SPED Laws, Suspension, Manifest Determination

Discussion in 'Special Education' started by cutNglue, Dec 5, 2012.

  1. cutNglue

    cutNglue Magnifico

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    Dec 5, 2012

    I'm trying to read up on it but I need some help sorting through laws relating to suspending a child on something that is related to his disability.

    Can it be put on his Behavior Improvement Plan?
     
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  3. mopar

    mopar Multitudinous

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    Dec 5, 2012

    I think that this may vary by state, but I'm not entirely sure. I know that we can put suspension on a BIP. We are allowed to out of school suspend a child for up to 10 days before we need to consider a change of placement. Students with behaviors related to their disability may receive in school suspensions as well (I don't believe that there is any law limiting these, but I could be wrong).
     
  4. Accountable

    Accountable Companion

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    Dec 5, 2012

    In school suspensions still count as time out of placement in Texas. The legal aspect of punishing for a manifestation of a disability is always a sticky issue, but the student has to learn to get things under control before going out into a world that doesn't make special allowances for disability. Assault is assault, being late is being late, and arguing with a boss, customer, or coworker will get you fired.

    To address your question: We put limited in-school suspensions, out-of-school suspensions, alternative school, and sometimes even citations in the BIP as consequences. We still have to do an MDR before sending the student to alternative.
     
  5. comaba

    comaba Cohort

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  6. a2z

    a2z Aficionado

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    The main reason manifisation determination was put in place is to ensure that a student won't continue in a program that isn't working for the student such that this program allows the student to not receive an education because the student is continually removed from school. IT IS NOT intended to appease parents or the student.

    The reason for special education is to improve skills to the point where the person is indpendent and self-sufficient as possible. If the situation the student is in continually results in suspensions (10 or more days per school year) then the program is not sufficient to be addressing the underlying needs of the student.

    As it turns out, repeated or long-term suspensions, if a result of the disability, show they IEP for the student and the services are not doing what they are intended to do or haven't addressed issues that need to be addressed.

    I'm not sure what you would want put in a BIP, but IF the suspension was related to the disability, the IEP, BIP, or placement should be changed to addresss the issues leading to the suspension.

    Too many focus on the end goal instead of the small steps that are needed to be learned to get to the end goal. Yes, in the world there will be some behaviors that need to be mastered, but just as you wouldn't punish a 18 month old who couldn't unbutton her pants to pull them down to go potty you can't always punish the student that hasn't yet mastered the sub-skills to move the student toward the end goal. Sometimes the environment needs to change, as well as, additional instruction in other areas. For the 18 month old, elastic waist pants and instructions on learning how to unbutton and unzip (which will be a long way away) would both be needed to get the child to indepenence. Or you could just keep punishing because some day the child will have to be able to do those things on her own. This may sound really silly, but in many cases, this is exactly what we do with students with disabilities of all sorts. We find the easiest way (punish) to try to solve problems that won't be solved by punishing. While the 18 month old may eventually learn along the way to master the sub skills, think of the toll being punished over and over will bring. I expect it will bring on a whole host of additional behavior issues with the child. Yet, the system does this to students all the time.

    M D is not to appease and not address the issue. It is a STOP GAP so that an unworking system doesn't continue.

    If the end result of the behaivor is suspension, BIP or not, what would be the point of putting it in the BIP? Is this a way to get around MDR meetings? Is this a way to sanction continual suspensions for the manifestation of the disability that is not being properly addressed?
     
  7. donziejo

    donziejo Devotee

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    Dec 5, 2012

    In school suspensions don't count toward the 10 days in my district as long as the sped teacher provides services to the suspended student.

    Our BIP's and FBAs ( at least the 2 I've seen) do not have anything about suspension.
     
  8. bros

    bros Phenom

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    Dec 6, 2012

    You can't have the BIP say "X can be suspended for his behavior"

    As I understand the law, basically if a child keeps getting disciplined for something, an IEP meeting should be convened to discuss what can be done to help adjust the behavior.

