MANIFESTATION DETERMINATION REVIEWS (MDRs)

   MANIFESTATION DETERMINATION REVIEWS (MDRs)

The IDEA protects students with disabilities in disciplinary proceedings that may result in long term suspension or expulsion. Suspension over 10 days in a school year requires a Manifestation Determination Review (MDR) (see below). A student with a disability (with an IEP) may be suspended for up to 10 school days in a school year without FAPE being provided. Suspension for more than 10 school days is considered a long term suspension.

A disciplinary change of placement occurs for a student with a disability if: (1) The removal is for more than 10 consecutive school days; or (2) he student has been subjected to a series of removals that constitute a pattern because the series of removals total more than 10 school days in a school year; because the student's behavior is substantially similar to the student's behavior in previous incidents that resulted in the series of removals; and because of additional factors, such as the length of each removal, the total amount of time the student has been removed, and the proximity of the removals to one another. 34 C.F.R. § 300.536.

If a student with a disability may be suspended for more than 10 school days due to a code of conduct violation, the public agency, parents, and relevant IEP Team members (determined by parents and district) must have a meeting to determine whether the student's behavior was a manifestation of his/her disability. At the meeting, all relevant information in the student's file, the IEP, teachers' observations and any other relevant information parents provide must be reviewed in order to determine whether the conduct was caused by or had a direct and substantial relationship to the student's disability, or whether the conduct was the direct result of the public agency's failure to implement the student's IEP. If either of the two conditions above were met then there should be a determination that the conduct was a manifestation of the student's disability. If it is determined that it was the public agency's failure to implement the student's IEP, then the public agency must take immediate steps to remedy those failures. 34 C.F.R. §300.530(e). When the determination is that the conduct was a manifestation of the student's disability, then the IEP Team must either conduct an FBA (unless the public agency already conducted one before the behavior violation occurred) and implement a BIP for the student or, if there is already a BIP in existence for the student, then the public agency must review the BIP and modify the BIP if necessary to address the behavior, and the student must be returned to the placement from which he/she was removed — unless the parents and public agency agree to a change of placement as part of the BIP or modification to the BIP.

Exception: The student may be placed in an interim alternative educational setting for no more than 45 school days without a manifestation determination review IF the student carried or possessed a weapon at school, knowingly possessed or used illegal drugs, sold or solicited controlled substances or inflicted serious bodily injury on someone else while at school or on school premises or at a school function. 34 C.F.R. §300.530 (f) and (g).

In cases where the behavior is determined to have NOT been a manifestation of the student's disability and the disciplinary changes in placement will exceed 10 consecutive school days, the same discipline may be imposed on the student with disabilities as a student without disabilities. HOWEVER, the student with an IEP must be provided with a FAPE; special educational services to enable the student to continue participating in the general education curriculum, even in another setting and make progress toward meeting the student's IEP goals. Additionally, if appropriate, the student is to receive an FBA, behavioral intervention services and modifications to address the conduct so that it does not recur. 34 C.F.R. §300.530 (c) and (d).

The law firm of Kirsch-Goodwin & Kirsch Education Attorneys handle discipline cases for students all over the state of Arizona. 

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The ABCs of Special Education - Advocating Better for your Child

Hope Kirsch and Lori Kirsch Goodwin explain the ABCs of Special Education - Advocating Better for your Child.
Watch this video from one of their trainings.
https://youtu.be/5a00KFq7_yQ

What are a parent’s rights?

From an article that appeared in a local paper a while back:

Hope Kirsch, a special education attorney with the law firm of Kirsch-Goodwin & Kirsch, PLLC, represents students with disabilities and their families throughout Arizona in school-related matters, including individualized education programs (IEP), due process, 504 plans, disciplinary matters and bullying. She was a special education teacher and school administrator for nearly 20 years and has a B.S. in special education from Boston University, an M.A./M.Ed. in special education from New York University and a law degree from Brooklyn Law School. 

What are the first steps a parent should take when they find out that their child is having difficulty in school?

Parents should submit a request via e-mail to the school district or charter school that the child attends. I advise parents to email the child’s teacher, the special education director for the school district or charter school and the school principal  or headmaster, stating they are requesting a complete assessment to determine the full nature and extent of their child’s disabilities and the impact of the disabilities on their child’s education. They should state their concerns and note that the email should be deemed as giving their “consent” to evaluate. (Giving consent triggers deadlines.) Parents who home-school their children, or who place their children in a for-profit private school – or whose children are in preschool or are ages 3-5 – should submit the evaluation request to the school district in which they reside (email the special education director and at least one other person, such as the superintendent). The schools have their own obligation, called “Child Find,” to evaluate, with parental consent, any child they suspect of having a disability that may require special education.   

What are the parents’ rights when it comes to the evaluation?

