Manifestation Determinations
Josh Salsburey, Esq.
Sturgill, Turner, Barker, &
Moloney, PLLC
333 West Vine Street, Suite 1400
Lexington, KY 40507
(859) 255-8581
jsalsburey@sturgillturner.com
Karen H. Frohoff, Ed.D.
Assistant Superintendent Special
Programs
Madison County Board of Education
707 N. Second Street
Richmond, Kentucky 40475
(859) 625-6044
Karen.Frohoff2@Madison.kyschools.us
Manifestation Determinations
• One of the most litigated features of IDEA.
WHY?
– Discipline
– Stay put issues
– Difficult determination
– Lack of understanding of the rules on part of
school administrators, teachers.
– Kentucky’s broadened category of EBD
instead of ED
IDEA, 2004 [20 U.S.C. § 1415 (k)]
• “School personnel under this section may remove a child
with a disability who violates a code of student conduct
from his or her current placement to an appropriate interim
alternative educational setting, another setting, or
suspension for not more than 10 consecutive school days
(to the extent those alternatives are applied to children
without disabilities), and for additional removals of not
more than 10 consecutive school days in that same school
year for separate incidents of misconduct (as long as
those removals do not constitute a change of placement
under § 300.536).” 34 CFR 300.530(b) & 707 KAR1:340
Sec. 13(2) & (3).
Kentucky Regulations
• Kentucky regulations exceed the federal
regulations in this area.
• In Kentucky, you may suspend a child with
a disability up to 10 days.
• Kentucky evaluates through the KCMP
monitoring process all districts to ensure
students are not being suspended more
than 10 days.
To Manifest or Not To Manifest,
That is the Question
• A MD must be conducted when there is a
“change in placement” for disciplinary
reasons”. (Must conduct even if the
recommended placement change is at Day
1 of Suspension). {Example: Drug offense
and recommended to Day Treatment;
Vandalism recommended to
– Alternative School }.
Manifestation Determinations
=Emotionally Charged Meetings
• Melinda Baird Jacobs, Esq. Calls it
Manifestation Desperation: Principals are
desperate to remove the student to
another placement and parents are
desperate to keep student in school.
• Recommend DOSE or other administrator
other than principals of school chair MD
meetings to avoid issues of “conflict of
interest”.
What is a “change in placement”?
• Removal for more than 10 consecutive school days;
or,
• A series of removals constituting a pattern
(determined on a case by case basis) because:
– 1) the removals total more than 10 school days in a school
year,
– 2) the child’s current behavior is substantially similar to
the child’s behavior in previous incidents, and
– 3) additional factors such as length of each removal, total
amount of time removed, and proximity of removals to one
another.
34 CFR 300.536(a) and 707 KAR 1:002 Sec.1(8).
What is a Removal?
• What part of a day counts as a day of
suspension?
• Do bus removals count towards the 10
days?
• Does time in ISS count towards the 10
days?
Federal Register Comments
Vol. 71,p.46715 (Aug. 2006)
• Portions of a school day that a child had
been suspended may be considered as a
removal in regard to determining where
there is a pattern of removals as defined in
§300.536.
Federal Register Comments
Vol. 71,p.46715 (Aug. 2006)
• If bus transportation is a part of the child’s
IEP, a bus suspension would be treated as
a suspension under § 300.530 unless the
public agency provides the bus service in
some other way, because transportation is
necessary for the child to obtain access to
the location where services will be
delivered.
Federal Register Comments
Vol. 71,p.46715 (Aug. 2006)
• If bus transportation is NOT a part of the
child’s IEP, a bus suspension is not a
suspension under § 300.530.
• Public agencies should consider whether
the behavior on the bus is similar to
behavior in a classroom that is addressed
in an IEP, and whether the child’s behavior
on the bus should be addressed in the IEP
or a behavioral intervention plan for the
child.
Federal Register Comments
Vol. 71,p.46715 (Aug. 2006)
• An in-school suspension would not be considered a part
of the days of suspension in § 300.530 so long as the
child:
– Is afforded the opportunity to continue to
appropriately participate in the general
curriculum;
– Continues to receive the services on his/her
IEP;
– Continues to participate with non-disabled
children to the extent they would have in their
current placement.
Purpose of Manifestation
Determinations
• Extra procedural protection for the child
about to be removed.
• Determine Causation—is the child
engaging in the behavior because of
his/her disability or because the school
has failed to implement the IEP?
Who Conducts the MD?
