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By Candace Cortiella, The Advocacy Institute
Be on the Alert for the "Special Circumstances"
Certain offenses can lead to a student being moved to an interim alternative educational setting for up to 45 school days even if the conduct is determined to be related to the student's disability. Removing a student for these offenses does not require parent permission or agreement, nor does it require any involvement by a hearing officer or other impartial third party. These offenses are:
If a student carries or possesses a weapon:
If the student knowingly possesses or uses illegal drugs or sells or solicits the sale of illegal drugs:
If a student has inflicted serious bodily injury upon another person:
An additional provision allows a school to seek to remove a student for up to 45 school days if the school believes that returning the student to the same educational placement is substantially likely to result in injury to the student or other students. The school must do this by making a request to a hearing officer, who, among other requirements, is not employed by the state education agency or local school district involved in educating the child; has specialized knowledge and skills related to IDEA; and has no interests that conflict with his objectivity in the hearing process.
Parents have the right to challenge any decisions made regarding the interim alternative educational setting or the determination regarding the "manifestation determination" by asking for a due process hearing. Schools can also request a hearing if school personnel feel that returning a student to the original educational setting is highly likely to result in injury to the student or to others.
In either case, the hearing must be "expedited" by:
IDEA 2004 made an important change to the placement of students during this appeal process. Before, a student was to remain in his or her current educational placement during the appeal process - often referred to as "stay put." Now, under IDEA 2004, the student remains in the interim alternative educational setting, unless the parent and the state agree otherwiseor the time period for the infraction (e.g., 45 school days for special circumstances or duration applied to non-disabled students) has expired.
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