We save Tuesdays for reminders about the tools in The Toolbox, our firm’s all day training program regarding special education discipline.  Many of the tools are contingent on the ARDC’s decision regarding a manifestation determination.  If the student’s behavior was not a manifestation of disability, the Code of Conduct consequence can be applied, even if it involves a lengthy stay at the DAEP.  If the behavior was a manifestation of disability, the ARDC needs to take a different approach. 

North East ISD placed a student with autism in the DAEP for 45 days after the ARDC determined that the student’s behavior was not a manifestation of his disability.  The parent challenged that decision in an “expedited” due process hearing, but the hearing officer affirmed the district’s decision. 

When T.E.A. releases a decision in a special education due process hearing it does a lot of redacting.  It’s frustrating to read these decisions, trying to piece together exactly what happened when so many crucial details are redacted.   This decision contains only one reference to the behavior under consideration when it notes that the ARDC conducted an MDR (Manifestation Determination Review) “related to Student’s false alarm.” 

Despite the lack of detail, the decision provides a good road map for ARDC’s in making the MDR.  The hearing officer noted that 1) the district first conducted a disciplinary conference in which it was determined that the student had violated the Code of Conduct and that DAEP placement would be the consequence, subject to action by the ARDC; 2) the ARDC reviewed the student’s IEP and BIP; 3) the ARDC reviewed and considered input from the mother; 4) the ARDC adopted an additional goal and behavior accommodations.

The hearing officer agreed with the conclusions of the ARDC—that the student knew what he was doing, knew that it was wrong, knew that he could get in trouble.  Key Quotes:

This incident occurred without any anger, frustration, impulsion or agitation. 

Student has difficulties due to Student’s AU and SI disabilities. But Student is bright, Student works on grade-level TEKS, Student’s teachers like Student, and Student is able to engage in conversation when Student feels safe.  Student does not manifest harmful behaviors towards Student’s peers and teachers. Student is able to describe some feelings and understand the requirements under the Student Code of Conduct. The evidence does not support a finding that the Student’s behavior resulted from the District’s failure to implement Student’s IEP and/or BIP.

So there you have it.  MDR done correctly.  Note also that the district did not just impose a disciplinary consequence—it also made some changes to the student’s BIP in response to this incident.  That is often a wise thing to do. 

The case is Student v. North East ISD, decided by special education hearing officer Deborah McElvaney on October 8, 2019.  We found it on Special Ed Connection at 119 LRP 25656.  On T.E.A.’s website you will find it at Docket No. 401-SE-0819-A.  

DAWG BONE:  MDRs ARE NOT BASED ON THE LABEL. THEY TURN ON SPECIFIC FACTS.

Tomorrow: Tampering with STAAR.