The reauthorized Individuals with Disabilities Education Act (IDEA), which was signed into law on Dec. 3, 2004, contains several changes affecting the discipline of students with disabilities. The IDEA 2004 final regulations, published Aug. 14, 2006, reflect discipline-related changes involving:
- the consideration of “unique circumstances” in disciplinary actions;
- disciplinary removal due to “serious bodily injury”;
- provision of services during periods of disciplinary removal;
- notification regarding a discipline-related change of placement; “manifestation determination”; and
- discipline-related “basis of knowledge” for children not determined eligible for special education.
Discipline-related School Removals:
Under IDEA, a free appropriate public education (FAPE) must be made available to all children with disabilities between the ages of 3 and 21, inclusive, including children who have been suspended or expelled from school, as provided in 34 CFR §300.530(d). See 20 USC §1412(a)(1) and 34 CFR §300.101(a).
Therefore, students with disabilities removed from their current placements through suspension or expulsion must continue to receive educational services so as to enable them to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting their Individualized Education Program (IEP) goals. See 34 CFR §300.530(d).
Significant Discrepancy in Suspension and Expulsion Rates:
The Individuals with Disabilities Education Act (IDEA) requires state education agencies to review local educational agency (LEA) data annually to determine if a significant discrepancy in long-term (greater than 10 days) suspension and expulsion rates exists for students with disabilities as a whole and students with disabilities by race or ethnicity. State educational agencies must report their findings in Indicator 4A/B in the State Performance Plan (SPP)/Annual Performance Report (APR), 20 U.S.C 1416(a)(3)(C) and 1412(a)(22).
How Texas implements the analysis:
The Texas Education Agency (Agency) bases the identification of districts for significant discrepancies in the ratest of suspension and expulsion of students with disabilities on the analysis of Public Education Information Management System (PEIMS) data submitted by LEAs.
Identified LEAs are required to complete a self assessment of policies, procedures, and practices related to the discipline of students with disabilities and submit an SPP Assurance to the TEA. The purpose for submitting the SPP Assurance is to ensure that while the LEA’s data may indicate a concern with disciplinary actions, it is not a result of policies, procedures, and practices related to disciplining students with disabilities.
Technical assistance and training on the process for the electronic submission of the SPP Assurance through Region 18 ESC website is available from your regional education service center (ESC).
LEAs must use a self-assessment process to review the development and implementation of IEPs, the use of positive behavioral interventions and supports, and procedural safeguards. LEAs may choose to use the self-assessment resource available on the Texas Behavior Support website (see Resources link). Technical assistance on using the self-assessment resource is available from your regional education service center. Regardless of the self-assessment model chosen, LEAs must maintain all self-assessment documentation at the local level.
Technical assistance and training on discipline and behavior management can be found on the Texas Behavior Support Initiative (TBSI) website. TBSI is designed to build capacity in Texas schools for the provision of positive behavioral support (PBS) to all students. The goal of PBS is to enhance the capacity of schools to educate all students, especially students with challenging behaviors, by adopting a sustained, positive, preventative instructional approach to schoolwide discipline and behavior management. This approach focuses on teaching and encouraging positive schoolwide behavioral expectations and increasing school capacity to support sustained use of empirically validated practices. Your regional ESC has the capacity to provide your LEA with technical assistance, professional development, and support regarding TBSI.
Assessment in Disciplinary Settings
The Individuals with Disabilities Education Improvement Act of 2004 (IDEA 04) Section 612 (a)(16)(A), and associated regulations require children with disabilities to be included in statewide assessments. Comments to the IDEA 04 regulations state that the requirement to participate in statewide assessments “applies to children with disabilities who have been placed in an appropriate interim alternative education setting (IAES) or another setting, or who are suspended” (see comments to 34 CFR §300.530(d) on page 46718). Students who have been removed from their current placements for disciplinary reasons (i.e. suspended, expelled, or otherwise assigned to an IAES or other setting) must participate in all general state and district-wide assessments.
Therefore, students with disabilities who have been suspended or removed from their current placements to some type of alternative placement must take the state or district-wide assessment (unless the IEP provides that the student not take a district-wide assessment for reasons other than the disciplinary removal). In addition, students with disabilities assigned to Juvenile Justice Alternative Education Programs must take the state or district-wide assessment (unless the IEP provides that the student not take a district-wide assessment for reasons other than the disciplinary removal).
Based on the IDEA 04 statute, regulations and federal comments to the regulations, districts should have policies and procedures in place regarding participation in statewide and district-wide assessments of students with disabilities placed in interim alternative education settings, including suspension to a home environment.
Restraint and Time-Out
State regulations are intended to ensure that all students are treated with dignity and respect, as well as educated in a safe environment. Behavior management techniques and /or discipline management practices must be implemented in such a way as to protect the health and safety of the students and others. When the use of physical restraint or time-out is necessary, the state has outlined specific requirements and procedures (see TEC 37.0021 and TAC 89.1053 for further guidance).
Students not Determined Eligible for Special Education (“Basis of Knowledge”)
Students not determined eligible for special education may receive protections for disciplinary purposes under IDEA when a parent has submitted in writing to school personnel their concerns regarding the child’s need for special education and related services (34 CFR §300.534).
A school is considered to have knowledge that a child is a child with a disability if before the behavior that precipitated the disciplinary action occurred: 1) the parent of the child expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services; 2) the parent of the child requested an evaluation of the child; or 3) the teacher of the child, or other personnel of the Local Education Agency (LEA), expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education of the agency or to other supervisory personnel of the agency.
A school would not be considered to have knowledge under IDEA if the parent of the child has not allowed an evaluation of the child or has refused services under IDEA; or if the child has been evaluated and determined to not be a child with a disability under IDEA.
- Written Summary of Restraint Use Sample Form
Districts may use this form to inform parents about the use of restraint and also to assist in the collection of data to be reported through PEIMS.
- Texas Behavior Support Initiative (TBSI)
TBSI is designed to build capacity in Texas schools for the provision of positive behavioral support (PBS) to all students. The goal of PBS is to enhance the capacity of schools to educate all students, especially students with challenging behaviors, by adopting a sustained, positive, preventative instructional approach to school-wide discipline and behavior management.
Technical Assistance and Training
Division of Federal and State Education Policy
1701 North Congress Avenue | Austin, Texas 78701-1494
Telephone: 512.463.9414 | Fax: 512.463.9560