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This perspective is from the school counselor, a vital member in conduct review committees. This guide is to help inform and maintain compliance among administration, behavior specialist, special education staff, and teachers. This topic was chosen due to the frequency of conduct concerns and the often unknown legal requirements involved.

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Amanda Mcnabb

AMCNABB@springisd.org

281-891-6000

ADMIN-SPECIAL SERVICES •

ADMINISTRATION BLDG

1) The topic of Manifestation Determination Review (MDR) is important in the field of counseling due to the school counselor usually being involved with 504 or a member of the conduct review committee. MDR is impacting the field of education by acknowledging the need for safety while also acknowledging that some conduct concerns can be related to the students disability.

2) Best practices related to the topic:
. Parent notification on day of removal
. Review all relevant information in student file
. Document everything, especially parental notices and interventions tried

3) Section 504 of the Rehabilitation Act of 1973 does not use the term "manifestation determination"
but OCR interprets Section 504 as requiring
an MDR in connection with disciplinary actions that
constitute a significant change in placement. Will section 504 be amended to include this language? (Rehabilitation Act of 1973, Pub. L. No. 93-112, § 504, 87 Stat. 394 (1973) (OCR
Staff Memorandum, 16 IDELR (OCR 1989).

Interview:

Can you tell me how this legal issue impacts your work?

Any time that a student with a disability under 504 or Special Education has been removed from their placement for 10 days, a meeting must convene to discuss whether or not there is a causal relationship between the student's disability and the incident(s) that have occurred. The meeting is called an MDR and the campus team (this depends on whether the child wit a disability is under the 504 or Special Education umbrella) must be documented and agreed upon. We must keep up with students, their days out of placement as well as work with staff members to find alternative forms of disciplinary actions for students.

Are there legal requirements or compliance issues you regularly monitor or have to be attentive to in this area?

Legal requirements include out of placement for 10 days and an MDR must be scheduled or when a child violates the student code of conduct by possessing a weapon, drugs/alcohol or inflicts serious bodily harm.  If any of these occur, an MDR must convene within 10 school days.  If the LEA determines that the violation does not have a causal relationship to the student's disability and the parent disagrees, the district will implement the discipline set forth by the campus and the parent will have to file due process.

Are there any policies or rules you have currently written or revised related to this issue? Is there current or pending legislation related to this issue?

One of the largest pieces of the current legislative session deals with mental health and safety.  Often times, MDRs are set due to issues with safety.

Do court cases and their decision impact your work?

Court cases always impact our work.  I attend a minimum of 2 legal updates per year in regard to educational law.  Each year there are several updates in regard to discipline and the MDR process.

Are there certain student or employee rights that relate to this issue?

https://fw.esc18.net/Documents/Pro_Safeguards_ENG.pdf

Have you attended or provided any trainings recently on this topic, what? How do you stay current on this topic?

I stay current on the MDR topic through yearly legal trainings.  Most recently our district has partnered with Region 4 service center to complete an administrator training for all Spring ISD administrators.  A condensed version was also presented to all special education department chairs on the MDR process (M. Mcnabb, personal communication, June 10, 2019).

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https://www.naset.org/index.php?id=3739

National Association of Special Education Teachers (NASET) created a handout for parents on how to prepare for a MDR meeting. This handout covers how IDEA relates to disabled student conduct, the amount of authority school personnel has when it comes to discipline, and what parents need to know before attending a MDR (Individuals with Disabilities Education Act,
2014, §1415[k][1][E][i]), (National Association of Special Education Teachers, 2019).

National Association of Special Education Teachers. (2019). How to prepare for a manifestation determination review: A handout for parents. Retrieved from https://www.naset.org/index.php?id=3739.

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https://perryzirkel.files.wordpress.com/2018/03/zirkel-manifestation-determination-article.pdf

"The purpose of this article is to provide an updated empirical analysis of the most
recent three years of hearings and review officer and court decisions specific to
manifestation determinations" (Zirkel, 2018, p.2). This article covers the 1997 requirements as well as the 2004 amendments to IDEA that relate to MDR  meetings. 1997 required the full IEP team, 2004 narrows the requirement to a school representative, the parent, and relevant IEP members (Individuals with Disabilities Education Act,
2014, §1415[k][1][E][i]). Case law is also analyzed to describe trends and outcomes of manifestation determinations. Previously, "The most frequently
identified disability classification was specific
learning disability (SLD), and the most common
categories of conduct were drugs/alcohol or
some form of violence" (Zirkel, 2018, p.4). Judicial, procedural, and substantive ruling decisions have been in favor of the district for the majority of the cases. Recent case law shows that the most frequent disability has changed to "other health impairment (OHI), often based on a
diagnosis of attention deficit disorder (ADD), and the most common conduct was actual or
threatened violence" (Zirkel, 2018, p.4). Parents have succeeded with challenges in regard to the district failing to consider additional diagnoses and not providing enough parental involvement (Zirkel, 2018).

Zirkel, P. A. (2018). Manifestation determinations
under the IDEA: The latest case
law. The School Psychologist, 72(1), 1-12.

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http://www.ldonline.org/article/6182/

This article discusses the misconceptions around disciplining students with disabilities. Many teachers and staff members feel that these students are untouchable and free to display inappropriate conduct. However, this is untrue; yet it is still an issue in schools today. There is a specific route for disciplining students with disabilities, and this article walks you through each step (Dwyer, 2019).

Dwyer, K. P. (2019). Disciplining students with disabilities. Retrieved from http://www.ldonline.org/article/6182/.

