EEK!
My Child with a Disability
Keeps Getting Suspended!
What can I do?
What are my child’s rights?
Protection & Advocacy, Inc.
Toll Free:
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1330 Broadway, |
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Tel: |
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Publication #5464.01
October 2006 |
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EEK! My Child With A Disability
Keeps Getting Suspended!
What Can I Do? What Are My Child’s Rights?
“My son has behaviors that keep getting him into
trouble at school. His teachers are all
mad at him; they always call me or send him to the principal’s office, and he
has even been suspended many times this school year. The school now wants to move my son into a
more restrictive setting and the teachers also sometimes say that if my son
keeps this up, they will have to expel or move him permanently. I am scared for
him.”
If that sounds like your situation or if you have had a
similar experience, there are some things you should know to help your child.
Although children with disabilities are generally treated
as all other students regarding suspensions, there are certain limitations as
to how and when children in special education may be suspended once a certain
number of consecutive or cumulative suspension days have occurred. Also, there are state and federal laws on
positive behavior interventions that could help your child learn more
appropriate behaviors in order to lessen his/her likelihood of being suspended
or expelled from school.
This publication will provide some basic information
regarding your child’s rights if he/she is experiencing behavior problems
and/or suspensions.
Topics Covered in this Publication:
A.
Suspensions
B.
Positive Behavior Supports and Interventions
C.
Least Restrictive Environment & Placement
*** If your child is being considered for expulsion, or if the District
has called you for a “manifestation determination” or “emergency” IEP regarding your child’s behavior, please also refer to our publication
on expulsions for children with special needs, titled
YIKES! My Child
With A Disability Is Being Considered for Expulsion! ***
A. SUSPENSIONS
Students with disabilities generally are treated the same
as their nondisabled peers in suspension cases[1],
even for behaviors which are directly related to their disabilities. The difference between the treatment of children
with and without disabilities has to do with the length of suspension and the
number of suspension days that can be accumulated during a school year. Except under limited circumstances, a
nondisabled student in
In a suspension, the school or District personnel has the
authority to move a special education student from the current placement into
another placement on a temporary basis, which is frequently referred to as an “interim
alternative setting”. However, the
removal cannot be for more than 10 consecutive school days.[5] A special education student can also have
multiple suspensions for separate offenses that add up or accumulate to more
than 10 school days in a school year, as long as no single suspension exceeds
10 consecutive school days and together they do not form a pattern which can be
considered a change of placement.[6]
However, a special education student must receive a free
appropriate public education (FAPE) after being suspended for more than 10
cumulative days in a school year even if the suspension occurs in an interim
alternative placement.[7] The District must provide services, to the
extent necessary, in order to allow the student to progress appropriately in
the general curriculum and to make progress toward achieving his/her IEP goals.[8]
This means that on the 11th
day of suspension in a school year, the District must provide the student with FAPE
even though the student may not be in his/her current placement to receive
his/her educational services.
For example, if a special education student gets suspended
for fighting on school grounds, he could be suspended for up to 10 school days
in a row and be kept out of school or even sent to another placement for that
time period. Then if, 4 weeks later, the
same student is disruptive and shouts terrible obscenities at his teachers and
peers, he could be suspended again for up to 10 additional school days in a row. However, because the second suspension would
total more than 10 school days in a school year, the District must provide the
student FAPE in the interim alternative setting. If the student gets suspended for 11 or more
days in a row for any incident, then the suspension would automatically be considered
a change of placement, and trigger special legal protections for students with
disabilities who are being considered for expulsion.[9] All students, with and without disabilities,
are limited to 20 total days of suspensions in a school year (except that it
can be for as many as 30 total days in a year for students who are adjusting to
a transfer to a new school).[10]
Remember that just because a District may have begun
providing some services in an interim alternative setting as part of its
obligation to ensure FAPE, it does not mean that the District is excused from
observing the 10 consecutive day limit on suspensions or the total 20 day limit
in a school year.
In some cases, a series of suspensions that add up to more
than 10 total school days per school year may constitute a change of placement
without an IEP meeting and parent consent if the suspensions represent a
pattern of behavior. Factors such as the
length of each removal, the total amount of time the student is removed, the
proximity of the removals to one another, and the similarity of the child’s
behavior over the series of suspensions might be considered in deciding whether
the pattern of suspensions look more like an unlawful change of placement or
expulsion. If the suspensions seem to be
a pattern, then the series of suspensions may constitute a change of placement.[11]
If the suspensions can be considered a
change of placement, then the IEP team has to hold a manifestation determination
meeting, and all rights and duties regarding a change of placement apply[12].
