manifestation determination: requirements and procedures, and suggested activities

Manifestation Determination:

Requirements and Procedures, and Suggested Activities

• Understand the basic principles of Individuals with Disabilities Education Act (IDEA) Manifestation Determination Review (MDR) requirements

IDEIA 2004 [§300.530(e)]

• Be able to apply the basic rules of IDEA MDR requirements

2013 Office of Instructional Enhancement and Internal Operations/Office of Special Education 2


Overview

• Authority of school personnel

• General Rules of Discipline

• Manifestation determination process

• FBA and BIP

• Mechanisms for documentation

• A MDR is mandated when considering long-term disciplinary removal of students with disabilities (SWD) – Requires schools to treat SWD differently than

those without disabilities– Has evolved to ensure

• Safe and orderly schools• Ongoing and active participation of parents and

families• Ability of SWD to access FAPE


• Honig v. Doe (1988) – unilateral expulsion of SWD constitute a change of placement & are not allowed and is subject to IDEA procedural requirements (began as Doe v. Mather, 1986)

• S-1 v. Turlington (1981) – knowledgeable individuals must make determination of the relationship of a SWD’s misconduct to his/her disability

• School Board of County of Prince William, VA v. Malone (1985) – special education services cannot be discontinued as a result of an expulsion/suspension

• 16 published MDR decisions 1980-1997 – 63% no relationship



School personnel may remove a child to an appropriate interim alternative educational setting (IAES), another setting, or suspension for not more than 10 school days in a row—to the extent those alternatives are applied to children without disabilities. You may hear this referred to as “the 10-day rule.”

General Authority of School Personnel

To further clarify, let's ask a few questions.


Frequently Asked Questions

1) Where do school personnel have the authority to remove a child? (appropriate IAES, another setting, or suspension)

2) Another setting from what? (The child's current placement) For how long? (Not more than 10 consecutive school days, to the extent those alternatives are applied to children without disabilities)

3) Is Day 10 counted in that length of time? (Yes)

4) How does disciplining children without disabilities relate to this provision? (The alternatives mentioned by IDEA—IAES, another setting, suspension—may only be applied to children with disabilities to the extent those disciplinary actions are applied to children without disabilities.)



Does the student continue to receive special education services during the time of removal?

It's important to know that schools do not have to provide students with disabilities with special education services during a removal of up to 10 school days in one school year—as long as they also do not provide educational services to children without disabilities who are similarly removed. [§300.530(d)(3)]



Additional Violations. What if the child violates a code of conduct more than one time in the same school year? Can school personnel remove that child again for up to and including 10 school days in a row?

Yes—and for each separate incident of student misconduct— under two conditions.

Those conditions are:

1) Additional removals from the current educational placement may occur as long as they are for not more than 10 school days in a row in a school year and they do not constitute a“change of placement” in the disciplinary context under §300.536. [§300.530(b)(1)]

We will talk about “Change in Placement” in a minute.




What's a Change of Placement?

A change of placement occurs if:

1)the removal is for more than 10 consecutive school days; or

1)the child has been subjected to a series of removals that constitute a pattern.


Factors to be considered in determining if the series of removals constitutes a pattern

IDEA states that a pattern would exist— (§300.536)

1) when the series of removals total more than 10 school days in a school year;2) when the child's behavior is substantially similar to the child's behavior in previous incidents that resulted in the series of removals; and3) when additional factors exist such as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another.



The school system determines on a case-by-case basis whether a pattern of removals constitutes a change of placement.

This determination is subject to review through due process and judicial proceedings.

Let's look at two illustrations



Case 1

If a child with a disability is suspended from school for 6 days in October and then another 3 days in February and then 1 day in May, does that constitute a pattern of removals that amount to a change of placement?

(No, that's only 10 school days total. IDEA states that a pattern is “a series of removals that total more than 10 school days in a school year.”) §300.536(a)(2)(i)



1—Two separate incidents of throwing food at children in the cafeteria, each time resulting in a suspension of one day in September and October.

