MDR Teams Must Look beyond the Student’s Special Education Eligibility “Label” when Making a Manifestation Determination

One benefit of having a blog is having a forum to express my pet peeves. A major pet peeve of mine is those school districts and their attorneys who refuse to consider information related to conditions and disabilities a student may have other than the student’s special education disability label when conducting a manifestation determination review (MDR).

The manifestation determination review process was first put in place by the Office of Special Education Programs (OSEP) in 1995, when it issued its Memorandum 95-16, 22 IDELR 531 (April 26, 1995). The Office of Special Education Programs acknowledged that behavior, even inappropriate behavior that is caused by a disability, should be responded to differently than when the behavior is not related to the disability. Of course the IDEA was amended in 1997 to codify the MDR process.

If the purpose of conducting a manifestation determination is to not discriminate against students with disabilities by punishing them through expulsions and other long-term disciplinary sanctions for behavior they can’t help due to having a disability, then we must consider information related to conditions other than the special education “label”. If we only consider the student’s special education label in the MDR process and ignore other conditions that contribute to the student’s behavior, then we risk punishing the student for behavior related to a disability. That violates not only the IDEA, but 504 and the Americans with Disabilities Act as well.

Here is a decision that makes this point. In Seattle School District, 60 IDELR 266 (SEA WA 2012), the Administrative Law Judge (ALJ) for the Washington State Education Agency required a school district to re-do an MDR because it had not considered information regarding other disabilities than the student’s special education disability “label”.  The student had been identified for special education eligibility as having ADHD. When his MDR took place he had also been diagnosed with disruptive behavior disorder and with anxiety disorder. The MDR team did not consider information about these two other conditions.

The ALJ ruled that the MDR team must consider all relevant information in the student’s file, including the IEP, teacher observation, and any relevant information provided by the parents. The ALJ cited several SEA decisions and a OCR decision in stating that: “School districts may violate the IDEA when their manifestation determinations are based only upon the disability on which the student’s special education eligibility is based.” See Renton Sch. Dist., 111 LRP 3970 (SEA WA 2011); Snohomish Sch. Dist., 103 LRP 38270 (SEA WA 2003); Murrieta Valley Unified Sch. Dist., 53 IDELR 108 (SEA CA 2009); and Quincy (Wa) Sch. Dist., 52 IDELR 170 (OCR 2009).

So, when conducting a manifestation determination review the team should consider all relevant information including information regarding disabilities the student may have other than the disability on which the student’s special education eligibility is based.

Compliance with the IDEA does not always equal compliance with the ADA: The ADA may require additional services for students with hearing impairments

     In K.M. by Bright v. Tustin Unified Sch. Dist., 113 LRP 3187 (9th Cir. 08/06/13), the 9th Circuit of Appeals determined that the fact the school district developed an appropriate IEP for a student with a hearing impairment does not mean the student  may not have claims under the Americans with Disabilities Act (ADA). 

     This case involved two California high school students with hearing impairments who had requested word-for-word transcription so that they could fully understand the teacher and fellow students without undue strain and consequent stress. The students were eligible for services under the IDEA and each had requested Communication Access Realtime Translation (CART) either under the IDEA or Title II of the ADA (Title II is that part of the ADA that applies to state and local government entities, including school districts). CART is a word-for-word transcription service, like court reporting, in which a trained stenographer provides real-time captioning that appears on a computer monitor. In both cases, the school districts denied the CART services but offered other accommodations. The parents appealed and the cases proceeded to federal district court. 

     The district courts ruled that real-time transcription services were not necessary for the students to receive a free appropriate public education and need not be included on the IEP. Thus, the districts had complied with the IDEA. The courts then held that a valid IEP that complies with the IDEA, rules out an ADA claim. 

     The two district courts determined that (1) a valid IEP under the IDEA satisfies the requirement to provide a free appropriate public education under 504 and (2) Section 504 and Title II of the ADA are similar statutes, thus a valid IEP also complies with the ADA.  This reasoning was based on the fact that section 504 requires that students with disabilities receive a free appropriate public education and the 504 regulations indicate that implementing an appropriate IEP is one means of complying with 504’s free appropriate public education requirement. Since 504 and Title II of the ADA are similar statutes, complying with 504 means complying with the ADA. Thus, once the IEP is determined appropriate, the 504/ADA claims are foreclosed. 

