Current through Register Vol. 40, No. 16, March 25, 2024
A.
General. (§ 22.1-277 of the Code of Virginia;
34 CFR
300.530(a);
34 CFR
300.324(a)(2)(i) )
1. A child with a disability shall be
entitled to the same due process rights that all children are entitled to under
the Code of Virginia and the local educational agency's disciplinary policies
and procedures.
2. In the event
that the child's behavior impedes the child's learning or that of others, the
IEP team shall consider the use of positive behavioral interventions,
strategies, and supports to address the behavior. The IEP team shall consider
either:
a. Developing goals and services
specific to the child's behavioral needs; or
b. Conducting a functional behavioral
assessment and determining the need for a behavioral intervention plan to
address the child's behavioral needs.
3. School personnel may consider any unique
circumstances on a case-by-case basis when deciding whether or not to order a
change in placement for a child with a disability that violates a code of
student conduct.
a. In reviewing the
disciplinary incident, school personnel may review the child's IEP and any
behavioral intervention plan, or consult with the child's teacher(s) to provide
further guidance in considering any unique circumstances related to the
incident.
b. School personnel may
convene an IEP team for this purpose.
B. Short-term removals.
1. A short-term removal is for a period of
time of up to 10 consecutive school days or 10 cumulative school days in a
school year. ( 34 CFR
300.530(b) )
a. School personnel may short-term remove a
child with a disability from the child's current educational setting to an
appropriate interim alternative educational setting, another setting, or
suspension, to the extent those alternatives are applied to a child without
disabilities.
b. Additional
short-term removals may apply to a child with a disability in a school year for
separate incidents of misconduct as long as the removals do not constitute a
pattern. If the short-term removals constitute a pattern, the requirements of
subsection C of this section apply.
(1) The
local educational agency determines when isolated, short-term removals for
unrelated instances of misconduct are considered a pattern.
(2) These removals only constitute a change
in placement if the local educational agency determines there is a
pattern.
2.
Services during short-term removals.
a. The
local educational agency is not required to provide services during the first
10 school days in a school year that a child with a disability is short-term
removed if services are not provided to a child without a disability who has
been similarly removed. ( 34
CFR 300.530(b)(2)
)
b. For additional short-term
removals, which do not constitute a pattern, the local educational agency shall
provide services to the extent determined necessary to enable the student to
continue to participate in the general education curriculum and to progress
toward meeting the goals of the student's IEP. School personnel, in
consultation with the student's special education teacher, make the service
determinations. ( 34 CFR
300.530(b)(2) )
c. For additional short-term removals that do
not constitute a pattern, the local educational agency shall ensure that
children with disabilities are included in the Virginia Department of Education
and divisionwide assessment programs in accordance with the provisions of
subdivision 4 of
8VAC20-81-20. ( 20 USC §
1412(a)(16)(A) )
C. Long-term removals.
1. A long-term removal is for more than 10
consecutive school days; or (
34 CFR
300.530;
34 CFR
300.536 )
2. The child has received a series of
short-term removals that constitutes a pattern:
a. Because the removals cumulate to more than
10 school days in a school year;
b.
Because the child's behavior is substantially similar to the child's behavior
in previous incidents that results in a series of removals; and
c. Because of such additional factors such as
the length of each removal, the total amount of time the student is removed,
and the proximity of the removals to one another.
3. The local educational agency determines on
a case-by-case basis whether a pattern of removals constitutes a change in
placement. This determination is subject to review through due process and
judicial proceedings. ( 34
CFR 300.530(a) and (b) and
34 CFR
300.536 )
4. On the date on which the decision is made
to long-term remove the student because of a violation of a code of student
conduct, the local educational agency shall notify the parent(s) of the
decision and provide the parent(s) with the procedural safeguards. (
34 CFR
300.530(h) )
5. Special circumstances. (
34 CFR
300.530(g) )
a. School personnel may remove a child with a
disability to an appropriate interim alternative educational setting for the
same amount of time that a child without a disability would be subject to
discipline, but 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:
(1) The child carries a weapon to or
possesses a weapon at school, on school premises, or at a school function under
the jurisdiction of a local educational agency or the Virginia Department of
Education; or
(2) The child
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 a local educational agency or the Virginia
Department of Education; or
(3) The
child inflicts serious bodily injury upon another person at school, on school
premises, or at a school function under the jurisdiction of a local educational
agency or the Virginia Department of Education.
b. For purposes of this part, "weapon,"
"controlled substance," and "serious bodily injury" have the meaning given the
terms under
8VAC20-81-10.
