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U.S. Department of Education: Promoting Educational Excellence for all Americans

Authority to remove students with disabilities to interim alternative educational settings

Sections 300.530(g) through 300.532 incorporate two significant statutory changes relating to the authority of school personnel to remove children with disabilities to interim alternative educational settings. First, the Act now gives school personnel the authority to remove to interim alternative educational settings children who have inflicted serious bodily injury to themselves, or others. Under previous law, school personnel were authorized to remove children to alternative settings only for misconduct involving: 1) the use and possession of weapons; and 2) the knowing possession, sale, or use of illegal drugs or controlled substances. The Act added the commission of serious bodily injury to this list. In cases involving serious bodily injury, school personnel would be able to unilaterally remove children with disabilities to interim alternative educational settings for up to 45 school days without having to request that a hearing officer review the facts to determine whether or not the child is substantially likely to harm him or herself or others. Second, the 45-day rule has changed. Under previous law, students could not be removed to interim alternative educational settings for more than 45 days. Now, under the Act, the comparable time limitation is 45 school days.

Although the addition of serious bodily injury significantly simplifies the process for removing a child who has engaged in such misconduct, the data suggest that the savings from the final regulations will be minimal. Recent Department of Justice data show that "fighting without a weapon" is by far the most common type of serious misconduct engaged in by all students. However, State-reported data suggest that, of the 20,000 instances in 2002-2003 in which children with disabilities were suspended or expelled for longer than 10 days, only 1,200 involved serious bodily injury or removal "by a hearing officer for likely injury." We estimate that approximately 6.947 million children with disabilities will be served during the 2006-2007 school year. Using these data, we project that there would have been approximately 1,283 instances in 2006-2007 in which a school district might have requested approval from a hearing officer to remove a child for inflicting serious bodily injury, if the law had not been changed. Taking into account the time that would have been spent by both relevant school administrators and the hearing officers and their estimated hourly wages (about $125 per hour for hearing officers and $50 per hour for school administrators), we conclude that the unilateral authority afforded school officials under the final regulations produce only minimal savings (less than $1 million).

A much more significant benefit relates to the enhanced ability of school officials to provide for a safe and orderly environment for all students in the 1,283 cases in which school officials would have been expected to seek and secure hearing officer approval for removing a child with a disability to an alternative setting and the other cases in which they might not have taken such action, but where removal of a child with a disability who has caused injury is justified and produces overall benefits for the school.

The change in how days are to be counted (e.g., from "calendar days" under previous law to "school days" under the final regulations) allows school officials to extend placements in alternative settings for approximately two additional weeks. This generates some savings to the extent that it obviates the need for school officials to seek hearing officer approval to extend a child's placement in an alternative setting.

While school personnel are not required to use the new authority to remove children who have inflicted serious bodily injury or to remove children for the total amount of time that is authorized, we acknowledge that it would create additional costs for schools that choose to take full advantage of this authority because of the added costs of providing services in interim alternative educational settings. Using data from a recent GAO study ("Student Discipline: Individuals with Disabilities Education Act" (GAO-01-210)), we estimate that approximately 3,007 children will be removed to an interim alternative educational setting in 2006-2007 for misconduct involving drugs or weapons and at least another 1,283 for misconduct involving serious bodily injury. Although we do not have data on the costs of educating these children in an alternative setting for 45 school days, the Secretary concludes that the costs of doing so will be outweighed by the qualitative benefits to schools associated with ensuring children a safe and orderly environment that is conducive to learning.