Discipline Rights & the Manifestation Determination Review

Discipline Rights for Students with IEPs in NYC District 28: A Parent's Guide

If your child with an IEP has just been suspended in District 28 (Forest Hills), you're likely feeling overwhelmed and unsure of what to do next. This guide is designed to provide you with immediate, actionable steps you can take to protect your child's rights and ensure they receive the educational support they are entitled to under the law. District 28, which includes Forest Hills, Rego Park, Jamaica, Kew Gardens, and Richmond Hill, must adhere to New York State Education Law and the Individuals with Disabilities Education Act (IDEA) when disciplining students with disabilities. Understanding these laws and your rights is crucial.

The key thing to remember is that students with IEPs have additional protections when it comes to discipline, particularly suspensions. These protections are in place to ensure that a child isn't punished for behaviors related to their disability or due to the school's failure to properly implement their IEP. This guide will walk you through the steps you need to take, starting from the moment you receive that suspension notice.

Short-Term Suspensions: The 10-Day Rule

New York State Education Law 3214 governs student suspensions. The law differentiates between short-term and long-term suspensions, and the rules are different for each. For students with IEPs, a critical threshold is the "10-day rule." Your child can be suspended for up to 10 cumulative school days in a school year without triggering a Manifestation Determination Review (MDR). This means that if your child has multiple suspensions that add up to 10 days or less, the school district doesn't automatically have to conduct an MDR.

However, even for these short-term suspensions, your child's right to a Free and Appropriate Public Education (FAPE) still applies. While a formal MDR isn't required, the district should still consider whether the behavior is related to your child's disability and whether the IEP is being properly implemented. You can always advocate for services to continue during a short-term suspension, especially if the behavior is disability-related. Contact the Committee on Special Education (CSE) office in District 28 to discuss this.

It's also important to know your rights regarding notification of a short-term suspension. NY Education Law 3214 requires that you be informed of the reason for the suspension and given an opportunity to be heard. This usually involves a phone call or meeting with school administrators. Make sure you receive this notification in writing, detailing the charges against your child and the length of the suspension. Keep careful track of the number of suspension days your child has accumulated throughout the school year. This information is crucial for determining when an MDR is required.

When an MDR Is Required

A Manifestation Determination Review (MDR) is a critical process that determines whether your child's behavior leading to a suspension is related to their disability. An MDR is required when a student with an IEP faces a suspension exceeding 10 school days or a pattern of removals that constitutes a change in placement. A "change in placement" doesn't just mean a change of school. It can also refer to a series of short-term suspensions that, when taken together, create a pattern of exclusion from the educational environment. For example, frequent suspensions for similar behaviors, or suspensions that consistently occur on certain days of the week, could be considered a change in placement.

The MDR meeting brings together the IEP team, including you (the parent), relevant school personnel such as teachers, administrators, related service providers, and, when appropriate, your child. The purpose of the meeting is to answer two key questions:

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

If the answer to either of these questions is "yes," then the behavior is considered a manifestation of the child's disability.

The MDR must occur within 10 school days of the decision to change the student's placement due to a violation of a code of conduct. This timeline is crucial, so be sure to advocate for a timely meeting if your child is facing a suspension that triggers the MDR requirement. Contact the District 28 CSE office immediately to schedule the MDR.

The Two MDR Outcomes

The outcome of the MDR has significant implications for your child's education and disciplinary consequences. If the IEP team determines that the behavior is a manifestation of your child's disability, the district cannot proceed with a long-term suspension (beyond the days already served). Instead, the school must take immediate steps to address the underlying causes of the behavior.

This typically involves the following:

• Returning the student to their original placement: Unless you and the district agree to a change of placement as part of the revised IEP. * Reviewing and revising the Functional Behavioral Assessment (FBA) and Behavior Intervention Plan (BIP): The FBA identifies the triggers and functions of the behavior, while the BIP outlines strategies to prevent and manage the behavior. These documents must be updated to address the specific behavior that led to the suspension. * Implementing the revised BIP: The school must provide the necessary supports and services to help your child learn and use alternative, more appropriate behaviors.

