Arkansas Administrative Code
Agency 005 - DEPARTMENT OF EDUCATION
Division 28 - Division of Elementary and Secondary Education
Rule 005.28.20-005 - DESE Rules Governing Special Education and Related Services, Sec. 11.00 Discipline Procedures
Universal Citation: AR Admin Rules 005.28.20-005
Current through Register Vol. 49, No. 9, September, 2024
ARKANSAS DIVISION OF ELEMENTARY AND SECONDARY EDUCATION RULES GOVERNING SPECIAL EDUCATION AND RELATED SERVICES 11.00 DISCIPLINE PROCEDURES Effective June 1, 2020
11.01 CHANGE OF PLACEMENT BECAUSE OF DISCIPLINARY REMOVALS
11.01.1 For purposes of
removals of a child with a disability from the child's current educational
placement under 34 CFR 300.530 -300.535, a change of placement occurs if-
11.01.1.1 The removal i s for more than ten
(10) consecutive school days; or
11.01.1.2 The child has been subjected to a
series of removals that constitute a pattern because the series of removals
total more than ten (10) school days in a school year, and because of factors
such as the child's behavior is substantially similar to the child's behavior
in previous incidents that resulted in the series of removals, the length of
each removal, the total amount of time the child is removed, and the proximity
of the removals to one another. The public agency determines on a case-by-case
basis whether a pattern of removals constitutes a change of placement. This
determination is subject to review through due process and judicial
proceedings.
11.02 SERVICES
11.02.1 A child with a disability who is
removed from the child's current placement pursuant to this section must -
11.02.1.1 Continue to receive educational
services, as provided in
34 CFR
300.101(a), 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; and
11.02.1.2
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.
11.02.2 The services required by paragraph
11.02.1 of this section may be provided in an interim alternative educational
setting.
11.02.3 A public agency is
only required to provide services during periods of removal to a child with a
disability who has been removed from his or her current placement for 10 school
days or less in that school year, if it provides services to a child without
disabilities who is similarly removed.
11.02.4 After a child with a disability has
been removed from his or her current placement for 10 school days in the same
school year, if the current removal is for not more than 10 consecutive school
days and is not a change of placement under
34 CFR
300.536, school personnel, in consultation
with at least one of the child's teachers determine the extent to which
services are needed, as provided in
34 CFR
300.101(a), 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.
11.02.5 If the
removal is a change of placement under
34 CFR
300.536, the child's IEP Team determines
appropriate services under 11.02.1 of this section.
11.03 AUTHORITY OF LEA/PUBLIC AGENCY PERSONNEL
11.03.1 Case-by-case determination.
School personnel may consider any unique circumstances on a case-by-case basis
when determining whether a change in placement, consistent with the other
requirements of this section, is appropriate for a child with a disability who
violates a code of student conduct.
11.03.2 To the extent removal would be
applied to children without disabilities, the removal of a child with a
disability who violates a code of a student conduct, from the child's current
placement to an appropriate interim alternative educational setting, another
setting, or suspension, for not more than 10 consecutive school days (to the
extent those alternatives are applied to children without disabilities), and
additional removals of not more than 10 consecutive school days in that same
school year for separate incidents of misconduct (as long as those removals do
not constitute a change of placement under
34 CFR
300.536 and § 11.04.3 of this
part);
11.03.3 After a child with a
disability has been removed from his current placement for more than 10 school
days in the same school year, during any subsequent days of removal the
LEA/public agency must provide services to the extent required under
34 CFR
300.101(a) and § 11.02
of these rules.
11.03.4 Additional
authority. For disciplinary changes in placement that would exceed 10
consecutive school days, if the behavior that gave rise to the violation of the
school code is determined not to be a manifestation of the child's disability
pursuant to §11.05 school personnel may apply the relevant disciplinary
procedures to children with disabilities in the same manner and for the same
duration as the procedures would be applied to children without disabilities,
except as provided in 11.02 of this section.
11.03.5 Special circumstances. School
personnel may remove a student to an interim alternative educational setting
for not more than 45 school days without regard to whether the behavior is
determined to be a manifestation of the child's disability, if the child-
11.03.5.1 Carries a weapon to or possesses a
weapon at school, on school premises, or to or at a school function under the
jurisdiction of an SEA or an LEA;
11.03.5.2 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 under the jurisdiction of
an SEA or an LEA; or
11.03.5.3 Has
inflicted serious bodily injury upon another person while at school, on school
premises, or at a school function under the jurisdiction of an SEA or an
LEA.
11.03.6
Notification. On the date on which the decision is made to make a removal that
constitutes a change of placement of a child with a disability because of a
violation of a code of student conduct, the LEA must notify the parents of that
decision, and provide the parents the procedural safeguards notice described in
34 CFR
300.504.
11.03.7 For purposes of this section, the
following definitions apply -
11.03.7.1
Controlled substance means a drug or other substance identified under schedules
I, II, IE, IV, or V in § 202(c) of the Controlled Substances Act [
21 U. S. C.
812(c)].
