Section 5-B2510. PROPOSED DISCIPLINE OF A STUDENT WITH DISABILITY

 

2510.1Nothing herein shall exempt a student with a disability from disciplinary action.

 

2510.2In initiating disciplinary procedures applicable to all children, DCPS must ensure that the special education and disciplinary records of the child with a disability are transmitted for consideration by the person or person s making the final determination regarding the disciplinary action. Such documentation may include, but not be limited to (with any required permission from parent/guardian): the student’s current IEP, discipline file, cumulative file, anecdotal records from teachers or other school personnel,  reports or recommendations from health or mental health clinicians.

 

2510.3The removal of a student with a disability from his or her current placement for more than ten (10) school days for disciplinary reasons shall require that a determination be made as to whether the subject behavior is related to the student’s disability.

 

2510.4If the result of the review is a determination that the behavior of the child with a disability was not a manifestation of the child’s disability, the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner in which they would be applied to children without disabilities

 

2510.5DCPS may order an immediate removal of a student with a disability from his or her current placement:

 

(a)To an appropriate interim Alternative Educational Setting, another setting, or Suspension, for not more than ten (10) consecutive school days (to the extent such alternatives would be applied to children without disabilities); and

 

(b)To an appropriate interim alternative educational setting for the same amount of time that a child without a disability would be subject to discipline, up to but not exceeding forty-five (45) days if:

 

(1)The student carries a weapon to school or to a school function;

 

(2)The student knowingly possesses or uses illegal drugs or solicits the sale of a controlled substance while at school or at a school function; or

 

(3)Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction DCPS.

 

2510.6DCPS must make a free appropriate public education available to all eligible children with disabilities, including children with disabilities who have been suspended or expelled from school. When a student with a disability is removed from his or her current placement for more than ten (10) school days for disciplinary reasons, DCPS must continue to provide the specialized instruction and related services that are specified on the student’s IEP.

 

2510.7Any interim alternative educational setting in which a child is placed must:

 

(a)Be selected so as to enable the child 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 child’s current IEP, that will enable the child to meet the goals set out in that IEP; and

 

(b)Include services and modifications designed to address the behavior described in § 2511.2 or § 2511.3 so that it does not recur.

 

2510.8If a disciplinary action is contemplated as described in § 2511.B2 or § 2511.3 for a behavior of a child with a disability described in either of those subsections, or if a proposed disciplinary action involves removal of a student with a disability from his or her current placement for more than ten (10) consecutive school days:

 

(a)Not later than the date on which the decision to take that action is made, the parents must be notified of that decision and of all procedural safeguards accorded  by law; and

 

(b)Immediately, if possible, but in no case later than ten (10) school days after the date on which the decision to take that action is made, a review must be conducted of the relationship between the child’s disability and the behavior subject to the disciplinary action.

 

2510.9Within ten (10) school days of any disciplinary decision to remove a student with a disability from his or her current placement, DCPS, the parent, and relevant members of the child’s IEP Team (as determined by the parent and the DCPS) must review all relevant information in the student’s file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents to determine:

 

(a)If the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or

 

(b)If the conduct in question was the direct result of DCPS’s failure to implement the IEP.

 

2510.10The conduct must be determined to be a manifestation of the child’s disability if DCPS, the parent, and relevant members of the child’s IEP Team determine that a condition in either 34 CFR 300.530(e)(1)(i) or (1)(ii) was met.

2510.11If the DCPS, the parent, and relevant members of the child’s IEP Team determine the condition described in 34 CFR 300.530(e)(1)(ii) was met, the DCPS must take immediate steps to remedy those deficiencies.

 

2510.12In carrying out a 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:

 

(a)First considers, in terms of the behavior subject to disciplinary action, all relevant information, including:

 

(1)Evaluation and diagnostic and results, or other relevant information supplied by the parents of the child;

 

(2)Observations of the child;

 

(3) The child’s IEP and placement; and

 

(4)Any other material deemed relevant by the IEP Team, including, but not limited to, school progress reports, anecdotal notes and facts related to disciplinary action taken by administrative personnel; and

 

(b)Then determines that:

 

(1)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;

 

(B2)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

 

(3)The child’s disability did not impair the ability of the child to control the behavior subject to disciplinary action.

