Students with disabilities receive extra disciplinary protections that limit a school district’s ability to remove them when their behaviors are related to their disability. The guiding principle behind this legal concept is that children with disabilities should not be punished for behaviors caused by their disabilities. A student with a disability who is removed from school for violations of the school code of conduct for more than 10 days is entitled to a Manifestation Determination Review (or “MDR”). The purpose of an MDR is to determine whether the student’s behavior was related to the student’s disability or whether it was a result of the school’s failure to implement the student’s IEP. If it is determined that the behavior was related to the disability or caused by the failure to implement the IEP, then the discipline is overturned, and in most cases the student must be immediately returned to the student’s placement.

Although the source of the law regarding these protections is the IDEA and state special education regulations, the Office for Civil Rights, the courts, and state regulations all declare that the IDEA disciplinary protections apply equally to students with 504 Plans.1  These procedural protections also apply to students who have not yet been determined to be eligible for special education, but of whom the LEA had knowledge that the child was a child with a disability before the behavior occurred.2  An LEA is deemed to have knowledge that the child is a child with a disability if, before the behavior occurred, (1) the parent requested an evaluation of the child; (2) the parent expressed concern in writing to the student’s teacher or school administration about the student’s need for special education and related services; or (3) the student’s teacher or other school or district staff told school or district supervisory personnel of specific concerns about the student’s pattern of behavior.3

• 1Section 504 regulations require a reevaluation before any significant change in placement, such as a disciplinary removal. The Office for Civil Rights and courts have interpreted this provision as meaning that a Manifestation Determination Review must be held. See Off. for Civ. Rts., U.S. Dep’t of Educ., Supporting Students with Disabilities and Avoiding the Discriminatory Use of Student Discipline under Section 504 of the Rehabilitation Act of 1973 at 18-21 (July 2022).
• 2La. Bulletin 1706 § 534(A).
• 3Id. § 534(B). Where a parent has either refused to provide consent for a special education evaluation or has refused special education services or where the district has evaluated the student and found them ineligible for services, then the student is not protected by the heightened special education disciplinary protections. Id. § 530(C).

A “change of placement,” which is a term of art under the IDEA, triggers an LEA’s responsibility to provide a student with a disability with heightened procedural protections. In general, a change of placement occurs in any disciplinary removal for more than 10 consecutive days such as a long-term suspension or an expulsion.1

A change of placement also occurs when a series of short-term disciplinary removals cumulatively add up to more than 10 school days in a school year and the removals constitute a pattern.2  The IDEA lists several factors to consider when determining whether a series of removals constitutes a pattern: (1) the similarity of the student’s behavior in each incident; (2) the length of each removal; (3) the total amount of time the child is removed; and (4) the proximity of the removals to one another.3  The LEA determines on a case-by-case basis whether a pattern of removals constitutes a change of placement, subject to review in accordance with due process requirements. However, the more similar the behavior and length of removals, as well as the closer in proximity the incidents are, the more likely the removals will be determined to be a pattern.4

Disciplinary removal is any instance in which a student with a disability is removed from the student’s educational placement for disciplinary purposes. As such, it can include in-school suspensions, partial-day removals, and undocumented suspensions (i.e., when a school calls a parent to come pick up a child but does not document it as a removal). In-school suspensions are considered removals unless the student is given the opportunity to continue to appropriately participate in the general curriculum, receive all IEP services and instructional minutes, and participate with nondisabled children to the extent required under the student’s current IEP. Additionally, when transportation is an IEP service (and so has been determined to be necessary for the student to access educational services), a student’s removal from the bus is considered to be a suspension unless transportation is provided in some other way. Because cumulative removals of 10 days may trigger heightened disciplinary protections, it is important to keep track of all these shorter-term removals.

• 134 C.F.R. § 300.536.
• 2Id.
• 3Id.
• 4Id.

