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DISCIPLINING CHILDREN WITH DISABILITIES

Disciplining Children with Disabilities Forms: Parent Prior Written Notice for Proposed/Refused Action – SE3 Parent Rights (Procedural Safeguards) – SE5 Manifestation Determination Review – SE14A Individualized Education Program (IEP) – SE8

Timeline: Parent Notice given on the date on which the decision is made to make a removal that constitutes a change of placement

• For Manifestation Determination: Within 10 days of determination to remove child for disciplinary reasons for more than 10 days
• For provision of services after removal: On the 11th day of removal

Responsible Person: Principal

PROCEDURES:

• Child with a disability violates a student code of conduct (i.e. breaks a school rule).
• Depending on the violation, school personnel takes one of the actions below:

Action A: Proposes to remove the child for less than 10 consecutive days and total for the year is less than 10 cumulative school days. Action B: Proposes to remove the child for less than 10 consecutive days but total removals are more than 10 school days in the school year. Action C: Proposes to remove the child for 11 or more consecutive school days. Action to be taken: Action A:

• School removes child for less than 10 consecutive days.

• School is not required to provide educational services when removing a child with a disability for less than 10 consecutive days if they do not provide services for students without disabilities who are removed for the same amount of time.

Action B:

• School removes the child for less than 10 consecutive days but removals total more than 10 school days in the school year.

• The school must determine if the current removal is a pattern of removal that may be considered a change of placement.

• If the determination is NO, then the school must by the 10th cumulative school day of removal in the same school year, consult with at least one of the student’s teachers to determine the extent to which FAPE services are needed to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting IEP goals.

• If the determination is YES, then the IEP Team must make a manifestation determination. Go to Section on Manifestation Determination.

• If the IEP Team determines there is no manifestation between disability and the behavior in question, the school may remove the child for the number of days specified.

• If the IEP Team determines there is a manifestation, proceed with procedures for removals of more than 10 days.

Action C:

• School proposes to remove the child for more 11 or more consecutive days. The removal of a child for more than 10 consecutive days is considered a change of placement.

• School notifies parents immediately of the decision to change the placement for disciplinary reasons, and provides them with a copy of the parent rights (procedural safeguards).

• Within 10 school days of decision to remove student for disciplinary reasons the school, the parent (s) and relevant members of the IEP Team must review relevant information and make a manifestation determination.

• Follow procedures based on manifestation determination.

Manifestation Determination:

Step 1: Principal or designee notifies relevant members of the child’s IEP Team (as determined by parent and the school), including the parent, of the meeting to make a manifestation determination.

Step 2:

Principal or designee facilitates manifestation determination meeting by going through the following process: IEP team reviews all relevant information to include but not limited to the following:

• All information in the child’s file

• Child’s IEP

• Any teacher observations

• Any relevant information provided by the parents Step 3: The IEP team must determine:

• Was the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability?, or

• Was the conduct in question the result of the school’s failure to implement the IEP? If the answer to either question is YES, the conduct must be determined to be a manifestation of the child’s disability. Go to Step 5. If the answer is NO, the conduct must be determined not to be a manifestation of the child’s disability. Proceed with the next step. Step 4: The school may use the same disciplinary procedures as that used for students without disabilities. The IEP Team must determine the extent to which services are needed to enable the child to continue to participate in the general education curriculum and progress toward meeting IEP goals. Step 5: If the conduct was a manifestation of the child’s disability and the conduct in question was the result of the school’s failure to implement the IEP, then the school must take steps to correct the deficiencies.

Step 6: If the conduct was a result of the school’s failure to implement the IEP and/or if the conduct was a manifestation of the child’s disability and there is a direct and substantial relationship between the behavior and the disability, then the school must follow the procedures below:

• Conduct a functional behavioral assessment, unless the school had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred; and

• Implement a behavioral intervention plan for the child; if the behavioral intervention plan has already been developed, review the plan, and make changes, as necessary, to address the behavior; and

• Return the child to the placement from which the child was removed, unless the parent and the school agree to a change of placement as part of the modification of the behavior intervention plan.

Special Circumstances School personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child’s disability, if the child:

• Carries a weapon to or possesses a weapon at school, on school premises, or to or at a school function under the jurisdiction of Ministry of Education;

• Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of the Ministry of Education; or

• Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of the Ministry of Education.

• The school must notify the parents 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 code of student conduct of the decision, and provide the parents with their parent rights. Determination of Setting The child’s IEP Team determines the interim alternative educational setting for services mentioned above.

Definitions in this section:

• Controlled substance means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)). Any drug as defined in the five categories of the federal Controlled Substances Act of 1970. The categories, or schedules, cover opium and its derivatives, hallucinogens, depressants, and stimulants.
• Illegal drug means a controlled substance; but does not include a controlled substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under IDEA or under any other provision of Federal law.
• Serious bodily injury has the meaning given the term “serious bodily injury'' under paragraph (3) of subsection (h) of section 1365 of title 18, United States Code.

