All students have due process rights when facing discipline in school, particularly when discipline interferes with their access to education. Students with disabilities have the same due process rights as their peers without disabilities, as well as additional protections under the Individuals with Disabilities Education Act (IDEA). One of these protections is the requirement for school districts to conduct a manifestation determination review (MDR) when a student with a disability faces a long-term suspension or repeated pattern of suspensions.

What Is a Manifestation Determination Review (MDR)?

A manifestation determination review (MDR) is a procedural safeguard to ensure students with disabilities are not unjustly and inappropriately disciplined for behavior that resulted from their disability.

If a student is subjected to a disciplinary change of placement, they are entitled to a manifestation determination review to establish whether the problem behavior resulted from either (1) a manifestation of their disability or (2) a failure to implement their IEP. For example, if a student is suspended for over two weeks, and a manifestation determination finds the behavior resulted from their disability, the student would be returned to their standard placement, and the suspension expunged in most cases.

However, if the manifestation determination team finds that the behavior was not a manifestation of your child’s disability, the case will continue to the superintendent’s hearing. There, a hearing officer will determine whether the child is “guilty,” and whether to impose any additional discipline.

What Situations Trigger a Manifestation Determination Review?

Educational institutions are required to hold a manifestation determination review under three circumstances:

• When a disabled child is suspended more than 10 days in a row;
• When a disabled child has been suspended three or more times within 40 days, with the total suspension days equal to 11 or more days within the 40-day period; or
• When there have been two or more suspensions during a school year that equal 11 or more removal days within the school year, and there is a pattern in the child’s behavior that caused the removals.

It is not only students with IEPs or 504 plans who are entitled to the protections of a manifestation determination review. So long as the school district was aware that the student had a disability before the behavior that led to discipline occurred, the student is entitled to a manifestation determination review to protect against unwarranted discipline.

To learn more, read our article: Behavioral Health and Disability: Does My Child Qualify for Enhanced Protections When Facing School Discipline in NY?

How Can I Prepare for an MDR?

To properly prepare for a manifestation determination review, every interested party must be involved, including the student’s parents, teachers, special education specialists, and any doctors or therapists who may provide insight.

Speak with your child Review your child’s IEP and any reevaluations

It is important to speak with your child to learn their perspective on what happened, how they feel about it, and what feelings or situations they were navigating prior to the incident.

Connect with your child’s care providers and support team

Discuss the incident with your child’s care team and provide them with relevant school documentation. Outside experts may be present to support you and your child at manifestation determinations, such as doctors, therapists, social workers. If a doctor is unable to attend the meeting, request a letter of support to use as evidence.

You may bring an education attorney or other educational advocate with you to stand up for your child’s rights. Such expertise can be highly valuable for holding the school accountable to their legal obligations, and ensuring that the school does not railroad the meeting into a predetermined outcome.

You may also contact school district representatives who are familiar with your child’s behavior and background and request their attendance. This may include teachers, aids, school psychologists, school social workers.

Gather relevant evidence

Also compile other potentially relevant facts, such as email correspondence indicating your child’s usual teacher was out.

An experienced educational advocate or education attorney can offer insight as to what evidence may prove beneficial in your case. For example, if a student with ADHD struggles with impulsivity as their medication wears off at 2:00, and acts impulsively at 2:30, that points toward a manifestation. A doctor or other professional or school representative may speak to that fact. Request supporting documentation from your child’s care providers.

Assemble the record

If you were not provided an incident report, request one immediately. Be sure you have copies of any relevant documentation, which may include

• Individualized education plan (IEP) or 504 Plan,
• Evaluations
• Classroom observations
• Progress reports
• Behavior intervention plans (BIPs)
• Functional behavioral assessments (FBAs)
• Any previous MDR worksheets
• Incident report(s)
• Classroom observations

What happens during a Manifestation Determination Review?

The manifestation determination team will review all relevant documents and evidence, then consider the child’s disability in relation to the incident itself.

The manifestation determination review team must answer two key questions:

• Is there a connection between the behavior that led to the suspension and the child’s disability?
• Did the school follow the child’s current IEP or BIP? If not, did the behavior happen because they were not receiving all the services in the IEP or BIP?

Yes, it is a manifestation

If the manifestation determination review finds a connection between the child’s disability and the behavior that resulted in suspension, or determines that the school failed to follow your child’s IEP, then the suspension incident is ruled to be a manifestation of the child’s disability. Your child may return to their normal daily school routine, with the suspension expunged from their record.

Please note: there are exceptions for particularly dangerous behaviors, such as those involving drugs, weapons, or serious physical harm. Even if the behavior is found to be a manifestation of a disability, the student would not automatically return to their previous placement in such cases.

No, it is not a manifestation

If the manifestation determination review team finds that the behavior in question was not a manifestation of the child’s disability, the suspension holds. The child may not return to school until the end of the suspension period.

Once the manifestation determination review is complete, the student will participate in the superintendent’s hearing, which will determine whether the student is “guilty” of the charged conduct. If found guilty at this stage, the superintendent has the authority to impose an additional suspension on top of the original suspension.

What if I Disagree with the Result of a Manifestation Determination Review?

You may appeal the findings of a manifestation determination review. Please note that appealing a manifestation determination and appealing school discipline involves two separate processes, each with their own procedures and governing policies. For example, say your child is suspended upon a finding that the incident was not a manifestation of their disability.

Successfully appealing the manifestation determination would not necessarily translate to the discipline received. Appealing discipline is a separate process. It is highly advised to connect with an attorney versed in special education and school discipline matters if you choose to appeal.

Manifestation determination reviews are formal school proceedings with potentially high consequences if not handled correctly. It is highly advised to bring along an educational attorney to hold your school accountable to New York State education law and your child’s enhanced rights under the IDEA.

Navigating the student disciplinary process unique to special education can be daunting. Tully Rinckey’s education attorneys will handle your matter with the attention and tact it deserves. If you have additional questions about the rights of parents and students in New York state, our team of attorneys is available to assist you today. Please call 8885294543 to schedule a consultation, or schedule a consultation online.

Greg T. Rinckey is one of Tully Rinckey PLLC’s two founding partners. He worked with Founding Partner and fellow Hofstra University alum Mathew B. Tully in 2004 to build the firm from the ground up into the coast-to-coast, full-service powerhouse that it is today. As Founding Partner, Greg collaborates with Mat in all areas of strategic planning and law practice management to develop and deploy innovative business solutions that continue to grow the firm.