Individuals with Disabilities Education Act (IDEA): Discipline Provisions in P.L. 105-17
Released: 2004-08-03T00:00:00

Introduction

On June 4, 1997, the Individuals with Disabilities Education Act Amendments of 1997, P.L.105-17 , were signed into law. These amendments are the most comprehensive and significantchanges made to the Individuals with Disabilities Education Act (IDEA) since its enactment in 1975.Several of the most important changes were made regarding the discipline of children withdisabilities. Congress attempted to strike "a careful balance between the LEA's duty to ensure thatschool environments are safe and conducive to learning for all children, including children withdisabilities, and the LEA's continuing obligation to ensure that children with disabilities receive afree appropriate public education." (1)

Although much of the previous statute, case law, regulations and policy guidance was incorporated in the new statutory language, several provisions were added which give schoolsincreased flexibility for dealing with children with disabilities who misbehave. The IDEAAmendments of 1997 allow a school to place a child with a disability in an interim alternativeeducational setting for not more than forty-five days if the student has been involved with drugs orweapons (not just firearms as under previous law). An impartial hearing officer may order a changein placement for a child with a disability to an interim alternative educational placement for up toforty-five days if the hearing officer finds that the school has demonstrated by substantial evidencethat leaving the child in the current placement is substantially likely to result in injury to the childor others. In addition, P.L. 105-17 codifies the previous interpretation by the Department ofEducation that educational services may not cease for children with disabilities who have beensuspended or expelled.

The Department of Education promulgated final regulations under P.L. 105-17 on March 12, 1999 after receiving comments from about 6,000 individuals, public agencies and organizations. (2) The regulatory provisions on discipline were controversial, especially those aspects relating to shortterm suspensions, and these provisions were changed from what the Department had put forth in itsproposed regulations. (3)

Although significant changes were made in the 1997 reauthorization of IDEA, amendments have been proposed since then to further amend the discipline provisions. Several of these havepassed the House or Senate but have not become law. The 108th Congress passed H.R. 1350 in both the House and Senate but conferees have not yet been appointed. Prior to a moredetailed discussion of the 1997 statutory and regulatory changes as well as more recent proposedchanges, it is important to briefly examine the history of IDEA's discipline provisions. (4)

History of IDEA's Discipline Procedures

The manner in which children with disabilities can be disciplined may seem quite complex butthe logic involved is much more apparent when IDEA's history is examined. IDEA was originallyenacted in 1975 as the Education for All Handicapped Children Act, P.L. 94-142 . The primarymotive for its enactment was the fact that children with disabilities often failed to receive aneducation or received an inappropriate education. (5) This lack of education gave rise to numerousjudicial decisions, notably PARC v. State of Pennsylvania, 343 F.Supp. 279 (E.D.Pa. 1972), and Mills v. Board of Education of the District of Columbia, 348 F.Supp. 866 (D.D.C. 1972). Thesedecisions found constitutional infirmities with the lack of education for children with disabilitieswhen the states were providing education for children without disabilities. As a result, the stateswere under considerable pressure to provide such services, and they lobbied Congress to assist them.

In enacting P.L. 94-142 , Congress provided grants to the states to help pay for education for children with disabilities and also delineated specific requirements the states must follow in orderto receive these federal funds. These requirements did not contain a discipline provision per se butrather contained a requirement that if there is a dispute between the school and the parents of a childwith a disability, the child "stays put" in his or her current educational placement until the disputeis resolved using the due process procedures set forth in the statute. The concept of "stay put" wasplaced in the statute to help eliminate the then common discriminatory practice of expelling childrenwith disabilities from school. A revised "stay put" provision remains as law in the current versionof IDEA.

