388.265 - Suspension, expulsion or exclusion of pupil with disability

388.265. Suspension, expulsion or exclusion of pupil with disability

1. A pupil with a disability may not be suspended, expelled or excluded from attendance by a public agency for an incident of misconduct except upon compliance with the provisions of this section, 34 C.F.R. §§ 300.530 to 300.536, inclusive of this regulation, and 20 U.S.C. § 1415(k). School personnel may consider any unique circumstances, including, without limitation, the disciplinary history of the pupil, the ability of the pupil to understand consequences, whether the pupil expresses remorse and whether support was provided before the misconduct, on a case-by-case basis when determining whether to make a change of placement for a pupil with a disability who violates a code of conduct for pupils.

2. Before initiating any suspension, expulsion or exclusion that will result in a change of placement for the pupil during a school year, the public agency shall convene a meeting of relevant members of the committee, as determined by the parent and the public agency, that developed the pupil's individualized educational program pursuant to NAC 388.281. The public agency may appoint other qualified personnel to meet with those relevant members of the committee.

3. The public agency, the parent, the relevant members of the committee and any other qualified personnel appointed by the public agency to meet with the relevant members of the committee shall:

(a) Consider all information relevant to the behavior subject to disciplinary action, including, without limitation:

(1) Evaluations and diagnostic results, including, without limitation, relevant information supplied by the parents of the pupil;

(2) Observations of the pupil; and

(3) The pupil's individualized educational program and placement.

(b) Determine whether the behavior of the pupil was a manifestation of the disability of the pupil. In carrying out the requirements of this paragraph, it must be determined whether the conduct in question was:

(1) Caused by or directly and substantially related to the disability of the pupil; or

(2) The direct result of the public agency's failure to implement the pupil's individualized educational program.

If the public agency, the parent and the relevant members of the committee determine that either subparagraph (1) or (2) is applicable to the pupil, the conduct must be determined to be a manifestation of the disability of the pupil.

(c) Prepare a report containing their findings and conclusions.

4. The public agency shall provide to a pupil with a disability who is suspended, expelled or excluded a free appropriate public education in accordance with 34 C.F.R. § 300.530(d) on the 11th school day that the pupil is removed in the same school year and during any subsequent school day in the same school year in which the pupil is removed from school.

5. A pupil who has not been determined to be eligible for special education and related services and who has engaged in behavior that violates a code of student conduct may assert the protections in this section in accordance with 34 C.F.R. § 300.534.

6. As used in this section, "change of placement" occurs under the circumstances described in 34 C.F.R. § 300.536.

Added to NAC by Bd. of Education, eff. 7-14-88; A 9-13-91; 11-23-93; R039-98, 5-29-98; R085-99, 2-16-2000; R071-05, 2-23-2006; R058-07, 10-31-2007; A by R017-18A, eff. 1-30-2019

NRS 385.080 and 388.419

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