Introduction

Prior to enactment of the IDEA Amendments of 1997, the statute only specifically addressed the issue of discipline in a provision that allowed school personnel to remove a child to an interim alternative educational placement for up to 45 days if the child brought a gun to school or to a school function. The 1997 Amendments incorporated prior court decisions and Department policy that had held that –

1. schools could remove a child for up to ten school days at a time for any violation of school rules as long as there was not a pattern of removals;
    
2. a child with a disability could not be long-term suspended or expelled from school for behavior that was a manifestation of his or her disability; and
    
3. services must continue for children with disabilities who are suspended or expelled from school.

In addition, the 1997 Amendments

1. expanded the authority of school personnel regarding the removal of a child who brings a gun to school, to also apply to all dangerous weapons and to the knowing possession of illegal drugs or the sale or solicitation of the sale of controlled substances; and
2. added a new ability of schools to request a hearing officer to remove a child for up to 45 days if keeping the child in his or her current placement is substantially likely to result in injury to the child or to others.

The Amendments also added new provisions that require schools to assess a child's troubling behavior and develop positive behavioral interventions to address that behavior, and that describe how to determine whether the behavior was a manifestation of the child's disability.

The final regulations incorporate the statutory provisions described above, and provide additional specificity on a number of key issues:

Removals of Up to Ten School Days at a Time

• The regulations clarify that school personnel may remove a child with a disability for up to ten school days, and for additional removals of up to ten school days for separate acts of misconduct, as long as the removals do not constitute a pattern.

Providing Services During Periods of Disciplinary Removal

• Schools do not need to provide services during the first ten school days in a school year that a child is removed.

• During any subsequent removal that is for ten school days or less, schools provide services to the extent determined necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals of his or her IEP. In cases involving removals for ten school days or less, school personnel, in consultation with the child's special education teacher, make the service determination.

• During any long-term removal for behavior that is not a manifestation of a child's disability, schools provide services to the extent determined necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals of his or her IEP. In cases involving removals for behavior that is not a manifestation of the child's disability, the child's IEP team makes the service determination.

Conducting Behavioral Assessments and Developing Behavioral Interventions

• Meetings of a child's IEP team to develop a behavioral assessment plan, or (if the child has one) to review the child's behavioral intervention plan, are only required when the child has first been removed from his or her current placement for more than ten school days in a school year, and when commencing a removal that constitutes a change in placement.

• If other subsequent removals occur, the IEP team members review the child's behavioral intervention plan and its implementation to determine if modifications are necessary, and only meet if one or more team members believe that modifications are necessary.

Change of Placement; Manifestation Determinations

• The regulations provide that a change of placement occurs if a child is removed for more than ten consecutive school days or is subjected to a series of removals that constitute a pattern because they cumulate to more than ten school days in a school year, and because of factors such as the length of each removal, the total amount of time the child is removed, and the proximity of the removals to one another.