Handling a Manifestation Determination Review
by Bill Brownley, Attorney at Law
When a child with a disability engages in behavior or breaks a code of conduct and the school proposes to remove the child, the school must hold a hearing to determine if the child's behavior was caused by his disability. This hearing, a
Manifestation Determination Review (MDR), is a process to review all relevant information and the relationship between the child's disability and the behavior.
Consequences for problem behaviors should not discriminate against a child based on his disability. Yet, schools continue to suspend and expel students with disabilities for behavior caused by their disabilities.
It is amazing how frequently behaviors that seem obviously related to a child's disability are deemed by school teams to be unrelated to the child's disability. We see this all the time in our practice. As a parent, what do you need to know and do about an MDR to protect your child and his rights?
The First Step
The school calls. A Manifestation Determination Review (MDR) is scheduled in 10 days. Very often school personnel will tell parents that the MDR is "no big deal".
Yes, it is a big deal.
It is your last best chance to keep the issue out of the school disciplinary officer's hands.
Take this very seriously, and prepare for it diligently by doing the following.
Your Next Steps
1. Make sure you know the correct date and time of the review. Get a delay if necessary to allow time to prepare.
Most school systems have a separate discipline process that will be pushing the school to move as fast as possible with the MDR. If necessary, agree to do a timeline waiver with the school. Your request for a waiver should allow you time to prepare, not delay the review indefinitely.
You can use a statement like "Obviously this is an important issue for my child, and I am sure you want him to have the benefit of his full due process rights. I am only asking for a short delay."
2. Request the discipline referral packet (or the equivalent document) that is being sent to the discipline hearing office. It will have witness reports and other important information. You probably have not yet seen this information, but you are entitled to it. You want to know everything the school is reporting.
3. Now that you have gained some time, prepare. Read every document used to support eligibility. Read your child's Present Levels of Academic Achievement and Functional Performance. Read everything you can about the disability and how it might manifest itself in terms of behavior.
Is there is a Functional Behavior Assessment (FBA)? A Behavior Intervention Plan (BIP)? Are they pertinent? Did the school follow them? If not, you may have a winning case on these grounds.
Some parents do not have copies of these documents. Others do not know they exist. You may need to request, in writing, the FBA and BIP from the school. Get a copy of each and review them.
4. Map these documents with the actions stated in the school's complaint. Do they match? If yes, you might have a winner. If not, you may need something else to win the day.
5. Prepare handouts of the information you want the MDR committee to have. For example; quotes from the eligibility document or the evaluations used to create eligibility. Backup your information with quotes from reputable sources describing behavioral manifestations.
Use the descriptions of the claimed behavior from school personnel. Do these descriptions line up with the other expert information you have?
6. Go to the meeting with a tape recorder. I am usually not a fan of taping, but in this case it is useful. I will explain why later.
7. A school psychologist usually attends these meetings. Determine who the psychologist is. Schools consider this person the expert on behavior. If you can win the psychologist over, you will win. If the psychologist sides with you, so will everyone else. If he does not side with you, you can attempt to discredit or marginalize his "expertise." If you discredit the psychologist to the others on the team, you are far more likely to win.
8. Start by seeking agreement about the child's disability. Use the school's experts and quotes from documents to establish the disability. Get the school, especially the school psychologist, to vocalize that they agree. Ensure everyone has copies of your prepared handouts. You want to educate them to your way of thinking. To schools, paper has power. Distribute your handouts that list the behavioral manifestations of the disability. Remind the team that a child's fate rests in their hands. When the decision making actually begins, poll each member of the team for their opinion. Ask them to justify their opinion.
Remind the team they are on tape. School teams want to hide in the anonymity of a "group" decision. They are far more reluctant to go on the record individually in a negative way.
9. If you win, thank the school MDR committee. If you lose-thank them for their time, go home, and make as complete a record as you can of everything about the meeting. This may prove invaluable in future efforts for your child.
Preparation and documentation make all of the difference and can provide a basis on which the MDR team can make a decision that favors your child. If you feel overwhelmed or need help in this area-do not hesitate to call us, we are here to help you.
The Brownley Law Group