__________ determines whether a students disciplinary problems are due to his or her disability.

A Brief Overview

• Schools are responsible to teach expected behavior and limit use of punitive discipline Read on for information about navigating behavioral challenges at school.
• Washington State’s Office of Superintendent of Public Instruction (OSPI) provides information about Discipline Procedures for Students Eligible to Receive Special Education Services.
• If the school wants to send a child home early or consistently shorten a student’s day because of behavior, parents can request paperwork describing the disciplinary removal. Parents also can request a meeting to discuss the student’s services and placement and have the right to participate in decisions about any changes. PAVE provides a sample letter for requesting a meeting with the school.
• If a student receiving special education services is removed from their regular placement for more than 10 cumulative days in a school year, the school is required to host a Manifestation Determination meeting to discuss and remedy the situation.
• If the school is not taking formal disciplinary action, parents are not required to take a child home or accept a shortened day. PAVE provides a video with more information about what to do if the school calls parents to take a child home because of behavior.  
• To know more about student and family rights, refer to the Procedural Safeguards.
• PAVE provides a toolkit with further information about how to meet the needs of students with behavioral health conditions. Included is a video to help with development of a Behavior Intervention Plan (BIP).
• Families can seek individualized assistance by clicking Get Help from PAVE’s website, wapave.org.

Full Article

Behavior is a form of communication, and children often try to express their needs and wants more through behavior than words. When a young person has a disability or has experienced trauma or other distress, adults and authorities may need to put in extra effort to understand. Missed cues and unmet needs can result in unexpected and sometimes explosive behaviors, which may lead schools to suspend or expel students. Best practice is to meet behavioral health needs and support students before a disciplinary action/punishment is necessary.

Unfortunately, not all students are adequately supported. State data indicate that students with disabilities are disciplined at least 2.5 times more often than non-disabled peers (See WA State Report Card). For students with disabilities who are Black, Indigenous, or People of Color (BIPOC), the numbers are consistently higher.

By many state and national measures, children’s behavioral health worsened during the pandemic and many children are developmentally behind in social, emotional, and behavioral skills. Governor Jay Inslee on March 14, 2021, issued an emergency proclamation declaring children’s mental health to be in crisis. At the same time, many schools and behavioral health agencies struggle to meet rising demand for services. PAVE provides a toolkit with further information about options for assisting children and young people with behavioral health conditions and ways to advocate for system change in Washington State.

This article provides information about how to navigate behavioral issues that lead to disciplinary actions at school. Keep in mind that disability rights protect individuals with all disabilities, including behavioral health disabilities. Schools may not discriminate against students, regardless of the nature or severity of the disability condition. Federal and state laws require that students receiving special education services receive support and individualized instruction to help them meet behavioral expectations (WAC 392-172A-03110).

Washington State’s Office of Superintendent of Public Instruction (OSPI) provides information about Discipline Procedures for Students Eligible to Receive Special Education Services.

What is exclusionary discipline?

Any school disciplinary action that takes a student away from their regularly scheduled placement at school is called exclusionary discipline. Out-of-school suspensions, expulsions, and in-school suspensions count. Another element is isolation/restraint, which is an emergency response to imminent danger and not disciplinary. See below for more detail.

Families can empower themselves to advocate for their students by learning the federal framework for school-based services:

• Students who receive accommodations and supports through a Section 504 Plan have anti-discrimination protections from the Rehabilitation Act of 1973.
• Students with an Individualized Education Program (IEP) have Section 504 protections and specific rights and protections from the Individuals with Disabilities Education Act (IDEA).

Exclusionary discipline may violate FAPE

A student with an identified disability may be suspended for a behavioral violation that is outlined in district policy. The student “code of conduct” usually explains what it takes to get into trouble.

Schools are limited in their ability to exclude students from school because of behaviors that “manifest” (arise or express) from disability. State guidance is for schools to suspend students only if there are significant safety concerns.

If there is a reasonable suspicion that an unidentified disability may be impacting behavior, a disciplinary removal may lead to an evaluation to determine eligibility for school-based services. The right to evaluation is protected by Child Find, which is an aspect of the IDEA.

Schools are required to take assertive action to evaluate a student and/or reconsider the services plan if the student is consistently missing school because of their behavior. Here are formal and informal ways to think about what that means:

1. Students with identified disabilities supported through either an IEP or a 504 Plan are afforded access to a Free Appropriate Public Education (FAPE). Disciplinary actions that deny access to FAPE may be discriminatory.
2. In simpler terms, if a student with disabilities has unmet needs and is consistently sent home instead of helped, the school may be held accountable for not serving their needs. This may be considered disability discrimination.

