If your child exhibits behaviors that interfere with her learning, or are disruptive to other students the IEP must address those behaviors. The ARD committee must identify appropriate positive behavioral interventions and supports, and other strategies, to address each behavior.
You can ask for a “functional behavior assessment” (FBA) to determine why and when she is displaying the inappropriate behaviors and how best to respond. With that information, the ARD committee can develop a "behavior intervention plan" (BIP) which becomes a part of her IEP. The plan should identify the supports and services she needs so she doesn't display the inappropriate behaviors - not just a list of consequences for misbehavior.
If at any point a student violates a school rule that results in a determination that the behavior was related to the student’s disability, the ARD committee must conduct a functional behavior assessment and develop a behavior intervention plan. If an FBA has previously been conducted, and the student already has a BIP, the ARD committee must review the plan and modify it as needed.
It is extremely important that the ARD committee discusses and plans for any behaviors you think might cause your child to get in trouble at school. In Texas, parents are asked to sign a statement that their child will comply with the district's "Student Code of Conduct." This applies to your child too, so be sure and read it thoroughly and discuss anything in the code that might be difficult for your child to follow. The IEP should note any exceptions to the Code of Conduct.
(a) Each school district shall provide a disciplinary alternative education program that:
(1) is provided in a setting other than a student's regular classroom;
(2) is located on or off of a regular school campus;
(3) provides for the students who are assigned to the disciplinary alternative education program to be separated from students who are not assigned to the program;
(4) focuses on English language arts, mathematics, science, history, and self-discipline;
(5) provides for students' educational and behavioral needs;
(6) provides supervision and counseling;
(7) requires that to teach in an off-campus disciplinary alternative education program, each teacher meet all certification requirements established under Subchapter B, Chapter 21; and
(8) notwithstanding Subdivision (7), requires that to teach in a disciplinary alternative education program of any kind, each teacher employed by a school district during the 2003-2004 school year or an earlier school year meet, not later than the beginning of the 2005-2006 school year, all certification requirements established under Subchapter B, Chapter 21.
(b) A disciplinary alternative education program may provide for a student's transfer to:
(1) a different campus;
(2) a school-community guidance center; or
(3) a community-based alternative school.
(c) An off-campus disciplinary alternative education program is not subject to a requirement imposed by this title, other than a limitation on liability, a reporting requirement, or a requirement imposed by this chapter or by Chapter 39.
(d) A school district may provide a disciplinary alternative education program jointly with one or more other districts.
(e) Each school district shall cooperate with government agencies and community organizations that provide services in the district to students placed in a disciplinary alternative education program.
(f) A student removed to a disciplinary alternative education program is counted in computing the average daily attendance of students in the district for the student's time in actual attendance in the program.
(g) A school district shall allocate to a disciplinary alternative education program the same expenditure per student attending the disciplinary alternative education program, including federal, state, and local funds, that would be allocated to the student's school if the student were attending the student's regularly assigned education program, including a special education program.
(h) A school district may not place a student, other than a student suspended as provided under Section 37.005 or expelled as provided under Section 37.007, in an unsupervised setting as a result of conduct for which a student may be placed in a disciplinary alternative education program.
(i) On request of a school district, a regional education service center may provide to the district information on developing a disciplinary alternative education program that takes into consideration the district's size, wealth, and existing facilities in determining the program best suited to the district.
(j) If a student placed in a disciplinary alternative education program enrolls in another school district before the expiration of the period of placement, the board of trustees of the district requiring the placement shall provide to the district in which the student enrolls, at the same time other records of the student are provided, a copy of the placement order. The district in which the student enrolls shall inform each educator who will have responsibility for, or will be under the direction and supervision of an educator who will have responsibility for, the instruction of the student of the contents of the placement order. Each educator shall keep the information received under this subsection confidential from any person not entitled to the information under this subsection, except that the educator may share the information with the student's parent or guardian as provided for by state or federal law. The district in which the student enrolls may continue the disciplinary alternative education program placement under the terms of the order or may allow the student to attend regular classes without completing the period of placement. A district may take any action permitted by this subsection if:
(1) the student was placed in a disciplinary alternative education program by an open-enrollment charter school under Section 12.131 and the charter school provides to the district a copy of the placement order; or
(2) the student was placed in a disciplinary alternative education program by a school district in another state and:
(A) the out-of-state district provides to the district a copy of the placement order; and
(B) the grounds for the placement by the out-of-state district are grounds for placement in the district in which the student is enrolling.