6. Services during long-term removals.
a. A child with a disability who is long-term
removed receives services during the disciplinary removal so as to enable the
student to: ( 34 CFR
300.530(d) )
(1) Continue to receive educational services
so as to enable the student to continue to participate in the general
educational curriculum, although in another setting;
(2) Continue to receive those services and
modifications including those described in the child's current IEP that will
enable the child to progress toward meeting the IEP goals; and
(3) 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.
b. For long-term
removals, the local educational agency shall ensure that children with
disabilities are included in the Virginia Department of Education and
divisionwide assessment programs in accordance with the provisions of
subdivision 4 of
8VAC20-81-20. ( 20 USC §
1412(a)(16)(A) )
c. The IEP team
determines the services needed for the child with a disability who has been
long-term removed. ( 34 CFR
300.530(d)(5) and
34 CFR
300.531 )
D. Manifestation determination. (
34 CFR
300.530(c), (e), (f), and
(g) )
1. Manifestation determination is
required if the local educational agency is contemplating a removal that
constitutes a change in placement for a child with a disability who has
violated a code of student conduct of the local educational agency that applies
to all students.
2. The local
educational agency, the parent(s), and relevant members of the child's IEP
team, as determined by the parent and the local educational agency, constitute
the IEP team that shall convene immediately, if possible, but not later than 10
school days after the date on which the decision to take the action is
made.
3. The IEP team shall review
all relevant information in the child's file, including the child's IEP, any
teacher observations, and any relevant information provided by the
parent(s).
4. The IEP team then
shall determine the conduct to be a manifestation of the child's disability:
(1) If the conduct in question was caused by,
or had a direct and substantial relationship to, the child's disability;
or
(2) If the conduct in question
was the direct result of the local educational agency's failure to implement
the child's IEP.
5. If
the IEP team determines that the local educational agency failed to implement
the child's IEP, the local educational agency shall take immediate steps to
remedy those deficiencies.
6. If
the IEP team determines that the child's behavior was a manifestation of the
child's disability:
a. The IEP team shall
return the child to the placement from which the child was removed unless the
parent and the local educational agency agree to a change in placement as part
of the modification of the behavioral intervention plan. The exception to this
provision is when the child has been removed for not more than 45 school days
to an interim alternative educational setting for matters described in
subdivision C 5 a of this section. In that case, school personnel may keep the
student in the interim alternative educational setting until the expiration of
the 45-day period.
(1) Conduct a functional
behavioral assessment, unless the local educational agency had conducted this
assessment before the behavior that resulted in the change in placement
occurred, and implement a behavioral intervention plan for the child.
(a) A functional behavioral assessment may
include a review of existing data or new testing data or evaluation as
determined by the IEP team.
(b) If
the IEP team determines that the functional behavioral assessment will include
obtaining new testing data or evaluation, then the parent is entitled to an
independent educational evaluation in accordance with
8VAC20-81-170 B if the parent
disagrees with the evaluation or a component of the evaluation obtained by the
local educational agency; or
(2) If a behavioral intervention plan already
has been developed, review this plan, and modify it, as necessary, to address
the behavior.
7. If the IEP team determines that the
child's behavior was not a manifestation of the child's disability, 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 that services shall
be provided in accordance with subdivision C 6 a of this section.
E. Appeal. (
34 CFR
300.532(a) and (c) )
1. If the child's parent(s) disagrees with
the determination that the student's behavior was not a manifestation of the
student's disability or with any decision regarding placement under these
disciplinary procedures, the parent(s) may request an expedited due process
hearing.
2. A local educational
agency that believes that maintaining the current placement of the child is
substantially likely to result in injury to the child or others, may request an
expedited due process hearing.
3.
The local educational agency is responsible for arranging the expedited due
process in accordance with the Virginia Department of Education's hearing
procedures at
8VAC20-81-210.
a. The hearing shall occur within 20 school
days of the date the request for the hearing is filed.
b. The special education hearing officer
shall make a determination within 10 school days after the hearing.
c. Unless the parent(s) and the local
educational agency agree in writing to waive the resolution meeting, or agree
to use the mediation process:
(1) A resolution
meeting shall occur within 7 calendar days of receiving the request for a
hearing.
(2) The due process
hearing may proceed unless the matter has been resolved to the satisfaction of
both parties within 15 calendar days of the receipt of the request for a
hearing.
d. The
decisions on expedited due process hearings are appealable consistent with
8VAC20-81-210.
