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 IEP.
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.