IEP Discipline Procedures in West Virginia
Can a school suspend or expel a student with an IEP in West Virginia?
West Virginia LEAs must follow IDEA discipline procedures for students with disabilities, as implemented through W. Va. C.S.R. § 126-16-10 and federal regulations at 34 CFR 300.530-300.537. Students with disabilities may be removed from their current placement to an appropriate interim alternative educational setting (IAES), another setting, or suspension for up to 10 school days to the extent such alternative measures would be applied to students without disabilities. For removals exceeding 10 school days in a school year, the LEA must provide educational services enabling the student to continue to progress in the general curriculum and make progress toward IEP goals. For removals of more than 10 consecutive school days or for a change of placement, a manifestation determination review (MDR) must be conducted within 10 school days to determine whether the conduct was caused by, or had a direct and substantial relationship to, the student's disability (W. Va. C.S.R. § 126-16-10.3; 34 CFR 300.530(e)). West Virginia also has state-level policies governing student conduct that must be applied in a non-discriminatory manner to students with disabilities (W. Va. Code § 18A-5-1).
What West Virginia Requires
Students with disabilities may be removed for up to 10 school days to the same extent as students without disabilities; educational services are not required during this period unless provided to nondisabled students (34 CFR 300.530(b)).
For cumulative removals exceeding 10 school days in a year, educational services must be provided to enable progress in the general curriculum and toward IEP goals (34 CFR 300.530(d)).
A manifestation determination review must be conducted within 10 school days of a decision to change placement due to a violation of a code of conduct (W. Va. C.S.R. § 126-16-10.3; 34 CFR 300.530(e)).
If the conduct is a manifestation of the disability, the LEA must return the student to the prior placement (unless the parent and LEA agree to a change), conduct or review an FBA, and implement or revise the BIP (34 CFR 300.530(f)).
LEAs may remove a student to an IAES for up to 45 school days for weapons, illegal drugs, or serious bodily injury violations regardless of whether the conduct is a manifestation (34 CFR 300.530(g)).
Parents have the right to appeal discipline decisions through IDEA's due process procedures; students remain in the IAES during appeals unless the parties agree otherwise (34 CFR 300.533).
Key Timelines
Manifestation determination review must be conducted within 10 school days of the decision to change placement due to a code of conduct violation (W. Va. C.S.R. § 126-16-10.3; 34 CFR 300.530(e)).
IAES placements for weapons/drugs/serious bodily injury last up to 45 school days; the IEP team determines the appropriate placement thereafter (34 CFR 300.530(g)).
If FBA was not conducted prior to the behavior, it must be implemented no later than 10 business days after the decision to remove the student (34 CFR 300.530(f)(1)(i)).