11.03.7.2 Illegal drug-
A. Means a controlled substance;
but
B. Does not include a
controlled substance that is legally possessed or used under the supervision of
a licensed health-care professional or that is legally possessed or used under
any authority under that Act or under any other provision of Federal
law.
11.03.7.3 Serious
bodily injury has the meaning given the term "serious bodily injury" under
paragraph (3) of subsection (h) of section 1365 of title 18, United States
Code.
11.03.7.4 Weapon has the
meaning given the term "dangerous weapon" under paragraph (2) of e subsection
(g) of § 930 of Title 18, United States Code -
A. The term "dangerous weapon" means a
weapon, 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 2 V2
inches in length.
11.04 DETERMINATION OF SETTING
11.04.1 The child's IEP Team determines the
interim alternative education setting for services under
34 CFR 300.530(c),
(d)(5), and (g).
11.04.2 The parent of a child with a
disability who disagrees with any decision regarding placement under
34 CFR
300.530 and
300.531,
or the manifestation determination under
34 CFR
300.530(e), or an LEA that
believes that maintaining the current placement of the child is substantially
likely to result in injury to the child or others, may appeal the decision by
requesting a hearing. The hearing is requested by filing a complaint pursuant
to
34 CFR
300.507 and
300.508(a) and
(b).
11.04.3 Authority of hearing officer.
11.04.3.1 A hearing officer under
34 CFR
300.511 hears, and makes a determination
regarding an appeal under 11.04.2 of this section.
11.04.3.2 In making the determination under
11.04.3.1 of this section, the hearing officer may -
A. Return the child with a disability to the
placement from which the child was removed if the hearing officer determines
that the removal was a violation of
34 CFR
300.530 or that the child's behavior was a
manifestation of the child's disability; or
B. Order a change of placement of the child
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 child is substantially likely to result in injury
to the child or to others.
11.04.3.3 The procedures under this section
may be repeated, if the LEA believes that returning the child to the original
placement is substantially likely to result in injury to the child or to
others.
11.05 MANIFESTATION DETERMINATION
11.05.1 Within 10
school days of any decision to change the placement of a child with a
disability because of a violation of a code of student conduct, the LEA, the
parent, and relevant members of the child's IEP Team (as determined by the
parent and the LEA) must review all relevant information in the student's file,
including the child's IEP, any teacher observation, and any relevant
information provided by the parents to determine -
11.05.1.1 If the conduct in question was
caused by, or had a direct and substantial relationship to, the child's
disability; or
11.05.1.2 If the
conduct in question was the direct result of the LEA's failure to implement the
lEP.
11.05.2 The conduct
must be determined to be a manifestation of the child's disability if the LEA,
the parent, and relevant members of the child's IEP Team determine that a
condition in 11.05.1.1 A and B of this section was met.
11.05.3 If the LEA, the parent, and relevant
members of the child's IEP Team determine the condition described in 11.05.1.1
B of this section was met, the LEA must take immediate steps to remedy those
deficiencies.
11.05.4 Determination
that behavior was a manifestation.
11.05.4.1
If the LEA, the parent, and relevant members of the IEP Team make the
determination that the conduct was a manifestation of the child's disability,
the IEP Team must -
A. Either -
1. Conduct a functional behavioral
assessment, unless the LEA had conducted a functional behavioral assessment
before the behavior that resulted in the change of placement occurred, and
implement a behavioral intervention plan for the child; or
2. If a behavioral intervention plan already
has been developed, review the behavioral intervention plan, and modify it, as
necessary, to address the behavior; and
B. Except as provided in Special
Circumstances (§ 11.03.4) return the child to the placement from which the
child was removed, unless the parent and the LEA agree to a change of placement
as part of the modification of the behavioral intervention plan.
11.06 APPEAL
11.06.1 General. The parent of a child with a
disability who disagrees with any decision regarding placement under
34 CFR
300.530 and
300.531,
or the manifestation determination under
34 CFR
300.530(e), or an LEA that
believes that maintaining the current placement of the child is substantially
likely to result in injury to the child or others, may appeal the decision by
requesting a hearing. The hearing is requested by filing a complaint pursuant
to
34 CFR
300.507 and
300.508(a) and
(b).
11.06.2 Authority of hearing officer.
11.06.2.1 A hearing officer under
34 CFR
300.511 hears, and makes a determination
regarding an appeal under 11.06.1.1 of this section.
11.06.2.2 In making the determination under
11.06.1.2 A of this section, the hearing officer may -
A. Return the child with a disability to the
placement from which the child was removed if the hearing officer determines
that the removal was a violation of
34 CFR
300.530 or the child's behavior was a
manifestation of the child's disability; or
B. Order a change of placement of the child
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 child is substantially likely to result in injury
to the child or to others.
11.06.2.3 The procedures under
§§11.06.1.1 and 11.06.1.2 A and B may be repeated, if the LEA
believes that returning the child to the original placement is substantially
likely to result in injury to the child or to others.
11.06.3 Expedited Due Process Hearing.
11.06.3.1 Whenever a hearing i s requested
under §11.06.1 the parents or the LEA involved in the dispute must have an
opportunity for an impartial due process hearing consistent with the
requirements of
34 CFR
300.507 and
300.508(a) through
(c) and 34 CFR 300.510 through 300.514,
except as provided in §§11.06.3.2 and 11.06.3.3.
