School officials can remove any child with a disability from a regular school placement for up to 10 consecutive school days at a time, even over the parents’ objections.
However, school officials cannot use this authority to repeatedly remove a child from the current placement if that series of removals constitutes a change in placement. A change in placement occurs when:
If a child with a disability is removed for more than 10 cumulative school days in a school year, a free and appropriate public education must be provided.
Also, within 10 school days of any decision to change the placement of a child, the school district must convene an IEP team (same as the ARD committee) meeting to determine whether the child’s behavior is related to the disability (manifestation determination).
The reauthorized law clarifies that behavior is a manifestation of a disability only when it is caused by, or has a direct and substantial relationship to, the disability or when the conduct in question was the direct result of the district’s failure to implement the IEP. If the IEP team concludes that the child’s behavior is not due to a disability, the child can be disciplined in the same way and for as long as nondisabled children, except that a FAPE must continue to be provided to the child with a disability.
Within 10 days of taking disciplinary action that constitutes a change in placement, a district must seek parent consent to conduct a functional behavioral assessment (if the student has not previously had one, or if the student’s most recent such assessment is more than a year old), and develop a behavioral assessment plan or review and modify the plan if one has already been developed and implemented.
If the removal is not a change in placement, the IEP team must only meet if one or more members of the IEP team think modifications are necessary.
School authorities can remove a child from a regular school placement for up to 45 school days at a time, without regard to a manifestation determination, if the child has brought a weapon to school or to a school function; knowingly possessed or used illegal drugs or sold or solicited the sale of controlled substances while at school or a school function; or inflicted serious bodily injury upon another person while at school, on school premises or at a school function.
Serious bodily injury is defined in U.S. Code, Title 18, Section 1365(h)(3) as a cut, abrasion, bruise, burn, or disfigurement; physical pain; illness; impairment of the function of a bodily member, organ, or mental faculty; or any other injury to the body, no matter how temporary, that involves a substantial risk of death; extreme physical pain; protracted and obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
If school officials believe that maintaining a child’s current placement is substantially likely to result in injury to the student or others in the child’s regular placement, they can ask an impartial hearing officer to order that the child be removed to an interim disciplinary alternative educational program for up to 45 days.
If, at the end of the DAEP placement, school officials believe that it would be dangerous to return the child to the regular placement because the child would be substantially likely to injure themselves or others in that placement, they can ask a hearing officer to order that the child remain in the DAEP for an additional 45 days.
If necessary, school officials also can request subsequent extensions of these interim DAEP placements for up to 45 days at a time if they continue to believe that the child would be substantially likely to injure themselves or others if returned to the regular placement.
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