DRTx Discipline Guide for Students with Disabilities – Links and Glossary

The links and glossary below can be used with the new edition of the DRTx Discipline Guide for Students with Disabilities.

Important Links

• Behavioral Intervention Services and Modifications
• Due Process Hearing
• Family Educational Rights and Privacy Act (FERPA)
• Functional Behavioral Assessment
• Mediation
• Office for Civil Rights (OCR)
• Positive Behavioral Interventions and Supports (PBIS)
• Procedural Safeguards
• Section 504 (PDF)
• TEA Complaint
• How to File a TEA Complaint
• TEA Mediation

Background Information

The information below covers applicable programs, processes, laws, and terms.

ARD Meeting

The ARD Meeting

The Admission, Review, and Dismissal Committee, usually referred to as an ARD, meets at least once a year to develop, review and revise your child’s IEP. You are a member of your child’s ARD committee. The ARD Committee should work collaboratively with a goal of reaching agreement by consensus.

Notice of the ARD Meeting

The school must give you written notice at least five (5) school days before the ARD meeting so you can prepare. When a meeting is called with less than 5 days’ notice, parents have the right to waive the 5-day notice requirement and attend the ARD meeting if they want to. The notice should include the purpose, time and place of the ARD meeting, and a list of the people attending.

Rescheduling an ARD Meeting

You should try to attend the ARD meetings. If you want to attend the meeting, but the date, time or place is not convenient for you, ask the school to reschedule the meeting. The school must attempt to schedule the meeting at a time and place agreeable to you and school officials. If you cannot attend the ARD meeting, the school must use other methods, such as telephone conference calls or videoconferences, to give you a chance to participate. However, the school district can hold the ARD meeting without you if you don’t attend and don’t reschedule. NOTE: If the meeting is the annual ARD meeting, the school may have more difficulty rescheduling the meeting, since they must have a meeting by the anniversary date. For instance, if your child’s annual ARD meeting is April 15th, the district must hold the annual ARD meeting by April 15th of the following school year.

Interpreter at the ARD Meeting

At the meeting, you have a right to have an interpreter (e.g., American Sign Language or Spanish) paid for by the school. If you need an interpreter, you must be sure to tell the school before the meeting.

Pre-ARD Meeting

You may want to meet with your child’s teacher(s) or related services provider before the meeting to discuss possible IEP goals and to learn more about the curriculum for your child’s grade level.

For Students Who Are 17+ Years of Age

By age 17, the school district must notify both the student and the parent that all rights given to the parent by IDEA, except the right to receive notice, will transfer to the student at age 18. This notice must be reflected in the student’s IEP. The school should also let the parents know about guardianship and alternatives to guardianship, including supported decision-making.

For Students Who Are 18+ Years of Age

At the time the student reaches the age of 18, the school district must notify in writing the adult student and parent that the parent’s rights have been transferred to the student. The school district must continue to provide parents with notice of the ARD meetings. And, the parent can still assist the student with decisions at the ARD as long as the student likes. Parents wishing to continue being the education decision-maker can seek guardianship. The student could also give the rights over to the parent with a Power of Attorney or sign a Supported Decision-Making Agreement to let the school know that they want their parents’ help making their own decisions.

Members of the ARD Committee

The ARD committee must have, at a minimum, the following members to develop, review or revise an IEP:

• Student’s parents;
• Adult student (age 18 or over) or a younger student when appropriate;
• A school administrator who knows the district’s resources and can commit those resources to your child;
• A special education teacher;
• A regular education teacher ;
• A school psychologist or diagnostician; and
• Others, invited by the parents or school who have knowledge or expertise about the student. This includes related services personnel such as speech therapists or counselors. You may bring a friend or parent advocate along for support.

Members of the ARD committee may be excused

An ARD committee member can be excused from all or part of the meeting if the parent and the school agree that person’s attendance is not required

Before and After the Meeting: A Parent Checklist

(Be sure to keep a copy for yourself.)

