House Passes The Stop Child Abuse in Residential Programs for Teens Act of 2009

 

     Yesterday the House of Representatives overwhelmingly approved legislation to protect teenagers living in residential programs from physical, mental, and sexual abuse and to help ensure parents have the information they need to keep children safe. The Stop Child Abuse in Residential Programs for Teens Act of 2009 (H.R. 911) would establish minimum health and safety standards for preventing child abuse and neglect at teen residential programs. The legislation prohibits physical, mental, and sexual abuse and requires that residential programs provide children with adequate food, water, rest, and medical care. To ensure enforcement, the bill provides for civil penalties against programs that violate the new standards. Finally, H.B. 911 requires states, within three years, to take on the role of setting and enforcing standards for both private and public youth residential programs. 

     This legislation came about after investigations by the Government Accounting Office (GAO). The investigations were requested by U.S. Representative George Miller of California, Chairman of the House Education and Labor Committee, and uncovered thousands of cases and allegations of child abuse and neglect since the early 1990’s in teen residential programs. The investigated programs included therapeutic boarding schools, boot camps, wilderness programs, and behavior modification facilities. 

     Among other things, H.R. 911 would create a toll-free national hotline for individuals to report cases of abuse and neglect and a website with information about substantiated cases of abuse at residential programs. Finally, to prevent deceptive marketing practices, the bill requires that programs inform parents of their staff members’ qualifications, role, and responsibilities.

Discipline and Disability: Determining When a Child’s Misbehavior in School is Related to Their Disability

    Readers I originally posted this article in October  2007.  I have added some additional content and links to the IDEA Regulations in this  new version.

 As a parent, Maria had a long rope but she was quickly nearing the end of it. The principal had just called and asked her to come to school and pick up her son, Jeremy, because the teacher said he was “out of control.” Jeremy hadn’t finished his work during class time and when the teacher told him he had to stay in during recess he had thrown his book at the chalkboard. Maria knew Jeremy could sometimes be a handful. He was in special education and had some emotional/behavioral issues, but this was the fourth time this fall that she’d been called and Jeremy had now missed ten days of school. This time the principal said he was suspended for another ten days and might be expelled or moved to a different school because his behavior was so disruptive. 

     While Maria knew that Jeremy’s behavior was not acceptable, she believed it was related to his disability, and that there might be better ways to deal with it than withholding recess. Jeremy struggled to sit still through class and recess was a much-needed break. It didn’t seem fair that he might be expelled for “misbehavior” that was not Jeremy’s fault. Hadn’t she heard that students with disabilities could not be punished for behavior that was a manifestation of their disability? Didn’t the law require that, as a child with a disability, Jeremy was entitled to appropriate educational services? 

     The Individuals with Disabilities Education Act (IDEA) provides that all children with disabilities have a right to a free appropriate public education, including children who are suspended or expelled. The IDEA has specific procedures for school administrators to follow when disciplining children with disabilities. These procedures balance the need to keep schools safe with the right of children with disabilities to receive a free appropriate public education. There is a process to determine if a student’s misconduct is a manifestation of the student’s disability, and prevents children from being punished for “misbehavior” that is related to the child’s disability. Unfortunately, the IDEA’s procedures can be confusing. Here are some questions and answers regarding the manifestation determination process that should make the process clearer. 

  • 1. Why are there “special rules for disciplining children with disabilities?

When Congress first enacted the Education for All Handicapped Children Act in 1975, it noted that children with disabilities were often suspended, expelled, or otherwise excluded from public education in our country merely because they had behavior problems. School officials had often unilaterally excluded children with disabilities from school without parent input or an opportunity to appeal. Congress wanted to ensure that all children with disabilities had access to a free appropriate public education. Moreover, Congress wanted to protect children with disabilities from the unilateral, speculative, and subjective decisions by school officials that had often caused them to be removed from school for behavior related to their disability. 

  • 2. Who makes the Manifestation Determination?

The manifestation determination is made by a group that includes the child’s parent and the relevant members of the child’s Individualized Educational Program (IEP) team. The parent and school administrators decide which IEP team members will be included in the meeting. 

  • 3. When must a Manifestation Determination be made?

Whenever school officials make a disciplinary “change in placement” there must be a manifestation determination. A change in placement occurs whenever the school decides to remove or suspend a student with a disability from the student’s educational placement for more than 10 school days. The 10 school days may be consecutively or over the course of a school year.

There must also be a manifestation determination if the student has been subjected to a series of removals that constitute a pattern. A pattern is determined if the (a) the student is removed for more than 10 days in the school year (b) the student’s behavior is substantially similar to his behavior in previous incidents and (c) considering the length of each removal, the total amount of time the student has been removed, and the proximity of the removals to one another, there appears to be a pattern of removing the student. 

  • 4. How does the group decide if the student’s misconduct is a manifestation of the student’s disability?

First, the group will review all of the relevant information in the student’s file including any information included from the IEP, teacher observations, and information provided by the student’s parents. Based on that review, the group will determine whether:

  • (1) The student’s misconduct was caused by or was directly or substantially related to the student’s disability; or

  • (2) The misconduct was the direct result of the school district not implementing the student’s IEP.

If the group determines that the misconduct was related to the student’s disability or was the direct result of the IEP not being implemented, then the team will determine that the misconduct was a manifestation of the student’s disability. 

  • 5. If the student knows right from wrong and understands it is wrong to violate the student code of conduct, doesn’t that mean their misconduct was not a manifestation of their disability?

No, the student may know their behavior is wrong but the misconduct might still be directly related to their disability. For example, the student’s disability may limit their ability to control the behavior. Or, perhaps IEP services, such as counseling, were never provided, causing the student’s behavior to escalate beyond the student’s control. 

The student’s IEP team will meet and unless there are special circumstances or the IEP team changes the student’s educational placement, the student will return to the school program they were in before the suspension. The IEP team will also conduct a Functional Behavioral Assessment and will implement a behavior intervention plan for the student. A Functional Behavior Assessment gathers information about the student’s behavior to determine what function the student’s behavior serves for the student. The behavior intervention plan is the plan to provide support to the student to intervene with the behavior. 

In disciplinary situations involving possession of weapons, illegal drugs, or the student has caused a serious injury; the school may remove the student for up to 45 school days, even if the misconduct is a manifestation of the student’s disability. The student must receive appropriate educational services after the first 10 school days that the student is removed. 

  • 8. What if the group determines that the misconduct is NOT a manifestation of the student’s disability?

If the students misconduct is not a manifestation of the student’s disability then the student may be disciplined the same as a student without a disability. But if expelled, the student is still entitled to receive a free appropriate public education. In many cases the student’s behavior is determined to be a manifestation of the student’s disability. But, parents have the right to appeal a decision that their child’s behavior is not related to their child’s disability. Hearings to resolve disagreements in the disciplinary process are expedited. That means the hearing must be held within 20 school days after it is requested and the decision must be made within 10 school days after the hearing is completed. 

     Some school administrators pride themselves on a no-nonsense zero tolerance approach to discipline in their schools. In such an environment normal childhood mischief can be mistaken for serious misconduct. For children with disabilities, disability related behavior can be confused with misconduct requiring discipline. Being aware and making sure your child’s school is aware of the discipline procedures under the IDEA will ensure your child’s success and happiness in their education.

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