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Notice of Procedural Safeguards (20 U.S.C. § 1415 Procedural Safeguards)
Statutory Law
https://fw.esc18.net/Documents/Pro_Safeguards_ENG.pdf
When a decision is made to change a child's placement, the school must conduct a manifestation determination review (MDR). This meeting must happen within 10 days of the decision to change the placement. All relevant information pertaining to the student must be reviewed. The committee must determine if the child's conduct was a direct result from failure on behalf of the school or caused by the child's disability. If neither is the case, then the child may be punished in the same manner as non-disabled students (20 U.S.C. § 1415 Procedural Safeguards).

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Senate Bill 1196 (S. 1196, 2017)
Statutory Law
https://capitol.texas.gov/BillLookup/History.aspx?LegSess=85R&Bill=SB1196
When dealing with students who have disabilities, a behavior management technique cannot be confinement in a locked space. Senate Bill 1196 takes this a step farther by specifically stating an area less than 50 square feet. Exceptions are made for residential and treatment facilities. Any Individualized Education Programs (IEP) or Behavior Intervention Plans (BIP) that includes confinement as behavior management practice requires immediate action by the Admission, Review, Dismissal (ARD) committee. Senate Bill 1196, enacted by the 77th Texas Legislature, establishes requirements for students enrolled in special education programs related to the use of confinement, restraint, seclusion, and time-out. These requirements are established in Section 37.0021 of the Texas Education Code (TEC) (S. 1196, 2017).

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Texas Administrative Code §89.1053 (TAC § 89.1053)
Administrative Law
http://ritter.tea.state.tx.us/rules/tac/chapter089/ch089aa.html
This law specifies the procedures and definitions surrounding restraint of students with disabilities. Restraint must only be used in emergency situations by trained individuals. Documentation and notification to administration and parent is required. All disciplinary actions regarding students with disabilities must be determined in accordance with 34 CFR, §§300.101(a) and 300.530-300.536; TEC, Chapter 37, Subchapter A; and §89.1053 of this title (relating to Procedures for Use of Restraint and Time-Out). It is the policy of the state to treat with dignity and respect all students, including students with disabilities who receive special education services (TAC § 89.1053).

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Texas Education Code Chapter 37 (Tex. Educ. Code § 37.001)
Statutory Law
https://statutes.capitol.texas.gov/Docs/ED/htm/ED.37.htm
Chapter 37 of the Texas Education Code deals with alternative settings for behavior management and student code of conduct requirements. This is important to MDR meetings because it provides law regarding behavior programs and how behavior is handled on campus including removal of students. Placement review committee is also detailed (Tex. Educ. Code § 37.001).

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This rule by the Texas Education Agency (TEA) was selected to show the importance of documentation when dealing with manifestation determinations.

"TEA bases the identification of districts for significant discrepancies in the rates of suspension and expulsion of students with disabilities on the analysis of Public Education Information Management System (PEIMS) data submitted by LEAs. Identified LEAs must complete a self-assessment of policies, procedures, and practices related to the discipline of students with disabilities and submit an SPP Assurance to TEA. The purpose for submitting the SPP Assurance is to ensure that while the LEA's data may indicate a concern with disciplinary actions, it is not a result of policies, procedures, and practices related to disciplining students with disabilities" (Texas Education Agency, 2019, para. 6).

Texas Education Agency. (2019). Discipline and school removals. Retrieved from https://tea.texas.gov/Academics/Special_Student_Populations/Special_Education/Programs_and_Services/State_Guidance/Discipline_and_School_Removals/.

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The ethical standard below is connected to MDR due to the importance of parental rights. These rights must be respected in accordance with law, and a collaborative relationship will ensure that the MDR process runs smoothly. MDR meetings should be focused on student development and how it can be maximized even with the underlying conduct concern.

"B. RESPONSIBILITIES TO PARENTS/
GUARDIANS, SCHOOL AND SELF
B.1. Responsibilities to Parents/Guardians
b. Respect the rights and responsibilities of custodial and
noncustodial parents/guardians and, as appropriate, establish
a collaborative relationship with parents/guardians to facilitate
students’ maximum development" (American School Counselor Association, 2016, p.6).

American School Counselor Association. (2016). ASCA ethical standards
for school counselors. Retrieved from https://blackboard.angelo.edu/bbcswebdav/pid-2103084-dt-content-rid-15134055_2/courses/30244.201930/30244.201930_ImportedContent_20190430032913/TEMP.EDG6327.Instructor_ImportedContent_20171024032315/17.SUM1.EDG6327DM1.lcasarez1_ImportedContent_20170518094448/EthicalStandards2016.pdf.

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https://www.amazon.com/Manifestation-Determinations-Avoiding-Needless-Conflict/dp/B01860C5YO/ref=sr_1_1?keywords=manifestation+determination&qid=1563646577&s=books&sr=1-1

Two education law attorneys explain laws such as IDEA and new cases regarding manifestation determinations. This book provides guidance on the connection between the disability and conduct, placement issues, and appropriate discipline solutions (Scherer & Walsh, 2013).

Scherer, M., & Walsh, J. (2013). Manifestation determinations: Avoiding needless conflict and common mistakes. Palm Beach Gardens, FL: LRP Media Group.

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13. Bulleted list of Recommendations / Best Practices for Compliance

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13. Bulleted list of Recommendations / Best Practices for Compliance

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. Review student file
. Follow IEP & BIP
. Implement interventions
. Document parental notices, days of removal, and any relevant information
. Conduct MDR when 10 days of removal is reached
. MDR must be held within 10 school days
. Determine if the child's conduct was caused by or have direct relationship to students disability
. or, result of LEA's failure to implement IEP
. if neither, discipline student in same manner as you would students without disabilities