     The 9th Circuit disagreed. It said that the three statutes, the IDEA, 504, and ADA, each have different purposes and requirements. The IDEA is focused on an IEP process that should result in providing students with disabilities a free appropriate public education. The ADA and 504 have substantive requirements to ensure students with disabilities are not subjected to discrimination. 

     To that end, the Department of Justice (DOJ) has promulgated regulations to prevent such discrimination under the ADA. Those regulations include a requirement that public entities, such as school districts, take steps to ensure that communications with individuals with disabilities are as effective as communications with others. Moreover, those public entities, including school districts, must furnish auxiliary aids and services to afford individuals with disabilities equal access to the program being offered. Real-time-computer-transcription-services are specifically included in the definition of auxiliary aids and services

     The purpose of these auxiliary services under the ADA is to provide equal access for the student to the educational program offered by the school district. Providing equal access is not the same as providing a free appropriate public education under the IDEA. Ensuring equal access may require providing auxiliary aids and services that may be in addition to services required under the IDEA. Thus, a school district’s compliance with the IDEA may not always mean compliance with the ADA.  The court also noted that administrative agencies are generally deferred to in interpreting their own regulations. Here, the DOJ had filed an amicus brief supporting that the ADA effective communication requirement for students who are deaf or hard-of-hearing was different than the requirements of the IDEA. 

     Finally, this decision does not mean these two students will receive the real-time transcription services. The 9th Circuit sent the cases back to the district courts so that those courts and the parties could relook at the issues based on this court’s decision. A key discussion in the districts courts will be whether providing the transcription services fundamentally alters the nature of the school program or is an undue financial and administrative burden on the school districts. If so, the ADA would not require the school districts to provide those auxiliary aids and services.


Charter School should have acted proactively to evaluate 504 eligibility for student who began to use a wheelchair

     The Office for Civil Rights (OCR) determined that a Charter School in Colorado should have noticed when a student with cerebral palsy suddenly began using a wheelchair and should have evaluated her eligibility for a 504 plan. Aurora (CO) Public Schools 61 IDELR 83 (OCR Jan. 14, 2013), involved a student with cerebral palsy who attended a district Charter School. In January 2010, she began having difficulty climbing stairs and standing for long periods and started to use a wheelchair. Previously, she had not consistently used a wheelchair. Her mother and members of the Charter School staff met to discuss her use of the wheelchair and how to help her with it. The parent did not request a 504 evaluation and the school did not conduct one. Later, the mother filed a complaint with OCR alleging the Charter School should have initiated an evaluation. The Charter School responded by saying that: (1) the parent had not requested a 504 evaluation, and (2) the student was performing well academically, and thus, was not eligible for 504. 

     The OCR investigation found that, in fact, the Charter School had not evaluated the student for a suspected disability and the School did not have a designated 504/ Americans with Disabilities Act (ADA) Coordinator or a grievance process that complied with the 504/ADA requirements. Moreover, OCR noted that: (1) the School had an affirmative duty to identify and locate every qualified student with a disability and the School may not require a parent to request an evaluation, and (2) the fact the student is performing well academically did not exclude her from 504 eligibility. Under 504, a student is eligible if she has a physical or mental impairment that substantially limits one or more major life activities, including functions such as caring for one’s self, performing manual tasks, walking seeing, hearing, learning, and breathing. The OCR specifically noted that “Although the School’s primary purpose is education, its obligation to follow Section 504 and Title II regarding its provision of services to students and others using School programs is not limited to disabilities that affect academic performance.”   

     The Charter School’s Colorado school district signed a resolution agreement to comply with section 504 and the ADA. In the resolution agreement the school district agreed, among other things,  to convene a team meeting to determine the student’s 504 eligibility, publish on the Charter School’s website and in the parent handbook new  504 policy and procedures for identifying and providing services to students (including grievance  procedures and designating a 504/ADA coordinator, submit the new policies to OCR for approval, and provide training to all Charter School staff on the requirements of 504 and Title II of the ADA. 

