December 1, 2004
Letter of Clarification FY05-02
Discipline and OSE Placement
To Whom it May Concern:
This letter is in response to your request for clarification regarding the requirements of Policy
2419: Regulations for the Education of Exceptional Students that pertain to discipline, change of
placement decisions and prior written notice. Your questions and the responses of the Office of Special
Education (OSE) are as follows:
QUESTION: Does there have to be a Behavior Intervention Plan (BIP) in place for all students on Part
VII: Special Considerations if it is checked that the behavior impedes their or others’ learning?
RESPONSE: No, according to federal and state special education regulations, a BIP is only required
when: 1) a student is removed from school for more than 10 cumulative school days in a school year
(7.1.1.d), or 2) commencing a removal that constitutes a change of placement in accordance with Policy
2419, Section 7.1.2. If the IEP team determines and documents that a student has behavioral needs on
Part VII: Special Considerations, the IEP team is required to address those needs by including, if
appropriate, strategies, including positive behavioral interventions and supports to address that behavior
on the student’s IEP. For students who have documented behavioral needs but who do not require a BIP
in accordance with the aforementioned requirements, the behavioral needs may still be addressed through
the development of a BIP after the student’s IEP is appropriately developed. Meeting a student’s
behavioral needs may also be accomplished by the following:
• Present levels of educational performance must first clearly describe the student’s behavior
in observable, measurable terms and the conditions under which they occur. Based upon this
information, goals and objectives that incorporate an array of interventions or strategies to be
used can be developed.
• In addition, supplementary services (supports) to address the behavior (e.g., visual prompts,
peer assistance) can also be incorporated into the student’s IEP.
QUESTION: Manifestation-at what point does this have to take place?
RESPONSE: Policy 2419 Section 7.1.2 requires that whenever a change of placement (defined in 7.1.2
a.) is being considered due to disciplinary reasons, the IEP team must meet within 10 school days of the
change of placement removal decision to conduct a manifestation determination. Specifically, a
manifestation determination must be conducted by the student’s IEP team: 1) if a student is suspended for
more than 10 consecutive school days and/or 2) the removals are administered in a series that constitute a
pattern in accordance with (7.1.2.a. B). If a student with a disability carries a dangerous weapon to school
or school function or possesses or uses drugs as described in 7.1.4.a, the student’s IEP team may remove
the student to an Interim Alternative Educational Setting (IAES) in accordance with all of the provisions
of 7.1.4. However, the procedures set forth in Sections 7.1.2 Change of Placement and 7.1.3
Manifestation Determination also must be addressed.
With regard to the specific scenario described in your letter for a first time drug/alcohol offender who
automatically gets a 10-day suspension and who has no previous removals during the same school year,
no manifestation determination is required. However, if the student was removed previously during the
same school year, the requirements specified in 7.1.1 e. must be applied (i.e. review of the student’s BIP
and its implementation by the student’s IEP team members).
For students whose conduct is not a manifestation of their disability, the same discipline procedures for
nondisabled students can be applied, including expulsion. However, Section 7.1.5. addresses additional
requirements in the event there is a parent disagreement with: 1) a manifestation determination, and 2)
change of placement decision due to disciplinary reasons, including IAES and expulsion.
To determine how your district’s document, Core Team Guidelines for Drug Abuse, interfaces with
Policy 2419 with regard to the need for a manifestation determination, the OSE requires a copy of these
guidelines.
QUESTION: Prior written notice. When and under which conditions does this occur?
RESPONSE: The Office of Special Education issued a memorandum on November 26, 2002 that
provides an overview of the prior written notice requirements, including specific examples or
circumstances when prior written notice must be provided. This memorandum and all memoranda issued
to county special education directors can be located on the Department’s Internet homepage. Go to:
http://wvde.state.wv.us; click on Special Education and then Directors’ Memos.
QUESTION: Change of placement for nondisciplinary reasons (medical, psychological, etc.) for how
long can this be and are there any protocol to follow for this, specifically for students who are placed in
an out-of-school environment?
RESPONSE: Neither federal nor state special education regulations provide differentiated requirements
for a student whose placement is changed to Out-of-School Environment (OSE). Any change to a
student’s IEP, including to an OSE placement, requires the following provisions as specified in Policy
2419:
• Prior Notice, Section 8.1.1.
• Procedural Safeguards, Section 8.1.2.
• Notice in Understandable Language, Section 8.1.3.
• Parental Consent, Section 8.1.4 (Note: Parental consent is not required for a change in a student’s
educational placement, only for the initial provision of special education and related services).
In addition, Section 5.1.3.b. D. requires an explanation of the extent, if any, to which the student will not
participate with non-exceptional students in the regular class and in the activities described in 5.1.3.b. C.
Therefore, for students who are placed in an OSE, the student’s present levels of educational
performance must be described in objective and measurable terms and provide the justification for the
student’s removal to the OSE.
A memorandum addressing issues pertaining to the OSE placement of students with exceptionalities is
currently be prepared for statewide dissemination. The document will be available on the Department’s
Internet homepage.
QUESTION: Safe Schools Act-how does this work with Policy 2419? If a student threatens a teacher,
brings a weapon to school, sells/possess drugs, what would I do as an IEP Coordinator if this should
happen?
RESPONSE: Federal and state special education regulations supersede state code and county policy.
WV Code 18A-51a states, “For the purposes of this section, nothing herein may be construed to be in
conflict with the federal provisions of the Individuals with Disabilities Education Act of 1990 (PL 101476). Therefore, for an eligible student with a disability who engages in the aforementioned violations,
the county school district must adhere to the requirements specified in Policy 2419, Sections 7.1.4.
Removal for Weapons and Drugs, 7.1.2. Change of Placement and 7.1.3. Manifestation Determination.
For your information, LRP Publications Bonus Report, May 1999 included several charts to assist
administrators in complying with the discipline requirements.
I hope you find this information helpful. If you have additional questions or need additional
clarification, please do not hesitate to contact Robin Bolling, Assistant Director or me at (304)-558-2696
(V/TDD).
Sincerely.
Lynn Boyer, Ph.D.
Executive Director
Office of Special Education
LB/rb