(j-1) If a student was placed in a disciplinary alternative education program by a school district in another state for a period that exceeds one year and a school district in this state in which the student enrolls continues the placement under Subsection (j), the district shall reduce the period of the placement so that the aggregate period does not exceed one year unless, after a review, the district determines that:
(1) the student is a threat to the safety of other students or to district employees; or
(2) extended placement is in the best interest of the student.
(k) A program of educational and support services may be provided to a student and the student's parents when the offense involves drugs or alcohol as specified under Section 37.006 or 37.007. A disciplinary alternative education program that provides chemical dependency treatment services must be licensed under Chapter 464, Health and Safety Code.
(l) A school district is required to provide in the district's disciplinary alternative education program a course necessary to fulfill a student's high school graduation requirements only as provided by this subsection. A school district shall offer a student removed to a disciplinary alternative education program an opportunity to complete coursework before the beginning of the next school year. The school district may provide the student an opportunity to complete coursework through any method available, including a correspondence course, distance learning, or summer school. The district may not charge the student for a course provided under this subsection.
(m) The commissioner shall adopt rules necessary to evaluate annually the performance of each district's disciplinary alternative education program established under this subchapter. The evaluation required by this section shall be based on indicators defined by the commissioner, but must include student performance on assessment instruments required under Sections 39.023(a) and (c). Academically, the mission of disciplinary alternative education programs shall be to enable students to perform at grade level.
(m-1) The commissioner shall develop a process for evaluating a school district disciplinary alternative education program electronically. The commissioner shall also develop a system and standards for review of the evaluation or use systems already available at the agency. The system must be designed to identify districts that are at high risk of having inaccurate disciplinary alternative education program data or of failing to comply with disciplinary alternative education program requirements. The commissioner shall notify the board of trustees of a district of any objection the commissioner has to the district's disciplinary alternative education program data or of a violation of a law or rule revealed by the data, including any violation of disciplinary alternative education program requirements, or of any recommendation by the commissioner concerning the data. If the data reflect that a penal law has been violated, the commissioner shall notify the county attorney, district attorney, or criminal district attorney, as appropriate, and the attorney general. The commissioner is entitled to access to all district records the commissioner considers necessary or appropriate for the review, analysis, or approval of disciplinary alternative education program data.
If at all possible, you should try to reach agreement with the school about your child’s education. However, if you have a dispute that you and the school district cannot resolve, you may ask for an impartial due process hearing. If you disagree with the IEP or have any other complaint concerning your child’s education, you have a right to a due process hearing before an impartial hearing officer. You have a right to a final decision from the hearing officer within 45 days of your request for the hearing. However, in reality, it may take several months to get a final decision.
Asking for a due process hearing is a very important decision. Due process hearings are expensive and stressful. School districts win many more hearings than do parents. It is a good idea to carefully consider the other steps you can take to solve a problem before you request a hearing. You can try other remedies (see previous sections on Mediation and Complaints) instead of, or in addition to, an impartial due process hearing.
If you file for a due process hearing, you will be contacted by TEA and offered mediation. Whether you accept that offer, or go directly to a due process hearing, is your choice. However, if you choose not to accept mediation, the school district may require you to meet with an impartial party who will encourage the use and explain the benefits of mediation.
Representation by an Attorney
Before you ask for a due process hearing, you must decide whether to hire an attorney to represent you. Although some parents have represented themselves successfully, or used a lay advocate, it is very difficult to win without an attorney. The due process procedure used in Texas is similar to going to court. The hearings follow special rules that apply only to due process hearings, as well as use the Texas Rules of Evidence and the Texas Rules of Civil Procedure, which are very formal and difficult to understand. The school district’s attorney knows these rules and will use them.
Also, at the hearing, a court reporter makes an official record. This means a court reporter will prepare a transcript of all the witnesses’ testimony. The court reporter will put this transcript and all other evidence (such as evaluation reports and IEPs) into the official record of the hearing. If your case eventually goes to court, this record will be a large part of what the judge will use to decide the case. If your evidence is presented correctly at the hearing, it will not have to be presented again in a formal trial. It is difficult for a parent or lay advocate to know how to present evidence correctly. The best way to protect your rights, and those of your child, is to have an attorney at the due process hearing.
