New York Codes, Rules and Regulations › Title 8 - EDUCATION DEPARTMENT › Chapter II - Regulations of the Commissioner › Subchapter P - Handicapped Children › Part 201 - Procedural Safeguards For Students With Disabilities Subject To Discipline › Section 201.9 - Coordination with superintendent's hearing and other due process procedures applicable to all students

Current through Register Vol. 46, No. 28, July 10, 2024
(a)
				  Procedures for suspensions of five school days or less. In the case of a
				  suspension for five consecutive school days or less pursuant to paragraph b of
				  subdivision 3 of section 3214  of the Education Law and section
				  201.7(b) 
				  of this Part, the parents or persons in parental relation to the student shall
				  be provided an opportunity for an informal conference in accordance with
				  paragraph d of subdivision 3 of section 3214  of the Education Law.
(b) Procedures for removals other than
				  suspensions. A removal of a student with a disability, as defined in section
				  201.2(l) 
				  of this Part, to which the provisions of paragraphs (a) through (d) of
				  subdivision 3 of section 3214  of the Education Law do not apply,
				  other than a change in placement to an IAES, shall be conducted in accordance
				  with the due process procedures applicable to such removals of nondisabled
				  students, except that school personnel may not impose such removal for more
				  than 10 consecutive days or for a period that would result in a disciplinary
				  change in placement, unless there has been a determination that the behavior is
				  not a manifestation of the student's disability. The removal of a student with
				  a disability to an IAES shall be conducted in accordance with the applicable
				  provisions of section
				  201.7(e) 
				  of this Part and paragraph (c)(3) of this section, or of section
				  201.8 
				  of this Part.
(c) Procedures for
				  suspensions of more than five school days (superintendent's hearings).
				  Superintendent's hearings on disciplinary charges against students with
				  disabilities and students presumed to have a disability for discipline purposes
				  shall be bifurcated into a guilt phase and a penalty phase and conducted in
				  accordance with the following procedures:
(1)
				  The superintendent of schools or hearing officer in the superintendent's
				  hearing shall proceed with the guilt phase and determine whether the student is
				  guilty of the alleged misconduct. If it is determined that the student is
				  guilty of the alleged misconduct, the superintendent of schools or hearing
				  officer in the superintendent's hearing shall make a threshold determination of
				  whether a suspension or removal in excess of 10 consecutive school days or that
				  would otherwise constitute a disciplinary change in placement should be
				  considered. If the threshold determination is that such a suspension or removal
				  should be considered, before the superintendent of schools orders or the
				  hearing officer in the superintendent's hearing recommends any such removal,
				  the superintendent's hearing shall be adjourned until a manifestation
				  determination is made by the manifestation team, except as otherwise provided
				  in paragraph (3) of this subdivision. If the superintendent of schools or
				  hearing officer in the superintendent's hearing determines that a suspension or
				  removal that would constitute a disciplinary change in placement should not be
				  considered, the hearing shall proceed to the penalty phase.
(2) Upon a determination by the manifestation
				  team that the behavior of a student with a disability was not a manifestation
				  of the student's disability, such student may be disciplined in the same manner
				  as a nondisabled student, except that such student shall continue to receive
				  services in accordance with section
				  201.10 
				  of this Part. Upon receipt of notice of such determination, the superintendent
				  or hearing officer in the superintendent' s hearing shall proceed with the
				  penalty phase of the hearing. If the manifestation team determines that the
				  behavior was a manifestation of the student's disability, the superintendent or
				  hearing officer in the superintendent's hearing shall dismiss the
				  superintendent's hearing, except as otherwise provided in paragraph (3) of this
				  subdivision.
(3) Notwithstanding
				  the provisions of paragraphs (1) and (2) of this subdivision, if the
				  superintendent or hearing officer in the superintendent's hearing is
				  considering the change in placement of a student with a disability to an IAES
				  pursuant to section
				  201.7(e) 
				  of this Part, upon a determination that the student is guilty of the alleged
				  misconduct relating to serious bodily injury, weapons, illegal drugs or
				  controlled substances, the superintendent of schools may order, or the hearing
				  officer in the superintendent's hearing may recommend, such change in placement
				  to an IAES, to be determined by the CSE, for up to 45 school days, but not to
				  exceed the length of time that a nondisabled student would be suspended for the
				  same misconduct under the school district's student discipline policy. The
				  superintendent of schools may order such change in placement of a student with
				  a disability to an IAES, directly or upon recommendation of a hearing officer
				  in the superintendent's hearing, even where the manifestation team determines
				  that the student's behavior is a manifestation of the student's
				  disability.
(4) The penalty phase
				  of a superintendent's hearing for a student with a disability or a student
				  presumed to have a disability for discipline purposes shall be conducted in the
				  same manner as the penalty phase of a hearing involving a nondisabled student,
				  including the admission of anecdotal evidence of past instances of misconduct.
				  The school district shall assure that copies of the special education and
				  disciplinary records of the student are transmitted to the superintendent of
				  schools or hearing officer in the superintendent's hearing for consideration.
				  Such records shall be transmitted whether or not the manifestation team has
				  determined that the student's behavior is a manifestation of the student's
				  disability.
(5) Nothing in this
				  section shall be construed to authorize the suspension or removal of a student
				  with a disability from his or her current educational placement for violation
				  of school rules following a determination by the manifestation team that the
				  behavior is a manifestation of the student's disability, except where the
				  student is placed in an IAES for behavior involving serious bodily injury,
				  weapons, illegal drugs or controlled substances pursuant to section
				  201.7(e) 
				  of this Part or the student is placed in an IAES by an impartial hearing
				  officer pursuant to section
				  201.8 
				  of this Part.