8 VAC 20-81-160. Discipline procedures.

Recommendation: A. General.

Clarify that case-by-case basis consideration to remove a child must be exercised consistently with the requirements in 8 VAC 20-80-160 and 34 CFR §300.530, and may not be used to circumvent these protections.

Justification: Every week a child stays removed from regular placement can be harmful, particularly for children whose disabilities affect or impede their learning.  IDEA was designed to ensure that children with and without disabilities are educated together.  Children who are removed lose their access to this important right.  It is for this reason that Congress protected the rights of children who are being disciplined, including the manifestation determination and other disability-related requirements.  Thus, consideration of unique circumstances must not be used to circumvent the important protections in 34 CFR § 300.530 and 8 VAC 20-80-160.  The ability to consider unique circumstances was meant to protect children from zero tolerance rules.

Recommendation: B.2.b.  Short-term removals

Amend the proposed regulation B.2.b. as underlined, to require that for additional short-term removals that are not a pattern, that the LEA provide services to the extent determined necessary to provide a free appropriate public education as required by IDEA 2004 § 612(a)(1) to enable the student to continue to participate  appropriately progress in the general education curriculum and to progress toward meeting the goals of the student’s IEP.

Justification: The federal regulations, 34 CFR § 300.530(d)(1) require a child who is removed to continue to receive educational services as provided in 34 CFR § 300.101(a) and to continue to participate in the general education curriculum and progress toward meeting IEP goals.  300.101(a) requires states to provide FAPE to all children, including those who are removed or suspended.  It would be illegal to deprive them of  FAPE and thus, the Virginia regulation must make clear that LEAs must provide FAPE.  Indeed, IDEA 2004 requires this: § 1415(k)(1)(D) states that children who are removed for more than 10 days from their current placement must “continue to receive educational services, as provided in section 1412(a)(1).”  IDEA 2004 does not contemplate the provision of FAPE-light or less-than-FAPE to children who are removed, even for additional short-term periods.  Indeed, to the extent that the language“ to progress toward meeting the goals of the student’s IEP” implies this, it is important to include the requirement that children receive FAPE.

Recommendation: Amend the proposed regulation B.2.b. to require that a child who has been removed for 10 days and experiences a subsequent removal of less than 10 school days that is not a change in placement begin receiving educational services on the 11th cumulative day of removal.

Justification: This is required by the new federal regulations, 34 CFR § 300.530(d)(4).  See 71 Fed. Reg. 46717.  It would be fundamentally unfair to deprive a child who has been removed from the classroom of educational services that he/she needs to receive a free and appropriate public education.  Discipline studies have shown that removals do not improve educational outcomes, and that the best course of action is to provide educational services.  The heart of the IDEA is ensuring that all children receive FAPE, and that LEAs do not use removal procedures to attempt to defeat this.

Recommendation: C.  Long-term Removals

Amend the proposed regulation C.2.b. to define “substantially similar” to include behaviors those that were caused by the child’s disability or had a direct and substantial relationship to it.

Justification: Inappropriate removal from the regular educational environment can cause great harm to children, both by causing them to fall further and further behind and by removing them from the least-restrictive environment.  This is particularly true when a school district removes children for a series of short-term removals, as these removals can add up to a long period of removal.  Hence, the regulations seek to protect children by prohibiting LEAs from using a pattern of short-term removals to improperly change a child’s placement.  But the new federal and state regulations state that a pattern occurs only if the child’s behavior is “substantially similar” to other behaviors that caused one of the removals.  A child may engage in behaviors that could appear different on the surface but are substantially similar because they are all caused by or related to the disability.  For example, a child with impaired understanding or impulse control issues could both take a toy home and repeat curse words because other children told him to.  On the surface, these might appear different, but they are substantially similar as they were caused by the child’s disability.  

