Disciplinary Exclusions of Students Who Are Eligible for Special Education
22 Pa. Code Section 14.143 and 22 Pa. Code Section 711.61
Date of Issue: July 1, 1999
Date of Revision: June 12, 2021
Replaces: Disciplinary Exclusions of Students Who Are Eligible for Special Education, BEC 22 Pa. Code Section 14.35, issued July 1, 1999
(Note: Local educational agencies (LEAs) that place a special education student into an alternative education for disruptive youth (AEDY) program must adhere to the provisions of 24 P.S. Articles XIX-C and XIX-E and the Basic Education Circular entitled Alternative Education for Disruptive Youth.)
Purpose
On August 14, 2006, the United States Department of Education's Office of Special Education Programs (OSEP) published federal regulations for Part B of the Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004). These federal regulations made several changes to IDEA's discipline procedures. This Basic Education Circular (BEC) provides written guidance regarding disciplinary exclusions of students eligible for special education under 22 Pa. Code Chapters 14 and 711 and of students not determined eligible for special education and related services if the local education agency (LEA) had knowledge that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred in accordance with 34 C.F.R. § 300.534.
Procedures
Changes to federal law do not necessarily require or allow changes in practice in Pennsylvania in every instance. When considering the overlap of federal and state statutes and regulations, LEAs) must obey whichever requirement provides the greater protection to special education students.
Applicability of Chapter 12 and the Public School Code of 1949
All students in the commonwealth subject to disciplinary exclusions are protected by due process procedures in 22 Pa. Code Chapter 12. In addition, when contemplating a disciplinary exclusion of any student, the LEA must first determine whether the student is eligible for services under 22 Pa. Code Chapters 14 or 711. If the student is eligible for special education, the LEA must determine whether the disciplinary exclusion being contemplated is a change in educational placement, as described in 22 Pa. Code § 14.143 or § 711.61.
Applicability of Chapter 14, Chapter 711 and IDEA 2004
According to 22 Pa. Code §§ 14.143 & 711.61 and IDEA 2004, an intended disciplinary exclusion of a student eligible for special education is a change in educational placement in any of these three situations:
- The disciplinary exclusion is for more than 10 consecutive school days;
- The disciplinary exclusion, when cumulated with other disciplinary exclusions in a single school year, exceeds 15 school days; or
- The disciplinary exclusion (for any length of time) involves a student with an intellectual disability.
Manifestation Determination
A student with a disability may not be removed to an AEDY Program if their behavior is a manifestation of their disability with the exception of the circumstances listed in 34 C.F.R. § 300.530(g) or § 300.532(b)(2)(ii), or when the student's parent and LEA agree to the change in educational placement pursuant to 34 C.F.R. § 300.530(f)(2). For all students eligible under IDEA and Section 504, the LEA must conduct and document a manifestation determination prior to a disciplinary change in educational placement. For circumstances listed in 34 C.F.R. § 300.530(g), the LEA must conduct and document a manifestation determination within 10 days of the decision to change the educational placement. A copy of a recommended Manifestation Determination Worksheet is available on the Pennsylvania Training and Technical Assistance (PaTTAN) website, keyword "Manifestation Determination Worksheet."
A student with a disability may be removed to a 45-school-day interim alternative educational setting without regard to whether the behavior was a manifestation of the student's disability if the student: 1) Carries a weapon or possesses a weapon at school, on school premises, or at a school function; 2) 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; or 3) Inflicts serious bodily injury upon another person while at school, on school premises, or at a school function. 34 C.F.R. § 300.530(g). In addition, a student with a disability may be removed to an appropriate interim alternative educational setting for not more than 45 school days if a hearing officer orders the change in placement after determining that maintaining the current placement of the student is substantially likely to result in injury to the student or to others. 34 C.F.R. § 300.532(b)(2)(ii).