• ___ Read your notice to see what issues will be discussed and who will attend.
• ___ Be sure enough time is allotted.
• ___ If necessary, request the meeting be rescheduled at a time you can attend.
• ___ Ask the school to invite any representatives of outside agencies (e.g., ECI, TWC, DADS, etc.) you think should attend.
• ___ Ask the school for copies of any relevant information you do not already have, including:
  • ___ Latest evaluation and any new testing the school has done;
  • ___ Teacher progress notes (if necessary, talk with the teacher(s) and others for information on the student’s progress);
  • ___ TEKS for your child’s age-appropriate grade level;
  • ___ Student Code of Conduct; and
  • ___ Blank IEP forms/any drafts of IEPs the school may have done.
• ___ Gather any reports you have from outside therapists, tutors, consultants or doctors.
• ___ Make a list of your child’s gifts and talents.
• ___ Read the TEKS and list the ones you think your child could learn “as is” or with modifications. Review the the TEKS on the TEA website.
• ___ Make a list of other things you would like your child to learn during the year.
• How is this going to help her? ________________________________
• Will she be able to participate more fully in school life? _________________
• Will she become more independent? _______________________________
• How will her life change or improve? ______________________________
• ___ Review the lists and mark 4-5 things you think are most important for your child. These will be the basis for developing her IEP goals and objectives during the ARD meetings.
• ___ Make a list of her areas of functioning that would increase with assistive technology (communication, mobility, etc.). Be prepared to make request for assistive technology if it is needed.
• ___ Make extra copies of each list to bring to the meeting.
• ___ Decide who you will bring to the ARD meeting.
• ___ Decide if you want to meet with the teacher(s), diagnostician or related services provider before the ARD meeting.
• ___ If you want to tape record the ARD meeting, gather the equipment.

Behavior Intervention Plan (BIP) Discipline

If your child exhibits behaviors that interfere with his or 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.

Functional Behavioral Assessments and Behavior Intervention Plans

You can ask for a “functional behavior assessment” (FBA) to determine why and when your child 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 your child needs so they do not 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, unless the ARD Committee determines it won’t apply. Be sure and read it thoroughly and ask the ARD Committee to make any needed exceptions.

Disciplinary Alternative Education Program (DAEP)

Alternative Education Programs (AEPs) are disciplinary programs or schools. AEPs operated by the school district are Disciplinary Alternative Education Programs (DAEPs). Students with disabilities who are in DAEPs are still entitled to special education services, a full school day of instruction, and access to courses needed for graduation.

In most cases, placement in a DAPE cannot exceed one year unless 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.

Drugs

IDEA defines an “illegal drug” as a controlled substance; but does not include a controlled substance that is “legally possessed or used under the supervision of a licensed health-care professional.” 34 CFR 300.530 (i)(2).

A “controlled substance” means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substance Act (21 U.S.C. 812(c)). 34 CFR 300.530(i)(I).

Independent Education Evaluation (IEE)

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. Any time the school conducts an evaluation you disagree with, you may request an IEE within that year. 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 prove its evaluation was appropriate.

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. For more information, see Independent Evaluations for Special Education.

Juvenile Justice Alternative Education Program (JJAEP)

Alternative Education Programs (AEPs) are disciplinary programs operated by school districts for students who have committed a range of offenses specified in state law and/or the district’s Student Code of Conduct. AEPs operated by the school district are Disciplinary Alternative Education Programs (DAEPs). AEPs operated by the juvenile justice system are Juvenile Justice Alternative Education Programs (JJAEPs). Students with disabilities who are in DAEPs or JJAEPs are still entitled to special education services. Large counties are required to have a JJAEP, but small counties can choose not to have a JJAEP. In small counties that means that students who are not eligible for special education may not receive educational services if expelled.  JJAEPs must still offer a full school day and full school year of instruction. Because JJAEPs serve a larger area, transportation to get to the JJAEP can be a challenge. Some school districts offer transportation, while others do not. If a student is in special education, and needs transportation to get to the JJAEP, they should request special education transportation in their ARD meeting and “disagree” if it is not offered.

Individual Discretion

School administrators are 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. Texas Law requires that schools consider the student’s prior disciplinary history, whether student was acting in self-defense, whether the student had intent to engage in the conduct, whether the student had a disability that substantially impairs the student’s capacity to appreciate the wrongfulness of the student’s conduct, whether the student was homeless and whether the student is in foster careTEC § 37.001(a)(4). This means the principal (or other administrator) may no longer apply a “zero tolerance” policy to a student with a disability, but must use discretion because of the impact of the student’s disability. This applies for any disciplinary decision from a short in school suspension to a long removal in a DAEP or JJAEP.

Manifestation Determination

Before taking disciplinary action that results in a student with a disability having his or her placement changed for more than ten (10) days, the school district must first determine whether the behavior was a manifestation of her disability. It is difficult to find that a student’s misbehavior was a manifestation of his disability because the 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 the school district’s failure to implement the IEP. Manifestation determinations are still not required for removals of less than 10 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 student’s 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 he or 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 behavior 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

Removals of students with disabilities are allowed for up to 45 school days for offenses involving drugs, weapons, serious bodily injury to another person.