     There are a couple of interesting points about this decision.  First, it’s unfortunate, but not unusual, for schools to fail to understand that eligibility for 504 services does not turn solely on a student having an impairment that substantially limits the major life activity of learning. A student may be performing very well academically and still need supports such as access to insulin injections, rest periods, a modified class schedule, a sign language interpreter, a note taker or access to a tape recorder, or Brailed or large print materials. Second, note that while it was the Charter School that violated 504, the school district responsible for the Charter School signed the resolution agreement with OCR and is responsible for ensuring compliance with the agreement. The school district approved the charter for the Charter School and is responsible for ensuring the Charter School’s compliance with federal law the same as any other district school. 

District Cannot Use Behavior Contract to Justify Disciplinary Change in Placement without Manifestation Determination


In Waynesboro (PA) Area School District, 112 LRP 26149 (OCR 02/17/12), the Office for Civil Rights (OCR) determined that the fact a high school student with a learning disability had signed a behavioral contract did not allow the school district to change his placement without conducting a manifestation determination review (MDR). The student was African American and had been subjected to a number of incidents of racial harassment, some of which had resulted n physical altercations. The high school had made some effort to intervene with the harassing students and a counselor had worked with the student on how to handle these situations. In addition the student, his parent, the special education teacher, and acting assistant principal signed a Student Behavioral Contract with the student.  The contract included a provision that the student would resolve conflict in a non-violent manner.

According to the district, the contract was drawn up because the student had been involved in several altercations, some of which, but not all, were the result of racial harassment. Unfortunately, the student later had a physical altercation with another African American student and, based on breaching the contract, his placement was changed to an alternative high school. Before the change in placement he was suspended for several days, bringing his total suspensions for the school year to twelve. Based on its belief that violating the Student Behavioral Contract justified the change in placement, the school did not conduct an MDR prior to changing his placement to the alternative high school.

The student’s parent filed a complaint with OCR alleging racial harassment and a violation of Section 504 and the Americans with Disabilities Act because the district failed to conduct a manifestation determination before changing the placement, failed to conduct an evaluation prior to the change in placement, and failed to provide the parent with her procedural safeguards. The Office for Civil Rights found in the parent’s favor and required the district to provide the MDR and evaluate the students need for compensatory services to compensate for educational services he may have lost as a result of the illegal change in placement.

Change in Location Can Be A Change in Placement

     Some school districts and their counsel assert that, under the IDEA, a change in location of service delivery is not a change in placement if the IEP services remain the same. If the location change is not a change in placement, the service location can be changed without parent input or an IEP meeting. That may sometimes be the case, but there are many instances in which IEP services may generally remain the same but a change in location will affect the service delivery so that it is a change in placement. For example, students with disabilities must attend the school they would attend if they did not have a disability, unless the IEP requires otherwise. Thus, placing a student with a disability in a school they would not attend if they did not have a disability is an IEP team decision and changing a student’s placement to a school they would not attend if they did not have a disability is an IEP team decision. Whether the change in location is a change in placement turns on the facts of the specific situation.

     For example, in Valentin v School District of Philadelphia, 113 LRP 7167 (E.D. Pa 02/19/13), the court ruled that a district’s practice of unilaterally transferring students with autism between centralized grade-level programs located in different schools violated the IDEA.  The school district had a practice of  unilaterally changing the building assignment for students with autism as the students changed grade levels.  The new building assignment decision was made without an IEP meeting or parent input. Moreover, parents were not provided written notice of the location change and parents were not notified of the change in location until after the decision had been made. The school district argued that it was just changing the grade level and physical location where IEP services would be delivered, which is not a change in placement.

     The court, however, noted that children with autism typically have difficulty with transitions and changes in routine and a change in the physical location of services would likely be far more traumatic for students with autism than it would for students with other disabilities. The court concluded that under the particular facts of the case, transferring students with autism to a separate school building in the school district constitutes a change in their educational placement under the IDEA. Thus, the court ordered the school district to follow the IDEA’s placement procedures, including parent participation and appropriate notice, before transferring students with autism to new schools.