If you represent yourself and lose your due process hearing, you will need an attorney if you want to appeal your decision in Federal court. Even if you win the hearing, the school district may well appeal the decision, at which point you will need an attorney. It is more effective if the attorney who will represent you in court has worked with you during the due process hearing and really understands your case. Try to have an attorney before you ask for a hearing.
Finding an Attorney
Of course, cost is a factor in your decision to use a lawyer or to ask for a hearing. IDEA 2004 requires each school district to inform you of any free or low-cost legal assistance that might be available in your area. If they have not, you should ask the school officials for this information.
In Texas, it is unfortunately very difficult to find an attorney who will take a special education case. Special education cases are typically complex and difficult, and attorneys are aware they cannot be awarded attorney fees unless they win the case.
Many parents have learned through contacts in their local parent and advocacy organizations of attorneys willing to take cases for a reasonable fee. Check with your local parent and/or advocacy organizations for suggestions.
Advocacy, Inc., a statewide legal rights advocacy system, provides legal services to people with disabilities and takes some special education cases within priority areas. Call 1-800-252-9108 to find out if they can take your case. If they cannot take your case, ask for a copy of their list of private attorneys who take special education cases.
Requesting a Hearing
NEW: IDEA 2004 expands the information that must be included when requesting a due process hearing. The party requesting due process (typically a parent or the parent’s attorney) must provide what is called “due process complaint notice” to the other party (typically the school district) and to TEA. This notice must include:
• the name of the child, the address of the child, and the name of the school district;
• a description of the problem in dispute, including relevant facts; and
• a proposed resolution to the problem.
If the parent files, then the school will review the notice. If the school does not think the notice sufficiently meets the notice requirements, they must notify the hearing officer and parent in writing within 15 days of receiving the complaint notice. The hearing officer will notify the parent within 5 days if he thinks the complaint notice is sufficient or not. If the hearing officer determines the notice is not sufficient, the hearing officer can allow the parent to amend the due process complaint notice.
In addition if the school has not already done so they must send you a response within 10 days of receiving your due process complaint notice that includes:
• an explanation of why they proposed or refused to take the action described in the complaint;
• a description of other options considered and the reasons why those options were rejected;
• a description of the evaluations, assessments, records or reports used as a basis for their action; and
• a description of the factors that are relevant to the school’s proposal or refusal*.
*Note: It is important that your due process complaint notice address all of the issues you are disputing. At the hearing you will not be able to bring up an issue that was not included in your complaint notice unless the school agrees.
Under IDEA 2004, a request for a due process hearing must be filed within two years of the date the parent or school knew or should have known about the action that forms the basis of the complaint. Current Texas law only allows you to go back one year instead of two.
There are two ways you or your attorney can file for a due process hearing – by drafting your own due process complaint notice or by using TEA’s form. The TEA form is available at: (www.tea.state.tx.us/special.ed/hearings/duepro.html.
The Due Process Complaint Notice letter or the TEA form available online must be sent to the school district superintendent and to:
Office of Legal Services
Texas Education Agency
1701 North Congress Avenue
Austin, Texas 78701
The Texas Education Agency (TEA) will send you a letter telling you the name of the hearing officer they have assigned to your case. The hearing officer will schedule the hearing for a date that is within a few weeks of the date TEA receives your complaint. For this reason, it is a good idea for you and your attorney to prepare your case before you request the hearing. However, this is not always possible. If you do not think you can be ready in time for the hearing, your attorney can request an extension of time from the hearing officer. The hearing officer will usually grant reasonable requests for extensions of time. The school district may also ask for an extension of time.
If you have additional questions about the due process hearing process, you can call TEA’s Office of Legal Services at: 512-463-9720.
NEW: Resolution Session
This is another, and very important, requirement of IDEA 2004. Before conducting a due process hearing the school must convene a meeting with the parents and the relevant members of the ARD committee who have knowledge of the facts in the due process hearing complaint. The meeting must include a school representative who has decision-making authority and must be held within 15 days of receiving the complaint. The school may not bring an attorney to the meeting unless the parent is bringing an attorney.
