OSEP Issues Clarifying Guidance on IDEA Disciplinary Protections

The Office of Special Education Programs (OSEP)
recently issued informal guidance clarifying the disci­plinary protections that
must be provided to a student with a suspected
disability who has not yet been deter­mined eligible for special education
services. Letter to Nathan, 119 LRP
4245 (January 29, 2019).

A school is deemed to have “knowledge” of a student’s
disability when: (1) the student’s parent ex­pressed written concerns to the
school that the student needs special education and related services; (2) the
parent requested a special education evaluation; or (3) a teacher or other
school personnel expressed specific concerns about a pattern of behavior to the
school’s special education director or an administrator.

Occasionally, circumstances arise when school officials have
“knowledge” or are in the process of com­pleting a special education evaluation
for a student when the student violates the student code of conduct. According
to OSEP, that student may assert the right to Individuals with Disabilities
Education Act (IDEA) dis­ciplinary protections, which may include a manifesta­tion
determination review (MDR). If applicable, the school must conduct the MDR
within 10 school days from the decision to change the student’s placement. The
IDEA does not permit additional time to complete an MDR to allow for the
evaluation’s completion.

The purpose of an MDR is to determine
if the conduct in question was: (1) caused by, or had a direct and substantial
relationship to, the student’s disability; or (2) a direct result of the
school’s failure to implement the student’s IEP. School officials understandably
struggle with how to conduct an MDR if there is no eligibility determination or

In such
cases, OSEP recommends that the MDR team analyze the conduct based on the
student’s sus­pected disability and
consider “information that served as the LEA’s basis of knowledge that the
child may be a child with a disability under the IDEA, such as concerns
expressed by a parent, a teacher, or other LEA person­nel about a pattern of
behavior demonstrated by the child.” The MDR team must review all relevant
information in the child’s file, including staff and parent observations.

The team also
should consider any additional information a parent brings to the MDR meeting. If
an evaluation is already underway, the MDR team must re­view all data collected
for the evaluation. Of course, if there was no IEP in place when the misconduct
occurred, the MDR team cannot find that the misconduct was the direct result of
an IEP implementation failure.

Finally, concerning procedural safeguards, OSEP opined
that a website link to the procedural safeguards in the suspension notice is not sufficient. Instead, the school must
provide the parent with a printed copy of the procedural safeguards notice. If
a parent declines the printed copy and “indicates a clear preference to obtain
the notice electronically on his or her own from the agency’s web site,” the
school should document that it offered a printed copy but that it was refused.