When a student with a disability violates the school code of conduct, the school can impose exclusionary disciplinary consequences on the student just as it can on any other student for up to 10 days in a school year.1  However, for any disciplinary action (or pattern of actions) that constitutes a change in placement, the relevant members of student’s IEP team (as determined by the LEA and the parent2 ) must be convened within 10 days of the decision to change the student’s placement.3  This is called a Manifestation Determination Review (“MDR”), the purpose of which is to determine whether the behavior for which the student was disciplined was caused by or related to the student’s disability. The MDR participants must consider all relevant information in the student’s file, including the student’s IEP, teacher observations, and any relevant information provided by the parent.4

At the MDR, the team must answer two questions: (1) whether the conduct that led to the disciplinary action caused by or substantially related to the child’s disability; and (2) whether the conduct that led to the disciplinary action was the direct result of the school’s failure to implement the student’s IEP.5  If the answer to either of these questions is yes, then the behavior is deemed to be a “manifestation” of the disability and the student cannot be removed except for a few special circumstances.6

In order to answer the first question, the team must look at what the behavior was, the nature of the student’s disability, the student’s past behaviors, and any other relevant information. The team should be sure to look back at the student’s most recent evaluation and any other relevant documents to see how the symptoms of the disability were described. This review process should take the whole student into account, not just the student’s listed disability/classification. For example, a student may have a classification of Specific Learning Disability (“SLD”), which in and of itself is not often associated with behavioral manifestations. However, the student may act out due to frustration or an inability to understand or complete the work because of the student’s SLD. In this instance, the behavior should be considered a manifestation of the student’s disability because the behavior is substantially related to the learning disability. 

The second question is whether the conduct was the direct result of the school’s failure to implement the student’s IEP, including any Behavioral Intervention Plan. For example, if the student’s IEP requires that the student have a one-on-one aide to help with behavior, but the aide was not present on the day of the misbehavior, it is likely that the conduct was the direct result of the school’s failure to implement the IEP. If other services designed to respond to the student’s behavior were not in place, such as school social work services or counseling, then it could be said that the conduct was the direct result of the failure to implement the IEP.

As a practical matter, most school districts hold the MDR prior to any expulsion hearing given the short timelines for the MDR and the futility of going through the expulsion hearing process for a behavior that later would be determined to be a manifestation of the student’s disability.  However, several school districts in Louisiana actually hold the expulsion hearing first and then hold the MDR. In these instances, it is important to pay particular attention to timelines as the MDR must be held within 10 school days of the district’s decision to remove the student indefinitely pending an expulsion hearing and the district’s failure to do so should result in the student’s immediate return to the original placement.

• 1La. Bulletin 1706 § 530(B).
• 2The team will include the Officially Designated Representative for the LEA who has the ultimate authority in determining the outcome of the MDR.
• 3La. Bulletin 1706 § 530(E). Guidance from the U.S. Department of Education’s Office of Civil Rights specifies the manifestation determination must be made “before implementing a disciplinary removal that will result in a significant change in placement.” Off. for Civ. Rts., U.S. Dep’t of Educ., Fact Sheet: Supporting Students with Disabilities and Avoiding the Discriminatory Use of Student Discipline Under Section 504 of the Rehabilitation Act of 1973 at 3 (July 19, 2022). This means a student already at 10 days of removal for the school year who is facing a new suspension that is part of the same pattern should have an MDR before the student begins serving any additional days of removal.
• 4La. Bulletin 1706 § 530(E).
• 5Id.
• 6Id. § 530(F). On these exceptions, see Section 8.5.6.

If the IEP team determines that the behavior was a manifestation of the student’s disability, either because the behavior was related to the student’s disability or because the behavior was the direct result of the school’s failure to implement to student’s IEP, then the student cannot be suspended or expelled barring special circumstances.1  Instead, the student must be immediately returned to the placement from which he/she was removed.2  However, parents and the school can agree to a change of placement even if the behavior was a manifestation.3

Additionally, the IEP team must conduct a Functional Behavioral Assessment (“FBA”) and create a Behavioral Intervention Plan (“BIP”) to address the behavior at issue.4  If the student already has a BIP, the school must review and modify it to address how the school can better assist the student with the conduct at issue.5  If the behavior was a direct result of the school’s failure to implement the IEP, then the school must take steps to ensure that the identified deficiencies are remedied immediately.6

