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Last week, TER writer and educator Paula Glass wrote an article about how daunting a Manifestation Determination can be from an educator's standpoint. The consequences of such a meeting weigh heavily on everyone involved, from the student all the way back to the educator in the classroom. For that reason, it's extremely important that when you get in a situation where you get called upon to participate, whether you're the parent, the administrator, the teacher, or even the student, you should know what to expect during a manifestation review, how to prepare, your rights, and the possible consequences of the meeting.
What Is It?
First of all, if you've never had Manifestation Determination meeting, you probably want to know what it is and why such a meeting even takes place. Manifestation Determination meetings come into play with behaviors subject to disciplinary action resulting in change in placement, removal for more than 10 consecutive days, or when a pattern of behaviors resulting in cumulative removals exceed 10 days within the school year. Usually, in-school suspensions do not count toward those 10 days as long as the child continues to receive the services specified on the IEP and continues to participate with non-disable children as much as they would in their current placement. The purpose of a Manifestation Determination is to make sure students with disabilities do not receive discriminatory disciplinary actions for behaviors that result from their disabilities.
How Do You Prepare?
* Know that you should track behaviors carefully throughout the school year. Look for patterns and stay proactive. Make sure you're doing everything you can to stay on top of the behaviors. Document everything you're doing. Best practice for behavior plans is to review monthly and update as needed. You will need all of your data if you do have a Manifestation Meeting and you'll certainly need it when you have your IEP meetings, so it's best to have it anyway. You will also need data about the child's disciplinary records for the current school year and the infraction that led to the Manifestation Meeting.
* If you notice you're getting close to those 10 days, flag that child's record. Within 10 school days of a decision to change a student's placement as a result of an infraction to the school's code of conduct, a Manifestation Determination must occur. If the student is placed in an alternative educational setting pending the manifestation determination review, the setting must provide services that match the child's IEP. The need to have the meeting quickly is so important that you may conduct manifestation reviews conducted on as little as 24 hours notice to the parents.
Who Should Attend?
The parent/guardian, local education agency (LEA), and relevant members of the IEP team as determined by the parent and LEA should all attend the meeting. It's usually recommended that a regular education teacher involved with the student (one who has regular knowledge of the student) also attend the meeting. The team must review all relevant information in the child’s file including the student’s IEP, any teacher observations, and any relevant information provided by the parent/guardian in making its determination.
The Big Questions
When conducting the manifestation review, the team must determine:
1. if the conduct in question was caused by, or had a direct and substantial relationship to, the student’s disability; or
2. if the conduct in question was the direct result of the local education agency’s failure to carry out the IEP.
These two questions can sometimes be tricky to answer, especially the first one. I have attended meetings where the first question causes some debate. The key to answering the question about whether the conduct in question had a direct and substantial relationship to the student's disability is to look across time and settings and see whether the student has controlled his or her conduct in similar situations or settings in the past.
If the team determines that either of those two conditions are true, than the conduct is a manifestation of the disability.
The Consequences of the Meeting
* If the conduct is not determined to be a manifestation of the disability, the school may carry on with the disciplinary procedures outlined just as they would for a non-disabled child with the caveat that services get during the period of removal. During this time, the team should consider reviewing and modifying any behavior plan in place to address the conduct to prevent re-occurrence. Removal or suspension to an alternative educational setting in most cases should be considered a change of placement. The IEP team would determine the interim alternative setting for services.
* If the conduct is determined to be a manifestation of the disability, the school should address the behavior through a functional behavior assessment (FBA) if one has not already been completed that examines similar conduct. In other words, even if a behavior plan already exists, if that behavior plan did not include a similar behavior, the school then must complete a functional behavior assessment (FBA) that examines the current behavior in order to address the behavior in question. If no behavior plan exists, then the school must develop one to address the behavior. Unless the parent and school agree to a change of placement as part of the modifications of the behavior intervention plan and/or Least Restrictive Environment (LRE), the student should return to school.
* There are special circumstances where school personnel may remove a student to an interim setting (for no more than 45 school days) without regard to whether the determination was that the behavior is a manifestation of the child's disability by IDEA law. This occurs if the child:
1. Carries a weapon to or possesses a weapon at school, on school premises, or to or at a school function under the jurisdiction of an SEA or an LEA;
2. 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 an SEA or an LEA; or
3. Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA.
Your Rights (Filing Appeals)
If the parents desire to challenge a finding of no manifestation, they may request an expedited due process hearing. The hearing must be conducted within 20 days and a decision rendered within 10 school days of the hearing. The student remains in the disciplinary placement pending the outcome of the expedited hearing. Stay put, in disciplinary matters, is the interim alternative setting determined by the school, not the placement from which the student originally got removed.
If the school desires to challenge a finding of no manifestation, it may also request an expedited due process hearing. The school must show that continuing the child in his or her placement is substantially likely to result in injury to the child or others. If the school prevails, the due process hearing officer may order the child to remain in the interim alternative setting for not more than 45 school days. The parties could agree on a longer placement upon expiration of the 45 school day placement order.
If private security personnel and school official charge a student and pursue prosecution, the school should contact law enforcement and conduct manifestation within 10 days.
Before a school official filing a court petition in juvenile court against a student with a disability, the school should make sure a manifestation review gets conducted.
Prior to conducting a student disciplinary hearing for a student with a disability, it is advisable that the special education manifestation determination review occur.
If a referral for special education services gets made after a behavioral incident, the school should expedite evaluations, but whatever placement in effect prior to the services remain in effect.
If transportation is part of the IEP, bus suspension counts toward the 10 days, unless the LEA provides alternative transportation. If transportation is not part of the IEP, it does not count toward the 10 days and the child must provide his or her own transportation.
For more information about Manifestation Determination and the law behind it, look at section 300.530 of IDEA law.