22 Pa. Code Section 14.35
DATE OF ISSUE: July 1, 1999
DATE OF EXPIRATION: June 30, 2003
REPLACES: Disciplinary Exclusions of Students Who Are Eligible for Special Education,
BEC 22 Pa. Code Section 14.35, issued September 1, 1997
On March 12, 1999, the United States Department of Education's Office of Special Education (OSEP) released the federal regulations for the Individuals with Disabilities Education Act (IDEA). This BEC provides formal written guidance regarding disciplinary exclusions (suspension).
It would be erroneous to assume that changes in federal law either require or allow changes in practice in Pennsylvania in every instance. Therefore, this BEC constitutes formal written guidance regarding disciplinary exclusions of eligible students until 22 Pa. Code Chapters 14 and 342 are amended. In any event, when considering the overlap of federal and state statutes and regulations, school districts must obey whichever requirement provides the greater protection to students.
Applicability of Chapter 12 and the Public School Code of 1949
All students in the Commonwealth are protected by due process procedures regarding disciplinary exclusions. School districts (1) should first determine, when contemplating a disciplinary exclusion of any student, whether the student is an eligible student under Section 14.1. If the student is not an eligible student, school districts must follow the requirements of 22 Pa. Code Chapter 12 and the Public School Code of 1949.
If the student is an eligible student, school districts should then determine whether the disciplinary exclusion being contemplated is a change in educational placement. The phrase "change in educational placement" is defined and described in Section 14.1 and Section 14.35 and is discussed further below. Regarding disciplinary exclusions, a "change in educational placement" is defined under Section 14.1 as follows:
An exclusion of an ... [eligible] (2) student from the educational environment for more than 10 consecutive school days or more than 15 cumulative school days in a school year, or an exclusion of a student with mental retardation.
If the disciplinary exclusion being contemplated is not a change in educational placement, school districts must follow the requirements of 22 Pa. Code Chapter 12 and the School Code. If the disciplinary exclusion being contemplated is a change in educational placement, school districts must follow the requirements of 22 Pa. Code Chapters 14 and 342 and IDEA '97 as described below.
Applicability of Chapter 14, Chapter 342, and IDEA '97
According to Section 14.35(c)(1) & (2), an intended disciplinary exclusion of an eligible student is a change in educational placement in any of these three situations:
1. the disciplinary exclusion is intended to last for more than 10 consecutive school days;
2. the disciplinary exclusion, when cumulated with other disciplinary exclusions in a single school year, exceeds 15 school days; or
3. the disciplinary exclusion (for any length of time) involves a student with mental retardation.
Before implementing any disciplinary exclusion of an eligible student which would be a change in educational placement (see the three situations above), the school district must first follow the reevaluation, Individualized Education Program (IEP), and notice requirements in Chapters 14 and 342. Of particular importance, Section 342.25(n)(1) requires the multidisciplinary team to consider whether a change in placement or revision of the IEP would result in improved behavior. Also, Sections 14.35(a) & (b) require the IEP team to:
-- consider whether the eligible student might need the application of school discipline procedures;
-- determine whether the actual or anticipated behavior is attributable to the student's disability; and
-- in making this determination, rely on previous behavior and the likelihood of the occurrence or recurrence of behaviors requiring disciplinary action.
In addition to Pennsylvania's prescription of a manifestation determination review under Section 14.35(a), IDEA '97 now explicitly requires specific procedures for conducting a manifestation determination review by an IEP team. Federal regulation requires that a manifestation determination review be conducted by an IEP team immediately, if possible, but in no case later than 10 school days after the date on which the decision to take the disciplinary action was made. 34 CFR Section 300.523(a)(2) Since Pennsylvania rules already require a manifestation determination prior to a change in educational placement (see Section 14.35), current Pennsylvania rules already meet this requirement. These procedures must be incorporated into the IEP team review required by Section 14.35 prior to a disciplinary exclusion which would constitute a change in educational placement. Section 615(k)(4)(C) of IDEA '97 as well as 34 CFR Section 300.523(c)(i), says that, in carrying out a manifestation determination review, "the IEP Team may determine that the behavior of the child was not a manifestation of such child's disability only if the IEP Team-
(i) first considers, in terms of the behavior subject to disciplinary action, all relevant information, including-
(I) evaluation and diagnostic results, including such results or other relevant information supplied by the parents of the child;
(II) observations of the child; and
(III) the child's IEP and placement; and
(ii) then determines that-
(I) in relationship to the behavior subject to disciplinary action, the child's IEP and placement were appropriate and the special education services, supplementary aids and services, and behavior intervention strategies were provided consistent with the child's IEP and placement;
(II) the child's disability did not impair the ability of the child to understand the impact and consequences of the behavior subject to disciplinary action; and
(III) the child's disability did not impair the ability of the child to control the behavior subject to disciplinary action."