If the IEP team determines that the behavior was not a manifestation of the student’s disability, then the student may be subject to the same disciplinary consequences as any other student.7  Practically speaking, this means that the disciplinary decision (i.e., the suspension or expulsion) stands. Note that the student is still entitled to the procedural due process that protects all students (e.g., notice, opportunity to be heard, expulsion hearing).8  However, even though the student may be removed to an alternative setting, the school is still required to provide the student with FAPE.9  The school must also conduct a FBA and provide behavioral intervention services and modifications that are designed to address the behavior violation so that it does not recur.10

• 1On these special circumstances, see Section 8.5.6.
• 2La. Bulletin 1706 § 530(F).
• 3Id. It is important to note here that while sometimes a change in placement may be the outcome that the parent is seeking as the best option for the child, this option is not always posed fairly to parents, and they may feel coerced by the school into agreeing to a change in placement.
• 4Id. For a more complete discussion of FBAs and BIPs, see Section 8.5.5.
• 5La. Bulletin 1706 § 530(F).
• 6Id. § 530(E).
• 7Id. § 530(C).
• 8For more information about these protections, see Section 8.2.
• 9La. Bulletin 1706 § 530(D).
• 10Id.

Functional Behavioral Assessments (FBAs) and Behavior Intervention Plans (BIPs) are two of the most important tools to help address students’ behavior in school. When these assessments and interventions are conducted by knowledgeable professionals and implemented faithfully by the school, they can help significantly reduce a student’s behavior issues and the associated consequences. While FBAs and BIPs are explicitly required after an MDR, they can and should be used any time that a student is having repeated behavior or disciplinary problems and when behavior is interfering with a child’s learning. Parents and attorneys can request an FBA just like any other evaluation, either as part of a student’s full re-evaluation or as a separate assessment outside the ordinary evaluation process.

An FBA is a scientific, data-driven process used by schools to understand the cause of a student’s behavior and the appropriate ways to address the problematic behavior. The basic premise behind an FBA is that all behaviors have a function for the student. The FBA assessment looks at the events that precede and may predict the student’s problematic behavior and the events and actions that follow and maintain the behavior to understand why the student is engaging in that particular behavior. As an example, where a student constantly disrupts his English class, by observing when the behavior occurs and what directly precedes it, one may find that the student is doing it to avoid work that is too hard for him. When the student is removed from the classroom and does not have to complete the work, the student has successfully escaped it, thereby reinforcing the behavior. However, once the school team is able to understand (or at least hypothesize) why the student is engaging in a certain behavior, the team can put in appropriate supports, services, and interventions to address and correct the behavior; these are typically documented in a BIP. 

An FBA should be conducted by a trained school staff person such as a school psychologist or a behavior analyst, not by the student’s classroom teacher or paraprofessional (although these individuals can and should provide input into the process and help collect the data). The FBA must include systematic behavioral observations of the student as well as input from the student’s teachers, parents, and other professionals who work with the student.

A BIP is designed to support the child to stop engaging in the problematic behaviors targeted by the FBA and to teach the student appropriate replacement behaviors. As the name implies, the primary purpose of a BIP is to identify interventions, not punishments, to help the student. Interventions can be designed to alter the student’s environment, minimize the situations or actions that trigger the behavior, and/or give the student an alternative strategy to use when facing the triggering situation. The plan might identify incentives or rewards individualized for the student for the use of appropriate behavior or provide an opportunity for the student to avoid situations that cause anxiety or distress. Interventions should also include changing the responses of the adults who work with the student. The idea is to help provide information and strategies for the adults working with the student to help the student achieve the goals motivating the problem behavior (as identified in the FBA) so that the student will be less likely to engage in those behaviors.

The student’s BIP should be put into writing and then implemented on a consistent basis. Data should be kept to track whether the BIP is working for the student. After a period of time, the team should get together to review the plan. If there are parts of the plan that are not working, the plan should be revised; any parts that are working should be continued.

Importantly, information from the FBA and BIP should be infused into the student’s IEP. Information from the FBA can be included in the IEP sections related to behavior and evaluations, for example. Likewise, a behavior goal should be created in the IEP to match the BIP and the target behavior(s) towards which the student is working.

