By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office
Students who are eligible for special and related services are entitled to additional protections when subjected to disciplinary removals that are deemed a "change of placement" under federal law, i.e., the IDEA and its corresponding regulations. At the point where disciplinary removals become a "change of placement" the IDEA and its regulations require that a manifestation determination IEP team meeting be held to determine whether the alleged misconduct in question is a manifestation of the student's disability or not. A change of placement is deemed to occur (hence triggering the requirement for convening a manifestation determination IEP team meeting), where the disciplinary removal is for 10 cumulative school days or more during a school year, or where a series of removals constitutes a pattern. While the legislation seems straight forward, upon a first or even several reads, many questions arise.
School Day Removals
Keep in mind that in most cases, LEA’s can treat disabled students the same as non-disabled students for purposes of suspension for the first 10 days of suspension in a school year, and hence not trigger the need for a manifestation determination IEP team meeting. Nevertheless, disciplinary removals that trigger the need to hold a manifestation determination IEP team meeting need to take into account both partial day and full day removals. In the case of partial day removals, the Office of Special Education Programs (OSEP) has defined "portions of a school day" as counting a disciplinary removal (i.e. a suspension) for a half day or less as a half day, and counting a suspension or removal for more than a half day as a whole day.
This guidance means that a school is only required to count a half day of suspension as a half day towards a special education student's 10 cumulative school days. While schools may be inclined to break a school day into even smaller increments, we recommend that schools exercise extreme caution before measuring a student's suspension by hours or minutes. Rather, schools may wish to establish an easier way to calculate the suspension. For example, a school which operates a 6 hour school day may wish to consider a special education student who is suspended for 3 or less hours of the day as receiving a half day of suspension and a special education student who is suspended for more than 3 hours as receiving a full day of suspension.
Additionally, it is important for schools to remember that repeated partial day suspensions can count as a pattern of suspensions constituting a change of placement and requiring a manifestation determining IEP team meeting. Admittedly, pin-pointing what does and what does not constitute a "pattern" can at times feel more like an art form than a science. Perhaps a simple rule of thumb for guidance on whether or not a "pattern" has occurred is to consider whether there are three or more disciplinary removals for the same type or behavior or misconduct that triggers the partial or full day suspension.
In-School Suspension
In addition to traditional suspensions, where a student is removed from the school site, some schools have embraced in-school suspensions as an alternative disciplinary measure which allows the student to participate in the instruction while remaining at school. In-school suspensions do not count towards the 10 cumulative school days where the student continues to receive the instruction and special education services specified in their IEP that they would receive were they not receiving an in-school suspension. Failure to provide the services specified in the student’s IEP, including mainstreaming or related services, will count as a removal and the in-school suspension will count toward the 10 day rule.
Transportation Suspension
The most under-asked question about calculating suspensions is whether suspension from transportation, offered as part of a student’s IEP, is considered a removal and therefore, counted towards the 10 day rule. They short answer is a qualified "yes." Where a student is suspended from transportation that is offered in the student’s IEP, the day of suspension counts towards the 10 day rule even if the student is brought to school by the parents. There are two important exceptions to this rule which both involve the provision of alternative transportation. The first exception allows the school and parent to agree, in writing, that during the transportation suspension the school shall reimburse the parents for parentally provided transportation. The second exception allows the school to provide an alternative means of transportation such as a separate or alternative bus. By providing alternative transportation the bus suspension is not counted as a removal and hence does not count towards the 10 cumulative days of suspension that would otherwise trigger the need to hold a manifestation determination IEP team meeting before day 11 of the suspension could be implemented.