If a school district determines that a student's behavior was not a manifestation of the student's disability, then the school district may proceed with the disciplinary exclusion via the procedures for changing educational placement. IDEA '97 provides, however, that parents may dispute the district's manifestation determination by requesting a due process hearing, thereby invoking pendency. (3) Such hearings, as well as parent-requested hearings regarding disciplinary exclusions which are changes in educational placement, must be expedited.
34 CFR Section 300.523(f) states that if during the manifestation determination the LEA identifies deficiencies in the child's IEP or placement or in their implementation, the school district must take immediate steps to remedy any deficiencies in the child's IEP or placement, or their implementation. For children placed in a 45-day interim alternative educational setting, such remedies often should enable the child to return to the child's current educational placement before the expiration of the 45-day period.
When a due process hearing must be expedited, the Right to Education Office will assign the existing first-tier hearing officers to receive disputes requiring an expedited hearing. A hearing officer may order a change in the placement of a child with a disability to an appropriate interim alternative educational setting for not more than 45 days if the hearing officer, in an expedited due process hearing: (a) Determines that the school district has demonstrated by substantial evidence that maintaining the current placement of the child is substantially likely to result in injury to the child or to others; (b) Considers the appropriateness of the child's current placement; (c) Considers whether the school district has made reasonable efforts to minimize the risk of harm in the child's current placement, including the use of supplementary aids and services; and (d) Determines that the interim alternative educational setting that is proposed by school personnel who have consulted with the child's special education teacher, is selected so as to enable the child to continue to progress in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child's current IEP, that will enable the child to meet the goals set out in that IEP, and includes services and modifications that are designed to prevent the behavior from recurring. 34 CFR Section 300.521
IDEA '97 now requires that, before or not later than 10 days after implementing a disciplinary exclusion which would be a change in educational placement, the IEP team shall review and modify, as necessary, the existing behavioral intervention plan. School districts should note that extending this IEP team review beyond the date of implementation of the disciplinary exclusion is inconsistent with Chapters 14 and 342, which already require an IEP team meeting prior to any change in educational placement.
IDEA '97 now requires that, in situations where the school district did not conduct a functional behavioral assessment and implement a behavioral intervention plan before the occurrence of behavior which triggered a disciplinary exclusion which would be a change in educational placement, the school district must convene an IEP team meeting to develop an assessment plan to address that behavior. In Pennsylvania, IEP teams must fulfill these requirements regarding functional behavioral assessments and behavioral intervention plans as part of the IEP team meeting which is already required in Chapters 14 and 342 prior to any change in educational placement.
While the United States Department of Education regulations do not define "functional behavioral assessment" or "behavioral intervention plan," PDE believes that the behavior management program required at Section 14.36 and Section 342.36 may satisfy the behavioral intervention plan requirements of IDEA.
To summarize, after meeting all procedural requirements, if the IEP team recommends a disciplinary exclusion which would constitute a change in educational placement, school districts must follow the notice requirements for changes in educational placement. If the parents dispute the district's proposed change in educational placement and request a due process hearing, then the pendency requirements under 22 Pa. Code Section 14.61(b) apply. As discussed below, however, there are exceptions to pendency.
Exceptions to Pendency
IDEA '97 continues to require a school district to maintain a student's current educational placement if the student's parent requests a due process hearing to dispute a proposed change in educational placement. This is referred to as "pendency" under Section 615(j). However, there are exceptions to pendency. The following exceptions are applicable in Pennsylvania:
Exception 1. Immediate or severe discipline problems with students with mental retardation.
As in the past, if a discipline problem with an eligible student with mental retardation is so immediate or severe as to warrant immediate action, the school district may contact the Division of Compliance at 717-783-6135 to request permission to impose a disciplinary exclusion which would be a change in educational placement. However, PDE cannot approve requests for a change in placement which would continue beyond 10 consecutive days.
Exception 2. Eligible students who carry a weapon to school.
IDEA '97 [Section 615(k)(1)(A)(ii)(I)] continues to allow school districts to order a change in educational placement of an eligible student who brings a weapon (4) to school or to a school function to an interim alternative educational setting for not more than 45 days (provided the amount of time is the same as it would be for a noneligible student). The interim alternative educational setting must be determined by the IEP team and must meet the requirements of IDEA '97. Section Section 615(k)(3)(B) requires that such interim alternative educational settings must:
-- be selected so as to enable the eligible student to continue to participate in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the student's current IEP, that will enable the student to meet the goals set out in that IEP; and
-- include services and modifications designed to address the behavior so that it does not recur.