Issues relating to children with disabilities who exhibited violent or inappropriate behavior have been raised for a number of years. In 1988, the question of whether there was an implied exceptionto the stay put rule was presented to the Supreme Court in Honig v. Doe, 484 U.S. 305 (1988). Honig involved emotionally disturbed children one of whom had choked another student withsufficient force to leave abrasions on the child's neck and who had kicked out a window while hewas being escorted to the principal's office. The other child in the Honig case had been involvedin stealing, extorting money and making lewd comments. The school had sought expulsion but theSupreme Court disagreed finding that "Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionallydisturbed students, from school." (6) However, theCourt observed that this holding did "not leaveeducators hamstrung....Where a student poses an immediate threat to the safety of others, officialsmay temporarily suspend him or her for up to 10 school days....And in those cases in which theparents of a truly dangerous child adamantly refuse to permit any change in placement, the 10-dayrespite gives school officials an opportunity to invoke the aid of the courts under section 1415(e)(2),which empowers courts to grant any appropriate relief." (7) This statement about the school's right toseek judicial relief has come to be know as a Honig injunction.

The Supreme Court's interpretation of IDEA in Honig did not quell all concerns about discipline and children with disabilities. In 1994, Congress amended IDEA's stay put provision togive schools the unilateral authority to remove a child with a disability to an interim alternativeeducational setting if the child was determined to have brought a firearm to school. This provisionwas expanded upon in the IDEA Amendments of 1997 to include weapons, not just firearms, anddrugs.

The Department of Education had also received numerous questions from schools about discipline and in 1995 issued a memorandum discussing numerous discipline issues including theuse of manifestation determinations. (8) If a schoolsought to suspend or expel a child with a disabilityfor more than ten days, the school must first make a "manifestation determination," a determinationconcerning whether the student's misconduct was related to his or her disability. If the behavior wasnot related to the disability, the school could suspend or expel for more than ten days but mustcontinue to provide education services. If the behavior was related to the disability, the school mustgive notice of any recommended change in placement and, if the parent objected, the parent couldinvoke the stay put provision. The Department found that Honig injunctions, court orders to changethe placement of a child with a disability, were proper when a school believed that maintaining thechild in his or her current placement was "substantially likely to result in injury to the student orothers." The concept of a manifestation determination was placed in statutory language by P.L.105-17 . Similarly, the new statutory language continues the regulatory interpretation thateducational services cannot cease for children with disabilities even if they have been suspended orexpelled.

Discipline Provisions in the IDEA Amendments of 1997

With the preceding background in mind, the specific changes made by P.L. 105-17 will nowbe examined. First, however, it should be emphasized that much of what Congress intended to dowas to codify existing law that was found in the regulations, case law, and policy guidance. Thechanges that were made were among the most contentious in a long and controversialreauthorization. The House and Senate reports described the changes in general.

The committee recognizes that school safety is important to educators and parents. There has been considerable debate and concern about both ifand how those few children with disabilities who affect the school safety of peers, teachers, andthemselves may be disciplined when they engage in behavior that jeopardizes such safety. Inaddition, the committee is aware of the perception of a lack of parity when making decisions aboutdisciplining children with and without disabilities who violate the same school rule or code ofconduct. By adding a new section 615(k) to IDEA, the committee has attempted to strike a carefulbalance between the LEA's duty to ensure that school environments are safe and conducive tolearning for all children, including children with disabilities, and the LEA's continuing obligationto ensure that children with disabilities receive a free appropriate public education. Thus, drawingon testimony, experience, and common sense, the committee has placed specific and comprehensiveguidelines on the matter of disciplining children with disabilities in this section. (9)

Generally, a child with a disability is not immune from disciplinary procedures; however, theseprocedures are not identical to those for children without disabilities. If child with a disabilitycommits an action that would be subject to discipline, school personnel have several options. Theseinclude

a suspension for up to ten days,

placement in an interim alternative education setting for up to forty five days for situations involving weapons or drugs, and

asking a hearing officer to order a child be placed in an interim alternative educational setting for up to forty five days if it is demonstrated that the child is substantially likelyto injure himself or others in his current placement,

conducting a manifestation determination review to determine whether there is a link between the child's disability and the misbehavior. If the child's behavior is not amanifestation of a disability, long term disciplinary action such as expulsion may occur, except thateducational services may not cease.

School officials may also seek a Honig injunction as discussed previously if they are unable to reach agreement with a student's parents and they feel that the new statutory provisions are not sufficient.

