Discipline Part 201

1. DisciplinePart 201

2. Provision of Procedural Safeguards Notice whenever there is a disciplinary change in placement Manifestation Determination whenever there is a disciplinary change in placement FBA whenever there is a manifestation (relationship) between the behavior and the student’s disability Provision of FAPE Whenever the student is removed for more than 10 days in a school year Requirements for removals to an interim alternative educational setting (IAES) Illegal drugs and/or controlled substances Weapons Serious Bodily Injury Dangerousness (IHO removal) Students presumed to have a disability Same protections apply Expedited evaluations Expedited impartial hearings Pendency The same disciplinary procedures that apply to all students apply to students with disabilities. However, there are additional requirements for students with disabilities:

3. The Procedural Safeguards notice must be provided to parents of a student with a disability, at a minimum one time per year and also upon: • initial referral or parental request for evaluation; • request by a parent; • the first filing of a due process complaint notice to request mediation or an impartial due process hearing; • a decision to impose a suspension or removal that constitutes a disciplinary change in placement; and • receipt of a parent’s first State complaint in a school year.

4. Disciplinary change in placement means a suspension or removal from a student's current educational placement that is either: • for more than 10 consecutive school days; or • for a period of 10 consecutive days or less if the student is subjected to a series of suspensions or removals that constitute a pattern because they cumulate to more than 10 school days in a school year – • because the student’s behavior issubstantially similar to the student’s behavior in previous incidents that resulted in the series of removals; and • because of such additional factors as: • the length of each suspension or removal; • the total amount of time the student has been removed; and • the proximity of the suspensions or removals to one another.  • Determined on a case-by-case basis • Subject to review through due process and judicial proceedings.

5. Exception for pattern of suspensions or removals A student with a disability may not be removed if imposition of the 5 school day or 10 school day suspension or removal would result in a disciplinary change in placement based on a pattern of suspensions or removals as determined by school personnel in accordance with the criteria set forth in section 201.2(e)(2) of this Part, except where the manifestation team pursuant to section 201.4 of this Part has determined that the behavior was not a manifestation of such student's disability, or the student is placed in an IAES as authorized under subdivision (e) of this section.

6. Manifestation Determinations Determine if conduct is a manifestation of disability: • no later than 10 days from the proposed suspension (decision to impose/decision to change) for general suspensions • and no later than 10 days from the moment of the removal/suspension by IHO due to dangerous situations (201.8).

7. Manifestation Determination Timeline The clock starts clicking at the moment that the principal discusses the incident and either decides to impose a principal suspension or request from OYD a consideration for a Superintendent's suspension. Not when OYD accepts the request.

8. Manifestation Team must include: • a representative of the school district knowledgeable about the student and the interpretation of information about child behavior; • the parent; and • relevant members of the CSE as determined by the parent and the school district.   • The parent must receive written notification prior to any manifestation team meeting to ensure that the parent has an opportunity to attend.  The notification shall inform the parent of the purpose of the meeting, the names of the individuals expected to attend and inform the parent of his or her right to have relevant members of the CSE participate at the parent’s request.

9. Conduct of the Manifestation Review • The manifestation team must review all relevant information in the student’s file including • the student’s IEP; • any teacher observations; and • any relevant information provided by the parents

10. Manifestation Determination • The conduct must be determined to be a manifestation of the student’s disability if the manifestation team determines that • the conduct in question was caused by or had a direct and substantial relationship to the student’s disability; or • the conduct in question was the direct result of the school district’s failure to implement the IEP.

11. Manifestation Determination • If the manifestation team determines that the conduct was a manifestation of the student’s disability, the CSE must: • conduct a functional behavioral assessment and implement a behavioral intervention plan for such student; and • return the student to the placement from which the student was removed, unless • the parent and the school district agree to a change of placement as part of the modification of the behavioral intervention plan. • The removal was due to dangerousness or drugs/controlled substances, weapons or serious bodily injury • If the student’s behavior was a direct result of the districts failure to implement the student’s IEP, take immediate steps to remedy those deficiencies.

12. No Manifestation Found If the manifestation team determines that the student’s behavior was not a result of their disability or of the district’s failure to implement the IEP, the student may be disciplined in the same manner as a nondisabled student.

13. Functional behavioral assessmentsBehavioral intervention plans • Whenever there is a manifestation determination (behavior is related to the disability), the CSE must: • conduct an FBA (if one has not been conducted); and • implement a BIP (or if already developed, review and modify if necessary)

14. Provision of services during suspensions During suspensions or removals for periods of up to 10 school days in a school year that do not constitute a disciplinary change in placement: • students with disabilities of compulsory attendance age - alternative instruction on the same basis as nondisabled students.  • Students with disabilities who are not of compulsory attendance age shall be entitled to receive services during such suspensions only to the extent that services are provided to nondisabled students of the same age who have been similarly suspended. • Please see SECTION 3214 for full details. New York State provides due process, as part of 3214, to all students.

15. For Full Information on Due Process Rights for ALL Students • See Section 3214 Student placement, suspensions and transfers http://www.p12.nysed.gov/specialed/publications/policy/section3214.htm

16. Whenever a student with a disability is removed for 10 or more days in a school year, they are entitled to receive: • Services necessary to enable the student to: • continue to participate in the general education curriculum; • progress toward meeting the goals set out in the student's IEP; and • receive, as appropriate, a functional behavioral assessment, behavioral intervention services and modifications that are designed to address the behavior violation so it does not recur. 

