INDIVIDUALS WITH DISABILITIES EDUCATION ACT: PROPOSED AMENDMENT REGARDING INTERIM ALTERNATIVE EDUCATIONAL PLACEMENTS
CRS Report for Congress
Individuals with Disabilities Education Act:
Proposed Amendment Regarding Interim
Alternative Educational Placements
Nancy Lee Jones
American Law Division
An amendment to the interim alternative educational placement provision of the
Individuals with Disabilities Education Act (IDEA) has been proposed by
Representative Livingston, added to the Department of Education appropriations bill,
H.R. 4274, 105th Cong., 2d Sess., and reported out of the House Appropriations
Committee on July 20, 1998. The amendment would change the current law by
eliminating the current limitation of 45 days for an interim alternative educational
placement. In addition, the amendment would add a new subsection allowing schools
to place a child with a disability in an interim alternative educational placement if the
child intentionally exhibits violent behavior that has resulted or could have resulted in
physical injury to the child or others while at school or a school function. For a more
detailed discussion of the existing disciplinary provisions in IDEA see Jones,
“Individuals with Disabilities Education Act: Discipline Provisions in P.L. 105-17,”
CRS Report 98-42 (January 12, 1998). This report will be amended to reflect
subsequent legislative action.
Under current law, a child with a disability is not immune from disciplinary
procedures but neither are those procedures identical to those for children without
disabilities. IDEA contains detailed due process protections for children with disabilities
including the “stay-put” provision requiring that unless the state or local educational
agency and the parents otherwise agree, the child shall remain in the then current
educational placement of the child during any dispute over the child’s education.1 If a
parent feels that a child with a disability is not receiving a free appropriate public
education, a parent may invoke due process and ask for a hearing on the issue.
120 U.S.C. §1415(j).
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These provisions were included in IDEA due to congressional findings that children
with disabilities were often not receiving an education or were receiving an inappropriate
education. The House and Senate Reports for P.L. 94-142 both noted statistics indicating
that there were more than eight million children with disabilities and that “only 3.9
million such children are receiving an appropriate education, 1.7 million handicapped
children are receiving no educational services at all, and 2.5 million handicapped children
are receiving an inappropriate education.”2 In addition, at the time of enactment of P.L.
94-142 there were a number of judicial decisions finding constitutional infirmities with
the lack of education for children with disabilities when the states were providing
education for children without disabilities.3 In fact, one of these decisions, Mills v. Board
of Education, involved seven school age children who had been excluded from the public
schools and had been labeled as behavior problems, mentally retarded, emotionally
disturbed, or hyperactive and received no education. The district court found that this
denial of an education was a denial of constitutional due process.
IDEA’s due process protections against a school unilaterally ceasing services to a
child with a disability do not mean that school officials have no options regarding
disciplining such children. Currently, school personnel may
!suspend a child with a disability for up to ten days,
!place a child with a disability in an interim alternative educational setting for up
to forty five days for situations involving weapons and drugs,
!ask a hearing officer to order a child to be placed in an interim alternative
educational setting for up to forty five days if it is demonstrated that the child is
substantially likely to injure himself or others in his current placement,
!conduct a manifestation determination review to determine whether there is a link
between the child’s disability and the misbehavior. If the child’s behavior is not
a manifestation of a disability, long term disciplinary action such as long term
suspension or expulsion may occur, except that educational services may not cease.
Although the IDEA amendments of 1997 did provide more flexibility for the schools
in dealing with children with disabilities who commit acts subject to discipline, some
school officials have argued that the amendments did not go far enough.4 This has given
rise to a proposal to amend IDEA in addition to the Livingston amendment. Senators
Gorton and Faircloth proposed an amendment to H.R. 2646, a bill to amend the Internal
Revenue Code to allow tax-free expenditures from education individual retirement
2H.Rep.No. 332 94th Cong., 1st Sess. 11 (1975); S. Rep.No. 168, 94th Cong., 1st Sess. 8,
reprinted in U.S. Code Cong. & Ad. News 1425, 1432 (1975).
3PARC v. State of Pennsylvania, 343 F.Supp. 279 (E.D. Pa. 1972); Mills v. Board of
Education of the District of Columbia, 348 F.Supp. 866 (D.D.C. 1972). The House Report for
P.L. 94-142 indicated that following these decisions there were “46 cases which are completedthst
or still pending in 28 States.” H.Rep. No. 332, 94 Cong., 1 Sess. 3 (1975).
