Navigating the Manifestation Determination Review (MDR)

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. 

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.

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 an “Expedited Due Process Complaint.” 

Expedited Due Process Complaints and Hearings:  When a parent or the public agency disagrees with the decision regarding placement or interim placement or the manifestation determination may appeal the decision by requesting a hearing.  The party appealing, files a due process complaint.  The public agency is responsible for getting the expedited due process hearing done within 20 school days from receiving the complaint. The hearing officer has 10 days after the hearing to make his/her determination.  34 C.F.R. § 300.532.

If both the parent and the public agency do not agree in writing to waive the resolution meeting or agree to go to mediation then a resolution meeting must take place within 7 days of the filing of the due process complaint.  If the matter is not resolved within 15 days of the filing of the due process complaint the matter will proceed to hearing.

The decision is appealable by either party.  Check your State’s rules for the timeframe for filing an appeal.  In Arizona, the time frame is 35 days.

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.

Documentation required:  Provide parents with their Procedural Safeguards Notice and document every decision with a Prior Written Notice (“PWN”).  A public agency must provide parents with  a PWN whenever the school proposes or refuses "to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child." 34 C.F.R. § 300.503 (a).  The PWN must include a description of the action proposed or refused by the district, an explanation of why the district proposes or refuses to take the action, a description of each evaluation procedure, assessment, record, or report the district used as a basis for the proposed or refused action, a statement that the parents have protection under Part B's procedural safeguards and, if the notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained, sources for parents to contact to obtain assistance in understanding the provisions of Part B, a description of other options that the IEP team considered and the reasons why those options were rejected, and a description of other factors relevant to the district's proposal or refusal.

The PWN must be provided in language understandable to the general public and in the parent’s native language, or other mode of communication if the parent’s mode of communication is not a written language and then, if the parent’s mode of communication is not a written language, the notice must be translated orally or by other means to the parent in his or her native language or other mode of communication.  

A school district's failure to provide a PWN within a reasonable time before it implements a change constitutes a procedural violation that may result in a denial of FAPE.

For the MDR, have the Meeting Notice (stating date, time, location, attendees, and purpose), notes taken during MDR, and the decision, along with the PWN, and again, give parents their Procedural Safeguards Notice.