IDEA 2004 requires the LEA, parent/guardian, and relevant members of the student's Individualized Education Program (IEP) team (as determined by the LEA and parent/guardian) to determine whether the conduct is a manifestation of a student's disability. If the LEA, parent/guardian, and relevant members of the IEP team determine that the conduct was a manifestation of the student's disability, the IEP team must either conduct a functional behavioral assessment, unless the LEA had conducted a functional behavioral assessment before the behavior that resulted in the change of educational placement occurred, and implement a behavioral intervention plan for the student; or if a behavioral intervention plan already has been developed, the IEP team must review the behavioral intervention plan and modify it, as necessary, to address the behavior. 34 C.F.R. § 300.530(f)(1).
If the LEA determines that a student's behavior was not a manifestation of the student's disability, then the LEA may proceed with the disciplinary exclusion via the procedures for changing educational placement. IDEA 2004 provides that parents/guardians may dispute a manifestation determination and a disciplinary exclusion by requesting a due process hearing, thereby invoking pendency. Such hearings must be expedited.
34 C.F.R. § 300.530(e)(1)(ii) states that if during the manifestation determination, the LEA determines that the conduct was the direct result of a failure to implement the IEP, the LEA must take immediate steps to remedy the deficiencies.
When a due process hearing is requested to challenge a manifestation determination or a disciplinary exclusion, it must be expedited. Section 300.532(c)(2) requires that a hearing occur within 20 school days of the date the due process complaint requesting the hearing is filed. The Office for Dispute Resolution will assign a hearing officer to review disputes requiring an expedited hearing. A hearing officer, in an expedited due process hearing, may order a change in the placement of a student 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 student is substantially likely to result in injury to the student or to others. 34 C.F.R. § 300.532. When applying this provision, hearing officers must consider the appropriateness of the student's current placement and whether the LEA has made reasonable efforts to minimize the risk of harm in the student's current placement, including the use of supplementary aids and services.
For any student with a disability who is removed from their current placement for disciplinary purposes, the student must continue to receive educational services in the interim alternative educational setting that is determined by the IEP team so as to enable the student to continue to progress in the general 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)(1)(i). The child's IEP should also include services and modifications that are designed to prevent the behavior from recurring.
After meeting all procedural requirements, if the IEP team recommends a disciplinary exclusion which would constitute a change in educational placement, the LEA must follow the notice requirements for changes in educational placement. If the parents/guardians dispute the LEA's proposed change in educational placement and request a due process hearing, then the pendency requirements under 34 C.F.R. § 300.518 apply. As mentioned above and further discussed below, however, there are exceptions to pendency under 34 C.F.R. § 300.533 and in accordance with a hearing officer or court order.
Exceptions to Pendency Requirements under 34 C.F.R. § 300.518
The following exceptions are applicable in Pennsylvania:
Exception 1. Students whose behavior that gave rise to the disciplinary exclusion is determined not to be a manifestation of the child's disability.
Parents/guardians who disagree with a manifestation determination or disciplinary exclusion under 34 C.F.R. § 300.530(c) may request a due process hearing in accordance with 34 C.F.R. § 300.532. When an appeal has been made, 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 34 C.F.R. 300.530(c), whichever occurs first, unless the parent and the LEA agree otherwise.
Exception 2. Students who carry a weapon at school, on school premises, or to or at a school function under the jurisdiction of an LEA.
IDEA 2004 and 34 C.F.R. § 300.530(g)(1) permit LEAs to change the placement of a student eligible for special education to an interim alternative educational setting for not more than 45 school days if the student brings a weapon to school or at a school function. Weapon has the meaning given the term "dangerous weapon" and is defined 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 2½ inches in length." 18 U.S.C. § 930(g)(2).
The 45-school-day interim alternative educational setting must be determined by the IEP team and must meet the requirements of IDEA 2004. These requirements include the selection of an educational setting that will enable the student to continue to participate in the general curriculum, to receive services and modifications in the current IEP, and to receive services and modifications designed to address the behavior.