For example, if your child has already had 12 total school days of suspension and the school year is only halfway completed, you may be able to establish that the closeness in time of all the suspensions seems to represent a pattern. In addition, if all the suspensions were due to very similar behavioral incidents or very similar types of behavior, you likely could also argue that a pattern exists. For these reasons, your child’s suspensions could then be considered a change of placement without an IEP meeting or parent consent. In this example, if the 12 total school days of suspension of removal could be considered a change of placement, then additional legal protections for students with disabilities who are being considered for expulsion would then apply.
Chapter 8 of PAI’s Special
Education Rights and Responsibilities (SERR) manual discusses suspensions
and expulsions in more detail. Please also refer PAI’s publication on
expulsion, titled YIKES! My Child With A
Disability Is Being Considered for Expulsion!
B. POSITIVE BEHAVIOR INTERVENTIONS
If your child has behaviors that impede or interfere with
his/her learning or that of others, he/she is entitled to receive related
services and other supplementary aids and services that may be necessary for
your child to benefit from his/her special education program.[13]
Special education laws require that the
IEP team must, when appropriate, consider strategies, including assessments[14],
positive behavioral interventions and supports[15],
to address that behavior.
In addition,
The FAA findings, information and recommendations are then
used in developing a positive behavior intervention plan for the student. The
plan becomes part of the student’s IEP and has its own set of goals and
objectives related to reducing maladaptive or unwanted behaviors and
substituting those with acceptable and more appropriate behaviors. Furthermore,
the behavior intervention plan can only be implemented by or be supervised by
someone who has documented training in behavior analysis.[17]
If a student exhibits unpredictable spontaneous behavior
which poses a clear and present danger to himself/herself or others, school
personnel may use emergency interventions. However, an emergency intervention
cannot be used for longer than is necessary to contain or control a behavior[18]. Furthermore, emergency interventions should
not be used in place of the systematic behavioral intervention plan
designed to change, replace or ameliorate a targeted behavior[19].
Chapter 5 of PAI’s SERR
manual discusses related services, behavior interventions, emergency
interventions and the prohibited behavioral interventions in more detail.
Please also refer to the Behavioral Intervention Flowchart at the end of Chapter
5.
C. LEAST RESTRICTIVE ENVIRONMENT & PLACEMENT
Least Restrictive Environment (“LRE”) is the requirement
in special education law that children with disabilities receive their
education, to the maximum extent appropriate, with nondisabled peers. Special education laws also require that
Districts consider whether each special education student can be educated
satisfactorily in a regular classroom with supplementary aids and services
before another more restrictive environment is considered.[20]
This means that a special education
student should not be removed from regular education classes unless, even with
other services to help the student, the student is not able to make progress or
benefit from the education in regular classes.
Under LRE requirements, the IEP team must document its
rationale for recommending a placement that is different from the school and
classroom that the student would attend if the student did not have a
disability. The documentation should also indicate why the student’s disability
prevents his/her needs from being met in a less restrictive environment even
with the use of supplementary aids and services. This means that prior to
a recommendation to place a student with a serious behavior problem or
other disabilities in a segregated placement, such as a special day class,
nonpublic school or a residential placement, the IEP team should consider,
provide, develop and/or implement support services such as counseling, AB3632
services[21],
a one-to-one behavior aide, behavior intervention plans, functional analysis
assessment and other related services.
Furthermore, Title 2 of the California Code of
Regulations, § 60100 provides:
Prior to the determination that a residential
placement is necessary for the pupil to receive special education and mental
health services, the expanded IEP team shall consider less restrictive
alternatives, such as providing a behavioral specialist and full-time
behavioral aide in the classroom, home and other community environments, and/or
parent training in the home and community environments. The IEP team shall
document the alternatives to residential placement that were considered and the
reasons why they were rejected. Such alternatives may include any combination
of cooperatively developed educational and mental health services.
This section of the California Code of Regulations further
emphasizes and supports LRE. Section 60100
indicates that, prior to recommending or referring a child for placement in a
residential educational program, the
District may have to provide a one-to-one behavior aide outside of school
hours. Due to the nature of his/her
disability, a child may need additional assistance to enable him/her to remain
in a non-residential educational placement, such as having a one-on-one
educational aide in the early morning (to help get the child to school), and afternoons
(to help the child transition back home).
Note: If you would like other
chapters from the SERR manual or other publications, you can download them from
PAI’s website at www.pai-ca.org or you can request them by calling our
office toll-free at (800) 776-5746
Abbreviations to Legal Cites
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§, §§ |
Section, Sections |
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20 U.S.C. |
Title 20 of the |
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34 C.F.R. |
Title 34 of the Code of Federal Regulations |
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5 C.C.R. |
Title 5 of the |