The purpose of the resolution session meeting is to give the parents the opportunity to discuss their complaint and the school is given the opportunity to resolve the complaint. The resolution session meeting is required unless both the parent and school agree in writing to waive the meeting or they agree to mediation. If the school has not resolved the complaint within 30 days of receiving it, the due process hearing will proceed. Unless an extension of time has been ordered, the hearing officer’s decision is due 45 days from the date of your request for a hearing, even if the parties choose to use the resolution process first.
If a resolution is reached, the parents and the school must sign a legally binding agreement. The agreement is enforceable in state or federal court. Either the school or the parent can withdraw their agreement within three days of signing it.
Time and Place of the Hearing
After the completion of the Resolution Session timeline (30 days after receiving the complaint), the hearing should immediately proceed at a time and place set by the hearing officer. If the hearing is set at a time that doesn’t work for you, ask to have it changed. You or your attorney should immediately tell the hearing officer of the time conflict and your preferred time.
Decision of the Hearing Officer
At the end of the hearing, the hearing officer will usually work out an agreement with the two sides for a date on which a decision will be due. Usually the hearing officer will allow each side to submit a brief (that is, a written summary of the arguments and authorities for their case) before the decision is due. After the hearing and after all parties submit their briefs, the hearing officer will issue a written opinion deciding the dispute.
If you win, you may be entitled to recover attorney's fees. If a hearing officer determines an appropriate IEP would have provided services for which you have already paid, you can ask the hearing officer to order reimbursement for those expenses. Typical examples are extended school year (ESY) and related services (such as physical therapy). You should discuss these issues with your attorney.
New provisions in IDEA 2004 allow the hearing officer to require the parent or the parent’s attorney to pay attorney’s fees to the school district award if the parent’s complaint was frivolous, unreasonable or without foundation and/or if the complaint was presented for an improper purpose, such as to harass, cause unnecessary delay or needlessly increase the cost of litigation.
Appeal to Court
If you or the school district do not agree with the hearing officer's final decision, either party may appeal to state or federal court. The appeal must be filed within 90 days from the date decision. If you do not already have an attorney, you will need one for the appeal.
Placement During Due Process Hearings and Court Appeals
If you choose to challenge the school's evaluation, program or placement in a due process hearing, the IDEA requires the student to remain in the current placement during the hearings and appeals. This is often referred to as the “stay put” provision of the law.
NEW: In discipline cases where a student has already been removed from the classroom for an interim period, the “stay put” provisions do not apply. You also may be entitled to an expedited hearing. (See section on discipline/behavior).
If you think the school's evaluation does not accurately measure your child's need for special education, you may get an independent education evaluation (IEE). Independent evaluations are done by qualified persons who are not employed by the school. You may ask the school how and where to get an independent evaluation or you may get the independent evaluation done by someone not recommended by the school, as long as this person is qualified to perform the evaluation.
If you ask the school to pay for the independent evaluation, the school must do so unless the school asks for a due process hearing to show its evaluation was appropriate. If you want the school to pay for the independent evaluation, the testing you get must meet the same requirements the school uses. You should notify the school officials if you want an independent evaluation and you expect the school to pay for it. However, you do not have to tell the district why you disagree with their evaluation.
The ARD committee must discuss and equally consider independent evaluations, regardless of who pays for them, in any ARD committee decisions. They do not, however, have to accept any or all of the evaluator's recommendations.
(a) The juvenile board of a county with a population greater than 125,000 shall develop a juvenile justice alternative education program, subject to the approval of the Texas Juvenile Probation Commission. The juvenile board of a county with a population of 125,000 or less may develop a juvenile justice alternative education program. For the purposes of this subchapter, only a disciplinary alternative education program operated under the authority of a juvenile board of a county is considered a juvenile justice alternative education program. A juvenile justice alternative education program in a county with a population of 125,000 or less:
(1) is not required to be approved by the Texas Juvenile Probation Commission; and
(2) is not subject to Subsection (c), (d), (f), or (g).