2—Pulling the fire alarm in November. A five-day suspension.3—Fighting in class in December. Two days removal.4—Setting off the sprinkler system in the school with a lighter in

February. Two days removal.

Case 2

How about this situation with a child with a disability named Robert?



Could the school system determine that Robert's removals constitute a pattern and, thus, a change of placement? - Yes

A pattern is “a series of removals that total more than 10 school days in a school year.” In this case, Robert has been removed from his current placement for a total of 11 days. School systems cannot use repeated short-term removals as a way of avoiding the Act's change in placement provisions.

§300.536(a)(2)(i)



Therefore, the school system would need to consider whether this series of removals constitutes a pattern and, thus, a change of placement, including considering:

(a)whether Robert's behavior was substantially similar to that of previous incidents, and (b)any additional factors or relevant information regarding Robert's behaviors, including, where appropriate, any information in his IEP.


In-school suspensions do not count as aday of suspension if the student is:• afforded the opportunity to progress in the

general education curriculum• provided his/her special education and related

services• allowed to participate with nondisabled peers

to the same extent as in the regular placement

2012 - 2013 Office of Instructional Enhancement and Internal Operations/Office of Special Education 17

• “The length of removal, the total time of removal, and the proximity of removals to each other may all affect whether a disciplinary action is, upon review, determined to be a change of placement.”

Kubick, Jr., 2010

• What can tools can a district use to assist in making decisions about a pattern of removals?


• Always give parents notice of procedural safeguards.

• All students are entitled to certain rights.• Agreement of parties supersedes rules.• Students with disabilities are treated like

all other children until the end of the tenth day of suspension.

• Always take into consideration how many days the student has been removed previously.


• Document in written form all discussions related to discipline as well as all disciplinary actions taken.

• Ensure school personnel evaluate the effectiveness of disciplinary policies and procedures and make changes and adjustments as needed.


• Know which students are receiving special education services.

• Know which students have Section 504 plans.• Know which students are in the pipeline for

evaluation for possible IDEA eligibility.• Keep track of days of removal.• Include brief notes of what happened.• Determine who will do what.• Determine where records will be kept.


• Be mindful of the approaching 10 day threshold as components of an MDR is likely to include completion of a current functional behavioral assessment (FBI) and development of a behavior intervention plan (BIP).

• An FBA is difficult, if not impossible, to complete if the student is outside of the educational setting.

2013-2014 Office of Instructional Enhancement and Internal Operations/Office of Special Education 22

23

Discipline Dispositions Chart Student: _____________________________ Grade:_______________________ School:_______________________________ School Term:____________ _____

Infraction Date

Description of

Infraction

AdministrativeDisposition

# of Days Suspended

ISS/OSS

Cumulative Days of ISS

and/or OSS

Proximity of Referrals

(days, weeks, months

since last referral)

Tier

PlacementGeneral

(Education)

1 2 3

Recommendation

1. Conduct TST/IEP Meeting to Discuss student behavior2. Justify reason for not conducting a TST/IEP meeting


Authority In Special Circumstances

Definition of Key Terms

1)“Dangerous weapon” is defined in 18 U.S.C. 930(g)(2) as follows:

- means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 ½ inches in length. (71 Fed. Reg. 46723)



• carries a weapon to or possesses a weapon at school, on school premises, or at a school function;

• knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, at school, on school premises, or at a school function; or

• 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 educational agency (SEA)

or a local educational agency (LEA). [§300.530(g)]In any of these circumstances, 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 is determined to be a manifestation of the child's disability.


2) Controlled substance means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)).

3) Illegal drug means a controlled substance; but does not include a controlled substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act or under any other provision of Federal law.



4) Serious Bodily Injury means bodily injury that involves—

1. A substantial risk of death;2. Extreme physical pain;3. Protracted and obvious disfigurement; or4. Protracted loss or impairment of the function of a bodily member, organ, or mental faculty. (71 Fed. Reg. 46723)




Other provisions of IDEA's discipline procedures apply under special circumstances

•conducting the manifestation determination under §300.530(e);•notifying parents under §300.530(h); and•determining the extent of services that must be provided to the child under §300.530(d)(1).