If, on the other hand, the IEP team determines that the behavior is not a manifestation of your child's disability, the district may proceed with the disciplinary action, including a long-term suspension. However, even in this case, your child is still entitled to FAPE. This means that 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, alternative assignments, or other supports. Contact the District 28 CSE to confirm what services will be provided.

The 45-Day Interim Alternative Setting

There are limited circumstances in which a school 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 a manifestation of their disability. These circumstances are:

* The student possesses a weapon at school or a school function. * The student knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, at school or a school function. * The student has inflicted serious bodily injury upon another person at school or a school function.

Even in these situations, your child's right to FAPE remains in effect. The district must provide services that enable your child to continue to participate in the general education curriculum, although in another setting, and to progress toward the goals set out in the IEP. This could involve placement in a special program, tutoring, or other supports designed to meet your child's individual needs.

If you disagree with the district's decision to place your child in an interim alternative setting, you have the right to challenge this decision through an expedited due process hearing. This is a faster process than a regular due process hearing, designed to resolve the issue quickly. You should consult with an attorney or advocate experienced in special education law to understand your rights and options.

FBAs and Behavior Intervention Plans

A Functional Behavioral Assessment (FBA) is a process used to understand why a student is engaging in certain behaviors. It looks at the triggers, functions, and consequences of the behavior to develop a comprehensive picture of what is happening. An FBA is often the first step in developing a Behavior Intervention Plan (BIP).

Under IDEA, a school district is required to conduct an FBA when a student's behavior impedes their learning or the learning of others. This is particularly important for students with IEPs who are facing disciplinary action. The FBA should be conducted by qualified professionals who have experience in behavioral assessment and intervention.

A good BIP should include:

• Specific, measurable goals: What behaviors are you trying to increase or decrease? * Strategies to prevent the behavior: What can be done to avoid the triggers that lead to the behavior? * Positive reinforcement strategies: How will the student be rewarded for engaging in appropriate behavior? * Consequences for inappropriate behavior: What will happen if the student engages in the problem behavior? These consequences should be consistent and predictable. * Data collection methods: How will the school track the student's progress?

You, as a parent, have the right to request an FBA proactively, before a crisis occurs. If you see that your child is struggling with certain behaviors, or if you anticipate that a change in the school environment could trigger problem behaviors, you should put your request for an FBA in writing to the District 28 CSE. This can help prevent disciplinary issues from arising in the first place.

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

When you receive notice that your child has been suspended, it's crucial to act quickly to protect their rights. Here's a checklist of steps you should take immediately:

1. Get the suspension notice in writing: The notice should clearly state the reason for the suspension, the length of the suspension, and your rights as a parent. 2. Count the cumulative suspension days: Keep track of how many days your child has been suspended this school year . This is important for determining when an MDR is required. 3. If approaching 10 days, request an MDR in writing immediately: Even if the current suspension doesn't push your child over the 10-day limit, if you're close, request an MDR to be proactive. Send this request to the principal and the District 28 CSE office. 4. Contact the District 28 CSE office to request continuation of services: Remind them of your child's right to FAPE, even during a suspension. Ask what services will be provided to ensure your child continues to make progress on their IEP goals. 5. Document everything: Keep copies of all correspondence, including emails, letters, and notes from phone calls. 6. Consider escalation if necessary: If you believe the district is not properly implementing your child's IEP or is violating their rights, you have several options: * File a State Complaint with the New York State Education Department (NYSED): This is a formal complaint alleging a violation 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. You will likely need an attorney or advocate to navigate this process.

Remember, you are your child's best advocate. By understanding your rights and taking prompt action, you can ensure that your child receives the support and services they need to succeed in school, even when facing disciplinary challenges. Contact the District 28 CSE and seek legal advice if needed.