In honor of Rihanna being named this year’s Superbowl Halftime Performer (or more likely in response to a notable increase in emergency exclusions of students generally, and students with disabilities specifically), the Nebraska Department of Education issued and updated new “SOS” guidance on disciplinary removals of special education students. This guidance confirmed that the NDE (consistent with the U.S. Department of Education) generally considers an emergency exclusion to be a “disciplinary” removal that requires a manifestation determination after 10 school days of removal (or a pattern of removals that aggregate past 10 school days) if it constitutes a change in placement. Although we’ve long understood this to be the Department’s position, the updated guidance provides additional clarity to schools struggling to address threatening or disruptive conduct of a student with a disability.
SOS Guidance TL;DR
The state and federal regulations implementing the IDEA require that a student be provided procedural safeguards (which begin with a manifestation determination) after a disciplinary removal of more than ten school days resulting in a change in placement. For years, we’ve taken the position that an emergency exclusion is not a disciplinary action, and therefore could not trigger the procedural safeguards specific to disciplinary removals. We expected, though, that the NDE would disagree with that position if given the opportunity. This expectation was informally confirmed by Department officials in the past and was formally confirmed in the October 2022 SOS guidance.
The Department relied in large part on the recent Q&A Guidance from OSEP released in July 2022 (which we blogged about here.) That guidance provided that the requirements related to disciplinary removals would apply even to “informal removals,” or in other words, “[an] action taken by school personnel in response to a child’s behavior that excludes the child for part or all of the school day, or even an indefinite period of time.” As a result, the Department opined that “when districts [emergency] exclude a student under Neb. Rev. Stat. § 79-264(b) districts must follow special education discipline requirements” articulated by Rule 51.
So Do We Now Hold A Manifestation For Every Emergency Exclusion?
No. Rule 51 only requires districts to make a manifestation determination when a student has been removed for more than 10 consecutive school days, or for a pattern of removals accumulating to more than 10 school days, and as a result has experienced a change in placement.
In other words, if a student’s emergency exclusion does not exceed the 10 school day threshold, the district is not required to provide services during the period of removal, hold an IEP Team meeting, or make a manifestation determination.
Similarly, if the student’s emergency exclusion exceeds 10 school days, and the district provides special education services on the 11th day of removal sufficient to enable the child to participate in the general education curriculum (although in another setting) and progress towards meeting the goals in the IEP, the district is not required to hold a manifestation determination.
On the other hand, if the student’s emergency exclusion exceeds 10 school days and constitutes a change in placement, a manifestation determination is required, and the District must follow the subsequent procedural requirements depending upon the determination made.
Conclusion
The new SOS guidance provides helpful clarity regarding the Department’s expectations and intended enforcement of Rule 51. However, in most schools and under most circumstances, the new guidance won’t have a major impact on how administrators are keeping their schools safe. When a student’s disability-related misconduct can be safely addressed through a change in educational placement and services, a disciplinary removal simply is not the most effective course of action. In our experience, most schools are using the LRE continuum to address student issues when it can be done safely, are already working to serve and educate special education students during periods of emergency exclusion, and are only using emergency exclusion procedures to assess and address threats and risks. Additionally, we always recommend schools work with their attorney when a student must be emergency excluded, especially if the student is a student with a disability.
If you have an emergency you need help responding to, or any other legal questions or issues, please do not hesitate to call Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara or send us an email at ksb@ksbschoollaw.com. In the meantime, you can bring your questions about this guidance to, or just heckle Karen at, her presentations at the Tri-State Regional Special Education Law Conference in Omaha on Thursday and Friday.