Students Rights and Responsibilities Guidance for Parents of Students with Disabilities

Prevention and Early Intervention

School officials understand that some students who have an individualized education program (IEP) and receive special education support can sometimes face special challenges understanding and observing rules of acceptable behavior. If you see your child is struggling with behavior in school, or you are getting reports of problems from the teacher, ask for a parent-teacher conference and talk about what resources might be available to address your concerns. Also, consider:

• Meeting with the school counselor, school psychologist, or school social worker.
• Meeting with the school team that monitors student behavior and success.
• Contacting the FCPS Parent Resource Center for books, videos, and presentations that might be helpful.
• Contacting the FCPS Office of Intervention and Prevention Services.

Functional Behavior Assessment (FBA) and Behavior Intervention Plan (BIP)

When the behavior is interfering with your child’s learning or that of others, or your child has been suspended repeatedly, you or the teacher may ask to schedule an IEP meeting. A school psychologist or behavior intervention teacher may also be asked to participate. The IEP team will discuss the behavior and, working with you, may decide:

• To add goals and services specifically to address the behavior, or
• To do a special evaluation called a functional behavior assessment (FBA) and develop a behavior intervention plan (BIP)
  • FBA: Observations are used to determine when the behavior happens, what else is going on in the room or with other children or adults when it happens, and what seems to increase the chance that it will happen again.
  • BIP: Using this information, the team develops the plan to reduce the problem behavior and replace it with a positive behavior.

Discipline of Students With an IEP

Students with disabilities may be disciplined in the same ways as students without disabilities in most situations. However, some special considerations do apply:

• Any accommodations that might be needed for the student to write a statement will be provided if the student wishes to write down what happened.
• When a disciplinary incident involving a student with an intellectual or developmental disability may result in a suspension of any kind, school staff shall not request a statement from the student until a parent has been provided notice.
• Before deciding to suspend a student or make a referral to the Division Superintendent, the principal shall consult with the student's case manager or another member of the IEP team, review the student's IEP–including any BIP–and take into consideration any special circumstances.

A student with a disability may be suspended for up to 10 days in a school year under the same rules that apply to all students.

Manifestation Determination Review

If a student who receives special education services is suspended for 10 or more days in a school year, FCPS must provide services that enable the student to continue to work in the general education curriculum and progress toward meeting their IEP goals. This may be done through home-based services or another arrangement agreed to by the IEP team. In addition, a manifestation determination review (MDR) must be held as soon as possible, but no later than the 10th day of suspension.

In the event a student with an IEP is referred to the Division Superintendent, the findings of the MDR are sent to the Division Superintendent for consideration before the hearing is held. The MDR team includes the parent and other relevant members of the IEP team, as determined by the parent and the school. The team meets to review the behavior, information about the student’s disability, current IEP, any recent assessments, observations, and other information shared by parents or the school. The team must determine the answers to two questions:

• Whether the conduct was caused by, or had a direct and substantial relationship to, the student’s disability, or
• Whether the conduct was a direct result of the failure to implement the IEP.

If the MDR team answers “yes” to either of the two questions above, the finding is a “manifestation.” If the answer to both questions is “no” then the finding is “not a manifestation.” The findings are sent to the Division Superintendent. If the MDR team determines that the behavior was a manifestation, and did not involve serious harm to a victim or create a threat of serious harm to a future victim, the principal will withdraw the referral to the Division Superintendent and there will be no hearing. If there is a victim or potential victim, a hearing will be held so that suitable safety measures and protective measures may be considered.

• Manifestation: If the MDR team finds that the behavior was caused by, or had a direct relationship to, the disability or that the conduct was a result of a failure to implement the IEP, then the student will be returned to the same school they had been attending, or may be placed in another school where the same services are available unless:
  • The parents and school officials agree to a change in placement. In rare circumstances, and only in cases involving drugs, weapons, or serious bodily injury, the Division Superintendent may assign the student to an interim alternative setting for 45 days without the consent of the parent, pending the outcome of the disciplinary process, in accordance with 8VAC20- 81-160 C.5.
  • The school division institutes an expedited special education due process proceeding to change the student’s placement.
  • The student's IEP team must conduct an FBA as soon as possible if one has not already been conducted or update the existing FBA. Based on the information in the FBA, the IEP team will develop or update a BIP.
• Not a Manifestation: If the MDR team determines the misconduct is not a manifestation of the student’s disability, school officials may consider further discipline in the same manner and for the same duration as for non-disabled students. However, special education services must be provided during the period of suspension and/or expulsion to enable the student to continue participating in the general education curriculum and progress toward meeting the IEP goals.

Special Education Due Process

Parents who disagree with a change in special education placement or the MDR team’s conclusions may request a local administrative review within FCPS. The parents may also request an expedited due process hearing through the Virginia Department of Education according to the VDOE Special Education Procedural Safeguards Requirements. 

Protections for Students Not Currently Eligible for Special Education

At times, a student may not be receiving special education services at the time of the incident but may be eligible for protections given to students with disabilities if the school knew the student might be eligible for special education before the incident occurred. The school is considered to have known the student might be eligible if:

• The parents expressed concern in writing to the teacher or a supervisor that the student might need special education services, or
• The parents requested the student be evaluated for eligibility for special education and related services, or
• The student’s teacher or other school personnel expressed directly to the special education department chair or lead teacher, or that person’s FCPS supervisor, specific concerns about a pattern of behavior demonstrated by the student.

There are two important exceptions to the above. A student will not receive protections for students with disabilities if:

• The parents refused consent to have the student evaluated or refused services, or
• The student was evaluated and determined not to have a disability.

Protections for Students Covered by Section 504 Plans

• A. When a principal recommends a suspension of more than ten school days, initiates a suspension that would accumulate to more than ten school days in a school year, or refers to the Division Superintendent a student with a disability who has been determined to be a student with a disability under Section 504 of the Rehabilitation Act of 1973, the school shall ensure that a knowledgeable committee convenes as soon as possible but not later than ten days after the decision to suspend or recommend reassignment or expulsion. The parent may request additional staff or persons attend the meeting other than those identified by school staff.
• B. The knowledgeable committee shall convene a Causality Hearing to determine whether or not the misconduct has a causal relationship to the student's disability.
  A committee is not required to convene in those situations pertaining to the use or possession of illegal drugs, alcohol, or marijuana where the student currently is engaging in the use of illegal drugs, alcohol, or marijuana.
• C. If it is determined that the misconduct was caused directly by the disability, the student may not be expelled or suspended for more than ten days.
• D. If it is determined that the misconduct was not caused directly by the disability, the student may be disciplined in the same manner as nondisabled peers.
• E. If the student has been suspended repeatedly for similar violations demonstrating a pattern of behavior, the principal shall convene the knowledgeable committee to review the 504 Plan to determine whether additional accommodations or other supports are needed to address the student’s behavior and where necessary conduct a functional behavior assessment or develop a behavior plan.
• F. The student shall not be entitled to receive continuing educational services during any period of suspension or expulsion.
• G. The knowledgeable committee's determination shall be forwarded to the Division Superintendent, who reviews this information in consideration of further disciplinary action.

For full information about the procedures listed above, please refer to Regulation 2601.37P, located in the Appendix.