DOE Dear Colleague Letter Advises Districts To Consider Whether IEPs of Students Experiencing Short-Term Disciplinary Removals Contain Adequate Behavioral Supports

On August 1, 2016, the United States Department of Education’s Office of Special Education and Rehabilitative Services and Office of Special Education Programs issued a Dear Colleague Letter suggesting that, in many cases, a student’s short-term disciplinary removal from the classroom should trigger a school district to consider whether the student’s IEP includes the necessary behavioral supports.

The Individuals with Disabilities Education Improvement Act (IDEA) entitles eligible students with disabilities to a free appropriate public education (“FAPE”) based on each student’s unique needs. In its Dear Colleague Letter, the Department indicates that recent data regarding short-term disciplinary removals from schools “strongly suggest[s] that many children with disabilities may not be receiving appropriate behavioral interventions and supports, and other strategies in their IEPs.” The Department acknowledges that the IDEA authorizes school personnel to implement a short-term disciplinary removal, including an out-of-school suspension, for a student with a disability who violates the school’s code of conduct. The Department also states, however, that when a student experiences behavioral challenges that result in suspensions or other exclusionary disciplinary measures, the IEP team may need to reevaluate the student’s IEP to ensure that the student receives FAPE.

Specifically, the Department advises that if a student’s behavior, including its impact and consequences, impede the student’s learning or that of others, “the IEP Team must consider when, whether, and what aspects of the child’s IEP related to behavior need to be addressed or revised to ensure FAPE.”  The Department further states that, if the team sees a need to revise the IEP but cannot convene a meeting prior to the student’s return to school following the disciplinary removal, the parent and school may agree to not convene an IEP meeting but instead develop a written document to amend or modify the current IEP to provide the student with the necessary behavioral supports upon the student’s return to school. The Dear Colleague Letter also provides examples of various behavioral supports that may be appropriate to add to a student’s IEP, including instruction and reinforcement of school expectations, counseling services, violence prevention programs, and social skills instruction.

The Department also identifies examples of circumstances that may indicate a violation of IDEA, including:

• an IEP Team’s failure to consider the inclusion of positive behavioral interventions and supports in response to behavior that impeded the child’s learning or that of others;
• a school’s failure to schedule an IEP Team meeting to review the IEP to address behavioral concerns after a reasonable parental request;
• a Team’s failure to discuss the parent’s concerns about the student’s behavior and its effects on the student’s learning during an IEP meeting; or
• a failure to implement the behavior supports in a student’s IEP or where school personnel have implemented behavioral supports that are not included in the IEP that are not appropriate for the student.

The Department also cautions that the use of short-term disciplinary removals may indicate that a student’s IEP, or the implementation of the IEP, does not appropriately address the student’s behavioral needs and could result in a denial of FAPE. Thus, the Department advises that where a student experiences a series of disciplinary removals from the current placement – even if for 10 days or fewer – the IEP Team should meet to consider whether there is a need to provide the student with additional or different behavioral supports.

As districts throughout the state prepare to comply with the new requirements of Senate Bill 100, districts should also be mindful of this new guidance and consider convening IEP team meetings to assess the effectiveness of behavioral supports when a student with a disability is subject to an out-of-school suspension.