Section 281.41.530. Authority of school personnel.

       41.530(1) 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 rule, is appropriate for a child with a disability who violates a code of student conduct.

       41.530(2) General.

        a.           School personnel under this rule may remove a child with a disability who violates a code of student conduct from his or her current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than ten consecutive school days, to the extent those alternatives are applied to children without disabilities, and for additional removals of not more than ten consecutive school days in that same school year for separate incidents of misconduct, as long as those removals do not constitute a change of placement under rule 281—41.536(256B,34CFR300).

        b.           After a child with a disability has been removed from his or her current placement for ten school days in the same school year, during any subsequent days of removal the public agency must provide services to the extent required under subrule 41.530(4).

       41.530(3) Additional authority. For disciplinary changes in placement that would exceed ten consecutive school days, if the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child’s disability pursuant to subrule 41.530(5), school personnel may apply the relevant disciplinary procedures to children with disabilities in the same manner and for the same duration as the procedures would be applied to children without disabilities, except as provided in subrule 41.530(4).

       41.530(4) Services.

        a.           A child with a disability who is removed from the child’s current placement pursuant to subrule 41.530(3) or 41.530(7) must receive the following:

       (1)             Educational services, as provided in subrule 41.101(1), so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP; and

       (2)             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.

        b.           The services required by 41.530(4)“a” and “c” to “e” may be provided in an interim alternative educational setting.

        c.           A public agency is required to provide services during periods of removal to a child with a disability who has been removed from his or her current placement for ten school days or less in that school year, only if it provides services to a child without disabilities who is similarly removed.

        d.           After a child with a disability has been removed from his or her current placement for ten school days in the same school year, if the current removal is for not more than ten consecutive school days and is not a change of placement under rule 281—41.536(256B,34CFR300), school personnel, in consultation with at least one of the child’s teachers, shall determine the extent to which services are needed, as provided in subrule 41.101(1), so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.

        e.           If the removal is a change of placement under rule 281—41.536(256B,34CFR300), the child’s IEP team determines appropriate services under 41.530(4)“a.”

       41.530(5) Manifestation determination.

        a.           Within ten school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the AEA, the LEA, the parent, and relevant members of the child’s IEP team, as determined by the parent and the AEA and LEA, must review all relevant information in the student’s file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents to determine:

       (1)             If the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or

       (2)             If the conduct in question was the direct result of the failure by the AEA or LEA to implement the IEP.

        b.           The conduct must be determined to be a manifestation of the child’s disability if the AEA, the LEA, the parent, and relevant members of the child’s IEP team determine that a condition in either 41.530(5)“a”(1) or (2) was met.

        c.           If the AEA, the LEA, the parent, and relevant members of the child’s IEP team determine the condition described in 41.530(5)“a”(2) was met, the public agency must take immediate steps to remedy those deficiencies.

       41.530(6) Determination that behavior was a manifestation. If the AEA, the LEA, the parent, and relevant members of the IEP team make the determination that the conduct was a manifestation of the child’s disability, the IEP team must proceed as follows:

        a.           Conduct a functional behavioral assessment, unless the AEA or LEA 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 child; 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

        c.          Except as provided in subrule 41.530(7), return the child to the placement from which the child was removed, unless the parent and the public agency agree to a change of placement as part of the modification of the behavioral intervention plan.

       41.530(7) Special circumstances. School personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child’s disability, if the child:

        a.           Carries a weapon to or possesses a weapon at school, on school premises, or to or at a school function under the jurisdiction of an SEA or an LEA;

        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 an SEA or an LEA; 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 an SEA or an LEA.

       41.530(8) Notification. On the date on which the decision is made to make a removal that constitutes a change of placement of a child with a disability because of a violation of a code of student conduct, the LEA must notify the parents of that decision and provide the parents the procedural safeguards notice described in rule 281—41.504(256B,34CFR300).

       41.530(9) Definitions. For purposes of this rule, the following definitions apply:

        a.           Controlled substance. “Controlled substance” means a drug or other substance identified under Schedule I, II, III, IV, or V in Section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)).

        b.           Illegal drug. “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.

        c.           Serious bodily injury. “Serious bodily injury” has the meaning given the term “serious bodily injury” under paragraph (3) of subsection (h) of Section 1365 of Title 18, United States Code.

        d.           Weapon. “Weapon” has the meaning given the term “dangerous weapon” under paragraph (2) of the first subsection (g) of Section 930 of Title 18, United States Code. A “weapon” under Iowa law is not necessarily a weapon for purposes of this rule unless it meets this definition of a “dangerous weapon.”