Special Education - School Disciplinary Procedure

This is a summary of the special rules that may apply to school disciplinary procedures for special education students.

Maryland law on school disciplinary procedures and policies apply to all students, including students with disabilities. Exclusionary discipline is a last resort in responding to inappropriate student behavior. There may be times, however, when school staff determine school removal is necessary. State disciplinary regulations provide all public-school students with specific due process protections such as: notification, opportunity for the student to share their side of the story, right to appeal, and access to educational services during removal. There are also special rules that apply to students with disabilities. This article focuses on the process local school systems (LSSs) must follow in removing a student with a disability from the classroom (e.g., suspension or expulsion).  

Learn more about school disciplinary procedures generally.

Read the Regulations: Code of Md. Regulations, 13A.08.01.11, 13A.08.03. (Discipline of Students with Disabilities)

 

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What is an individualized education program (IEP)?

The goal of special education is to provide an appropriate education in the least restrictive environment in which a student’s needs can be met. This goal is often called “inclusion.” Inclusion means that a student is included with peers without disabilities in academic settings, and that the student gets any special services they need within a general education classroom. An individualized education program (IEP) is a written description of the special education and related services for a student with a disability.

The classroom setting in which a student regularly receives educational instruction is the student’s “placement.” The educational setting in which a student with a disability is placed is determined by an IEP team. The IEP team is the group of individuals responsible for identifying and evaluating students with disabilities. The IEP team is responsible for developing, reviewing, or revising an IEP for a student with a disability. 

Read the regulations: Code of Md. Regulations 13A.05.01.03

 

What is removal?

Removal refers to the temporary exclusion of a student from their regular school environment due to disciplinary reasons. This could involve a student being removed from a class, a specific school activity, or even from the school premises. Removals are often used as a disciplinary measure to address behavior that disrupts the learning environment or violates school rules.

 

When does removal constitute a change of placement?

A removal of more than 10 consecutive school days is a change in placement. A series of removals that cumulatively are greater than 10 school days may also constitute a change in placement. To determine if a series of removals is considered a change in placement, the IEP team must consider the: 

  • length of each removal,
  • total amount of time the student is removed; and
  • proximity of the removals to one another. 

Read the Regulations: Code of Md. Regulations, 13A.08.03.05

 

Removal of a Student with a Disability for 10 School Days or Fewer

Students with disabilities may be removed from school for up to 10 school days following the same policies and procedures as general education students. The 10 school days may be consecutive (a suspension for 10 days or fewer) or cumulative (a series of shorter suspensions throughout the school year that add up to 10 days or fewer). During these removals, students with disabilities are not entitled to their special education services; however, LSSs must provide any services that are delivered to general education students during a removal.

Read the Regulations: Code of Md. Regulations, 13A.08.03.03(A)

 

Removal of a Student with a Disability for More than 10 School Days 

A student with a disability who is removed for more than 10 school days is entitled to additional protections. When a student with a disability is removed for more than 10 school days (consecutive or cumulative), school personnel shall consult with at least one of the student's teachers to determine what services to provide to enable the student to:

  • progress in the general curriculum; and
  • advance toward achieving the goals of the student's IEP. 

A student with a disability may be entitled to additional procedural due process known as a manifestation determination.  This additional procedural step is required if the removal of the student is a change in placement. 

Read the Regulations: Code of Md. Regulations, 13A.08.03.03(B)

 

Manifestation Determination

If the student’s removal is a change in placement, the IEP team must meet to hold a manifestation determination review. This meeting must take place within 10 school days of the date the student received the disciplinary action. At the meeting, the IEP team must determine:

  • whether the student's behavior is a manifestation of the student's disability; and
  • the services to be provided during the removal to ensure the provision of a free, appropriate public education (FAPE).

