Considering Suspension up to Ten School Days
The 1997 IDEA amendments now allow school personnel to propose several alternatives as long as they are no more than ten school days and the disabled student is not subject to more severe penalties than a nondisabled student would face.
20 U.S.C. 1415(k)(1)(A) provides that "School personnel under this section may order a change in the placement of a child with a disability - (i) to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 school days (to the extent such alternatives would be applied to children with disabilities)."
This step would trigger five procedural safeguards:
(1) notice to parents of their rights which includes the duty of the school
(2) notice of Section 504 rights, which may include the duty of the school
(3) specific "Prior Written Notice" to the parent of the proposed action;
(4) a functional behavioral assessment which must include the parent; and
(5) a positive behavioral intervention plan, which must include the parent.
20 U.S.C. 1412(a)(1)(A) assures that during this time a free, appropriate public education must continue.
Notice must be given to parents on the date of the decision to take action, with a statement of procedural safeguards.
Immediately if possible, but in no way more than ten days after the school proposal, there must be a review, which must include the parent, of the relationship between the disability and the misbehavior. 20 U.S.C. 1415(k)(1)(B)(i).
If the school district has not conducted a functional behavioral assessment and implemented a behavioral intervention plan before the behavior that resulted in the suspension, the school district must convene an IEP meeting to develop an assessment plan to address that behavior, or if the student already has a behavioral intervention plan, the IEP team will review the plan and modify it, as necessary, to address the behavior.
***A school district may not go cumulatively over ten days in the year on these "removals."***
Equally important, the cumulative impact of some shorter-than-ten-day removals can reach the same effect as a ten day removal and trigger safeguards. "A series of suspensions that are each of ten days or fewer in duration can create a pattern of exclusions that constitutes a significant change in placement." ["Long-term Suspension or Expulsion of Handicapped Students," U.S. Dept. of Educ, Office for Civil Rights, October 28, 1988].
This information is educational and not intended to be legal advice.
Reed Martin is an attorney with 33 years experience in special education law. He can be reached at www.reedmartin.com.
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