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.