Houston Independent School District

Students with disabilities are always considered general education students first in all respects of the code of conduct.

The Houston ISD Code of Conduct helps campus administrators determine appropriate consequences for infractions & violations. When such an incident occurs that warrants a consequence, per the code of conduct—the administrator will recommend the consequence befitting the level of offense. When a student with a disability (special education as well as 504) is subject to the consequence that would result in the 10th school day out of placement, the student’s ARD committee must initiate the Manifestation Determination Review (MDR) process. The MDR is an evaluation of a child's misconduct to determine whether that conduct is a manifestation of the child's disability. The MDR process does not assign a consequence, instead it determines if the recommended consequence can be carried out. The MDR is always conducted during a duly constituted admission, review, dismissal/individualized education program (ARD/IEP) committee meeting.

It is 10 school days cumulative for each school year, this time does not reset after the MDR is conducted.

The manifestation determination review (MDR) must be conducted within 10 school days of "any decision to change the placement of a child with a disability because of a violation of a code of student conduct." 34 C.F.R. §300.530 (e)

A change in placement occurs when:

1. The removal is for more than 10 consecutive school days; or

2. The child has been subjected to a series of removals that constitute a pattern:

i. Because the series of removals totals more than 10 school days in a school year;

ii. Because the child's behavior is substantially similar to the child's behavior in previous incidents that resulted in the series of removals; and

iii. Because of such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another. 34 C.F.R. §300.536

If there is a change of placement (as defined above), the ARD committee must conduct an MDR. After a student has been removed for ten days (consecutively or a series of removals), an MDR must be held every time the student is removed. At such a point, the ARD committee should conduct the MDR before another long-term removal is instituted. This would also include Disciplinary Alternative Education Program (DAEP) referrals for levels 3, 4 or 5 consequences.

The student’s parent, the licensed specialist in school psychology (LSSP), and relevant members of the student’s ARD committee (as determined by the parent and the campus) must convene to conduct the MDR, which must be held within 10 school days of any change in placement for a child with a disability because of a violation of a code of student conduct. This group must meet to conduct the manifestation determination and, at the same time, review all relevant information in the student’s file including the student’s individualized education program (IEP), which includes the behavior support and intervention plan (BSIP), along with previously conducted functional behavioral assessments (FBAs).

The committee will determine whether the student’s BSIP needs to be revised. If a disciplinary change of placement occurs for a student, and that student has an FBA that is less than one year old, by the 10th school day following the change of placement, the district and campus staff must review any previously conducted FBA as well as any BSIP developed for that student and, as necessary, the ARD committee must revise the BSIP.

If the ARD committee agrees to a disciplinary change of placement, the district must seek consent from the parent/guardian to conduct an FBA if an FBA has never been conducted on the student or the student's most recent functional behavioral assessment is more than one year old. The requirement is only to obtain consent for an FBA from the student’s parent or guardian no later than the 10th school day after the change of placement. The district is not required to complete the FBA by the 10th school day.

Note, however, that by the 10th school day after the change in placement, the ARD committee must also review any previously conducted FBA of the student and any BSIP for the student based on that assessment. In the case of a disciplinary change in placement where the student does not have a BSIP and has never had an FBA conducted, the ARD committee will describe the FBA process and, if the parent consents to an FBA, the ARD committee will document the parent’s consent and will discuss a timeline of completion of the FBA. Once the FBA is completed, the campus must notify the parent of the outcomes of the FBA. The ARD committee will determine if a BSIP needs to be developed based on the outcomes of the FBA and any other relevant factors. If the parent did not consent to an FBA, the ARD committee will consider a BSIP based on other relevant factors. Parental denial of consenting to FBA does not remove the district’s responsibility to address student needs.

Each campus should establish a system of communication whereby disciplinary removals are communicated to all stakeholders. For instance, if a campus disciplinary coordinator assigns a consequence of removal for a student with a disability the associated documentation should be shared with the student’s case manager and the special education department chairperson. In this way, an accurate count of the days of removal can be kept and a campus would continue to implement the student’s BSIP or return to ARD to modify the plan and monitor at what point a MDR may be required.