The school (home-school district or charter school) has 60 calendar days to complete the evaluation from the date parents give consent, which is why I suggest parents state in the email requesting the evaluation that they are giving consent. Parents can submit their request any time during the year, not just during the school year. 

The school is required under the law to assess/evaluate students “in all areas related to the suspected disability” including, if appropriate, social-emotional skills, behaviors, etc. If, after the evaluations, the parents do not agree with the findings, they have the right to an Independent Educational Evaluation (IEE) with an evaluator of their own choosing at the expense of the public education agency (PEA). If the school refuses, the school must file a due process complaint.       

What is the difference between a 504 and an IEP and how do they affect the student?

A 504 Plan provides accommodations, services and/or aids to students with a disability (as that term is defined under the Americans with Disabilities Act Amendments Act) to afford the student equal opportunities to participate in school activities and receive the same instruction as nondisabled peers, but they do not require special education. Accommodations may include extra time for the same assignments as their peers, a separate quiet room to take the same test as their peers, large type for reading the same instructional material, or ramps to physically access the same classroom. An IEP is for a child who requires special education – instruction that is specialized, or modified, for that child. A ninth-grader reading at third grade can be given "Romeo and Juliet" modified from Shakespearean language to their reading level. Also, an IEP has goals written into it; a 504 does not. A student does not have an IEP after graduating high school, whereas a 504 plan continues into post-secondary school, and a student who had an IEP in high school can have a 504 in college.

To what degree can a parent expect schools to provide services and supports for the special needs of their child?

In order to answer these questions, it is important to understand that the federal law governing IEPs, the Individuals with Disabilities Education Act (IDEA), does not require that schools maximize a child’s potential; the maxim is that students are only entitled to a Chevy, not a Cadillac. That said, the IEP must confer an “educational benefit” standard for a free and appropriate public education (FAPE) within the meaning of the IDEA by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.  

If parents believe their child is not receiving a sufficient amount or the right kind of services and supports (such as occupational therapy, physical therapy, speech therapy, behavior intervention, one-on-one), or they believe goals are too high, too low or there is insufficient progress, or if they have any other concerns, they should notify the school and request an emergency IEP meeting. The school has 15 school days after the date of the request to conduct the meeting. Parents should prepare a list of their concerns and explain why it is they believe the IEP is not appropriate, what they think their child needs, and go through each item with the IEP team. After exhausting their efforts, parents’ options include mediation, state administrative complaints and, in limited circumstances, due process.       

Visit azspecialeducationlawyers.com, call 480-585-0600 or email info@kgklaw.com. A

Are Charter Schools Required to Provide Special Education Services?

OVERVIEW OF FEDERAL AND STATE LAWS ON PROVISION OF SPECIAL EDUCATION SERVICES IN CHARTER SCHOOLS

 By Hope Kirsch and Lori Kirsch-Goodwin, 

Although charter schools are exempt from many local and state regulations and state and local rules regarding operation and management, they are not exempt from federal and state laws regarding rights, access and discrimination against protected classes and students with disabilities, unless they do not receive federal funds (which will be discussed below).  Charter schools that receive Federal financial assistance from the United States Department of Education (the “Department”) must comply with the Age Discrimination Act of 1975, Title VI of the Civil Rights Act of 1964 (which prohibits discrimination re race, color, national origin), Title IX of the Education Amendments of 1972 (which prohibits sex discrimination), Section 504 of the Rehabilitation Act of 1973, the Americans With Disabilities Act of 1990 (which prohibits discrimination on the basis of disability), the Family Education Rights and Privacy Act (“FERPA), and part B of the Individuals with Disabilities Education Act (the “IDEA”).  This paper focuses on Section 504 of the Rehabilitation Act of 1973 and its implementing regulation at 34 Code of Federal Regulation Part 104 (collectively herein, “Section 504”), and the IDEA and its implementing regulation at 34 Code of Federal Regulation Part 300. 

Note:  Charter schools are either “for profit” or “nonprofit.”  Only schools that are nonprofit are eligible to receive Federal financial assistance from the U.S. Department of Education.  Recipients of Federal financial assistance are subject to the laws and regulations enforced by the U.S. Department of Education and including the Office of Civil Rights.  However, for profit charters do not receive Federal financial assistance from the Department funds and are therefore not subject to these laws and regulations, and thus OCR is not responsible for enforcing these laws and regulations at for profit charter schools.  Although for profit charter schools can have students on IEPs, since they do not receive Federal funds as a means of serving this population, the Department does not have jurisdiction to enforce laws and regulations at such schools. 

Section 504 is enforced by the Office for Civil rights, and the IDEA is administered by the Office of Special Education and Rehabilitative Services (“OSERS”) which provides Federal funds to States which in turn provide the funds to local educational agencies (“LEA”) to assist in the provision of special education and related services to students with disabilities.