Mississippi's Response to SWD Discipline Issues

Establish Positive Behavior Supports (PBS)While the focus of RtI is on intervening with students who have not yet been identified as a child with a disability, the benefits to SWD are increased when the focus is school-wide.

Positive reform efforts achieved through the implementation of Mississippi's RtI process affects all students, not just the general education students.

There is no way to separate the benefits to SWD when school-wide positive behavior efforts are implemented for all students.

A plan for students with disabilities and eligible young children who require specific intervention(s) to address behavior that interferes with learning


• All students should be disciplined the same, unless an alternate discipline plan is included in the student's IEP or 504 plan.

• Written notice followed by a formal hearing is required for long-term suspensions.

• Remember a new MDR must be held for each subsequent incident once the 10 days has been reached in a school year, so prevention is an excellent strategy.


Challenging behaviors must be addressed in the IEP, regardless of the student's disability category (i.e., not just for students labeled EmD) –

•Present Level of Performance

•Accommodations and Modifications

•Related Service

•Short Term Objectives


• Develop and consistently implement a detailed Behavior Intervention Plan (BIP) based on a Functional Behavior Assessment (FBA), regardless of student's disability category.

• Develop and consistently implement personnel policies, discipline policies and code of student conduct policies and procedures against bullying or harassing behavior.



DISCIPLINE: STUDENTS WITH DISABILITIESRemovalsIn-School Suspension (ISS)1. A student with disabilities should not be assigned to ISS for more than three (3) consecutive days. School administrators mustensure Exceptional Education Services are provided daily to all students with disabilities assigned to ISS.

2. Following two (2) incidents of behavior(s) that result in assignment to ISS, the IEP Committee must review the IEP and develop abehavior plan to address the student‘s behavior subject to the disciplinary action or if a behavior plan is in place, the behavior planmust be reviewed/revised to address the specific behavior.


Removal of Ten (10) Days or Less Per Incident

School personnel may consider any unique circumstances on a case-by-case basis when deciding to order a change in placement for a child with a disability who violates the code of student conduct.

A change in placement occurs when a series of removals are made that constitute a pattern due to the child being removed for more than ten (10) schools days in a school year, and because of factors such as length of each removal, the total amount of time the child is removed, and the proximity of the removals to one another.


School personnel may order the removal of a child for not more than ten (10) consecutive schools days* to the extent that such removals would be applied to children without a disability for the same offense or when the child’s behavior is deemed to be dangerous behavior**.

Additional removals of not more than ten (10) consecutive school days in that same school year for separate incidents of misconduct may be ordered as long as those removals do not constitute a change in placement.

*School day is defined as any day, including a partial day that children are in attendance at school for instructional purposes. This term has the same meaning for all children in school, including children with and without disabilities.

**Dangerous behavior is defined as behavior of a student that poses a threat of imminent, serious physical injury to the student or others, or behavior that results in serious physical injury to the student or others.


Services must be provided during such removals as follows:A. If a child is removed for more than ten (10) consecutive school days for a violation of school rules, services must be providedfollowing day ten (10) of the removal. Services are not required for removals of less than ten (10) cumulative days;

B. After a child has been removed from his or her current placement for more than ten (10) cumulative school days in the same schoolyear, during any subsequent days of removal, the local school district must provide services;


C. In any case where a child is removed for a violation of school rules for more than ten (10) consecutive school days or has beenremoved for more than ten (10) cumulative school days, and such removal constitutes a change in placement, services mustbe provided. After the child has been suspended for a total of twenty (20) days for school rule violations, the school will provideservices within the school district, unless the child represents a danger to himself or others; and


D. Services will be provided to the extent necessary to enable the child to appropriately progress in the general curriculum andappropriately advance toward achieving the goals set out in the child’s IEP. School personnel, in consultation with the child’s special education teacher, will determine the extent of services necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set in the child’s IEP. Schools must provide all services that can be reasonably provided outside the school setting.


