For students with disabilities whose behavior impedes their
learning or the learning of others, strategies, including positive behavioral
interventions and supports to address that behavior must be considered in the
development of their individual educational plans (IEPs). School personnel may
consider any unique circumstances on a case-by-case basis when determining
whether a change in placement, consistent with the requirements and procedures
in this rule, is appropriate for a student with a disability who violates a
code of student conduct.
(1)
Definitions applicable to discipline of students with disabilities. For
purposes of this rule, the following definitions apply:
(a) Change of placement because of
disciplinary removals. For the purpose of removing a student with a disability
from the student's current educational placement as specified in the student's
IEP under this rule, a change of placement occurs when:
1. The removal is for more than ten (10)
consecutive school days, or
2. The
student has been subjected to a series of removals that constitutes a pattern
that is a change of placement because the removals cumulate to more than ten
(10) school days in a school year, because the student's behavior is
substantially similar to the student's behavior in previous incidents that
resulted in the series of removals, and because of additional factors, such as
the length of each removal, the total amount of time the student has been
removed, and the proximity of the removals to one another. A school district
determines on a case-by-case basis whether a pattern of removals constitutes a
change of placement, and this determination is subject to review through due
process and judicial proceedings.
(b) Controlled substance. A controlled
substance is a drug or other substance identified under Schedules I, II, III,
IV or V of the Controlled Substances Act,
21 U.S.C.
812(c) and section
893.02(4),
F.S.
(c) Illegal drug. An illegal
drug means a controlled substance but does not include a substance that is
legally possessed or used under the supervision of a licensed health-care
professional or that is legally possessed or used under any other authority
under the Controlled Substances Act, 21
U.S.C.
812(c) or under any
other provision of federal law.
(d)
Serious bodily injury. Serious bodily injury means bodily injury which involves
a substantial risk of death; extreme physical pain; protracted and obvious
disfigurement; or protracted loss or impairment of the function of a bodily
member, organ, or mental faculty.
(e) Weapon. Weapon means a weapon, device,
instrument, material, or substance, animate or inanimate, that is used for, or
is readily capable of, causing death or serious bodily injury, except that such
term does not include a pocket knife with a blade that is less than two and one
half (2-1/2'') inches in length.
(f) Manifestation determination. A
manifestation determination is a process by which the relationship between the
student's disability and a specific behavior that may result in disciplinary
action is examined.
(g) Interim
alternative educational setting. An interim alternative educational setting
(IAES) is a different location where educational services are provided for a
specific time period due to disciplinary reasons and that meets the
requirements of this rule.
(2) Authority of school personnel. Consistent
with the school district's Code of Student Conduct and to the extent that
removal would be applied to students without disabilities, school personnel
may:
(a) Remove a student with a disability
who violates a code of student conduct from the student's current placement for
not more than ten (10) consecutive school days.
(b) Further remove a student with a
disability for not more than ten (10) consecutive school days in that same
school year for separate incidents of misconduct, as long as those removals do
not constitute a change in placement as defined in this
rule.
(3) Manifestation
determination. A manifestation determination, consistent with the following
requirements, must be made within ten (10) school days of any decision to
change the placement of a student with a disability because of a violation of a
code of student conduct.
(a) In conducting the
review, the school district, the parent, and relevant members of the IEP Team
(as determined by the parent and the school district) must:
1. Review all relevant information in the
student's file, including any information supplied by the parents of the
student, any teacher observations of the student, and the student's current
IEP; and,
2. Determine whether the
conduct in question was caused by, or had a direct and substantial relationship
to the student's disability or whether the conduct in question was the direct
result of the school district's failure to implement the
IEP.
(b) If the school
district, the parent, and relevant members of the IEP Team determine that a
condition in subparagraph (a)2., above, was met, the conduct must be determined
to be a manifestation of the student's disability and the school district must
take immediate steps to remedy those deficiencies.
(c) If the school district, the parent, and
relevant members of the IEP Team determine that the conduct was a manifestation
of the student's disability, the IEP Team must either:
1. Conduct a functional behavioral
assessment, unless the school district had conducted a functional behavioral
assessment before the behavior that resulted in the change of placement
occurred, and implement a behavioral intervention plan for the student;
or
2. If a behavioral intervention
plan already has been developed, review it and modify it, as necessary, to
address the behavior; and,
3.
Except as provided in subsection (6) of this rule return the student to the
placement from which the student was removed, unless the parent and the school
district agree to a change in placement as part of the modification of the
behavior intervention plan.