For level 5 serious offenses, school personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the student's disability, if the student:

1. Carries or possesses a weapon to or at school, on school premises, or to or at a school function under the jurisdiction of the Texas Education Agency (TEA) or a school district;

2. Knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school, on school premises, or at a school function under the jurisdiction of TEA or a school district; or

3. Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of TEA or the district.

a. Serious bodily injury is defined as: (1) a substantial risk of death; (2) extreme physical pain; (3) protracted and obvious disfigurement; or (4) protracted loss or impairment of the function of a bodily member, organ, or mental faculty. (34 C.F.R. § 300.530(i)(3); 18 U.S.C. § 1365(h)(3))

20 U.S.C. § 1415(k)(1)(G); 34 C.F.R.§ 300.530(g)

In these circumstances, the ARD committee would convene to consider the manifestation determination. For these level 5, expellable offenses, it is appropriate to invite the DAEP or JJAEP staff to this ARD committee meeting and discuss the change of placement to this alternative education placement.

Additionally, the parent or educational decision maker has the right to disagree with the manifestation determination; however, this does not trigger any obligation from the district to reconvene. The ARD committee should note the disagreement in the deliberations.

Under Texas rules, if mutual agreement is not achieved by the ARD committee, the parent is offered a single opportunity to recess for up to 10 school days, unless the parties agree to a longer time, and then reconvene to attempt to achieve mutual agreement. (19 Tex. Admin. Code § 89.1050(g)(1))

However, if the student has committed an expellable offense, an offense which might lead to a placement in a DAEP, or the student’s presence on the campus presents a danger of physical harm to the student or others, the 10-day recess is not required.

If the ARD committee does not reach mutual agreement on the MDR analysis, the ARD Committee meeting concludes, and the parent is not offered a 10-school day recess.

The district implements the decision of the school-based members of the ARD committee and provides prior written notice to the parents as required by IDEA under 34 C.F.R. § 300.503. (Tex. Admin. Code § 89.1050(h))

An in-school suspension that lasts more than 10 school days does not always trigger the IDEA due process requirements if the ISS placement meets three factors. The U.S. Education Department opined that a day of ISS placement is not considered the same as a day of removal addressed by 34 C.F.R. § 300.530, assuming that:

1. The student is afforded the opportunity to continue to appropriately progress in the general curriculum;

2. The district continues to provide the services specified in the student's IEP; and

3. The student continues to participate with nondisabled students to the same extent as he does in his current placement.

71 Fed. Reg. 46,715 (2006).

Students with disabilities may enroll in Houston ISD with outstanding days left on a DAEP or JJAEP consequence. In these instances, the HISD campus should communicate with the previous school district to see how many days are left on the alternative educational placement. If the student owes 10 or less days, the HISD campus can decide if the student should serve out the remainder of the consequence. Consideration should be given to harmful effects to the student of enrolling in a new school in HISD and then having to go to the alternative school for two weeks or less and then returning to the new HISD school.

According to the Student Code of Conduct, a student that commits misconduct classified into any of the five levels will be subject to disciplinary action by the classroom teacher, assistant principal/dean, and/or principal. All behavioral infractions and suspensions are to be documented in PowerSchool and when appropriate on other district forms e.g., ABC charts, anecdotal records, etc.

The reauthorized Individuals with Disabilities Education Act (IDEA), which was signed into law on December 3, 2004, contains several changes affecting the discipline of students with disabilities. The IDEA 2004 final regulations, published August 14, 2006, reflect discipline-related changes involving:

- the consideration of "unique circumstances" in disciplinary actions;

- disciplinary removal due to "serious bodily injury:"

- provision of services during periods of disciplinary removal;

- notification regarding a discipline-related change of placement; "manifestation determination;" and

- discipline-related "basis of knowledge" for children not determined eligible for special education.

Discipline-Related School Removals

Under IDEA, a free, appropriate public education (FAPE) must be made available to all children with disabilities aged of 3 through 21, including children who have been suspended or expelled from school, as provided in 34 CFR §300.530(d) (See 20 USC §1412(a)(1) and 34 CFR §300.101(a)).