The Ten Day Rule

School personnel can order a change in placement for not more than ten days to an appropriate interim alternative educational setting, another setting or suspension to the same extent that theseoptions would be applied to children without disabilities. This new provision in P.L. 105-17 codifieswhat was existing practice. The Supreme Court in Honig v. Doe , supra, had allowedten-daysuspensions under the prior law.

However, the new statutory language does not state whether the ten days are ten days for theschool year or ten consecutive days and this became a point of controversy in the proposedregulations. The final regulations responded to this criticism with a compromise. School personnelmay order the removal of a child with a disability from the child's current placement for not morethan ten consecutive school days for any violation of school rules to the extent that the same removalwould be applied to children without disabilities. (10) In addition, the school may remove a child witha disability for periods of not more than ten consecutive school days in the same school year for otherincidents of misconduct as long as these removals do not constitute a change in placement asdescribed in ï¿½300.519(b). Section 300.519(b) states that a change in placement occurs if "the childis subjected to a series of removals that constitute a pattern because they cumulate to more than 10school days in a school year, and because of factors such as the length of each removal, the totalamount of time the child is removed, and the proximity of the removals to one another."

For suspensions after suspensions for the first ten days of the school year, the final regulations state that schools must provide services to the extent necessary to enable the child to appropriatelyprogress in the general curriculum and meet the child's IEP (individualized educational placement)goals. (11) If the child is removed for not more thanten consecutive days and there is not a change inplacement, the school personnel make the determination of which services are necessary. (12) If thereis a change in placement, certain obligations are triggered for the LEA. The IEP team must meet anddevelop a behavior assessment plan, (13) manifestation determinations are required, (14) andcertainservices to meet the FAPE requirement must be provided. (15)

School Initiated Interim Alternative Educational Placements

A major change made by P.L. 105-17 was the expansion of when an interim alternative educational placement can be used. Under prior law, school officials could make such a placementonly when a student carried a firearm to school or a school function. The IDEA Amendments of1997 expand upon this authority to allow schools to make such a placement not only for firearms butfor weapons (16) and drugs. P.L. 106-25 , theEducation Flexibility Partnership Act of 1999, made atechnical amendment to this provision clarifying that the schools may remove a child who haspossession of a weapon at school and is not limited to situations where a weapon is carried to school. The appropriate interim alternative education setting is to be determined by the child'sindividualized education program (IEP) team.

An important addition made by P.L. 105-17 concerns behavior intervention plans. Within ten days after deciding to move a child with a disability to an interim alternative educational setting, ifthere was not already a functional behavior assessment and a behavioral intervention plan, the localeducation agency must convene an IEP meeting to develop an assessment plan. If there was alreadya behavior intervention plan, the IEP team is to review and, if necessary, modify the plan. (17) Thisrequirement is in addition to the new statutory provision providing that in developing a child's IEP,where a child's behavior impedes his or her learning or the learning of others, the IEP team shallconsider, when appropriate, strategies, including positive behavioral interventions, and supports toaddress the behavior. (18)

Hearing Officer Initiated Interim Alternative Educational Placements

A new situation where an interim alternative educational placement may be used was added by P.L. 105-17 . Under certain circumstances, an impartial hearing officer may order a change inplacement to an interim alternative educational setting for not more than forty-five days. The hearingofficer must: determine that the school has demonstrated by substantial evidence that maintaininga child's current placement is "substantially likely to result in injury" to the child or others; considerthe appropriateness of the child's current placement; consider whether the public agency has madereasonable efforts to minimize the risk of harm in the child's current placement; determine that theinterim alternative educational setting has been selected so as to enable the child to continue toparticipate in the general curriculum and to continue to receive those services and modifications thatwill enable the child to meet the goals set out in his or her IEP; and determine that the interimalternative educational placement shall include services and modifications designed to address thebehavior that led to the disciplinary action so that the behavior does not reoccur. (19)

Manifestation Determination Review

As was noted previously, the concept of a manifestation determination originated in policy interpretations of IDEA by the Department of Education. The theory is that when behavior, eveninappropriate behavior, is caused by a disability, the response of a school must be different that whenthe behavior is not related to the disability. P.L. 105-17 codifies this requirement by mandating thata determination regarding the relationship between a child's disability and his or her behavior mustbe made by the IEP team in certain circumstances. These circumstances, as specified in the statute,are when school personnel contemplate ordering a change in placement for disciplinary reasons toan interim alternative educational setting for not more than forty-five days; when a hearing officercontemplates ordering a change in placement for disciplinary reasons; or if a disciplinary actioninvolving a change in placement of more than ten days is contemplated for a child with a disabilitywho has engaged in any other behavior that has violated a school's rule or conduct of conduct. (20)

If the child's behavior is related to his or her disability, the school may review the child's placement and, if necessary, initiate a change in the child's placement. The school also has theoption of suspending the child for ten school days or less and seeking a Honig injunction.