(b) If a student admitted into the public schools of a school district under Section 25.001(b) is expelled from school for conduct for which expulsion is required under Section 37.007(a), (d), or (e), the juvenile court, the juvenile board, or the juvenile board's designee, as appropriate, shall:
(1) if the student is placed on probation under Section 54.04, Family Code, order the student to attend the juvenile justice alternative education program in the county in which the student resides from the date of disposition as a condition of probation, unless the child is placed in a post-adjudication treatment facility;
(2) if the student is placed on deferred prosecution under Section 53.03, Family Code, by the court, prosecutor, or probation department, require the student to immediately attend the juvenile justice alternative education program in the county in which the student resides for a period not to exceed six months as a condition of the deferred prosecution;
(3) in determining the conditions of the deferred prosecution or court-ordered probation, consider the length of the school district's expulsion order for the student; and
(4) provide timely educational services to the student in the juvenile justice alternative education program in the county in which the student resides, regardless of the student's age or whether the juvenile court has jurisdiction over the student.
(b-1) Subsection (b)(4) does not require that educational services be provided to a student who is not entitled to admission into the public schools of a school district under Section 25.001(b).
(c) A juvenile justice alternative education program shall adopt a student code of conduct in accordance with Section 37.001.
(d) A juvenile justice alternative education program must focus on English language arts, mathematics, science, social studies, and self-discipline. Each school district shall consider course credit earned by a student while in a juvenile justice alternative education program as credit earned in a district school. Each program shall administer assessment instruments under Subchapter B, Chapter 39, [FN1] and shall offer a high school equivalency program. The juvenile board or the board's designee, with the parent or guardian of each student, shall regularly review the student's academic progress. In the case of a high school student, the board or the board's designee, with the student's parent or guardian, shall review the student's progress towards meeting high school graduation requirements and shall establish a specific graduation plan for the student. The program is not required to provide a course necessary to fulfill a student's high school graduation requirements other than a course specified by this subsection.
(e) A juvenile justice alternative education program may be provided in a facility owned by a school district. A school district may provide personnel and services for a juvenile justice alternative education program under a contract with the juvenile board.
(f) A juvenile justice alternative education program must operate at least seven hours per day and 180 days per year, except that a program may apply to the Texas Juvenile Probation Commission for a waiver of the 180-day requirement. The commission may not grant a waiver to a program under this subsection for a number of days that exceeds the highest number of instructional days waived by the commissioner during the same school year for a school district served by the program.
(g) A juvenile justice alternative education program shall be subject to a written operating policy developed by the local juvenile justice board and submitted to the Texas Juvenile Probation Commission for review and comment. A juvenile justice alternative education program is not subject to a requirement imposed by this title, other than a reporting requirement or a requirement imposed by this chapter or by Chapter 39.
(h) Academically, the mission of juvenile justice alternative education programs shall be to enable students to perform at grade level. For purposes of accountability under Chapter 39, a student enrolled in a juvenile justice alternative education program is reported as if the student were enrolled at the student's assigned campus in the student's regularly assigned education program, including a special education program. Annually the Texas Juvenile Probation Commission, with the agreement of the commissioner, shall develop and implement a system of accountability consistent with Chapter 39, where appropriate, to assure that students make progress toward grade level while attending a juvenile justice alternative education program. The Texas Juvenile Probation Commission shall adopt rules for the distribution of funds appropriated under this section to juvenile boards in counties required to establish juvenile justice alternative education programs. Except as determined by the commissioner, a student served by a juvenile justice alternative education program on the basis of an expulsion required under Section 37.007(a), (d), or (e) is not eligible for Foundation School Program funding under Chapter 42 or 31 if the juvenile justice alternative education program receives funding from the Texas Juvenile Probation Commission under this subchapter.
(i) A student transferred to a juvenile justice alternative education program must participate in the program for the full period ordered by the juvenile court unless the student's school district agrees to accept the student before the date ordered by the juvenile court. The juvenile court may not order a period of transfer under this section that exceeds the term of any probation ordered by the juvenile court.
(j) In relation to the development and operation of a juvenile justice alternative education program, a juvenile board and a county and a commissioners court are immune from liability to the same extent as a school district, and the juvenile board's or county's professional employees and volunteers are immune from liability to the same extent as a school district's professional employees and volunteers.
