Verify student's role in wrongdoing before carrying out MDR

An interesting article from Special Ed Connections....

"A student with LDs is involved in a sale of marijuana at school. The district holds a school board meeting, where it decides to expel the student. It then conducts a manifestation determination review.
The parents in Farrin v. Maine Sch. Administrative Dist. No. 59, 35 IDELR 189 (D. Me. 2001), argued the district should have conducted the MDR first. The court disagreed, noting there is nothing in the IDEA that spells out in what order a disciplinary hearing and MDR must take place.
"It makes sense to hear the student's side of the story; determine, for sure, did he commit this offense; then determine, for sure, the proposed penalty," said Jim Walsh, a school attorney at Walsh, Anderson, Brown, Aldridge & Gallegos, P.C., in Austin, Texas. "Otherwise, you're doing a manifestation determination before you've even officially . . . determined exactly what the student did."
This is just one source of contention that commonly arises between parents and school personnel during MDRs, Walsh said. Other areas where potential missteps can occur include staving off disagreements about committee composition, addressing consensus problems, and administering long-term suspensions.
Walsh spoke about and offered guidance on each of these issues during LRP's audio conference Getting Manifestation Determinations Right: Practical Strategies for Compliance."

Disciplining Students with Disabilities: Essential Point #9

In the July-August 2009 issue of In Case (Council of Administrators in Special Education), Julie Weatherly (attorney with the Weatherly Law Firm) begins a series of articles addressing the discipline of students with disabilities. Here is the ninth essential point...
"As is the case with the use of in-school suspension, a disciplinary removal of a student with a disability from the school bus could constitute a 'change of placement.' It is important to remember that 'placement' generally includes those services set forth in a student's IEP. Thus, it will be important to determine whether transportation is included as a related service on a student's IEP in order to determine whether a 'change of placement' has occurred as a result of a bus suspension.
Again, in the commentary to the 2006 IDEA regulation, the U.S. Department of Education commented that '[w]hether a bus suspension would count as a day of suspension would depend on whether the bus tranportation is a part of the child's IEP. If the bus transportation were a part of the chld's IEP, a bus suspension would be treated as a suspension...unless the public agency provides the bus service in some other way.' The Department of Education went on to note that where bus transportation is not a part of the child's IEP, it is not a suspenstion and that '[i]n those cases, the child and the child's parent have the same obligations to get the child to and from school as a nondisbled child who has been suspended from the bus. However, public agencies should consider whether behavior on the bus is similar to behavior in the classroom that is addressed in an IEP and whether the child's behavior on the bus should be addressed in the IEP or a behavioral intervention plan for the child (71 Federal Regulations 46,715).' Thus, whether bus suspensions may amount to a 'change in placement' will depend upon whether the student's IEP lists transportation as a related service because the student's needs are such that specially designed transportation is required. If transportation is a related service, bus suspension will count toward the 'change of placement' analysis. If it is not a related service, it will not count."

Discipline of Students with Disabilitites: Essential Point #8

In the July-August 2009 issue of In Case (Council of Administrators in Special Education), Julie Weatherly (attorney with the Weatherly Law Firm) begins a series of articles addressing the discipline of students with disabilities. Here is the eighth essential point...
"Similar to the removals referenced in Essential Point #7 are those that are called "in-school suspension" or ISS. It is important to remember that the use of ISS to discipline a student with a disability could also constitute a 'change of placement.' In the commentary to the 2006 regulations, the U.S. Department of Education reiterated its 'long term policy' that an in-school suspension would not be considered a part of the days of suspension toward a change of placement 'as long as the child is afforded the opportuntiy to continue to approopriately participate in the general curriculum, continue to receive the services specified on the child's IEP, and continue to participate with nondisabled children to the extent they would have in their current placement (71 Federal Regulation, 46,715).' Therefore, based upon this guidance, whether a change of placement has occurred via the use of in-school suspension will depend upon what is afforded to the student in the ISS environment and whether the student is appropriately participating in the general curriculum there, receiving the services listed on his IEP and participating with nondisabled students to the same extent as contemplated by his current IEP. If not, then it is arguable that days served in ISS should be considered in determining whether a pattern of removals has occurred that constitutes a 'change of placement.'