Moreover, without this change, LEAs could remove children for repeated nine school day periods and circumvent IDEA’s manifestation determination requirement.  When children are removed for ten consecutive school days, they are entitled to a manifestation determination review. Their placement cannot be changed if the behavior was a manifestation, even if the behaviors seem to differ on the surface. The same standard should apply here: children should not be subject to repeated short-term removals for what are manifestations of their disabilities.

Recommendation: Amend the proposed regulation C.3. to provide that if an LEA determines that a series of short-term removals is not a pattern, the LEA shall notify the parent(s) of the decision and provide the parent(s) with the procedural safeguards.

Justification: A series of removals of less than ten school days can quickly add up and result in a child being removed for a cumulatively long period of time.  Successive removals of several days only disrupt the child’s educational environment and cause the student to fall further behind, particularly if the child’s disability impedes the ability to learn.  For that reason, particular care should be taken to ensure that parents know their procedural safeguards and can challenge this decision.  Providing a copy of the notice is relatively low cost, simple, and does not impose a burden of any significance on LEAs.

Recommendation: Require a functional behavioral assessment (FBA) be performed for children who are given a subsequent short-term removal after being removed for 10 cumulative school days in the year.

Justification: Repeated short-term removals have the potential to harm children with disabilities who are likely to fall further and further behind, and these children lose the right to be educated with their non-disabled peers.  It is far better to address and resolve problem behaviors.  FBAs, by addressing the actual cause of the behavior, ensure that interventions are appropriate and effective, abating the behavior.

Recommendation: Retain the current Virginia regulation 20-80-68 C.2.(e), requiring that if a child with a behavioral intervention plan (BIP) is removed for ten school days and then subjected to a further short-term removal that is not a change in placement, then the BIP will be reviewed and modified if one or more IEP team members believe it necessary.

Justification: Because removing a child from his/her placement has the potential to harm the child, and prevent the child from being educated in the LRE, it is important to address all problem behaviors.  Thus, if an IEP team member believes modification of the BIP is necessary, the team should do so.  IEP team members are often most knowledgeable about a child and his/her behavior.  Children who are removed for repeated series of periods less than 10 school days can be left without educational services for long cumulative periods of time.  It is important to take all steps to prevent this, including having an appropriate BIP in place.

Recommendation: Amend the proposed regulation C.5. “Special Circumstances” as underlined and crossed out, to provide that “school personnel may remove a child with a disability to an appropriate interim alternative educational setting for the same no more than the amount of time that a child without a disability would be subject to discipline. . .”

Justification: School personnel, in exercising their discretion under 8 VAC 20-81-160(A), should be allowed to remove a child for less time than a child without a disability because of unique circumstances.  The team should be free to consider extenuating circumstances and reduce the removal period if appropriate.  The Coalition applauds the VDOE for proposing to ensure that children with disabilities are not subject to longer periods of removal than children without disabilities.  This is in accord with the Americans with Disabilities Act and other nondiscrimination statutes.

Recommendation: Amend the proposed regulation C.6.a.(1) as underlined to provide that a child receiving a long-term removal receives services to enable the student to continue to receive educational services so as to receive a free appropriate public education as required by IDEA 2004 § 612(a)(1) and to enable the student to continue to participate in the general educational curriculum, although in another setting…

Justification: The federal regulations, 34 CFR § 300.530(d)(1) require a child who is removed to continue to receive educational services as provided in 34 CFR § 300.101(a) and to continue to participate in the general education curriculum and progress toward meeting IEP goals.  300.101(a) requires states to provide FAPE to all children, including those who are removed or suspended.  It would be illegal to deprive them of FAPE and thus, the Virginia regulation must make clear that LEAs must provide FAPE.  Indeed, IDEA 2004 requires this: § 1415(k)(1)(D) states that children who are removed for more than 10 school days from their current placement must “continue to receive educational services, as provided in section 1412(a)(1).”  IDEA 2004 does not contemplate the provision of FAPE-light or less-than-FAPE to children who are removed, even for additional short-term periods.  Indeed, to the extent that the language “ to progress toward meeting the goals of the student’s IEP” implies this, it is important to include the requirement that children receive FAPE.