Discipline and Students with Disabilities
August, 2011
Session Objectives
 Review IDEA Procedures for Discipline
 Update Our Local Processes
 Examine Case Studies
 Identify Common Pitfalls
If the only tool you have is a
hammer, everything looks
like a nail.
What does the USDOE say?
The United States Department of Education has
developed a video addressing the IDEA and
Discipline of Students with Disabilities.
The video provides an overview to the
objectives of this presentation.
View USDOE video
On the Web!
 Many Special Education and Related
Services forms are now on the web,
with instructions. See the Positive
Behavior Intervention Supports section
of the online Manual.
 Goalview now includes FBA, BIP and
the Suspension Analysis documents.
Discipline Procedures Involving
Students with Disabilities
Procedures for students eligible for IDEA or Section
504 are specified in the on-line Manual under the
section titled:
Positive Behavioral Interventions and Supports
Cumulative Shortterm Suspension
Short-Term Suspension
Short-term Suspension Incident Worksheet
 Completed by administration
 Start recording suspensions on the first incident
 Include Out of School
 Include In School suspension that results in
student not receiving services
 Include bus suspensions if transportation is on IEP
 Sending student home for remainder of day
because of behavior
 Complete the Change in Placement Suspension
Analysis Worksheet when a planned suspension
results in 11 or more cumulative days
Short-Term Suspension
Change in Placement Suspension Analysis Worksheet
 Completed by administration
 Complete when a planned suspension results in 11
or more cumulative days
 Complete new analysis for each additional incident
 Determines disciplinary change in placement
 Determines the need for a Manifestation meeting
 Guides “substantially similar” consideration
Manifestation
Determination
NC 1502-2.1(e)
WHY?
Conducted in order to determine if the
student can be removed for his/her
disciplinary infraction based on the
two-prong test for manifestation.
TWO- PRONG MANIFESTATION
TEST:
 Is the conduct in question caused by, or does
it have a direct and substantial relationship to
the child’s disability?
OR
 Is the conduct in question the direct result of
the LEA’s failure to implement the IEP?
 If the team answers “yes” to either question,
the behavior IS a manifestation.
WHEN?
Within 10 school days of any decision to
change the placement of a child with a
disability because of a violation of the
student code of conduct.
WHO?
The LEA, the parent, and relevant members of the IEP Team
(as determined by the LEA and parent)
To consider:
Who are relevant members?
Who was present when the violation of the student code of
conduct occurred?
Who is familiar with the characteristics of this student’s
disability?
Is there a possibility that an amendment to the student’s
IEP (including educational placement) may be necessary?
If yes, remember a complete IEP Team will be required for this
discussion unless the LEA and parent have agreed to excuse
members of the IEP Team.
HOW?
The manifestation team must review
all relevant information in the
student’s file, including the child’s
IEP, any teacher observations, any
previous diagnosis, behavioral
concerns, and any relevant
information provided by the parents.
This must be documented on a
Manifestation Determination
document.
To consider …
 Was the conduct in question caused by, or did it have
a direct and substantial relationship to, the child’s
disability?



“Caused by” – clear language
“Direct and substantial” – courts have used this
language to distinguish behavior that has only an
“attenuated” relationship to the student’s misconduct
(e.g. low self-esteem)
Focuses our attention on the underlying basis for the
MD requirement which is non-discrimination and
fairness (are we taking the disability into account?)
To consider …
 Was the conduct in question the direct result
of the LEA’s failure to implement the IEP?
 Did the school’s failure to implement the IEP
actually cause the student to violate the code
of conduct?
Implementation of the IEP
 Are the placement, setting, accommodations/
modifications and services identified in the IEP
being provided?
 Does the child have behavioral goal(s) in the IEP?
 Have interventions and behavioral plans and/or
contracts been implemented?
To consider …
Manifestation Determination is:
 NOT categorically driven
 NOT a simple analysis of right and wrong
Remember:
 A diagnosis (without other supporting documentation) does not
demonstrate causation
 A disability is NOT:

a temporary emotional state, a temporary situational
disorder, or a voluntarily induced state of intoxication;
and cannot be bound by medical labels, definitions or
conclusions
 The behavioral framework for manifestation relationships should be
established as a child’s eligibility and needs are determined
Eric Hartwig
Manifestation Determination – A Short History
In Case, Volume 47, Number 3
To consider …

The key to the manifestation decision is: How directly is the behavior
linked to the disability?

