Ch. 10: Addressing Serious Behavior Issues and Concerns in Children

Who is this for?

This chapter is for parents whose child may be the subject of disciplinary action by the school or for parents of children with significant behavior issues that may put them at risk for disciplinary action.

Why is this important?

The conditions for disciplining special education students need to be thoroughly understood by parents - preferably before their child is the focus of such actions. While IDEA extends certain protections to special education students, schools can subject them to the same disciplinary actions allowed for all students.

What can parents do?

If their child is at risk for conduct that requires disciplinary action, parents should make sure that behavior and conduct issues are addressed during the IEP process.

IDEA Words and Terms to Know

Functional Behavioral Assessment (FBA)
A problem-solving process for addressing student problem behavior. FBA relies on a variety of techniques and strategies to identify the reasons for a specific behavior and to help IEP teams select interventions that directly address the problem behavior.

Behavior Intervention Plan (BIP)
A plan to address problem behavior that includes, as appropriate, positive behavioral interventions, strategies, and supports; program modifications; and supplementary aids and services that may be required to address the problem behavior.

Interim Alternative Educational Setting (IAES)
A setting other than the student's current placement that enables the student to continue to receive educational services according to his or her IEP. The IAES must enable the student to continue to participate in the general education curriculum, although in another setting, and progress toward meeting the goals set out in the IEP. Students in an IAES should also receive, as appropriate, a functional behavioral assessment, behavioral intervention services and modifications that are designed to address the behavior violation so that it does not happen again. The particular IAES is determined by the student's IEP team.

Disciplinary Actions of 10 Days or Less

A student with a disability, who has an IEP in effect, can be disciplined like any other student for 10 consecutive school days or less if he or she violates the school's code of conduct.

Disciplinary action generally involves removing students from their current educational settings and placing them in either in-school suspension, out-of-school suspension, or an interim alternative educational setting. During the time the student with an IEP is in one of these other settings, the school is only required to provide educational services (including special education) if the school district also provides educational services to non-disabled students in the same circumstances. When school personnel decide to discipline a student by removing the student from the current educational placement, the school must notify the parents on the same day the decision is made and provide the parents with a written copy of the notice of Procedural Safeguards.

Code of Conduct
Schools have a responsibility to make sure that all students, including those receiving special education, are familiar with the school's code of conduct. Parents should be sure to understand the code of conduct and help their child understand the expectations and consequences involved with violating the code. The IEP team should determine any specialized help and instruction the child may need to understand the code and consistently demonstrate the appropriate classroom and school behaviors.

Disciplinary Actions Beyond 10 Days

For students with a disability whose disciplinary action exceeds 10 consecutive days in the same school year, or when frequent disciplinary actions add up to more than 10 school days in a school year and clearly indicate a pattern, the school must provide special education services that allow the student to:

Continue to participate in the general education curriculum, although in another setting
Progress toward meeting the goals outlined in the student's IEP

The IEP team will meet to determine the exact educational services needed while the student is assigned to the disciplinary setting. In addition, if the behavior is found to be related to the student's disability, the IEP team must plan for a functional behavioral assessment and the development of a behavior intervention plan based on the results of the assessment. If the student already had a behavior intervention plan in place, the IEP team must review if the plan was being followed and revise it as needed to address the problem behavior that led to this disciplinary action. For students whose behavior is not determined to be directly associated with their disability, the IEP team should consider the need for a functional behavioral assessment and behavior intervention plan.

Relationship between Behavior and Disability

Within 10 days from the beginning of a disciplinary action that exceeds 10 days, the school district, the parents and relevant members of the student's IEP team must meet to determine if the conduct in question was caused by, or had a direct and substantial relationship to, the student’s disability. This is referred to as a "manifestation determination." The team must also determine if the conduct was the direct result of the school's failure to implement the student’s IEP, including a behavior intervention plan.

In making this determination, the IEP team will review:

The student's IEP
The student's behavior intervention plan
Any teacher observations
Any relevant information provided by the parents

[New] The manifestation determination — the relationship between behavior and disability — must now be "direct and substantial," which is a change from the previous requirement for finding such a relationship. For example, a student's low self-esteem, while a possible by-product of a learning disability, cannot be considered to have a direct relationship to a student's behavior problem.

