OVERVIEW OF THE MAJOR  DISCIPLINE PROVISIONS IN 
THE 1999  IDEA REGULATIONS
 


PREPARED BY ROBERT SILVERSTEIN, J.D., DIRECTOR OF  THE 
 
CENTER FOR THE STUDY AND ADVANCEMENT OF  DISABILITY POLICY 
 
AT THE GEORGE WASHINGTON UNIVERSITY SCHOOL 
 
OF PUBLIC HEALTH AND HEALTH SERVICES
 
2021 K STREET, N.W. , SUITE 800
 
WASHINGTON, D. C. 20006
 
(202) 496-8452 (V/TTY)
 
(202) 467-2251 (FAX)
 
E-MAIL:  IHORXS@GWUMC.EDU
 


MARCH 18, 1999 
 


INTRODUCTION 

     On June 4, 1997, President Clinton signed into law  the 
Individuals with Disabilities Education Act  Amendments of 
1997 (Public Law No.105-17). The  1997 Amendments to 
IDEA included specific provisions  addressing the 
discipline of children with disabilities. On  October 22, 
1997, the U.S. Department of Education  published in the 
Federal Register proposed regulations  governing part B of 
IDEA (which guarantees a free  appropriate public 
education to all children with  disabilities) and requested 
comments from the public.  After reviewing over 6,000 
comments, on March 12,  1999 the U.S. Department of 
Education published in the  Federal Register final part B 
regulations.  

     The purpose of this paper is to describe the major  
provisions in the final regulations applicable to the  
disciplining of children with disabilities. The paper  
describes: 

The authority of school personnel and others to  remove a 
child with a disability from his or her current  placement; 
 

When educational services must begin for a child  with a 
disability; 
 

Functional behavioral assessments and behavioral  
intervention plans; 
 

Manifestation determinations; and 
 

Application of the stay put provision.
 

     A detailed analysis of all revisions to the IDEA  
regulation is set out in a separate document entitled oA  
UserAs Guide to the 1999 IDEA Regulationso prepared  by 
the author. 

AUTHORITY OF SCHOOL PERSONNEL  AND OTHERS TO 
REMOVE A CHILD WITH  A DISABILITY FROM HIS OR HER  
CURRENT PLACEMENT 


SHORT-TERM REMOVALS. 
 

School personnel can remove a child with a disability  for 
short periods of time (even over the parentAs  objections) 
as long as the removal does not  constitute a change in 
placement. A change in  placement occurs when a child 
is removed for more  than 10 consecutive school days or 
when a child is  subjected to a series of removals that 
constitute a  pattern because they cumulate to more than 
10  school days in a school year. Factors to consider in  
determining whether a pattern exists, include length  of 
removal, the total amount of time the child is  removed 
and the proximity of the removals to one  another.
 

Thus, multiple short-term removals (i.e., 10  consecutive 
days or less) for separate incidents of  misconduct are 
permitted (to the extent removals are  permitted for 
nondisabled children for the same  offense) as long as 
those removals do not constitute  a change in placement 
i.e., there is no pattern.
 

These short-term removals are permissible  whenever 
discipline is appropriate and is  administered consistent 
with the treatment of  nondisabled children. Also school 
personnel should  be aware of constitutional due 
process protections  that apply during these periods for 
all students,  including students with disabilities. See 
Goss v.  Lopez, 419 U.S. 565 (1975). See IEP Q&A#40.
 

School personnel may not use their ability to  suspend a 
child for 10 days or less at a time on  multiple occasions 
in a school year as a means of  avoiding appropriately 
considering and addressing  the childAs behavior as a 
part of providing FAPE to  the child (IEP Q and A #38)
 

DISCIPLINE WHEN THE BEHAVIOR OF A  CHILD WITH A 
DISABILITY IS NOT A  MANIFESTATION OF HIS/HER 
DISABILITY. 
 

     If the IEP team concludes that the behavior of a child  
with a disability was not a manifestation of the childAs  
disability, the child can be disciplined in the same  manner 
as nondisabled children, except that appropriate  
educational services must be provided (see below). This  
means that if nondisabled children are long-term  
suspended or expelled for a particular violation of school  
rules, the child with disabilities may also be long-term  
suspended or expelled, except that appropriate  
educational services must be provided.  

WEAPONS, DRUGS. 
 

School authorities can unilaterally remove a child with a  disability from the
childAs regular placement for up to 45 days 
 at a time if the child has brought a weapon to school or to a  school function
(or is found to have a weapon that he 
or she  obtained while at school or a school function) or knowingly  possessed
or used illegal drugs or sold or 
solicited the sale of  controlled substances while at school or a school
function.
 

