situations involving the student:
  • carrying or possessing a weapon in school or at school functions;
  • knowingly possessing or using illegal drugs, or selling or soliciting a controlled substance; and
  • with agreement of parents or hearing officer's order, if the student is substantially likely to injure self or others.
• A change of placement or removal for more than ten (10) school days in a school year requires the development of a Functional Behavioral Assessment (FBA) and a Behavior Intervention Plan (BIP).
• A change of placement requires a manifestation determination review.
• An expedited due process hearing may be requested to resolve any dispute relative to special education disciplinary situations involving a change of placement or manifestation determination.
• No later than the decision date in which school personnel contemplate that there will be a long-term suspension, notice of this decision and procedural safeguards must be provided to the parents.

Checklist for Long-Term Suspension/Expulsion/Pattern of Short-Term Suspensions exceeding ten (10) days:

• Check school Board Policy Manual (§JFC).
• Check if student has a disability or otherwise entitled to IDEA or §504 protection.
• Give notice to the parent/surrogate/guardian of the recommendation for discipline and of procedural safeguards not later than the date on which the decision is made to recommend discipline.
• Provide written notice of Manifestation Determination Review (MDR).
• Conduct MDR within ten (10) school days. If an FBA/BIP has not been conducted previously, then such proceedings must occur in conjunction with the MDR.
• If there is no manifestation, utilize the same disciplinary procedures as for students without disabilities, except necessary education services must be provided.
• If there is a manifestation, the student is not to be disciplined (beyond the ten (10) days in question) but the IEP may be reviewed and revised.
• If an IAES is an option (weapon or drug violation, or dangerous to self/others), then an IEP meeting must occur to determine IAES setting and, if dangerousness is an issue, obtain parent/guardian/surrogate consent.
• Confer the discipline and MDR findings (and any additional special education records, as appropriate) to the Disciplinary Committee for the final determination of discipline.
• If long-term suspended or expelled, develop IEP for educational services for the disciplinary period.

Q. What is a Functional Behavioral Assessment?

A. A functional behavioral assessment (FBA) is a process to determine the underlying cause or functions of a student's behavior that impede the learning of the student with a disability or the learning of the student's peers. A FBA or review of an existing IEP behavioral component may be done before, but must be done no later than ten (10) business days after:

• A student with a disability is removed for more that ten (10) school days in a school year; or
• Commencing a removal that constitutes a change of placement (including an IAES).

Q. Is parental consent required for the FBA?

A. Generally, the FBA is a review of existing data and, as such, consent is not required. If, however, the FBA team will request the collection of any new data before a review of existing information occurs, then parental consent needs to be obtained.

Q. What is a Behavioral Intervention Plan?

A. A behavioral intervention plan (BIP) is a plan that utilizes positive behavioral interventions and supports to address behaviors which interfere with the learning of students with disabilities or with the learning of others or that require disciplinary action. A BIP should be developed as soon as practicable after developing a FBA.

Q. Who constitutes a FBA/BIP team?

A. The FBA/BIP team is an IEP team with the addition of a school psychologist and a school social worker. As such, the committee should include the student's parent/surrogate/guardian, building level administrator (or designee), regular education teacher, special education teacher, school psychologist, school social worker, and other qualified individuals, as appropriate.

Q. What is a manifestation determination review?

A. A manifestation determination review (MDR) is a process to review all relevant information and subsequently determine if there is a relationship between the student's disability and the behavior subject to disciplinary action.

Q. Who constitutes a MDR team?

A. The MDR team is an IEP team with the addition of other qualified individuals, as appropriate. As such, the committee should include the student's parent/surrogate/guardian, building level administrator (or designee), regular education teacher, and special education teacher. "Other qualified individuals" generally includes a school psychologist and a school social worker but may also include individuals who are knowledgeable about how the disability might impact behavior or can provide an understanding of the impact and/or consequences of the behavior, as well as persons knowledgeable about the student and the disability.

Q. What is the MDR team required to consider in arriving at its decision regarding manifestation determination?

A. There are three primary components of a MDR:

1. The MDR committee must consider:
   • Evaluation and diagnostic results (previous or new);
   • Information provided by the parent;
   • Observation of the student; and
   • The student's IEP and placement and, in relationship to the behavior subject to disciplinary action, the appropriateness of the IEP and placement, supplementary aids and services, and behavior intervention strategies.
2. If the student has a BIP, review the BIP and determine if it was consistently implemented. If the student does not have a BIP, then a FBA must be conducted with a subsequent BIP developed.
3. The MDR team must then determine whether the behavior is a manifestation of the disability. The team may determine that the behavior was not a manifestation of the disability only if:
   • in relation to the behavior, the IEP and placement were appropriate;
   • the IEP services and behavior intervention strategies were implemented;
   • the disability did not impair the ability of the student to understand the impact and consequences of the behavior; and
   • the disability did not impair the student's ability to control the behavior.

   Only if the team is able to demonstrate that all of these factors are met can there be a conclusion of no manifestation.

Q. How does the team distinguish between the student's ability to understand the impact and consequences of the behavior and the ability to control the behavior?

A. Basically, the team needs to consider whether, as a result of the student's disability, the student lacked the capacity either to appreciate the wrongfulness of the conduct or to conform to expected conduct. A student may very well know the school's rules and consequences; however, the disability may limit or impede the student's ability to control that behavior, and/or to appreciate that certain behaviors are wrong. For example, impulsivity may override intellect. For some students, situational understanding may be very concrete and generalization to other situations may be absent. Others may have cognitive disabilities that inhibit understanding. As with many aspects of special education, such decisions are made on a case-by-case basis and are subject to the team process (deliberations) and decision by consensus.

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