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Last Updated: 11/20/2017
 

Ask the Attorney with John Brower, J.D.   [Back to Ask the Attorney]

Question: I have a child with a disability who has "behavior" issues at school. Does IDEA 2004 change the behavior and discipline laws that we're used to? If yes, What's new or different from the old IDEA?
   

Answer:  IDEA 2004 makes significant changes to the procedures used to determine if a student's misconduct was a manifestation of their disability. It changes the burden of proof where the school district had to show that is was not, to the parent who has to show it was. It also changes the role of the IEP and its implementation.

The questions that are asked under the current Michigan Rules are:

Manifestation Determination [34 CFR §300.523(c)(2)]

If the determination of the IEP Team is “No” to any of the statements below, then the behavior must be considered a manifestation of the student’s disability.

In relation to the behavior subject to discipline and the student’s disability:

1. The current IEP and placement were appropriate; ❑ Yes ❑ No

2. The special education services, supplementary aids and services, and behavioral intervention strategies were provided consistent with the student’s IEP and placement; ❑ Yes ❑ No

3. The student understood the impact and consequences of the behavior subject to disciplinary action; ❑ Yes ❑ No

4. The student had the ability to control the behavior subject to disciplinary action. ❑ Yes ❑ No

In the past the answer to question 1 was NO (and therefore the behavior was a manifestation) IF the student not yet found eligible as they did not have an IEP or did not FBA-BIP or it was not properly implemented. That is no longer the case, as the parent will need to "prove" that the lack of an IEP or its implementation the "the cause" of the misconduct.

The new IDEA states:

(I) if the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability; or
(II) if the conduct in question was the direct result of the local educational agency's failure to implement the IEP.

As a result, it is unlikely that starting whenever Michigan adopts its own version of the rules (2006?) that it will make sense for a parent to hire a private attorney such as myself to represent a child in a manifestation determination (or subsequent expedited due process hearing appealing the denial of manifestation) without first having expert testimony from a psychologist or therapist as to the exact relationship between the misconduct and the disability, IEP, FBA-BIP, etc.

Also, the school's ability to make a unilateral 45-day placement has been expanded to also include "serious bodily injury" to possession of a weapon or drug related possession.

Finally, the evidence standard needed to find that the student's behavior was not a manifestation of their disability has been lowered to make it easier for the school's to prove that to a hearing officer.

While the issue of the dual nature of the special ed - regular ed discipline system was one of the major issues that the school administrators and teachers groups lobbied hard for, Sen. Kennedy (and others) were able to insure that services would still be provided special ed students, albeit in another setting (home, alternative school, library, etc.) if parents insist (via hearing) on more than the minimum 2 hours per week schools like to have their IEP Team find "appropriate" for suspended special ed students, I suspect that the net effect of these changes may not be as harsh as it first appears. Only time will tell.
     
 

John Brower, JD
Education Law Center, PLLC · 810-227-9850 · www.michedlawcenter.com 

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