Session 2: IDEA Disciplinary Procedures
Manifestation Determination, Special
Circumstances, Substantially Likely to
Cause Injury, Educational Services,
FBAs/BIPs
Sue Gamm, Esq.,
Public Consulting Group
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Session 2
IDEA Discipline Procedures Overview & Change of Placement
Manifestation Determination, Special Circumstances
& Substantially Likely to Injure, Ed Services, FBA/BIP
Due Process, Deemed Eligible, Referral to Law
Enforcement, ADA/§504, Indicator 4
REVIEW
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1st 10 Days
of Disciplinary
Removal
No procedural safeguards apply
regardless of removal for 10 days at a
time or in smaller increments up to 10.
Educational
Services
Appropriate & sufficient to:
- Continue to participate in gen ed
curriculum
- Progress toward meeting IEP goals
Change in
Placement
Based on various factors, when
removal constitutes a change in
placement & requires consideration of
manifestation determination.
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Manifestation Determination
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Who makes manifestation determinations?
Parent, LEA representative and relevant
members of the IEP team
(as determined by parent & LEA)
But – if manifested, full IEP team must design
educational services & address FBA/BIP.
LEA policy can direct full IEP team to simplify process.
When must the manifestation determination
be made?
Within 10 school days of any decision
to change the student’s placement.
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Information to Review
Relevant
Information
from Student
File
Information
from any
Student
Observation
Information
from
Parents
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Was the student’s conduct –
1. Caused by or
direct &
substantial
relationship to
disability?
Consistent
Behavior?
?
Attenuated
Association?
2. A direct result
of failure to
follow IEP?
If YES:
Impact Behavior?
Always Correct!
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WEAK
DIMINISHED
What does
attenuated
mean?
MARGINAL
LITTLE RELATIONSHIP
Congressional Intent: “… conduct in question … was
not an attenuated association, such as low selfesteem, to the child’s disability.”.
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Congressional Intent
 Analyze child’s behavior as demonstrated
across settings & across time
 Conferees intend to assure that the
manifestation determination is done
carefully and thoroughly with consideration
of any rare or extraordinary circumstances
presented.
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MDR Hypotheticals
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MDR: Hypothetical 1
11th grader with SLD and ADHD brought to school a
pocket knife with 1.5 inch blade, claiming he
needed it for protection. Students indicated he had
threatened others while exhibiting the knife, and
that he had brought it to school on various
occasions and while walking to and from school.
Before the school conducted the MDR, the parent
obtained an evaluation from an outpatient
psychiatric facility that also diagnosed the student
with post-traumatic stress disorder, oppositional
defiant disorder, and impulse control disorder.
1. Direct & substantial relationship to disability?
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 Team found not manifested.
 HO reversed.
 School appealed & won. Found behavior was
deliberate and regular, indicating behavior
was not impulsive or ADHD-related. The
recent new diagnoses were not given serious
weight as their supporting evidence was
“scant;” the report was “cryptic” and brief;
and the student’s school conduct did not
support the diagnoses.
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MDR Example 2
17-year-old with ADHD/ODD became upset and tried to call
his mother on his cell phone so she would pick him up and
take him home. Because he was speaking in a highly agitated
manner to his mother, a staff person asked that he go into an
office. The student escalated and threw his phone down.
When the staff person picked up the phone, the student
became irate and physically threatening, blocking the staff
person’s ability to leave and lunging at and frightening her.
Parent’s expert testified student was unable to self-regulate
once escalated. School staff working with student testified
that in other confrontations the student demonstrated an
ability to de-escalate and avoid extreme behavior. They added
that violence and aggressive behavior are not generally
associated with ADHD and ODD.
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 HO discounted staff testimony in favor
of parent’s expert, although expert only
reviewed records and had not personally
evaluated the child.
 Found student wasn’t given opportunity
to avoid an escalation of the original
confrontation and as a result it spiraled
into out-of control behavior.
 HO appeared to have questioned
handling of the incident.
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NO Manifestation: MAY Remove
IEP
Team
Designs ed services (FAPE) to:
- Continue to participate in
general ed curriculum
- Progress toward meeting IEP goals
Designs, as appropriate, FBA & behavioral intervention
services and modifications, that are designed to address
behavior violation so it does not recur.
Give written IEP meeting notice to parent(s) in sufficient
time to attend; schedule at mutually agreed upon
time/place; include meeting purpose, time & location;
who’ll attend; & written notice of actions taken/rejected.
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YES Manifestation
IEP
Team
MUST: Conduct/review FBA
& Develop/review BIP
Student Returns To Placement
BUT parent/LEA can agree otherwise as part of BIP
Special Circumstance Exception
FBA may require
parent consent
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USDE: Educational Services
 Extent to which educational services need to be provided &
type of instruction to be provided depends on length of
removal, extent to which child has been removed
previously, and needs/educational goals. E.g. a student
performing near grade level removed for only a few days
wouldn’t likely need same level of services as one with with
significant learning difficulties and performing well below
grade level.
 Do not interpret “participate” to mean a school/LEA must
replicate every aspect of services a student would receive if
in regular classroom. E.g., all aspects of chemistry or auto
mechanics classes do not require replication as are taught
using a hands-on component or with specialized equipment
or facilities.
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3 Special Circumstances
Drugs
Serious
Bodily
Injury
May remove to IAES
up to 45 school days
even if behavior is
manifested by
disability
Weapons
When at school, on
school premises, or at
LEA school function
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Drugs
Doesn’t include drug possessed or used under
supervision of licensed health-care professional
or legally possessed/used. Includes drug or
other substance identified in schedules
Weapons
Weapon, device, instrument, material or
substance (animate or inanimate) used for (or
readily capable of) causing death or serious
bodily injury, except doesn’t include pocket knife
with blade less than 2 1/2 inches long
Serious
Bodily
Injury
Substantial risk of death; extreme physical pain;
protracted and obvious disfigurement; or
protracted loss or impairment of the function of
a bodily member, organ, or mental faculty
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With Special Circumstances
IEP
Team
Designs ed services (FAPE) to:
- Continue to participate in gen ed
curriculum
- Progress toward meeting IEP goals
Manifestation Determination
NO
As appropriate, FBA & behavior
intervention services & modifications
so behavior doesn’t recur
YES
FBA & BIP
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FBA & BIPs
Removed > 10 days -- placement IS
changed -- behavior NOT
manifestation of disability
Special circumstance: behavior NOT
manifestation of disability
As appropriate, FBA &
BIP
services/modifications to
address behavior
violation so does not
recur
Behavior IS manifestation - NO placement Conduct/review FBA &
BIP
change -- NO special circumstance
Special circumstance: behavior Conduct/review FBA & BIP to
address behavior so doesn’t recur
IS manifestation of disability
Behavior NOT
manifestation of disability
& NO placement change
When behavior impedes student/other
learning, consider (as approp) positive
behavioral interventions & other strategies to
address behavior.
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Injurious Behavior
What if the student’s behavior is a
manifestation of his/her disability but school
personnel believe the student’s behavior is
injurious to him/herself or others?
The LEA may ask for an expedited IDEA
hearing officer to find the student’s behavior
is substantially likely to cause injury to
self/others, and remove the student to an
interim educational setting for 45 school days.
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Session 3
IDEA Discipline Procedures Overview & Change of Placement
Manifestation Determination, Special Circumstances
& Substantially Likely to Injure, Ed Services, FBA/BIP
Due Process, Deemed Eligible, Referral to Law
Enforcement, ADA/§504, Indicator 4
REVIEW
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Thank You!
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