(d) For disciplinary changes of placement, if
the behavior that gave rise to the violation of a code of student conduct is
determined not to be a manifestation of the student's disability, the relevant
disciplinary procedures applicable to students without disabilities may be
applied to the student in the same manner and for the same duration in which
they would be applied to students without disabilities, except that services
consistent with subsection (5) of this rule must be provided to the student
with a disability.
(e) If a parent
disagrees with the manifestation determination decision made by the IEP Team
pursuant to this rule, the parent may appeal the decision by requesting an
expedited due process hearing as described in subsection (7) of this
rule.
(4) On the date on
which a decision is made to make a removal that constitutes a change of
placement of a student with a disability because of a violation of a code of
student conduct, the school district must notify the parent of the removal
decision and provide the parent with a copy of the notice of procedural
safeguards as referenced in these rules.
(5) Free appropriate public education for
students with disabilities who are suspended or expelled or placed in an IAES.
(a) A school district is not required to
provide services to a student with a disability during removals totaling ten
(10) school days or less in that school year, if services are not provided to
students without disabilities who are similarly removed.
(b) Students with disabilities who are
suspended or expelled from school or placed in an IAES must continue to receive
educational services, including homework assignments in accordance with Section
1003.01, F.S., so as to enable
the student to continue to participate in the general curriculum, although in
another setting, and to progress toward meeting the goals in the student's IEP
and receive, as appropriate, a functional behavioral assessment and behavioral
intervention services and modifications designed to address the behavior
violation so that it does not recur.
(c) After a student with a disability has
been removed from the current placement for ten (10) school days in the school
year, if the current removal is not more than ten (10) consecutive school days
and is not a change of placement under this rule, school personnel, in
consultation with at least one of the student's special education teacher(s),
shall determine the extent to which services are needed so as to enable the
student to continue to participate in the general curriculum, although in
another setting, and to progress toward meeting the goals in the student's
IEP.
(d) If the removal is a change
of placement under this rule, the student's IEP Team determines appropriate
services under paragraph (b) of this subsection.
(6) Special Circumstances and Interim
Alternative Educational Setting (IAES).
(a)
School personnel may remove a student to an IAES for not more than forty-five
(45) school days without regard to whether the behavior is determined to be a
manifestation of the student's disability, if the student:
1. Carries a weapon to or possesses a weapon
at school, on school premises, or to a school function under the jurisdiction
of a state education agency or a school district;
2. Knowingly possesses or uses illegal drugs
or sells or solicits the sale of a controlled substance, while at school, on
school premises, or at a school function under the jurisdiction of a state
education agency or a school district; or
3. Has inflicted serious bodily injury upon
another person while at school, on school premises, or at a school function
under the jurisdiction of a state education agency or a school
district.
(b) On the date
on which a decision is made to make a removal that constitutes a change of
placement because of a violation of a code of student conduct, the school
district must notify the parent of that decision and provide the parent with a
copy of the notice of procedural safeguards as referenced in Rules
6A-6.03011 -.0361,
F.A.C.
(7) Appeal and
Expedited Hearings.
(a) An expedited hearing
may be requested:
1. By the student's parent
if the parent disagrees with a manifestation determination or with any decision
not made by an administrative law judge (ALJ) regarding a change of placement
under this rule; or
2. By the
school district if it believes that maintaining the current placement of the
student is substantially likely to result in injury to the student or to
others.
(b) The school
district may repeat the procedures for expedited hearings if it believes that
returning the student to the original placement is substantially likely to
result in injury to the student or to others.
(c) Expedited due process hearings requested
under this subsection shall be conducted by an ALJ for the Division of
Administrative Hearings, Department of Management Services, on behalf of the
Department of Education, and shall be held at the request of either the parent
or the school district regarding disciplinary actions. These hearings must meet
the requirements prescribed in Rules
6A-6.03011 -.0361, F.A.C.,
except that the hearing must occur within twenty (20) school days of the date
the request for due process is filed and an ALJ must make a determination
within ten (10) school days after the hearing. In addition, unless the parents
and the school district agree in writing to waive the resolution meeting
described herein or agree to use the mediation process set forth in these
rules:
1. A resolution meeting must occur
within seven (7) days of receiving notice of the request for expedited due
process hearing; and,
2. The
expedited due process hearing may proceed unless the matter has been resolved
to the satisfaction of both parties within fifteen (15) days of the receipt of
the request for expedited due process hearing.
(d) The decision of the ALJ rendered in an
expedited hearing may be appealed by bringing a civil action in a federal
district or state circuit court, as provided in Section
1003.57(1),
F.S.