18 Days of Early Dismissals Constitute a Pattern Requiring a Manifestation Determination Review

In South Bronx (NY) Classical Charter School, 59 IDELR 231 (OCR 2012) the Office for Civil Rights (OCR) determined that the school’s frequent early dismissals of a kindergartner with a speech/language impairment required a manifestation determination (MD) meeting  before excluding the student from school for more than 10 days. Per Section 504 (and the IDEA) school districts cannot discipline students with disabilities  by excluding them from school for more than 10 consecutive school days or, in some cases, nonconsecutive school days, without first conducting a manifestation determination (MD) review. In this case, the school district suspended the child for one day for making a gun sign with his fingers and stating he was going to kill his teacher. The school implemented a series of early dismissals to control the student’s inappropriate behaviors. Those behaviors included  failing to cooperate and follow directions, yelling, howling, and throwing items at school staff. The student was released from school at 1 p.m. from Oct 11, 2011 through Oct.  17, 2011 and from noon on Oct. 18, 2011 through Oct. 28, 2011. The district did not provide him with supplemental instruction on those early release days.

The parent filed a complaint with OCR which initiated an investigation. OCR determined that, although the student’s exclusions were not for consecutive or full days, they amounted to a pattern that significantly changed his placement. As a result, before excluding the student for more than 10 school days, the district should have convened a group of knowledgeable persons to determine whether the student’s conduct was a manifestation of his disability. To remedy the violation, the school district agreed to provide training to its staff regarding the requirements of 504 relating to disciplining students with disabilities and appropriately implement those requirements. The school district has also agreed to provide additional school services to compensate the student for the time he missed due to the early dismissals.

Bus Suspension Requires MDR Even if Parent Drives Student to School

Melody Musgrove, the Director of the Office of Special Education Programs (OSEP) provided guidance regarding a school district’s obligation to conduct a manifestation determination when a child is suspended from school bus services [Letter to Sarnznyski 59 IDELR 141 (OSEP 2012)]. The student’s IEP included transportation as a related service. The student was suspended from the bus but his in-school services were not interrupted or changed. Ms. Musgrove was asked whether a 10 day suspension from bus services was sufficient to trigger a manifestation determination if the other IEP services were uninterrupted because the parent drove the student to school during the bus suspension?

The answer is “Yes.” If the student is suspended from transportation services that are included in the IEP for more than 10 consecutive school days, that is a change in placement requiring a manifestation determination. This is true even though the student’s parent provided transportation. Moreover, if the student had previously been suspended, in that school year, from the bus, those days of suspension also count towards the 10 days that trigger a disciplinary change in placement. Thus, a series of disciplinary removals from bus services totaling more than 10 days in the school year trigger the IDEA discipline procedures, including the manifestation determination review.

On 39th Anniversary of 504 OCR Issues “Disability Rights Enforcement Highlights”

     On the 39th Anniversary of the passage of Section 504 of the Rehabilitation Act the Office for Civil Rights (OCR) within the U.S. Department of Education has published Disability Rights Enforcement Highlights. This 21 page publication provides a good overview of OCR’s role in protecting the rights of students with disabilities under Section 504 and Title II of the ADA. It discusses what is a disability, the IDEA and 504, and focuses on the following seven different issue areas: Free appropriate public education, discipline, academic adjustments, accessibiltiy of technology, physical accessibility of programs services & facilities, harassment/bullying, and right to equal treatment.

     The booklet provides specific case examples in each of these issue areas and provides interesting statistical data regarding OCR’s work. For example, in the fiscal years 2009 through 2011, OCR received over 11,700 disability-related complaints. This is more than ever before in a three-year period. Moreover, while OCR also investigates complaints based on discrimination due to race, color, national origin, sex, and age, more than 55% of the complaints OCR received in this three-year period involved disability issues. Looking at some of the specific issue areas: 4,600 cases involved a denial of a free appropriate public education, 750 involved Discipline issues, and 1,000 complaints were based on Disability Harassment. Moreover, the Office for Civil Rights noted that students served under the IDEA were twice as likely to be suspended out of school as their classmates without disabilities.

