Discipline and Students with Special Needs: Procedural Safeguards For Your Child

The cellphone rings and you immediately recognize the number of your son’s school.

Your stomach drops. You know that you have to take the call.

You rush to the school before things can get any worse. All the while replaying the morning.

 Did he sleep okay? Did he take his medication? Was he upset about something? What happened!?

After breaking several land-speed records, you find your ten year-old sitting on one of the standard-issue metal and blue-plastic chairs in the Principal’s office. His head is down and you can see that he has been crying but he is valiantly trying to hold it together. Surrounded by adults, he looks so small.

Maybe this is the first time that your child has been threatened with suspension. Maybe your child has had constant issues with impulse control that land him in the Principal’s office every other day. Maybe this is the proverbial straw that broke the teacher’s back. Regardless of the particular circumstances, if your child with special needs is in danger of being suspended there are procedural safeguards with which you need to quickly become familiar.

In this blawg entry I will explain the law behind the procedural safeguards afforded children with special needs and then address the more practical aspects of preparing for a Manifestation Determination Review.

What are the Procedural Safeguards Afforded a Child with Special Needs?
There has been a demonstrated history of discrimination against children with special needs in the public school system. In the landmark Supreme Court Case Honig v. Doe, Justice Brennan summarized the bleak educational landscape facing children with disabilities at the time of the passage of the Education of the Handicapped Act:

When the law was passed in 1975, Congress had before it ample evidence that such legislative assurances were sorely needed: 21 years after this Court declared education to be “perhaps the most important function of state and local governments,” Brown v. Board of Education, 347 U.S. 483, 493 (1954), Congressional studies revealed that better than half of the Nation’s eight million disabled children were not receiving appropriate educational services. 1400(b)(3). Indeed, one out of every eight of these children was excluded from the public school system altogether, 1400(b)(4); many others were simply “warehoused” in special classes or were neglectfully shepherded through the system until they were old enough to drop out. See H. R. Rep. No. 94-332, p. 2 (1975). Among the most poorly served of disabled students were emotionally disturbed children: Congressional statistics revealed that for the school year immediately preceding passage of the Act, the educational needs of 82 percent of all children with emotional disabilities went unmet. See S. Rep. No. 94-168, p. 8 (1975) (hereinafter S. Rep.).

Consequently, over the past 35 years courts have provided safeguards under the Individual’s with Disabilities Education Act (IDEA) to ensure that all children with special needs receive a Free Appropriate Public Education (FAPE).

One such procedural safeguard is the Manifestation Determination Review (MDR). At a Manifestation Determination Review those participating in the review determine whether a child’s behavior is a result of his disability. The idea behind the MDR is that a child should not be punished for behavior that stems from his disability. For example, punishing a child with ADHD for having poor impulse control would be tantamount to punishing a child for exhibiting the symptoms of their disability. The relevant language regarding the MDR is found at 34 C.F.R. Section 300.530 (e):

(e)Manifestation Determination Review
(1)Within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the LEA, the parent, and relevant members of the child’s IEP Team (as determined by the parent and the LEA) must review all relevant information in the student’s file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents to determine–
(i)If the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or
(ii)If the conduct in question was the direct result of the LEA’s failure to implement the IEP.
(2)The conduct must be determined to be a manifestation of the child’s disability if the LEA, the parent, and relevant members of the child’s IEP Team determine that a condition in either paragraph (e)(1)(i) or (1)(ii) of this section was met.
(3)If the LEA, the parent, and relevant members of the child’s IEP Team determine the condition described in paragraph (e)(1)(ii) of this section was met, the LEA must take immediate steps to remedy those deficiencies.

What Events Trigger A Manifestation Determination Review?
According to the IDEA a “change of placement” for a child with an Individualized Education Plan (IEP) will trigger a MDR. While the IDEA  does not define the term “change in placement”, the Code of Federal Regulations (CFR) which implement the IDEA offers two scenarios which would be considered a “change of placement”. The first scenario is a removal from school for more than ten consecutive days. The second scenario is a series of suspensions that cumulatively surpass ten days. The relevant language is found at C.F.R. Section 300.536(a):

Section 300.536 Change of Placement Because of Disciplinary Removals.
(a)For purposes of removals of a child with a disability from the child’s current educational placement under Sec. Sec. 300.530 through 300.535, a change of placement occurs if–
(1)The removal is for more than 10 consecutive school days; or
(2)The child has been subjected to a series of removals that constitute a pattern
(i)Because the series of removals total more than 10 school days in a school year;
(ii)Because the child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals; and
(iii)Because of such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another.