For the most comprehensive information about student/family rights and special education process, refer to the Procedural Safeguards. Included is information about dispute resolution options, which are ways that families can file complaints or informally work with the school to resolve conflicts.

Manifestation Determination

To avoid FAPE violations, schools are required to document missed educational time and meet with family to review the student’s circumstances. If the time a student is removed from their academic placement for discipline adds up to 10 days, the school is required to host a specific meeting called a Manifestation Determination.

Manifestation Determination is a distinct process for students with known or suspected disabilities and is separate from general education disciplinary hearings or procedures.

Under Section 504, schools are bound to consider disability-related factors through Manifestation Determination if the disciplinary removal is for more than 10 consecutive school days or when the child is sub­jected to a series of removals that constitute a pattern. OSPI provides a guidance form for Section 504 circumstances.

For a student with an IEP, removal from regularly scheduled classes for more than 10 days per school year constitutes a “change of placement” and a Manifestation Determination meeting is held to determine whether the disciplinary removals resulted from the school’s failure to implement the IEP. OSPI provides a guidance form for IEP circumstances.

During a Manifestation Determination meeting, a student’s circumstances and services are reviewed. An IEP can be amended to provide additional support and a Functional Behavioral Assessment can be planned to gather information for a Behavior Intervention Plan (BIP). If the student has a BIP that isn’t working, the plan can be changed. See PAVE’s video: Behavior and School: How to Participate in the FBA/BIP Process.

For students without IEP services, a Manifestation Determination meeting can initiate or expedite an evaluation if the school district knew or should have known that the student needed special education services. Child Find protections may apply.

Family members are included in this process. According to WAC 392-172A-05146, “If the school district, the parent, and relevant members of the student’s IEP team determine the conduct was a manifestation of the student’s disability, the school district must take immediate steps to remedy those deficiencies.”

If the conduct is determined to be unrelated to disability, then school personnel may use general education discipline procedures. The school must still provide any special education services that the student has already been found to need. The IEP team decides the appropriate alternative setting and special education services to meet the student’s needs while suspended.

Note: With the exception of a firearm violation under federal law, school districts are not required to suspend or expel students. State law explicitly encourages school districts to consider alternative actions before removing students from their educational placement. If a student’s conduct involves weapons, illegal drugs, or serious bodily injury, a student may be removed for up to 45 school days regardless of whether the student’s behavior was a manifestation of disability. However, a Manifestation Determination meeting still is required within the first 10 days of removal from school and educational services are provided.

A shortened school day may be a suspension

If the school reduces a student’s schedule because of difficult-to-manage behaviors, the change could be considered a suspension and the missed educational time could count toward a Manifestation Determination process. OSPI provides this information in a Technical Assistance Paper (TAP #2):

“A decision to shorten a student’s school day in response to a behavioral violation would constitute a suspension under general state discipline regulations (WAC 392-400-025).

“District authorities should not use a shortened school day as an automatic response to students with challenging behaviors at school or use a shortened day as a form of punishment or as a substitute for a BIP [Behavior Intervention Plan]. An IEP team should consider developing an IEP that includes a BIP describing the use of positive behavioral interventions, supports, and strategies reasonably calculated to address the student’s behavioral needs and enable the student to participate in the full school day.”

A school’s decision to keep a student out of school is separate from a student or family decision for the student to stay home to care for their mental health. In 2022, the Washington Legislature passed HB 1834, which establishes a student absence from school for mental health reasons as an excused absence.

Schools are required to support behavior and work with families

Schools are required to provide education and support before resorting to discipline for children who struggle with behavior because of their impairments. Under the IDEA, when behavior impedes the child’s learning or that of others, the IEP Team is required to consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior. When necessary (for FAPE), the team must include those supports in the IEP.

Regardless of whether the student has previously qualified for services, best practice is for the school to conduct a Functional Behavioral Assessment (FBA) following a significant disciplinary action. The FBA is used to develop a Behavior Intervention Plan (BIP), which helps a child learn expected behaviors and prevent escalations. The BIP identifies target behaviors that disrupt learning and calls out “antecedents,” conditions or events that occur first—before the targeted behavior. A BIP supports “replacement” behavior so a student can develop skills for expected learning behaviors.  