Therefore, students with disabilities removed from their current placements through suspension or expulsion must continue to receive educational services to enable them to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting their Individualized Education Program (IEP) goals. See 34 CFR §300.530(d).

LEAs must report discipline data through the Public Education Information Management System (PEIMS). State educational agencies must report discipline related data gathered from LEAs to the U.S. Department of Education (ED); subsequent findings specific to Indicator 4A and 4B in the State Performance Plan (SPP)/Annual Performance Report (APR); and significant disproportionality analysis and policies to the Office of Special Education Programs (OSEP).

More information on Significant Disproportionality analysis and SPP 4A and 4B measurements is available by clicking the embedded links here.

Assessment in Disciplinary Settings

Students who have been removed from their current placements for disciplinary reasons, such as suspension, expulsion, or assignment to an interim alternative education setting (IAES) or other setting must participate in all general state and district-wide assessments.

IDEA and associated regulations require children with disabilities to be included in statewide assessments. Comments to the Individuals with Disabilities Education Improvement Act of 2004 (IDEA 04) Section 612 (a)(16)(A) state that the requirement to participate in statewide assessments "applies to children with disabilities who have been placed in an IAES or another setting, or who are suspended."

Students with disabilities who have been suspended or removed from their current placements to some type of alternative placement and students with disabilities assigned to Juvenile Justice Alternative Education Programs (JJAEPs) must take the state or district-wide assessment (unless the IEP provides that the student not take a district-wide assessment for reasons other than the disciplinary removal).

Based on the IDEA 04 statute, regulations, and federal comments to the regulations, districts must have policies and procedures in place regarding participation in state and district-wide assessments of students with disabilities placed in an IAES, including suspension to a home environment and JJAEPs.

Restraint and Time-Out

State regulations are intended to ensure that all students are treated with dignity and respect, as well as educated in a safe environment. Behavior management techniques or discipline management practices must be implemented in such a way as to protect the health and safety of the students and others. When the use of physical restraint or time-out is necessary, the state has outlined specific requirements and procedures (see TEC 37.0021 and TAC 89.1053 for further guidance).

Students Not Determined Eligible for Special Education

Students not determined eligible for special education may receive protections for disciplinary purposes under IDEA when a parent has submitted in writing to school personnel their concerns regarding the child's need for special education and related services (34 CFR §300.534). A school is considered to have knowledge that a child has a disability if before the behavior that caused the disciplinary action occurred:

- the parent of the child expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency or a teacher of the child that the child is in need of special education and related services;

- the parent of the child requested an evaluation of the child; or

- the teacher of the child or other personnel of the LEA expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education of the agency or to other supervisory personnel of the agency

A school is not considered to have knowledge under IDEA if the parent has refused to allow an evaluation of the child, if the parent has refused services under IDEA to allow an evaluation of the child, or if the child has been evaluated and determined to not be a child with a disability under IDEA.

State Resources

The following are state resources about discipline and school removals:

Written Summary of Restraint Use Sample Form - Districts may use this form to inform parents about the use of restraint and to assist in the collection of restraint data to be reported through PEIMS.

Texas Behavior Support Initiative (TBSI) – TBSI is designed to build capacity in Texas schools for the provision of positive behavioral support (PBS) to all students. The goal of PBS is to enhance the capacity of schools to educate all students, especially students with challenging behaviors, by adopting a sustained, positive, preventative instructional approach to school-wide discipline and behavior management.

Center for Restorative Justice at the University of Texas - The Institute for Restorative Justice and Restorative Dialogue (IRJRD) seeks to build a national mindset that embraces restorative justice principles. Its mission is to advance meaningful accountability, victim healing, and community safety through the use of restorative justice solutions to repair the harm related to conflict, crime, and victimization.

National Resources

The following are national resources about discipline and school removals:

U.S. Department of Education Major Topic Area - Discipline has topic briefs, video clips, training materials, presentations, a dialogue guide and a questions and answers document.

