Tuesday, October 4, 2022

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 a 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).

If parents disagree with the outcome of the MDR, they may appeal by filing file a due process complaint.

Students with Section 504 Plan: Students with 504 plans have similar protections to those students with IEPs. But there are some differences. The public agency may discipline a student with a disability under Section 504 just as it would a student without a disability if the student is currently engaging in the illegal use of drugs or use of alcohol, or in possession of illegal drugs or alcohol.

Additionally, the public agency is not required to provide educational services during a long term suspension or expulsion to a student with a 504 that committed a violation that was determined not to be a manifestation of his/her disability.

Arizona's Education Law Firm 

Sunday, February 27, 2022

Here’s what to do when your child needs help in school

By Hope Kirsch, Kirsch-Goodwin & Kirsch, PLLC



If your child is struggling at all — in school work (academics), making friends, teachers complaining about behavior, almost anything that concerns you or the teachers — the school should be notifying you and suggesting to meet to evaluate the child for a 504 plan (accommodations) or an IEP (special education).

But if the school has not contacted you, then you should contact the school. Do not hesitate because early intervention is key to addressing issues and leads to some of the best outcomes. Otherwise, your child’s difficulties increase, the gap in learning widens, and your child has not learned strategies to help him or her learn.

Emails are the best record of your communications. Even if you write a letter, attach the letter to the email and also cut and paste from the letter into an email.

Remember, if it is not in writing, (the school can say) it was never said! Who do you write to and what do you say? Email at least two, preferably three people so that your email doesn’t get “lost” (deleted or ignored or hanging out in one person’s spam).

Send to the main teacher and the school principal (headmaster if a charter school), and the special education coordinator for the school — you can find the person on the school’s website along with the email. For schools the don’t list emails, call the school for the emails.

On the subject line, write your child’s name and “concerns, request for evaluation.” In the email, say who you are in relation to your child, your child’s name and the reason you are writing is that you have “some concerns that include…” List them, and say there are other concerns, too.

Then ask for a meeting to evaluate your child for special education. The school then has 15 school days to either hold the meeting or send you a Prior Written Notice (“PWN”) that it refuses to meet.

If the school refuses to evaluate your child, keep a log of any increasing concerns and reach out to the school again when you have collected your own “data” — that is, the facts you have of increasing struggles, including emails from teachers about problems at school (not finishing work, not doing work, distractions, behaviors, etc.), report cards, standardized test scores, and also ask to see the “45 day screening report.”

Sometimes a school will say it is using or will use RTI, that is, Response to Intervention. That is when a child is not learning at the same rate, but a school cannot use RTI to delay the evaluation.

Regardless of the response to your request for an evaluation, the school must send you a PWN. Read it, and if inaccurate, email all the same people who you wrote to in the first place to ask that the inaccuracies be corrected.

Editor’s note: Hope Kirsch is a special education attorney with the firm Kirsch-Goodwin & Kirsch, PLLC.

Wednesday, August 25, 2021

Return to School Roadmap, August 2021

Thee United States Department of Education will be issuing guidance to schools notifying them that regardless of the COVID pandemic or how instructino is provided, students with disabilities must still receive a free appropriate public education (FAPE) in accordance with the Individuals with Disabilities Education Act (IDEA), and that infants and toddlers with disabilities and their families receive early intervention services. Here is the first guidance document, a Questions and Answers (Q/A) document, that outlines the key requirements and reminds schools of their requirement to appropriately implement IDEA's Child Find obligations. https://sites.ed.gov/idea/files/rts-qa-child-find-part-b-08-24-2021.pdf

Friday, July 2, 2021

Can the school remove my child from an IEP?

Parents often ask:

Can the school exit my child from an IEP?

How can a school exit my child from an IEP?

The answer to these questions are that schools are not allowed to just dimiss - or exit - a student from an IEP without a formal evaluation.  And so an IEP may not just say that a student no longer needs special educaiton and related services.  Instead, the IEP team must arrange to re-evaluate the student in all areas of suspected disabilty, and only after the evaluation may the team decied whether or not the student continues to need special education and related services, that is, whether the student still continues to be eligible.  

The federal regulation that addresses this is 34 CFR 300.305.

Kirsch-Goodwin & Kirsch, AZ Special Education Laywers