Tips to Ensure a Legally Compliant MDR

If it seems that your students’ New Year’s resolutions did not include better behavior at school, you are not alone. Building administrators must remember that not all discipline proceeds in the same way. School officials must ensure that students with disabilities receive applicable IDEA and Section 504 protections, which may include a manifestation determination review (MDR). Below are tips to ensure that your school’s MDR practice is legally compliant.

Tip #1: Conduct a Timely MDR

Absent an agreement with the parent or guardian to the contrary, a school must convene an MDR Team meeting that includes the parent and other relevant members of the student’s IEP Team within 10 school days of the decision to impose discipline that will change a student’s placement. The student’s IEP memorializes placement, which describes the settings in which the student receives special education services and general education instruction. A change of placement occurs if the school removes the student for more than 10 consecutive school days or removes the student for more than 10 cumulative days in a school year when the removals constitute a “pattern of removals.” Removals can be for all or part of a school day and include out-of-school suspension, in-school suspension unless specific criteria are met, and time the student spends away from the learning environment, e.g. when parent is told to take a student home or when a student is in school but without access to peers or learning opportunities due to behavior. Administrators and special education staff should be precise in counting removal days and, when there is a question, err on the side of overcounting.

Tip #2: Create a Solid MDR Team

The MDR Team is composed of relevant members of the student’s IEP Team, as determined by both the school and the parent. Parents have the right to invite additional participants, such as outside caseworkers. Parents cannot veto who the school team invites to the meeting. Proper team members include those who work regularly with the student and are aware of how the student’s disability manifests.

Tip #3: Consider All Relevant Information

A student’s MDR Team has a legal obligation to review all relevant information in the student’s file, including, but not limited to, the student’s IEP, teacher observations, and parent input. If the parent presents new information at the meeting, the MDR Team must review it. The MDR Team should never reject information from a parent during an MDR meeting just because it was not provided before the misconduct occurred. All information that is presented during the MDR meeting should be carefully considered when determining whether the student’s misconduct was a manifestation of his or her disability.

Tip #4: Stay Focused

Despite a parent’s or advocate’s efforts to the contrary, an MDR Team is not to discuss whether the student engaged in the alleged misconduct. The MDR Team’s role is to determine whether the misconduct that resulted in discipline was a manifestation of the student’s disability. School officials may decide to remind parents and advocates at the beginning of the MDR meeting that student discipline decisions are made through a different process and the MDR Team plays no role in that process.

Tip #5: Don’t Assume the Misconduct Is a Manifestation of Student’s Disability

Misconduct is a manifestation of a student’s disability if it was caused by, or directly and substantially related to, the student’s disability or was the direct result of the school’s failure to implement the student’s IEP or Section 504 Plan. An attenuated relationship between the student’s disability and the misconduct is not a manifestation. School officials should not assume that all misconduct is a manifestation of a student’s disability, which happens most often when the student has a disability such as autism or emotional impairment. Instead, the MDR Team should conduct a careful analysis of the specific facts to determine the extent of the relationship, if any, between the disability and the misconduct.

Tip #6: Do Not Vote

A school official, typically the person who serves as the district representative at IEP Team meetings, should lead the MDR. That individual should ensure that the meeting runs smoothly, including allowing all MDR Team members to provide input. This person will also serve as the school official who will make the final determination (taking into account all participants’ input) as to whether the misconduct was a manifesta­tion of the student’s disability.

MDR Team members should not “vote,” and there should not be a “majority rules” approach to MDRs. Having considered all the data, information about the incident that led to the removal, and the MDR Team’s input, the school official’s decision is the final determination. Once the determination is made, the school must provide the parents with written notice and procedural safeguards, explaining their right to challenge the determination.

Conclusion

MDR meetings are often the most contentious special education meetings that school employees attend. If you follow these tips, you will be able to conduct an MDR Team meeting with confidence, while also ensuring that student rights are protected. If you have questions about the MDR process, please contact a member of Thrun Law Firm’s Student Issues Practice Group.