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:
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 Letterlisted 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 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:
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 www.ed.gov/rethinkdiscipline and http://ccrs.osepideasthatwork.org.
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.
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