Using Available Information to Make Informed Decisions

Regarding the Manifestation Determination

• The MDR Team must meet within 10 days from the decision of removal to an interim alternative education setting (IAES)

• Membership of review team– Streamlined to district representative, parent,

and “relevant members” of the IEP team• Other individuals with unique insights into the student

or the incident of misconduct

– No guidance is provided as to who these relevant individuals shall be


• The review team must review any relevant information to determine:– If the conduct question was caused by, or had a direct

and substantial relationship to the student’s disability,– If the conduct in question was the direct result of the

school’s failure to implement the IEP[§300.530(e)(1(ii)]

• If such a finding is made, the regulations require the school to take immediate steps to remedy those deficiencies. [§300.530(e)(3)]



Manifestation Determination

To make these determinations, the group will review:1. Student's IEP2. Teacher observations3. Relevant information provided by the parents

Note: No guidance is provided as to how these determinations will be completed or the relevant information that is to be reviewed

The link between the child's conduct violation and his or her disability is important. The Federal Register - (71 Fed. Reg. 46720)

We believe the Act recognizes that a child with a disability may display disruptive behaviors characteristic of the child's disability and the child should not be punished for behaviors that are a result of the child's disability.

• There is little guidance from theory, research, and legal issues.

• Examine:– Student’s file– Observations of student– Parent information– Circumstances of the incident and prior

incidents (if any)


• What to look for:– Patterns of attendance, discipline, grades– Universal screening data (behavior and academic)– Other behavior data (logs, graphs, etc.)– FBA – IEP

• Eligibility category• Appropriate to address needs• Documentation of services• Contains behavioral goals and a BIP


• Was the IEP legally developed?• Want the IEP implemented as written?• Have the services been provided consistent with the

IEP?• Is the student making educational progress?• Did the IEP address all of the student’s needs?• Are behavioral goals and objectives included in the IEP?• Was there a developing pattern of conduct that should

have been detected and addressed?• Has the IEP been modified over time to reflect changes

in the student?


• Sources:– Teachers, staff, parents, student report (e.g., ratings)

• Can be based upon observations – Previous recent observation data– Following the incident– Is behavior similar to that of others with a similar disability?

• Recent changes in mood, behavior, frustration, etc.• Understanding of consequences• Ability to control behavior

– Previous socially acceptable behavior examples – Previous self-control examples


• Are the student’s thought processes logical?• Did the student understand consequences for violation?• Did the student know the behavior was inappropriate?• Does the student know and understand the district code of

conduct?• Has the student demonstrated the ability to follow school

rules?• Has the student previously expressed that similar behavior

is wrong?• Has the student expressed an understanding of

consequences of behavior?


• Has the student previously followed school rules?• What features of disability have been exhibited in

the past?• What situations is the student able to control

behavior?• Are there factors that explain the misconduct?• Was the behavior premeditated?• Would similarly situated students without

disabilities react in a similar manner?


• Recent changes

• Medications

• Family circumstances/environment

• Outside evaluations– Diagnosis and hospitalizations

• Behavior in home environment

• Consider cultural differences


• Antecedents, behavior, consequences• Relationship to eligibility category and/or existing or

suspected diagnosis• Individual involved in incident • History surrounding specifics within the incident

– Behavior

– Individuals

– Environment

– Other recent events

• Is there evidence that previous efforts have been made to address the behavior?


• If there is due process, documentation will assist the district to be defensible

• Many districts may wish to use a form to guide the review team through the process.

• http://www.ode.state.or.us/pubs/forms/schoolage/1279-p.pdf • http://www.phila.k12.pa.us/offices/specialedcspd/forms/

manif_determ_22403.pdf



Protections for students not yet determined eligible for special education and related servicesCriteria for Basis of Knowledge

IDEA is specific about what qualifies as “basis of knowledge.” It states the school system can be deemed to have such knowledge if the statement below apply before the behavior occurred: §300.534(b)

(1)The parent of the child expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services;(2) The parent of the child requested an evaluation of the child; or(3) The teacher of the child, or other personnel of the LEA, expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education of the agency or to other supervisory personnel of the agency.


