Discipline Rights & the Manifestation Determination Review

Discipline Rights for Students with IEPs in NYC District 9

If you're reading this, it's likely because your child with an IEP (Individualized Education Program) in NYC District 9 has been suspended from school. This can be a stressful and confusing time, but it's crucial to understand your child's rights and how to advocate for them. This page will guide you through the disciplinary process, focusing on the specific protections afforded to students with IEPs under federal and New York State law. We'll cover manifestation determination reviews (MDRs), Functional Behavior Assessments (FBAs), Behavior Intervention Plans (BIPs), and what steps you should take immediately following a suspension. Remember, your child has the right to a Free and Appropriate Public Education (FAPE), even when disciplinary action is taken.

NYC District 9 includes the Grand Concourse, Highbridge, Morrisania, and Tremont neighborhoods. It's essential to know that schools in District 9, like all schools in New York State, must adhere to specific procedures when disciplining students with disabilities. These procedures are designed to ensure that a student's disability is considered when addressing behavioral issues and that they continue to receive appropriate educational services. Don't hesitate to contact the district's special education office or a special education lawyer if you feel your child's rights are being violated.

Short-Term Suspensions: The 10-Day Rule

New York State Education Law § 3214 governs student suspensions. Under this law, schools in NYC District 9 can suspend a student for up to 10 cumulative school days in a school year without triggering a formal Manifestation Determination Review (MDR). This is often referred to as the "10-day rule." It's important to track the number of days your child has been suspended throughout the year. Keep a record of each suspension, including the dates and the reasons given by the school.

Even for suspensions under 10 days, the school must provide you with written notice of the suspension, explaining the reasons for the disciplinary action and your child's right to an informal conference with the principal or other school administrator. This notice should be provided as soon as possible following the suspension decision. While an MDR isn't required for suspensions under 10 days, your child is still entitled to FAPE. This means the school should consider whether your child needs continued access to their IEP services, such as counseling or specialized instruction, even during a short-term suspension. Contact the Committee on Special Education (CSE) office in District 9 to advocate for these services.

It is important to note that even if each individual suspension is less than 10 days, a pattern of short-term suspensions can still trigger the need for an MDR. We will discuss this further in the next section.

When an MDR Is Required

A Manifestation Determination Review (MDR) is required when a student with an IEP is facing a suspension that exceeds 10 cumulative school days in a school year, or when there is a pattern of removals that constitutes a change of placement. A "pattern of removals" means a series of suspensions, even if each is less than 10 days, that add up to more than 10 days and demonstrate a significant change in the student's educational placement. Factors considered in determining a pattern include the length of each removal, the proximity of the removals to one another, and the total amount of time the student is excluded from school.

The purpose of the MDR is to determine whether the student's behavior that led to the suspension was caused by, or had a direct and substantial relationship to, their disability, or whether the behavior was a direct result of the school's failure to implement the student's IEP. The MDR must be conducted within 10 school days of the decision to change the student's placement due to a violation of a code of student conduct.

The IEP team, including you as the parent, relevant school personnel (such as the principal, teachers, and any specialists who work with your child), and the student (when appropriate), must attend the MDR meeting. During the meeting, the team will review all relevant information, including the student's IEP, any behavior intervention plans, school records, and any information you provide. The team will then address two critical questions:

1. Was the conduct in question caused by, or did it have a direct and substantial relationship to, the child's disability? 2. Was the conduct in question the direct result of the school's failure to implement the IEP?

The Two MDR Outcomes

The outcome of the Manifestation Determination Review (MDR) has significant implications for your child's disciplinary process. If the IEP team determines that the answer to either of the two questions is "yes" – meaning the behavior was a manifestation of the disability or was due to the district's failure to implement the IEP – then the behavior is considered a manifestation of the disability.

If the behavior is determined to be a manifestation of the disability, the school cannot proceed with a long-term suspension (more than 10 days). The school must immediately return the student to their original placement, unless you and the school agree to a change of placement as part of the IEP process. The IEP team must also conduct a Functional Behavior Assessment (FBA), unless one has already been conducted, and implement or revise a Behavior Intervention Plan (BIP) to address the behavior. The focus shifts to understanding the function of the behavior and developing strategies to prevent it from happening again.

However, if the IEP team determines that the answer to both questions is "no" – meaning the behavior was not a manifestation of the disability and was not due to the district's failure to implement the IEP – then the behavior is not considered a manifestation of the disability. In this case, the school may proceed with disciplinary action, including a suspension exceeding 10 days. However, even if the suspension proceeds, your child is still entitled to a Free and Appropriate Public Education (FAPE). This means the district must provide services that allow your child to continue to participate in the general education curriculum and progress toward their IEP goals during the suspension. These services could include tutoring, homework assignments, or other supports.