11.06.3.2 The SEA is responsible for
arranging the expedited due process hearing, which must occur within 20 school
days of the date the complaint requesting the hearing is filed. The hearing
officer must make a determination within 10 school days after the
hearing.
11.06.3.3 Unless the
parents and LEA agree in writing to waive the resolution meeting described in
11.06.3.3A of this section, or agree to use the mediation process described in
34 CFR
300.506 -
A. A resolution meeting must occur within
seven days of receiving notice of the due process complaint; and
B. The due process hearing may proceed unless
the matter has been resolved to the satisfaction of both parties within 15 days
of the receipt of the due process complaint.
11.06.3.4 The decisions on expedited due
process hearings are appealable consistent with
34
CFR 300.516, civil action.
11.07 PROTECTIONS FOR CHILDREN NOT DETERMINED ELIGIBLE FOR SPECIAL EDUCATION AND RELATED SERVICES
11.07.1 General.
11.07.1.1 A child who has not been determined
to be eligible for special education and related services under this part and
who has engaged in behavior that violated a code of student conduct of the
LEA/public agency, may assert any of the protections provided for in this part
if the LEA/public agency had knowledge (as determined in accordance with
§11.07.2 of this part) that the child was a child with a disability before
the behavior that precipitated the disciplinary action occurred.
11.07.2 Basis of knowledge.
11.07.2.1 An LEA/public agency must be deemed
to have knowledge that a child is a child with a disability if before the
behavior that precipitated the disciplinary action occurred -
A. The parent of the child expressed concern
in writing to supervisory or administrative personnel of the appropriate
educational agency or a teacher of the child, that the child is in need of
special education and related services.
B. The parent of the child requested an
evaluation of the child pursuant to
34 CFR 300.300-
300.311
and § 6.00 of these rules; or
C. The teacher of the child, or other
personnel of the LEA/public agency, expressed specific concerns about a pattern
of behavior demonstrated by the child directly to the director of special
education of the agency or other supervisory personnel of the agency.
11.07.3 Exception.
11.07.3.1 An LEA/public agency would not be
deemed to have knowledge under § 11.07.2 of this part if-
A. Either -
B. The parent of the child -
1. Has not allowed an evaluation of the child
pursuant to
34 CFR 300.300
through
300.311;
or
2. Has refused services under
this part; or
C. The
child has been evaluated in accordance with
34 CFR 300.300
through
300.311
and determined to not be a child with a disability under this part.
11.07.4 Conditions that
apply if no basis of knowledge.
11.07.4.1 If
an LEA/ public agency does not have knowledge that a child is a child with a
disability (in accordance with §§ 11.07.2 and 11.07.3 of this part)
prior to taking disciplinary measures against the child, the child may be
subjected to the disciplinary measures applied to children without disabilities
who engaged in comparable behaviors consistent with §11.07.4.1A-C of this
part.
A. If a request is made for an
evaluation of the child during the time period in which the child is subjected
to disciplinary measures under
34 CFR
300.530, the evaluation must be conducted in
an expedited manner.
B. Until the
evaluation is completed, the child remains in the educational placement
determined by school/public agency authorities, which can include suspension or
expulsion without educational services.
C. If the child is determined to be a child
with a disability, taking into consideration information from the evaluation
conducted by the LEA/ public agency and information provided by the parents,
the LEA/public agency shall provide special education and related services in
accordance with the provisions of this part, including the requirements of
34 CFR
300.530 through
300.536,
and section 612(a)(1)(A) of the IDEA.
11.08 REFERRAL TO AND ACTION BY LAW ENFORCEMENT AND JUDICIAL AUTHORITIES
11.08.1 Nothing in this part prohibits an
LEA/public agency from reporting a crime committed by a child with a disability
to appropriate authorities or to 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 child with a
disability.
11.08.2 An LEA/public
agency reporting a crime committed by a child with a disability shall ensure
that copies of the special education and disciplinary records of the child are
transmitted for consideration by the appropriate authorities to whom it reports
the crime.
11.08.2.1 An LEA/public agency
reporting a crime under this section may transmit copies of the child's special
education and disciplinary records only to the extent that the transmission is
permitted by the Family Educational Rights and Privacy Act (FERPA).
11.09 CORPORAL PUNISHMENT
11.09.1 A school district that
authorizes use of corporal punishment, shall not:
11.09.1.1 Use corporal punishment on a child
who is intellectually disabled, non-ambulatory, non-verbal, or autistic;
or
11.09.1.2 Include in its written
student discipline policy, a provision to allow the use of corporal punishment
on a child who is intellectually disabled, non ambulatory, non-verbal, or
autistic.
Note: In addition to the requirements of IDEA and these Rules, school districts must follow all requirements and meet all obligations to its students under Ark. Code Ann. §§ 6-18-501 et seq. and 6-16-1406, and the DESE Rules regarding student discipline.
Disclaimer: These regulations may not be the most recent version. Arkansas may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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