• The local educational agency (“LEA”)
• The parent
• Relevant members of the child’s ARC as
determined by the parent and the LEA
34 CFR 300.530(e)(1) and 707 KAR 1:340 Sec.
14(1).
RECOMMENDATION: ALWAYS have a full ARC
team so as an ARC if you make a change of
placement that, if appropriate, can be longer
than 45 school days through the ARC/IEP
process.
Notification
• On the date the decision is made to
make a removal constituting a change in
placement because of a violation of the
student conduct code, the LEA must
notify the parents of that decision and
provide parents with the procedural
safeguards notice.
34 CFR 300.530(h) and 707 KAR 1:340
Sec. 14(6).
When Does the Review
Take Place?
• Within 10 school days of the decision
to change the placement of a child
because of a violation of the student
conduct code.
34 CFR 300.530(e)(1) and 707 KAR 1:340
Sec. 14(1).
Conducting the Review
• The more information that you consider
(and document that consideration!), the
less opportunity that your decision will be
challenged by a due process hearing.
• If it is challenged, you will have covered all
your bases prior to the hearing and will
have fewer surprises.
Required Documentation
to Consider
• All relevant information in the student’s file,
including
• The child’s IEP,
• Any teacher observations,
• And any relevant information provided by the
parents.
34 CFR 300.530(e)(1).
• All of the above plus teacher-collected data
707 KAR 1:340 Sec. 14(1).
Recommended Documentation
to Consider
• PRIOR to meeting review all:
–
–
–
–
–
–
–
Attendance records
Discipline documentation
Teacher observations
BIP documents
Progress on IEP goals and benchmarks
Any previous FBA
All previous assessments and medical records
• Re-review all information and document
DURING the MD meeting.
Two Key Questions of IDEA, 2004
1. Is the behavior CAUSED BY or HAD A
DIRECT AND SUBSTANTIAL RELATIONSHIP
to, the child’s disability?
YES
NO
2. Is the behavior a DIRECT RESULT of the
school’s FAILURE TO IMPLEMENT THE IEP?
YES
NO
34 CFR 300.530(e)(1) and 707 KAR 1:340 Sec. 14
(1).
“Disability”
• This term relates only to the definition in
the IDEA and relates to the 14 categories
of eligibility for which a child may receive
special education services.
• The ARC may consider additional “medical
information” provided by the parent but
the MD meeting should focus on the
evidence at the time of the event and
focus on the “educational” diagnosis.
Direct Result of Failure to
Implement IEP
• The data must clearly show that a teacher,
paraeducator, or administrator acted in a
manner or failed to act in a way that
directly caused the student’s conduct to
occur.
– Failure to escort student in hallway during
transition according to IEP and a fight occurs
– Refusal by teacher to allow student to exit
room to “cool down” according to IEP and
student explodes and attacks teacher
New Medical Statements and
Information
• If NEW information is shared by the parent
that has NEVER been introduced until the
MD issues, the committee must document
its consideration.
• However, it should not be distracted by
information that may not be relevant to the
issue.
• Bipolar Rule Out is a non-diagnosis
• Current alcohol and drug use is not a
disability
Non-Manifestation
Determinations
•
•
•
•
•
•
•
•
•
Self-esteem
Poor choices
Poor parenting
Social/Economic Issues
Bullying
Alcohol andDrug Abuse
Pregnancy
Truancy
Medication Issues (parent issue not school
issue)
Determination
• If the answer to either question is YES, then the
determination is that the disciplinary behavior IS
a MANIFESTATION of the child’s disability.
– If the determination is that the IEP has not been
implemented, the LEA MUST take immediate steps to
remedy those deficiencies. 34 CFR 300.530(e)(3).
• If the answer to both is NO, then the disciplinary
behavior is NOT a MANIFESTATION of
the
child’s disability.
– (Zirkel, P.A., 2006)
When a Manifestation Occurs
• IEP/ARC team must conduct a functional behavioral
assessment (“FBA”) and implement a behavioral
intervention plan (“BIP”) if this had not been done
previously. If a BIP already was in place then the team is
required to review the plan and “modify it as necessary, to
address the behavior”.
• The ARC team will be required to return the student to the
placement from which the student was removed UNLESS
special circumstances exist (drugs, weapons, serious
bodily injury); or the parents and the school agree to the
change of placement as a part of the modification of the
BIP.
