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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsOctober 2016

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The Secretary of Education intends to create 14 DE Admin. Code 616 Uniform Due Process Procedures for Alternative Placement Meetings and Expulsion Hearings. This regulation is created pursuant to 14 Del.C. §122(b)(26) to provide uniform procedures for alternative placement meetings and expulsion hearings. This is one of a series of regulations being developed regarding alternative placement, expulsion and due process procedures and the handling of Attorney General Reports. This regulation is aligned with the recommendations and outcomes of the School Discipline Task Force.
Notice of the proposed regulation was first published on December 1, 2015. Due to the complexity of this issue, several comments were received and reviewed. One specific comment required a substantive change, which required the proposed regulation to be republished. Notice of the proposed regulation was republished in the News Journal and the Delaware State News on June 1, 2016, in the form hereto attached as Exhibit "A". Comments were received from the State Council for Persons with Disabilities (SCPD), the Governor's Advisory Council for Exceptional Citizens (GACEC), the American Civil Liberties Union of Delaware (ACLU), the Delaware Department of Justice (DOJ) and the Department of Services for Children, Youth and Their Families (DSCYF). A very thorough review of each comment was undertaken. Comments received that resulted in a change to the regulation are related to: (1) the need to add the words "and assessment" within the definition of "Appropriate Educational Services" in order to clarify that both instruction and assessment are included in such services; (2) the need to add the words "a student" in the definition of Building Level Conference for clarification purposes. This was inadvertently removed when the definition was changed for the June republication; (3) the Due Process Grievance Procedures not being posted on the DOE website as referenced in 6.2. The Guidelines will be posted when the regulation is finalized, and may be posted in draft form prior to that time; clarification was added to the definition and to Section 6.2 that the required grievance procedures similar to the Guidelines are only those applicable to this regulation; (4) clarification needed in 3.1.1.1 regarding removal of student from the classroom and initial due process procedures as per 4.2.1; (5) clarification of 7.2.1.8 that the mailing of the Notice of the Alternative Placement Meeting will be done at least five business days before the meeting; (6) clarification of 10.3.12 to include the student being able to waive their right to a hearing before the local Board of Education, and ensuring a written waiver is signed by parent and student and is submitted in acknowledgment that the student is knowingly and voluntarily waiving their right to the hearing; (7) adding a new 10.4.3 to clarify the process for permitting students and parents to submit, and the Board of Education to consider, written statements relative to expulsion decisions; and (8) the need to add the word "student" in the renumbered Section 10.4.6 for clarification regarding a board decision being put in writing to a student, in addition to a superintendent and parent. Other grammatical corrections were made as needed.
The Secretary finds that it is appropriate to create 14 DE Admin. Code 616 Uniform Due Process Procedures for Alternative Placement Meetings and Expulsion Hearings in order to provide uniform procedures for alternative placement meetings and expulsion hearings.
For the foregoing reasons, the Secretary concludes that it is appropriate to create 14 DE Admin. Code 616 Uniform Due Process Procedures for Alternative Placement Meetings and Expulsion Hearings. Therefore, pursuant to 14 Del.C. §122, 14 DE Admin. Code 616 Uniform Due Process Procedures for Alternative Placement Meetings and Expulsion Hearings attached hereto as Exhibit "B" is hereby created. Pursuant to the provision of 14 Del.C. §122(e), 14 DE Admin. Code 616 Uniform Due Process Procedures for Alternative Placement Meetings and Expulsion Hearings hereby created shall be in effect for a period of five years from the effective date of this order as set forth in Section V. below.
The text of 14 DE Admin. Code 616 Uniform Due Process Procedures for Alternative Placement Meetings and Expulsion Hearings created hereby shall be in the form attached hereto as Exhibit "B", and said regulation shall be cited as 14 DE Admin. Code 616 Uniform Due Process Procedures for Alternative Placement Meetings and Expulsion Hearings in the Administrative Code of Regulations for the Department of Education.
The actions hereinabove referred to were taken by the Secretary pursuant to 14 Del.C. §122 on September 15, 2016. The effective date of this Order shall be ten (10) days from the date this Order is published in the Delaware Register of Regulations.
IT IS SO ORDERED the 15th day of September 2016.
Department of Education
Pursuant to 14 Del.C. §122(b)(26), this regulation, which applies to all public school districts and charter schools, provides uniform procedures for the following situations: referral of students who warrant consideration for placement outside the Regular School Program into an Alternative Program; placement of students into an Alternative Program; monitoring student progress while in Alternative Placement; return of students back into the Regular School Program from an Alternative Program; Suspensions; and Expulsion hearings.
