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Ennis Britton's On the Call
The Special Education Team of Ennis Britton hosts the podcast “On the Call." Each episode focuses on a real-life special education scenario you may have encountered or might bump into very soon. Ennis Britton attorneys Jeremy Neff and Erin Wessendorf - Wortman take the call and then discuss applicable cases and laws related to the scenario presented. Each episode wraps up with practical tips based on the Special Education Team's years of experience serving school districts throughout Ohio.
Ennis Britton's On the Call
On the Call: MDR Drugs
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What happens when a student with an IEP is caught with weed at school, and everyone says, “We don’t need an MDR! It’s drugs!”? In this episode, Jeremy and Erin unpack a federal court decision that turned that approach upside down. They talk discipline days, interim placements, settlement agreements that come back to haunt you, and how to keep your district out of the crosshairs while still holding students accountable. Spoiler Alert: “Ignore the IEP until this blows over” is not a winning strategy.
Looking for more on MDR? Check out these episodes:
- Season 1, Episode 1: On the Call: MDR Basics
- Season 2, Episode 11: On the Call: MDR Unidentified Student and Request for Evaluation
Join Jeremy for LRP's Ask the Attorney on 9/17. He’ll be hosting a live Q&A addressing common IDEA and Section 504 compliance challenges, including child find and evaluations, FAPE, discipline, and school safety. Bring your questions and get practical guidance from an experienced education attorney with firsthand school experience. Register here!
And it's Britain. This is Erin.
SPEAKER_01Hi, thanks for taking my call. Anytime, what's going on? I've got a student with an IEP who was caught with a vape in the bathroom. It's being tested by our SRO right now. We suspect drugs. Okay. My administrator wants to just discipline the kid and be done. She knows her manifestation determination exceptions, including the one for drugs, and is fighting me on this manifestation hearing. We aren't in a hurry to bring the kid back, but it doesn't feel right.
SPEAKER_02So just let me get it right. Your administrator believes that if there are drugs, it gets the team around holding the MDR? Yes.
SPEAKER_01Is she right?
SPEAKER_00Welcome to season four of On the Call, Ennis Britain's Special Education Law Podcast. I'm Jeremy Neff.
SPEAKER_02And I'm Aaron Wessendorf Fortman. Let's explore today's call. I don't know why, but I really like discipline cases.
SPEAKER_00This is true. Yeah.
SPEAKER_02I bring a lot of them.
SPEAKER_00Yeah.
SPEAKER_02Um, but I also think it's because it's what our clients ask a lot of questions on.
SPEAKER_00Yes.
SPEAKER_02Right? And so we can get into nitty-gritty of other pieces, which I also love for all of our episodes, because hey, you can find one just about anything. Uh and I also know MDRs are where a lot of it gets real. It does. And it smacks us in the face. And we go, wait, do we screw it up or do we not screw it up? Am I doing it right? Are we not doing it right?
SPEAKER_00Yeah.
SPEAKER_02And man, discipline in drugs, does it get better? I mean, it probably does. It probably does. But very basics, Jeremy. Talk me through. Like a rave in drugs or something. I mean, I'm not that's not my thing.
SPEAKER_00It's not my scene.
SPEAKER_02Neon lights, glow sticks, and just remove the discipline part. Have you ever been to a rave?
SPEAKER_00No, no, but I like to act like I know what I'm talking about. Oh, okay. You know, I'm I'm one of those hip kids. I live in that hip neighborhood where stuff happens.
SPEAKER_02Stuff happens, but you don't go to the stuff that happens. I don't I've never been to a rave either. I don't know. It wasn't the thing in college when I was there. No. Maybe it was. I just don't know. Anywho.
SPEAKER_00We had the tractor pole at Bowling Green. I don't know what what your thing was at Miami popping your collars or something. Shout out to all the Miami grads. We love you too.
SPEAKER_02We love you too. We're not that I'm sorry, BG men didn't pop their car. Girls were not going to be able to do that.
SPEAKER_00No, we wore car hearts and we went to the tractor pole.
SPEAKER_02Yeah, no, we didn't do that at Miami. That's weird. Anyway, I distracted it. So you did. So give me Jeremy 30,000 foot view when we're talking about students with disabilities and MDRs, right? So if we're looking at a removal for discipline, what are we obligated to do as a school?
SPEAKER_00Yeah. You know, we don't we don't exactly call it the 10 fate-free days, but it's kind of like the 10 fate-free days. So there's a recognition that short-term removals on their own do not change a child's placement. And this is just in recognition of the fact that schools need to operate fine. Once you get, if if a single removal is beyond 10 days or if a series of shorter term removals exceed 10 days plus, and we can talk about the plus, such that they constitute a pattern of removals that changes the child's placement, that's when some additional requirements kick into place. And the plus is where you're going to look at kind of is it the similar behaviors that are leading to the pattern removals, how close in time are they to one another, how much overall time of removal. So you can look at all of that. And then once you have that change of placement, whether it's all at once, because it's more than 10 days, or a pattern removal that exceed 10 days, that's when you have an MDR that you need to connect.