Protections for students not yet determined eligible for special education and related servicesThe Child Find Mechanism

These provisions presume that, if individuals express concerns to other individuals (especially those in supervisory positions within the school system) about a child's behavior or possible need for special education and related services, the school has an affirmative obligation to act upon those concerns and investigate the child's need for special education and related services.

Federal Register - (71 Fed. Reg. 46727)…the child find and special education referral system is an important function of schools... School personnel should refer children for evaluation through the school referral system when the child's behavior or performance indicates that they may have a disability covered under the Act…


Review Questions:

A few questions – 1.Under what circumstances must a manifestation determination be conducted? (Whenever a decision is made to change the placement of a child with a disability because he or she has violated a code of student conduct.) 2.What's the time frame for conducting a manifestation determination? (The manifestation determination must occur within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct.)3.Who is involved in conducting a manifestation determination? (The LEA, parent, and relevant members of the child's IEP Team.)4.Who decides who's a “relevant member” of the Team? (The parent and the school.)



If the Determination is Yes - two scenarios under which the manifestation determination would be “yes”. The incident:

1.was a manifestation of the child's disability, or2.the direct result of the LEA's failure to implement the child's IEP.

If either condition is met, the student's conduct must be determined to be a manifestation of his or her disability.

[§300.530(e)(2)-(3) and (f)]



“Yes,” for failure to implement the IEP

If the group determines that the child's misconduct was the direct result of the school's failure to implement the child's IEP, “the school must take immediate steps to remedy those deficiencies.”

The Federal Register explains, if such a determination is made:

The school has an affirmative obligation to take immediate steps to ensure that all services set forth in the child's IEP are provided, consistent with the child's needs as identified in the IEP.

(71 Fed. Reg. 46721)



What about placement?

Unless the behavior involved one of the special circumstances—weapons, drugs, or serious bodily injury—the child would be returned to the placement from which he or she was removed as part of the disciplinary action.

However, the parent and school can agree to a change of placement as part of the modification of the behavioral intervention plan.

[§300.530(f)(2)]



“Yes,” for conduct directly related to disability

If the group finds that the child's misconduct had a direct and substantial relationship to his or her disability, then the group must also reach a manifestation determination of “yes.”

Such a determination carries with it two immediate considerations:1.Functional behavioral assessment (FBA)—Has the child had one? Does one need to be conducted?

2.Behavioral intervention plan (BIP)—Does the child have one? If so, does it need to be reviewed and revised? Or if the child does not have one, does one need to be written? [§300.530(f)]



FBA focus

1.Identifying the function or purpose behind a child's behavior. Knowing why a child misbehaves is directly helpful to the IEP Team in developing a BIP that will reduce or eliminate the misbehavior.

2.The IEP team must also write a BIP for the student, unless one already exists. If a plan does already exist, then the IEP team will need to review and modify it, as necessary, to address the behavior.

Conduct Functional Behavioral Assessment (FBA) within 10 days:

• For suspensions of more than 10 days• When placed in an interim alternative

educational setting (IAES)• If a change of placement occurs


FBA provides the process for developing a

useful understanding of how behavior relates to

the environment. It incorporates the following:• Interviews• Observations• Reports from teachers and other professionals• Record reviews


• Behavior Supports

• Proactive Strategies

• Positive Interventions


A positive behavior support plan must:

• Be developed by the IEP Committee• Be based on an FBA• Become part of the individual eligible

young child's or student's IEP


• Positive behavior support programs and plans must be be based on a Functional Behavior Assessment (FBA) and must utilize positive behavior support techniques.

• When an intervention is needed to address problem behavior, the types of intervention chosen for a particular student or eligible young child must be the least intrusive necessary.