If the child's behavior is not related to his or her disability, the relevant disciplinary procedures that are applicable to children without disabilities may be applied to the child in the same mannerin which they would be applied to children without disabilities except that a free appropriate publiceducation must be made available to the child even if he or she is expelled or suspended. Parentshave a right to request a hearing if they disagree with the determination that the child's behavior wasnot a manifestation of the child's disability or with any decision concerning placement. In thesecases, there shall be an expedited hearing. (21)

In order to find that a child's behavior was not related to his or her disability, the IEP team must consider all relevant information and must make three determinations. First, the IEP team must findthat in relation to the behavior in question, the child's IEP and placement were appropriate and thespecial education services and behavior intervention strategies were provided according to the child'sIEP and placement. Second, the IEP team must find that the child's disability did not impair thechild's ability to understand the impact and consequences of the behavior subject to disciplinaryaction. Finally, the IEP team must find that the child's disability did not impair the ability of thechild to control the behavior subject to the disciplinary action. (22)

Child's Placement During Appeals

If the parents request a hearing regarding a disciplinary action involving an interim alternative educational setting or manifestation determination, their child with a disability shall remain in theinterim alternative educational setting. This placement is where the child stays until the hearingofficer's decision or until the expiration of the specified time periods unless the parents and the LEAor SEA agree otherwise. (23) If the child is placedin an interim alternative educational setting for morethan ten days and the school wants to change the child's placement after the time in the interimalternative educational setting, and if the parents challenge the proposed placement, the child staysput in the placement the child was in prior to the interim alternative educational placement. (24) Ifschool personnel feel that this would be dangerous, there may be an expedited hearing. (25)

The final regulations reiterate the statutory language and make clear that the expedited hearing procedure may be repeated. (26) In addition, the finalregulations note that "if the decision of a hearingofficer in a due process hearing conducted by the SEA or a State review official in an administrativeappeal agrees with the child's parents that a change of placement is appropriate, that placement mustbe treated as an agreement between the State or local agency and the parents for the purposes ofparagraph (a) of this section." (27) Paragraph (a) isthe regulatory recitation of the stay put requirement.

Continuation of Educational Services

One of the most controversial aspects of the discipline issue during the reauthorization of IDEA involved the cessation of educational services for children with disabilities. IDEA has from itsinception required that each state receiving funds have in effect a policy that assures all children withdisabilities the right to a free appropriate public education (FAPE). P.L. 105-17 added to thisrequirement, indicating that it includes "children with disabilities who have been suspended orexpelled from school." (28)

The statutory addition tracked the interpretation of the law by the Department of Education's Office of Special Education Programs (OSEP) (29) which had been criticized as being beyond thescope of IDEA's statutory language. Previously, the state of Virginia refused to comply with theOSEP interpretation. This led to several judicial decisions and the Fourth Circuit Court of Appealsfound that the plain language of IDEA did not condition the receipt of IDEA funds on the continuedprovision of educational services to expelled children with disabilities and that in order for Congressto place conditions on the state's receipt of federal funds, Congress must do so clearly andunambiguously. (30) The clear signal sent toCongress by the courts was that if Congress wanted toavoid judicial controversies and impose a requirement that educational services cannot cease forchildren with disabilities, it should amend the statute to do so. Congress responded by adding thequalifying phrase to the FAPE requirement in P.L. 105-17 indicating that FAPE extends to childrenwith disabilities who have been suspended or expelled.