Stay Put

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.

Expedited Hearings

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

A request that a student be evaluated (tested) for special education services. A referral should be made in writing and submitted to the principal of the student’s school. A parent, teacher or other professional involved in the education of the student may refer the student for special education services. The school will gather information to decide if the student should be evaluated for special education eligibility. At the referral process, the district must provide you with written information (called “notice”), telling you about the actions the school wants to take regarding your child’s education and your rights. If the school decides to evaluate your child, officials must give you written notice of your rights (procedural safeguards notice) and get your written consent. The evaluation process will not begin until you have consented in writing. If the school does not think your child needs to be evaluated for special education, officials must send you written notice that tells you why they made that decision and what you can do if you disagree.

Resolution Meeting

The school district must convene a resolution session within 15 days of receiving notice that a parent has filed a request for due process hearing with the Texas Education Agency. This is an informal meeting between the parent and the school district to try to resolve the disagreement without going forward to hearing. The meeting includes relevant members of the ARD committee who have knowledge of the facts involved in the dispute and a representative from the school district who has decision-making authority. The resolution session may not include the school district’s attorney unless the parent brings an attorney. The parent and the school district can agree to waive this meeting and/or go to mediation in lieu of, or in addition to, the resolution session.

Serious Bodily Injury

IDEA uses the definition of “serious bodily injury” set forth in the U.S. Criminal Code. 34 CFR 300.530 (i)(3). That provision defines serious bodily injury as bodily injury which involves 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. 18 USC 1365 (h)(3).

Stay Put

If a parent chooses to challenge the school’s evaluation, program, or placement, they can file a request for due process hearing with the Texas Education Agency. IDEA requires the student to remain in the current placement during the hearing and appeals. This is often referred to as the “stay put” provision of the law. In discipline cases where a student has already been removed from the classroom for an interim period, the “stay put” provisions do not apply.

Student Code of Conduct

In Texas, parents are asked to sign a statement that their child will comply with the school district’s Student Code of Conduct. This applies to students with disabilities too, so parents should be sure to read it thoroughly and discuss anything in the Code that might be difficult for their child to follow. The IEP should note any exceptions to the Code of Conduct. that The Code of Conduct must state that consideration is given, as a factor in a decision to order suspension, removal to a disciplinary alternative education program, or expulsion, to:

1. self-defense;
2. intent or lack of intent at the time the student engaged in the conduct;
3. a student’s disciplinary history; or
4. a student’s disability;
5. a student’s foster care status;
6. a student’s homelessness

District Codes of Conduct should specify lengths of placement in disciplinary settings. Some will also lay out alternative approaches like restorative justice. Parents can use the district grievance process to raise concerns about school’s not following the policies in their own codes of conduct.

Suspension

If a school suspends, or removes, a child with a disability from class for more than 10 days in a row, the suspension is called a change in placement. A change in placement can also happen if a child has been suspended for more than 10 days total during the school year and there is a pattern of removals. Before a school district can change a student’s placement for disciplinary reasons, the school must first determine to what extent a child’s disability relates to the conduct or behavior that is causing concern. This is called a manifestation determination review. (See Texas Education Code provision below for more information about suspensions).

§ 37.005. Suspension

1. 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.
2. A suspension under this section may not exceed three school days.

Unique Circumstances

Individual Discretion

School administrators are 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. Texas Law requires that schools consider the student’s prior disciplinary history, whether the student was acting in self-defense, whether the student had intent to engage in the conduct, whether the student had a disability that substantially impairs the student’s capacity to appreciate the wrongfulness of the student’s conduct, the student’s status as a foster child and the student’s homelessness. TEC § 37.001(a)(4). This means the principal (or other administrator) may no longer apply a “zero tolerance” policy to a student with a disability, but must use discretion because of the impact of the student’s disability.

Weapon(s)

The IDEA adopts the definition of “weapon” provided in the U.S. Criminal Code. 34 CFR 300.530 (i)(4).

That provision defines the term “dangerous weapon” as “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 of less than 2 1/2 inches in length.” 18 USC 930(g)(2).

 

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Disclaimer: Disability Rights Texas strives to update its materials on an annual basis, and this handout is based upon the law at the time it was written. The law changes frequently and is subject to various interpretations by different courts. Future changes in the law may make some information in this handout inaccurate.

The handout is not intended to and does not replace an attorney’s advice or assistance based on your particular situation.

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