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

Special circumstances (Sec. 300.530(g))

Comment: Some commenters recommended requiring that an appropriate permanent placement be in effect at the beginning of the next school year to ensure that a child is not held in the 45-school day interim alternative educational setting for a period that extends into the new academic year.

Discussion: Interim alternative educational settings under section 615(k)(1)(G) of the Act and Sec. 300.530(g) are limited to not more than 45 school days, unless extended by the hearing officer under Sec. 300.532(b)(3) because returning the child to his or her original placement would be substantially likely to cause injury to him or herself or to others. The 45-school day placement in an interim alternative educational setting, unless extended by Sec. 300.532(b)(3), is a maximum time limit for a change in placement to an appropriate interim alternative educational setting. We decline to change the regulations as suggested by the commenters based on the school year ending before a child completes the ordered school day placement in an interim alternative educational setting (in this example 45 school days). There is nothing in the Act or these regulations that precludes the public agency from requiring the child to fulfill the remainder of the placement when a new school year begins as agency personnel have this flexibility under section 615(k)(1)(G) of the Act.

Changes: None.

Comment: Some commenters requested that the regulations clarify that a child's home is not a suitable placement setting for an interim alternative educational setting for a child with a disability removed pursuant to Sec. 300.530 for disciplinary reasons.

Discussion: While the Act does not specify the alternative setting in which educational services must be provided, the Act is clear that the determination of an appropriate alternative educational setting must be selected "so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP." (See section 615(k)(1)(D)(i) of the Act). Further, section 615(k)(2) of the Act provides that the interim alternative educational setting must be determined by the IEP Team. What constitutes an appropriate interim alternative educational setting will depend on the circumstances of each individual case.

Whether a child's home would be an appropriate interim alternative educational setting under Sec. 300.530 would depend on the particular circumstances of an individual case such as the length of the removal, the extent to which the child previously has been removed from his or her regular placement, and the child's individual needs and educational goals. In general, though, because removals under Sec. Sec. 300.530(g) and 300.532 will be for periods of time up to 45 days, care must be taken to ensure that if home instruction is provided for a child removed under Sec. 300.530, the services that are provided will satisfy the requirements for services for a removal under Sec. 300.530(d) and section 615(k)(1)(D) of the Act. We do not believe, however, that it is appropriate to include in the regulations that a child's home is not a suitable placement setting for an interim alternative educational setting as suggested by the commenter. As stated above, the Act gives the IEP Team the responsibility of determining the alternative setting and we believe the IEP Team must have the flexibility to make the setting determination based on the circumstances and the child's individual needs.

Changes: None.

Comment: One commenter expressed concern that the high standard of "serious bodily injury" is unreasonable. The commenter states that school personnel should be given discretion to remove children for a 45 school-day period who have committed assault or otherwise acted dangerously. The commenter stated that the standard for having inflicted "serious bodily injury" would seldom be met without a child being incarcerated. Another commenter stated that the statutory definition of serious bodily injury is too narrow to have much practical value for school purposes since most injuries on school grounds are not related to the use of dangerous weapons. This commenter recommended expanding the definition to include more typical injuries that occur on school property, and not limiting the definition by the language in section 1365(3)(h) of title 18, United States Code.

Discussion: Section 300.530(g)(3) incorporates the new provision in section 615(k)(1)(G)(iii) of the Act that permits school personnel to remove a child to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is a manifestation of the child's disability if the child has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function. Section 615(k)(7)(D) of the Act is clear that the term serious bodily injury has the meaning given the term in section 1365(3)(h) of title 18, United States Code. 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. Nothing in the Act permits the Department to expand the definition of serious bodily injury, as used in Sec. 300.530(g), to include a bodily injury beyond that included in 18 U.S.C. 1365(3)(h). Therefore, we are not amending Sec. 300.530(g)(3).

Changes: None.

Comment: One commenter recommended clarifying the distinction between the removal of a child to an interim alternative educational setting by school personnel for inflicting "serious bodily injury upon another person" (Sec. 300.530(g)(3)) and the removal of the child by a hearing officer because maintaining the child's current placement is "substantially likely to result in injury to the child or others" (Sec. 300.532(b)(2)(ii)).

Discussion: The provision in Sec. 300.530(g)(3), consistent with section 615(k)(1)(G)(iii) of the Act, indicates that school personnel have the discretion to remove a child with a disability who inflicts "serious bodily injury upon another person" from his or her current placement to an interim alternative educational setting for up to 45 school days (defined in 18 U.S.C. 1365(3)(h) as bodily injury), which involve 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. Section 300.530(g)(3) applies to school personnel's unilateral removal of a child from the current educational placement. School officials must seek permission from the hearing officer under Sec. 300.532 to order a change of placement of the child to an appropriate interim alternative educational setting. Hearing officers have the authority under Sec. 300.532 to exercise their judgments after considering all factors and the body of evidence presented in an individual case when determining whether a child's behavior is substantially likely to result in injury to the child or others. Given that the phrase "serious bodily injury," as used in Sec. 300.530(g), has a definitive meaning and the meaning of "substantially likely to result in injury to the child or others" is left to the judgment of the hearing officer, we do not believe further clarification is needed.

Changes: None.