34 CFR 300.530(f) and 707 KAR 1:340 Sec. 14(4).
Special/Unique Considerations
• School personnel may consider ANY
unique circumstances on a case-by-case
basis when determining whether to order a
change in placement for a child with a
disability who violated a student code of
conduct.
Special Procedural Issues
• If during the course of the review of
information it is apparent that
– The district should have done additional
evaluation, or
– The student had a pattern of behavior, no
behavior plans were developed or
– Other major procedural concerns, stop the
MD meeting and address the deficits of the
IEP through the ARC process.
45 Day Removals ONLY for Drugs,
Weapons, or SERIOUS Bodily Injury
• For certain (specific) violations of the code
of conduct, districts may remove a student
to an interim alternative educational
setting (IAES) determined by the ARC for
not more than 45 days REGARDLESS of
whether the behavior was a manifestation.
Special Circumstances: Weapons
• School personnel may remove a student to an
interim alternative educational setting (“IAES”)
for not more than 45 school days without regard
to whether the behavior was a manifestation of a
disability if the student carries or possesses a
weapon to or at a school, on school premises, or
to or at a school function under the jurisdiction of
a State or local educational agency.
34 CFR 300.530(g)(1) and 707 KAR 1:340 Sec.
14(5)(a).
Special Circumstances:
Drug Offenses
• School personnel may remove a student to an
IAES for not more than 45 school days without
regard to whether the behavior was a
manifestation of a disability if the student
knowingly possesses or uses illegal drugs, or
sells or solicits the sale of a controlled substance,
while at school, on school premises, or at a
school function under the jurisdiction of a State or
local educational agency.
34 CFR 300.530(g)(2) and 707 KAR 1:340 Sec.
14(5)(b).
Special Circumstances:
Serious Bodily Injury
• School personnel may remove a student to an
IAES for not more than 45 school days without
regard to whether the behavior was a manifestation
of a disability if the student has inflicted serious
bodily injury upon another person while at school,
on school premises, or at a school function under
the jurisdiction of a State or local educational
agency. 34 CFR 300.530(g)(3) and 707 KAR1:340
Sec. 14(5)(c).
– Bodily injury means “a serious risk of death; protracted
loss or enjoyment of a bodily organ, member, or mental
faculty; extreme physical pain.” 18 U.S.C.A. §
1365(h)(3).
When There is NO Manifestation
• If the answer to the questions are NO, the
LEA may:
– Use disciplinary procedures that apply to nondisabled students BUT must continue to
provide FAPE. 34 CFR 300.530(c) & (d) and
707 KAR 1:340 Sec. 13(4) & (6).
– As appropriate, a FBA and behavior
intervention services and modifications may
be designed to address the behavior violation
so that it does not recur. 34 CFR
300.530(d)(1)(ii) and 707 KAR 1:340 Sec.
13(6)(b).
Unidentified Students
• Unidentified students may assert MD
protections if the LEA had knowledge that
the child was a child with a disability
BEFORE the behavior that resulted in
disciplinary action occurred.
34 CFR 300.534(a) and 707 KAR 1:340
Sec. 16.
Basis of Knowledge
An LEA has knowledge if:
• Parent expressed concern in writing *(or orally if
not able to write) to supervisory or
administrative personnel or child’s teacher that
child needs special ed and related services;
• Parent requested an evaluation under IDEA; or
• Child’s teacher or other personnel expressed
concern about a pattern of behavior *or
performance of child directly to director of
special ed or other supervisory personnel.
34 CFR 300.534(b) and 707 KAR 1:340 Sec. 16(1).
No Basis of Knowledge If...
• LEA conducted evaluation and determined
child was not child with disability under
IDEA;
• *LEA determined an evaluation was not
necessary and provided notice to
parents;
• Parent refused consent to evaluate or
refused initial services.
34 CFR 300.534(c) and 707 KAR 1:340 Sec. 16(2).
Evaluation During
Disciplinary Period
• Evaluation must be conducted in an
expedited manner;
• Student stays in placement determined by
LEA, including suspension or expulsion
without services;
• If child is determined to be child with
disability, child receives MD protections.
34 CFR 300.534(d) and 707 KAR 1:340 Sec. 16(4).
Literature Review
• There is very little literature available to guide
administrators on how to conduct fair and
meaningful manifestation meetings (Knoster,
2000).
• Professional controversy over whether a
committee can ever determine “NO” to the
manifestation questions because of fear of
litigation and because we are trying to apply
logical reasoning, social judgment, and political
solutions to a medically based problem after an
event has already occurred.
(Katsiyannas & Maag, 2001).