"Administration" means administrative staff from a district, school, or charter school.
"Alternative Placement" means the removal of a student from his/her school on a temporary basis for a period of time as determined by the Alternative Placement Team and assignment to an Alternative Program.
"Alternative Placement Packet" means the documents submitted to the Alternative Placement Team including, but not limited to and as applicable, a student's academic information, behavioral information including reason for referral to Alternative Placement, attendance information, Individualized Education Plan (IEP), 504 plan, and immunization records.
"Alternative Placement Team (APT)" means a committee composed of the following: a representative of the Alternative Program staff; a district level coordinator who will be designated by the superintendent; the building level principal, assistant principal or other person as appropriate; the student's Parent; guidance counselor or school social worker; and, if appropriate, a representative from the Department of Services for Children Youth and Their Families (DSCYF) with knowledge of the student's and family's needs. Other individuals may be invited as determined by the APT. The APT reviews and prescribes the appropriate placement for students being considered for Alternative Placement.
"Alternative Placement Team Meeting" means a meeting held by the district/charter school Alternative Placement Team to determine the appropriate educational setting for a student whose behavior is within the defined conduct under 14 DE Admin. Code 614 and who has been recommended for Assignment to an Alternative Program.
"Alternative Program" means a school discipline improvement program that provides Appropriate Educational Services that has been created for students whose behavior(s) is within the defined conduct under 14 DE Admin. Code 614. This includes any programs managed by a school district/charter or the Consortium Discipline Alternative Program.
"Appropriate Educational Services" means instruction [and assessment] provided by the district/charter and includes access to instructional materials, graded homework and communication with educators so as to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting a level of proficiency in that curriculum.
"Assignment to an Alternative Program" means student Assignment to an Alternative Program, including Consortium Discipline Alternative Program and any Alternative Program maintained by a district/charter school, until the student has fulfilled the requirements to return to the Regular School Program.
"Attorney General's Report (Juvenile Arrest Warrant and Complaint)" means the Department of Justice's report of alleged out-of-school criminal conduct, regardless of jurisdiction, which shows disregard for the health, safety and welfare of others, including, but not limited to acts of violence, weapons offenses, and drug offenses.
"Board of Education" means the Board of Education of a reorganized school district or the Board of Directors of a charter school.
"Building Level Conference" means a meeting which is held by phone or in person between the Principal, other appropriate school staff members as determined by the Principal, [a student] and a student's Parent to discuss the student's misconduct relative to a recommendation for Suspension, Alternative Placement, or Expulsion.
"Consortium Discipline Alternative Program" means a school discipline improvement program which serves an organized consortium of school districts and/or charter schools as provided for in 14 Del.C. Ch. 16.
"Disciplinary Action" means the student identified for Short or Long-Term Suspension, Expulsion, or Alternative Placement who may be excluded from all school activities, including but not limited to, extracurricular sports/programs, field trips, and ceremonies; is not allowed on School Property unless placed in an Alternative Placement on School Property; and, if applicable, will have his driver's license suspended in accordance with 14 Del.C. §4130(e).
"Discipline Record" means all information about Disciplinary Action taken against a specific student as a result of any infraction of the school's/district's Student Code of Conduct or other rules.
"Expulsion" means Disciplinary Action approved by the Board of Education resulting in a student being removed from the Regular School Program for a duration not to exceed the total number of student days in a school year. A student expelled without Appropriate Educational Services shall be unenrolled from the district/charter during the term of the expulsion. Regardless of whether without or with services, including Alternative Placement, the expelled student is not eligible to enroll in any other Delaware public school during the period of the Expulsion and until any reasonable terms of the Expulsion are fulfilled.
"Grievance" means a formal complaint, filed per specific district/charter procedures, to school Administration regarding a student's rights or liberty interests having been denied or impaired. At a minimum, the procedures shall be similar to the Grievance Guidelines [applicable to this regulation,] as posted on the Department of Education website.
"Hearing Officer" means an official appointed by the district/charter to conduct a formal due process hearing for a student recommended for Disciplinary Action which requires a formal due process hearing. The Hearing Officer may be an employee of the district or charter school, but shall not have been involved in any review of the student incident at the building or district level.
"In-School Alternative Program" means a School-Based Intervention Program (SBI) as described in 14 DE Admin. Code 609. Placement is determined by the school's Student Intervention Team as described in 14 DE Admin. Code 609. The program design includes the student's regular curriculum, as well as character education, social skills development, conflict resolution, access to counseling services and behavior modification strategies.
