IDEA Archives - Education Lawyers

April 26, 2019 By LeasorCrass

Who Doesn’t Get an MDR? OSEP Clarifies Obligations for Children Not Yet Eligible for Special Education

In addition to being ineffective, disciplining a student for conduct that is caused by, or has a direct and substantial relation to a student’s disability, constitutes disability-based discrimination. Further, subjecting a student to a disciplinary removal that is based on the student’s disability can deprive a student of a free, appropriate public education when it constitutes a change in placement based on something other than the student’s educational needs. A manifestation determination review (MDR) is a procedural safeguard that is hard wired into IDEA to prevent this from occurring by requiring districts to review the behavior of students who have been identified as disabled before imposing a potentially discriminatory discipline consequence.

But what about students who might be disabled, but have not yet been evaluated and determined eligible for services under IDEA? As explained in the Office of Special Education Programs (OSEP) recently issued Letter to Nathan, the obligation to conduct an MDR isn’t dependent on eligibility, but arises as soon as a district is “deemed to have knowledge that a student has a disability.”

Given the emphasis that has recently been placed on referring and evaluating students with suspected disabilities here in the Lone Star State, administrators may be understandably concerned about the number of children who might be entitled to an MDR. Thankfully, “deemed to have knowledge” is statutorily defined and does not necessarily apply to every student who has exhibited a child find trigger. Pursuant to 34 CFR § 300.534(b), a school is deemed to have a basis of knowledge that a student has a disability so as to require an MDR, if before the behavior that precipitated the disciplinary action occurred:

the parent of the child has expressed concern in writing to supervisory or administrative personnel of the district, or a teacher of the child, that the child is in need of special education and related services;
the parent of the child actually requested an evaluation of the child for purposes of determining eligibility; or
the teacher of the child, or other district personnel, has expressed specific concerns about a pattern of behavior demonstrated by the child directly to the district’s director of special education or to other supervisory personnel.

Additionally, 34 CFR § 300.534(c) specifies three instances in which a district is considered to not have knowledge that a student has a disability:

the parent has been offered, but not allowed an evaluation under IDEA;
the parent has refused services under IDEA; or
the child has been evaluated under IDEA and determined to not qualify.

In addition to clarifying when an MDR must be conducted, Letter to Nathan also addresses the more confusing question of how a district should go about determining whether behavior is a manifestation of a suspected disability. Noting that IDEA does not allow a district to postpone an MDR pending completion of an initial evaluation and/or development of an IEP, OSEP explains that an MDR is not contingent on reviewing an IEP, but rather requires a district to “review all relevant information in the child’s file, including any teacher observations and any relevant information provided by the parents, to determine if the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability.”

In the case of a child who has not yet been evaluated, this relevant information would include “the information that served as the [district’s] basis of knowledge that the child may be a child with a disability under IDEA, such as concerns expressed by a parent, a teacher or other [district] personnel about a pattern of behavior demonstrated by the child.” Based on this information, the district would be charged with determining whether the conduct in question was caused by, or had a direct and substantial relationship to the child’s suspected disability.

The manifestation determination review is a vital procedural safeguard that protects students from disability-based discrimination that could deprive them of a free, appropriate public education. That said, we certainly recognize that MDRs are (understandably) frustrating to administrators who already feel spread too thin and difficult to explain to members of the school community concerned with a perceived undermining of accountability. If you have questions or concerns about OSEP’s latest guidance or complying with the MDR mandate in general, the attorneys at Leasor Crass, P.C. are ready, willing, and able to help.

October 26, 2018 By LeasorCrass

The Parent’s Always Right…Not

Did you know parents do not have a right to compel a school district to provide specific programming or employ specific methodology when teaching students with disabilities? According to a Special Education Hearing Officer’s interpretation of the IDEA, parents may provide meaningful input into the development of their child’s IEP, but are not entitled to dictate the outcome. When it comes down to a choice in methodology, deference is given to professional educators.

A due process hearing in June 2018 ruled on a dispute between a well-intentioned parent and a Texas school district. The central issue turned on whether the District’s proposal to implement a more holistic reading program and placement in a special education classroom for reading and math instruction was reasonably calculated to provide FAPE in the Least Restrictive Environment, or LRE. The “methodological dispute” arose following a February 2018 ARD meeting that ended in non-consensus on the District’s proposals.

The parent stated the student was making progress in the student’s private reading program, funded by the parent, and argued the District should incorporate lessons from the private reading program into the student’s school day. In contrast, the District wanted to increase the student’s instructional time in a special education classroom for Reading and Math and provide the student with a more holistic approach to reading. The District argued the special education classroom provided the student with more one-on-one assistance due to the lower student/teacher ratio and the proposed reading program catered to the student’s visual learning skills, a strength discovered in prior evaluations.

The Hearing Officer noted a parent is entitled to provide their child with whatever assistance they deem appropriate, but the law does not compel a district to employ the same assistance merely because it is the parent’s preference. While a parent may be committed to their child’s best interest, the best interest of the student is not the applicable legal standard under the IDEA. Rather, the IDEA requires the District to provide a program “reasonably calculated to provide [the] student with a meaningful educational benefit given [the] student’s unique circumstances.”

The District’s proposed program, in this case, utilized the student’s individual strengths as a visual learner and would instruct at an appropriate pace while taking into account the student’s processing deficits. The program was based on 1) research, 2) the student’s educational history, and 3) the student’s assessed strengths and weaknesses. Therefore, this program satisfied the requisite IDEA standard and was reasonably calculated to provide the student with a meaningful educational benefit in light of the student’s individual circumstances.

On a related note, the Hearing Officer also conducted an analysis of the least restrictive environment and named several factors to be considered in making an LRE determination. The noted factors include the nature and severity of the student’s disabilities, academic achievement, non-academic benefits of placement in a regular classroom, overall experience in the mainstreamed environment, and the effect of the student’s presence in the regular classroom. With respect to the last factor, the Hearing Officer explained that two questions should be asked when evaluating the effect of the student’s presence in the regular classroom. The first is whether the student’s behavior is so disruptive the education of the other students is significantly impaired. The second question is whether the student requires so much of the teacher’s attention the rest of the class suffers. If the answer to these questions is yes, the balance leans in favor of placement in a special education classroom.

In this case, the evidence showed the student became consistently frustrated attempting to keep up with the student’s non-disabled peers and that frustration disrupted the student’s own learning and the learning of other students. The student needed a high-level of teacher assistance and became disruptive when they did not receive it. Additionally, the student became increasingly frustrated and disruptive when the teacher was helping other students. These factors along with others led to the conclusion that the student’s LRE was placement in a mix of general and special education classrooms as proposed by the District.

This decision is a good illustration of the law surrounding parental rights to provide meaningful input, but not to compel or dictate the actions districts take. Districts should listen to and understand what the parent desires, but ultimately the District has both the right and obligation to make an individual determination based on the student’s unique circumstances. Additionally, when making a determination as to a student’s LRE the Fifth Circuit’s two part test, as set forth in Daniel R.R. v. State Board of Educ., should be followed. First, the analysis must be individualized and fact-specific. Second, careful consideration should be given to the nature and severity of the student’s abilities, disabilities, needs, and the district’s response to the student’s needs.

If you would like to read the full decision, click here and scroll down to Docket No. 146-SE-0218.

If you have any additional questions about this ruling or any other issue, please do not hesitate to contact the attorneys at Leasor Crass.

LEASOR CRASS, P.C.

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