Congress’ Interpretative Comments
• The conferees intend to assure that the
manifestation determination is done carefully and
thoroughly with consideration of any rare or
extraordinary circumstances provided.
• It is the intention of the Conferees that when a
student has violated a code of conduct, school
personnel
may
consider
any
unique
circumstances on a case-by-case basis to
determine whether a change of placement for
discipline purposes is appropriate. See 34 CFR
300.530(a).
Congress’ Interpretative Comments
• “The Conferees intend that if a change in placement is
proposed, the manifestation will analyze the child’s
behavior as demonstrated across settings and across
time when determining whether the conduct in question is
a direct result of the disability….”
• “The Conferees intend that in order to determine that the
conduct in question was a manifestation of the child’s
disability, the LEA, the parent, and the relevant members
of the IEP team must determine the conduct in question
to be the direct result….not an attenuated association,
such as low self-esteem, to the child’s disability” (H.R.
Conf. Rep., 2004, pp. 224-225).
Expulsion Hearings and Manifestation
Determination Meetings
• IDEA, 2004 requires that a MD meeting be held
within 10 school days of the “decision to change
the placement of the child”. This means that a
MD meeting does not have to happen prior to
the expulsion hearing but must occur within 10
days after the vote.
• Practically, it is recommended to conduct the
MD meeting prior to an expulsion hearing
because IF the MD rules the conduct in question
is a manifestation of the disability NO further
disciplinary actions may occur and this will
reverse the expulsion decision.
MD and 504 Plans
• Following the legal requirements under IDEA,
2004 will meet all legal requirements under
Section 504.
• The U.S. Office of Civil Rights discipline
requirements state that a MD meeting must be
conducted by a knowledgeable team and that a
re-evaluation needs to be conducted upon a
significant change in placement (at the 11th day
or an equivalent pattern of cumulative days).
Appeals
• A parent who disagrees with the child’s placement
or with the manifestation determination may
appeal by requesting an expedited due process
hearing.
• An LEA that believes that maintaining the current
placement of the child is substantially likely to
result in injury to the child or others may request
an expedited due process hearing.
34 CFR 300.532(a) & (c) and 707 KAR 1:340 Sec.
15(1) & (5).
Stay Put
• When an appeal is filed, the child’s stay put
placement is in the IAES pending the decision of
the hearing officer or until the expiration of the
placement at issue whichever occurs first,
unless the parent and the state or local
educational agency agree otherwise. 34 CFR
300.533 and 707 KAR 1:340 Sec. 15(4).
Day 11 and Beyond
• Each and every time a student is
suspended after 10 days a Manifestation
Determination meeting must occur
because according to federal law this is a
“change in placement”.
Parent Veto Power
• Parents do not have the right to veto a
district’s manifestation determination.
• Parents have the right to appeal through a
request for an expedited due process
hearing.
• The district’s recommended placement is
the placement during the dispute period.
NEW FERPA Regulations
• FERPA allows districts to release
personally identifiable information without
parental consent to parent volunteers,
substitute teachers, bus drivers, peer
buddies, and others working in the
schools.
• Individuals must be aware of their
responsibility to maintain confidentiality
and accept this obligation.
• 34 CFR Part 99
Case Study #1
• Student w/ ED classification identified in 1st grade
• Various diagnoses of ADHD, ODD, intermittent explosive
disorder, selective mutism
• In early 9th grade engages in serious threatening behavior
resulting in a reevaluation report (“RR”), an independent
education evaluation (“IEE”), & revised RR concluding
emotional reactivity related to difficulty w/behavior
regulation and attention-seeking.
• Middle of 9th grade, IEP revised and changed placement to
private alternative special ed school for ED students.
• For rest of 9th grade and first few weeks of 10th grade,
private school implemented IEP including BIP & student’s
conduct and grades were exemplary.
Case Study #1
• On several weekends early in 10th grade, student broke into
school, used computers to download porn, broke windows
& locked doors, stole computer server and equipment,
tried to sell equipment to other students.
• On 10/11/06 school suspended student for 3 days &
recommended transfer to remedial disciplinary setting &
called police.
• On 10/12/06 school phoned parent to notify of MD meeting.
• On 10/17/06 student returned to school and regressed to
oppositional and disruptive behavior.
• On 10/18/06 brief MD held with LEA representative, 2
teachers from school, and parents. No documents
reviewed. Criteria used: 1) was IEP appropriate? 2) was IEP
implemented? 3) did student understand conduct was
wrong and would have consequences?