As you can see, the ten days do not have to be consecutive. If your child is threatened with suspension but there is a “pattern of behavior” which will result in him having been suspended for ten or more days even over a period of several months then the procedural safeguards may be triggered. Notice that the definition of “pattern of behavior” is behavior that is “substantially similar” in previous incidents resulting in removal.

If the suspension is for less than ten days and there is not a series of removals stemming from a pattern of behavior exceeding ten days then the child is subject to the same disciplinary proceedings as a child without an IEP because his placement has not been changed. However, any suspension might be a good opportunity to call an emergency IEP to consider whether your child needs a Behavior Support Plan (BSP) based upon a Functional Behavioral Assessment (FBA).

What is the Purpose of the Manifestation Determination Review?
The Manifestation Determination Review (MDR) is a review process which the student’s IEP team participates in to determine whether the student’s behavior was a manifestation of his disability. The MDR must be conducted at a meeting of relevant members of the IEP team within ten school days of any decision to seek removal of a child for ten days.

The participants in the MDR seek to answer two questions:

1)       Was the conduct in question caused by, or had a direct and substantial relationship to the child’s disability; and

2)       Was the conduct the direct result of the School’s failure to implement the IEP.

If the answer to either question is “yes” than the conduct is determined to be a manifestation of the disability. We do not proceed to the disciplinary proceedings that a child without a disability would be subject to. If the second question is answered in the affirmative than the school district must remedy the situation and comply with the requirements of the IEP.

If the answer to both questions is “no’ than school personnel may then apply the same disciplinary procedures to the child as would be applied to a child without a disability.

Interesting Caveat: the question of whether the IEP was appropriate is no longer a part of this review process. The MDR seeks to answer whether the IEP was implemented as written.

Who Can Participate in the MDR?
The MDR must include the parent, a representative of the school district, and “relevant members of the IEP team (as determined by the parent and the local education agency).”  This vague wording gives parents sufficient leeway to invite an advocate, attorney, medical professionals that have worked with your child and can contribute to the understanding of your child’s disability in general and in particular and others that know your child such as coaches, tutors, therapists.

Consensus v. Non-Consensus
If you and the professionals that you bring to the table are unable to persuade the other members of the IEP team that your child’s behavior stemmed from their disability or occurred because of the district’s not fulfilling obligations under his current IEP than there is no consensus. In such a case, the district makes the final decision as to whether the behavior was a manifestation of your child’s disability. Parents are given a prior written notice (PWN) regarding the reasoning behind the district’s decision and may need to pursue a due process complaint should they wish to challenge the decision.

During a removal for disciplinary purposes, the student must continue to receive educational services. There will be an IEP meeting following the MDR to determine which services are required under the IDEA to ensure that the child continues “to progress toward meeting the goals set out in the child’s IEP.” However, the services need not be provided in a school setting. The student may receive instruction and services in an Interim Alternative Educational Setting (IAES). The relevant language is found at Section 300.530(d):

(1)A child with a disability who is removed from the child’s current placement pursuant to paragraphs (c), or (g) of this section must–
(i)Continue to receive educational services, as provided in Sec. 300.101(a), so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP; and
(ii)Receive, as appropriate, a functional behavioral assessment, and behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur.
(2)The services required by paragraph (d)(1), (d)(3), (d)(4), and (d)(5) of this section may be provided in an interim alternative educational setting.

No Stay-Put Provision On Appeal
If parents choose to appeal the decision reached at the MDR they may do so through an expedited due process hearing. However, the student does not have the right to “stay-put” during the pendency of the appeal. During the appeal, the student will remain in the IAES  unless the parent and the district agree otherwise. The relevant language is found at Section 300.533:

Section 300.533 Placement During Appeals
When an appeal under Sec. 300.532 has been made by either the parent or the LEA, the child must remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period specified in Sec. 300.530(c) or (g), whichever occurs first, unless the parent and the SEA or LEA agree otherwise.

