HAR §8-60-75. Authority of school personnel

(a) Case-by-case determination. School personnel may consider any unique circumstances on a case-by-case basis when determining whether a change in placement, consistent with the other requirements of this subchapter, is appropriate for a student with a disability who violates chapter 8-19. (b) General. (1) School personnel under this subchapter may remove a student with a disability who violates school rules from the student’s current placement to an appropriate interim alternative educational setting, another setting, or suspension for not more than 10 cumulative school days (to the extent those alternatives are applied to students without disabilities) in that same school year for one or separate incidents of misconduct; (2) After a student with a disability has been removed from the student’s current placement for ten school days in the same school year, during any subsequent days of removal the department shall provide services to the extent required under subsection (d); (3) “Current educational placement” means the type of educational placement of the student as described in the student’s annual IEP. It does not mean the specific location or school, but the type of placement on the continuum of placement options (e.g., regular classroom with support; regular classroom with resource room support; special class; special school; home, etc.). (c) Additional authority. For disciplinary changes in placement that would exceed ten consecutive or cumulative school days, if the behavior that gave rise to the violation of chapter 8-19 is determined not to be a manifestation of the student's disability pursuant to subsection (e), school personnel may apply the relevant disciplinary procedures to students with disabilities in the same manner and for the same duration as the procedures would be applied to students without disabilities, except as provided in subsection (d). (d) Services. (1) A student with a disability who is removed from the student's current placement pursuant to subsection (c) or (g), shall: (A) Continue to receive educational services, as provided in section 8-60-3(a), so as to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student's IEP; and (B) Receive, as appropriate, a functional behavioral assessment, and behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur; (2) The services required by paragraphs (1), (3), and (4) may be provided in an interim alternative educational setting. (3) When a student with a disability has been removed from his or her current placement for 10 school days or less in the same school year, that student may be provided with an alternate educational option (such as homework, projects, class assignments) in the same manner as a student without a disability who is similarly removed, in accordance with chapter 8-19. (4) If the removal is a change of placement under section 8-60-81, the student's IEP team determines appropriate services under paragraph (1), except as stated in paragraph (5). (5) For crisis removals that exceed the ten cumulative school days in a school year, school personnel, in consultation with at least one of the student’s teachers,determine the extent to which services are needed so as to enable the student to continue to participate in the general education curriculum although in another setting, and to progress in meeting the goals set out in the student’s IEP. (e) Manifestation determination. (1) Excluding subparagraph (g)(2)(A), within ten school days of any decision to change the placement of a student with a disability because of a violation of Chapter 19, the department, the parent, and relevant members of the student's IEP team (as determined by the parent and the department) shall review all relevant information in the student's file, including the student's IEP, any teacher observations, and any relevant information provided by the parents to determine: (A) If the conduct in question was caused by, or had a direct and substantial relationship to, the student's disability; or (B) If the conduct in question was the direct result of the department's failure to implement the IEP; (2) The conduct shall be determined to be a manifestation of the student's disability if the department, the parent, and relevant members of the student's IEP team determine that a condition in either paragraph (1)(A) or (B) was met; (3) If the department, the parent, and relevant members of the student's IEP team determine the condition described in paragraph (1)(B) was met, the department shall take immediate steps to remedy those deficiencies. (f) Determination that behavior was a manifestation. If the department, the parent, andrelevant members of the IEP team make the determination that the conduct was a manifestation of the student's disability, the IEP team shall: (1) Either: (A) Conduct a functional behavioral assessment, unless the department had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the student; or (B) If a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior; and (2) Except as provided in subsection (g), return the student to the placement from which the student was removed, unless the parent and the department agree to a change of placement as part of the modification of the behavioral intervention plan. (g) Special circumstances. (1) School personnel may remove a student to an interim alternative educational setting for not more than forty-five school days without regard to whether the behavior is determined to be a manifestation of the student's disability, if the student: (A) Carries or possesses a weapon to or at school, on school premises, or to or at a school function under the jurisdiction of the department; (B) Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of the department; or (C) Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of the department. (2) (A) If the basis for a crisis removal exists pursuant to chapter 8-19-7, school personnel may order the removal of a student with a disability from the student’s current educational placement, for up to ten consecutive school days. If the crisis removal, together with any previous days of disciplinary suspensions or removals, exceeds ten school days, the crisis removal would constitute a change of placement only if the removals constitute a pattern: (i) because the student's behavior is substantially similar to the student's behavior in previous incidents that resulted in the series of removals. (ii) because of such additional factors such as the length of each removal, the total amount of time the student is removed, and the proximity of the removals one to another. (B) If school personnel determine the authority for a crisis removal exists pursuant to paragraph [(1)](2)(A): (i) The crisis removal shall be in accordance with chapter 8-19-7, including the student’s right to resume attendance at school as soon as the exclusion pursuant to chapter 8-19-7(a) is no longer necessary; (ii) The student with a disability shall be provided a free appropriate public education in accordance with subsection (d) during the period of the crisis removal;§8-60-75 (iii)The IEP team shall conduct the functional behavioral assessment in accordance with subparagraph (d)(1)(b); (iv) If the student’s parent disagrees with the determination under paragraph (2), the parent may request a hearing pursuant to section 8-60-77. For purposes of section 8-60-72 on the student’s status during the proceedings, the current placement is the free appropriate public education provided in accordance with subsection (d) until the end of the crisis removal, at which time the student shall resume attendance at school; and (v) For purposes of subsequent disciplinary action, the school days of crisis removal shall be included as days of removal in this section. Nothing in this paragraph prohibits a student from being the subject of a subsequent crisis removal in a given school year if the requirements of chapter 8-19-7, and this subparagraph are met. (h) Notification. On the date on which the decision is made to make a removal that constitutes a change of placement of a student with a disability because of a violation of a code of student conduct, the department shall notify the parents of that decision, and provide the parents the procedural safeguards notice described in section 8-60-59. (i) Definitions. For purposes of this subchapter, the following definitions apply: (1) “Controlled substance” means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)); (2) “Illegal drug” means a controlled substance; but does not include a controlled substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act or under any other provision of Federal law; (3) “Serious bodily injury” has the meaning given the term “serious bodily injury” under section 1365(h)(3) of title 18, United States Code. (4) “Weapon” has the meaning given the term “dangerous weapon” under 18 U.S.C. section 930(g)(2). [Eff 11/23/09] (Auth: 20 U.S.C. 1415(k)(1) and (7); HRS §302A-1112) (Imp: 34 C.F.R. §300.530)