§14.133(a), §711.46(a)


Such plans must include methods that utilize positive reinforcement and other positive techniques to shape a student's behavior, ranging from the use of positive verbal statements as a reward for good behavior to specific tangible rewards.




If the Determination is “No.”

1.Then the student's behavior was not caused by or did not have a direct and substantial relationship to the their disability;

2.the behavior was not the direct result of the school's failure to implement the IEP.

In either case of “no,” school personnel have the authority to apply the relevant disciplinary procedures to the child with disabilities in the same manner and for the same duration as theprocedures would be applied to a child without disabilities.

However, the student is to continue to receive all other services outline in the IEP.

§300.530(d)


After a student with a disability has been removed from their current placement for 10 school days in the same school year, the school system must provide services to the student during any subsequent days of removal. §300.530(d)


• Punishment alone generally will not solve the problem.

• Develop consequences for unacceptable behavior.

• Allow for individual needs and differences.

• Make the punishment fit the code of conduct violation.


Additional Aspects

LEAs may order a student with disabilities be placed in an interim alternative educational setting (IAES) for no more than 45 school days if the student is involved in matters involving weapons, drugs or serious bodily injury regardless of relationship to disability.


• Hearing officer decides if behavior is dangerous to self or others.

• IEP Committee determines the IAES placement and services.


Case Examples


• Who should attend the MDR meeting?– Is there a need for an additional individual(s) to assist

the team?

• What types of information should they consider in the child’s file?

• What types of observation data is needed?

• What should be examined in the IEP?

• What information should the team encourage the parents to share with the team?

• What else should be considered?


Josey is an 8 year old first grader in special education with a severe communication disorder that prevents her from effectively interacting with her peers. She has few friends and often plays by herself at recess. Sometimes the other children tease her. One day in the bathroom, she pushed another child who fell and hit her head on the sink. The girls knocked two of her teeth out and severely cut her lip. The other children said Josey was angry and meant to push the other child.

The district has decided that Josey will be placed at the alternative school for 45 days.


Mary is a eighth grader who is served in special education under a ruling of SLD. She was diagnosed with ADHD when she was 7 years old. She was walking to the bus when several other students were standing close by. One of the students pointed and the group laughed. Right at that moment a fifth grade boy walked by. Other students reported Mary pushed the boy. The next day the younger student asked to see the school nurse to get a band aid for his shoulder. He told the nurse that a girl has injured him with a pencil after school. Upon investigation, the district found that Mary confessed to hitting the boy with a pencil. She said she did not know why she did it, that she did not know the boy, and he did not do anything to her.

The district has decided to place Mary at the Alternative School for 20 days.


Austin is a 12 year old diagnosed with bipolar disorder. Lately he has been not sleeping and seems to be very active. He was caught running through the halls of the schools with a can of spray paint. Later it was discovered that he had painted a four letter word on his teacher’s classroom door.

The district has decided to place him at the alternative school for the rest of the year.


Sam is a child diagnosed with Asperger’s. He takes a number of medications and the doctor has recently changed his medication. One day he suddenly became enrage in his classroom and threatened his teacher and another student with his father’s gun, tore a television off the wall, and swept all the materials off the teachers desk.

The district has a zero tolerance policy and has decided to place Sam at the alternative school for one year.


Meloy, L.L.. (n.d.). Minimalist approach to manifestation determination: Possible compromise of due process rights. In Research-based practice . Retrieved June 3, 2013, from http://www.nasponline.org/publications/cq/36/6/manifdeter.aspx.

Kubick, Jr., R.J. (2010). Best practices in making manifestation determinations. In A. Thomas & J. Grimes (Eds.), Best Practices in School Psychology V, vol. 3 (pp. 827-837).


Valecia Davis

[email protected]

Desma McElveen

[email protected]

Tanya Bradley

[email protected]

Office of Special Education

Division of Technical Assistance

(601) 359-3498

March 2012 Office of Instructional Enhancement and Internal Operations/Office of Special Education 80

manifestation determination: requirements and procedures, and suggested activities

Documents