The Department has issued guidance to parents, students and charter schools explaining rights of students with disabilities in charter schools.[1]  Regarding IDEA, students enrolled in charter schools and their parents or legal guardians retain all of the rights and protections under Part B of IDEA that they would have if attending other public schools including procedural safeguards, the right to a FAPE in the least restrictive environment (“LRE”), and special education and related services in conformity with a properly-developed IEP.  The Department has cautioned that a charter school may not limit the services it will provide a student with a disability. States are responsible for overseeing and monitoring charter school compliance. 

With respect to Section 504’s prohibition against disability discrimination and right to a FAPE, students with disabilities as well as those seeking admission have the same rights as students with disabilities in public non-charter schools, including the right to a Free and Appropriate Public Education (“FAPE”), equal treatment and nondiscrimination in nonacademic and extracurricular activities such as sports and outings, and accessibility such as ramps.  Section 504 requires that charter school recruitment of students apply on an equal basis to all students, including both students with disabilities and nondisabled students, and to allow applications on an equal basis.  Accordingly, a charter school must not impose admission criteria that would tend to exclude or discriminate against students with disabilities.  In fact, it is a violation of Section 504 for a charter school to ask an applicant if he or she has a disability.  The question of whether a student has or ever had an IEP or Section 504 Plan may not be included on an application, and OCR deems such a question on an application as disability discrimination.  The question of whether a student has or ever had an IEP or Section 504 Plan may be asked only after the student has been accepted.  The exception is for schools chartered to serve students with a specific disability, but otherwise such a question is prohibited. 

Finally, the Department warns that charter schools may not “counsel out, i.e., try to convince a student (or parents) that the student should not attend (or continue to attend) the school because the student has a disability.”  That is, the school must not discourage a student and his family from applying for admission.

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[1] United States Department of Education, Office for Civil Rights, Office of Special Education and Rehabilitative Services, “Know Your Rights: Students with Disabilities in Charter Schools,” December 2016, reformatted January 2017, https://sites.ed.gov/idea/files/dcl-factsheet-201612-504-charter-school.pdf

Extended School Year (ESY)

Here, attorney Lori Kirsch-Goodwin talks about how to get ESY for your child.
Watch video here.

What are Charter Schools?

From a presentation by Lori Kirsch-Goodwin and Hope Kirsch of Kirsch-Goodwin & Kirsch Education Law Firm for the Council of Parent Attorneys and Advocates:

A charter school is “a public school that provides free public elementary and/or secondary education to eligible students under a specific charter executed, pursuant to a state charter school law, by an authorized chartering agency/authority and that is designated by such authority to be a public charter school.”[1]  

Charter schools are semi-autonomous, independent, nonsectarian, tuition-free public schools.  20 U.S.C. § 7221i(2).  That means they are exempt from many state and local statutory and regulatory requirements, but charter schools are not exempt from federal laws that govern equal rights, access and discrimination.  They receive public dollars and are prohibited from charging tuition. They are open to all children and may not have special entrance requirements, although they can be rigorous and impose requirements such as mandating uniforms, and they may have a focus, such as STEM, arts, acting, etc.  If applications to attend a charter school exceed spaces available, enrollment is decided by lottery.

Charter schools are designed and operated by parents, educators, community leaders, educators, business  entrepreneurs and others.  They operate under a contract - the “charter” – with an authorized public agency, such as a local or state educational agency, an institution of higher education or a municipality, which is referred to as the “authorizer” or “sponsor.”  An authorizer’s primary responsibilities are to review applications for charters, establish “charters” or contracts, ensure compliance and renew contracts.[2]  An “authorized public chartering agency” means a state educational agency (“SEA”), local educational agency (“LEA”), or other public entity that has the authority pursuant to State law and approved by the United States Secretary of Education to authorize or approve a charter school.  20 U.S.C. § 7221i (Definitions section).

The contract - or charter - details how the school will be organized and managed, what students will be expected to achieve, and how success will be measured.  They must meet standards set forth in their charters for students and for the school as a whole, or else the chartering agency can close the school.  Many charter schools enjoy freedom from laws and regulations affecting other public schools, so long as they continue to meet the terms of their charters.  The charter must include a description of how student performance will be measured.

In return for the flexibility and autonomy gained from exempting charter schools from certain state or local rules and regulations, these schools must meet accountability standards outlined in the charter.  A school's charter is reviewed periodically by the entity that granted it and can be revoked if guidelines on curriculum and management are not followed or if the accountability standards are not met.

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[1] Office for Civil Rights 2017–18 Civil Rights Data Collection – School  Form,  https://www2.ed.gov/about/offices/list/ocr/docs/2017-18-crdc-school-form.pdf

[2] National Conference of State Legislatures, http://www.ncsl.org/documents/educ/AuthorizingCharterSchools.pdf.

Feds should investigate Phoenix school after "butt crack" incident

We were so disturbed by this story. Grateful to investigative reporter  Derek Staahl and AZ Family for reaching out to us for our opinion on what should have been done and what could be done. 
News story here