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Discipline of Children with Special Needs by William B. Reichhardt, Esq.
(transcribed by Pamela Wright)

Note: Bill Reichhardt presented this program about discipline of students under IDEA or Section 504 at the 2013 Institute of Special Education Advocacy.

Our starting point is children who have been identified as having a disability under IDEA or Section 504.

Students who have not yet been determined eligible under IDEA prior to the misconduct may invoke the procedural and due process protections if it is later determined that they were eligible at the time of the misconduct.

The school is deemed to have knowledge of a child’s disability if:

  • The parent has expressed written concern that the child may need special education services.
  • The school notes pattern of behavior or performance that indicates a need for special education services.
  • The parent has requested an evaluation for eligibility for special education services.

Short and Long term Suspensions

  • Short term suspension – up to 10 consecutive school days or 10 cumulative school days in a year.
  • Long term suspension – more than 10 consecutive school days.
  • Expulsion: 365 days.

Ten Day Rule

  • A special education student can be removed to an appropriate interim alternative educational setting for not more than 10 consecutive days without this removal being considered a change of placement.
  • Be aware of patterns of short-term removals that act as placement changes. May be called something different – a placement that is not his placement in the IEP.

Continuation of Services

This is an area of law that continues to cause confusion. Some schools believe they don’t need to provide any instruction while the child is suspended or expelled. Or schools believe that because he’s suspended, they can change placement.

School districts must continue to provide educational services for special education students who have been suspended for more than 10 days or have been expelled.

What is a Change of Placement?

A change of placement occurs when:

– child has been removed from more than 10 consecutive school days; or

– the child has been subjected to a series of removals that constitute a pattern -

  • Series of removals total more than 10 school days in the school year
  • The child’s behavior is substantially similar to previous incidents of removal
  • Consider total amount of time/proximity of removals

In-School Suspensions

In school suspension may not be considered a change of placement triggering due process if:

– The student is afforded opportunity to progress in the general curriculum

– the school continues to provide services under the IEP

– student continues to participate with nondisabled students to the same degree

Manifestation Determination Review (MDR)

  • If the child is faced with expulsion or long term suspension (over 10 days), the school must determine whether the behavior is a manifestation of the child’s disability.
  • If a manifestation, the disciplinary suspension must end and the behavior must be addressed through the IEP process
  • MDR must be done within 10 days from the date of the suspension/expulsion decision (removal of the child from the placement)
  • MDR is done by the IEP team

Special Circumstances when a MDR is not Required

The student may be removed to an interim alternative educational setting for not more than 45 school days without a MDR if:

– The student is in possession of a weapon at school, on school premises or at a school activity.

– The student knowingly possesses, uses, sells or distributes illegal drugs while at school or school functions.

– The student has inflicted serious bodily injury on another person at school or on school premises.

Criteria for the MDR

The behavior for which the child is being disciplined was caused by, or had a direct and substantial relationship to, the child’s disability, and /or

The behavior was the direct result of the schools failure to implement the IEP.

If the Behavior is a Manifestation of the Child’s Disability:

  • The school must either – conduct a functional behavioral assessment (FBA) and implement a behavior intervention plan (BIP) or
  • If a BIP has already been developed, review the plan and modify as needed.

If the Behavior is not a Manifestation of the Students Disability

If the behavior was not a manifestation of the students disability, the student is subject to the same discipline for misconduct as children without a disability – however, the student must continue to receive education services to allow the child to progress under the IEP.

Preparing for the MDR: Marshalling the Evidence

  • Quickly obtain the discipline packet from the school – incident report, student’s statement, witness statements, teacher summaries etc. (ask about video tape).
  • Review all current evaluation material for the student (school /private testing); prior FBAs, BIPs
  • Identify potential experts – therapists, physicians etc. – get releases

Basics of Defending the MDR

  • Have a thorough understanding of the nature and scope of the student’s disability.
  • See how the school has previously described the manifestation of the student’s disability- in the IEP, FBA, BIP.
  • Objectively assess the defense of the MDR. Do not stretch credibility.

Preparing Expert Input for the MDR

  • Experts such as a child’s therapist or physician should have a clear understanding of the criteria for the MDR.
  • Give experts a copy of the incident report and student statement(s).
  • In giving written or verbal input, expert should reference specific facts of the incident and link to the child’s disability using the MDR criteria.

MDR Tactics from the Trenches

1. If you need more time to gather existing relevant evidence, offer to do a written waiver of the 10 day rule.

2. If refused, offer the waiver in writing and cite the reason. This could help you on appeal.

3. If your experts are helpful, get releases for them to speak to the school about the MDR criteria, in addition to written submissions.

4. If you have a good defense,  turn the MDR into a collaborative problem solving effort. Focus on “ direct substantial relationship.”

5. Prepare your response to the “intentional misconduct” argument by school personnel who “don’t believe in special ed.”

Behavior Intervention Plans

Should be written and should describe specific positive behavioral interventions.

Are used to help a student with behavioral problems function in the least restrictive environment.

Should be made part of the student’s IEP (but not required).

Expedited Due Process Hearing

Parent may request if:

  • Contest “non causal” MDR finding
  • Disciplinary placement decision

School may request if child is dangerous in current setting.

Common Appeal Issues in Discipline Cases

  • Findings and Procedures in the Manifestation Determination Review (MDR).
  • Denial of FAPE by extended homebound exclusion without adequate services.
  • Failure to provide FAPE in an alternative learning environment.

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Created: 08/21/13