Education Department clarifies special ed discipline

The regulations "make clear" that school personnel "unilaterally can remove a child who brings weapons or drugs to school" for up to 45 days, said Judith E. Heumann, assistant secretary for special education and rehabilitative services, in releasing the final package March 12. Schools "do have the authority to remove children to preserve school safety."

The final regulations also allow schools to suspend a disabled student for up to 10 days for a minor disciplinary infraction, with no annual limit on suspension days, "as long as the removals do not constitute a pattern."

"This is an important step forward for the final regs to recognize the law gave school districts the discretion to provide short-term suspensions that, in the aggregate, go beyond 10 days," says NSBA Associate Executive Director Michael A. Resnick. The Education Department's original proposed regulations limited short-term suspensions of an IDEA student to a maximum of 10 days per school year before requiring school officials to follow procedures to change the student's educational placement.

But, Resnick continues, "the final regs add a new substantive requirement" that is not in the law: While school officials do not have to provide educational services during the first 10 days of short-term removal, they will have to provide schooling beyond that initial period.

"Only time will tell the real impact, but we are concerned this new standard may substantially limit the ability of school officials to go beyond 10 days," he says. "And this does continue to perpetuate a double standard" for disabled and non-disabled students.

Noting the concern among school officials on the short-term removal provisions, Heumann pointed out it will be up to the principal, in consultation with the special education teacher, to decide whether homework is sufficient or if more services are needed during those times.

The final regulations, which go into effect May 11, provide detailed guidance on implementing the major rewrite of IDEA enacted in June 1997. The central thrust of the amendment package is to change IDEA from merely providing "disabled children access to an education" to emphasizing "their involvement and progress in the general curriculum," Heumann says.

Both "advocates and administrators" might "feel less than totally pleased" by the final discipline-related regulations, says Education Secretary Richard W. Riley. But remember, "less than 1 percent of all disabled children are involved in serious disciplinary problems, roughly the same as nondisabled children."

The final rules retain a provision from the proposed package that calls for a hearing officer--rather than school personnel--to rule that a handicapped student be moved to an alternative site for up to 45 days because he or she is a serious threat to himself or others.

Also, during a long-term disciplinary removal for misconduct that is not a manifestation of the child's disability, the student's IEP (individualized education program) team must ensure services continue to be provided to enable the child to progress in the general curriculum. If the misconduct is a manifestation of the disability, the placement can't be changed except by following special procedures for developing a new educational plan.

Heumann stressed that teachers and principals should "not wait" until discipline problems exacerbate, but should respond if a student "is beginning to act out." The IDEA amendments and regulations "offer the tools and resources necessary for schools to minimize any discipline issues, such as through early intervention, effectively trained personnel, and behavioral assessments," she says.

However, the final rules also require the IEP team to prepare or review an existing behavioral assessment and intervention plan when a student is first suspended for more than 10 school days in a school year.

Other major provisions of the final regulations include:

• A school district must provide special education to a disabled child "within a reasonable period of time" once the parents have consented to an initial evaluation. No delay can occur because of disagreement over the source of funding.

• Schools cannot, except when a family gives "informed consent," use a family's insurance or require a family to sign up for public insurance in order to finance medical services necessary for a student to receive schooling. Meanwhile, other agencies no longer can refuse to cover through Medicaid or other public insurance programs a medical service for a child where the service is needed in a school context.

• Charter schools, whether they are part of a local school district, overseen by the state, or considered an independent public school, are covered by IDEA and must accept and serve the special needs of disabled students. They also are to have access to IDEA funds on an equal basis with other public schools.

• Disabled students' rights to public schooling continue until they earn a regular diploma or reach age 21. Such students cannot be "graduated" with a certificate of attendance or special education-oriented diploma.

• Each IEP team must include at least one regular education teacher for the child. That teacher might not be needed at all team meetings but must be an active participant in overseeing the child's program. And all teachers working with the child must be informed about IEP details and their own responsibilities.

• In developing a child's IEP, the team must consider the child's results on general state and districtwide assessments. All but the most severely handicapped students must participate in these assessments, and those students must be provided an alternative.

• Parents must be informed participants of the IEP team. They have the right to obtain an independent educational evaluation of their child (at public expense), and they can accept mediation or initiate a due process hearing if they disagree with a team's decision.

• Once a hearing officer agrees with the parents that a change of the child's educational placement is appropriate, a school district must fund the new placement even if the dispute is not resolved.