(k) Each school district in a county with a population greater than 125,000 and the county juvenile board shall annually enter into a joint memorandum of understanding that:
(1) outlines the responsibilities of the juvenile board concerning the establishment and operation of a juvenile justice alternative education program under this section;
(2) defines the amount and conditions on payments from the school district to the juvenile board for students of the school district served in the juvenile justice alternative education program whose placement was not made on the basis of an expulsion required under Section 37.007(a), (d), or (e);
(3) identifies those categories of conduct that the school district has defined in its student code of conduct as constituting serious or persistent misbehavior for which a student may be placed in the juvenile justice alternative education program;
(4) identifies and requires a timely placement and specifies a term of placement for expelled students for whom the school district has received a notice under Section 52.041(d), Family Code;
(5) establishes services for the transitioning of expelled students to the school district prior to the completion of the student's placement in the juvenile justice alternative education program;
(6) establishes a plan that provides transportation services for students placed in the juvenile justice alternative education program;
(7) establishes the circumstances and conditions under which a juvenile may be allowed to remain in the juvenile justice alternative education program setting once the juvenile is no longer under juvenile court jurisdiction; and
(8) establishes a plan to address special education services required by law.
(l) The school district shall be responsible for providing an immediate educational program to students who engage in behavior resulting in expulsion under Section 37.007(b), (c), and (f) but who are not eligible for admission into the juvenile justice alternative education program in accordance with the memorandum of understanding required under this section. The school district may provide the program or the school district may contract with a county juvenile board, a private provider, or one or more other school districts to provide the program. The memorandum of understanding shall address the circumstances under which such students who continue to engage in serious or persistent misbehavior shall be admitted into the juvenile justice alternative education program.
(m) Each school district in a county with a population greater than 125,000 and the county juvenile board shall adopt a joint memorandum of understanding as required by this section not later than September 1 of each school year.
(n) If a student who is ordered to attend a juvenile justice alternative education program moves from one county to another, the juvenile court may request the juvenile justice alternative education program in the county to which the student moves to provide educational services to the student in accordance with the local memorandum of understanding between the school district and juvenile board in the receiving county.
(o) In relation to the development and operation of a juvenile justice alternative education program, a juvenile board and a county and a commissioners court are immune from liability to the same extent as a school district, and the juvenile board's or county's employees and volunteers are immune from liability to the same extent as a school district's employees and volunteers.
(p) If a district elects to contract with the juvenile board for placement in the juvenile justice alternative education program of students expelled under Section 37.007(b), (c), and (f) and the juvenile board and district are unable to reach an agreement in the memorandum of understanding, either party may request that the issues of dispute be referred to a binding arbitration process that uses a qualified alternative dispute resolution arbitrator in which each party will pay its pro rata share of the arbitration costs. Each party must submit its final proposal to the arbitrator. If the parties cannot agree on an arbitrator, the juvenile board shall select an arbitrator, the school districts shall select an arbitrator, and those two arbitrators shall select an arbitrator who will decide the issues in dispute. An arbitration decision issued under this subsection is enforceable in a court in the county in which the juvenile justice alternative education program is located. Any decision by an arbitrator concerning the amount of the funding for a student who is expelled and attending a juvenile justice alternative education program must provide an amount sufficient based on operation of the juvenile justice alternative education program in accordance with this chapter. In determining the amount to be paid by a school district for an expelled student enrolled in a juvenile justice alternative education program, the arbitrator shall consider the relevant factors, including evidence of:
(1) the actual average total per student expenditure in the district's alternative education setting;
(2) the expected per student cost in the juvenile justice alternative education program as described and agreed on in the memorandum of understanding and in compliance with this chapter; and
(3) the costs necessary to achieve the accountability goals under this chapter.
(q) In accordance with rules adopted by the board of trustees for the Teacher Retirement System of Texas, a certified educator employed by a juvenile board in a juvenile justice alternative education program shall be eligible for membership and participation in the system to the same extent that an employee of a public school district is eligible. The juvenile board shall make any contribution that otherwise would be the responsibility of the school district if the person were employed by the school district, and the state shall make any contribution to the same extent as if the person were employed by a school district.
Individual Discretion
NEW: School administrators are now allowed under IDEA to use discretion on whether or not to change the placement of a student with a disability who violates the student Code of Conduct. This means the principal (or other administrator) no longer must apply a local “zero tolerance” policy to a student with a disability, but can use discretion because of the impact of the student’s disability. This will hopefully decrease the number of students with disabilities sent to DAEPs because the administrator says he has “no choice.”
Manifestation Determination
Before taking disciplinary action that results in a student with a disability having her placement changed for more than ten days, the school district must first determine whether the behavior was a manifestation of her disability.