The Department of Education's final regulations addressed the meaning of the new FAPE language when read in connection with the rule on ten day suspensions. The final regulationsinterpreted the statute as not requiring services during the first ten days a child is removed fromschool (31) but for subsequent suspensions, schoolsare required to provide certain services. (32)

Children who are not yet Eligible for Special Education and Related Services

One of the situations Congress sought to address during the reauthorization concerned children who were the subject of a disciplinary action and who alleged after the action occurred that they weredisabled and thus entitled to the protections of IDEA. (33) P.L. 105-17 allows such a child to assert theprotections of IDEA if the local educational agency had knowledge that the child was a child witha disability before the behavior that precipitated the disciplinary action occurred. The lawspecifically states that the LEA is deemed to have such knowledge if

the parent of the child has expressed concern in writing (unless the parent is illiterate or has a disability that prevents such expression) to personnel of the agency that the childis in need of special education and related services;

the behavior or performance of the child demonstrates the need for such services;

the parent of the child has requested an evaluation of the child; or

the teachers of the child or other LEA personnel have expressed concern about the behavior or performance of the child to the special education director or to other personnel of theagency. (34)

This last category caused some concern among school officials who feared that it would indicate that the LEA had knowledge that the child was a child with a disability if there were casualhallway comments. In the final regulations, the Department of Education stated that this concernhad to be expressed to the director of special education "or to other personnel in accordance with theagency's established child find or special education referral system." (35)

Law Enforcement and Judicial Entities

Prior judicial decisions also gave rise to the issue of when children with disabilities could be referred to law enforcement officials. (36) P.L.105-17 specifically states that nothing in Part B of IDEAshall be construed to prohibit an agency from reporting a crime committed by a child with adisability to appropriate authorities or to prevent state law enforcement and judicial authorities fromexercising their responsibilities. (37)

Transfer of Disciplinary Information

The IDEA Amendments of 1997 also provide for the transfer of disciplinary information on a child with a disability since it was felt that there was an increased possibility of violence when alocal school system was not adequately informed about the child's past. The Amendmentsspecifically allowed a state, at its discretion, to require a local educational agency to include astatement of any current or previous disciplinary actions that have been taken against a child witha disability, in the records of the child. The statement can include a description of the behavior thechild engaged in, a description of the disciplinary action taken, and other information that is relevantto the safety of the child and other individuals. This information can be transmitted to the sameextent that such information would be transmitted with the records of children who do not havedisabilities. (38) In the final regulations, theDepartment of Education discussed the relationship of thisprovision to the Family

Educational Rights and Privacy Act (FERPA) and found that IDEA permits transmission of records only to the extent permitted by FERPA. (39)

Proposed Amendments to IDEA Discipline Provisions Since 1997

Legislation Prior to the 108th Congress.

Although Congress described its 1997 changes to discipline provisions as a "careful balance," itwas not long before amendments to change the provisions surfaced. Amendments were offered to H.R. 1 , 107th Cong., and its companion bill, S. 1 . (40) Both these amendmentspassed their respective Houses but the conference committee did not include them as part of the finallegislation which became P.L. 107-110 .

Representative Norwood described his amendment to H.R. 1 as allowing "special needs students to be disciplined under the same policy as nonspecial needs students in the exact samesituation." (41) Essentially the amendment wouldhave eliminated the mandated provision ofeducational services to children with disabilities who have been suspended or expelled for actionsinvolving drugs, weapons, or aggravated assault or battery in a state that does not require educationalservices in that situation for children without disabilities.

The amendment offered by Senator Sessions to S. 1 , like the House amendment, would have implemented uniform disciplinary policies regarding the discipline of children withdisabilities in certain circumstances. The Senate amendment was not limited to specific disciplinarysituations like those involving weapons but would have amended IDEA by adding a new subsectionrelating to uniform policies on discipline when the behavior at issue is not a manifestation of thechild's disabilities, providing for certain procedural protections, and providing for alternativeplacements of children with disabilities in certain situations.