The mission of the Center for Effective Collaboration and Practice is to support and promote a reoriented national preparedness to foster the development and adjustment of children with or at risk of developing serious emotional disturbance.

US DOE Special Education Discipline Q & A

https://sites.ed.gov/idea/files/qa-addressing-the-needs-of-children-with-disabilities-and-idea-discipline-provisions.pdf

OSEP Guidelines: Q and A

Authority: The requirements for discipline are found in the regulations at 34 CFR §§300.530 – 300.536.

A. Safeguards Question A-1: When the parent(s) of a child and the school personnel are in agreement about the child’s change of placement after the child has violated a code of student conduct, is it considered to be a removal under the discipline provisions?

Answer: No, if the parent(s) of a child and the school district agree to a specific change in the current educational placement of the child.

Question A-2: When a parent consents to the initial provision of some, but not all, of the proposed special education and related services, do the discipline provisions apply if the child violates the school’s code of student conduct?

Answer: Yes. When a parent consents to the initial provision of some, but not all, of the proposed special education and related services listed in a child’s initial individualized education program (IEP), the child has been determined eligible for services and is entitled to all the protections of the IDEA.

Question A-3: Do the discipline provisions apply if the child violates the school’s code of student conduct after a parent revokes consent for special education and related services under §300.300(b)?

Answer: No. Under §§ 300.9 and 300.300, parents are permitted to unilaterally withdraw their children from further receipt of special education and related services by revoking their consent for the continued provision of special education and related services to their children. When a parent revokes consent for special education and related services under §300.300(b), the parent has refused services as described in §300.534(c)(1)(ii); therefore, the public agency is not deemed to have knowledge that the child is a child with a disability and the child will be subject to the same disciplinary procedures and timelines applicable to general education students and not entitled to IDEA’s discipline protections. It is expected that parents will take into account the possible consequences under the discipline procedures before revoking consent for the provision of special education and related services. 73 Federal Register 73012-73013.

Question A-4: In order to receive the protections for disciplinary purposes in 34 CFR §300.534, parents who are concerned that their child may need special education and related services must first express their concerns in writing. How are parents informed of this requirement?

Answer: Neither the IDEA nor the regulations specifically address this issue. However, in its child find policies and procedures, a State may choose to include ways to provide information to the public regarding IDEA’s protections for disciplinary purposes when a parent has expressed in writing to school personnel concerns regarding the child’s need for special education and related services. Examples of ways to provide such information include making the information available on the State’s Web site, the LEA’s Web site, or in the State’s Procedural Safeguards Notice or the school’s student handbook.

Question A-5: Under 34 CFR §300.534(b), a public agency is deemed to have knowledge that a child is a child with a disability if a parent expressed in writing a concern that his or her child needs special education and related services. What happens if a parent is unable to express this concern in writing?

Answer: The requirement that a parent express his or her concern in writing is taken directly from the IDEA. However, there is nothing in the IDEA or the regulations that would prevent a parent from requesting assistance to communicate his or her concerns in writing. The Department funds Parent Training and Information Centers (PTIs) and Community Parent Resource Centers (CPRCs) to assist parents of students with disabilities. Information about the PTIs and CPRCs is found at http://www.taalliance.org/.

Question A-6: If a removal is for 10 consecutive school days or less and occurs after a student has been removed for 10 school days in that same school year, and the public agency determines, under 34 CFR §300.530(d)(4), that the removal does not constitute a change of placement, must the agency provide written notice to the parent?

Answer: No. Under Part B, a public agency’s determination that a short-term removal does not constitute a change of placement is not a proposal or refusal to initiate a change of placement for purposes of determining services under 34 CFR §300.530(d)(4). Therefore, the agency is not required to provide written notice to the parent.

Question A-7: If a teacher or other school personnel has specific concerns that a child may need special education and related services due to a child’s pattern of behavior, must such concerns be submitted in writing to school officials in order for the public agency to be deemed to have knowledge that the child is a child with a disability?

