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DISCIPLINE & DUE PROCESS. 2007 Changes to NYS’ Special Education Laws and Regulations. Discipline. Due Process Protections for ALL Students. Suspension 5 school days or less: - written notice and phone call - right to request an informal conference

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2007 Changes to NYS’ Special Education Laws and Regulations

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Due Process Protections for ALL Students

  • Suspension 5 school days or less:

    - written notice and phone call

    - right to request an informal conference

  • Suspension in excess of 5 consecutive school days:

    - written notice

    - fair hearing with Superintendent

    - alternative education

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Additional Protections for Students with Disabilities

(Suspended/Removed for more than 10 school days in a school year)

  • Procedural Safeguards Notice to parent

  • FAPE (Free Appropriate Public Education)

  • Manifestation Determination

  • Functional Behavior Assessment / Behavior Intervention Plan

  • Expedited due process hearing

  • Protections for students “presumed to have a disability” including expedited evaluations

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Pattern of Removals

  • Series of suspensions or removals that cumulate to more than 10 school days in a school year and

  • Student’s behavior is substantially similar to student’s behavior in previous incidents that resulted in the series of removals

  • Additional factors (length, total time, proximity of suspensions to one another)

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Pattern of Removals (cont’d)

- Determination on a case-by-case basis

- Subject to due process challenge

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Functional Behavioral AssessmentsBehavioral Intervention Plans

  • Whenever there is a manifestation determination (behavior is related to the student’s disability), CSE must:

    • Conduct an FBA

    • Implement (or review and modify) a BIP).

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Determining Services and Setting

(Suspended/Removed for more than 10 school days in a school year)

  • No disciplinary change in placement – school personnel in consultation with the student’s teacher

  • Disciplinary change in placement – the CSE

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Expedited Impartial Hearings

  • No sufficiency challenge

  • Resolution session within 7 days

  • Resolution period ends at 15 days

  • Impartial hearing within 20 school days of date complaint filed

  • IHO decision within 10 school days after hearing

  • No extensions

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Prior Written Notice

  • “Notice of recommendation”

  • Prior Written Notice must be on a form prescribed by the Commissioner, beginning on January 1, 2009

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Meeting Notices

  • Meeting notice must be on a form prescribed by the Commissioner, beginning January 1, 2009

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Procedural Safeguards Notice

  • To parent at least once a year, and upon

    • initial referral or parental request for evaluation;

    • first filing of a due process complaint notice to request mediation or an impartial hearing;

    • request by the parent;

    • whenever there is a disciplinary change in placement

    • receipt of first State complaint in a school year received from a parent;


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  • Mediator: no personal or professional interest that conflicts with objectivity

  • Repeals that parent and district may be asked to sign a confidentiality pledge prior to mediation

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Due Process Complaint Notice(Sufficiency Challenge)

  • Impartial hearing officer (IHO) must be notified within 15 days of receipt of the complaint notice

  • No challenge during an expedited impartial hearing (discipline issues)

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Resolution Process

  • Steps to ensure parent participation

  • Failure of parent to participate

    • School may request IHO dismiss parent complaint at the conclusion of 30 days

    • Parent may request IHO begin hearing if district fails to convene meeting within 15 days of receipt of complaint

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Impartial Hearings

  • School district request for hearing

    • Hearing commences within 14 days after IHO is appointed

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Impartial Hearings (cont’d)

  • Parent request for hearing

    • Hearing commences within 14 days after

      • Parties waive resolution meeting; or

      • IHO notified resolution meeting held and no agreement reached; or

      • Expiration of 30 day period; unless

        • parties agree to continue mediation after 30 day resolution period, then hearing begins 14 days after either party withdraws from mediation.

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State Complaint Procedures

  • Information required in a complaint

  • Party filing complaint must forward a copy to the district at same time sent to SED

  • District must provide parent with copy of Procedural Safeguards Notice upon receipt of first State complaint in that school year.

  • Timeline to resolve complaint may be extended if parties agree to mediation

  • Alleged violation occurred within one year

  • Remedy may include compensatory services

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  • Child transitioning from early intervention (EI) to preschool

    • District not required to provide EI services

    • If found eligible, district must provide those services not in dispute between parent and district.

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Surrogate Parents

  • For unaccompanied homeless youth

    • Appropriate staff of emergency shelters, transitional shelters, independent living programs and street outreach programs may be appointed as temporary surrogate parents until another surrogate can be appointed

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  • http://www.vesid.nysed.gov/specialed/publications/policy/psgn807.pdf

  • http://www.regents.nysed.gov/2007Meetings/September2007/0907bra5.html

  • http://www.vesid.nysed.gov/specialed/publications/policy/discipcover.htm

  • http://www.vesid.nysed.gov/specialed/publications/policy/complaint.pdf