"Intake Form" means the checklist used during the student Intake Meeting which ensures the inclusion of behavioral, academic, and other necessary information to facilitate the placement of a student at a Consortium Discipline Alternative Program.
"Intake Meeting" means the meeting at an Alternative Program site which includes the student, the Parent, district/charter school representative, program administrator and other appropriate Alternative Program staff. At this meeting the program's rules and expectations are reviewed, paperwork that requires student and Parent signatures is completed, and the district's/charter school's individualized goals and expectations for the alternatively-placed student are reviewed.
"Outside Agency" means any agency from which a student has received services, but does not include an Alternative Program. Examples include, but are not limited to: judicial placement, youth detention facility, substance abuse facility, and mental health facility.
"Parent" means a biological or adoptive parent of a child; a guardian generally authorized to act as the child's parent, or authorized to make educational decisions for the child (but not the State if the child is a ward of the State); an individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives and for whom a Relative Caregiver's School Authorization executed in compliance with 14 Del.C. §202(f)(1) is on file; an individual [or entity] who is otherwise legally responsible for the child's welfare; a surrogate parent who has been appointed in accordance with 14 DE Admin. Code 926.19; or a student who has reached the age of majority as defined in 1 Del.C. §701.
"Principal" means the building principal, or the equivalent of the building principal, of any district or charter school, or the principal's designee.
"Regular School Program" means student enrollment in a public school, not including specially assigned non-special education or student behavioral intervention programs within or outside the enrolled school, in which the student's classroom or course placement is based primarily on age, grade level and cognitive abilities as assigned by the school Administration or an IEP team and the student's participation in daily course instruction and activities within the assigned classroom or course.
"Repeated Violations of Student Code of Conduct" means five or more violations of the school's Student Code of Conduct within a school year, excluding chronic infractions for tardiness or unexcused absences to school/class.
"School Discipline Committee" means a school-level committee consisting of appropriate school personnel, similar to those identified in 14 Del.C. Ch. 16, which meets to decide on student Disciplinary Action recommendations made by the Principal.
"School Environment" means within or on School Property, and at school sponsored or supervised activities, including, for example, on school grounds, on school buses, at functions held on school grounds, at school sponsored extracurricular activities held on and off school grounds, on field trips and at functions held at the school in the evening.
"School Property" means any building, structure, athletic field, sports stadium or real property that is owned, operated, leased or rented by any public school district or charter school including, but not limited to, any kindergarten, elementary, secondary, or vocational-technical school or charter school, or any motor vehicle owned, operated, leased, rented or subcontracted by any public school or charter school.
"Student Code of Conduct" means the district/charter school approved document which specifies the rights and responsibilities of students, defines conduct that disrupts/threatens a positive/safe School Environment, standardizes procedures for consequences and Disciplinary Action, and defines due process and Grievance procedures.
"Student Review" means a formal meeting that takes place at the Alternative Program with the district/charter school representative, the Alternative Program Administrator, and other appropriate Alternative Program staff to determine to what degree the student currently placed in the Alternative Program is progressing toward their behavioral and academic goals as determined during the student's Intake Meeting. The student and Parent shall be invited to attend this meeting.
"Superintendent" means the chief school officer of any public school district or charter school, or the equivalent of a superintendent, or the superintendent's designee.
"Suspension, Long-term (Long-term Suspension)" means Disciplinary Action approved by the Superintendent upon recommendation of the Principal or District Alternative Placement Team resulting in the student being removed from the Regular School Program for eleven (11) consecutive school days or more and not to exceed the total number of school days in a school year. Student chooses to waive his right to a formalized due process hearing as outlined in Section 10.0 of this regulation, maintains enrollment in the district/charter, and is provided Appropriate Educational Services during the term of the suspension, but is excluded from all school activities including, but not limited to, extracurricular sports/programs, field trips, and ceremonies. Student is not allowed on School Property when suspension is out-of-school. A Long-term Suspension requires initial due process procedures as outlined in Section 4.0 of this regulation and the student choosing to waive his right to a formalized due process hearing as outlined in Section 10.0 of this regulation.
"Suspension, Short-term (Short-term Suspension)" means Disciplinary Action approved by the Principal or School Discipline Committee resulting in the student being removed from his Regular School Program for at least one (1) school day and not more than ten (10) consecutive school days. Student maintains enrollment in district/charter, but is excluded from all school activities including, but not limited to extracurricular sports/programs, field trips, and ceremonies. Student is not allowed on School Property when Short-term Suspension is out-of-school. A Short-term Suspension requires initial due process procedures as outlined in subsection 5.1 of this regulation.
