Manifestation Determinations Josh Salsburey Esq Sturgill Turner Barker

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. Frohoff 2@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 KAR 1: 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 and. Drug 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 KAR 1: 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 11 th 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 1 st grade • Various diagnoses of ADHD, ODD, intermittent explosive disorder, selective mutism • In early 9 th 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 9 th grade, IEP revised and changed placement to private alternative special ed school for ED students. • For rest of 9 th grade and first few weeks of 10 th grade, private school implemented IEP including BIP & student’s conduct and grades were exemplary.

Case Study #1 • On several weekends early in 10 th 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 • 6 th 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 6 th 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 • 10 th grader identified with specific learning disability and ADHD. Parent stopped his meds for ADHD at end of 9 th grade because doctor moved out of town and student didn’t seem to need it any longer for impulse control. • Student’s 10 th 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/TITLE 707. HTM