We are plowing through the newly revised Q and A from OSEP on our Toolbox Tuesdays, and today we focus on Section F: Manifestation Determination Reviews (MDR).

This section contains nothing new and largely regurgitates the language of the law and regulations.  Here are a few key points.

1.  The duty to do an MDR is triggered “when school personnel propose to change the placement of a child with a disability because of a violation of the school’s code of student conduct.” The MDR must be conducted within 10 school days of that proposal. That’s usually two weeks and as we emphasize in Toolbox training, it’s wise not to rush into the MDR process. Parents are entitled to five school days written notice of the meeting, and it’s not good to pressure the staff into a hasty MDR.
2. It’s important that the MDR Team (the ARD Committee) review the student’s IEP to make sure that it’s been consistently implemented. The student’s behavior may be considered a manifestation of disability if it was “the direct result of the LEA’s failure to implement the IEP.”
3. If the decision is that the behavior is a manifestation, the school needs to remember the two “don’ts” that we talk about in the Toolbox: Don’t punish it. Don’t ignore it. The school has work to do. It needs to do an FBA unless one has already been done, and develop a BIP or revise an existing one (Tool #1).  The student must be returned to the placement from which the student was removed unless 1) the parents agree to a change (Tool #2) or you have a “special circumstances” offense (Tool #5). 
4. If the decision is that the behavior is a manifestation because of the school’s failure to implement the IEP, the school has even more work to do—meeting with teachers and service providers to make sure they understand their responsibilities.
5. If the behavior is not a manifestation, the student is subject to the same disciplinary consequences as any other student, so long as the school continues to provide services sufficient to enable the student to access the general curriculum and progress toward meeting the goals in the IEP. In Toolbox terminology, this is Tool #6.
6. There can be a disagreement, and if there is, “the LEA must make the determination and provide the parents with prior written notice.”  We talk about that in Tool #9.

The MDR is a formal process to make sure that we do not punish a student for having a disability.  The standard to be applied is “causation.” Did the disability cause the misconduct? Did it have a substantial relationship to the misconduct?  Was the behavior directly caused by the school’s failure to implement the IEP?

It’s not a loophole enabling students to avoid the appropriate consequences for violating the code of conduct. Decisions should be based on evaluation data and informed by common sense.

DAWG BONE: NO SUBSTITUTE FOR GOOD EVALUATION DATA ALONG WITH COMMON SENSE.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com.

Tomorrow: One for the Sheesh-O-Meter…