"Transition Meeting" means a meeting to discuss the student's return to the Regular School Program which takes place at the school in which the student is enrolled, with the Alternative Program representative, the district/charter school representative, the student, the Parent, a school administrator, a teacher, a school counselor, a student advisor or disciplinarian if assigned, or other representative.
"Violent Felony" means a crime designated in 11 Del.C. §4201(c).
3.2.1 If the investigation reveals that there is reliable information that would lead a reasonable person to believe that a mandatorily reportable crime under 14 Del.C. §4112 has been committed, the Principal shall immediately notify the appropriate law enforcement agency of the incident.
3.2.2 The Principal shall report all offenses listed as a mandatory report to the Department of Education under 14 Del.C. §4112 and 14 DE Admin. Code 601 within five (5) business days of the incident by completing the information in the eSchoolPlus discipline center or successor Delaware Department of Education approved student database management application.
5.2.1 The Superintendent, in accordance with the rules of the district/charter school, shall have the right to impose a Long-term Suspension on any student in the school who has violated the school's Student Code of Conduct's listed acts of misconduct as defined in 14 DE Admin. Code 614.3. The duration of the Long-term Suspension shall not exceed the number of school days in a school year for any single conduct violation or combination of violations which occurred during a single disciplinary incident.
6.2 Grievance procedures, shall, at a minimum, be similar to the Grievance guidelines [applicable to this regulation] as posted on the Department of Education's website.
7.1.1.2 A Principal may refer a student for Alternative Placement for any offense listed in 14 Del.C. §4112. Students ineligible as a result of an offense listed in 14 DE Admin. Code 611 shall not be referred to a Consortium Discipline Alternative Program.
7.2.1.8 [The Parent and the student shall, at a minimum, receive written notice via regular U.S. and certified mail, of the district/charter school Alternative Placement Meeting. Notice of the Alternative Placement Meeting shall be mailed to the Parent and the student via regular U.S. and certified mail at least five business days before the meeting is to occur.]
10.3.12 In lieu of a formal Expulsion hearing, a [Parent student] may elect to waive the hearing and admit to the [student’s] violation charge(s). The [student and] Parent shall submit a [signed] written hearing waiver [which indicates that the student is knowingly and voluntarily waiving their right to the hearing]. Such election may be exercised until the commencement of the hearing. This waiver does not absolve the student from required consequences under Federal or State Law or the Student Code of Conduct.
10.4.[34] Eligible expelled students shall be placed in a Consortium Discipline Alternative Program in accordance with 14 Del.C. §1604 and 14 DE Admin. Code 611. The Board shall determine if the students not eligible for placement in a Consortium Discipline Alternative Program shall be expelled with or without Appropriate Educational Services.
10.4.[45] Any decision to expel a student shall be reported to the Delaware Department of Education within five (5) business days of the Board's decision to expel. When a Board of Education expels a student, but determines the student shall not be placed at a Consortium Discipline Alternative Program, the written decision shall address with specificity the reason for non-placement and the evidence in support thereof. Such decisions shall be submitted to the Delaware Department of Education's Office of School Climate and Discipline within five business days of such decision, with a copy to the student's Parent.
10.4.[56] Except as is otherwise provided herein, within ten (10) business days of the decision by the Board, the Board, through its designee, shall submit its decision to the Superintendent and Parent [and student] in writing. The written decision shall include notice of the right to appeal to the State Board of Education.
10.5.1 In calculating the period of time for the term of the Expulsion, school days will be used. Students [adjudicated to a Delaware Division of Youth Rehabilitative Services (YRS) receiving residential services from a Department of Services for Children, Youth and Their Families (DSCYF)] program shall have the amount of school days served in such program counted as part of the calculation of time for an Expulsion. This does not preclude a district/charter from transitioning a student from a YRS program to the Regular School Program through an Alternative Program. However, transition through an Alternative Program is not required.
11.1 Nothing in this regulation shall alter a district/charter school's duties under the Individual with Disabilities Act (IDEA) or 14 DE Admin. Code 922 through 929. Nothing in this regulation shall prevent a district/charter school from providing supportive instruction to children with disabilities in a manner consistent with the Individuals with Disabilities Education Act (IDEA) and Delaware Department of Education regulations.
Last Updated: December 31 1969 19:00:00.
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