Answer: No. Under 34 CFR §300.534(b)(3), teachers or other local educational agency (LEA) personnel are not required to submit a written statement expressing specific concerns about a pattern of behavior demonstrated by the child in order for the public agency to be deemed to have knowledge that the child is a child with a disability. Although a written statement is not necessary, the teacher of the child or other LEA personnel must express their specific concerns directly to the special education director or other supervisory personnel within the agency. In addition, State child find policies and procedures may provide guidelines regarding how teachers and other LEA personnel should communicate their specific concerns regarding a child’s pattern of behavior. If the State’s or LEA’s child find or referral procedures do not specify how such communication should occur, the State or LEA is encouraged to change its guidelines to provide a method for communicating direct expressions of specific concerns regarding a child’s pattern of behavior. 71 Federal Register 46727.

Question B-1: What options are available for school personnel when a student with a disability commits a serious crime, such as rape, at school or at a school function?

Answer: Under most State and local laws, school personnel must report certain crimes that occur on school grounds to the appropriate authorities. The IDEA regulations, under 34 CFR §300.535(a), do not prohibit the school or public agency from reporting crimes committed by students with disabilities. In addition, where such crimes constitute a violation of the school’s code of student conduct, school authorities may use the relevant discipline provisions related to short-term and long-term removals, including seeking a hearing to remove the student to an interim alternative educational placement if maintaining the current placement is substantially likely to result in injury to the child or others. To the extent that such criminal acts also result in an injury that meets the definition of “serious bodily injury,” the removal provisions of 34 CFR §300.530(g) would apply. The definition referenced in 34 CFR §300.530(i)(3) currently reads: As defined at 18 U.S.C. 1365(h)(3), the term serious bodily injury means bodily injury that involves— 1. A substantial risk of death; 2. Extreme physical pain; 3. Protracted and obvious disfigurement; or 4. Protracted loss or impairment of the function of a bodily member, organ, or mental faculty. Certain Federal cases have held that rape met this definition of serious bodily injury because the victim suffered protracted impairment of mental faculties. The current definition of the term “serious bodily injury” in 18 U.S.C. 1365(h)(3) can be found on the U.S. House of Representatives Web site at http://uscode.house.gov/download/pls/18C65.txt.

Question B-2: What is the definition of “unique circumstances” as used in 34 CFR §300.530(a), which states that “school personnel may consider any unique circumstances on a case-by-case basis when determining whether a change in placement, consistent with the other requirements of this section, is appropriate for a child with a disability who violates a code of student conduct?”

Answer: The Department believes that “unique circumstances” are best determined at the local level by school personnel who know the individual child and are familiar with the facts and circumstances regarding a child’s behavior. “Factors such as a child’s disciplinary history, ability to understand consequences, expression of remorse, and supports provided … prior to the violation of a school code [of student conduct] could be unique circumstances considered by school personnel when determining whether a disciplinary change in placement is appropriate for a child with a disability.” 71 Federal Register 46714.

Question B-3: May a public agency apply its own definition of “serious bodily injury?”

Answer: No. As specifically set out in the IDEA, the term “serious bodily injury” is defined at 18 U.S.C. 1365(h)(3) and cannot be altered by States or local school boards. The definition and a link to the current U.S. Code is included in the answer to question B-1, and also in the Analysis of Comments and Changes that accompanied the regulations published on August 14, 2006, and became effective on October 13, 2006. 71 Federal Register 46723.

Question C-1: What constitutes an appropriate IAES?

Answer: What constitutes an appropriate IAES will depend on the circumstances of each individual case. An IAES must be selected so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP. 71 Federal Register 46722.

Question C-2: May a public agency offer “home instruction” as the sole IAES option?