If a student has been placed in an interim alternative educational setting and the parents/guardians request a due process hearing to challenge the interim alternative educational setting, then the student must remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the 45-school-day time period, whichever occurs first, unless the parents/guardians and the LEA agree otherwise. If the LEA proposes to change the student's educational placement after expiration of the interim alternative educational setting, the student must remain in the current placement (that is, return to the placement prior to the interim alternative educational setting) if the parents/guardians invoke pendency by requesting a hearing. LEAs may request an expedited hearing to establish that it is dangerous for the student to return to the prior placement during the pendency of due process proceedings.
Exception 3. Students who knowingly possess or use illegal drugs, or sell or solicit the sale of a controlled substance while at school, on school premises, or at a school function under the jurisdiction of an LEA.
The same requirements described in Exception 2 above apply to students who knowingly possess or use illegal drugs, or sell or solicit the sale of a controlled substance, while at school, on school premises, or at a school function. 34 C.F.R. § 300.530(g)(2). Illegal drug means a controlled substance (i.e., a drug or other substance identified under schedules I, II, III, IV, or V of the Controlled Substances Act (21 U.S.C. § 812(c)), but does not include a substance that is legally possessed or used under the supervision of a licensed health-care professional, used under any other authority under the Controlled Substances Act, or used under any other provision of federal law.
Exception 4. Students who inflict serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of an LEA.
The same requirements described in Exception 2 above apply to eligible students who inflict serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of an LEA. "Serious bodily injury" means 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. 18 U.S.C. § 1365(h)(3).
Exception 5. Determination by a hearing officer that maintaining the current placement is substantially likely to result in injury to the student or others.
IDEA 2004 allows hearing officers to order a change in educational placement to an interim alternative educational setting for not more than 45 school days if the LEA demonstrates that maintaining the current educational placement of the student is substantially likely to result in injury to the student or to others. 34 C.F.R. § 300.532(b)(2)(ii).
Exception 6. Judicial intervention.
Under Honig v. Doe, LEAs may seek a court order to remove a student with a disability from school or to change a student's current educational placement, if the LEA believes that maintaining the student in the current educational placement is substantially likely to result in injury to the student or to others.
Immediate or Severe Discipline Problems with Students with Intellectual Disabilities.
If a discipline problem involving a student eligible for special education with an intellectual disability is immediate or so severe as to warrant immediate action, the LEA must first contact the parents/guardians to see if they will agree to the change in educational placement. If the parents/guardians agree, the LEA issues notice to the parents/guardians. If there is no agreement, the LEA may contact the Pennsylvania Department of Education's (PDE) Bureau of Special Education at 717-783-6134 to request permission to impose a disciplinary exclusion which would be a change in educational placement. When PDE approves the change in educational placement, the LEA must issue notice to the parents/guardians. PDE cannot approve requests for a change in placement which would continue beyond 10 consecutive school days. When PDE does not approve the change in educational placement, the parents/guardians may request a due process hearing and then the pendency requirements under 34 C.F.R. § 300.518 apply.
Note to LEAs Regarding Pennsylvania Act 26 of 1995
Act 26 of 1995 amended the Public School Code (24 P.S. Section 13-1317.2) to require one-year expulsions of all students who bring weapons to school. However, Act 26 of 1995 provided that LEAs "…shall, in the case of an exceptional student, take all steps necessary to comply with the Individuals with Disabilities Education Act…." In effect, application of provisions in Act 26 of 1995 to students with a disability must conform to the requirements of IDEA 2004 and 22 Pa. Code Chapters 14 and 711 as described in this BEC.
