Discipline Rights for Students with IEPs in NYC District 75

If your child with an Individualized Education Program (IEP) in NYC District 75 has been suspended, you're likely feeling overwhelmed. It's crucial to understand your child's rights and the specific procedures that apply to students with IEPs under the Individuals with Disabilities Education Act (IDEA) and New York State Education Law. This guide will walk you through the process, focusing on Manifestation Determination Reviews (MDRs), suspensions, and your rights as a parent. Remember, you are your child's strongest advocate.

District 75 serves students with significant disabilities across New York City. Because of the unique needs of these students, it's especially important that disciplinary actions are carefully considered and implemented fairly. A key safeguard is the Manifestation Determination Review (MDR), which determines if your child's behavior is related to their disability or the district's failure to properly implement their IEP. If the behavior is a manifestation of either of those things, the school cannot proceed with a long-term suspension.

This guide is designed to provide you with actionable information and steps you can take immediately to protect your child's rights. We'll cover short-term suspensions, when an MDR is required, the possible outcomes of an MDR, interim alternative settings, Functional Behavior Assessments (FBAs) and Behavior Intervention Plans (BIPs), and a checklist of what to do on the first day of a suspension. Let's get started.

Short-Term Suspensions: The 10-Day Rule

New York State Education Law §3214 governs student suspensions. Generally, a school can suspend a student for up to 5 school days without a formal hearing. For suspensions longer than 5 days, the student is entitled to a superintendent's hearing with due process protections. However, for students with IEPs, there's an additional layer of protection: the "10-day rule."

The 10-day rule states that a student with an IEP 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 short suspensions that add up to 10 days or less, the school is not required to conduct an MDR.

However, even for short-term suspensions, the school must still provide you with notice of the suspension, including the reasons for the suspension and the length of the suspension. New York Education Law §3214 requires that you be given an opportunity for an informal conference with the principal or other school official regarding the suspension. This is your chance to present your side of the story and advocate for your child.

Even if the 10-day threshold hasn't been met, it's important to remember that your child is still entitled to a Free Appropriate Public Education (FAPE). This means that even during a short-term suspension, the school should consider whether your child needs continued access to their educational program and services to make progress on their IEP goals. Contact the Committee on Special Education (CSE) office to request continuation of services during any suspension, even if it's only for a day or two. While the district may not be required to provide services for suspensions under 10 days, it's worth advocating for, especially if your child is significantly impacted by missing school.

When an MDR Is Required

A Manifestation Determination Review (MDR) is required when a student with an IEP is facing a suspension that will result in a change of placement. According to IDEA, this occurs when a student is:

* Suspended for more than 10 consecutive school days; or * Subject to a pattern of removals that totals more than 10 school days in a school year, if the behavior is substantially similar to the student's previous infractions, and additional factors such as the length of each removal, the total amount of time the student has been removed, and the proximity of the removals to one another.

In other words, if your child's suspensions are adding up, and the school is responding to similar behaviors each time, the district can't just keep suspending your child without triggering an MDR. They have to determine if the behavior is related to your child's disability.

The MDR meeting must be held 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 conducts the MDR. This team includes you (the parent or guardian), relevant school personnel (teachers, special education providers, school psychologist, etc.), and a representative of the school district. It's crucial that you attend this meeting and actively participate.

During the MDR, the team will review all relevant information in your child's file, including:

* Your child's IEP * Teacher observations * Any relevant information you provide * Evaluation results * Any other documentation related to your child’s disability and behavior

The IEP team then answers two critical questions:

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

The Two MDR Outcomes

The outcome of the Manifestation Determination Review (MDR) has significant implications for your child's education and disciplinary process. There are two possible outcomes:

**Outcome 1: Behavior Is a Manifestation of the Disability**

If the IEP team determines that the behavior was caused by your child's disability or was a direct result of the district's failure to implement the IEP, the behavior is considered a manifestation of the disability. In this case, the district cannot proceed with a long-term suspension (beyond the initial 10 days). Instead, the school must take immediate steps to address the underlying issues.

The school must:

• Return your child to their current placement: (unless you and the district agree to a change of placement as part of the IEP review). * Conduct a Functional Behavioral Assessment (FBA) , unless one has already been conducted. An FBA helps identify the triggers and functions of the behavior. * Develop or revise a Behavior Intervention Plan (BIP) that addresses the behavior. The BIP should include strategies to prevent the behavior from occurring in the future and teach your child alternative, more appropriate behaviors. * Review and revise the IEP as needed to ensure it is appropriately addressing your child's needs. This may involve adding or modifying goals, accommodations, or related services.

This outcome emphasizes that the focus should be on understanding and addressing the root causes of the behavior, rather than simply punishing your child.

**Outcome 2: Behavior is Not a Manifestation of the Disability**

If the IEP team determines that the behavior was not caused by your child's disability and was not the direct result of the district's failure to implement the IEP, the behavior is not considered a manifestation of the disability. In this case, the district may proceed with the suspension or other disciplinary actions, but they must still provide your child with a Free Appropriate Public Education (FAPE).