SPEAKER_02Right.
SPEAKER_00So we different states may call it different things.
SPEAKER_02Sure, but at least under I think the federal regulations, they call a manifestation determination review. And we have had other pods on MDRs and we have had other pods on to talk about the intricacies of what are the questions. And I'm thinking all the way back to season one.
SPEAKER_00Correct. We had like three.
SPEAKER_02And I think they're fantastic, but that's just me and you know the lack of humility that I have. But the very quick version of it is when you are at this MDR, you're talking about, hey, what does this kid's disability look like? Right? We're reviewing all of the documents and evidence that help support what this kid's disability looks like. And not just a category, right? We're talking about details.
SPEAKER_00Yes.
SPEAKER_02We're also talking about what the behavior is for why we're there. And again, not just the code of conduct violation, but the details. Yep. And then we're asking two main questions. Do you want to do it or do you want me to do it?
SPEAKER_00Sure, sure. One question is whether there's that direct and substantial connection between the behavior and the disability. And those are high-dollar words. So it's not just some sort of tangential connection, which I think we've discussed in prior episodes, but a direct and substantial connection, or was the behavior the direct result of the failure to implement the IEP as written. Correct. And that's a really important clarification.
SPEAKER_02We're not relitigating the IEP, what could have, would have, should have been there, right? But there's also this weird bit. And so that is the very right 30,000-foot view of MDRs, what we're doing, removal, what are the questions we're asking. But I love when people call like this caller because I feel like people get stuck in this. Well, I heard there was an exception. And so drugs, weapons, serious bodily injury, I don't have to do any of this. The kid's just out. And there is an exception, but it's an exception to the result of the manifestation determination review. Not an exception to the process.
SPEAKER_00Depending on what platform you're listening on, hit the back like 10 or 15 seconds and listen to that again. That was really important there, right? And we're going to dwell on that pretty much the rest of this episode.
SPEAKER_02We are. And you know better than to be like, oh, Aaron, say that again because I am terrible at that. Clients will do that sometimes. They're like, oh, pause. I got to write down exactly what you just said and I love it. I'm like, well, I'm done because fleeting moments of brilliance are exactly that. They were fleeting and I'm not going to grab them again. But really, it's about what the decision is on the other side of the manifestation determination review. So once you've gone through that review process, if it is not a manifestation, if that behavior is not a manifestation of the student's disability, they're disciplined like any other kid.
SPEAKER_00Yep.
SPEAKER_02If it is a manifestation of that student's disability, we're obligated to either conduct a functional behavior assessment or revisit an FBA in a BIP, right? And importantly, return the child to their placement.
SPEAKER_00Yeah. Yeah. And we're we're narrowly looking at the MDR piece and this uh drug exception in particular today. So we're not going to address other stuff. Bear in mind, of course, that once you hit the 11th day of removal, you owe a child uh services, some level of services. We're not talking about that today. We have a prior episode on IAES intermal alternative educational settings. We're also not looking at other ways a school might move to remove a child from school for behavior that's is a manifestation. So that's not what we're talking about today. Those exist.
SPEAKER_02Correct.
SPEAKER_00We're focused on this exception for illegal drugs.
SPEAKER_02The exception to the results of the MDR.
SPEAKER_00Ooh, hit back 10 seconds again.
SPEAKER_02It's and I can't stress it enough. And I know you and I have done, we have done podcasts now for this is four season four. We have done special education law for decade plus of work, right? I mean, uh it's been a very long time. And consistently, every year, I I get questions. I'm assuming you do too, or at least people like this caller that say, wait a minute, it's drugs, I'm fine. We don't have to go through the process. And I love that we have a case on point. Boom, click, done. Yes. Where we can just say, here you go. No, it's not just that we believe the regulations say this because they do, but it's also that there is a court out there in New York that said exactly what we're saying here, which is you cannot avoid MDRs when drugs are involved. You still have to go through the process. And then if drugs are involved and it is a manifestation of the student's disability, you may still remove the student to an IAES for 45 days because drugs are involved. Correct. So, you know, we've talked now what the law says, and I kind of hinted a little bit about this case, and maybe it's the shortest pod ever, and we're done. But I think that's a long case, though. It is a long case, and the case has so many other intricacies to it, right? So we had legal issues about a failure to conduct an MDR, maybe kinda sorta, failure to provide fape while the kid was removed from school in this case, right? We looked at 504 claims, ADA claims, section 1983 claims, where essentially these parents in this family were going after the school district and individual administrators, personally.
SPEAKER_00Yeah.