If the team finds that the student's behavior was related to the disability or an improperly implemented IEP, the student is returned to the original education setting unless the parents agree to a new placement, which is a new educational setting, as part of the behavior intervention plan.

If, on the other hand, the team finds that the student's behavior was not directly related to the disability, the same disciplinary actions can be imposed on the student with a disability as those imposed on a non-disabled student. Such action could include expulsion. However, if the student is expelled from school, the student must continue to receive educational services that allow him or her to continue to participate in the general education curriculum and progress toward meeting the goals set out in the IEP.

Special Offenses

Certain serious behavior problems can lead to a student being moved to an interim alternative educational setting for up to 45 school days even if the conduct is determined to be related to the student’s disability. Removing a student for these offenses does not require parent permission or agreement, nor does it require any involvement by a hearing officer or other impartial third party. These offenses are:

Weapons: If a student carries or possesses a weapon:

To or at school
On school premises
At a school function

Drugs: If the student knowingly possesses or uses illegal drugs or sells or solicits the sale of illegal drugs while at school or at a school function.

[New] Serious bodily injury: If a student has inflicted serious bodily injury upon another person while at school, on school premises or at a school function.

Note: Parents should obtain the legal definitions of these offenses from their school district or Parent Training and Information Center (PTI)

An additional provision allows a school to seek to remove a student for up to 45 school days if the school believes that returning the student to the same educational placement is substantially likely to result in injury to the student or other students. The school must do this by making a request to a hearing officer.

Appeals

Parents have the right to challenge any decisions made regarding the interim alternative educational setting or the determination regarding the "manifestation determination" by asking for a due process hearing. Schools can also request a hearing if school personnel feel that returning a student to the original educational setting is highly likely to result in injury to the student or to others.

In either case, the hearing must be held within 20 school days of the date requested and the hearing officer must make the decision within 10 school days after the hearing.

[New] During the appeal process, the student remains in the interim alternative educational setting, unless the parent and the school agree otherwise.

Students Not Yet IDEA Eligible

Under certain circumstances, the protections available to students with disabilities who are already receiving services under IDEA may also be available to students who do not have an IEP in effect. These circumstances may apply to any students, including those receiving early intervening services discussed in Chapter 1: Pre-referral Services, if:

The child's parent had expressed concern in writing to school personnel, including the teacher, that their child may be in need of special education prior to the behavior that resulted in the disciplinary action
The child's parent had requested an evaluation as provided for by IDEA
The child's teacher or other school personnel had expressed concerns about a pattern of behavior that might call for a referral for evaluation. Such concerns would need to have been made directly to supervisory personnel. For example, a teacher expressing his or her concerns to a parent would not be considered an adequate basis of knowledge.

Certain exceptions apply to the above circumstances. They include:

If the child's parent had not allowed an evaluation of the child or had refused special education services that had been offered as required by IDEA
If the child had been evaluated as required by IDEA and was not found eligible for special education

If a request is made to evaluate a student during the time period of the disciplinary action, the school must complete the evaluation as quickly as possible. During the evaluation, the student remains in the interim alternative educational setting while the evaluation is conducted.

Final Word

The provisions regarding student discipline are complex and sometimes confusing. If your child becomes the focus of a disciplinary action, seek information and guidance from expert resources such as your state's Parent Training and Information Center (PTI)Table of Contents

Note: The IDEA Parent Guide was created to provide a basic understanding of the key requirements of the federal law under IDEA. The information presented here is not legal advice and should not be used as a legal resource.

Candace Cortiella is Director of The Advocacy Institute, a nonprofit focused on improving the lives of people with disabilities through public policy and other initiatives. The mother of a young adult with learning disabilities, she lives in the Washington, D.C., area.

Additional Resouces

IEP Team's Introduction to Functional Behavioral Assessment and Behavior Intervention Plans
Parent Training and Information Center (PTI)

Chapter 10: Student Discipline — Addressing Serious Behavior Issues and Concerns

Who is this for?

Why is this important?

What can parents do?

IDEA Words and Terms to Know

Functional Behavioral Assessment (FBA)

Behavior Intervention Plan (BIP)

Interim Alternative Educational Setting (IAES)