This means that even during the suspension, the district must provide services that allow your child to continue to participate in the general education curriculum and progress toward their IEP goals. These services could include:

* Instruction in core academic subjects * Related services (e.g., speech therapy, occupational therapy, counseling) * Behavioral support

The specific services provided will depend on your child's individual needs and IEP. It is crucial to ensure that the district is fulfilling its obligation to provide FAPE during the suspension. If you believe the services are inadequate, you have the right to challenge the district's decision through a due process hearing.

The 45-Day Interim Alternative Setting

Under IDEA, 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 the 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. "Serious bodily injury" is generally defined as 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 in these situations, the district must continue to provide FAPE. The interim alternative educational setting must:

* Allow the student to continue to participate in the general education curriculum, although in a different setting. * Enable the student to continue to progress toward the goals outlined in their IEP. * Provide the student with any necessary behavioral supports and interventions.

The IEP team determines the specific services and supports to be provided in the interim setting.

If you disagree with the decision to place your child in an interim alternative educational setting, or if you believe that the services being provided are inadequate, you have the right to challenge the district's decision through an expedited due process hearing. An expedited hearing is a faster process than a regular due process hearing, and it is designed to resolve disputes quickly in these types of situations. You must request this hearing within a certain timeframe, so it's important to act quickly if you disagree with the district's actions.

FBAs and Behavior Intervention Plans

A Functional Behavior Assessment (FBA) is a process used to identify the reasons behind a student's behavior. It looks at what happens before the behavior (the antecedents) and what happens after the behavior (the consequences) to determine the function or purpose of the behavior. In other words, what is the student getting out of the behavior?

IDEA requires the district to conduct an FBA when a student's behavior results in a disciplinary action that constitutes a change of placement (i.e., a suspension of more than 10 days or a pattern of removals). However, you can also request an FBA proactively, before a crisis occurs. If you notice that your child is struggling with certain behaviors, or if you are concerned that their current IEP is not adequately addressing their behavioral needs, put your request for an FBA in writing to the school principal and the CSE.

A good Behavior Intervention Plan (BIP) should be based on the results of the FBA. It should include:

• Specific, measurable goals: for behavior change. * Strategies to prevent the behavior from occurring in the first place (e.g., modifying the environment, providing prompts or cues, teaching alternative behaviors). * Positive reinforcement strategies to reward desired behaviors. * Strategies for responding to the behavior when it does occur (e.g., planned ignoring, redirection, de-escalation techniques). * A plan for monitoring and evaluating the effectiveness of the BIP.

The BIP should be developed collaboratively by the IEP team, including you, the parents. It should be tailored to your child's individual needs and strengths. Make sure the BIP is clear, concise, and easy to understand. Everyone who works with your child should be familiar with the BIP and consistently implement it.

If you feel that your child's current BIP is not effective, or if it is not being implemented consistently, you have the right to request a review and revision of the BIP. Again, put your request in writing and be prepared to provide specific examples of why you believe the BIP needs to be changed.

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

When your child is suspended, it's crucial to act quickly to protect their rights. Here's a checklist of what to do on the first day of the suspension:

1. Get the suspension notice in writing. The school is required to provide you with written notice of the suspension, including the reasons for the suspension, the length of the suspension, and your right to appeal the decision. Make sure you receive this notice and keep it in a safe place. 2. Count the cumulative suspension days for the school year. Keep track of how many days your child has been suspended so far this school year. This will help you determine if the current suspension will trigger an MDR. 3. If approaching 10 days, request an MDR in writing immediately. If the current suspension will bring your child close to or over the 10-day threshold, send a written request to the school principal and the CSE requesting an MDR. This will ensure that the MDR is conducted in a timely manner. 4. Contact the CSE office to request continuation of services. Even for short-term suspensions, contact the CSE office to request that your child continue to receive services that will allow them to make progress on their IEP goals. Be prepared to advocate for your child's needs and explain why it is important for them to continue receiving services during the suspension. 5. Review your child's IEP and BIP. Familiarize yourself with your child's IEP and BIP. This will help you determine if the IEP is being implemented correctly and if the BIP is appropriate for addressing your child's behavior. 6. Document everything. Keep detailed records of all communication with the school, including dates, times, and the names of the people you spoke with. Save copies of all documents related to the suspension, including the suspension notice, the IEP, and the BIP. 7. Consider your escalation options. If you are not satisfied with the school's response, or if you believe that your child's rights have been violated, you have several options for escalating the issue:

• File a State Complaint with the New York State Education Department (NYSED).: A state complaint is a formal written complaint alleging that the school district has violated IDEA or other special education laws. * Request an expedited due process hearing. A due process hearing is a formal legal proceeding in which you can present evidence and arguments to an impartial hearing officer. An expedited hearing is a faster process that is used in certain situations, such as when a student has been suspended for more than 10 days or placed in an interim alternative educational setting. * Contact an advocate or attorney. An advocate or attorney can provide you with legal advice and representation, and can help you navigate the special education system.

Remember, you are your child's strongest advocate. By understanding your child's rights and taking proactive steps to protect those rights, you can help ensure that your child receives a fair and appropriate education.