As you can see, it is important to be the most prepared person in the room at the MDR to forestall a due process hearing. Also, having already thoroughly prepared for a MDR will put you in a more advantageous position should you need to pursue due process.

Unidentified Children
There are instances where a child should be receiving special education services but has not yet been identified by the school district. The same procedural protections are extended to these children. The Child Find provision in the IDEA imposes an affirmative mandate on school districts to locate, identify and evaluate children with disabilities. If the parent is able to establish that the school district had knowledge that the child should be evaluated for special education then the child should receive an MDR. Otherwise, the parent may request an expedited evaluation for special education services.

Understandably, this is a very difficult position to advocate from. Not only must you be prepared to advocate for eligibility but then you must also prepare to demonstrate that your child’s behavior was a manifestation of this disability. It is Herculean but not impossible and I do hope that any parent in this situation consults with a special education attorney before proceeding.

How Should I Prepare for the MDR?
This is a very important meeting. You are attempting to prevent your child’s behavior from being scrutinized in an unforgiving school disciplinary hearing.  You may wish to retain an attorney or consult with one before attending. If you choose to proceed without representation you may wish to consider the following when preparing for the MDR.

  1. Is there enough time to prepare?
    Determine the date and time of the hearing. If this is too soon then attempt to delay the proceeding through a timeline waiver. You will need to consult with professionals that have worked with your child, obtain and review the incident report and evaluate your child’s qualifying diagnosis. This will take time to coordinate and you do not want to be pressured into a meeting with such high consequences for which you are not thoroughly prepared. Of course, all such requests should be made in writing and faxed (keep the fax receipt for your records).
  2. What happened?
    Do not walk into the meeting without knowing precisely what your child is being accused of. Ask for a copy of the report that is sent to the discipline hearing office. Again, make the request in writing and fax it to the Principal. Keep the fax receipt for your records. Be certain to give a deadline such as “I will need this information at least 5 days prior to my son’s scheduled MDR on (give date) so that I may prepare for and participate in the review process.”
  3. How do I show that my son’s behavior was a manifestation of his disability?
    Begin by thoroughly researching your child’s qualifying disability. If there is any question as to the disability under which your child is receiving services from the school district then consult your most recent IEP. A copy of the current edition of the DSM-5 will describe your child’s disability. When you have the discipline report then you will begin drawing parallels between the description of the “poor impulse control” or limited “executive functioning” that are probably hallmarks of your child’s disability and the description of the behavior in the discipline packet.The most recent IEP will also be a good resource for demonstrating behavioral issues associated with your child’s qualifying disability. There are probably behavioral goals already written into the IEP illustrating a history of known behavioral issues stemming from your child’s disability. If your child was supposed to be receiving services for those known behaviors from a Behaviorist or had a Behavior Support Plan in place than make sure that those services were in place. If not, than the school district may have failed to implement the IEP and the answer to Question 2 would be “yes.”

    If your child is seeing a medical professional then consider having that person attend. If your child’s psychiatrist or therapist is unable to attend consider having them draft a letter regarding your child’s disability and how it relates to the behavior in question. Do not assume that the school’s psychologist will be knowledgeable about your child’s disability. Do not assume that the school psychologist will volunteer that they are not knowledgeable about your child’s disability and behavior that might stem from that disability.

    Be prepared to be persuasive. You want to build a consensus. Think Clarence Darrow.

  4. Should I record the meeting?
    Yes. It is not rude to record the meeting. You do need to give 48 hour notice. Again, write the letter, fax it to the Principal and keep the receipt for your records. Should you proceed to a due process hearing this recording may prove useful.

While it is important to always enter any negotiations with the school district in good faith it is equally necessary to constantly be preparing for a due process hearing. Be polite and maintain a professional demeanor but also be prepared to proceed if consensus is not possible.

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While I am an attorney that focuses on special education and this blawg explains the law behind the MDR process nothing in this entry should  be construed as legal advice. This is not comprehensive and does not address the many exceptions and caveats that surround this area of law. If you are considering pursuing a due process hearing to appeal an MDR decision or are in the process of preparing for an MDR, I highly recommend consulting with a special education attorney.


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