Schools are guided by the state to use best practices when evaluating and serving students with special needs. OSPI’s website is k12.wa.us. A page called Model Forms for Services to Students in Special Education has links to downloadable forms schools use to develop IEPs, Section 504 Plans, and more.

Here are links to OSPI’s model forms for:

• Functional Behavioral Assessment
• Behavior Intervention Plan

When a student’s behaviors aren’t working, there’s an opportunity for learning

In addition to a BIP, a student receiving special education services whose behavior impedes their learning may need Specially Designed Instruction (SDI) to support skill-development in an area of education called Social Emotional Learning (SEL). If targeted SEL instruction is needed, the student will have specific IEP goals to support the learning.

Another way that an IEP can support students with behavioral disabilities is through related services. Counseling can be written into an IEP as a related service. When included in a student’s IEP as educationally necessary for FAPE, a school district is responsible to provide and fund those services. School districts can receive reimbursement for 70 percent of the cost of behavioral health services for students who are covered by Medicaid and on an IEP.

All students access behavioral supports when schools use Multi-Tiered Systems of Support (MTSS). Families can ask school staff to describe their MTSS structure and how students receive support through Tier 1 (all students), Tier 2 (targeted groups), and Tier 3 (individualized support). An element of MTSS is Positive Behavioral Interventions and Supports (PBIS), which also supports students across levels of need.

PAVE provides resources to support families and schools:

Washington is a local control state

As a local control state, individual school districts determine their specific policies related to disciplinary criteria and actions. According to OSPI, school districts are required to engage with community members and families when updating their discipline policies, which must align with state and federal regulations.

When a student is suspended, the school is required to submit a report to the family and the state. That report must include an explanation of how school staff attempted to de-escalate a situation before resorting to disciplinary removal. OSPI provides information for schools and families related to state guidance and requirements. A one-page introductory handout for parents is a place to begin.

In general, Washington rules:

• Encourage schools to minimize the use of suspensions and expulsions and focus instead on evidence-based, best-practice educational strategies
• Prohibit schools from excluding students due to absences or tardiness
• Require schools to excuse absences related to mental health (HB 1834)
• Limit use of exclusionary discipline for behaviors that do not present a safety threat
• Prohibit expulsion for students in kindergarten through grade four (children in that age range cannot be excluded from their classroom placements/suspended for more than 10 cumulative days per academic term)
• Require schools to provide educational access while a student is suspended or expelled

Schools must provide educational services during a suspension

State law requires that all suspended and expelled students have an opportunity to receive educational services (RCW 28A.600.015). According to the Washington Administrative Codes (WAC 392-400-610) educational services provided in an alternative setting must enable the student to:

• Continue to participate in the general education curriculum
• Meet the educational standards established within the district
• Complete subject, grade-level, and graduation requirements

Resources from the ACLU

The American Civil Liberties Union of Washington provides a free, downloadable Parents’ Guide to Public School Discipline in Washington. Part III includes information about laws and procedures that are specific to students in special education. The ACLU guidebook encourages parents to gather as much information as possible when a student is disciplined:

“It is important to fully understand the type of proposed discipline, the underlying behavior, how the behavior relates to the student’s disability, and what additional supports may be available in order to fully advocate for your student.”

Do you need to pick up your student if the school calls?

In its guidance booklet, ACLU addresses the question, “Do you need to pick up your student every time the school calls?” A parent can ask whether the student is being suspended. “If your student has not been officially suspended,” ACLU advises, “The school cannot force you to pick up the student.

“If you choose to pick up your student when he or she has not been suspended, the school may not record the removal from class and may not trigger additional protections (such as Manifestation Determination Hearings) that apply when students with disabilities are removed from school for 10 days or more.”

The ACLU guidebook includes a list of supports parents can ask for: “The law requires behavior supports to be based on evidence, and so you can ask for additional expert evaluation to determine whether the behavior supports offered to your student are appropriate.”

PAVE provides a video with additional information about what to do if the school calls for you to take your child home because of behavior.

Guidance related to isolation and restraint

The state has specific rules related to the use of isolation and restraint, which are implemented only when a student’s behavior poses an imminent likelihood of serious bodily harm and are discontinued when the likelihood of serious harm has passed. Isolation and restraint are not used as a form of standard discipline or aversive intervention.