Answer: No. For removals under 34 CFR §300.530(c), (d)(5), and (g), the child’s IEP Team determines the appropriate IAES (34 CFR §300.531). Section 615(k)(1)(D) of the IDEA and 34 CFR §300.530(d) are clear that an appropriate IAES must be selected “so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.” Therefore, it would be inappropriate for a public agency to limit an IEP Team to only one option when determining the appropriate IAES. As noted in the Analysis of Comments and Changes accompanying the regulations published on August 14, 2006, which became effective on October 13, 2006, at 71 Federal Register 46722: Whether a child’s home would be an appropriate interim alternative educational setting under §300.530 would depend on the particular circumstances of an individual case such as the length of the removal, the extent to which the child previously has been removed from his or her regular placement, and the child’s individual needs and educational goals. In general, though, because removals under §§300.530(g) and 300.532 will be for periods of time up to 45 days, care must be taken to ensure that if home instruction is provided for a child removed under §300.530, the services that are provided will satisfy the requirements for services for a removal under §300.530(d) and section 615(k)(1)(D) of the Act. Where the removal is for a longer period, such as a 45-day removal under 34 CFR §300.530(g), special care should be taken to ensure that the services required under 34 CFR §300.530(d) can be properly provided if the IEP Team determines that a child’s home is the appropriate IAES.

Question C-3: Do all services in the child’s IEP need to be provided in the IAES for a removal under 34 CFR §300.530(c) or (g)?

Answer: It depends on the needs of the child. The LEA is not required to provide all services in the child’s IEP when a child has been removed to an IAES. In general, the child’s IEP Team will make an individualized decision for each child with a disability regarding the type and intensity of services to be provided in the IAES. 34 CFR §300.530(d)(1) clarifies that a child with a disability who is removed from his or her current placement for disciplinary reasons under 34 CFR §300.530(c) or (g) must continue to receive educational services as provided in 34 CFR §300.101(a), so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting his or her IEP goals. For removals that constitute a change of placement, the child’s IEP Team determines the appropriate services under 34 CFR §300.530(d)(1). See 34 CFR §300.530(d)(5). If a student whose placement has been changed under 34 CFR §300.530(c) or (g) is not progressing toward meeting the IEP goals, then it would be appropriate for the IEP Team to review and revise the determination of services and/or the IAES.

Question D-1: Must a hearing officer make a sufficiency determination under 34 CFR §300.508(d) for an expedited due process complaint? In other words, does the hearing officer need to determine if the complaint meets the content standards listed in section 615(b)(7)(A) of the IDEA and 34 CFR §300.508(b)?

Answer: No. The sufficiency provision does not apply to expedited due process complaints. See 34 CFR §300.532(a). As noted in the Analysis of Comments and Changes accompanying the regulations published on August 14, 2006, which became effective on October 13, 2006 at 71 Federal Register 46725: In light of the shortened timelines for conducting an expedited due process hearing under §300.532(c), it is not practical to apply to the expedited due process hearing the sufficiency provision in §300.508(d), which requires that the due process complaint must be deemed sufficient unless the party receiving the due process complaint notifies the hearing officer and the other party in writing, within 15 days of receipt of the due process complaint, that the receiving party believes the due process complaint does not include all the necessary content of a complaint as required in §300.508(b).

Question E-1: Was the requirement for a “positive behavioral intervention plan” removed from the discipline regulations?

Answer: No. Under 34 CFR §300.324(a)(2)(i), the use of positive behavioral interventions and supports must be considered in the case of a child whose behavior impedes his or her learning or that of others. The requirement in 34 CFR §300.530(f) that a child with a disability receive, as appropriate, an FBA and a BIP and modifications designed to address the child’s behavior now only applies to students whose behavior is a manifestation of their disability as determined by the LEA, the parent, and the relevant members of the child’s IEP Team under 34 CFR §300.530(e). However, FBAs and BIPs must also be used proactively, if the IEP Team determines that they would be appropriate for the child. The regulations in 34 CFR §300.530(d) require that school districts provide FBAs and behavior intervention services (and modifications) “as appropriate” to students when the student’s disciplinary change in placement would exceed 10 consecutive school days and the student’s behavior was not a manifestation of his or her disability. See 34 CFR §300.530(c) and (d). Please see question E-2 in this section for more information about the use and development of FBAs and BIPs.

Question E-2: Under what circumstances must an IEP Team use FBAs and BIPs?

