Your child has a behavior intervention plan (BIP). It says staff will preview transitions, check in at the start of class, and offer a break before frustration peaks. It explains target behaviors and the catalyst for those behaviors. Then a new teacher skips the check-in, no one offers the break, the frustration builds exactly as the plan predicted, resulting in precisely the behavior outlined in the BIP. But rather than account for their own mistakes, the school calls to say your child is suspended. What!?
In our practice, this is an all-too-familiar occurrence. A student has an IEP and behavioral needs the school knows about. The supports in the plan arrive inconsistently or not at all, and then behavior that flows directly from the disability is processed as misconduct, with consequences that escalate quickly: long suspensions, expulsion proceedings, sometimes a referral to law enforcement.
While schools treat the incident as a conduct problem, federal law often treats it as the school’s problem. When a district fails to follow the plan it wrote to prevent a behavior, and that behavior follows, the law may require the district to fix its own failure rather than remove the child.
A BIP Is a Commitment, Not a Suggestion
A behavior intervention plan is the school’s written strategy for preventing, interrupting, and responding to behavior that interferes with learning. A sound BIP rests on a functional behavioral assessment (FBA), which identifies what triggers the behavior and what the behavior accomplishes for the child. The plan then spells out what the adults will do differently.
Federal law requires the IEP team to consider positive behavioral interventions and supports for any child whose behavior impedes their learning or that of others. 34 C.F.R. § 300.324(a)(2)(i). Once a BIP is part of the child’s program, it is a service the district has committed to deliver, as binding as speech therapy or reading instruction.
Colorado families have particular reason to hold schools to that commitment. Endrew F. v. Douglas County School District RE-1, the Supreme Court’s 2017 decision setting the national standard for what schools owe students with disabilities, began here. The Court held that an IEP must be reasonably calculated to enable progress appropriate in light of the child’s circumstances, a standard “markedly more demanding” than the one the Tenth Circuit had applied. On remand, the federal court in Denver ordered the district to reimburse private school tuition, faulting it in part for never developing a formal plan for behaviors that had disrupted Endrew’s learning since second grade. Endrew F., 290 F. Supp. 3d 1175 (D. Colo. 2018).
The Question Schools Skip
A removal of more than ten consecutive school days, or a series of removals that accumulate to 10 days or more, is a change of placement. 34 C.F.R. § 300.536. Within ten school days of deciding on that change, the school, the parents, and relevant IEP team members must hold a manifestation determination review. 34 C.F.R. § 300.530(e).
That review asks two questions. Schools focus on the first: was the conduct caused by, or directly and substantially related to, the child’s disability? The second is just as important and far more often skipped: was the conduct the direct result of the school’s failure to implement the IEP? A yes to either question makes the behavior a manifestation of the disability. A yes to the second adds a duty the school cannot negotiate away. It must take immediate steps to remedy the implementation failure. 34 C.F.R. § 300.530(e)(3).
A manifestation finding changes the outcome. The IEP team must conduct an FBA and implement a BIP, or review and revise the existing one. It must also return the child to the placement from which the child was removed, unless the parents and the school agree otherwise. 34 C.F.R. § 300.530(f). The only exceptions are weapons, illegal drugs, and serious bodily injury, which permit removal to an interim setting for up to 45 school days regardless of the finding. 34 C.F.R. § 300.530(g).
This is why implementation evidence decides these cases. A team that checks “not a manifestation” without asking whether staff actually followed the BIP that week has skipped half of the review the law requires. A favorable manifestation finding is a powerful protection, but it comes late. It can stop an expulsion or long-term removal. It cannot undo the incident report, the days out of school while the review was pending, the investigation, or the reputation a child carries back to class. For many families, the process is the punishment, and the stigma outlasts the finding, which is why the strongest advocacy happens before the next incident, not after it.
Removals That Don’t Look Like Suspensions
Schools rarely call it a suspension when they call a parent to pick up early, shorten the school day, or seat a child in the office without instruction. The law counts those anyway. The U.S. Department of Education’s 2022 guidance on IDEA discipline calls these “informal removals” and treats them as subject to IDEA’s discipline protections. Repeated informal removals can add up to a change of placement that triggers a manifestation review. The same guidance counts in-school suspension as a removal unless the child keeps accessing the general curriculum, receiving IEP services, and participating with nondisabled peers. That guidance interprets regulations that remain binding regardless of shifts in federal enforcement priorities.
A string of early pickups is also evidence. Frequent removals for the same behavior tell you the BIP is either not being followed or not working. Either way, the IEP team has an obligation to act, and the school does not get to discipline its way around that obligation.
Students with a Section 504 plan rather than an IEP have parallel protection. Before a significant change in placement, including a long-term suspension or expulsion, the school must reevaluate the student. 34 C.F.R. § 104.35(a). Failing to implement the supports in a 504 plan can itself be disability discrimination.
Colorado Adds Its Own Guardrails
Colorado law requires every district to weigh six factors before suspending or expelling any student, including whether the student has a disability and whether a lesser intervention would properly address the violation. C.R.S. § 22-33-106(1.2). That second factor is powerful in a BIP case. A school that suspends a child for behavior its own plan was designed to prevent will struggle to explain why the lesser intervention it already promised would not have worked. Colorado also bars expelling a child with a disability for threatening conduct that is a manifestation of the disability. C.R.S. § 22-33-106(1)(c). And for students in preschool through second grade, state law sharply limits out-of-school suspension and expulsion. C.R.S. § 22-33-106.1.
What Parents Should Do Now
If you are the parent of a child with a disability who has been targeted as a “management or behavioral problem” in school, here are a few steps to help you should the situation require intervention down the road:
1. Request the records immediately. Ask in writing for the BIP, the FBA it was built on, behavior data sheets, incident reports, staff emails about the incident, and attendance records showing early pickups. The school must respond without unnecessary delay and before any IEP meeting or hearing. 34 C.F.R. § 300.613.2. Build the implementation record. Compare what the plan required with what happened that day. Was the substitute given the plan? Were the breaks offered? Was anyone collecting the data the plan called for?
3. Make the school answer both questions. At the manifestation review, insist that the team address implementation on the record, and ask for its decision in writing.
4. Challenge a wrong answer quickly. A parent who disagrees with a manifestation finding may request an expedited due process hearing, which must be held within 20 school days, with a decision within 10 school days after the hearing. 34 C.F.R. § 300.532. Know that during that appeal, the child generally remains in the interim setting rather than returning to class. 34 C.F.R. § 300.533.
5. Use the state complaint process. The Colorado Department of Education investigates IDEA and state-law violations that occurred within one year of filing, including failures to implement an IEP. CDE State Complaints.
The remedies are meaningful. They include a corrected manifestation finding, return to the child’s placement, a new FBA and a BIP that actually fits, compensatory services for instruction and supports the child missed, and, often, removal of the discipline from the child’s record. If the school’s FBA is stale or superficial, parents may also request an independent evaluation at public expense.
The Right Question
The question is rarely whether your child misbehaved. It is whether the school did what it promised before the behavior happened. When it did not, the law gives families real leverage: a manifestation finding, an immediate duty to fix the plan, and remedies that restore what the child lost.
We help Colorado families build the implementation record, press the question schools skip, and turn a failed plan into one that works. If your child faces removal for behavior the BIP was written to prevent, call us before the manifestation meeting, not after it.