    This might help http://www.wrightslaw.com/info/discipline.stud.dis.dwyer.pdf

    Here is the part of IDEA on Manifestation Determination:
    http://www.wrightslaw.com/idea/law/idea.regs.subparte.pdf

    (1) Within 10 school days of any decision to change the placement of a child with a disability because of a violation of a
    code of student conduct, the LEA, the parent, and relevant members of the child’s IEP Team (as determined by the parent
    and the LEA) must review all relevant information in the student’s file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents to determine--
    (i) If the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or
    (ii) If the conduct in question was the direct result of the LEA’s failure to implement the IEP.
    (2) The conduct must be determined to be a manifestation of the child’s disability if the LEA, the parent, and relevant members of the child’s IEP Team determine that a condition in either paragraph (e)(1)(i) or (1)(ii) of this section was met.
    (3) If the LEA, the parent, and relevant members of the child’s IEP Team determine the condition described in paragraph (e)(1)(ii) of this section was met, the LEA must take immediate steps to remedy those deficiencies.
    (f) Determination that behavior was a manifestation. If the LEA, the parent, and relevant members of the IEP Team make the determination that the conduct was a manifestation of the child’s disability, the IEP Team must--
    (1) Either-–
    (i) Conduct a functional behavioral assessment, unless the LEA had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan
    for the child; or
    (ii) If a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior; and
    (2) Except as provided in paragraph (g) of this section, return the child to the placement from which the child was removed, unless the parent and the LEA agree to a change of placement as part of the modification of the behavioral intervention plan.
    (g) Special circumstances. School personnel may remove a student to an interim alternative educational setting for not more
    than 45 school days without regard to whether the behavior is determined to be a manifestation of the child’s disability, if the
    child--
    (1) Carries a weapon to or possesses a weapon at school, on school premises, or to or at a school function under the jurisdiction of an SEA or an LEA;
    (2) Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA; or
    (3) Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA.
    (h) Notification. On the date on which the decision is made to make a removal that constitutes a change of placement of a
    child with a disability because of a violation of a code of student conduct, the LEA must notify the parents of that decision, and provide the parents the procedural safeguards notice described in §300.504.
    (i) Definitions. For purposes of this section, the following definitions apply:
    (1) Controlled substance means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c)
    of the Controlled Substances Act (21 U.S.C. 812(c)).
    (2) Illegal drug means a controlled substance; but does not include a controlled substance that is legally possessed or
    used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act or under any other provision of Federal law.
    (3) Serious bodily injury has the meaning given the term “serious bodily injury” under paragraph (3) of subsection (h) of section 1365 of title 18, United States Code.
    (4) Weapon has the meaning given the term “dangerous weapon” under paragraph (2) of the first subsection (g) of section 930 of title 18, United States Code. (Authority: 20 U.S.C. 1415(k)(1) and (7))
     
  9. Accountable

    Accountable Companion

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    I tried to attach a copy of the Consequences screen in the BIP section from our ESPED program, but I can't figure out how. You'll have to trust me when I say that suspension is an option.
     
  10. a2z

    a2z Aficionado

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    Dec 6, 2012

    But remember, BIPs can be written for any student. So, a BIP for a student without a disability may look very different from one that is for a student with a disability and the disability is at the root of the behaviors. Therefore a generic system for BIP creation will have options that may not apply for students with disabilities.

    BIPs should be designed not to control behavior but to modify the students motivation and understanding so that the student learns different ways to approach situations so that the behavior doesn't happen.
     
  11. Accountable

    Accountable Companion

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    ESPED is not generic. We routinely put suspensions and alternative school as consequences for our SPED students. Our lawyers have no problem with it.

    Remember that a BIP is focused on a behavior, not a disability, so no, the disability may not necessarily be at the root of the behaviors.
     
