WAC 392-172A-05145
Authority of school personnel. (1)
School personnel may consider any unique circumstances on a
case-by-case basis when determining whether a change in
placement, consistent with the other requirements of this
section, is appropriate for a student eligible for special
education services, who violates a code of student conduct.
(2)(a) School personnel may remove a student eligible for
special education who violates a code of student conduct from
his or her current placement to an appropriate interim
alternative educational setting, another setting, or
suspension, for not more than ten consecutive school days to
the extent those alternatives are applied to students without
disabilities under this section, and for additional removals
of not more than ten consecutive school days in that same
school year for separate incidents of misconduct as long as
those removals do not constitute a change of placement under
WAC 392-172A-05155.
(b) After a student has been removed from his or her
current placement for ten school days in the same school year,
during any subsequent days of removal the school district must
provide services to the extent required under subsection (4)
of this section.
(3) When disciplinary changes in placement exceed ten
consecutive school days, and the behavior that gave rise to
the violation of the school code is determined not to be a
manifestation of the student's disability pursuant to
subsection (5) of this section, school personnel may apply the
relevant disciplinary procedures to students eligible for
special education in the same manner and for the same duration
as a district would apply discipline procedures to students
without disabilities, except that services shall be provided
in accordance with subsection (4) of this section.
(4) A student who is removed from the student's current
placement pursuant to subsection (3) or (7) of this
section must:
(a) Continue to receive educational services, that
provide a FAPE, so as to enable the student to continue to
participate in the general education curriculum, although in
another setting, and to progress toward meeting the goals set
out in the student's IEP; and
(b) Receive, as appropriate when a student's removal is
not a manifestation of the student's disability, a functional
behavioral assessment, and behavioral intervention services
and modifications, that are designed to address the behavior
violation so that it does not recur.
(c) The services required by (a), (d), (e), and (f) of
this subsection may be provided in an interim alternative
educational setting.
(d) A school district is only required to provide
services during periods of removal to a student eligible for
special education who has been removed from his or her current
placement for ten school days or less in that school year, if
it provides services to a student without disabilities who is
similarly removed.
(e) After a student eligible for special education has
been removed from his or her current placement for ten school
days in the same school year, if the current removal is for
not more than ten consecutive school days and is not a change
of placement under WAC 392-172A-05155, school personnel, in
consultation with at least one of the student's teachers,
determine the extent to which services are needed, to enable
the student to continue to participate in the general
education curriculum, although in another setting, and to
progress toward meeting the goals set out in the student's
IEP.
(f) If the removal is a change of placement under WAC 392-172A-05155, the student's IEP team determines appropriate
services under (a) of this subsection.
(5)(a) Within ten school days of any decision to change
the placement of a student eligible for special education
because of a violation of a code of student conduct, the
school district, the parent, and relevant members of the
student's IEP team (as determined by the parent and the school
district) must review all relevant information in the
student's file, including the student's IEP, any teacher
observations, and any relevant information provided by the
parents to determine:
(i) If the conduct in question was caused by, or had a
direct and substantial relationship to, the student's
disability; or
(ii) If the conduct in question was the direct result of
the school district's failure to implement the IEP.
(b) The conduct must be determined to be a manifestation
of the student's disability if the school district, the
parent, and relevant members of the student's IEP team
determine that a condition in (a)(i) or (ii) of this
subsection was met.
(c) If the school district, the parent, and relevant
members of the student's IEP team determine the conduct was
manifestation of the student's disability, the school district
must take immediate steps to remedy those deficiencies.
(6) If the school district, the parent, and relevant
members of the student's IEP team determine the conduct was
manifestation of the student's disability, the IEP team must
either:
(a) Conduct a functional behavioral assessment, unless
the school district had conducted a functional behavioral
assessment before the behavior that resulted in the change of
placement occurred, and implement a behavioral intervention
plan for the student; or
(b) If a behavioral intervention plan already has been
developed, review the behavioral intervention plan, and modify
it, as necessary, to address the behavior; and
(c) Except as provided in subsection (7) of this section,
return the student to the placement from which the student was
removed, unless the parent and the school district agree to a
change of placement as part of the modification of the
behavioral intervention plan.
(7) Special circumstances. School personnel may remove a
student to an interim alternative educational setting for not
more than forty-five school days without regard to whether the
behavior is determined to be a manifestation of the student's
disability, if the student:
(a) Carries a weapon to or possesses a weapon at school,
on school premises, or to or at a school function under the
jurisdiction of a school district;
(b) Knowingly possesses or uses illegal drugs, or sells
or solicits the sale of a controlled substance, while at
school, on school premises, or at a school function under the
jurisdiction of a school district; or
(c) Has inflicted serious bodily injury upon another
person while at school, on school premises, or at a school
function under the jurisdiction of a school district.
(8) Notification. On the date on which the decision is
made to make a removal that constitutes a change of placement
of a student eligible for special education because of a
violation of a code of student conduct, the school district
must notify the parents of that decision, and provide the
parents the procedural safeguards notice.
(9) Definitions. For purposes of this section, the
following definitions apply:
(a) Controlled substance means a drug or other substance
identified under Schedules I, II, III, IV, or V in Section
202(c) of the Controlled Substances Act (21 U.S.C. 812(c)).
(b) Illegal drug means a controlled substance; but does
not include a controlled substance that is legally possessed
or used under the supervision of a licensed health care
professional or that is legally possessed or used under any
other authority under that act or under any other provision of
federal law.
(c) Serious bodily injury has the meaning given the term
"serious bodily injury" under paragraph (3) of subsection (h)
of Section 1365 of Title 18, United States Code.
(d) Weapon has the meaning given the term "dangerous
weapon" under paragraph (2) of subsection (g) of Section 930
of Title 18, United States Code.
[Statutory Authority: RCW 28A.155.090, 20 U.S.C. 1400
(c)(12)(C), 20 U.S.C. 1401 (3)(A)(i), and 20 U.S.C. 1401
(30)(C). 11-06-052, § 392-172A-05145, filed 3/1/11, effective
4/1/11. Statutory Authority: RCW 28A.155.090(7) and 42
U.S.C. 1400 et. seq. 07-14-078, § 392-172A-05145, filed
6/29/07, effective 7/30/07.]