If you’ve recently had the (dis)pleasure of reaching out to one of us for assistance with a student discipline matter, you probably know that we will promptly ask: “Is the student identified as a student with a disability? Does she have an IEP or 504?”
And if you say no, we turn our attention to the IDEA’s secret child find and manifestation question: “Should the student be referred for evaluation as a student with a disability? Do you have knowledge that the student may have a qualifying disability?”
Wait, that sounds like a child find issue, not a student discipline issue… Actually, it’s both.
Most educators are familiar with the “manifestation determination” requirement for longer-term student discipline when students are receiving special education services: before a school can remove a student from his or her current educational placement for more than 10 days, the school district must conduct a manifestation determination review (MDR). In addition to the MDR, there are several procedural safeguards, such as prior written notice and the right to appeal.
If the multi-disciplinary team conducting the MDR finds that the student’s misbehavior was caused by or had a substantial relationship to the student’s disability, the student must remain in his or her educational placement. The same is true if the team determines that the misconduct was a direct result of the district’s failure to implement the IEP. Translation: if any of those questions is answered in the affirmative, the student’s disciplinary change of placement cannot exceed the 10 day limitation under the IDEA.
With us so far? If so, good. If not, please hit “forward” and send this to your special education staff...
What fewer people realize is that under Rule 51 and the IDEA regulations, “[A] child who has not been determined to be eligible for special education . . . and who has engaged in behavior that violates a code of student conduct, may assert any of the protections provided for in this part if the public agency had knowledge . . . that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.” 34 C.F.R. § 300.534(a); 92 NAC 51.016.06A.
A school district or approved cooperative is deemed to have “knowledge” that a child is a child with a disability if, before the behavior that precipitated the disciplinary action occurred:
The parent of the child has expressed concern in writing to the administration or the child’s teacher that the child is in need of special education and related services;
The parent of the child requested an initial evaluation of the child under the IDEA (unless the parent refused to consent to the evaluation or subsequent services, or the child was evaluated and found ineligible); or
The teacher of the child, or other personnel of the institution, expressed specific concerns about a pattern of behavior demonstrated by the child directly to the institution’s director of special education or other supervisory personnel.
34 C.F.R. § 300.534; 92 NAC 51.016.06.
Here’s where many minds get blown: if a school district or approved cooperative has knowledge that the child was a child with a disability before the behavior precipitating discipline, the child must be afforded the protections of the IDEA (such as an MDR prior to a change of placement) even if he or she does not have an IEP or 504 plan.
Let’s say a parent emails a teacher and says, “I’m worried about my son. He’s starting to lie about his bad behavior and gets really frustrated when I ask him about it, often throwing things. Have you seen that in class?” The teacher then responds, “Yes. We have discussed his behavior before, but I have seen more of that in class and his reactions are getting worse. I’ve had to send him to the office every day this week. Have you taken him to see your pediatrician?”
Bam! The school now has “knowledge” because a parent expressed a behavioral concern to the teacher. The next time the student acts out and hits a classmate, the school district is supposed to at least consider whether that prior knowledge entitles the student to the protections of the IDEA. Could the student have an “emotional disturbance?” Maybe an OHI verification for ASD, PTSD, or ODD? That’s what this regulation forces your staff to grapple with.
So how does that work? Providing the disciplinary safeguards to a student not yet identified as a student with a disability presents a number of practical and conceptual challenges. How do you do an MDR if you don’t know what the child’s disabling condition actually is? This is exacerbated by the fact that in these situations there is likely a dearth of data and evaluative information normally available to an MDR team.
The US Department of Education’s Office of Special Education Programs (OSEP), which interprets and enforces the IDEA for the Department of Education, recently provided additional guidance in Letter to Nathan, 73 IDELR 240 (2019).
At the outset, Letter to Nathan addressed whether a local education agency (e.g., school district) may postpone a manifestation determination meeting until after the completion of the initial evaluation or the initial IEP team meeting for the child. If the school finds itself in one of these “prior knowledge” situations, can they at least postpone the MDR until the evaluation is completed? “No,” says OSEP, “No.” In Letter to Nathan, the agency notes that the IDEA mandates an MDR be conducted within 10 school days of any decision to change the child’s placement, without exception. If a school has prior knowledge, it gets no additional time to evaluate the student or create an IEP prior to the MDR.
So if there is no readily-available “evaluation tool” for a category like emotional disturbance, what does the team consider at the MDR? OSEP advises that the MDR team review “all relevant information” in the child’s file, including any teacher observations and any relevant information provided by the parents. The information that caused the district to suspect that there may be a need to evaluate the student will be particularly relevant.
According to OSEP, “Based upon its review and consideration of the available information, the group would determine whether the conduct in question was caused by, or had a direct and substantial relationship to the child's suspected disability.” Letter to Nathan recognizes that when there is no IEP developed for the child at the time of the MDR, “the LEA would be unable to determine whether the child’s conduct was the direct result of the LEA’s failure to implement the child’s IEP.” So although the MDR questions are slightly different because there can be no “failure to implement the IEP,” the team is still required to conduct the MDR.
OSEP notes that a school district may, but is not required to, expedite an evaluation of a student when the school district is regarded as having knowledge that the student was a student with a disability. OSEP’s unspoken advice seems pretty clear: if you’re worried about a lack of data or testing information indicating whether the child even has a disability when conducting your MDR, maybe you should consider an expedited evaluation, or not discipline the student.
Training staff to answer the “secret” manifestation question. The IDEA requires that schools consider whether a general education student is entitled to the disciplinary protections of the IDEA before imposing disciplinary removals. The student is entitled to these protections when the school had knowledge that the child was a child with a disability - and the regulations loosely define “knowledge” to trend closer to what most would regard as suspicion. More concerning for school attorneys is the fact that an email exchange between a teacher and a parent, alone, could be sufficient to confer that “knowledge.”
When the school has “knowledge,” it must undertake the difficult task of considering which protections the student may have under the IDEA. This may require conducting an MDR without a determination as to whether the student is eligible for IDEA services in the first place. Though the guidance in Letter to Nathan is helpful, more than anything it highlights the practical and legal difficulties of these regulations.
We strongly encourage schools to provide training to all staff on this issue, including administrators who are responsible for student discipline. If you have a discipline checklist, the prior “knowledge” question has to be added to it.
If you have any questions about this, or any other issue, we recommend you contact your attorney, or call Karen, Steve, Bobby, or Coady.
Save the Date! If you are a KSB Policy Service subscriber, the 2019 annual updates are underway and links to the updated policies will arrive in your inboxes on June 3, 2019. We will be holding our webinar to review the policy updates on June 4 at 9:00 a.m. CST. If you cannot participate in person, we will record the webinar and post it on our website.