In simpler words, isolation and restraint are an emergency action for safety and cannot be used to punish a student. The isolation or restraint ends the moment the safety threat has passed, not after everything is all better.

The Washington State Governor’s Office of the Education Ombuds (OEO) offers an online resource page that details state guidance related to isolation and restraint. Included is this statement:

“Schools in Washington State are not allowed to use restraint or isolation as a form of discipline or punishment, or as a way to try to correct a child’s behavior. Restraint and isolation are only allowed as emergency measures, to be used if necessary, to keep a student or others safe from serious harm. They can continue only as long as the emergency continues.”

School districts are required to collect and report data on the use of restraint and isolation. That data is posted on OSPI’s website as part of the School Safety Resource Library. 

Emergency Response Protocol (ERP)

If emergency responses and/or severe disciplinary actions become frequent, schools might ask the parent/guardian to sign an Emergency Response Protocol (ERP) for an individual student. Families are not required to sign this.

The ERP explains what the school’s policies are related to isolation and restraint and what the training requirements are for staff authorized to conduct isolation and restraint. Parents can request a copy of the district’s general education policies on this topic. The ERP can include a statement about how parents are contacted if the school uses isolation or restraint.

Reporting requirements for disciplinary removal

Schools are required to provide a report to the parent/guardian and to the state any time formal disciplinary or emergency actions are taken.

The Washington Administrative Code (WAC 392-400-455) describes what is required in a notice to students and parents when a student is suspended or expelled from school:

• Initial notice. Before administering any suspension or expulsion, a school district must attempt to notify the student’s parents, as soon as reasonably possible, regarding the behavioral violation.
• Written notice. No later than one school business day following the initial hearing with the student in WAC 392-400-450, a school district must provide written notice of the suspension or expulsion to the student and parents in person, by mail, or by email. The written notice must include:
  • A description of the student’s behavior and how the behavior violated the school district’s policy adopted under WAC 392-400-110;
  • The duration and conditions of the suspension or expulsion, including the dates on which the suspension or expulsion will begin and end;
  • The other forms of discipline that the school district considered or attempted, and an explanation of the district’s decision to administer the suspension or expulsion;
  • The opportunity to receive educational services during the suspension or expulsion under WAC 392-400-610;
  • The student’s and parents’ right to an informal conference with the principal or designee under WAC 392-400-460;
  • The student’s and parents’ right to appeal the suspension or expulsion under WAC 392-400-465, including where and to whom the appeal must be requested;
  • For a long-term suspension or expulsion, the opportunity for the student and parents to participate in a reengagement meeting under WAC 392-400-710

• Language assistance. The school district must ensure the initial and written notices required under this section are provided in a language the student and parents understand, which may require language assistance for students and parents with limited-English proficiency under Title VI of the Civil Rights Act of 1964.

Reporting requirements for isolation/restraint

The state has similar reporting requirements when a student is isolated or restrained at school. Following are statements from the Revised Code of Washington (RCW 28A.600.485):

“Any school employee, resource officer, or school security officer who uses isolation or restraint on a student during school-sponsored instruction or activities must inform the building administrator or building administrator’s designee as soon as possible, and within two business days submit a written report of the incident to the district office. The written report must include, at a minimum, the following information:

• The date and time of the incident
• The name and job title of the individual who administered the restraint or isolation
• A description of the activity that led to the restraint or isolation
• The type of restraint or isolation used on the student, including the duration
• Whether the student or staff was physically injured during the restraint or isolation incident and any medical care provided
• Any recommendations for changing the nature or amount of resources available to the student and staff members in order to avoid similar incidents”

The RCW also states that school staff “must make a reasonable effort to verbally inform the student’s parent or guardian within 24 hours of the incident and must send written notification as soon as practical but postmarked no later than five business days after the restraint or isolation occurred. If the school or school district customarily provides the parent or guardian with school-related information in a language other than English, the written report under this section must be provided to the parent or guardian in that language.”

Equity work in student discipline is ongoing

A graph that shows disparity in discipline is provided on OSPI’s website, which includes training and materials for schools to support improvements. “Like other states, Washington has experienced significant and persistent disparities in the discipline of students based upon race/ethnicity, disability status, language, sex and other factors,” OSPI’s website states.

“While overall rates of exclusionary discipline (suspension and expulsion) have declined over the last decade, significant disparities persist. These trends warrant serious attention from school districts, as well as OSPI, to work toward equitable opportunities and outcomes for each and every student.”