SPEAKER_02And it was also a contract settlement dispute. And there were so many things in this case, all stemming from services provided to a kid and a disciplinary incident where it appears there was probably not a manifestation determination review held when the disciplinary event involved drugs. Yes. And the administrator maybe sort of kinda lied about the situation.
SPEAKER_00Yeah, and at minimum, we know even if there was something you could point to and say, well, that was the MDR. The parents were not invited and were not a part of it. Correct. That that I think is just acknowledged.
SPEAKER_02If there was an MDR. Yes. I mean the court's a little weird on that. So backing up just a little, very high-level review on this, and also to at least point out man, the case is old. I mean, the case came out February of 2026. Right. But the disciplinary event happened in 2016.
SPEAKER_00Cautionary tale.
SPEAKER_02Wow, right? And the court case doesn't solve all the world's problems. The court case was about whether or not, I mean, really, there were motions to dismiss filed, and it's about whether or not claims could continue on, right? And a lot of times when we talk about court cases, when they get up to a district level court, you and I are talking on at least on the pod about whether or not it's allowed to continue, not about the court deciding substantive issues under IDEA, right? So we are talking about in 2016, we have a student who had mental and physical disabilities who is attending a specialized program at a high school. So reportedly did well, but it is really there seems to be a lack of relationship, a lack of really good, solid communication between the parent and the school, right? Just not great communication and anything, right? Parents try to schedule meetings, they're not really responded to. District goes ahead, and uh what happens in this case is the kid gets suspended for having drugs. I think it was weed on property, right? Fine, marijuana weed, pop. Yeah, back in 16, it was still weed.
SPEAKER_00It wasn't a bait then.
SPEAKER_02I mean, fine. So we had weed on property. Parent gets a letter that says kid is suspended. There's a bit of question because then all of a sudden a five-day suspension becomes much longer.
SPEAKER_00Yeah, I'm glad you highlighted that because that's I I definitely put a big old circle and a question mark in my notes on that because I wonder if that's that's it. Sometimes you try and figure out what's the genesis of this case. And rarely is it why I have a thorough knowledge of the law. It it's something that just finally is like, I'm done.
SPEAKER_02Yes.
SPEAKER_00And I just wonder if that was it.
SPEAKER_02Aaron Powell, I'm thinking it was because it went from a five-day to a 10-day. When the parent requests a hearing, she's told, okay, we'll move it. Parent uh maybe was getting an attorney, and so then school says, fine, we'll move it again, but then never responds to reschedule it. So from November until January, the student is out, the student doesn't have services, parent files a due process complaint. It appears as if everything was resolved. As you and I know, most due process complaints, at least in Ohio, I'm assuming elsewhere around the country, the vast majority are mediated and there is a resolution because an agreed-upon resolution can sometimes be better than throwing it into the wind and seeing what happens. Yep. Right? So fine and dandy, except then at least per this case, the school does not abide by the terms of the settlement agreement. So it goes to court for enforcement of the settlement agreement. And there was a dispute on whether the MDR ever happened. Right?
SPEAKER_00Yeah, that's what I wanted to do. I'm I figured you were better at that noise.
SPEAKER_02What does that mean? Who's the sound effects person for our podcast? Aaron, this is what I do. But it sounds like the parent says, look, I was never notified about the MDR. School says, uh, we kind of held an MDR, maybe. Uh and by the way, maybe it doesn't even matter because there are drugs. So the whole point of the school moving forward with this is saying, look, hold on. We don't even have to engage in a manifestation determination. So even if we didn't hold one, it doesn't matter because drugs are involved. And the court said, I don't think so. That's not okay, right? That's not what the law says. The law very clearly says if a kid is going to have a change in placement for disciplinary reasons, right? As you talked about at the top of our podcast, for 10 consecutive days, right? Or a series more than 10, or a series of removals, you have to hold a manifestation determination review. Now, you and I also know could there be an exception applied where a parent is agreeing not to hold it because you're going to have an agreed-upon change in placement? I mean, maybe talk to your legal counsel, fine and dandy. But it is not an option. You're required to do that. And the court specifically rejected the school's argument that drug cases allow a change in placement without regard to the MDR outcome. Drug cases do not eliminate the MDR requirement itself. And so because the school didn't do this, there were a host of just really interesting pieces here. I mean, the court even went ahead and referred back to the oh, the recent US was it the US Supreme. Yeah. About deliberate indifference standard under 504. Sorry. Yeah, wrong.
SPEAKER_00ASEO.
SPEAKER_02Mm-hmm. ASEO was so they were referring back to this and saying that, you know, we're not going to dismiss some of these claims against the school and the administrator because we think their actions here under this failure to provide an MDR could be considered deliberately indifferent. So there might be disability discrimination here. This case was it was really long. I know. I'm just saying.
