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Manifestation Determination Reviews

Lynn Rossi ScottBrackett & Ellis P.C., Fort Worth, TX

Education Law AssociationNovember 2015

With special thanks to Janet Sobey Bubert, Brackett & Ellis, P.C.

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When must a school conduct an MDR meeting?

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When is an MDR not required?

� Regular ed student� Less than 10 day placement � Less than 45 days for weapons,

illegal drugs, controlled substances or serious bodily injury.

20 USC 1415(K)(1)(B) & (G)

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When is an MDR required?

� Within 10 school days of decision to“change the placement” of a “childwith a disability” because of aviolation of the student code ofconduct.34 CFR 300.530(e)

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What is a change of placement?

� Removal is for more than 10 consecutive school days; or

� Series of removals (totaling more than 10 days) constitute a pattern of removal because of similar behavior and other factors.

20 USC 1415(k)(1)(E)34 CFR 300.536

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Who is a child with a disability?

� Identified as Special Ed or 504� General education student if school has

knowledge of a disability:§ Parent requested evaluation§ Parent expressed need for SPED in writing§ School staff expressed concern to

supervising personnel

� Unless parent previously refused consent

34 CFR 300.534

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When is an MDR required?

� Pointe Educational Services (Ariz. SEA 2015)§ Charter School kindergartner’s teachers

noted student disobeyed directions, was distracted, and talked during lessons –made progress after interventions

§ Parents divorcing – Student became more disorderly and disruptive in classroom

§ In December, suspended for remainder of school year; parent requested evaluation

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Pointe Educational Services (Ariz. SEA 2015)� Held: Although child entitled to IDEA

protections if the school has knowledge of disability, behavioral concerns were typical of kindergartner and reflected reaction to divorce.

� Therefore, no IDEA protections required for suspension.

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When is an MDR required?

� Avila v. Spokane (E.D. Wash 2014)§ Suspension of autistic elementary

student for a total of 6 days over two school years did not trigger MDR

§ School can choose to do so, but it is not mandated to do so

§ PRN provided upon parent demand for MDR

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When is an MDR required?

� King Philip Regional School District (SEA MA 12/31/14)

§ Spring 2013 – felony conviction§ Oct. 2014 – student withdrew from

school and revoked consent for SPED after dispute over residential placement

§ Nov. 2014 – student re-enrolled§ Dec. 2014 – notice of expulsion

based on conviction

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King Philip Regional School District� Student was a general education

student at time of expulsion, but…

§ Entitled to MDR because he was SPED student at time he committed the felony

� Held: Expulsion invalid & expunged from school record

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King Philip Regional School District

� “It is the time during which thebehavior occurred, not the timeduring which the disciplinary actionwas administered, that is relevant forpurposes of determining whether thestudent was entitled to amanifestation determination.”

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When is an MDR required?

� Student v. Killeen ISD (SEA TX 12/02/13)

§ B to C grade average§ Failed state math assessment § Identified by district as at-risk & may need

tutoring or support§ Behavior contract for disregarding

direction by school personnel § After additional insubordination, placed at

DAEP

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Student v. Killeen ISD

� Parent alleged District should have evaluated for SPED before student was subject to DAEP placement§ No previous request for assessment

from parent or school

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Student v. Killeen ISD

� “Student who has not been identifiedas eligible for special education andrelated services – and who hasviolated the district’s code ofconduct – does not have theprotections afforded by IDEA unlessthe [district] had knowledge that thestudent was a student with adisability before the behavior thattriggered the disciplinary action.”

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When is an MDR required?

� K.A. v. Abington Heights S.D. (M.D. Penn. 2015)§ Middle school student bought synthetic

marijuana online, gave to classmate to pay a debt, and threatened to harm a “squealer”.

§ Student eligible under 504 – for ADD and dysthymic disorder (mild depression)

� Expelled for drug possession, no MDR held

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K.A. v. Abington Heights S.D.

� Although court could not concludethat student was entitled to an MDR,the failure to conduct one resulted incourt not dismissing claim ofdisability discrimination, becauseDistrict did not consider whetherdisability impacted behavior.

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K.A. v. Abington Heights

� Held:Student does not have a right to an MDR under Section 504 if he possesses illegal drugs on campus and currently engages in the illegal use of drugs

� Cited 29 U.S.C. 705(20)(c)(iv), the Labor Department regulation definition of “disabled”

� If school cannot prove both, then hold MDR.

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Who must participate in the MDR meeting?

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Who must attend MDR?

� Parent

� Relevant members of ARD committee

34 CFR 300.530(e)

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Who must attend MDR?

� District of Columbia Public Schools (SEA DC 05/03/13)

§ High-school student with SLD assaulted a classmate

§ Case manager called parent to invite her to MDR

§ “My attorney will contact you” – hung up§ 2nd call one week later – hung up§ No contact from parent’s attorney§ School conducted MDR w/o parent &

determined assault was not a manifestation

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District of Columbia Public Schools� ARD meeting may be conducted w/o

parent if district unable to convince parent to attend34 CFR 300.322(a)

� Must keep record of attempts to include parent:§ Phone calls§ Correspondence§ Visits to home / place of employment

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District of Columbia Public Schools

� Held: Attempts to include parent were insufficient:§ No written notice of meeting§ No visits to home / employer§ No attempt to contact attorney

� Impeded parent’s opportunity to participate & denied student FAPE

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Who must attend MDR?