How do we think about “manifestation” operationally?
 Severity – significant difference from the expectation, norm or
standard
 Chronic – pattern of behavior that is habitual or persistent
 Duration – not situational, length of time exhibited
 Frequency – occurs regularly, much more than normal
 Across settings – pervasive (home, school, community),
behavior impacts life functions and social awareness
 Characteristic – patterns like or unlike
 Intensity and pervasiveness – persistent, generalized not
context specific
Eric Hartwig
Manifestation Determination – A Short History
In Case, Volume 47, Number 3
IF the manifestation team determines that
the behavior WAS a Manifestation …
 Discipline Case Closed
 IEP team must either:
Conduct FBA (unless already conducted) and
develop the BIP.
 Review the BIP (if already in place) and modify, if
necessary, to address the behavior.
And (except in the case of “special circumstances”)
 Immediately return the child to the placement from
which he/she was removed (whether a Short- or
Long-Term Suspension), unless the parent and
LEA, through the IEP process, agree to a change
of placement.

IF the manifestation team determines that
the behavior WAS a Manifestation …
 The student may no longer be suspended
(Short- or Long-Term) during the school year
for the behavior reviewed in a manifestation
process, when that behavior was found to be
a manifestation.
 If the student has already been removed, the
student must be returned immediately to the
current placement, unless the parent and the
LEA, through the IEP process, agree to
change the placement.
If the manifestation team decides that the
behavior in question WAS NOT a manifestation
…
 School personnel may apply the same disciplinary
procedures as they would for students who do not have
disabilities.
 IEP team determines what services must be provided so the
student continues to: participate in the general education
curriculum; progress toward meeting the annual goals set
forth in the IEP; and receive behavioral intervention services
and modifications that are designed to address the behavior,
so that it does not recur.
 Conduct an FBA (unless already conducted) implement BIP;
OR
 Review the BIP (if already in place) and modify if necessary
to address the problem behavior.
Manifestation Determination
 So….



Removals of more than 10 consecutive days (after the
first 10 cumulative days) would require a manifestation
determination because that is deemed a Disciplinary
Change in Placement.
Removals after the first 10 cumulative days for not more
than 10 consecutive days may or may not require a
manifestation determination…it just depends on the
suspension analysis.
Flexibility is afforded to the “public agency” (i.e. school
personnel) to make the determination.
The Bottom Line
An Ounce of Prevention …
 If a student is exhibiting challenging
behaviors, involve IEP team in conducting a
Functional Behavioral Assessment and
developing a Behavioral Intervention Plan
BEFORE suspensions accumulate to more
than 10 days
 Preventive … not Reactive
The Bottom Line
Remember…IDEA provisions do
not apply to the first 10
cumulative days of removal.
Use these days wisely!
The Bottom Line
 The “10-days” never recycle…there are really
only 10 cumulative removal days afforded to
each student with a disability in a given
academic year before IDEA provisions are
required.
 It is imperative that you know the number of
days of removal students who transfer into
your school bring…either in or out of
state…the days never recycle.
Timeline for Expedited Due Process
Hearing for Disciplinary Reasons
 Within 7 days of receiving the petition, the
LEA must schedule a resolution session.
 Within 20 school days of the date the hearing
was requested, the SEA or LEA must arrange
for a due process hearing.
 Hearing Officer must reach determination
within 10 days after hearing.
 Student remains in IAES pending hearing
decision or until disciplinary sanction expires,
whichever occurs first.
CASE STUDIES
Case Study #1:
 Mary is a ninth grade student who is identified as OHI.
 During the 3rd month of school, Mary got into a fight
and was removed for 10 consecutive days.
 Mary returned to school and was not referred again to
the office until the 6th month of school for smoking,
which is an automatic 3 day removal.
 Does the proposed 3 day removal constitute a change
of placement for Mary? Why or why not?
 What does IDEA require for Mary as a result of the 3
day removal?
Case Study #1:
Ideas & Rationale
 The total number of days Mary had been removed