NEW: It is now more difficult to find a student’s misbehavior was a manifestation of his disability. The new standard is that the misbehavior must have been “caused by” or had a “direct and substantial relationship” to the child’s disability, or was the “direct result” of a school district’s failure to implement the IEP. Manifestation determinations are still not required for removals of less than 10 consecutive school days.
The full ARD committee does not have to meet to conduct a manifestation determination. However, if the behavior is found NOT to be related to the disability, the full committee would have to meet to make any change in the student’s placement. If the behavior is found to have been directly related to the disability, the student must be returned to the placement she was in when the behavior occurred, unless the parent agrees the student should go to another placement as part of a modification of his behavioral intervention plan.
Educational Services in Disciplinary Settings
Students in disciplinary settings are still entitled to special education services needed to continue participation in the general curriculum, and to progress toward meeting his IEP goals.
Removals for up to 45 days
NEW: Previously removals were allowed for up to 45 days for offenses involving drugs and weapons, regardless of whether the offense was a manifestation of the student’s disability. IDEA 2004 adds the infliction of “serious bodily injury to another person” as an additional offense for which a student can be removed for up to 45 days. Also, 45 days now refers to “school days” rather than “calendar days.”
“Stay Put”
NEW: When a parent files for a due process hearing to challenge a disciplinary action, the student will remain in the disciplinary setting pending the hearing decision, or the end of his disciplinary placement. Previously, “stay put” left the student in the placement he was in before the disciplinary removal. This new definition of “stay put” is only applicable to disciplinary removals.
Expedited Hearings
NEW: In discipline cases, the student is entitled to an ”expedited” hearing within 20 school days after the hearing is requested. The hearing officer must issue a decision within 10 school days after the hearing.
Referral may occur as a result of district-wide testing or screening. At the time of referral, the school district must notify the parent(s) in writing about the process it will follow to determine whether a student needs special education services. The information gathered during the referral process is to determine whether the school will test a student to see if he has a disability and needs special education services.
A teacher or other type of specialist at the school may do some informal testing, usually referred to as “screening”, with your child and others as a way of identifying how your child learns best. The screening of a student by a teacher to help the teacher provide better instruction is not considered to be an “evaluation.” Therefore, you will not receive written notice and your consent is not required.
There is no specific timeline for the referral process. The 60-day timeline for evaluation does not start until the school has decided to evaluate the student and has received written consent for the evaluation. To ensure a timely referral process, parents should put their request for an evaluation for special education in writing and request a meeting within 5 days to sign the consent forms. If your child is receiving “early intervening services” (see Glossary), which are not special education services, you have the right to refer your child to special education at any time.
NEW: IDEA 2004 made changes in the referral process for a student suspected of having a learning disability. Now, prior to or as a part of the referral process, the school must assure the student has been provided appropriate, high-quality research-based instruction in a regular classroom, delivered by qualified personnel. Data-based documentation of the student’s progress must also have been reported to the parents. Once the student has been referred, however, the timelines for conducting the evaluation still apply. The new considerations were added by Congress because of concerns that too many students were being referred to special education, and labeled as “learning disabled,” who had not been provided with good instruction in the classroom.
If the school decides to evaluate the student for special education, school officials will notify the parent(s) in writing about the evaluation process and get written consent before the evaluation starts. If the school officials decide not to test for special education eligibility, they must notify the parent(s) in writing about this decision. Parents may challenge the school district’s refusal to evaluate a child through the TEA complaints process or in a due process hearing.
The school is required to get parental consent for all initial evaluations and reevaluations. A district may ONLY reevaluate a student without parental consent if parents fail to respond and the district can show that it has taken all reasonable measures to get consent. If the parent does not agree with the reevaluation the district may only reevaluate if the district requests a due process hearing.
The purpose of the resolution meeting is to give the parents the opportunity to discuss their complaint and the school is given the opportunity to resolve the complaint. The resolution meeting is required unless both the parent and school agree in writing to waive the meeting or they agree to mediation. If the school has not resolved the complaint within 30 days of receiving it, the due process hearing will proceed. Unless an extension of time has been ordered, the hearing officer's decision is due within 45 days.
If a resolution is reached, the parents and the school must sign a legally binding agreement. The agreement is enforceable in state or federal court. Either the school or the parent can withdraw their agreement within three days of signing it.
(B) extreme physical pain;
(C) protracted and obvious disfigurement; or
(D) protracted loss or impairment of the function of a bodily part, organ, or mental faculty.
