Friday, August 5, 2016

Are Your Child’s Suspensions Denying Them a Free Appropriate Public Education?

Are Your Child’s Suspensions Denying Them a
Free Appropriate Public Education?

The United States Department of Education (USDE) released guidance this week through a Dear Colleague Letter indicating that short term suspensions or disciplinary removals may result in a denial of free appropriate public education (FAPE) for students with disabilities.  The guidance serves as a reminder to school staff to consider the child’s needs and the effects that suspension may have on the child and to provide alternatives to excluding the child from school.

The USDE identified many supports Individualized Education Program (IEP) teams could include in a student’s IEP that could assist a child to benefit from special education including the following:
  • instruction and reinforcement of school expectations;
  • violence prevention programs;
  • anger management groups;
  • counseling for mental health issues;
  • life skills training; or
  • social skills instruction.

The guidance also emphasized the importance of providing behavioral supports to students in the least restrictive environment.  IEP teams may not remove the child from the general education environment solely due to the child’s behavior when behavioral supports could be effective in the regular education setting.  The USDE included social skills instruction, meetings with a behavioral coach, and training for school personnel as examples of such behavioral supports for IEP teams to consider.

Determining whether a child has been denied a FAPE is based upon the facts in individual case by case situations.  The Dear Colleague Letter listed the following, “circumstances that may indicate either a procedural or substantive failure in the development, review, or revision of the IEP include, but are not limited to, the following:
  • The IEP Team did not consider the inclusion of positive behavioral interventions and supports in response to behavior that impeded the child’s learning or that of others;
  • School officials failed to schedule an IEP Team meeting to review the IEP to address behavioral concerns after a reasonable parental request;
  • The IEP Team failed to discuss the parent’s concerns about the child’s behavior, and its effects on the child’s learning, during an IEP Team meeting;
  • There are no behavioral supports in the child’s IEP, even when the IEP Team determines they are necessary for the child;
  • The behavioral supports in the IEP are inappropriate for the child (e.g., the frequency, scope or duration of the behavioral supports is insufficient to prevent behaviors that impede the learning of the child or others; or consistent application of the child’s behavioral supports has not accomplished positive changes in behavior, but instead has resulted in behavior that continues to impede, or further impedes, learning for the child or others);
  • The behavioral supports in the child’s IEP are appropriate, but are not being implemented or not being properly implemented (e.g., teachers are not trained in classroom management responses or de-escalation techniques or those techniques are not being consistently implemented); or
  • School personnel have implemented behavioral supports not included in the IEP that are not appropriate for the child.”

The Dear Colleague Letter also identified, “circumstances that may indicate that the child’s IEP is not reasonably calculated to provide a meaningful educational benefit include, but are not limited to, the following:
  • The child is displaying a pattern of behaviors that impede his or her learning or that of others and is not receiving any behavioral supports;
  • The child experiences a series of disciplinary removals from the current placement of 10 days or fewer (which do not constitute a disciplinary change in placement) for separate incidents of misconduct that impede the child’s learning or that of others, and the need for behavioral supports is not considered or addressed by the IEP Team; or 
  • The child experiences a lack of expected progress toward the annual goals that is related to his or her disciplinary removals or the lack of behavioral supports, and the child’s IEP is neither reviewed nor revised.”

Not only do removals from school potentially result in a denial of FAPE, the USDE also provided a sampling of the research which demonstrates that the removals rarely result in a change in the behavior.  In addition, they include research that has shown that the adverse results include a decline in academic performance and greater potential for students to drop out of school.  The USDE includes resources and training for school personnel available at and

If you have questions about your child’s provision of a FAPE, please contact the Law Office of Brian K. Gruber for more information or to schedule a consultation.

Disclaimer:  This blog is made available by the Law Office of Brian K. Gruber, P.C. for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site, you understand that there is no attorney client relationship between you and the publisher. The blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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