� Other relevant members of ARD committee?

§ 34 CFR 300.530(e)(1) – relevant members determined by parent and school district

§ Texas Educ. Code 37.004 requires MDR by IEP committee – arguably includes all required members

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Who must attend MDR?

� St. Joseph Public Schools (Mich. SEA 5/7/15)

� Student with SLD and ADHD was removed for over 10 days for threats during lockdown

§ Parents were directed to get student a mental health exam to determine if student was safe to return to school

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St. Joseph Public Schools

� Meeting not identified as MDR in notice letter

� Scheduled for 10th day, but parents could not attend

� No procedural safeguards sent� No opportunity to reschedule

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St. Joseph Public Schools

� MDR held without parents or social worker who provided informal services to student (not in IEP)

� MDR determined no manifestation

� Held: Process faulty, in so many ways

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What information must the IEP committee consider when

making an MDR decision?

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What information must be considered?

� All relevant information in the student file, including:

§ IEP§ Teacher Observations§ Parent information

34 CFR 300.530

� Not an exhaustive list.

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What information must be considered?

� Regional School Unit #72 (SEA MA 9/19/13)

§ Student with SI & LD expelled for stealing shoes

§ MDR includedv Input from school psychologist & speech

therapistv Disabilities did not increase propensity to

stealv Specific testimony re no relationship to

disability� Held: For District

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What information must be considered?� High Tech Middle North County (SEA

CA 10/09/14)§ Student with ADHD brought 4” knife

to school§ Initially student denied, then

admitted to hiding knife in bathroom§ Months later, student explained he

forgot knife in his pocket

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High Tech Middle North County

� MDR included:§ Evaluation – problem with organization

& turning in assignments§ Consideration of student’s conduct on

day of incident – deliberate action§ Determined not a manifestation &

expelled

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High Tech Middle North County

� Parent produced letters from doctors at hearing – forgetting knife is consistent with ADHD

� Held for school district§ Actions on day of incident supported MDR

conclusion§ Decision reasonable based on available

info – “snapshot rule”

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What information must be considered?

� In re Student with a Disability, 62 IDELR 217 (SEA KS 2013)

§ Constitutional protections apply to MDR review

§ District infringed upon student’s 4th

amendment rights by searching cell phone messages for MDR for drug possession.

§ Messages were used to show student’s conduct was not a manifestation.

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What information must be considered?

� Houston Co. S.D. (GA. SEA 2015)§ Student with ADHD and borderline

intellectual functioning brought tequila to school

§ Drinking tequila and hot sauce with friends

§ Suspended one year to home-based alternative program

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Houston Co. S.D.

� MDR determined no manifestation§ Pediatrician testified ADHD was direct

cause of tequila possession, but he was not mental health professional;

§ Program specialist testified no manifestation

� Held: No violation

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How does committee decide if conduct was a

manifestation of student’s disability?

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How does committee decide if conduct was a manifestation?� Was the conduct in question caused by, or

did it have a direct and substantial relationship to, the student’s disability?

� Was the conduct in question the direct result of the district’s failure to implementthe IEP?

� If the answer to either question is “yes” –conduct shall be determined to be a manifestation of the student’s disability.

34 CFR 300.530(e)38

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How does committee decide if conduct was a manifestation?� Conduct must have more than just an

attenuated association to the disability

� Misconduct is not likely to be a manifestation because the student suffers from low self-esteem due to the existence of a disability

� Consider whether conduct of the specific incident is a manifestation

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How does committee decide if conduct was a manifestation?� Student v. West Orange Cove Consolidated

ISD (SEA TX 4/9/2014)§ Student subject of eligibility dispute – ED § or AU§ History of physical aggression – some

planned§ Limited coping skills/anger issues§ Other incidents of impulsive/off-task

behavior� MDR for teacher injury� Determined not a manifestation

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Student v. West Orange Cove Consolidated ISD� Hearing officer overturned MDR decision§ District improperly relied on report – “student

has a sense of responsibility for his actionsӤ Responsibility after the fact does not negate

relationship of disability to behavior at occurrence

§ Reported facts suggest escalating agitation with progressively more physical response

§ Consistent with limited coping skills & lack of control

§ School testimony lacked credibility41

How does committee decide if conduct was a manifestation?� Cripps v. Hurst-Euless-Bedford ISD (N.D.

Tex 2015)§ Student eligible for SLD & OHI (ADHD).§ History of impulsivity & disrespect toward

peers§ 60 days DAEP for photographing student on

toilet – felony behavior§ Reviewed student file, parent input, teacher

observations§ Determined not a manifestation because

conduct demonstrated intent rather than impulsivity

� Criminal charges not filed42

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Cripps v. Hurst-Euless-Bedford ISD� At hearing, parent’s expert testified

student’s “behaviors and difficulties” are a manifestation of disability due to ADHD

� Held for school§ MDR considered all relevant information§ Parent expert did not specify “what

conduct” was manifestation§ District staff are education experts –

agreed with MDR

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How does committee decide if conduct was a manifestation?