17. Determining services and setting - students suspended for more than10 school daysin a school year • If not a disciplinary change in placement – school personnel in consultation with the student’s teacher • If a disciplinary change in placement – the CSE also determines the IAES setting

18. During subsequent suspensions or removals for periods of 10 consecutive school days or less that in the aggregate total more than 10 school days in a school year but do not constitute a disciplinary change in placement, regardless of the manifestation determination Students with disabilities shall be provided with services necessary to enable the student to continue to participate in the general education curriculum and to progress toward meeting the goals set out in the student's IEP and to receive, as appropriate, a functional behavioral assessment, behavioral intervention services and modifications that are designed to address the behavior violation so it does not recur. School personnel, in consultation with at least one of the student’s teachers, shall determine the extent to which services are needed, so as to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress in meeting the goals set out in the student’s IEP 201.10(C) http://www.p12.nysed.gov/specialed/lawsregs/part201.htm

19. Interim alternative educational setting or IAES • A temporary educational placement, other than the student's current placement at the time the behavior precipitating the IAES placement occurred. • A student who is placed in an IAES shall: • continue to receive educational services so as to enable the student to: • continue to  participate  in the general education curriculum, although in another setting, and • to progress toward meeting the goals set out in the student’s IEP; and • receive, as appropriate, a functional behavioral assessment and behavioral intervention services and modifications that are designed to address the behavior violation so that it does not recur.

20. Change in placement to an IAES for behavior involving serious bodily injury, weapons, illegal drugs or controlled substances The superintendent may order a change in placement to an appropriate IAES, to be determined by the CSE, for up to 45 school days where the student, while at school, on school premises or at a school function: • Has inflicted serious bodily harm to another person • Carries or possesses a weapon • Possesses, uses illegal drugs or sells or solicits the sale of a controlled substance

21. Serious bodily injury • bodily injury which involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ or mental faculty. • Controlled substance • a drug or other substance identified under schedule I, II, III, IV, or V in section 202(c) of the Controlled Substances Act • Illegal drug • a controlled substance, but does not include a controlled substance legally possessed or used under the supervision of a licensed health-care professional or a substance that is otherwise legally possessed or used under the authority of the Controlled Substances Act or under any other provision of Federal law. • Weapon • 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 two and one-half inches in length.

22. Dangerousness Removals by an IHO • An impartial hearing officer, in an expedited due process hearing, may order a change in placement of a student with a disability to an IAES for not more than 45 school days, if the IHO determines that maintaining the current placement of the student is substantially likely to result in injury to the student or others.

23. Students presumed to have a disability for discipline purposes • The parent may assert any of the protections set forth in Part 201, if the school district is deemed to have had knowledge that the student was a student with a disability before the behavior that precipitated the disciplinary action occurred. 

24. Basis of knowledge. • A school district must be deemed to have knowledge that a student had a disability if prior to the time the behavior occurred: • the parent of such student has expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency or to a teacher of the student that the student is in need of special education, provided that such expression of concern may be oral if the parent does not know how to write or has a disability that prevents a written statement; or • the parent of the student has requested an evaluation of the student; or • a teacher of the student, or other personnel of the school district, has expressed specific concerns about a pattern of behavior demonstrated by the student, directly to the director of special education of the school district or to other supervisory personnel of the school district.

25. A student is not presumed to have a disability if…. • the parent of the student has not allowed an evaluation of the student to determine the student’s eligibility for special education; or • the parent of the student has refused consent for special education services; or • it was determined that the student is not a student with a disability (not eligible).

26. Who determines whether a student is a student presumed to have a disability? It is the responsibility of the superintendent of schools, building principal or other school official imposing the suspension or removal to determine whether the student is a student presumed to have a disability.

27. Conditions that apply if there is no basis for knowledge.   • If there is no basis for knowledge that the student is a student with a disability prior to taking disciplinary measures against the student the student may be subjected to the same disciplinary measures as any other nondisabled student who engaged in comparable behaviors.   • However, if a request for an individual evaluation is made while such nondisabled student is subjected to a disciplinary removal, an expedited evaluation must be conducted.

28. CSE Responsibilities forExpedited Evaluations • Must be completed no later than 15 school days after receipt of parent consent for evaluation, and conducted in accordance with the procedural requirements of sections 200.4 and 200.5. • The CSE must make a determination of eligibility of such student in a meeting held no later than five school days after completion of the expedited evaluation. • Until the expedited evaluation is completed, the nondisabled student remains in the educational placement determined by the school district, which can include suspension. • If, as a result of an expedited evaluation, the student is determined to be a student with a disability, the school district must: • provide special education to the student and • the discipline provisions of Part 201 relating to students with disabilities applies (provision of FAPE; manifestation determinations, etc.).

29. Expedited Impartial Hearings • School district request to obtain an order of an IHO to place a student with a disability in an IAES for dangerousness • Parent requests an impartial hearing: • from a determination that the student's behavior was not a manifestation of the student's disability; or • relating to any decision regarding placement under section 201.7, including but not limited to any decision to place the student in an IAES.

30. Expedited Impartial Hearings • No sufficiency challenge to due process complaint notice • Must schedule resolution meeting within 7 days • Resolution period ends at 15 days • Impartial hearing must occur within 20 school days of date complaint filed • IHO decision within 10 school days after hearing • No extensions • Pendency: For parent requested expedited hearings: • the student remains in the IAES pending the decision of the IHO or until expiration of the time period determined in accordance an IAES removal, whichever occurs first, • unless the parents and the school district otherwise agree.