Re: HELP! My son was suspended yesterday

[Guest guest]

Was there a manifestation determination meeting for your son?  Your

ARD Committee also needs to revise your son’s BIP.

Tonya

From slaw, 2nd Edition (www.wrightslaw.com)

page 33:

Manifestation Determination

The law requires the IEP team, which

includes the child’s parent, to review all relevant information in the

child’s file, including information

provided by the parent, to determine if the negative behavior was caused by

the disability, had a direct and

substantial relationship to the disability, or was a result of the school’s

failure to

implement the IEP.

See (20 U. S. C. § 1415(k)(1)(E)

Functional Behavioral Assessments and Behavior

Intervention Plans

If the IEP team determines that the child’s

behavior was a manifestation of the disability, the IEP Team “shall

conduct a functional behavioral

assessment and implement a behavioral intervention plan.” If the child

already

has

a behavior intervention plan, the IEP Team shall modify the plan to address the

child’s behavior.

See 20 U. S. C. §

1415(k)(1)(F)

From: Texas-Autism-Advocacy

[mailto:Texas-Autism-Advocacy ] On Behalf Of melissame429

Sent: Thursday, December 18, 2008 10:02 AM

To: Texas-Autism-Advocacy

Subject: HELP! My son was suspended yesterday

I am so mad! I received a call yesterday at 9

am,(School starts at

8:50)asking if I could come to the school and pick up my son, because

he was having a tantrum, and had aggressive behavior. I asked them to

put him on the phone because I was 20 miles away from the school

headed to an appointment for work.

When they put him on the phone he was crying and wanted to tell me

what happened, but before I could calm him down, they took the phone

away from him. I told them I could not bet there for at least 90 min,

and if he hadn't calmed down to please call me back.

They didn't call until 11:00, and at that time I asked if he had

calmed down, and they said yes, but they STILL wanted me to come pick

him up.

They informed me that he was suspended. This was a consequence for

his behavior. (yes, he has a B.I.P.)

I am furious that even after he calmed down, he was forced to leave

the school. Does anyone know what my rights are? I an in the Cy-Fair

district and this is a brand new school this year, so the ARD team is

all new to me. Oh, I forgot to mention that he is in 5th grade, and

is AU and was in his resource room at the time. He spends part of his

day there, and part in a co-teach, and part with in class support.

I remember someone mentioning an advocate that was volunteering time

for us, but I can't seem to find that post.

I appreciate any input on this..I can be a bulldog in an ARD if I have

to, but I need help on this one...

[Guest guest]

First of all, they are probably violating his IEP if they are suspending him for

'not calming

down'. They cannot just arbitrarily decide that this is a consequence for his

behavior. If his

behavior is by definition a result of his disability that is another reason they

cannot

penalize him for it.

Someone else please correct me if I am wrong, but unless he broke a serious code

of

conduct such as causing serious bodily harm, than they should not be able to do

this. I

would put this in writing and call an IEP meeting to discuss 'positive behavior

supports " ,

which they are obligated by law to provide. Good luck.

>

> Was there a manifestation determination meeting for your son? Your ARD

> Committee also needs to revise your son's BIP.

>

> Tonya

>

>

>

> From slaw, 2nd Edition (www.wrightslaw.com)

>

> page 33:

>

> Manifestation Determination

>

> The law requires the IEP team, which includes the child's parent, to review

> all relevant information in the

>

> child's file, including information provided by the parent, to determine if

> the negative behavior was caused by

>

> the disability, had a direct and substantial relationship to the disability,

> or was a result of the school's failure to

>

> implement the IEP.

>

> See (20 U. S. C. § 1415(k)(1)(E)

>

> Functional Behavioral Assessments and Behavior Intervention Plans

>

> If the IEP team determines that the child's behavior was a manifestation of

> the disability, the IEP Team " shall

>

> conduct a functional behavioral assessment and implement a behavioral

> intervention plan. " If the child already

>

> has a behavior intervention plan, the IEP Team shall modify the plan to

> address the child's behavior.