Even if the circumstances do not warrant an FBA or BIP, if a child’s behavior is impeding the child’s learning or that of others, the IDEA requires that the IEP team consider—and, when necessary to provide FAPE, include in the IEP—the use of positive behavioral interventions and supports (along with  other strategies) to address that behavior.1  This requirement applies to all students with IEPs, regardless of the child’s specific disability or classification. If a student is receiving repeated disciplinary infractions and removals, this may indicate that the child’s IEP needs to include appropriate behavioral supports. A parent or attorney may want to call an IEP team meeting to discuss what aspects of the child’s IEP related to behavior need to be addressed or revised to ensure FAPE. This may include adding related services such as counseling or school social work services. Adding a one-on-one paraprofessional to assist the student with behavior management is another behavior support that could be considered.

• 1La. Bulletin 1706 § 530(D).

Schools can remove a student to an interim alternative educational setting (“IAES”) for up to 45 school days even where a behavior is a manifestation of the student’s disability in three specific circumstances only:1

1. The student carries or possesses a weapon at school, on school premises, or to a school function. A weapon is defined as a “weapon, device, instrument, material or substance, animate or inanimate, that is used for is readily capable of, causing death or serious bodily injury.”2  This definition explicitly excludes a pocketknife with a blade of less than 2½ inches in length.3
2. The student knowingly possesses or uses illegal drugs, or sells or solicits the sale of controlled substances, while at school, on school premises, or to or at a school function.4  This does not include a controlled substance that is legally possessed or used under the supervision of a licensed health care professional.5
3. The student has inflicted “serious bodily injury” upon another person while at school, on school premises, or at a school function. “Serious bodily injury” is defined as bodily injury which involves a 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.6  This is a high burden, and minor injuries such as bruises or scratches do not meet this definition.

In any of these cases, the student may be placed in an IAES to be determined by the IEP team for up to 45 school days even where the behavior was a manifestation of the student’s disability. However, as with a student whose behavior was determined after the MDR not to be a manifestation of the student’s disability, a student placed in an IAES must continue to receive FAPE and an FBA must be conducted (and a BIP developed).7

• 1La. Bulletin 1706 § 530(G).
• 2See 18 U.S.C. 930(g)(2). Under the IDEA and Louisiana special education regulations, the meaning of weapon here is given the same definition as “dangerous weapon” under 18 U.S.C. § 930(g)(2). See La. Bulletin 1706 § 530(I).
• 318 U.S.C. § 930(g)(2).
• 4Under the IDEA and Louisiana special education regulations, a controlled substance is defined as a drug or other substance identified under schedules I­–V of 21 U.S.C. § 812(c)(202)(c). See La. Bulletin 1706 § 530(I).
• 5See id.
• 6The meaning of serious bodily injury here is given the same definition as serious bodily injury under 18 U.S.C. § 1365(h)(3). See La. Bulletin 1706 § 530(I).
• 7Id.

A parent who disagrees with the results of the MDR or with the school’s decision regarding a student’s placement (e.g., removal of the student to an IAES) can file a request for an expedited due process hearing.1  All of the same procedural safeguards that apply to due process hearings apply to the expedited due process hearing, the timelines are just shortened.2  The expedited hearing must occur within 20 school days of the date the due process complaint is filed and the hearing officer must issue a determination within 10 school days after the hearing.3  Additionally, the early resolution meeting must be held within 7 days unless waived by the parties.4  While the due process proceedings are pending, the child must remain in the interim alternative education setting until the hearing officer’s decision is made.5

• 1La. Bulletin 1706 § 532(A). Note that the LEA can also request an expedited due process hearing if it believes that maintaining the student in the current placement is substantially likely to result in injury to the student or others. Id. In this case, the Hearing Officer can order a change of placement of the student to an appropriate IAES for not more than 45 days if the Hearing Officer determines that maintaining the current placement of the student is substantially likely to result in injury to the student or others. Id. § 532(B).
• 2Id. § 532(C); see Section 8.2 on these procedural safeguards.
• 3La. Bulletin 1706 § 532(C).
• 4Id.
• 5Id. § 533.