Protections for Students Who Are Not Yet Eligible for Special Education
34 C.F.R. § 300.534 provides that a student who has not been determined to be eligible for special education may assert the protections of IDEA 2004 if the LEA had "knowledge" that the student was a student with a disability before the occurrence of the behavior that precipitated a disciplinary action. An LEA has knowledge if: 1) The parent/guardian of the student expressed a concern in writing (unless the parent/guardian is illiterate or has a disability that prevents compliance with the requirements contained in this clause) to the LEA that the student is in need of special education and related services; 2) The parent/guardian of the student has requested an evaluation of the student; or 3) The teacher of the student, or other personnel of the LEA, expressed a specific concern about the behavior or performance of the student to the director of special education of the LEA or to other supervisory personnel of the LEA.
Cessation of FAPE Not Permitted
IDEA 2004 makes it clear that FAPE must be made available to students eligible for special education, including students who have been suspended or expelled from school. 34 CFR §§ 300.101(a) and 300.530(d)(1). This means that LEAs must maintain the provision of FAPE to a student with a disability during all disciplinary exclusions, including those involving 10 consecutive school days or for more than 15 cumulative school days in a school year.
Referral to and Action by Law Enforcement and Judicial Authorities
IDEA 2004 does not prohibit a LEA from reporting a crime committed by a student with a disability to appropriate authorities, nor does it prevent state law enforcement and judicial authorities from exercising their responsibilities with regard to the application of federal and state law to crimes committed by a student with a disability. A LEA reporting a crime committed by a student with a disability must ensure that copies of the special education and disciplinary records of the student are transmitted, in compliance with the provisions of the Family Education Rights and Privacy Act (FERPA), for consideration by the appropriate authorities to whom it reports the crime. 22 Pa. Code Chapter 10 details protocols for the notification to law enforcement when certain offenses occur on school property, protocols for emergency and nonemergency response by law enforcement, and procedures and protocols for the response and handling of students with disabilities.
Summary of Decision Points
The decision points the LEA should consider before implementing any disciplinary exclusion are as follows:
- If the student is not eligible for special education services and the LEA does not have knowledge under 34 C.F.R. § 300.534, then the LEA must apply 22 Pa. Code Chapter 12 and the Public School Code.
- If the student is eligible for special education services or if the LEA has knowledge under 34 C.F.R. § 300.534, then the LEA must determine if the proposed disciplinary exclusion is a change in educational placement.
- If parents/guardians request a due process hearing and thereby invoke pendency, then the LEA can assess whether any of the exceptions discussed in this BEC apply and take the proper steps.
Final Note of Caution
34 C.F.R. § 300.536 defines a change of placement for disciplinary removals as either a removal for more than 10 consecutive school days or a series of removals that constitute a pattern. A pattern could be determined because removals cumulate to more than 10 school days in a school year, or through consideration of factors such as the length of each removal, the total amount of time that the student is removed, and the proximity of the removals to one another. Under federal regulations, whether a pattern of removals constitutes a change of placement is determined on a case-by-case basis. In other words, federal regulations do not necessarily consider a series of removals that total more than 10 cumulative days to constitute a change in educational placement. However, in Pennsylvania, the 15-day rule protects special education students from disciplinary exclusions totaling more than 15 days in any school year. 22 Pa. Code §§ 14.143(a) and 711.61(e). When considering the overlap of federal and state statutes and regulations, LEAs must obey whichever requirement provides the greater protection to special education students.
PDE is available to answer questions on this subject. Please direct your questions to the special education adviser assigned to your intermediate unit.
References
Purdon's Statutes
24 P.S. Section 13-1317.2
24 P.S. Articles XIX-C and XIX-E
State Board of Education Regulations
22 Pa. Code Chapter 12
22 Pa. Code Chapter 14
22 Pa. Code Chapter 711
United States Code Annotated
18 U.S.C. § 930(g)(2)
18 U.S.C. § 1365(h)(3)
21 U.S.C. § 812(c)
Federal Regulations
34 C.F.R. Part 300
Other
Honig v. Doe, 108 S. Ct. 592 (1988)
Bureau/Office Contact
Bureau of Special Education
Pennsylvania Department of Education
Forum Building
607 South Drive
Harrisburg, PA 17120
Phone: 717-783-6913