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

Change of placement because of disciplinary removals (Sec. 300.536)

Comment: A few commenters expressed concern that the requirements in Sec. 300.536 do not account for schools with zero tolerance policies.

Discussion: We believe the provisions in Sec. Sec. 300.530 through 300.536 do account for zero tolerance policies by providing public agencies the flexibility to implement discipline policies as they deem necessary to create safe classrooms and schools for teachers and children as long as those policies are fair and equitable for all children and protect the rights of children with disabilities. If a child with a disability is removed from his or her current placement and placed in an interim alternative educational setting, another setting, or suspended or expelled under the public agency's zero tolerance policy, the disciplinary requirements in Sec. Sec. 300.530 through 300.536 apply. Therefore, we do not believe it is necessary to include language in Sec. 300.536 regarding a public agency's zero tolerance policy as such policies are irrelevant to what constitutes a change in placement for disciplinary removals under the Act.

Changes: None.

Comment: Many commenters recommended removing proposed Sec. 300.536(b) (new Sec. 300.536(a)(2)) regarding a series of removals that constitute a change in placement stating it has no statutory basis.

Discussion: We believe section 615(k)(1)(B) of the Act regarding the authority of school personnel to remove children with disabilities for not more than 10 school days, to the same extent as nondisabled children, provides the statutory basis for proposed Sec. 300.536(b) (new Sec. 300.536(a)(2)). This section of the Act does not permit using repeated disciplinary removals of 10 school days or less as a means of avoiding the normal change in placement protections under Part B of the Act.

Changes: None.

Comment: Numerous commenters recommended removing the reference to manifestation determination in proposed Sec. 300.536(b)(2) (new Sec. 300.536(a)(2)(ii)). Several of these commenters stated that it is unnecessary since the manifestation determination is reserved for removals longer than 10 school days. Some commenters stated if the language in proposed paragraph (b)(1) of this section (new paragraph (a)(2)(i) of this section) that a series of removals constitutes a pattern because the series of removals total more than 10 school days in a school year is going to be retained, proposed paragraph (b)(2) of this section (new paragraph (a)(2)(ii) of this section) should be eliminated because it is excessive and has no basis in the Act. Other commenters found the manifestation determination requirement in proposed paragraph (b)(2) of this section "circular" because requiring a child's behavior to be a manifestation of his or her disability before determining that a change in placement has occurred under proposed paragraph (b)(2) of this section (new paragraph (a)(2)(ii) of this section) and then requiring that a manifestation determination be conducted under Sec. 300.530(e), whenever a child's removal constitutes a change in placement, is redundant and confusing.

Discussion: We agree with the commenters that requiring that a child's behavior must be a manifestation of the child's disability before determining that a series of removals constitutes a change in placement under proposed paragraph (b) of this section (new paragraph (a)(2) of this section) should be removed. We believe it is sufficient for the public agency to conclude that a change in placement has occurred if a child has been subjected to a series of removals that total more than 10 school days in a school year, the behaviors are substantially similar in nature, and such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another support the premise that the series of removals constitute a pattern. However, our removal of the manifestation determination under proposed paragraph (b)(2) of this section (new paragraph (a)(2) of this section) does not eliminate the obligation to conduct a manifestation determination under Sec. 300.530(e) if the public agency's determination is that the series of removals constitutes a change in placement. Section 300.530(e) requires that a manifestation determination be conducted within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct.

Changes: We have restructured proposed Sec. 300.536(b) as follows: Proposed paragraph (b)(1) of this section is redesignated as new paragraph (a)(2)(i); proposed paragraph (b)(2) of this section is redesignated as new paragraph (a)(2)(ii); proposed paragraph (b)(3) of this section is redesignated as paragraph (a)(2)(iii). We also removed from new paragraph (a)(2)(ii) of this section (proposed paragraph (b)(2) of this section) the requirement that a child's behavior must have been a manifestation of the child's disability before determining that a series of removals constitutes a change in placement under Sec. 300.536.

Comment: One commenter recommended revising proposed Sec. 300.536(b)(2) (new Sec. 300.536(a)(2)(ii)) to clarify that the child's behavior must be substantially similar to the child's behavior in "previous" incidents that resulted in the series of removals.

