I. DISCIPLINE
The IDEA Amendments of 1997 added several important provisions addressing the behavioral needs of students with disabilities. The Amendments developed the concept of manifestation determination to determine whether a student’s disciplinary issues were related to their disability. They connected the relationship between behavioral needs and effective implementation of an Individualized Education Program that addressed the individualized needs of each student. They also retained the concept of “stay-put” although somewhat narrowing its scope. These provisions are essential to protecting the rights of children with disabilities and ensuring that they are not unnecessarily excluded from school.
S. 1248 has retained some of these elements. However, some very important components of the discipline protections have been eliminated in the Senate bill. Fewer still of the key components have been retained in the House version. While CCD continues to oppose the changes from current law, it prefers the Senate language over that in the House bill in the some areas and in other areas the language proposed by both bills will result in harm to students with disabilities.
1. Maintenance of Current Educational Placement
Current law provides that students who are suspended for more than 10 days, other than students who carry “a weapon to school or to a school function or knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function,” “stay-put” in their current educational placement while parents appeal that decision. We support the use of current law in this instance.
Rationale: Both S. 1248 and H.R. 1350 provide that a student may unilaterally be removed to an interim alternative setting for a wide array of disciplinary infractions. The Senate bill uses the language “…violates code of student conduct,” which is quite broad and varies greatly school district to school district. The House language allows even broader discretion than the Senate bill because it removes the exceptions for weapons, drugs and serious bodily injury. We believe that these proposed changes will cause unnecessary segregation of students and adversely impact their ability to benefit from the educational experience. (Sec. 615(k)(1)(B)). Students who exhibit behavioral challenges should have them addressed through proper education planning including positive behavior supports, behavioral intervention and implementation of an Individualized Education Program that addresses their individual needs.
2. Expansion of Circumstances resulting in Removal
Current law (Sec. 615(k)(2) requires that a hearing officer determine whether a student is sufficiently dangerous to be unilaterally removed, using a relatively high standard of proof (substantial evidence). That calculation must consider some important factors including the appropriateness of the child's current placement and whether or not the public agency has made reasonable efforts to minimize the risk of harm in the child's current placement, including the use of supplementary aids and services. Those considerations are removed from both bills. We support the use of current law in this instance.
Rationale: The result of this change could mean that a child is removed from a placement without consideration of whether the district has met its own obligations with regard to that student. The Senate bill allows a removal if the student has committed serious bodily injury, which standing alone might not be as problematic if there was a thoughtful consideration regarding whether or not the district had met its obligations to the student. In both bills, the hearing officer is only to determine whether or not the decision to remove the child was appropriate, not whether or not the placement or efforts of the district were themselves appropriate. (Sec. 615(3)(B). The Senate bill does allow for a expedited hearing of 20 days, but even a 20 day suspension could result in a student falling far behind and failing to meet IEP goals.
3. Manifestation Determination Review
Unlike H.R. 1350, the Senate bill recognizes the importance of the manifestation determination by retaining that provision for students whose behavior does not involve weapons or drugs. We strongly support the Senate bill’s inclusion of a manifestation determination review.
However, the Senate bill removes important protections in making the manifestation determination, namely:
- It eliminates the manifestation determination entirely for students whose complained of behavior involves carrying a weapon or knowingly possesses drugs.
- It eliminates the requirement that the IEP team must consider whether or not the child's IEP and placement were appropriate.
- It eliminates the requirement that the manifestation determination must be made prior to taking disciplinary action for students whose behavior does not include carrying a weapon or knowingly possessing drugs.
- It fails to ensure that the LEA continues to have the burden of proof in manifestation determination reviews. This is important because it is the LEA that is recommending that the change in placement be made, the LEA has access to more information about the child’s school related needs, and the services and supports provided than the parent does, and can access that information more easily than the parent. (Sec. 615(4)(c) “only if’) In the instances above, we support the use of current law.
Rationale: The manifestation determination helps ensure that children with disabilities are not arbitrarily removed from school because the school failed to provide them with the necessary services and supports they need to remain safely in the classroom.
4. Other Concerns
Both bills change the standard for the level of services the student must receive while removed. Under current law, for a student who has been removed (Sec. 615(3)(B)(i)) services must be selected “…so as to enable the child to continue to participate in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child's current IEP, that will enable the child to meet the goals set out in that IEP.” We support the use of current law in this instance.
Rationale: In both bills the standard is reduced. In the Senate bill (Sec. 615(30(F)) and House bill (Sec. 615(1)(c)) the standard is “ …continue to receive educational services pursuant to Sec. 612(a)(1), 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.” This means that the student could fall even farther behind while removed.
Under current law (Sec. 615(4)(A)) and in the Senate bill (Sec. 615 (1)(E)) parents are to receive notice of procedural safeguards when the decision to remove the student has been made. We support the use of the Senate bill language in this instance.
Rationale: This important protection is eliminated in the House bill and if the discipline protections allow districts more discretion to remove students, this information is more important for parents to have than ever before. There are other differences between the bills and current law that concerns but for the sake of brevity, they will not be addressed in this document.
5. Part D
The Senate bill (Part D) contains a program (Subpart 4--Interim Alternative Educational Settings, Behavioral Supports, and Whole School Intervention) that would provide grants to “…to establish or expand behavioral supports and whole school behavioral interventions by providing for effective, research-based practices… to improve interim alternative educational settings”. We support the use of the Senate bill language in this instance.
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