Bodily injury that involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. 18 USC[From the 'Lectric Law Library's Lexicon].

• Weapon has the meaning given the term “dangerous weapon'' under paragraph (2) of the first subsection (g) of section 930 of title 18, United States Code. Section 930 of title 18, United States Code defines a “dangerous weapon” as “a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 21/2 inches in length.”

Appeal for Interim Alternative Placement The parent of a child with a disability who disagrees with any decision regarding placement due to drugs, weapons, or serious bodily injury, or the manifestation determination, or the MOE 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 as per due process hearing procedures.

• A hearing officer hears and makes a determination regarding an appeal based on the reasons given above.

• In making the determination, the hearing officer may:

• Return the child with a disability to the placement from which the child was removed if the hearing officer determines that the removal was a violation of Sec. 300.530 or that the child's behavior was a manifestation of the child's disability; or

• Order a change of placement of the child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others.

• The procedures under this section may be repeated, if the LEA believes that returning the child to the original placement is substantially likely to result in injury to the child or to others. Expedited due process hearing

• Whenever a hearing is requested in this section, the parents or the MOE involved in the dispute must have an opportunity for an impartial due process hearing consistent with the due process requirements as outlined in the Dispute Resolution section of the MOE Special Education Procedural Manual, except as provided in this section.

• The MOE is responsible for arranging the expedited due process hearing, which must occur within 20 school days of the date the complaint requesting the hearing is filed. The hearing officer must make a determination within 10 school days after the hearing.

• Unless the parents and MOE agree in writing to waive the resolution meeting, or agree to use the mediation process:

• A resolution meeting must occur within seven days of receiving notice of the due process complaint; and

• The due process hearing may proceed unless the matter has been resolved to the satisfaction of both parties within 15 days of the receipt of the due process complaint.

• Palau may establish different State-imposed procedural rules for expedited due process hearings conducted under this section than it has established for other due process hearings, but, except for the timelines as modified in this section, the MOE must ensure that the requirements are met.

• The decisions on expedited due process hearings are appealable as per procedures found in the section on Dispute Resolution.

Placement during appeals When an appeal has been made by either the parent or the MOE, the child must remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period specified in the discipline procedures, whichever occurs first, unless the parent and the MOE agree otherwise.

Protections for children not determined eligible for special education and related services A child who has not been determined to be eligible for special education and related services under Part B of IDEA and who has engaged in behavior that violated a code of student conduct, may assert any of the protections provided for in under IDEA if the MOE had knowledge (as determined in this section) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.

Basis of knowledge The MOE is determined to have knowledge that a child is a child with a disability if before the behavior that precipitated the disciplinary action occurred:

• The parent of the child expressed concern in writing to supervisory or administrative personnel of the MOE, or a teacher of the child, that the child is in need of special education and related services;
• The parent of the child requested an evaluation of the child; or
• The teacher of the child, or other personnel of the MOE, expressed specific concerns about a pattern of behavior demonstrated by the child directly to the special education coordinator of the MOE or to other supervisory personnel of the MOE.

Exception The MOE is not determined to have knowledge if:

• The parent of the child:

• Has not allowed an evaluation of the child as per evaluation procedures; or

• Has refused services under Part B of IDEA; or

• The child has been evaluated in accordance with evaluation procedures and determined to not be a child with a disability under Part B of IDEA. Conditions that apply if no basis of knowledge

• If the MOE does not have knowledge that a child is a child with a disability (in accordance with this section) prior to taking disciplinary measures against the child, the disciplinary measures applied to children without disabilities may be applied to the child who engage in comparable behaviors.

• (i) 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.

• Until the evaluation is completed, the child remains in the educational placement determined by school authorities, which can include suspension or expulsion without educational services.

• If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the MOE and information provided by the parents, the MOE must provide special education and related services as per the discipline procedures in Part B of IDEA.

Referral to and action by law enforcement and judicial authorities Nothing in Part B of IDEA prohibits the MOE from reporting a crime committed by a child with a disability to appropriate authorities or prevents Palau law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability. Transmittal of records

• If the MOE reports a crime committed by a child with a disability, it must ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom the MOE reports the crime.
• When the MOE reports a crime under this section, it may transmit copies of the child's special education and disciplinary records only to the extent that the transmission is permitted by the Family Educational Rights and Privacy Act.

Change of placement because of disciplinary removals

• For purposes of removals of a child with a disability from the child's current educational placement under discipline procedures, a change of placement occurs if:

• The removal is for more than 10 consecutive school days; or

• The child has been subjected to a series of removals that constitute a pattern:

• Because the series of removals total more than 10 school days in a school year;

• Because the child's behavior is substantially similar to the child's behavior in previous incidents that resulted in the series of removals; and

• 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.

• The MOE 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.