Discipline of Students with Disabilities: Essential Point #7

In the July-August 2009 issue of In Case (Council of Administrators in Special Education), Julie Weatherly (attorney with the Weatherly Law Firm) begins a series of articles addressing the discipline of students with disabilities. Here is the seventh essential point...
"It is important to remember that disciplinary removals from school that are not formally considered 'suspension' or 'expulsion,' may still likely be removals that could constitute a pattern that is a 'change of placement.' Examples of such removals could include asking a student's parents to keep her home several days for 'home time out' or a 'cool-down period.' Similarly, moving the student to the principal's office or to another teacher's classroom all day every day could eventually constitute a change of placement that runs afoul the IDEA's procedural requirements. Even half-day removals from school could constitute a 'change of placement.' Indeed, in the commentary to the 2006 IDEA regulations, the U.S. Department of Education stated that 'portions of a school day that a child has been suspended may be considered as a removal in regard to determining whether there is a pattern of removals that constitutes a change of placement (71 Federal Regulation 46, 715).' When considering the use of removals that are not officially 'suspensions' or 'expulsions,' caution is advised when imposing such removals, and school personnel should maintain accurate data that tracks the use of such removals to ensure that an inappropriate 'change of placement' has not occurred outside of the placement process."

Lessard v. Wilton-Lyndeborough Cooperative School District, 49 IDELR 2, 180,518 F.3d 18 (1st Circuit, 2008)

According to the 1st Circuit Court, the parents in the case "read far too much into Congress' 1997 definition of transition services." It was their assertion that the Rowley standard of "some educational benefit" was no longer applicable with regard to transition services. In their decision the Court clarified the meaning of "outcome oriented process" in the IDEA's definition of transition services: "It specifies the perspective that participants in the process should strive to attain but does not establish a standard for evaluating the fruits of that process." The parent's argument that the student's IEP was inadequate and incomplete because it did not contain a separate "transition plan" was dismissed. The IEP in this case included several various transition services that were scattered throughout the document and "merely pointing to the absence of a stand-alone transition plan cannot form the basis for a founded claim of procedural error."

When Permission for Outside Agency Participation Must Be Obtained

According to Letter to Gray, 50 IDELR 198, (OSEP, 2008), "Since the conversations at each IEP Team meeting are not the same, and since confidential information about the child is always discussed, we believe that consent must be obtained prior to each IEP Team meeting if a public agency proposes to invite a representative of any participating agency that is likely to be respoonsible or providing or paying for transition services. Therefore, it is not permissible under this regulation for a public agency to obtain the consent of the parents or eligible child only one time before the transition planning process is initiated for the child until the child leaves school. Although your question also asks about obtaining the requisite consent on an annual basis, one annal onset would not be sufficient if there is more than one IEP Team meeting conducted during a 12-month period where a purpose of the meeting will be the conisderation of the child's postsecondary goals and the transaition services needed to assist the child in reaching those goals under 34 CFR Section 300.320(b)."

Determining When to Invite Public Agencies to IEP Meetings

In Letter to Caplan, 50 IDELR 168, (OSEP, 2008), the following guidance is given when determining if public agencies need to be invited to IEP meetings: "However, in determining whether a public agency must invite another agency to an IEP Team meeting conducted under 34 CFR Section 300.320(b), in general, you may wish to consider such factors as whether a purpose of the IEP Team meeting will be in the consideration of the postsecondary goals for the child and the transition services neded to assist the child in reaching those goals; whether there is a participating agency, other than the public agency responsible for providing a free appropriate public education to the child, that is likely to be responsible for providing or paying for the child's transition services; and whether the consent of the parents or the child who has reached the age of majority has been provided for the other agency's participation at the IEP Team meeting conducted in accordance with 34 CFR Section 300.320(b)."