 

2510.13Either before or not later than ten (10) consecutive school days after taking a disciplinary action described in § 2510.2:

 

(a)If DCPS did not conduct a functional behavioral assessment and implement a behavioral intervention plan for such child before the behavior that resulted in the Suspension described above, DCPS must convene an IEP meeting to develop an assessment plan to address that behavior; or

 

2510.14If the child’s parent disagrees with a determination that the child’s behavior was not a manifestation of the child’s disability or with any decision regarding placement, the parent may request a hearing.

 

2510.15DCPS must arrange for an expedited hearing, which must occur within twenty (20) school days of the date the complaint requesting the hearing is filed, in any case described in this section when requested by a parent.

 

2510.16In reviewing a decision with respect to the manifestation determination, the hearing officer must determine whether DCPS has demonstrated that the child’s behavior was not a manifestation of such child’s disability.

 

2510.17A disciplinary hearing officer may recommend the removal of a student with a disability from his or her current placement for not more than forty-five (45) days if the hearing officer:

 

(a)Determines that DCPS has demonstrated by substantial evidence that maintaining the current placement of such 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 DCPS 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 meets the requirements described in § B2510.14 above.

 

2510.18In recommending the removal of a student with a disability from his or her current placement removal of a student with a disability from his or her current placement to an alternative education setting for disciplinary reasons, the hearing officer must apply the standards set out in § 2510.17 above.

 

2510.19When a parent requests a hearing regarding a disciplinary action to challenge the interim alternative educational setting or the manifestation determination, the child must remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period provided for in § 2510.5 (i.e., 45 days), whichever occurs first, unless the parent and DCPS agree otherwise.

 

2510.20If a child is in an interim alternative educational setting for disciplinary reasons and school personnel propose to change the child’s educational placement after expiration of the interim Alternative Setting for disciplinary reasons, during the pendency of any proceeding to challenge the proposed change in placement, the child must remain in the current placement (the child’s placement prior to the interim alternative educational setting), except as provided in § 2510.21, below.

 

2510.21If school personnel maintain that it is dangerous for the child to be in the current placement (placement prior to removal to the interim alternative education setting) during the pendency of the due process proceedings, DCPS may request an expedited hearing.

 

2510.22A child who has not been determined to be eligible for special education and related services under this part and who has engaged in behavior that violated any rule or code of conduct of DCPS, including any behavior described in this chapter, may assert any of the applicable protections provided for in the Individuals with Disabilities Education Improvement Act, as amended, if DCPS had knowledge (as determined in accordance with § 2510.23 below), that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.

 

2510.23DCPS is deemed to have knowledge that a child is a child with a disability if:

 

(a)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 supervisory or administrative personnel of [DCPS], or a teacher of the child, that the child is in need of special education and related services;

 

(b)The parent of the child has requested an evaluation of the child; or

 

(c)The teacher of the child or other personnel of DCPS has expressed specific concerns about a pattern of behavior or performance of the child to the Director of Special Education or to other DCPS personnel.

 

2510.24DCPS is deemed not to have knowledge that a child is a child with a disability if: the parent of the child has not allowed an evaluation of the child pursuant to 34 CFR 300.300 through 300.311 or has refused services under Part B of the IDEA; or the child has been evaluated in accordance with 34 CFR 300.300 through 300.311 and determined to not be a child with a disability under Part B of the IDEA.

 

2510.25If DCPS does not have knowledge that a child is a child with a disability in accordance with § 2510.23 prior to taking disciplinary measures against the child, the child may be subjected to the same disciplinary measures applied to children without disabilities who engaged in comparable behaviors.

 

2510.26If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures under this chapter, the evaluation must be conducted in an expedited manner. If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by DCPS and information provided by parents, DCPS must provide special education and related services in accordance with the relevant provisions of the Individuals with Disabilities Education Improvement Act, as amended, except that, pending the results of the evaluation, the child must remain in the educational placement determined by school authorities.

 

2510.27Nothing in the Individuals with Disabilities Education Improvement Act, as amended, shall be construed to prevent D.C. law enforcement and judicial authorities from exercising their responsibilities with regard to the application of federal and state law to crimes committed by a child with a disability.

 

2510.28Nothing in the Individuals with Disabilities Education Improvement Act, as amended, shall be construed to prohibit DCPS from reporting a crime committed by a child with a disability to appropriate authorities. In reporting a crime committed by a child with a disability to appropriate authorities, DCPS must ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to which it reports the crime.