Manifestation Determination for IEP/504 Students, explained.

Manifestation Determination Hearing woman with head down looking at her phone

What is a Manifestation Determination Review?

“A Manifestation Determination is required by IDEA 2004. It takes place when the school district (LEA) is considering the exclusion of a student with a disability via a disciplinary change in placement such as a suspension or expulsion.”

“Help! The principal called and I have to go to a Manifestation Determination review….what do I do?” That’s a question I hear often, too often! And while I have done posts on dealing with suspensions and discipline, I have never actually done one on Manifestation Hearings. So, here goes…

Manifestation Determination Hearing
manifestation determination wording in IDEA
https://sites.ed.gov/idea/statute-chapter-33/subchapter-II/1415/k/1/E/i
Click to read it in the statute.

When do you do a Manifestation Determination Review?

Here is the snippet from IDEA Procedural Safeguards. The full booklet is below. Remember to check your State’s regulations as they may differ from IDEA.

Wait! Let’s look at that again.

Highlighting is mine. But what this means is, the school does not have to wait for the full 10-days, or whatever the threshold is, before holding a Manifestation Determination Review. Keep that in mind if you are told “Well, we have to wait for 10 days because….” No, they do not.

And here’s what I do, as an Advocate for my clients.

Ask for a Manifestation Hearing after every suspension.

Yes, even the first. I do. And I’m usually told no. But here’s why I do it.

  • As parents and advocates, we want our kids to be supported rather than punished.
  • The suspension worthy behavior tells me that something is not working with either the IEP or the Behavior Plan. And I want it fixed.
  • It creates my paper trail, should the situation deteriorate.
  • The school is now aware that I (or my client) are aware of both the regs and Procedural Safeguards. And that we want the child supported and behavior modified. Remember, there is no pedagogical argument for suspending a child. None.

This doesn’t have to be complicated. A simple email with “Dear school, I wish to request an MDR for my child for the incident of 04-15-2019. I believe that his behavior was a manifestation of his disability and the team needs to discuss this. I am available these dates and times.”

Expect them to say “No.” They usually do. I particularly like the “well, we can’t, we have to wait until…” and then I point to the Procedural Safeguards. That usually gets us a new FBA at the very least.

First steps for parents.

If you are called or emailed to attend a Manifestation Determination Review, first you need to calm down. That’s not meant to be condescending. It’s realistic advice. You have to have your feet under you and your emotions under control for this. You can bring out your inner Mama Bear, but she needs to be cool, collected and strategic.

It has a very scary name, don’t let that throw you. Also, don’t let school personnel tell you “it’s no big deal, you don’t even have to be there…”

It is a big deal. Be there. This is time-consuming but necessary. Your child is on the School to Prison pipeline if they are being suspended, and you have to turn this around. You should also read this IDEA booklet on discipline.

IDEA-discipline

Read all the documents before you sign anything.

I have had many situations where a client was suspended from school. It’s chaotic. It’s stressful. You got called away from work, or wherever you were. You’re upset and maybe embarrassed, but you have to keep calm and focused. Because in the midst of all this chaos of you coming to the school to get your child (who has just exhibited suspension-worthy behavior), I have seen school personnel stick all kinds of things under parents’ noses and just say “Oh, and here, sign this and you can take him home.”

And in some cases, the parent has signed a form agreeing to a more restrictive placement (like alt ed) or has waived their right to a Manifestation Hearing or IEP meeting to discuss. I’ll say it again–I know you’re upset, but keep your feet under you and do not sign anything without reading it.

If you have already done this, email everyone immediately. “I am sorry, but I was upset and under duress due to the situation, and I am now rescinding my signature and agreement to….(and list whatever it was that you signed). I do wish to have a Manifestation Hearing and IEP meeting for my child’s behavior incident on May 15.””

That bit of advice is the most important bit of advice I can give you. Stay calm, gather your facts and data, and treat this as a business meeting.

How to Prepare for a Manifestation Determination Hearing

Time needed: 1 day.

How to Prepare for a Manifestation Determination Hearing

  1. The first thing you want to do is gather data.

    Ask for all incident reports and files that the school has related to this incident.