(8) Authority of an
ALJ. An ALJ hears and makes a determination regarding an appeal and request for
expedited due process hearing under this subsection and, in making the
determination:
(a) An ALJ may return the
student with a disability to the placement from which the student was removed
if the ALJ determines that the removal was a violation of this rule or that the
student's behavior was a manifestation of the student's disability;
or
(b) Order a change of placement
of the student with a disability to an appropriate IAES for not more than
forty-five (45) school days if the ALJ determines that maintaining the current
placement of the student is substantially likely to result in injury to the
student or to others.
(c) The
procedures under this subsection may be repeated, if a school district believes
that returning the student to the original placement is substantially likely to
result in injury to the student or to others.
(9) Student's Placement During
Appeals/Expedited Due Process Proceedings. When an appeal under subsection (7)
has been made by either the parent or the school district, the student must
remain in the IAES determined by the IEP team pending the decision of the ALJ
or until the expiration of the time period specified by school personnel,
including expulsion for a student where no manifestation was found, unless the
parent and the Department of Education or school district agree
otherwise.
(10) Protections for
Students not Determined Eligible for Special Education and Related Services. A
regular education student who has engaged in behavior that violated a code of
student conduct may assert any of the protections afforded to a student with a
disability under this rule if the school district had knowledge of the
student's disability before the behavior that precipitated the disciplinary
action occurred.
(a) Basis of knowledge. A
school district is deemed to have knowledge that a student is a student with a
disability if:
1. The parent has expressed
concern in writing to supervisory or administrative personnel of the
appropriate school district, or a teacher of the student, that the student
needs special education and related services;
2. The parent has requested an evaluation to
determine whether the student is in need of special education and related
services; or
3. The teacher of the
student, or other school district personnel, expressed specific concerns about
a pattern of behavior demonstrated by the student directly to the school
district's special education director or to other supervisory school district
personnel.
(b) Exception.
A school district would not be deemed to have knowledge of a disability under
paragraph (a), if:
1. The parent of the
student has not allowed an evaluation pursuant to Rules
6A-6.03011 -.0361, F.A.C., or
has refused special education and related services under Rules
6A-6.03011 -.0361, F.A.C.;
or
2. The school district conducted
an evaluation in accordance with Rules
6A-6.03011 -.0361, F.A.C., and
determined that the student was not a student with a
disability.
(c)
Conditions that Apply if No Basis of Knowledge.
1. If the school district has no knowledge
that the student is a student with a disability prior to disciplinary action,
the student may be disciplined in the same manner as a student without a
disability who engages in comparable behaviors.
2. If an evaluation request is made for the
student during the time period of the disciplinary action, the evaluation must
be conducted in an expedited manner. Until the evaluation is completed, the
student remains in the educational placement determined by school authorities,
which can include suspension or expulsion without educational services. If the
student is determined to be a student with a disability, taking into
consideration information from the evaluation and information provided by the
parents, the school district shall provide special education and related
services consistent with the requirements of this
rule.
(11)
Nothing in this rule prohibits a school district from reporting a crime
committed by a student with a disability to appropriate authorities or prevents
state law enforcement and judicial authorities from exercising their
responsibilities with regard to the application of Federal and State law to
crimes committed by a student with a disability.
(12) Student Records in Disciplinary
Procedures. School districts shall ensure that the special education and
disciplinary records of students with disabilities are transmitted, consistent
with the provisions of Section
1002.22, F.S., and Rule
6A-1.0955, F.A.C.:
(a) For consideration by the person making
the final determination regarding the disciplinary action; and,
(b) For consideration by the appropriate
authorities to whom school districts report crimes.
(13) Disciplinary Records of Students with
Disabilities. School districts shall include in the records of students with
disabilities a statement of any current or previous disciplinary action that
has been taken against the student and transmit the statement to the same
extent that the disciplinary information is included in, and transmitted with,
the student records of nondisabled students.
(a) The statement may be a description of any
behavior engaged in by the student that required disciplinary action, a
description of the disciplinary action taken, and any other information that is
relevant to the safety of the student and other individuals involved with the
student.
(b) If the student
transfers from one school to another, the transmission of any of the student's
records must include both the student's current IEP and any statement of
current or previous disciplinary action that has been taken against the
student.
(14) Suspension
and expulsion rates.
(a) The Florida
Department of Education, will examine data, including data disaggregated by
race and ethnicity, to determine if significant discrepancies are occurring in
the rate of long-term suspensions and expulsions of children with disabilities:
1. Among school districts in the state;
or
2. Compared to the rates for
non-disabled children within the school districts.
(b) If the discrepancies described in
paragraph (a) of this subsection, are occurring, the Department of Education
will review and, if appropriate, revise (or require the affected school
district to revise) its policies, procedures, and practices relating to the
development and implementation of IEPs, the use of positive behavioral
interventions and supports, and procedural safeguards, to ensure that these
policies, procedures, and practices comply with the
IDEA.