Discipline Rights & the Manifestation Determination Review

Discipline Rights for Students with IEPs in NYC District 29: A Parent's Guide

If your child with an IEP has been suspended in District 29 (Cambria Heights, Laurelton, Queens Village, Springfield Gardens, Rosedale), you're likely feeling overwhelmed. This guide provides immediate, actionable information about your child's rights and how to advocate for them. The goal is to ensure your child receives a fair disciplinary process and continues to receive a Free and Appropriate Public Education (FAPE), as guaranteed by law. This is especially important for students with IEPs, as disciplinary actions can disrupt their learning and progress.

The information here is designed to help you understand the complex rules surrounding student discipline and special education. We'll cover everything from short-term suspensions to Manifestation Determination Reviews (MDRs) and your rights to challenge disciplinary decisions. Remember, you are your child's strongest advocate, and understanding these rights is the first step in ensuring they are protected.

Short-Term Suspensions: The 10-Day Rule

New York State Education Law 3214 governs student suspensions in New York, including in District 29. A key concept to understand is the "10-day rule." Your child can be suspended for up to 10 cumulative school days in a school year without triggering a formal Manifestation Determination Review (MDR). This means that if your child has multiple short suspensions that add up to 10 days or less, the school district isn't automatically required to conduct an MDR.

However, even for suspensions under 10 days, the school district must still follow certain procedures. You are entitled to written notification of the suspension, explaining the reasons for it and the length of the suspension. This notice should also inform you of your right to an informal conference with the principal or other school official to discuss the suspension.

Importantly, even if the suspension is less than 10 days, your child's right to FAPE may still be relevant. If the suspension is related to their disability, or if the school isn't providing necessary supports outlined in the IEP, you can argue that services should continue during the suspension. Contact the Committee on Special Education (CSE) office for District 29 to discuss your child's specific situation and request continuation of services during any suspension, even a short one. You can find contact information for the District 29 CSE on the NYC Department of Education website.

When an MDR Is Required

A Manifestation Determination Review (MDR) is required when a student with an IEP faces a "change of placement" due to disciplinary action. This typically occurs in two situations:

• Suspension exceeding 10 cumulative school days: If your child's suspensions add up to more than 10 school days in a school year, an MDR is triggered. It's crucial to keep track of all suspensions your child receives. * Pattern of removals: Even if no single suspension exceeds 10 days, a series of shorter suspensions can constitute a "pattern of removals" that triggers an MDR. This is determined by factors like the length of each removal, the total amount of time the student is removed, the proximity of the removals to one another, and whether the student's behavior is substantially similar across incidents.

The MDR team typically includes you (the parent/guardian), relevant school personnel (such as the principal, special education teacher, and general education teacher), and a district representative. 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, the student's disability; or whether the behavior was the direct result of the school district's failure to implement the student's IEP.

The school district must conduct the MDR within 10 school days of the decision to change the student's placement due to a disciplinary action. This is a critical timeline, so be proactive in contacting the school and CSE to ensure the MDR is scheduled promptly.

The Two MDR Outcomes

The MDR team will address two crucial questions:

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

If the answer to either of these questions is "yes," the behavior is considered a manifestation of the student's disability. This has significant implications for disciplinary action.

Behavior IS a manifestation: If the MDR team determines that the behavior was a manifestation of the student's disability, the school district cannot proceed with a long-term suspension (more than 10 days). The student must be returned to their original placement (unless you and the district agree to a change of placement as part of the IEP). The MDR team must also conduct a Functional Behavioral Assessment (FBA), unless one has already been conducted, and implement a Behavior Intervention Plan (BIP) for the student. If a BIP is already in place, the team must review and revise it as necessary to address the behavior.

Behavior is NOT a manifestation: If the MDR team determines that the behavior was not a manifestation of the student's disability, the school district may proceed with the disciplinary action, including a suspension exceeding 10 days. However, even in this case, the district must continue to provide FAPE to the student during the suspension. This means providing services that allow the student to continue to participate in the general education curriculum and progress toward their IEP goals.

The 45-Day Interim Alternative Setting

There are limited circumstances in which a school district 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 the student's disability. These circumstances are:

• Weapons: The student possesses a weapon at school or a school function. * Drugs: The student knowingly possesses or uses illegal drugs, or sells or solicits the sale of controlled substances, at school or a school function. * Serious Bodily Injury: The student has inflicted serious bodily injury upon another person at school or a school function.

Even in these situations, the school district must provide services that enable the student to continue to participate in the general education curriculum, although in another setting, and to continue to progress toward meeting the goals set out in the student's IEP.

If you disagree with the school district's decision to place your child in an interim alternative setting, you have the right to challenge the decision through an expedited due process hearing. This is a faster process than a regular due process hearing, designed to resolve the issue quickly. Contact an attorney or advocate specializing in special education law immediately to discuss your 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 involves gathering information about the student's behavior, the triggers for the behavior, and the consequences that maintain the behavior. This information is then used to develop a Behavior Intervention Plan (BIP).

The school district is required to conduct an FBA if a student's behavior impedes their learning or the learning of others. This is particularly important when a student is facing disciplinary action. As mentioned above, if the MDR team determines that a student's behavior was a manifestation of their disability, and an FBA has not already been conducted, the district must conduct one.

A good BIP should be individualized to the student's needs and based on the findings of the FBA. It should include specific strategies for preventing the behavior from occurring, teaching the student alternative behaviors, and responding to the behavior when it does occur. The BIP should also include a plan for monitoring the student's progress and making adjustments to the plan as needed.

You don't have to wait for a crisis to request an FBA. If you believe your child's behavior is interfering with their learning, you can request an FBA from the school district at any time. Put your request in writing and send it to the school principal and the CSE. Document everything. A proactive FBA and BIP can help prevent disciplinary issues from arising in the first place.

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

If your child has been suspended, take these steps immediately:

1. Get the suspension notice in writing: Obtain a written notice of the suspension from the school. This notice should include the reasons for the suspension, the length of the suspension, and your rights as a parent. 2. Count cumulative suspension days: Keep track of the number of days your child has been suspended during the current school year. This is crucial for determining when an MDR is required. 3. If approaching 10 days, request MDR in writing: If your child's suspensions are approaching 10 cumulative days, send a written request to the school principal and the CSE requesting an MDR. Do not delay. 4. Contact the CSE office: Contact the District 29 CSE office to discuss your child's suspension and request continuation of services during the suspension. Emphasize your child's right to FAPE. You can find contact information for the District 29 CSE on the NYC Department of Education website. 5. Escalate if necessary: If you believe the school district is not following proper procedures or is denying your child's rights, you have several options: * State Complaint to NYSED: You can file a formal complaint with the New York State Education Department (NYSED). * Expedited Due Process Hearing: As mentioned above, you can request an expedited due process hearing to challenge the school district's decisions. This is particularly relevant if you disagree with a placement in an interim alternative setting.

Remember, time is of the essence. Document all communication with the school district and seek legal advice from a special education attorney or advocate as soon as possible. You can find resources and support through organizations like INCLUDEnyc and the Advocates for Children of New York.