SPEAKER_00And it did also talk about Perez too, which I think got to that question of like whether exhaustion was required and all that there's so much in here.
SPEAKER_02There was a lot in here. I was focusing on the MDR and the drug piece because otherwise it's an it's a nerdy attorney case, which is fine. But the MDR and the drug piece is interesting to me. And the fact that we are still allowing an administrator to be a named defendant personally in this case because there could be an appropriately supported allegation that that administrator was deliberately indifferent to what was going on with this student. They weren't responding to the parent. They were either lying about an MDR or they were they had it and didn't invite the parent. They weren't caring about what the law said. And all of those pieces pointed the court to hey, we might have some allegation of deliberate indifference here.
SPEAKER_00And that's it, right? I mean, just for our listeners, like that's that's all that the court's saying on that piece.
SPEAKER_02They said those claims can still continue. Yep. My assumption is, given that the decision was February 13th of 2026.
SPEAKER_00Shout out to our colleague Gazelle for uh highlighting this to the team.
SPEAKER_02Love that. I don't know that she knew that we were gonna do a pod on it, but we're gonna find out if she listens. I know. It's so great. I do love her though. Um but with that, right, the court is saying, go forth and prosper. My assumption is now there's going to be some resolution, right? Most of these cases resolve at that point. Now, could it not be we might have a future pod on it if it doesn't? So with that, right, if we're gonna turn and look at this case and say, lessons in mind, what are our practical tips, Jeremy, when we're going to say, how do we apply this case of Simmons from New York to administrators?
SPEAKER_00I mean, the top top of the line, don't skip the MDR when one of those special circumstances applies. And again, we're talking drugs, serious bodily injury and uh weapons. So don't skip it. And and really that goes both ways. You you don't want to skip it for the reasons that it burned this district. It was one of the things that burned this district, but also because if the behavior is not a manifestation, you're not limited to 45 days. Because we'll run into that too, right? Where and and and so, you know, no matter what, I think it's in uh the interest of the district, go ahead and be procedurally compliant on this thing when it comes to just hold the MDR.
SPEAKER_02Hold the MDR, invite the parents.
SPEAKER_00Yeah.
SPEAKER_02Right? And and if the parents are refusing to attend, find other ways. Offer it virtually to them, offer it telephonically. And if they then refuse after multiple attempts are made to try to schedule this, then we hold it, unfortunately, without the parents and cite their lack of or refusal to participate in the process. But I do think having parents is an inherent part of this, which is where this case got sideways, right? But ensuring that districts look at MDRs as the process for students with disabilities who reach those numbers of removals, and that the exceptions are just that. They're the exception, the backstop, if you will, on the other side of that. I look at it as that, you know, I don't know. This is gonna be really bad that I'm gonna make this reference and not know what baseball team it is. The big green wall, like the big green monster. Is that Chicago or Boston? I think it's Boston. Uh that's a terrible thing. I'm gonna get all the judgment now. But I look at it as that. Like that is where it it is, it is the absolute last stop, right? It is not, you know, just hitting it out of the infield. It is the very last stop that you get to for an MDR. It is not where you start, right? And we can't use it as the exception to the process. We use it as an exception to the result.
SPEAKER_00Yes. Again, 10 10 seconds back.
SPEAKER_02So let's go.
SPEAKER_00I mean, really, I mean, that's so pithy. It's so like it, you just boom, right there. You're really capturing it.
SPEAKER_02Well, 20 minutes later, I could have just said that. I could have just had the caller, had a quick lesson, here it is, and then it could have been a five-minute pod. And instead, your 20 minutes of hearing us be ridiculous. But I'm glad it can be pithy for once in my life. So if I'm gonna go back to the caller, um, and really with looking at the student with a potential disciplinary incident for a vape with marijuana, right? Ten years later, we're not talking weed, we're talking vape with marijuana in it. The key takeaway is that the drug-related conduct doesn't erase IDEA protections and process. If you're changing placement, you still owe the student an MDR access to services, even in an interim setting. Skipping the MDR isn't an option. Making sure as part of a focus for schools, we are tracking discipline, tracking days, coordinating MDR meetings, inviting parents, and documenting how FAPE continues while a student is out is how you protect students and staff.
SPEAKER_00Thank you for tuning in to On the Call. If you have found value in our discussion and think your educator colleagues would as well, please share this podcast through text, word of mouth, staff meetings, chats, and teachers launch. Your support is what drives this podcast.
SPEAKER_02We work to bring real life situations and practical tips to each episode. If you have a topic you would like to suggest or want to share your thoughts, please connect with us on social media or email us at podcast at nsbritain.com.
SPEAKER_00A quick note this podcast is intended to be used for general information only and is not legal advice. If you have a specific question, please consult an attorney.
SPEAKER_02We are looking forward to being on the call with you again soon.