Discussion: Our intent in including new Sec. 300.536(a)(2)(ii) (proposed Sec. 300.536(b)(2)) to these regulations is to assist in the appropriate application of the change in placement provisions in paragraph (a)(2) of this section. We concur with the commenter and believe adding the reference to "previous" incidents provides clarity to the provision that, when determining whether a child has been subjected to a series of removals that constitute a pattern under Sec. 300.536(a)(2), school personnel should determine whether the child's behavior that resulted in the removal is substantially similar to the previous incidents that resulted in the series of removals.

Changes: New Sec. 300.536(a)(2)(ii) (proposed Sec. 300.536(b)(2)) has been amended to reference the child's behavior in "previous" incidents that resulted in the series of removals.

Comment: Many commenters requested the regulations define "substantially similar behavior." Many commenters expressed concern that there is no precedent or statutory support for the use of "substantially similar behavior" and requested explaining the statutory basis for including the provision. One commenter suggested including a provision in proposed Sec. 300.536(b)(2) that substantially similar behaviors must have been recognized by the IEP Team or be included in the IEP as related to the child's disability. One commenter stated that what constitutes "substantially similar behavior" is highly subjective, prone to overuse, and likely to lead to litigation.

Discussion: We are not changing the regulations because, in light of the Department's longstanding position that a change in placement has occurred if a child has been subjected to a series of disciplinary removals that constitute a pattern, we believe requiring the public agency to carefully review the child's previous behaviors to determine whether the behaviors, taken cumulatively, are substantially similar is an important step in determining whether a series of removals of a child constitutes a change in placement, and is necessary to ensure that public agencies appropriately apply the change in placement provisions. Whether the behavior in the incidents that resulted in the series of removals is "substantially similar" should be made on a case-by-case basis and include consideration of any relevant information regarding the child's behaviors, including, where appropriate, any information in the child's IEP. However, we do not believe it is appropriate to require in these regulations that the "substantially similar behaviors" be recognized by the IEP Team or included in the child's IEP as recommended by the commenter. The commenter is correct that what constitutes "substantially similar behavior" is a subjective determination. However, we believe that when the child's behaviors, taken cumulatively, are objectively reviewed in the context of all the criteria in paragraph (a)(2) of this section for determining whether the series of behaviors constitutes a change in placement, the public agency will be able to make a reasonable determination as to whether a change in placement has occurred. Of course, if the parent disagrees with the determination by the public agency, the parent may request a due process hearing pursuant to Sec. 300.532.

Changes: None.

Comment: One commenter requested an explanation of what recourse parents have if they disagree with the public agency's change in placement decision for a child who violates a code of student conduct.

Discussion: If a parent of a child with a disability disagrees with any decision regarding a disciplinary change in placement of a child under Sec. Sec. 300.530 and 300.531, or the manifestation determination under Sec. 300.530(e), the parent may request a due process hearing pursuant to Sec. 300.532.

Changes: None.

Comment: Several commenters requested clarifying who determines whether a series of removals under proposed Sec. 300.536(b) (new paragraph (a)(2) of this section) constitutes a change in placement. One commenter recommended adding in proposed paragraph (b) language from the Analysis of Comments and Changes to current Sec. 300.520 clarifying that any decision regarding whether a pattern of removals constitutes a change in placement must be made on a case-by-case basis by the public agency. (March 12, 1999 (64 FR 12618)).

Discussion: Whether a pattern of removals constitutes a "change in placement" under new paragraph (a)(2) of this section (proposed Sec. 300.536(b)) must be determined on a case-by-case basis by the public agency. We agree it is important to clarify this position in these regulations and is necessary to ensure proper implementation of this section. We are including the language from the Federal Register of March 12, 1999 (64 FR 12618), (as suggested by the commenter.

Changes: A new paragraph (b) has been added to Sec. 300.536 to clarify that the public agency (subject to review through the due process and judicial proceedings) makes the determination, on a case-by-case basis, whether a pattern of removals constitutes a change in placement.