Presented by:Elvin W. Houston

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).

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 in-school 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).

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).

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).

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.

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.’"

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.”

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).

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).

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).

ehouston@sa.wabsa.com