F. Authority of the special
education hearing officer. ( 34 CFR 300.532(a) and
(b) )
1. A
local educational agency may request an expedited due process hearing under the
Virginia Department of Education's due process hearing procedures to effect a
change in placement of a child with a disability 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 local educational agency believes that the
child's behavior is substantially likely to result in injury to self or
others.
2. The special education
hearing officer under
8VAC20-81-210 may:
a. Return the child with a disability to the
placement from which the child was removed if the special education hearing
officer determines that the removal was a violation of subsections C and D of
this section, or that the child's behavior was a manifestation of the child's
disability; or
b. Order a change in
the placement to an appropriate interim alternative educational setting for not
more than 45 school days if the special education hearing officer determines
that maintaining the current placement of the child is substantially likely to
result in injury to the student or others.
3. A local educational agency may ask the
special education hearing officer for an extension of 45 school days for the
interim alternative educational setting of a child with a disability when
school personnel believe that the child's return to the regular placement would
result in injury to the student or others.
G. Placement during appeals. (
34 CFR
300.533 )
1.
The child shall remain in the interim alternative educational setting pending
the decision of the special education hearing officer; or
2. Until the expiration of the time for the
disciplinary period set forth in this section, whichever comes first, unless
the parent and the local educational agency agree otherwise.
H. Protection for children not yet
eligible for special education and related services. (
34 CFR
300.534 )
1.
A child who has not been determined to be eligible for special education and
related services and who has engaged in behavior that violates a code of
student conduct of the local educational agency may assert any of the
protections provided in this chapter if the local educational agency had
knowledge that the child was a child with a disability before the behavior that
precipitated the disciplinary action occurred.
2. A local educational agency shall 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(s) of the child expressed
concern in writing (or orally if the parent(s) does not know how to write or
has a disability that prevents a written statement) to school personnel that
the child is in need of special education and related services;
(b) The parent(s) of the child requested an
evaluation of the child to be determined eligible for special education and
related services; or
(c) A teacher
of the child or school personnel expressed concern about a pattern of behavior
demonstrated by the child directly to the director of special education of the
local educational agency or to other supervisory personnel of the local
educational agency.
3. A
local educational agency would not be deemed to have knowledge that a child is
a child with a disability if:
(a) The parent
of the child has not allowed a previous evaluation of the child or has refused
services; or
(b) The child has been
evaluated in accordance with
8VAC20-81-70 and
8VAC20-81-80 and determined
ineligible for special education and related services.
4. If the local educational agency does not
have knowledge that a child is a child with a disability prior to taking
disciplinary measures against the child, the child may be subjected to the same
disciplinary measures applied to a child without a disability who engages in
comparable behaviors.
5. If a
request is made for an evaluation of a child during the time period in which
the child is subjected to disciplinary measures under this section, the
evaluation shall be conducted in an expedited manner.
a. Until the evaluation is completed, the
child remains in the educational placement determined by the school personnel,
which can include suspension or expulsion without educational
services.
b. If the child is
determined to be a child with a disability, taking into consideration
information from the evaluations conducted by the local educational agency and
information provided by the parent(s), the local educational agency shall
provide special education and related services as required for a child with a
disability who is disciplined.
I. Referral to and action by law enforcement
and judicial authorities. ( 34 CFR 300.535 )
1. Nothing in this chapter prohibits a local
educational agency from reporting a crime by a child with a disability to
appropriate authorities, or prevents 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 to the extent such action applies to a student without a
disability.
2. In reporting the
crime, the local educational agency shall ensure that copies of the special
education and disciplinary records of the child are transmitted for
consideration by the appropriate authorities to whom school personnel report
the crime. Transmission of such records shall be in accordance with
requirements under the Management of the Student's Scholastic Record in the
Public Schools of Virginia (8VAC20-150).
J. Information on disciplinary actions. (
34 CFR
300.229 )
1.
The Virginia Department of Education requires that local educational agencies
include in the records of a child with a disability a statement of any current
or previous disciplinary action that has been taken against the
child.
2. Local educational
agencies are responsible for transmitting the statement to the Virginia
Department of Education upon request to the same extent that the disciplinary
information is included in, and transmitted with, the student records of
nondisabled students.
3. The
statement may include:
a. A description of
any behavior engaged in by the child who required disciplinary
action;
b. A description of the
disciplinary action; and
c. Any
other information that is relevant to the safety of the child and other
individuals involved with the child.
4. If the child transfers from one school to
another, the transmission of any of the child's records shall include the
child's current IEP and any statement of current or previous disciplinary
action that has been taken against the child.
Statutory Authority
§§ 22.1-16 and 22.1-214 of the Code of
Virginia; 20 USC § 1400 et seq.; 34 CFR Part
300.