The 45-Day Interim Alternative Setting

In very specific circumstances, a school in NYC District 9 can remove a student with an IEP to an interim alternative educational setting for up to 45 school days, regardless of whether the behavior is determined to be a manifestation of the disability. These circumstances are limited to situations where the student has:

* Carried a weapon to school or possessed a weapon at school. * Knowingly possessed or used illegal drugs, or sold or solicited the sale of a controlled substance, at school. * Inflicted serious bodily injury upon another person at school.

"Serious bodily injury" generally means an injury that involves a substantial risk of death; extreme physical pain; protracted and obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

Even during this 45-day removal, the school district is still responsible for providing your child with FAPE. This means they must receive services that allow them to continue to participate in the general education curriculum and progress toward their IEP goals. The IEP team will determine the appropriate services and the interim alternative educational setting.

If you disagree with the school's decision to place your child in an interim alternative setting, or if you believe the services being provided are not adequate, you have the right to challenge the decision by requesting an expedited due process hearing. This is a faster process than a standard due process hearing, and it is designed to resolve disputes quickly in these urgent situations. Contact a special education lawyer or advocate immediately if you believe your child's rights are being violated.

FBAs and Behavior Intervention Plans

A Functional Behavior Assessment (FBA) is a process used to identify the reasons behind a student's challenging behavior. It looks at what happens before, during, and after the behavior to understand its function – what the student is trying to achieve or avoid by engaging in the behavior. An FBA is crucial for developing effective strategies to address the behavior.

Under federal law, a school district must conduct an FBA when a student's behavior results in a disciplinary action and the behavior is determined to be a manifestation of the student's disability. However, you don't have to wait for a disciplinary crisis to request an FBA. If you are concerned about your child's behavior and believe it is interfering with their learning or the learning of others, you have the right to request an FBA from the school. Put your request in writing to the school principal and the CSE.

A Behavior Intervention Plan (BIP) is developed based on the findings of the FBA. The BIP outlines specific strategies and interventions to address the challenging behavior. A good BIP should include:

* A clear description of the target behavior. * Identification of the triggers or antecedents that lead to the behavior. * Strategies to prevent the behavior from occurring in the first place (proactive strategies). * Strategies to teach the student alternative, more appropriate behaviors. * Strategies to respond to the behavior when it occurs (reactive strategies). * A plan for monitoring the effectiveness of the BIP.

The BIP should be individualized to your child's specific needs and should be implemented consistently by all staff who work with your child. As a parent, you should be actively involved in the development and implementation of the BIP.

Day 1 Checklist: What to Do When Your Child Is Suspended

If your child has been suspended from school in NYC District 9, here's a checklist of steps you should take immediately:

1. Get the suspension notice in writing. The school is required to provide you with written notice of the suspension, explaining the reasons for the disciplinary action and the length of the suspension. Make sure you receive this notice and keep it for your records. 2. Count the cumulative suspension days. Keep track of the number of days your child has been suspended this school year. This is crucial for determining when an MDR is required. 3. If approaching 10 days, request an MDR in writing immediately. If your child is approaching 10 cumulative days of suspension, send a written request to the school principal and the CSE requesting an MDR. This will help ensure that the MDR is conducted in a timely manner. 4. Contact the CSE office to request continuation of services. Even during a suspension, your child is entitled to FAPE. Contact the CSE office in District 9 to request that your child's IEP services, such as counseling or specialized instruction, continue during the suspension. 5. Document everything. Keep detailed records of all communication with the school, including dates, times, and the names of the people you spoke with. Save all emails and letters. 6. Consider your escalation options. If you believe the school is violating your child's rights, you have several options for escalating the issue: * File a State Complaint with the New York State Education Department (NYSED). This is a formal complaint process that can be used to address violations of IDEA. * Request an expedited due process hearing. This is a more formal legal process that can be used to resolve disputes with the school district. Due process hearings are typically used for more serious issues, such as disagreements about the IEP or the appropriateness of the school's disciplinary actions. 7. Consult with a special education lawyer or advocate. A lawyer or advocate can provide you with legal advice and help you navigate the special education system. They can also represent you at meetings with the school and at due process hearings.

Remember, you are your child's best advocate. By understanding your child's rights and taking proactive steps, you can help ensure that they receive the education and support they need to succeed.