If an eligible student has been placed in an interim alternative educational setting, and the parents request a due process hearing to challenge the interim alternative educational setting or the manifestation determination, then the student shall remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the 45-day time period, whichever occurs first, unless the parents and the school district agree otherwise. If the school district proposes to change the child's placement after expiration of the interim alternative educational setting, the child shall remain in the current placement (that is, return to the placement prior to the interim alternative educational setting) if the parents invoke pendency by requesting a hearing. School districts may request an expedited hearing to maintain that it is dangerous for the child to return to that placement during the pendency of due process proceedings.
Exception 3. Eligible students who knowingly possess or use illegal drugs or sell or solicit the sale of a controlled substance while at school or a school function.
The same provisions as described in #2, above, apply to eligible students who knowingly possess or use illegal drugs or sell or solicit the sale of a controlled substance while at school or a school function. Section 615(k)(1)(A)(ii)(II) "Illegal drug" means a controlled substance i.e., a drug or other substance identified under schedules I, II, III, IV, or V in Sec. 202(c) of the Controlled Substances Act [21 USC 812(c)], but does not include a substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under the Controlled Substances Act or any other provision of Federal law.
Note: When parents request a due process hearing to dispute a 45-day interim alternative educational setting as described in #2 and #3, above, the hearing shall be expedited.
Exception 4. Determination by a hearing officer that maintaining the current placement is substantially likely to result in injury to the student or others.
Under Section 14.64(c), school districts are required to provide impartial hearing officers to resolve disputes over the identification, evaluation, educational placement, or provision of a free appropriate public education (FAPE) to an eligible student. This duty is satisfied by the Right to Education Office's assignment of impartial hearing officers on behalf of school districts.
IDEA '97 now allows hearing officers to order a change in educational placement to an interim alternative educational setting for not more than 45 days if the school district demonstrates by substantial evidence that maintaining the current placement of the student is substantially likely to result in injury to the student or to others. "Substantial evidence" under Section 615(k)(10)(C) means "beyond a preponderance of the evidence."
When applying this provision, hearing officers must consider the appropriateness of the student's current placement, and whether the school district has made reasonable efforts to minimize the risk of harm in the student's current placement, including the use of supplementary aids and services. Section 615(k)(2) The interim alternative educational setting must meet the requirements of Section 615(k)(3)(B).
Exception 5. Judicial intervention.
As in the past, under Honig v. Doe school districts may seek to obtain a court order to remove any student with a disability from school, or to change a student's current educational placement, if the school district believes that maintaining the student in the current educational placement is substantially likely to result in injury to the student or to others.
Expedited Hearings
As noted throughout this Basic Education Circular, IDEA '97 requires hearings to be expedited in the following circumstances:
1. Whenever a parent requests a hearing to dispute a district's determination that a child's behavior was not a manifestation of the child's disability;
2. Whenever a parent requests a hearing to dispute a disciplinary exclusion which constitutes a change in educational placement;
3. Whenever a parent requests a hearing to dispute a 45-day interim alternative educational setting ordered by school personnel; and,
4. Whenever a school district requests an expedited hearing to maintain that it is dangerous for a child to remain in the current placement (that is, return to the placement prior to removal to an interim alternative educational setting) during the pendency of due process proceedings.
Note to School Districts Regarding Pennsylvania Act 26 of 1995
Act 26 of 1995 amended the Public School Code (24 P.S. Section 13-1317.2) to require one-year expulsions of all students who bring weapons to school. However, Act 26 of 1995 provided that school districts "shall, in the case of an exceptional student, take all steps necessary to comply with the Individuals with Disabilities Education Act." In effect, then, application of provisions in Act 26 of 1995 to eligible students must conform to the requirements of IDEA '97 and Chapters 14 and 342 as described in this Basic Education Circular.