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
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prior to being caught smoking was 10…all students
can receive up to 10 cumulative days of removal.
It had been 3 months since the 10 day removal.
The proposed 3 day removal was for a totally different
infraction.
No Disciplinary Change in Placement…proceed with
removal.
School personnel along with one teacher of the child
determine how services will be provided during 3 day
removal.
Case Study #2:
 Steve is an 11th grade student identified as ED.
 Steve is a habitual skipper with known ties to local gang activity.
Within the first 2 months of school he had been removed for 10
cumulative days.
 During the 3rd month of school, Steve initiates a major fight at a
home football game. The infraction generates a 10 day removal
with the recommendation for long-term suspension.
 Does the proposed removal constitute a Disciplinary Change in
Placement?
 What does IDEA require be done on Steve’s behalf?
Case Study #2:
Ideas & Rationale
 Within 2 months Steve had utilized 10 days.
 The proposed removal is for 10 additional consecutive days with
recommendation for long-term…which DOES automatically constitute
a Disciplinary Change in Placement.
 A manifestation determination MUST be completed.
 If NO Manifestation…the student is subject to the same standard as
non-disabled students.
 The IEP team reviews/revises the FBA/BIP and determines where
& how services will be delivered during the removal.
 If it WAS a Manifestation…the student is not subject to the same
standard as non-disabled students.
 The IEP team reviews/addends the FBA/BIP and determines if the
current placement is appropriate for the student…BE CAUTIOUS!
 Steve can no longer be suspended for fighting.
Case Study #3:
 Charlie is a 6th grade student identified as LD.
 Charlie is the kid in the office every other day and
within the first 3 months of school had been removed
10 days.
 The following record reflects Charlie’s office visits for
the 4th month:



November 2-tardy-1 day removal (no Disciplinary
Change in Placement determined by school official)
November 11-skipping-2 days removal (no
Disciplinary Change in Placement determined by
school official)
November 29-disruptive in class-proposed 3 day
removal.
Case Study #3:
 Does the proposed 3-day suspension
constitute a Disciplinary Change in
Placement? Why or why not?
 What does IDEA require be done on Charlie’s
behalf?
Case Study #3:
Ideas & Rationale
 Within 3 months Charlie had been removed for 10 days.
 The proposed removal is for 3 days…BUT…there is a clear
pattern of removal that does constitute a Disciplinary Change in
Placement.
 A manifestation determination MUST be completed.
 If NO Manifestation…the student is subject to the same standard
as non-disabled students.
 The IEP team reviews/addends the FBA/BIP and determines
where & how services will be delivered during the removal.
 If it WAS a Manifestation…the student is not subject to the same
standard as non-disabled students.
 The IEP team reviews/addends the FBA/BIP and determines
if the current placement is appropriate for the student…BE
CAUTIOUS!
 Charlie cannot be short- or long-term suspended for class
disruptions.
Case Study #4:
 Sandy is a Senior and is identified as ID.
 Sandy has not been removed this school
year.
 The resource officer notices Sandy has a gun
on the backseat of her vehicle when she
parks in the student parking lot.
 What is the appropriate series of steps
administrators can follow and remain
compliant with IDEA?
Case Study #4:
Ideas & Rationale
 The principal can order the 45-day IAES.
 Manifestation must be determined within 10 school days.
 The IEP team must determine how & where services will be
delivered during the IAES placement.
 If NO Manifestation…the student is subject to the same standard as
non-disabled students.

The IEP team reviews/addends the FBA/BIP and determines
where & how services will be delivered during the removal.
 If it WAS a Manifestation…the student is not subject to the same
standard as non-disabled peers.


The IEP team reviews/addends the FBA/BIP and determines if
the current placement is appropriate for the student…BE
CAUTIOUS!
Sandy cannot be suspended for brining a gun to school.
Case Study #4:
Ideas & Rationale
 If NO Manifestation…the student is subject to the same
standard as non-disabled students.

365 day removal for a gun.

The IEP team reviews/addends the FBA/BIP and determines
where & how services will be delivered during the removal.
 If it WAS a Manifestation…the student is not subject to
the same standard as non-disabled students.

Student remains in IAES for up to 45 school days.
Case Study #4:
Ideas & Rationale
OR….
 School Administration could exercise the
authority to consider unique circumstances
on a case-by-case basis if a change of
placement is necessary based on the
infraction to the student code of conduct.
 Based on this authority…the school
administrator has a number of choices.
Case Study #5:
 Jojo is a 7th grade student with a diagnosis of ADHD
and ODD (Oppositional Defiant Disorder) –served
with an IEP as Other Health Impaired. He receives
behavior support daily (45 minutes a day), is on a
point sheet, and receives research based instruction
in reading and writing (90 minutes a day).
 He has been suspended 3 separate occasions for
fighting - the first suspension 2 days; second
suspension 4 days and last suspension 5 days for a
total of 11 days
Case Study #5:
 With each suspension, the team met to revisit Behavior Intervention