� Columbia Borough S.D. (Penn. SEA 2015)

§ New student with ED brought pointed object to school after seeing friends twice attacked on walk home from school – 45 days alternative educational placement

§ Prior IEP provided transportation

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Columbia Borough S.D.

§ Meeting notice did not identify MDR § IEPs not considered at MDR§ MDR determined no manifestation

and no transportation

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Columbia Borough S.D.

� Held: MDR determination incorrect§ Challenges due to social interactions

with peers

Refusal of transportation exacerbated the problems; therefore, a direct and substantial relationship to disability existed

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Was conduct a manifestation?

� D.C. Public Schools (D.C. SEA 2/3/15)§ Student eligible under MD due to

OHI, ADHD and SLD§ After minor disciplines and removals

for a fight, class disruption, and non-compliance, student disrupted classes and pushed door in the face of the Dean of Students

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D.C. Public Schools

� MDR Held –§ Student admitted behavior and

refusal of redirection.§ Psychiatrist testified that ADHD can

cause student to explode, lose focus, lose control.

§ No contrary evidence presented

� MDR – No manifestation, but develop FBA and BIP

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D.C. Public Schools

� Held: Student’s behavior was manifestation of disability

� Granted compensatory education –independent tutoring to make up deficit for 3 days missed

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Which disability should the MDR consider?

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Which disability to consider?

� Student v. Plano ISD (SEA TX 8/9/2013)§ Student eligible under LD, SI, & OHI

(ADHD) involved in physical altercation with another student

§ At MDR, parent stated conduct caused by severe allergies to mold, pollen & variety of chemicals – true basis for OHI

§ Committee determined not a manifestation

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Student v. Plano ISD

� Held: for school district:§ MDR should consider existing

determinations of eligibility and services§ Eligibility determined through evaluation

process§ No eligibility determination based on

allergies v Parent never returned OHI form

§ No competent evidence allergies can cause misconduct

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Which disability to consider?

� Z.H. v. Lewisvilel ISD (E.D. Tex. 2015)§ Middle school student with ADHD and

Depression (R/O Aspergers) created shooting list over several day period –Received 35 days DAEP

§ Parents presented PDD-NOS diagnosis at MDR – Considered and evaluation offered, but declined

� Held: For District� District considered all suspected disabilities,

including those not listed in IEPs.53

If discipline incident involves serious misconduct – does

that impact the MDR process?

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What if misconduct is not a manifestation?� If the behavior is not a manifestation:

§ District discipline procedures apply in the same manner as for students without disabilities

§ ARD committee determines the appropriate alternative placement

§ Student must continue to receive educational services

34 CFR 300.530(c).

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What if misconduct is not a manifestation?� Discipline must be same as applied

to non-disabled studentsCripps v. HEBISD (N.D. Tex. 2015)

� Criminal authorities’ decision about prosecution does not impact school disciplinary placement. No obligation to re-examine MDR decision. Id.

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What if misconduct is a manifestation?� Generally, if the behavior is a

manifestation:

§ Conduct Functional Behavioral Assessment (FBA)

§ Implement or revise Behavior Intervention Plan (BIP); and

§ Return student to educational placement, unless the ARD committee agrees to change placement

34 CFR 300.530(f)57

What if misconduct is a manifestation?� 45-day removal for special circumstances:§ Possession of Weapon v readily capable of causing death or

serious bodily injury§ Possession/Use of Illegal Drug§ Serious Bodily Injuryv substantial risk of death, extreme

physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty

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What if misconduct is a manifestation?� 45-day removal for special

circumstances:

§ May remove student to alternative educational setting (determined by ARD Committee) for not more than 45 school days, regardless of manifestation determination

34 CFR 300.530(g)

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What if serious misconduct is a manifestation?� Los Angeles Unified Sch. Dist. (SEA CA

5/22/14)§ 16 year old student eligible under OHI

brought a semi-automatic handgun to school

§ MDR determined conduct was a manifestation

§ Expelled student in compliance with Gun-Free Schools Act (requires state law mandating expulsion for bringing firearm to school)

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Los Angeles Unified S.D.

� Hearing officer overturned expulsion§ Gun-Free Schools Act must be

implemented in a manner consistent with IDEA

§ School policy allowing expulsion for disability-related misconduct violates IDEA

§ Student could be placed in DAEP for 45 days

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What if serious misconduct is a manifestation?� Greenville ISD (SEA TX 4/11/13)

§ Student with a disability hit his music teacher

§ During meeting about referral to DAEP, parent requested MDR

§ Parent challenged determination that conduct was not a manifestation

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Greenville I.S.D.

� Hearing Officer agreed with parent§ AP indicated MDR was “just a formality”§ Alleged discipline code “supersedes” 504§ Completed 504 paperwork after

impromptu MDR meeting

� Mandatory removals under state law do not override MDR process

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Manifestation Determination Reviews

Lynn Rossi ScottBrackett & Ellis P.C.

Education Law AssociationNovember 2015

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