      Again, the OCR provides specific case examples in each of these issue areas. The booklet provides the following sad case example regarding disability harassment. A high school student with Fragile X Syndrome, Asperger’s Syndrome, Tourette’s Syndrome and ADHD was verbally ridiculed be her fellow students about her disability-related body odor, sprayed with an air freshener by staff in front of her classmates, detained by staff in school who made her take showers before allowing her to attend class, and pulled out of class and sent home before the end of the school day because of her body odor. After OCR’s involvement, the school agreed to provide training to staff about 504 and the student’s disabilities, enroll the student in its “Senior Life Skill”s course, provide her with weekly social work services, and help her find a community job.

     As noted earlier, this publication provides similar specific case examples in each of the issue areas.  I commend this booklet to you. I think it will help clarify the vital role OCR plays in protecting the rights of students with disabilities.

School breaks, including summer, do not extend the time frame for conducting initial evaluations

I frequently hear from parents that they have been told by school staff that their child could not be evaluated for special education eligibility because school was out for the summer and staff were not available. Melody Musgrove, the Director of the Office of Special Education Programs (OSEP), advised the Director of Special Education in North Carolina that school breaks do not lengthen the time frame for conducting initial evaluations [Letter to Reyes, 59 IDELR 49 (OSEP April 2012)].

The IDEA regulations at 34 CFR 301(c)(1) require that an initial evaluation be conducted within 60 calendar days after receiving parental consent for the evaluation.  States may establish their own time frame (in this case North Carolina had established a 90 day time frame) but the state must complete the evaluation within that time frame. There are some other exceptions to meeting the time frame, for example if the parents do not make the child available for the evaluation (see 34 CFR 300. 301(d)) Ms. Musgrove acknowledged :

” that conducting evaluation activities during extended breaks, such as the typical school’s summer vacation, can be challenging for school districts, particularly if fewer staff members are available. Nevertheless, the IDEA contemplates that the initial evaluation of a child suspected of having a disability not be unreasonably delayed so that eligible children with disabilities are not denied a FAPE.”

Thus, it is clear that initial evaluations must be completed with the IDEA 60 day timeline (unless the state has established another timeline) and that timeline is not extended during school breaks, including summer months.

General Education “Innovative Teaching Practices” must be Included in an IDEA-Eligible Student’s IEP

A school district must develop an IEP for a student with a disability even though the instruction the student needs is part of the district’s general education program or “best teaching practices.” In Letter to Chambers 112 LRP 37475 (OSEP 05/09/12), Office of Special Education Program (OSEP) Director Melody Musgrove, advised a Massachusetts advocate that school districts “must provide a child with a disability specially designed instruction that addresses the unique needs of the child that result from the child’s disability, and ensures access by the child to the general curriculum, even if that type of instruction is being provided to other children with or without disabilities, in the child’s classroom, grade, or building.”

Ms. Musgrove responded to a letter from the advocate concerned that school districts in Massachusetts consider that some services or types of instruction, such as counseling, social skills training, and modified teaching methodologies are not special education because they constitute best teaching practices. Thus, the districts decided that these services did not meet the “legal definition” of “special designed instruction” or “related services” and, therefore,  children with disabilities needing those services were not eligible for an IEP. The OSEP Director, however, clarified that: “The IEP Team is responsible for determining what special education and related services are needed to address the unique needs of the individual child with a disability. The fact that some of those services may also be considered ‘best teaching practices’ or ‘part of the district’s regular education program’ does not preclude those services from meeting the definition of ‘special education’ or ‘related services’ and being included in the chld’s IEP.”

Ms. Musgrove concluded by noting:

“OSEP recognizes that classrooms across the country are changing as the field of special education responds to innovative practices and increasingly flexible methods of teaching. While the needs of many learners can be met using such methods, they do not replace the need of a child with a disability for unique, individualized instruction that responds to his or her disability and enables the child to meet the educational standards within the jurisdiction of the public agency that apply to all children.”


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