If school officials believe that it would be dangerous  to 
return the child after the 45 days, they can ask an  
impartial hearing officer to order that the child remain  in 
the interim alternative educational setting for an  
additional 45 days and can request subsequent  
extensions. 
 

SUBSTANTIAL LIKELIHOOD OF INJURY  (HEARING 
OFFICER)
 

If school officials believe that a child with a disability  is 
substantially likely to injure self or others in the  childAs 
regular placement, they can ask an impartial  hearing 
officer to order that the child be removed to  an interim 
alternative education setting for a period  of up to 45 
days. 
 

If school officials believe that it would be dangerous  to 
return the child after the 45 days, they can ask an  
impartial hearing officer to order that the child remain  in 
the interim alternative educational setting for an  
additional 45 days and can request subsequent  
extensions. 
 

SUBSTANTIAL LIKELIHOOD OF INJURY  (COURT ORDER). 
 

     School officials may seek to obtain a court order to remove a  child with a
disability from school or to change a 
childAs placement  if they believe that maintaining the child in the current
educational  placement is substantially likely 
to result in injury to the child or  others.  

REFERRAL TO LAW ENFORCEMENT  OFFICIALS. 
 

     School officials can report crimes committed by  
children with disabilities to appropriate law enforcement  
authorities to the same extent as they do for crimes  
committed by nondisabled students. 



WHEN SERVICES MUST BEGIN FOR A  CHILD WITH A 
DISABILITY 


REMOVAL FOR UP TO 10 SCHOOL DAYS IN A  SCHOOL 
YEAR. 
 

     Services need not be provided to a child with a disability during  the
first ten school days in a school year that a 
child is removed for  violations of school conduct rules when necessary and
appropriate  to the circumstances and if 
services are not provided to a child  without disabilities who have been
similarly removed. 

SHORT TERM REMOVALS THAT DO NOT  CONSTITUTE A 
CHANGE IN PLACEMENT  AFTER CHILD HAS ALREADY 
BEEN REMOVED  FOR UP TO 10 SCHOOLS DAYS IN A 
SCHOOL  YEAR. 
 

     After a child has been removed from his or her  current 
placement by school personnel for more than 10  school 
days in the same school year, subsequent short  term 
removals are permissible as long as they do not  
constitute a change in placement; however, services  must 
be provided to the extent necessary to enable the  child to 
appropriately progress in the general curriculum  and 
appropriately advance toward achieving the goals  set out 
in the childAs IEP. In this situation, school  personnel, in 
consultation with the childAs special  education teacher, 
determine the extent to which  services are necessary. 

3.  REMOVALS WHEN CHILDAS BEHAVIOR IS NOT  A 
MANIFESTATION OF DISABILITY AFTER CHILD  HAS 
ALREADY BEEN REMOVED FOR UP TO 10  SCHOOL DAYS 
IN A SCHOOL YEAR.  

     After a child has been removed from his or her  current 
placement for more than 10 cumulative school  days in a 
school year, subsequent removals by school  personnel 
for behavior that is not a manifestation of his  or her 
disability are permissible; however, services must  be 
provided to the extent necessary to enable the child  to 
appropriately progress in the general curriculum and  
appropriately advance toward achieving the goals set  out 
in the childAs IEP. The childAs IEP team determines  the 
extent to which services are necessary.  

REMOVALS FOR WEAPONS AND DRUGS 
 

     In addition to the short-term removals described  above, 
removals to interim alternative educational  placements for 
up to 45 days by school personnel are  permissible for 
weapons or drug offenses (whether or  not the offenses are 
a manifestation of the childAs  disability). However, the IEP 
team must determine the  extent to which services must be 
provided in interim  alternative educational settings. 
Placements in such  settings must:  

-be 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 childAs  
current IEP, that will enable the child to meet the goals  
set out in that IEP and  

-include services and modifications to address the childAs  behavior (conduct
relating to weapons and drugs) that are 
designed  to prevent the behavior from recurring.  

REMOVALS BY HEARING OFFICERS FOR  BEHAVIOR THAT 
IS SUBSTANTIALLY LIKELY  TO RESULT IN INJURY TO 
CHILD OR OTHER 
 

     In addition to the short-term removals described  above, 
removals to interim alternative educational  placements for 
up to 45 days by a hearing officer are  permissible based 
on a determination that maintaining  the current placement 
of the child is substantially likely to  result in injury to the 
child or to others if he or she  remains in the current 
placement (whether or not the  offenses are a manifestation 
of the childAs disability).  The hearing officer must 
determine that the interim  alternative educational setting 
that is proposed by  school personnel, who have consulted 
with the childAs  special education teacher, meets the 
following  requirements:   

-be 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 childAs current IEP, 
that will enable the child  to meet the goals set out in that IEP and  

-include services and modifications to address the childAs  behavior
(substantially likely to result in injury to self or 
others) that  are designed to prevent the behavior from recurring.  




