Expert: Tim Runner - 2/4/2008

Question
QUESTION: Hello Tim,

My son is a 6 year old student currently in the SRVUSD and he has a behavior plan to support him while in Kindergarten.  My concern is that he has been exhibiting behaviors in school associated with the diagnosis (Autism) and he has been expelled from school twice because of scratching and throwing things.  In his IEP, there is a section which speaks to the Special Day Class to have a space carved out to send my son when he has issues or escalated behavior. 1) can the school suspend him for his behavior without first implementing the plan-- the teacher refuses to use the calming corner area and only wants to send him to a chair and table to sit (by the way the behavior issues are jumping on the table and throwing the chairs)? 2)What is the definition of serious bodily injury --  because when he scratches someone the school designates this to be "serious bodily" injury?  I have read the USC code of which is used to define this and I don't see the connection.  

Thank you very much for your time and I look forward to your reply.

ANSWER: Thawkins,

An IEP is a binding contract between the school and the student. If it is in the IEP, then it must be implemented. If the teacher is not implementing the Behavior Support Plan, which is part of the IEP, then the school is violating its agreement with the student. Most states have a procedure for filing a non-compliance complaint when an IEP is not being implemented. Usually the state department of education will investigate each complaint that is filed and take action against the schools. I suggest you look into this online and consider filing a complaint. As an alternative, you can call for an IEP Team Meeting to address the schools failures. Then if this does not correct the problem, you could file a complaint.

In terms of what constitutes "serious bodily" injury, it would apply to your son if someone else was hit by the chair he tosses around, and in many states, it would include scratching (especially if the skin is punctured). It is not just the law but also the court cases that define what constitutes "serious bodily" injury. You can look up the Due Process decisions in your state, if they are available online. You can also perform a review of state and federal case law, which is very time consuming. The bottom line is what your school district has decided in their policies, is what they are going by. You should ask for the policy governing this.

I wish you and your son the best,
Tim Runner, Education Advocate
You can learn more at my web site:
www.special-education-answers.com




---------- FOLLOW-UP ----------

QUESTION: Thank you for your reply.  My nxt question has to do with the suspension -- if he is suspended, does he also loose out on his other services provided.  I was told that he could not come back to get Speech and OT on campus because he was suspended from campus.  They offered to make up the time by extending the time but I don't believe that was done.  In addition, his IEP has a stay put order in it to continue CEIA which was created to deal with kids with Autism and specifically behavior issues.  He has no problems in this session nor the speech or OT, I see the suspension from Special Day Class but his theraputic services are also being missed and we are in a vicious cycle.  

Answer
Thawkins,
The school can refuse to perform these services while your son is on suspension since they have suspended him from their campus. The school is required to make up the sessions once he is done with the suspension. You can ask for a detailed list of the sessions that have been done upon his return. There is a limit to how many suspension days there can be in a school year before they have to hold a manifestation hearing to show that his behaviors are not a manifestation of his disability.
I wish you and your son the best,
Tim Runner, Education Advocate
You can learn more at my web site:
www.special-education-answers.com