Answer: As noted above, pursuant to 34 CFR §300.530(f), FBAs and BIPs are required when the LEA, the parent, and the relevant members of the child’s IEP Team determine that a student’s conduct was a manifestation of his or her disability under 34 CFR §300.530(e). If a child’s misconduct has been found to have a direct and substantial relationship to his or her disability, the IEP Team will need to conduct an FBA of the child, unless one has already been conducted. Similarly, the IEP Team must write a BIP for this child, unless one already exists. If a BIP already exists, then the IEP Team will need to review the plan and modify it, as necessary, to address the behavior. An FBA focuses on identifying the function or purpose behind a child’s behavior. Typically, the process involves looking closely at a wide range of child-specific factors (e.g., social, affective, environmental). Knowing why a child misbehaves is directly helpful to the IEP Team in developing a BIP that will reduce or eliminate the misbehavior. For a child with a disability whose behavior impedes his or her learning or that of others, and for whom the IEP Team has decided that a BIP is appropriate, or for a child with a disability whose violation of the code of student conduct is a manifestation of the child’s disability, the IEP Team must include a BIP in the child’s IEP to address the behavioral needs of the child.

Question E-3: How can an IEP address behavior?

Answer: When a child’s behavior impedes the child’s learning or that of others, the IEP Team must consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior (34 CFR §300.324(a)(2)(i)). Additionally, the Team may address the behavior through annual goals in the IEP (34 CFR §300.320(a)(2)(i)). The child’s IEP may include modifications in his or her program, support for his or her teachers, and any related services necessary to achieve those behavioral goals (34 CFR §300.320(a)(4)). If the child needs a BIP to improve learning and socialization, the BIP can be included in the IEP and aligned with the goals in the IEP.

Question E-4: Is consent required to do an FBA for a child?

Answer: Yes. An FBA is generally understood to be an individualized evaluation of a child in accordance with 34 CFR §§300.301 through 300.311 to assist in determining whether the child is, or continues to be, a child with a disability. The FBA process is frequently used to determine the nature and extent of the special education and related services that the child needs, including the need for a BIP. As with other individualized evaluation procedures, and consistent with 34 CFR §300.300(a) and (c), parental consent is required for an FBA to be conducted as part of the initial evaluation or a reevaluation.

Question E-5: If a parent disagrees with the results of an FBA, may the parent obtain an independent educational evaluation (IEE) at public expense?

Answer: Yes. The parent of a child with a disability has the right to request an IEE of the child, under 34 CFR §300.502, if the parent disagrees with an evaluation obtained by the public agency. However, the parent’s right to an IEE at public expense is subject to certain conditions, including the LEA’s option to request a due process hearing to show that its evaluation is appropriate. See 34 CFR §300.502(b)(2) through (b)(5). The Department has clarified previously that an FBA that was not identified as an initial evaluation, was not included as part of the required triennial reevaluation, or was not done in response to a disciplinary removal, would nonetheless be considered a reevaluation or part of a reevaluation under Part B because it was an individualized evaluation conducted in order to develop an appropriate IEP for the child. Therefore, a parent who disagrees with an FBA that is conducted in order to develop an appropriate IEP also is entitled to request an IEE. Subject to the conditions in 34 CFR §300.502(b)(2) through (b)(5), the IEE of the child will be at public expense.

Citation: OSEP Q & A https://www2.ed.gov/policy/speced/guid/idea/discipline-q-a.pdf

Discipline of Special Education Students Under IDEA 2004

Discipline of Special Education Students Under IDEA 2004

Overview of Discipline Procedures for Students Receiving Special Education Services

Overview of Discipline Procedures for Students Receiving Special Education Services

Discipline Removal Procedural Flowchart

Discipline Removal Procedural Flowchart

DAEP Removal Procedures Flowchart

DAEP Removal Procedures Flowchart

Discipline and the Section 504 Violation of the Student Code of Conduct Flowchart

Discipline and the Section 504 Violation of the Student Code of Conduct Flowchart

https://disabilityrightstx.org/en/drtx-interactive-discipline-guide/

National

Collaborative for Academic, Social, and Emotional Learning (CASEL)

Committee for Children

Iris Center

National Center on Intensive Intervention

Positive Behavioral Interventions and Supports

Texas

Texas Behavior Support Initiative (TBSI)

Texas Gateway for Online Resources