NEW: When a parent files for a due process hearing to challenge a disciplinary action, the student will remain in the disciplinary setting pending the hearing decision, or the end of his disciplinary placement. Previously, “stay put” left the student in the placement he was in before the disciplinary removal. This new definition of “stay put” is only applicable to disciplinary removals.
Subtitle G. Safe Schools
Chapter 37. Discipline; Law and Order
Subchapter A. Alternative Settings for Behavior Management
§ Sec. 37.001. Student Code of Conduct
(a) The board of trustees of an independent school district shall, with the advice of its district-level committee established under Subchapter F, Chapter 11, adopt a student code of conduct for the district. The student code of conduct must be posted and prominently displayed at each school campus or made available for review at the office of the campus principal. In addition to establishing standards for student conduct, the student code of conduct must:
(1) specify the circumstances, in accordance with this subchapter, under which a student may be removed from a classroom, campus, or disciplinary alternative educaiton program;
(2) specify conditions that authorize or require a principal or other appropriate administrator to transfer a student to a disciplinary alternative education program;
(3) outline conditions under which a student may be suspended as provided by Section 37.005 or expelled as provided by Section 37.007;
(4) specify whether consideration is given, as a factor in a decision to order suspension, removal to a disciplinary alternative education program, or expulsion, to:
(A) self-defense;
(B) intent or lack of intent at the time the student engaged in the conduct;
(C) a student's disciplinary history; or
(D) a disability that substantially impairs the student's capacity to appreciate the wrongfulness of the student's conduct;
(5) provide guidelines for setting the length of a term of:
(A) a removal under Section 37.006; and
(B) an expulsion under Section 37.007;
(6) address the notification of a student's parent or guardian of a violation of the student code of conduct committed by the student that results in suspension, removal to a disciplinary alternative education program, or expulsion;
(7) prohibit bullying, harassment, and making hit lists and ensure that district employees enforce those prohibitions; and
(8) provide, as appropriate for students at each grade level, methods, including options, for:
(A) managing students in the classroom and on school grounds;
(B) disciplining students; and
(C) preventing and intervening in student discipline problems, including bullying, harassment, and making hit lists.
(b) In this section:
(1) "Harassment" means threatening to cause harm or bodily injury to another student, engaging in sexually intimidating conduct, causing physical damage to the property of another student, subjecting another student to physical confinement or restraint, or maliciously taking any action that substantially harms another student's physical or emotional health and safety.
(2) "Hit list" means a list of people targeted to be harmed, using:
(A) a firearm, as defined by Section 46.01(3), Penal Code;
(B) a knife, as defined by Section 46.01(7), Penal Code; or
(C) any other object to be used with intent to cause bodily harm.
(b-1) The methods adopted under Subsection (a)(8) must provide that a student who is enrolled in a special education program under Subchapter A, Chapter 29, may not be disciplined for conduct prohibited in accordance with Subsection (a)(7) until an admission, review, and dismissal committee meeting has been held to review the conduct.
(c) Once the student code of conduct is promulgated, any change or amendment must be approved by the board of trustees.
(d) Each school year, a school district shall provide parents notice of and information regarding the student code of conduct.
(e) Except as provided by Section 37.007(e), this subchapter does not require the student code of conduct to specify a minimum term of a removal under Section 37.006 or an expulsion under Section 37.007.
(a) The principal or other appropriate administrator may suspend a student who engages in conduct identified in the student code of conduct adopted under Section 37.001 as conduct for which a student may be suspended.
(b) A suspension under this section may not exceed three school days.
NOTE: A suspension may be for a whole or part of a school day. In-school suspension (ISS) does not count as a suspension if the student's IEP is being implemented in the ISS. If a student is placed in ISS for more than 10 school days, a parent should request an ARD meeting to review the student's placement in ISS. This could include requesting a functional behavioral assessment and/or positive behavioral interventions and supports.
NEW: School administrators are now allowed under IDEA to use discretion on whether or not to change the placement of a student with a disability who violates the student Code of Conduct. This means the principal (or other administrator) no longer must apply a local "zero tolerance" policy to a student with a disability, but can use discretion because of the impact of the student's disability. This will hopefully decrease the number of students with disabilities sent to DAEPs because the administrator says he has "no choice."