• TEN Days…Not Ninety
  • October 1, 2017 | Author: Andrea L. Mooney
  • Law Firm: Eichelbaum Wardell Hansen Powell & Mehl, P.C. - Plano Office
  • It seems that there may be some miscommunications about how long a district has to schedule a Manifestation Determination Review ARD (MDR) in conjunction with the disciplinary hearing when a special education student has committed a disciplinary infraction which merits a removal. At the majority of districts, administrators conduct the disciplinary hearing first to find whether the student has violated the Student Code of Conduct. Thereafter, the student is usually entitled to appeal the placement, typically pursuant to policy FNG (LOCAL), all the way to the Board of Trustees. In addition, if a student is a special education student, a MDR must be held within ten school-days of any decision to change the placement because of a violation of the Student Code of Conduct.[1]

    It is becoming common in districts for administrators to interpret the “decision to change the placement” to mean when there is a “final decision” to send the student to DAEP, or, in other words, when the student has “stopped challenging” placement in DAEP and the decision is, therefore, final. Administrators then schedule the MDR within ten school-days following the “final decision.” This is a dangerous practice. When taken to its logical conclusion, should the student choose to appeal his or her placement all the way up to the Board, by the time the Board hearing is held, the student could go weeks, and even months, out of placement without a review of whether the student’s behavior is a result of his disability. This practice would be directly contradictory to special education safeguards, which entitle a special education student to an MDR if discipline is to result in a change of placement that exceeds ten days. The intent of the requirement under the IDEA that an MDR be held within ten school-days is clear: to ensure that students are not without special education services for more than ten school-days while in DAEP.

    Therefore, out of an abundance of caution, the day the “decision to change placement” is made should be deemed the first school-day the student is removed from his or her normal classes (and placed in In School Suspension, for example) with an intent to place the student in DAEP for more than ten days. At that time, the ten school-day deadline to hold an MDR begins to run. This means that an ARD notice should be sent out immediately (the same school-day of the student’s removal to In School Suspension if practical) to ensure that an MDR can be timely held before a student has been out of placement for more than ten school-days. This will mean that when contact is made with the parent to schedule the initial disciplinary conference, at the same time the district should also attempt to find a mutually agreeable time to schedule an MDR. This way, you can ensure that the parent receives the requisite 5 school-days’ written notice of the ARD. This means, using the first day the student is removed from class as “Day 1,” the ARD notice should go out by Day 5 to ensure that the MDR can be held by Day 10.

    Because a parent whose student is being sent to DAEP is probably not overly happy with a district to begin with, an oversight like leaving a student out of placement and without services for a period far exceeding ten school-days could provide a parent the opportunity to argue that the district denied a student his or her safeguards and could invite a due process action. Therefore, it is prudent to initiate the MDR as soon as the student is removed from class and it is apparent that the district will pursue DAEP placement.

    [1] 34 CFR §300.530(e).