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
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Plan and plan was modified to provide additional support.
With the 11th day of suspension, the administrator referred to the
“Short-term Suspension Incident Worksheet” and completed the
“Change of Placement Suspension Analysis Worksheet.”
The administrator determined that a disciplinary change in placement
occurred and a Manifestation Determination meeting was convened.
Each fight was reviewed in the Manifestation Determination meeting
 Jojo hit a student because he was bumped in the hall,
 He hit a student when a basketball hit him in the head during PE
time, and
 The third fight occurred when someone looked at him “the wrong
way” in the bathroom.
Were these incidents due to his disability?
Are these behaviors substantially similar?
Can you suspend further for these behaviors?
Case Study #5:
Continued
 Two weeks later the student engages in another fight.
This time the student arrives on campus and meets 8
other students who then begin assaulting another
student. This fight was planned by the students on
the day prior and the fight is part of a gang initiation.
All students are suspended for 10 days with a
recommendation for long term.
 Is this behavior substantially similar, why or why not?
 Is another Manifestation Determination meeting
necessary?
 Is the long term suspension recommendation
supported?
Case Study #5:
Continued
 A manifestation is held, the team reviews the
student’s IEP and “Change of Placement Suspension
Analysis Worksheet.” The team determines that this
was not an impulsive act due to the evidence that
indicates the preplanning and premeditation of the
fight. Therefore, this incident was not due to his
disability. Student’s long term suspension is upheld
but will end on the first day of second semester.
 Student attends Pathways for the remainder of the
semester.
Case Study #5:
Continued
 Jojo returns to school first day of second semester,





team meets to review plan with student. He had no
incidences of fighting while attending Pathways.
Four weeks into the second semester, Jojo was in a
fight in the Intensive Behavior Class when a student
knocked his desk into Jojo’s chair.
Has this previously been determined that this was a
manifestation disability?
Is this behavior substantially similar?
Can he be suspended for this behavior?
What does IDEA require for Jojo?
Case Study #5
Ideas and Rationale
Determining substantially similar must be
determined on a case by case situation.
If the behavior was determined to be a
Manifestation then a FBA/BIP must be
conducted or the plan must be reviewed and
modified.
Student returns to placement unless the IEP
team process agrees to a change of
placement.
Pitfalls …
 Not recognizing removals as removals
 In-school suspensions
 Bus suspensions
 Is
transportation a related service?
 Losing track of days
 Cluttered lines of communication
Some Suggestions …
 Have a procedure for “counting the days” for
each student with a disability
 Know who has the duty to determine whether
or not cumulative action amounts to a change
of placement
 Develop methods for serving students who
are removed for more than 10 days
 Be prepared for parental disagreement
Let’s Review!
Check Your Knowledge
IDEA & Discipline for Students with
Disabilities
True or False?
The “Short-term Suspension Incident
Worksheet” should be completed
on the 11th day of cumulative
suspension.
FALSE
True or False?
Conducting a manifestation
determination recycles the “10
Day” calendar for students with
disabilities.
FALSE
True or False?
School personnel may consider any
unique circumstances on a case-by-case
basis when deciding if a Disciplinary
Change in Placement is appropriate for
a child with a disability who violates the
student code of conduct.
TRUE
True or False?
Under specific circumstances,
school personnel have the authority
under IDEA to remove a student to
an interim alternative educational
setting for up to 45 school days
TRUE
True or False?
Regardless of manifestation
determination, students with
disabilities must be provided
services on the 11th cumulative day
of removal.
TRUE
True or False?
Behavioral Intervention Plans are not
considered an official component of
the IEP.
FALSE
True or False?
Students who are suspected of being
students with disabilities are
protected under the disciplinary
provisions of the IDEA.
TRUE
True or False?
Students with disabilities cannot be
removed for more than 10 days
within one academic year.
FALSE
True or False?
A manifestation determination must be
conducted for every proposed removal after
the first ten days.
FALSE
True or False?
If a specific behavior subject to disciplinary
suspension is determined to be a
manifestation of a student’s disability, the
student may be neither long- or short-term
suspended for that specific behavior during
the current school year.
TRUE
True or False?
Bus suspensions resulting in students’ with
disabilities absences are never considered
removals and therefore do not accumulate in
the cumulative day count.
FALSE
True or False?
If the school calls the parent and asks them to
pick up a child because they are
misbehaving, this is considered a
suspension.
TRUE
True or False?
The following represents the two-prong test for
manifestation determination:
1. The behavior was caused by, or was in direct and
substantial relationship to the child’s disability; or
2. The conduct in question is the direct result of the
LEA’s failure to implement the IEP.
TRUE
True or False?
A student commits an offense that is subject to
a suspension. This behavior is substantially
similar to prior incidents that have been
determined to be a manifestation of the
student’s disability. The student cannot be
suspended.
TRUE
“Upon our children – how they are taught – rests
the fate – or fortune – of tomorrow’s world.”
B.C. Forbes