  12. cutNglue

    cutNglue Magnifico

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    Dec 7, 2012

    My child has already had in several in school suspensions, a two day out of school suspension (neither which meets the 10 days) but also been picked up with the day cut short (well over 10 days, it's only Dec). He has been restrained 11 times with deescalation techniques I find deplorable at best. In fact, I'm certain they well contributed to them. The classroom teacher only asked for help once and that was when he was holding a stress ball and put himself in time out. Somehow it went from that to restraining. He started kicking the cubbies after they cornered him and invaded their space (touching) after making a series of demands and backing him up in a corner. He does have triggers and he does have a history. I feel it is a combination of both regression, lack of support, and badgering. So I do not want to put suspension on the BIP. Do I at least have the right to decline having it added? After all, they can do it if they feel it follows school policy but then I have more rights to due process if I'm not agreeing to it up front. Is this correct?

    Right now the regional office has come in to redesign his program and give him a different environment and plan but the principal is insisting on having a punitive plan in action if something does occur.
     
  13. GemStone

    GemStone Cohort

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    I do not believe you have the right to decline suspension. I could be wrong. The principal will possible say that the school needs to have punitive plans in place in case he hurts a staff member or other student, or does something else that affects others' safety or the learning environment. If the P doesn't put that plan in place, then the school will be left with no recourse if, as you said, something does occur.

    If you feel the staff needs better training or coping techniques, bring that up at the meeting.
     
  14. Accountable

    Accountable Companion

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    The ARD committee can do magical and wonderful things, and as a member of that committee, you have the responsibility to disagree with committee decisions and force them to work things out to your satisfaction. This is your child.
    Just spitballing here, but it seems that the teacher is getting a little frustrated and might be restraining as punishment.
     
  15. cutNglue

    cutNglue Magnifico

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    Often it was the administrators where were doing the restraining.
     
  16. mopar

    mopar Multitudinous

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    Dec 7, 2012

    I would ask the staff to document your concerns with suspension and restraint on the additional information section of the IEP or the parental concerns section. You need to make this known, but also know that suspension is allowed and your child can be suspended whether he has an IEP or BIP or not.

    I would start keeping a log of all the times you have picked your child up early due to administration requiring this. Then when you notice that the time out of school equals 10 school days, you can bring this up.

    Something else to consider...since they are changing his placement, the 10 days may begin anew. I'm not positive on this as it's never happened to a student that I have worked with, but it would be a good question to ask about.
     
  17. cutNglue

    cutNglue Magnifico

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    Mopar, you just gave me what I needed. I have the right to put my objections on the document. I will write the paragraph myself and sign the document when the paragraph has been put on there and a copy has been provided to me first. It will also include a statement about how I feel the staff often contributes to the escalation.

    I will also write an alternate paragraph of what I would rather see on the plan of action and give them the choice.

    At the same time, I will also start counting.
     
  18. Accountable

    Accountable Companion

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    Good for you, cNg!
    As a case manager, I can tell you that you're the type of parent that might be a hemorrhoid to me, but any honest teacher would admit that it's a hemorrhoid that's often needed. It's really easy to lose focus when parents aren't there to remind us ... and you might be surprised how few parents aren't there.
     
  19. Caesar753

    Caesar753 Multitudinous

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    Nobody needs hemorrhoids....I think that's not a great analogy. :p
     
  20. Accountable

    Accountable Companion

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    :D I could have stated it more plainly, but this is a nice forum. :D
     
  21. bros

    bros Phenom

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    Did you approve of the restraint techniques they are implementing (and are teachers trained in these restraint techniques restraining him)?

    A manifestation determination meeting should be held ASAP as the amount of suspensions/time out of school is above 10 days, which entitles you to them making up the time lost due to the suspension, and any further time lost also.

    Are the staff members keeping in mind his triggers when confronting him? If not, the triggers should be put in writing somewhere so the teachers are aware of them.

    I do not believe they change. The counter only resets at the beginning of a new academic year, I believe.

    You can also sign it and write below it "Signing that I am in attendance, but disagree with x, y, and z. See attached parental concerns."

    If you disagree with anything they propose and prefer what is currently on the IEP, you can also file for DP as it sounds like the school may not be providing FAPE or LRE, which would enact stay-put.
     

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