Legal Protections for Special Needs Students Before Discipline and/or Removal

For better or worse, there is no doubt that there has been an increase in discipline and removal issues over the past few years. I often receive phone calls from parents who don’t understand how discipline could be imposed upon their special needs child and/or phone calls from parents who don’t understand how discipline could not be imposed when there student/child was the victim of some action or omission on the part of a special needs child. It is accordingly important for parents, students, administrators, teachers, guidance counselors, and everyone else involved in the process of educating our students to understand that there are special rules that apply when a school district seeks to discipline and/or remove a special needs child.

First, it should be recognized that special needs children must adhere to the same code of conduct as general education students, subject to certain procedural protections recognized under federal and state law. These protections extend to all students who have been classified because of their disability and/or to those students suspected of having a disability. The Individuals with Disabilities Education Act (IDEA) seeks to provide a balance between school safety and every student’s right to a free and appropriate education in the least restrictive environment. Title 14A of our New Jersey Administrative Code reinforces these federal protections while adding additional state-level safeguards to further support the educational rights of students with disabilities.

This unavoidable tension between the safety concerns for other students and right of the classified students to receive a meaningful educational benefit within the least restrictive environment has resulted in the following disciplinary framework for special needs students. School officials may only suspend or remove a student with a disability for up to ten (10) consecutive or cumulative school days in a school year. In-school suspensions may be considered a “removal” for purposes of calculating the ten (10) days unless the student is afforded the following: 1) the opportunity to participate and progress in the general education curriculum, 2) services and modifications specified in the concerned student’s Individualized Education Program (IEP), 3) instruction from certified special education and/or general education teacher, and 4) interaction with peers in accordance with the student’s IEP. The school principal must provide written notice to the parent and case manager for the classified student detailing the rationale for any proposed removal, as well as the proposed length of the removal. It is also required that academic instruction, consistent with the student’s IEP, be provided within five (5) days of any suspension/removal.

Whenever the student has already been removed for ten (10) days and/or when a series of removals, taken together, total more than ten (10) days, any additional removal shall automatically be considered a change of placement for student with a disability. The concerned student’s Child Study Team must then conduct a manifestation determination meeting to determine if the wrongful behavior(s) attributable to the classified student were a manifestation of the student’s disability. If it is determined that the behavior was a manifestation of the student’s disability, no additional discipline can be imposed. The school district may, however, still change the student programming or placement to ensure that the student is still provided with a free and appropriate education in the least restrictive environment. Generally, in these situations, the student is entitled to a Functional Behavioral Assessment (FBA) to develop a Behavioral Intervention Plan (BIP) to limit and/or reduce problematic behaviors moving forward. If it is determined that the behavior was not a manifestation of the student’s disability, the student may still be suspended/removed, so long as they are still provided with educational services in consultation with the case manager and special education teachers for that student. While not required, even when there is a finding that the behaviors were not a manifestation of that student’s disability, the district can still conduct a Functional Behavioral Assessment (FBA) to develop a Behavioral Intervention Plan (BIP) to limit and/or reduce problematic behaviors moving forward. The difference is that no FBA and/or BIP can be required unless the behaviors were found to be a manifestation of the student’s disability.

No manifestation determination meeting is necessary and students with a disability may be removed for up to forty-five (45) days if the student 1) carries a weapon or possesses a weapon at school, on school premises, or at a school function; 2) knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled dangerous substance, while at school, on school premises, or at a school function; or 3) inflict serious bodily injury upon another person while at school, on school premises, or at a school function. In circumstances where students’ actions are likely to result in injury to themselves or others and agreement cannot be reached as to program and placement, the school district may request an expedited due process hearing and court order removing the special needs child. After forty-five (45) days, the student must be returned to the placement as stipulated in their IEP, unless an alternative placement is agreed to by parents and the school district and/or the school district files a subsequent application to extend the time.

The frequent use of short-term informal removals of a student with disabilities may result in the denial of a free and appropriate education when a student is removed for part of the school day without invoking the protection under the IDEA for disciplinary procedures. It is accordingly important that the school district make sure that the student is still receiving services as required by their IEP despite these short-term informal removals through changes to the classroom or program being provided and/or by convening an IEP meeting and addressing necessary revisions to the IEP itself. Removals resulting from psychiatric clearances are also considered informal removals and, as such, academic instruction must be provided by the fifth day and a manifestation determination meeting conducted by the tenth day of any removal resulting from a psychiatric clearance.

N.J.S.A. 18A:46-13.5 governs the use of physical restraint on students with disabilities, while N.J.S.A. 18A:46-13.6 governs the use of seclusion techniques. In general, both the use of restraints and seclusion are limited to emergencies when the student is “… exhibiting behavior that places the student or others in immediate physical danger.” In all instances, restraints and seclusion should be minimized through the inclusion of positive behavioral support in the student’s BIP and IEP. In those instances where it is agreed and/or determined that wrongful behaviors cannot appropriately be addressed within district, the school and parents may seek an appropriate out of district placement for the student.

As a backdrop to all discipline issues involving special needs children, is the requirement contained within the IDEA that disabled students be educated in the “least restrictive environment (LRE).” LRE requires that, to the extent appropriate, a student with disability be educated with peers who are not disabled. Accordingly, whenever appropriate, special needs students should be educated in a general educational classroom, with appropriate supports, rather than segregated from their non-disabled peers. The next least restrictive environment might be to permit the disabled student to be educated with non-disabled peers, with the support of an additional aid or teacher. The next least restrictive environment would be to pull out the special needs students from the general education classroom for certain subjects. The next least restrictive environment would be a self-contained classroom with other students with disabilities, additional teacher support, aids, etc. The next least restrictive environment would be an out of district placement and/or home instruction pending placement.

Home instruction is the most restrictive environment and, as such, should generally not last more than sixty (60) days. Home instruction is supposed to be provided for at least ten (10) hours per week, by providing at least three visits by a certified teacher or teachers on at least three separate days. If home instruction is provided, the district is supposed to maintain a written record of the student’s home instruction, including dates and times during which home instruction is provided; and the teacher providing the home instruction is supposed to be a certified as a teacher of students with disabilities or for the subject of the provided instruction.

In the final instance, when a special needs student is involved, behaviors that might otherwise result in discipline should be addressed in compliance with the substantive and procedural protections afforded special needs students and, as such, with an eye toward remediating rather than disciplining the subject behaviors. Whenever behaviors are manifestations of a disability, a Functional Behavioral Assessment (FBA) should be performed so that an appropriate Behavioral Intervention Plan can be implemented to limit and/or stop the behaviors.

In addition, under certain circumstances, it may be necessary to remove the disabled student from the district entirely. In those situations where district cannot appropriately handle the behaviors of a special needs child within district, all concerned should consider an appropriate out of district placement to address the child’s behaviors and, in so doing, ensure that the disabled child still receives a free and appropriate education in the least restrictive environment. In these situations, the school district can be held financially responsible for tuition, transportation, and related services for the disabled student. “Related services” include supportive services required to assist the child with a disability to benefit from special education, and can include speech and language and audiology services, interpreting services, psychological services, physical and occupational therapy, therapeutic recreation, early identification and assessments, counseling services, rehabilitative counseling, orientation and mobility services, and medical services for diagnostic or evaluation purposes. Related services can also include school health services and school nurse services, social work services in schools, and parent counseling and training.