Case Study #1
• LEA found no manifestation; parents disagreed.
LEA provided parents with a notice of recommended
placement to a remedial disciplinary setting with
emotional support. On 10/25/06 parents filed for due
process hearing.
• WHAT RESULT?
Case Study #2
• 6th grader diagnosed with Asperger’s w/ significantly
impaired development in social interaction &
communication, inflexibility and rigid thinking, and
significantly restricted interests. Also has dyslexia &
dyscalculia, history of ADHD, difficulties w/self-regulation
& modulating emotional intent & affect, extremely
disordered sleep cycles, & severe anxiety & depression.
Had a history of academic failure.
• At beginning of 6th grade, school conducted an 8-week
evaluation. On 11/2/06 student was given a risk
assessment because he asked his one-on-one aide to
show him the door to the roof so he could jump off it. He
was deemed safe to return to school but district
recommended that he attend a therapeutic day school.
Case Study #2
• On 11/13/06 new IEP prepared with student continuing at
present school. Parents rejected this IEP.
• On 11/30/06 student would not leave conference room
where he had reading unless he could go home. Aide
asked principal to talk to student. He did to no avail and
left room. Student threw a chair. Principal returned,
calmed student and left room. Student still refuses to leave
room. Student tips over table. Principal returned to calm
student. Student said, “Why don’t you expel me?”
Principal said he couldn’t do that. Student grabbed
Principal’s necktie, pulling so that Principal could not
breathe and it hurt a lot. Principal pushed student away,
making him release the tie.
Case Study #2
• Prior to this day, student had not been violent towards
another person but had thrown or tipped over furniture.
• In the days leading up to this incident, increased academic
demands placed on student, increasing his frustration and
dislike of school. On 11/30/06 student had not gone to
sleep til 5:00 AM so was extraordinarily tired that day.
• When told his mother would be called, student calmed
down and went to gym.
• Student was suspended for 10 days. At parent request, MD
delayed til 12/21/06. At MD school determined behavior not
a manifestation of disability and parent disagreed.
Case Study #2
• Taking the position that student used a “weapon”, school
determined a 45-day IAES was allowed. Recommended to
send him to a private program for 45 days. Program
recommended a 22-day assessment program. Parent
rejected this, wouldn’t send son to program, and school
wouldn’t let him back in school. Student did not return to
school after 11/30/06.
• Parent filed expedited due process hearing request.
• WHAT RESULT?
Case Study #3
• 10th grader identified with specific learning disability and
ADHD. Parent stopped his meds for ADHD at end of 9th
grade because doctor moved out of town and student
didn’t seem to need it any longer for impulse control.
• Student’s 10th grade IEP provided for itinerant learning
support in an inclusive setting and 30 minutes/week of
counseling.
• On 10/5/06 another student reported student had brought a
knife on the bus. Student denied it, but when he emptied
his pockets he had a folding hunting knife with 3-inch
blade. Other students said student had made threats while
exhibiting knife, and another parent reported threatening
content on student’s Myspace page.
Case Study #3
• Parents and police were called according to policy.
• Prior to incident, student had just started counseling
sessions.
• On 10/6/06 student was suspended for 10 school days
pending possible expulsion.
• On 10/12/06, school met with student and parent to collect
information relevant to MD. Student stated he carried knife
for protection while walking in neighborhood before & after
school.
• On 10/16/06, parties agreed to postpone MD pending
completion of an emergency evaluation arranged by parent
at outpatient psychiatric facility.
Case Study #3
• On 10/20/06, IEP team including parent conducted MD. All
records were reviewed including 2-page report of
emergency evaluation that had diagnoses of PTSD, ODD, &
impulse control disorder. Team found not a manifestation
& parent disagreed. Team placed student in 45-day IAES
and amended IEP to extent of acknowledging additional
diagnoses.
• On 10/24/06, school filed request for expedited due process
hearing.
• WHAT RESULT?
References
• The Rock Solid Manifestation Determination: A Guide to Making
the Right Decision (2009). LRP Publications
– Melinda Baird Jacobs, Esq.
• Getting Manifestation Determinations Right: Practical
Strategies for Compliance. LRP Publications
Presented by Jim Walsh, Esq.
• Manifestation Determinations Done Right: Case Law Lessons
and Compliant Practices. LRP Publications
Presented by Jose Martín, Esq.
Conclusion
• KY regulations available at
http://www.lrc.ky.gov/kar/TITLE707.HTM