>

> See 20 U. S. C. § 1415(k)(1)(F)

>

>

>

>

>

>

>

> From: Texas-Autism-Advocacy

> [mailto:Texas-Autism-Advocacy ] On Behalf Of melissame429

> Sent: Thursday, December 18, 2008 10:02 AM

> To: Texas-Autism-Advocacy

> Subject: HELP! My son was suspended yesterday

>

>

>

> I am so mad! I received a call yesterday at 9 am,(School starts at

> 8:50)asking if I could come to the school and pick up my son, because

> he was having a tantrum, and had aggressive behavior. I asked them to

> put him on the phone because I was 20 miles away from the school

> headed to an appointment for work.

> When they put him on the phone he was crying and wanted to tell me

> what happened, but before I could calm him down, they took the phone

> away from him. I told them I could not bet there for at least 90 min,

> and if he hadn't calmed down to please call me back.

> They didn't call until 11:00, and at that time I asked if he had

> calmed down, and they said yes, but they STILL wanted me to come pick

> him up.

> They informed me that he was suspended. This was a consequence for

> his behavior. (yes, he has a B.I.P.)

> I am furious that even after he calmed down, he was forced to leave

> the school. Does anyone know what my rights are? I an in the Cy-Fair

> district and this is a brand new school this year, so the ARD team is

> all new to me. Oh, I forgot to mention that he is in 5th grade, and

> is AU and was in his resource room at the time. He spends part of his

> day there, and part in a co-teach, and part with in class support.

> I remember someone mentioning an advocate that was volunteering time

> for us, but I can't seem to find that post.

> I appreciate any input on this..I can be a bulldog in an ARD if I have

> to, but I need help on this one...

>

[Guest guest]

Sorry for this late reply, but given the holidays, I thought this information might still be timely.Most school attorneys take the position (which I do not necessarily agree with) that under the IDEA 2004 amendments, anything under ten school days out of the child's placement can be handled under the Code of Conduct, whether or not it is a manifestation. And they usually try to write it right into the BIP, which I disagree (on the record) with. Here is the applicable IDEA language from the TEA side-by-side rule publication (that synthesizes federal regs, state regs, and state law):§ 300.530 Authority of school personnel.(a) Case-by-case determination. School personnel may consider any unique circumstances on a case-by-case basis when determining whether a change in placement, consistent

with the other requirements of this section, is appropriate for a child with a disability who violates a code of student conduct.(b)General.(1)School personnel under this section may remove a child with a disability who violates a code of student conduct from his or her current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 consecutive school days (to the extent those alternatives are applied to children without disabilities), and for additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change of placement under § 300.536).(2) After a child with a disability has been removed from his or her current placement for 10 school days in the same school year, during any subsequent days of removal the public agency must provide services to the extent

required under paragraph (d) of this section.©Additional authority. For disciplinary changes in placement that would exceed 10 consecutive school days, if the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child’s disability pursuant to paragraph (e) of this section, school personnel may apply the relevant disciplinary procedures to children with disabilities in the same manner and for the same duration as the procedures would be applied to children without disabilities, except as provided in paragraph (d) of this section(d) Services.(1) A child with a disability who is removed from the child’s current placement pursuant to paragraphs ©, or (g) of this section must—(i)Continue to receive educational services, as provided in § 300.101(a), so as to enable the child to continue to participate in the general education curriculum,

although in another setting, and to progress toward meeting the goals set out in the child’s IEP; and(ii) Receive, as appropriate, a functional behavioral assessment, and behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur.(2) The services required by paragraph (d)(1), (d)(3), (d)(4), and (d)(5) of this section may be provided in an interim alternative educational setting.(3) A public agency is only required to provide services during periods of removal to a child with a disability who has been removed from his or her current placement for 10 school days or less in that school year, if it provides services to a child without disabilities who is similarly removed.(4) After a child with a disability has been removed from his or her current placement for 10 school days in the same school year, if the current removal is for not more than 10 consecutive school

days and is not a change of placement under § 300.536, school personnel, in consultation with at least one of the child’s teachers, determine the extent to which services are needed, as provided in § 300.101(a), so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.(5) If the removal is a change of placement under § 300.536, the child’s IEP Team determines appropriate services under paragraph (d)(1) of this section.(e) Manifestation determination.(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) s 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© of the Controlled Substances Act (21 U.S.C. 812©).(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))Hope this helps! Feller Heiligenthal Attorney at Law www.studentslawyer.net studentslawyer@...