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

Case-by-case determination (Sec. 300.530(a))

Comment: Many commenters requested clarifying the phrase "consider any unique circumstances on a case-by-case basis" in Sec. 300.530(a) and what, if any, unique circumstances should be considered. A few of these commenters requested that the regulations include specific criteria to be used when making a case-by-case determination. Other commenters suggested clarifying that the purpose of a case-by-case determination is to not allow school personnel to remove a child to an interim alternative educational setting for violating a code of student conduct when to do so would seem unjust under the circumstances. Some commenters suggested clarifying that the purpose of a case-by-case determination is to limit, not expand, disciplinary actions for a child with a disability. One commenter expressed concern that permitting school personnel to consider any unique circumstances on a case-by-case basis when determining a change in placement may result in schools applying this provision to cases for which it was not intended, potentially resulting in a denial of FAPE. Other commenters requested clarifying that a child's disciplinary history, ability to understand consequences, and expression of remorse should be factors considered when making a case-by-case determination. A few commenters requested school personnel document any supports provided to a child with a disability prior to the child's violation of a code of student behavior when making a case-by-case determination.

Discussion: We believe that the regulations do not need to be amended to clarify "consider any unique circumstances on a case-by-case basis" because what constitutes "unique circumstances" is best determined at the local level by school personnel who know the individual child and all the facts and circumstances regarding a child's behavior. We believe it would impede efforts of school personnel responsible for making a determination as to whether a change in placement for disciplinary purposes is appropriate for a child if the Department attempted to restrict or limit the interpretation of "consider any unique circumstances on a case-by-case-basis." Factors such as a child's disciplinary history, ability to understand consequences, expression of remorse, and supports provided to a child with a disability prior to the violation of a school code could be unique circumstances considered by school personnel when determining whether a disciplinary change in placement is appropriate for a child with a disability. We believe providing school personnel the flexibility to consider whether a change in placement is appropriate for a child with a disability on a case-by-case basis and to determine what unique circumstances should be considered regarding a child who violates a code of conduct, as provided for under section 615(k)(1)(A) of the Act, will limit the inappropriate removal of a child with a disability from his or her current placement to an interim alternative educational setting, another setting, or suspension. We also decline the commenters' suggestion to regulate further about the case-by-case determination in light of the discretion granted under the Act to school personnel in making this determination.

Changes: None.

Comment: Several commenters expressed concern that Sec. 300.530(a) could be used to justify ignoring a manifestation determination when determining whether a change in placement is appropriate for a child. These commenters stated that the authority of school personnel to consider any unique circumstances on a case-by-case basis could be used to usurp the authority of the group making the manifestation determination and the IEP Team. Some commenters recommended removing the phrase "consistent with the requirements of this section" in Sec. 300.530(a) because it is not included in the Act and limits the individualized disciplinary options that might arise under this authority.

Discussion: Section 300.530(a), consistent with section 615(k)(1)(A) of the Act, clarifies that, on a case-by-case basis, school personnel may consider whether a change in placement, that is otherwise permitted under the disciplinary procedures, is appropriate and should occur. It does not independently authorize school personnel, on a case-by-case basis, to institute a change in placement that would be inconsistent with Sec. 300.530(b) through (i), including the requirement in paragraph (e) of this section regarding manifestation determinations. We are revising Sec. 300.530(a) to clarify that any consideration regarding a change in placement under paragraph (a) of this section must be consistent with all other requirements in Sec. 300.530.

Changes: We have revised Sec. 300.530(a) to refer to the other requirements of Sec. 300.530.

Comment: One commenter recommended changing Sec. 300.530(a) to include the role of the IEP Team when determining whether a change in placement is appropriate for a child with a disability who violates a code of student conduct.

Discussion: We believe Sec. 300.530(a), which follows the language in section 615(k)(1)(A) of the Act, appropriately gives school personnel the authority to determine, on a case-by-case basis, whether a change in placement that is consistent with the other requirements of Sec. 300.530, would be appropriate for a child with a disability who violates a code of student conduct and, therefore, we do not believe it is appropriate to define a role for the IEP Team in this paragraph. There is nothing, however, in the Act or these regulations that would preclude school personnel from involving parents or the IEP Team in making this determination.

Changes: None.

Comment: Some commenters requested clarifying who constitute "school personnel" as used in Sec. 300.530(a).

Discussion: We do not believe it is necessary or appropriate to clarify in these regulations the "school personnel" that may consider whether a change in placement for disciplinary reasons is appropriate for a child because such decisions are best made at the local school or district level and based on the circumstances of each disciplinary case.

Changes: None.

Comment: Several commenters requested that the regulations clarify the meaning of "violates a code of student conduct." The commenters expressed concern that school personnel could use any minor infraction to remove a child.

Discussion: Local school personnel have the necessary authority to protect the safety and well-being of all children in their school and, therefore, are in the best position to determine a code of student conduct that is uniform and fair for all children in their school. We, therefore, do not believe it is necessary or appropriate to clarify in Sec. 300.530(a) the meaning of "violates a code of student conduct."

Changes: None.