  2. Know your state’s Special Education Regulations.

    Some states have variances on suspensions, expulsions and AEDY. Familiarize yourself with these before you start.

  3. Prepare your research on your child’s disability.

    What you want to gather is signs/symptoms/manifestations of your child’s disability. For example, a classic hallmark of ADHD is impulsive behavior.

  4. Gather the current IEP and behavior plan for your child

    You also want to have any recent notes or emails from teachers that may offer a window into the situation. Such as, “his aide was absent again today.”

  5. Go to your school district website and read/print their discipline policy.

    Make sure that your child was not punished more severely than his/her non-disabled peers would be in the same situation.

  6. Read your IEP Procedural Safeguards.

    You should receive a copy every year. Read them! Discipline is in there.

  7. Next, you want to prepare your worksheet.

    I have a copy of PA’s worksheet below. You can look for one on the website of your state’s Parent Training Center, or use this one.

  8. Brainstorm anything that could be relevant and bring the documentation for it.

    What I mean by this is: Many times our kids are bullied. Parents ask for help, they don’t receive. Disabled child reaches his/her breaking point, and lashes out at bully. And gets suspended. Mind you, not condoning violence. But if they were provoked, that needs to be brought up.

  9. Ask for appropriate IEP or Behavior Plan changes in writing.

    This is the time, follow up in writing if necessary. But if things need to change, now is the time to start the discussion.

Here is one to practice with.

Manifestation_Determination-worksheet-pa

When you get to your meeting, someone from your child’s school will have theirs printed out. This is what the team will go over. Make sure you have read over your state-specific policies. For example, in PA, a child with an intellectual disability cannot be suspended for even one day without a Manifestation Determination Review.

Attending a Manifestation Determination Review

Both parents should attend the Manifestation Determination Meeting if possible. The child should attend. You can also bring people who have professional knowledge of your child. It would be nice if you could get a doctor to be present, but that doesn’t often happen.

Still, you could ask your child’s therapist, wraparound behavior person or case manager if they would be willing to speak on your child’s behalf. Having an advocate who has been there before is always nice. And I would definitely find an attorney if the school plans on pressing charges.

Someone on the team will start going through the questions on the form. The team answers and discusses them. At the Manifestation Review, present your factual information in a calm and professional manner. It is been my experience that it is not as hard to get the team to agree that it was a manifestation of the disability. But it is very difficult to get the team (made up mostly of school personnel) to agree that the IEP was inadequate or not being followed.

(In other words, the school’s fault.) And that is often the case!

I have had many clients with a 1:1 for behaviors and their behavior occurred while the 1:1 was at lunch, or called in sick, or whatever. Depending on your individual situation, you will have to determine if that is a battle you wish to fight.

Options during the Manifestation Determination Review

  • The team determines it was a manifestation of disability—> the team should go right into reviewing the IEP and behavior plan. Or schedule a time in the very near future to do so.
  • If the child does not have a behavior plan, then an FBA is scheduled.
  • The team decides it was NOT a manifestation of the disability, and you disagree, ask them what the appeals process is.
  • Make sure you note on the form that you disagree with this decision.

Gaslighting at Manifestation Determination Meeting

I have a post about gaslighting and IEP meetings. Honestly, I have been gaslighted at more Manifestation Hearings than any other type of meeting. There was a point in my career where I was sometimes attending 2 or 3 of these in a day, so I knew what to expect. And still, the school board members would look directly at me and say, “No, you are wrong.”

It was like talking to a rock. Say your peace. But if you are not getting anywhere, follow up in writing and contact your state’s Protection and Advocacy Agency. You can also ask them to show you what they are telling you.

Again, stay calm. This is one of the most stressful things a parent will have to do. I personally think they are much more stressful than IEP meetings. This is also another reminder to keep great records on your child and do everything in writing. If your child has been having behaviors and you’ve been asking for an FBA and have been turned down, this would be a great time to have several emails to show them and remind them that you have been trying to solve this.

