The essential obligation of special educators is to collaboratively develop an individualized program of special education and related services for eligible students with disabilities that confers a free appropriate public education (FAPE). When a student with disabilities exhibits serious problem behavior, providing a FAPE often means including behavioral programming in his or her individualized education program (IEP).
Specifically, the IDEA requires that “[I]n the case of a child whose behavior impedes the child or that of others, (the IEP team) consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior (IDEA Regulations, 34 C.F.R. § 300.324 (a)[i]).
Officials in the Office of Special Education Programs (OSEP) in the U.S. Department of Education believed that addressing behavior when necessary was so important that they issued a Dear Colleague Letter (DCL) on including positive behavior interventions and support in the IEPs of students with disabilities. Dear colleague letters from OSEP are policy interpretations of the IDEA and regulations by officials in the U.S. Department of Education. Although policy statements do not have the legal force of either a law or a regulation, they are very important and are often cited in due process hearings.
In the 2016 DCL, OSEP issued the policy statement to clarify that failing to address a student’s problem behavior in his or her IEP could be a denial of FAPE. Additionally, failing to provide behavioral support through the continuum of services, included in the regular education environment, could result in an inappropriately restrictive placement and constitute a denial of placement in the LRE. The 2016 OSEP DCL is a great resource for special educators. The DCL on behavior support can be found by clicking here.
Language in the DCL pointed out that the statement was part of the Department of Education’s broader work to encourage school environments that are safe, supportive, and conducive to teaching and learning, where educators actively prevent the need for short-term disciplinary removals by actively supporting and responding to behavior…In keeping with this goal, this letter serves to remind school personnel that the authority to implement disciplinary removals does not negate their obligations to consider the implications of the child’s behavioral needs, and the effects of suspensions (and other short-term removals) when ensuring the provisions of FAPE” (DCL, 2016, p. 2).
This DCL indicated that officials realized that discipline and short-term removal of students with disabilities posed somewhat of a problem for school district administrators in 2016. The IDEA first addressed the discipline of eligible students with disabilities in 1997 and the law has not changed much since that time. There were a few changes in the Individuals with Disabilities Education Improvement Act of 2004, but rules regarding the discipline and short-term removals of students with disabilities for problem behaviors remain largely unchanged from the U.S. Supreme Court ruling in Honig. v. Doe (1988).
In late June 2022, officials at OSEP and at the Office of Civil Rights (OCR) in the U.S. Department of Education believed that issues in disciplining students with disabilities eligible under the IDEA and protected under Section 504 were unclear to many persons in school districts so both offices issued policy guidance statements on the topic.
The policy guidance issued by OSEP was a question and answer (Q&A) document. The document was divided into 10 areas:
- Obligations to meet the needs of eligible students with disabilities
- An overview of IDEA’s Discipline procedures
- Change in placement
- Interim alternative educational setting (IAES)
- Special circumstances
- Manifestation determination reviews
- IDEA’s requirements for FBAs and BIPs
- Provision of services during periods of removal
- Protections for students not yet determined eligible under the IDEA
- Application of IDEA Discipline protections in specific circumstances
- Resolving disagreements
- State oversight and data reporting responsibilities
In each of these topic areas, officials at OSEP posed between 3 and 12 questions and then provided their answers. The Q&A document also includes a glossary of key terms and acronyms used in the guidance. This is excellent policy guidance and should be read by officials, administrators, and teachers with concerns regarding the discipline of students with disabilities. The OSEP Q&A document can be found by clicking here.
The policy guidance issued by OCR was titled “Supporting Students with Disabilities and Avoiding the Discriminatory use of Student Discipline under Section 504 of the Rehabilitation Act of 1973. This policy document addressed FAPE issues, but primarily examined the discipline of students with disabilities from the standpoint of discrimination. It, too, is must reading for officials, administrators, and teachers with concerns regarding the discipline of students with disabilities. The OCR policy guidance can be found by clicking here.
 This includes students with disabilities who are protected under Section 504 but who are not eligible under the IDEA.