Legal representation for students with disabilities facing school disciplinary proceedings can be essential to protecting the student’s procedural and substantive rights. Additionally, having a legal advocate at an MDR can often make the difference between a child being disciplined and removed from the current education setting and the child being able to remain in that setting with additional behavioral services and supports. Below are some practical tips for preparing for and advocating at the MDR.

The first step when working with a student with a disability facing school discipline is to determine whether the MDR has been scheduled. An MDR must be held within 10 school days of the date of the decision to remove the student. If the school has not yet scheduled the MDR, there may be a strategic advantage to waiting to contact the school until (1) it provides notice to the parent of the scheduled MDR; or (2) over 10 school days have passed since the disciplinary decision. If the school does not hold the MDR within 10 school days, the student must be returned to the original placement.

The next step is to gather all the student’s records. It is important to get all the records related to the behavior incident at issue, including the discipline referral forms or suspension/expulsion packet, all notices regarding the incident, witness statements, and video footage (if available), as well as the student’s special education records such as all current and previous IEPs/504 Plans, all current or previous FBAs and BIPs, all evaluations, IEP progress reports, logs of IEP and related services, all previous discipline reports, and any results of previous MDRs. The attorney should gather any documents that the client has and also make an expedited request for the student’s records. The request should note that an MDR is scheduled and that the documents must be provided in advance of the MDR to allow the parent adequate time to prepare and fully participate in the MDR. Additionally, if the student has medical or mental health diagnoses and sees an outside provider such as a psychologist, counselor, or social worker, it may be important to request records from the outside provider to get relevant information related to the student’s disability and diagnosis.

Once received, the attorney must thoroughly review all of the student’s records with an eye towards identifying the student’s disabilities and diagnoses as set forth in the IEP, evaluations, and any medical records, and noting any mention of behaviors in the evaluation, IEPs, BIPs, and FBAs, including whether the behaviors are identified as related to the student’s classification. The attorney must meet with both the parent and student and conduct a thorough interview with both about the incident, the timeline of the notice given to the parent and scheduling of the MDR, the student’s special education services, and any disciplinary history. The attorney should plan to review the current IEP and BIP in detail with the parent and student to ascertain whether the school was properly implementing the student’s IEP. The attorney will need to discuss with the parent and student whether the student will attend the meeting. The attorney should discuss with the client any Fifth Amendment considerations and advise the parent and student whether the student should or should not speak during the meeting, particularly if the student is facing juvenile or criminal charges related to the incident.

The attorney should research the student’s disability and any particular diagnoses. The DSM-51  is a great resource that describes the symptoms/manifestations of different mental health disorders along with their diagnostic criteria. Additionally, compiling information from medical journals or other reputable sources that describe behaviors related to a student’s particular disability or diagnosis can also be helpful. The attorney should make copies of any helpful resources to provide to the team in advance of or at the MDR. 

If a student sees outside/community behavioral health providers such as a social worker, counselor or psychiatrist/psychologist, the attorney should consider asking the provider to attend the meeting either in person or via phone/video conference to speak to the student’s disability and the behavioral manifestations of that disability. If the outside provider agrees, it will be important to thoroughly prepare the provider to opine on the relationship between the behavior in question and the student’s disability. If the provider cannot attend the meeting, the attorney should consider asking for a letter detailing what the student’s disabilities and or diagnoses are and how they manifest.

Finally, counsel should reach out to the school’s attorney to inform the school that the student and parent will be represented at the MDR hearing. If there are members of the IEP whose attendance is particular importance to the student’s case, counsel should also request their presence.

• 1The Diagnostic and Statistical Manual of Mental Disorders (“DSM”) is the handbook used by health care professionals in the United States as the authoritative guide to the diagnosis of mental disorders. It contains descriptions, symptoms, and other criteria for diagnosing mental disorders. For more information about the DSM-5, see Diagnostic and Statistical Manual of Mental Disorders (DSM-5-TR), Am. Psychiatric Ass’n.

The first step at an MDR is to make sure all relevant members of the team are present. For instance, if there is no one there from the school team with professional knowledge, training, or expertise in behavior, then an attorney should object to moving forward with the MDR. While the school may not be persuaded by this argument, it may be important in any subsequent appeal of the MDR decision.

Procedural arguments should generally be made at the very beginning of the MDR before getting into the more substantive issues. For example, if the MDR was not held within 10 school days of the decision to remove the student from his current placement, that would be a threshold issue to start the meeting with as it could end the MDR right there if the school agrees it was in violation.

Next, the meeting will move to the substantive questions of whether the behavior was related to the student’s disability and whether the behavior was a direct result of the school’s failure to implement the IEP. Regarding the manifestation question, as a preliminary matter, the team needs to agree on what the student’s disability is. Sometimes this is straightforward as when, for example, the student has been diagnosed with Autism and has an exceptionality of Autism on the IEP; however, sometimes it is more complicated as a student may have an exceptionality of Specific Learning Disability on the IEP, but have a medical diagnosis of Autism or ADHD that may or may not be mentioned in the evaluation or IEP. In the latter case, it is likely going to be much easier to connect behavior to a diagnosis of Autism or ADHD than to a learning disability and therefore, a skillful attorney will want to advocate that the team consider whether the behavior was related to the student’s disability of Autism or ADHD (in addition to the learning disability) even if they are not listed as his exceptionality category on the student’s IEP.

Once the team has agreed upon the student’s disability or disabilities, the next task is to present a thorough argument that the student’s behavior was indeed related to the student’s disability backed with supporting testimony (either oral or written) from any outside provider, as well as information about the student’s disability taken from the school’s own evaluations, IEPs, BIPs, and FBAs for the student, the student’s medical records, scientific research on the student’s disability (such as the DSM-V), or results from previous MDRs where similar behavior was found to be related to the disability. 

To establish a failure to implement the IEP, the attorney should present evidence from the student’s IEP and BIP of the services the student was supposed to be getting and then evidence that the student was not getting those services. Service logs obtained from the school can be particularly helpful here. For example, logs may reveal that the student had not been receiving social work or counseling services prior to the incident. An attorney may also present information from the student or parent or question the school team on whether the student was in fact getting all the services and supports listed in the IEP. 

The MDR determination is supposed to be a collective decision; it should not be decided on a majority vote; however, ultimately the LEA’s Officially Designated Representative (“ODR”) will make the decision even if the parent or other school team members object. Importantly, it is much more difficult for the ODR to rule against the student if other members of the school team agree that the behavior was a manifestation. Therefore, in advocating at the MDR, it can be useful to find the ally in the room and work out from there to try and persuade other team members. Often this may be the school psychologist, who is usually regarded as the expert in the room on student behavior and whose opinion may carry a lot of weight with the rest of the team. Getting that person to agree that the behavior was in fact a manifestation can be crucial to getting other team members on board.