Special-Education-Procedural-Safeguards

IDEA-Manifestation Determination

Here is the direct wording from IDEA. I have added my commentary in italics, so you know what is mine and what is IDEA’s. This is so you pay close attention to those sentences and phrases.

Sec. 300.530 Authority of school personnel

Statute/Regs Main » Regulations » Part B » Subpart E » Section 300.530

300.530 Authority of school personnel.

(a) Case-by-case determination. School personnel may consider any unique circumstances on a case-by-case basis when determining whether a change in placement, consistent with the other requirements of this section, is appropriate for a child with a disability who violates a code of student conduct.

(b) General.

(1) 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).

(2) After a child with a disability has been removed from his or her current placement for 10 school days in the same school year, during any subsequent days of removal the public agency must provide services to the extent required under paragraph (d) of this section.

(c) Additional authority. For disciplinary changes in placement that would exceed 10 consecutive school days, if the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child’s disability pursuant to paragraph (e) of this section, school personnel may apply the relevant disciplinary procedures to children with disabilities in the same manner and for the same duration as the procedures would be applied to children without disabilities, except as provided in paragraph (d) of this section.

(d) Services.

(1) A child with a disability who is removed from the child’s current placement pursuant to paragraphs (c), or (g) of this section must—

(i) Continue to receive educational services, as provided in §300.101(a), so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP; and

(ii) Receive, as appropriate, a functional behavioral assessment, and behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur.

(2) The services required by paragraph (d)(1), (d)(3), (d)(4), and (d)(5) of this section may be provided in an interim alternative educational setting.

(3) A public agency is only required to provide services during periods of removal to a child with a disability who has been removed from his or her current placement for 10 school days or less in that school year, if it provides services to a child without disabilities who is similarly removed.

(4) After a child with a disability has been removed from his or her current placement for 10 school days in the same school year, if the current removal is for not more than 10 consecutive school days and is not a change of placement under §300.536, school personnel, in consultation with at least one of the child’s teachers, determine the extent to which services are needed, as provided in §300.101(a), so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.

(5) If the removal is a change of placement under §300.536, the child’s IEP Team determines appropriate services under paragraph (d)(1) of this section.

(e) Manifestation determination.

(1) 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, the LEA, the parent, and relevant members of the child’s IEP Team (as determined by the parent and the LEA) must review all relevant information in the student’s file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents to determine—

(i) If the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or

(ii) If the conduct in question was the direct result of the LEA’s failure to implement the IEP.

(2) The conduct must be determined to be a manifestation of the child’s disability if the LEA, the parent, and relevant members of the child’s IEP Team determine that a condition in either paragraph (e)(1)(i) or (1)(ii) of this section was met.

(3) If the LEA, the parent, and relevant members of the child’s IEP Team determine the condition described in paragraph (e)(1)(ii) of this section was met, the LEA must take immediate steps to remedy those deficiencies.(f) Determination that behavior was a manifestation. If the LEA, the parent, and relevant members of the IEP Team make the determination that the conduct was a manifestation of the child’s disability, the IEP Team must—(1) Either—

(i) Conduct a functional behavioral assessment, unless the LEA had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the child; or

ii) If a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior; and

(2) Except as provided in paragraph (g) of this section, return the child to the placement from which the child was removed, unless the parent and the LEA agree to a change of placement as part of the modification of the behavioral intervention plan.

(g) Special circumstances. School personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child’s disability, 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.

(h) Notification. On the date on which the decision is made to make a removal that constitutes a change of placement of a child with a disability because of a violation of a code of student conduct, the LEA must notify the parents of that decision, and provide the parents the procedural safeguards notice described in §300.504.

(i) Definitions. For purposes of this section, the following definitions apply:(1) 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)).

(2) 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.

(3) Serious bodily injury has the meaning given the term “serious bodily injury” under paragraph (3) of subsection (h) of section 1365 of title 18, United States Code.

(4) Weapon has the meaning given the term “dangerous weapon” under paragraph (2) of the first subsection (g) of section 930 of title 18, United States Code.


Manifestation Determination Hearing woman with head down looking at her phone

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