Dated April 16, 2001

Mr. Perry A. Zirkel

College of Education

111 Research Drive

Bethlehem, PA 18015-4794

Dear Mr. Zirkel:

This is in response to your letter to the Office of Special Education
Programs (OSEP), in which you ask for clarification about the following
scenario you provided regarding Part B of the Individuals with
Disabilities Education Act (IDEA). The scenario is:

> "Mary is an IDEA-eligible student with a full inclusive IEP
> \[individualized education program\]. During the fall semester of the
> school year 1999-2000, she received three suspensions, each for three
> days, as a result of incidents separated from each other by at least
> two weeks. The IEP team meets at the end of the semester, with due
> notice to and participating agreement by the parents, and changes the
> IEP to increase the special education services from itinerant support
> to 50% resource room and to add the related services of one hour of
> counseling per week and one hour of consultation by a behavior
> specialist for a functional behavioral assessment and behavior
> intervention plan. During the first week in February, the principal
> suspends Mary for ten days."

Specifically, you ask in your letter if "the total of Mary's cumulative
days in AY 1999-2000, for determining whether the latest suspension
constitutes a removal, amount to 18 or only 10 days?"

Your question requires a two-part response. It is not clear from your
question whether you are asking whether the suspensions constitute a
change of placement under 34 CFR §300.519, which triggers certain
procedural protections (required under 34 CFR §§300.520 through 300.526)
or whether Mary is entitled to educational services under 34 CFR
§300.121. As a result, we will address both questions. As a preliminary
matter, we note that your scenario uses "days" that we interpret you to
mean school days because of the context in which you use the term in the
above scenario. The regulations at 34 CFR §300.9 define the meaning of
day to be calendar day and the meaning of school day to mean any day,
including a partial day, that children are in attendance at school for
instructional purposes. However, it appears that you intend your
scenario to mean school days. In addition we also interpret "AY" to mean
academic year for the purposes of our response. Based on these
assumptions, the total number of Mary's cumulative days in AY 1999-2000
under both §300.519 and 300.121 are 19 school days in a school year, not
18 or 10.

First, we respond to your question as to what constitutes a disciplinary
"removal" under 34 CFR §300.519. Second, we address whether Mary must be
provided a free appropriate public education (FAPE) during the period
that she is suspended or expelled from school as required under 34 CFR
§300.121 of the Part B IDEA regulations.

While you provided us with information regarding the factors set forth
in the regulation, there are other factors that an IEP team may
determine to be relevant to whether Mary's suspensions cumulatively
constitute a change in placement such that the removal will result in
application of the disciplinary procedures of 34 CFR §300.519 *et seq.*
Under §300.519, a change in placement occurs if:

(1) the removal is for more than 10 consecutive schools days; or

(2) the child is subjected to a series of removals that constitute a
    pattern because they cumulate to more than 10 school days in a
    school year, and amount to a change in placement because of factors
    such as the length of each removal, the total amount of time the
    child is removed, and the proximity of the removals to one another.
    34 CFR § 300.519.

In other words, for purposes of a change in placement, the days of a
suspension must be more than 10 *consecutive* school days. Or,
alternatively, there must be a series of removals within one school year
(that may individually be less than 10 school days) but cumulatively
constitute a pattern based on the described factors and add up to more
than 10 school days in a school year. The regulatory factors affecting
the determination of whether there is a "pattern" under §300.519 are not
exclusive and are only provided as examples. Here, for example, other
factors that the IEP team may determine to be relevant are why Mary was
suspended for each removal and whether there was consideration by the
IEP team that Mary's behavior or actions were not a manifestation of her
disability during any of the four separate suspensions. These factors
may affect whether the removals would constitute a pattern when
considered in the aggregate. Ultimately, it is the IEP team for the
child (or a hearing officer or judge in the event of a disagreement
between the school and the parents) that makes the individual
determination as to whether a series of removals constitutes a pattern
when considered in the aggregate for purposes of 34 CFR §300.519. Thus,
OSEP cannot definitely answer the question you posed regarding Mary's
suspensions.

Secondly, with respect to providing FAPE to children with disabilities
suspended or expelled from school, 34 CFR §300.121 states that a public
agency need not provide services during periods of removal to a child
with a disability who has been removed from his or her current placement
for 10 school days or less in that school year, if services are not
provided to a child without a disability who has been similarly removed.
In the case of a child with a disability who has been removed from his
or her current placement for more than 10 school days in that school
year, the public agency, for the remainder of the removals must provide
services consistent with section 300.121. In other words, services
consistent with section 300.121 must be provided to a child with a
disability, if he or she is suspended or expelled from school for more
than 10 school days in a school year regardless of whether the removal
is more or less than 10 school days. Thus, under your scenario, Mary
must be provided services consistent with section 300.121 on the second
day of her 10 school day suspension that began in the first week of
February because this would be her eleventh day of suspension in the
same school year.

As a final matter, your understanding of OSEP's position as outlined in
our letter to Mr. Bieker dated August 3, 2000, is correct. You confirmed
that the clock does not start again in calculating the number of days of
suspension for purposes of determining a change in placement under
§300.519 or determining whether services must be provided under §300.121
when a child's IEP or placement is revised mid-school year. For example,
if a child is suspended early in a school year, the child's IEP and/or
placement is subsequently revised, and the child is suspended again
later in the same school year, the days the child was suspended prior to
the revision must be considered in calculating the aggregate number of
suspended school days during that school year under both §300.519 and
§300.121.

We hope that you find this explanation helpful. If you need further
assistance, please call Dr. JoLeta Reynolds or Mr. Troy Justesen, at
202-205-5507 or 202-205-9053, respectively.

> Sincerely,
>
> /signed Patricia J. Guard/
>
> Patricia J. Guard
>
> Acting Director
>
> Office of Special Education Programs

cc: Pennsylvania State Special Education Director