Special Education Discipline: New Guidance from MDE OSE

In September 2022, MDE’s Office of Special Education issued guidance about student disciplinary removals.

Responding to and Counting Disciplinary Removals

In this guidance, MDE reminds schools that when a special education student’s behavior results in disciplinary removal, IEP Teams should consider and implement appropriate behavioral supports. Failure to do so may deny the student a free appropriate public education (FAPE) and violate the IDEA.

When special education student behavior impacts the ability to access their education and make appropriate progress, or disrupts the learning of others, IEP Teams must address that behavior. The IDEA regulations require schools to consider and document positive behavioral interventions and supports (PBIS) for special education students’ behaviors.

The MDE guidance provides examples of IDEA violations, including:

• The IEP Team does not consider the inclusion of PBIS when a student’s behavior affects their learning or the learning of others.
• Behavioral supports are not listed in the IEP, even when the IEP Team determined those supports were necessary.
• Behavioral supports are in the IEP, but the student continues to exhibit the same or similar behaviors resulting in disciplinary removals.
• Behavioral supports in the student’s IEP were not implemented or not implemented with fidelity.

Because the IDEA has a strict definition of what constitutes a disciplinary removal, school officials should know that a disciplinary removal may include:

• in-school suspension;
• out-of-school suspension;
• expulsion;
• removal to an interim alternative educational setting for disciplinary offenses involving drugs, weapons, or serious bodily injury;
• repeatedly sending a student home or requesting early pick-up from school due to behavior;
• repeatedly sending a student out with a conditional return (e.g., risk assessment or psychiatric evaluation);
• a shortened school day;
• a pattern of office referrals;
• extended time excluded from instruction (e.g., time out); or
• extended restrictions in privileges.

A pattern of office referrals for student misconduct, extended time excluded from instruction (even if still in the classroom), and extended restrictions in privileges are exclusionary disciplinary actions that remove a student from the least restrictive environment (LRE), which is determined by the IEP Team, even though the student is not removed from the school setting itself. Repeated use of those exclusionary actions indicates that the IEP does not adequately support the student’s behavioral needs.

MDE reiterates that an in-school suspension (ISS) is a disciplinary removal for a special education student unless:

1. the student is provided the opportunity to continue to be involved in and make progress in the general education curriculum;
2. the student receives instruction and services as specified in the IEP;
3. the student continues to participate with nondisabled students; and
4. the student has instruction provided by a certified teacher.

If non-certified personnel oversee ISS programs, the non-certified personnel must be under the “meaningful direction and supervision” of a certified teacher. According to MDE, “meaningful direction” is when a certified teacher is responsible for:

• planning and coordinating all lessons;
• presenting the initial lesson;
• identifying the type of complementing, supplementing, or reinforcing instruction to be provided; and
• specifying the type of methods, materials, and techniques to be used by non-certified staff.

Disciplinary removals are calculated in the same increment as general education attendance. If attendance is calculated by class period, then special education disciplinary removals are also counted by class period. Finally, if a special education student transfers mid-year, disciplinary removals from the previous school district are included in the new school’s disciplinary removal count.

MDE provides a helpful chart and a link to the MSDS manual in the guidance for school personnel responsible for MSDS reporting on attendance.

Shortened School Day

MDE also updated its guidance on the use of shortened school days in September 2022. The guidance states that the practice of shortening a special education student’s school day as a disciplinary measure or as a means of addressing behavior is contrary to the IDEA and is almost always a denial of FAPE.

A shortened school day may not be used to manage a special education student’s behavior or as discipline because, the guidance states, it is not a service or a support and is not reasonably calculated to result in progress or educational benefit. Even if a parent requests a shortened day, the school must provide written communication stating why a shortened school day is inappropriate and how it intends to address the student’s behaviors through PBIS and other supports.

According to MDE’s guidance, a special education student may have a shortened school day only if the student’s IEP Team determines it is necessary to address unique disability-related needs. If such circumstance occurs, the IEP must:

• explain why the student’s disability-related needs require a shortened day;
• explain the need or skill gap that prohibits full-day attendance;
• connect the expected growth and progress to shortening the student’s day (e.g., student is expected to recover from a physical or medical condition with rest and medical treatment); and
• plan for the student’s return to full day.

The student must return to a full school day as soon as possible.

A shortened school day is a critical compliance consideration for MDE. In its compliance reviews, MDE will inquire about the link between a shortened day, the provision of FAPE in the LRE, and a student’s progress by asking questions such as:

• What skill(s) does the student lack to successfully attend the full school day?
• How will a shortened day meet the student’s educational needs, help close the skill gap, or result in educational progress?
• What services can help close the skill gap, educate the student in the LRE, and allow them to progress in general education curriculum?

MDE further states that an IEP missing this critical information will be considered noncompliant, as will an IEP that addresses shortened school day with merely a conclusory statement or a checked box.