Protections for Students Who Are Not Yet Eligible for Special Education
IDEA '97 now provides that a student who has not been determined to be eligible for special education may assert any of the protections of IDEA '97 if the school district had "knowledge" that the student was an eligible student before the occurrence of the behavior that precipitated a disciplinary action. A school district has knowledge if: 1) the parent of the child has expressed concern in writing (unless the parent is illiterate or has a disability that prevents compliance with the requirements contained in this clause) to the school district that the student is in need of special education and related services; 2) the behavior or performance of the child demonstrates the need for such services; 3) the parent of the child has requested an evaluation of the child; or 4) the teacher of the child, or other personnel of the school district, has expressed concern about the behavior or performance of the child to the director of special education of the school district or to other personnel of the school district. Section 615(k)(8)(A)-(C)
Cessation of FAPE Not Permitted
IDEA '97 now makes it clear that FAPE must be made available to eligible students, including students "who have been suspended or expelled from school". Section 612(a)(1)(A) This means that school districts do not have to maintain the provision of FAPE to an eligible student during disciplinary exclusions of 10 or less school days in a given school year. 34 CFR Section 300.121(d)
Referral to and Action by Law Enforcement and Judicial Authorities
Nothing in IDEA '97 shall be construed to prohibit a school district from reporting a crime committed by an eligible student to appropriate authorities or to prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by an eligible student. A school district reporting a crime committed by an eligible student shall ensure that copies of the special education and disciplinary records of the student are transmitted for consideration by the appropriate authorities to whom it reports the crime. Section 615(k)(9)
Summary of Decision Points
Following is a summary of the decision points a school district should consider before implementing any disciplinary exclusion:
1. If the student is not eligible, and the district does not have "knowledge" under Section 615(k)(8)(A)-(C), then the district must apply Chapter 12 and the School Code.
2. If the student is eligible, then the district must decide if the proposed disciplinary exclusion is a change in educational placement.
3. If it is not a change in educational placement, then the rules in Chapter 12 and the School Code apply.
4. If it is a change in educational placement, then the school district must follow evaluation, IEP, and notice procedures in Chapters 14 and 342 and IDEA '97.
5. If parents request a due process hearing and thereby invoke pendency, then the district can assess whether any of the exceptions discussed in this BEC apply and take the proper steps.
Note: School districts should remember that, according to the United States Department of Education, cessation of FAPE to an eligible student during disciplinary exclusions which exceed 10 school days in a given school year is not consistent with IDEA '97.
Final Note of Caution
34 CFR Section 300.519 defines a change of placement for disciplinary removals as either a removal for more than 10 consecutive school days or a series of removals that cumulate to more than 10 school days in a school year and in any given case, based upon factors such as the length of each removal, the total amount of time that the child is removed, and the proximity of the removals to one another, lead to the conclusion that the child has been excluded from the current placement to such an extent that there has been a change in educational placement. In other words, federal regulations do not necessarily consider a disciplinary exclusion of more than 10 cumulative days to constitute a change in educational placement. Currently, however, in Pennsylvania the 15-day rule protects exceptional students from disciplinary exclusions totaling more than 15 days in any school year. 22 Pa. Code Section 14.35(c)
The Bureau of Special Education is available to answer your questions on this subject. Please direct your questions to the PDE plan liaison assigned to your intermediate unit.
REFERENCES:
Purdon's Statutes
24 P.S. Section 13-1317.2
State Board of Education Regulations
22 Pa. Code Section 14.1, Section 14.25, Section 14.32, Section 14.35,
Section 14.61
22 Pa. Code Chapter 12
Department of Education Standards
22 Pa. Code Section 342.25, Section 342.32
Federal Statutes
P.L. 105-17, Section 601 et seq.
20 USC Section 1400 et seq.
Federal Regulations
34 CFR Part 300
Other
Honig v. Doe, 108 S. Ct. 592 (1988)
CONTACT BUREAU/OFFICE:
Bureau of Special Education
Pennsylvania Department of Education
333 Market Street, 7th Floor
Harrisburg, PA 17126-0333
Phone: 717-783-6913
(1) The term "school districts" is used throughout this BEC for consistency. However, the requirements of IDEA '97 and Chapters 14 and 342 also extend to local educational agencies, intermediate units, and other public agencies where applicable. Charter schools established under Act 22 of 1997 must comply with IDEA '97.
(2) The term "eligible" has been substituted for "exceptional" throughout this document in order to clarify that IDEA '97 does not protect students who are identified as mentally gifted in Pennsylvania. (3) Pendency is sometimes referred to as the "stay-put provision," and refers to the provision that no change in the identification, evaluation, educational placement or IEP of an eligible student may be made during the pendency of an administrative or judicial proceeding unless agreed to by the parties to the proceeding [Section 14.61(b)].
(4)The definition of "weapon" under IDEA '97 has been expanded to mean a "dangerous weapon" as defined under paragraph (2) of the first subsection (g) of Sec. 930 of title 18, United States Code. That is, a "weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2-1/2 inches long" [Section 615(k)(10)(D)].