In 1999 the Senate passed S. 254 , 106th Cong., the Violent and Repeat Juvenile Accountability and Rehabilitation Act of 1999, and the House passed H.R. 1501 , 106thCong., the Child Safety and Protection Act, both of which contained amendments to IDEA. Theseamendments would have changed section 615 of IDEA to eliminate IDEA's different disciplinaryprocedures for children with disabilities in certain situations. In the Senate the amendment appliedto children with disabilities who carry a gun or firearm while in the House the amendment wouldhave covered a weapon. These amendments were not enacted. (42)

Two amendments relating to children with disabilities were offered and accepted during House Education and Workforce Committee markup of H.R. 4141 , 106th Cong., theElementary and Secondary Education Act Amendments. One amendment, offered by RepresentativeNorwood, concerned the discipline of a child with a disability who carries or possesses a weapon. The other amendment, offered by Representatives Talent, McIntosh and Tancredo, concerned thediscipline of a child with a disability who knowingly possesses or uses illegal drugs at school orcommits an aggravated assault or battery at school. These amendments were not enacted. (43)

Legislation in the 108th Congress.

In the 108th Congress, the IDEA reauthorization bills both included amendments that would change the current law relating to the discipline of children with disabilities. H.R. 1350 ,108th Congress, passed the House on April 30, 2003. On May 13, 2004, the Senate incorporated S. 1248 in H.R. 1350 and passed H.R. 1350 in lieu of S. 1248 . Conferees have not yet been appointed. (44)

Both House and Senate bills would keep the ability of school personnel to suspend a child with a disability for up to ten school days but they differ regarding other changes in placement. The Housebill would delete many of the provisions in current law while the Senate bill would make somerevisions. The House Report states that "(t)he discipline improvements in the bill provide for auniform school discipline code and substantially reduce the confusion and complexity of the currentsystem." (45) Under H.R. 1350 (House), schoolpersonnel would be able to order a changein placement of a child with a disability who violates a code of student conduct to an appropriateinterim alternative educational setting selected so as to enable the child to continue to participate inthe general education curriculum and to progress toward IEP goals for not more than 45 school days(to the extent such alternative and such duration would be applied to children without disabilities).In addition, this action "may include consideration of unique circumstances on a case-by-case basis." H.R. 1350 (House) specifically states that this change in placement could last beyond45 school days if required by state law or regulation for the violation in question, to ensure the safetyand appropriate educational atmosphere in the schools.

The Senate report describes the Senate changes regarding discipline as making the procedures "simpler, easier to administer, and more fair to all students." (46) The Senate bill would change thecurrent law relating to interim alternative educational settings by adding a provision allowing schoolpersonnel to remove a student to an interim alternative educational setting for not more thanforty-five days, regardless of whether the behavior is determined to be a manifestation of a disability,where a child with a disability has committed serious bodily injury upon another person while atschool or at a school function under the jurisdiction of a state or local educational agency. (47) H.R. 1350 (Senate) would require that the LEA notify the parents of the decision to takedisciplinary action and all the procedural safeguards available under section 615, not later than thedate on which the decision to take disciplinary action is made.

Both House and Senate bills would provide that when a child with a disability is removed from his or her current placement pursuant to these authorities, the child continue to receive educationalservices so as to enable the child to continue to participate in the general educational curriculum andto progress toward meeting the IEP goals. Both the House and Senate bill also contain provisionsrelating to the receipt of behavioral intervention services.

Under H.R. 1350 (Senate), a hearing may be requested by the parent of a child with a disability who disagrees with any decision regarding disciplinary action, placement or themanifestation determination under this subsection, or by a LEA that believes the maintenance of thecurrent placement of the child is substantially likely to result in injury to the child or others. Asprovided in current law, H.R. 1350 (Senate) also would allow a hearing officer to ordera change in placement for a child with a disability to an appropriate interim alternative educationalsetting for not more than forty-five school days if the hearing officer determines that maintaining thecurrent placement of the child is substantially likely to result in injury to the child or to others.

