Current through Register Vol. 46, No. 39, September 25, 2024
(a)
Procedures for suspensions of five school days or less. In the case of a
suspension for five consecutive school days or less pursuant to paragraph b of
subdivision 3 of section
3214 of the
Education Law and section
201.7(b) of this
Part, the parents or persons in parental relation to the student shall be
provided an opportunity for an informal conference in accordance with paragraph
d of subdivision 3 of section
3214 of the
Education Law.
(b) Procedures for
removals other than suspensions. A removal of a student with a disability, as
defined in section
201.2(l) of this
Part, to which the provisions of paragraphs (a) through (d) of subdivision 3 of
section
3214 of the
Education Law do not apply, other than a change in placement to an IAES, shall
be conducted in accordance with the due process procedures applicable to such
removals of nondisabled students, except that school personnel may not impose
such removal for more than 10 consecutive days or for a period that would
result in a disciplinary change in placement, unless there has been a
determination that the behavior is not a manifestation of the student's
disability. The removal of a student with a disability to an IAES shall be
conducted in accordance with the applicable provisions of section
201.7(e) of this
Part and paragraph (c)(3) of this section, or of section
201.8 of this Part.
(c) Procedures for suspensions of more than
five school days (superintendent's hearings). Superintendent's hearings on
disciplinary charges against students with disabilities and students presumed
to have a disability for discipline purposes shall be bifurcated into a guilt
phase and a penalty phase and conducted in accordance with the following
procedures:
(1) The superintendent of schools
or hearing officer in the superintendent's hearing shall proceed with the guilt
phase and determine whether the student is guilty of the alleged misconduct. If
it is determined that the student is guilty of the alleged misconduct, the
superintendent of schools or hearing officer in the superintendent's hearing
shall make a threshold determination of whether a suspension or removal in
excess of 10 consecutive school days or that would otherwise constitute a
disciplinary change in placement should be considered. If the threshold
determination is that such a suspension or removal should be considered, before
the superintendent of schools orders or the hearing officer in the
superintendent's hearing recommends any such removal, the superintendent's
hearing shall be adjourned until a manifestation determination is made by the
manifestation team, except as otherwise provided in paragraph (3) of this
subdivision. If the superintendent of schools or hearing officer in the
superintendent's hearing determines that a suspension or removal that would
constitute a disciplinary change in placement should not be considered, the
hearing shall proceed to the penalty phase.
(2) Upon a determination by the manifestation
team that the behavior of a student with a disability was not a manifestation
of the student's disability, such student may be disciplined in the same manner
as a nondisabled student, except that such student shall continue to receive
services in accordance with section
201.10 of this Part. Upon receipt
of notice of such determination, the superintendent or hearing officer in the
superintendent' s hearing shall proceed with the penalty phase of the hearing.
If the manifestation team determines that the behavior was a manifestation of
the student's disability, the superintendent or hearing officer in the
superintendent's hearing shall dismiss the superintendent's hearing, except as
otherwise provided in paragraph (3) of this subdivision.
(3) Notwithstanding the provisions of
paragraphs (1) and (2) of this subdivision, if the superintendent or hearing
officer in the superintendent's hearing is considering the change in placement
of a student with a disability to an IAES pursuant to section
201.7(e) of this
Part, upon a determination that the student is guilty of the alleged misconduct
relating to serious bodily injury, weapons, illegal drugs or controlled
substances, the superintendent of schools may order, or the hearing officer in
the superintendent's hearing may recommend, such change in placement to an
IAES, to be determined by the CSE, for up to 45 school days, but not to exceed
the length of time that a nondisabled student would be suspended for the same
misconduct under the school district's student discipline policy. The
superintendent of schools may order such change in placement of a student with
a disability to an IAES, directly or upon recommendation of a hearing officer
in the superintendent's hearing, even where the manifestation team determines
that the student's behavior is a manifestation of the student's
disability.
(4) The penalty phase
of a superintendent's hearing for a student with a disability or a student
presumed to have a disability for discipline purposes shall be conducted in the
same manner as the penalty phase of a hearing involving a nondisabled student,
including the admission of anecdotal evidence of past instances of misconduct.
The school district shall assure that copies of the special education and
disciplinary records of the student are transmitted to the superintendent of
schools or hearing officer in the superintendent's hearing for consideration.
Such records shall be transmitted whether or not the manifestation team has
determined that the student's behavior is a manifestation of the student's
disability.
(5) Nothing in this
section shall be construed to authorize the suspension or removal of a student
with a disability from his or her current educational placement for violation
of school rules following a determination by the manifestation team that the
behavior is a manifestation of the student's disability, except where the
student is placed in an IAES for behavior involving serious bodily injury,
weapons, illegal drugs or controlled substances pursuant to section
201.7(e) of this
Part or the student is placed in an IAES by an impartial hearing officer
pursuant to section
201.8 of this Part.
