Due Process Protections
When disciplining students with disabilities the FBA and BIP play an important role. An FBA, conducted and a positive behavior support plan, must be implemented. If an FBA and positive support plan were completed, the IEP team must review and modify them as necessary. Certain actions may cause school personnel may unilaterally remove a student with an interim alternative educational setting for not more than 45 school days.
The manifestation determination is a hearing to ascertain if a student’s misbehavior was caused by or substantially related to the student’s disability. The manifestation determination must be 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 observations, and any relevant information provided by the parents to determine if the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability. Another possibility could be if the conduct in question was the direct result of the LEA’s failure to implement the IEP. 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 either section was met.
Determination that behavior was a manifestation is looked in to case-by-case. 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.
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 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 if a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior.
Reference:
Yell, Mitchell L. (2012) The Law and Special Education: Third Addition. Upper Saddle River, NJ: Pearson Education, Inc.
Yell, Mitchell L. (2012) The Law and Special Education: Third Addition. Upper Saddle River, NJ: Pearson Education, Inc.