One of the significant differences between the House and Senate bills concerns the use of a manifestation determination. H.R. 1350 (House) would delete the requirement in currentlaw that a determination be made concerning whether a child's action was a manifestation of his orher disability and also would delete the provision in current law that if the child's behavior was nota manifestation of the child's disability, the relevant disciplinary procedures applicable to childrenwithout disabilities may be applied to the child in the same manner in which they would be appliedto children without disabilities, except that educational services may not cease. H.R. 1350 (Senate) would keep the concept of a manifestation determination but contains revisedlanguage. Manifestation determinations do not have to be conducted prior to taking a disciplinaryaction for ten consecutive school days or less or for a removal in cases involving weapons, drugs,or serious bodily injury. In other situations, the Senate bill would require that within ten school daysof any decision to change the placement of a child with a disability because of a violation of a codeof student conduct, the IEP team shall review all relevant information in the student's file, anyinformation provided by the parents, and teacher observations to determine: (1) if the conduct inquestion was the result of the child's disability; or (2) if the conduct in question resulted from thefailure to implement the IEP or develop and implement behavioral interventions. If either of thesetwo conditions is applicable, the Senate bill provides that the conduct is determined to be amanifestation of the child's disability.

One of the key provisions of IDEA concerns where a child with a disability shall be placed during the pendency of a due process proceeding. The House and Senate bills do not change thegeneral stay put provision in current law which requires that a child remain in his or her then currenteducational placement during the pendency of due process procedures; however, there are somechanges regarding stay put for placements during appeals regarding a disciplinary action, the interimalternative educational setting, or the manifestation determination. Both the House and Senate billswould make changes to the current law regarding placement of a child with a disability during theseappeals by a parent. Generally, as in current law, both bills would require that the child remain inthe interim alternative educational setting pending the decision of the hearing officer or until theexpiration of the time period provided, unless the parent and the state or local educational agencyagree otherwise. H.R. 1350 (Senate) differs from current law and provides for the childwith a disability to remain in the interim alternative education setting pending the decision of thehearing officer or the expiration of the time period in the following situations: when a parent requestsa hearing regarding disciplinary procedures described in ï¿½615(k)(1)(B) which concerns theapplication of the disciplinary procedures when the actions of the child with a disability are notdetermined to be a manifestation of the child's disability; when there is a challenge to the interimalternative educational setting (same as current law); or when there is a challenge to themanifestation determination.

The Senate bill would require the State or local educational agency to arrange for an expedited hearing to occur within twenty school days of the date of the request for the hearing. The Senate billalso would delete the provision in current law regarding current placement and expedited hearings.

In the House bill, the stay put requirement is applicable to a change in placement as described in ï¿½615(j)(1)(B), H.R. 1350 (House), which would allow school personnel to order achange in placement for a child with a disability who violates a code of student conduct. Undercurrent law, this exception to the general "stay put" requirement is more limited and applies tosituations involving weapons, drugs or where a hearing officer has determined that maintaining thecurrent placement is substantially likely to result in injury to the child or others. The House andSenate bills would delete the provisions in current law regarding current placement during appealsand expedited hearings. Under current law, if a child with a disability is placed in an interimalternative educational setting and school personnel propose to change the child's placement afterthe expiration of the interim alternative placement, the child is to remain in the child's placementprior to the interim alternative education setting pending the result of the proceeding. The Senatebill, but not the House bill, would add a requirement that the state or local educational agencyarrange for an expedited hearing which shall occur within twenty school days of the date the hearingis requested.

Current law provides that a child who has not been determined to be eligible for special education and related services and who has engaged in behavior that violated any rule or code ofconduct of the local educational agency, may seek the protections of IDEA if the local educationalagency had knowledge that the child was a child with a disability before the behavior thatprecipitated the disciplinary action occurred. The current law sets forth certain situations where alocal educational agency shall be deemed to have knowledge that a child is a child with a disability. The House and Senate bills contain similar provisions; however, the House bill requires the teacheror school personnel to express concern in writing about the behavior or performance of the child tothe director of special education or other personnel while the Senate bill requires that the teacher orschool personnel express concern about a pattern of behavior demonstrated by the child to thedirector of special education or other administrative personnel. The Senate bill, but not the Housebill, would add a new situation where the LEA is deemed to have knowledge: where the child hasengaged in a pattern of behavior that should have alerted LEA personnel that the child may be inneed of special education and related services. In addition, the Senate bill, but not the House bill,would add an exception where the LEA is deemed not to have knowledge that the child has adisability if the parent of the child has not agreed to allow an evaluation of the child.