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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