4See e.g., “Discipline Now Impossible, School Lawyer Says,”12 The Special Educator 1
(May 23, 1997); “Discipline Provisions in new IDEA Cause Serious Concerns,” 12 The Special
Educator 1 (June 6, 1997).
accounts for elementary and secondary school expenses. The amendment, which was
withdrawn, would have allowed state and local educational agencies to establish and
implement uniform policies with respect to discipline for all children within their
jurisdiction, including children with disabilities, and was identical to an amendment
offered and defeated during IDEA reauthorization last year.5
Interim Alternative Educational Placement Amendment
Representative Livingston has proposed an amendment to the Individuals with
Disabilities Education Act, 20 U.S.C. §§1400 et seq., which would add a new category
to the current provisions on interim alternative educational placements. Essentially, this
new subsection would allow schools to place a child with a disability in an interim
alternative educational placement if the child intentionally exhibits violent behavior that
has resulted or could have resulted in physical injury to the child or others while at school
or at a school function. The amendment also eliminates the current requirement that a
child with a disability can be placed by a school in an interim alternative educational
placement for a maximum of 45 days.
If this amendment was enacted, it would provide the schools with significantly more
discretion regarding the placement of children with disabilities who had violated
disciplinary rules. The school, on its own authority, would be able to remove a child with
a disability from his or her current placement to an interim alternative educational
placement for the same amount of time that a child without a disability would be subject
to discipline in several situations:
!where a child with a disability brought a weapon to school or a school function
!where a child with a disability brought drugs to a school or a school function
(current law); or
!where a child with a disability intentionally exhibits violent behavior that has
resulted in, or could have resulted in, physical injury to the child or to others while
at school or at a school function under the jurisdiction of a State or local agency
The authority of a hearing officer is unchanged regarding ordering a change in placement
to an interim alternative education setting for 45 days when the school has demonstrated
by substantial evidence that maintaining the current placement of such a child is
substantially likely to result in injury to the child or others.
The House Report for H.R. 4274, H.Rep. No. 105-635, discusses the proposed
amendment and states: “The bill includes language amending the Individuals with
Disabilities Education Act to give local education agencies flexibility to move a child
with disabilities to an alternative educational setting in situations where that child exhibits
5For a more detailed discussion of this amendment, see Jones, “Individuals with Disabilities
Education Act: Proposed Amendment on Uniform Disciplinary Policies,” CRS Rep. No. 98-385A
(May 5, 1998).
violent behavior. The behavior covered by this provision is limited to that which occurs
at school or a school function. The forty-five day limit does not apply to Sections
615(k)(1)(A)(ii)(I), 615(k)(1)(A)(ii)(II), and 615(k)(1)(A)(ii)(III). An example of a
situation covered would be where a child with a disability strikes, with the intent to harm,
his or her teacher. The provision is not intended to cover situations such as where a child
with epilepsy strikes his or her teacher while experiencing a seizure.”
There is some ambiguity concerning the use of the word “intentionally” in the
proposed amendment since intent is often difficult to determine, particularly if mental
disabilities are involved. However, the report language which illustrates the type of
situations meant to be covered and those not covered, provides some guidance.
Although this amendment would give the schools more flexibility with regard to
placement, generally it does not otherwise change the due process requirements of the act.
For example, a parent would still have the right under 20 U.S.C. §1415(b)(6) to present
a complaint regarding the education or placement of the child with a disability. This
complaint would be heard by a hearing officer and there is a right to appeal to federal
court.6 Under current law, 20 U.S.C. §1415(k)(7), when a parent requests a hearing to
challenge the interim alternative educational setting or the manifestation determination,
the child stays put in the interim alternative education setting pending the decision of the
hearing officer or the expiration of the time period provided for in paragraph (1)(A)(ii).
Since the Livingston amendment eliminates the 45 day period as described in paragraph
(1)(A)(ii), the amendment would keep the child in the interim alternative education setting
until the hearing officer's decision.
The interim alternative education placement must also meet the requirements of 20
U.S.C. §1415(k)(3). This subsection states that alternative educational settings are to be
determined by the IEP (individualized education program) team. The IEP team is
composed of at least one regular education teacher, at least one special education teacher,
a representative of the LEA (local education agency), an individual who can interpret the
instructional implications of evaluation results, the child’s parents and wherever
appropriate the child with a disability.7 In addition, the interim alternative educational
setting is to be selected so as to enable the child to continue to participate in the general
curriculum, although in another setting, and to continue to receive those services and
modifications, including those described in the child’s current IEP, that will enable the
child to meet the IEP’s goals. This setting is also to include services and modifications
designed to address the inappropriate behavior so that it does not reoccur.8
620 U.S.C. §1415(f)-(j).
720 U.S.C. §1414(d)(1)(B).
820 U.S.C. §1415(k)(3).