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.