 FUNCTIONAL BEHAVIORAL  ASSESSMENTS AND 
BEHAVIORAL  INTERVENTION PLANS 


DEVELOPING AN IEP, IN GENERAL. 
 

     In the case of a child with a disability whose behavior impedes  his or her
learning or that of others, the IEP team, in 
developing the  IEP, must consider, if appropriate, strategies, including
positive  behavioral interventions, strategies, 
and supports to address that  behavior. 

INITIAL REMOVAL FOR MORE THAN 10  SCHOOL DAYS IN 
A SCHOOL YEAR. 
 

Either before or not later than 10 business days after  first 
removing a child with a disability for more than  10 
school days in a school year, the public agency  must 
convene an IEP meeting to develop a functional  
behavioral assessment plan (if the LEA did not  already 
conduct a functional assessment and if the  LEA had not 
implemented a behavioral intervention  plan). As soon as 
practicable after developing the  functional behavioral 
assessment plan, and  completing the assessments 
required by the plan,  the LEA must convene an IEP 
meeting to develop  appropriate behavioral interventions 
to address that  behavior and must implement those 
interventions.   
 

If the child already has a behavioral intervention plan,  the 
IEP team must meet to review the plan and its  
implementation and, modify the plan and its  
implementation as necessary, to address the  behavior. 
 

SUBSEQUENT REMOVALS FOR MORE THAN  10 SCHOOL 
DAYS IN A SCHOOL YEAR. 
 

     If subsequently, a child with a disability who has a  
behavioral intervention plan and who has been removed  
from his or her current educational placement for more  
than 10 school days in a school year is subjected to  
removal that does not constitute a change of placement,  
the IEP members shall individually review the behavioral  
intervention plan and its implementation and if one or  
more of the team members believe that modifications  are 
needed, the IEP team shall meet to modify the plan  and its 
implementation. 

 4.  COMMENCING A REMOVAL THAT  CONSTITUTES A 
CHANGE IN 
     PLACEMENT.  

Either before or not later than 10 business days after  
commencing a removal that constitutes a change of  
placement (including an action relating to weapons  or 
illegal use of drugs), the public agency must  convene an 
IEP meeting to develop a functional  behavioral 
assessment plan (if the LEA did not  already conduct a 
functional assessment for the child  with a disability and 
if the LEA had not implemented  a behavioral 
intervention plan). 
 

As soon as practicable after developing the  functional 
behavioral assessment plan, and  completing the 
assessments required by the plan,  the LEA must 
convene an IEP meeting to develop  appropriate 
behavioral interventions to address that  behavior and 
must implement those interventions.   
 

If the child with a disability already has a behavioral  
intervention plan, the IEP team must meet to review  the 
plan and its implementation and, modify the plan  and its 
implementation as necessary, to address the  behavior. 
 

 MANIFESTATION DETERMINATIONS 


CIRCUMSTANCES UNDER WHICH MANIFESTATION  DETERMINATIONS ARE 
REQUIRED. 
 

     School officials must conduct a manifestation determination  review
whenever 
they contemplate:  

removing a child with a disability for behavior relating to  weapons or the
illegal 
use of drugs  
 

seeking an order from a hearing officer to place a child in an interim
 alternative 
educational setting because of behavior that is substantially  likely to result
in 
injury to self or others or 
 

removing a child when such removal constitutes a change in placement for a  
child with a disability who has engaged in other behavior that violated any
 rule or 
code of conduct of the LEA that applies to all children.  
 

NOTICE TO PARENTS.  
 

     Not later than the date on which the decision to take an action described  
above is made, the parents must be notified of that decision and provided the  
procedural safeguards notice.
 

TIMING OF REVIEW.  


     The manifestation determination review must be conducted immediately if  
possible, but in no case later than 10 school days   after the date on which the

decision to take an action described above is made.
 

INDIVIDUALS TO CARRY OUT REVIEW .
 

     The IEP team and other qualified personnel in a meeting must conduct the  
manifestation determination review . 
 

APPLICATION OF THE STAY PUT  PROVISION 

     Except for cases involving weapons, drugs, and injury to self or  others,
the 
stay put provision (a child with a disability is entitled to  stay in his or her
then 
current placement pending resolution of due  process and court action) applies
to 
all actions contemplated by  school officials, including findings in
manifestation 
determination  reviews

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