The IEP team must find the student’s behavior was a manifestation of their disability when one or both of the following applies to the behavior that led to the discipline:

  • the behavior was caused by or had a direct and substantial relationship to the student's disability; or
  • the behavior was the direct result of the LSS's failure to implement the student's IEP.

If the IEP team determines the behavior is a manifestation of the student’s disability, then the student must be returned to their placement, unless the parent and LSS agree otherwise. The IEP team should also conduct a functional behavioral assessment (FBA) and implement a behavior intervention plan (BIP) if it has not done so already. If the student does have a behavior intervention plan, the IEP team should review and revise it if necessary.

Furthermore, if the IEP team determines that the behavior was a result of the failure to implement the student’s IEP, it must take steps to remedy those issues.

If the IEP team determines the behavior is not a manifestation of the student’s disability, the student may be disciplined in the same manner as students without disabilities. However, the IEP team must still determine what services are necessary to provide the student with FAPE, albeit in a different setting. The IEP team must also consider the need for a functional behavioral assessment and behavior intervention services to prevent recurrence of the inappropriate behavior.

Read the Regulations: Code of Md. Regulations, 13A.08.03.08

 

Students Not Yet Eligible for Special Education and Related Services 

A student who has not yet been identified as a student with a disability can assert any of the rights and protections under Maryland regulations if the LSS has knowledge that the student was a student with a disability before the student engaged in the behavior resulting in discipline. An LSS is considered to have knowledge if:

  • The parent of the student expressed concern in writing to supervisory or administrative personnel of the LSS or a teacher of the student that the student is in need of special education and related services;
  • The parents have requested an evaluation; or
  • The student's teacher or other personnel of the LSS expressed specific concerns about a pattern of behavior demonstrated by the student directly to the director of special education or other LSS supervisory personnel consistent with child-find procedures.

The parents of a student who has not previously been identified as eligible for special education services may request an evaluation, and that evaluation must be expedited during the suspension or expulsion period.

Read the Regulations: Code of Md. Regulations, 13A.08.03.10, 13A.05.01.04A(1)

 

Interim Alternative Educational Setting 

In limited circumstances, the LSS may remove the student with a disability to an interim alternative education setting (IAES). The LSS may remove the student to an IAES for up to 45 school days if while at school, on school premises, or at a school function, the student:

  • Carries or possesses a weapon; 
  • Knowingly possesses or uses an illegal drug;
  • Sells or solicits the sale of a controlled substance; or
  • Inflicts serious bodily injury on another person. 

The IEP team will determine the IAES, which must enable the student to:

  • Progress in the general curriculum;
  • Receive the services and modifications included in the student's IEP;
  • Meet the goals of the student's IEP; and
  • Receive services and modifications designed to address the behavior to prevent its recurrence.

If the LSS believes that the behavior of the student is likely to result in injury to the student or others, the LSS may request a due process hearing through the Office of Administrative Hearings to seek a removal to an IAES.

Read the Regulations: Code of Md. Regulations, 13A.08.03.06

 

Appeal Rights  

If a parent and/or student disputes that the student engaged in the behavior that led to the disciplinary infraction, the student may have a right to appeal the suspension or expulsion. The appeal rights for a suspension or expulsion are governed by state regulations and local school board policy. Extended suspensions and expulsions are appealable to the local school board. Short and long-term suspensions may be appealed consistent with local school board policy. 

The state regulations also provide appeal rights specific to students with disabilities. Parents of the student may file a due process complaint if the parents disagree with the LSS regarding:

  • Disciplinary removals;
  • The determination of whether the student's behavior is a manifestation of the student's disability; or
  • The interim alternative educational setting.

Due process complaints filed under the discipline regulation will be conducted in an expedited manner. The student will remain in the IAES until the administrative law judge issues a decision or the placement term expires, whichever occurs first. The LSS and parent can also agree to a different course of action. 

Read the Regulations: Code of Md. Regulations, 13A.08.03.09, 13A.08.01.11(C)(4)(f)-(l).

 

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