Chapter 8.5: Manifestation Determination

    State Performance Plan (SPP):

    (See Overview in the Introduction for more information on the SPP.)

    SPP 4:
    Rates of suspension/expulsion:
    A: Percent of districts identified by the State as having a significant discrepancy in the rate of suspensions and expulsions of children with disabilities for greater than 10 days in a school year; and
    B: Percent of districts identified by the State as having a significant discrepancy in the rates of suspensions and expulsions of greater than 10 days in a school year of children with disabilities by race and ethnicity. (20.U.S.C. 1416 (a)(3)(A); 1412(a)(22)) (Significant discrepancies in discipline rates are those in which the rates of suspensions and expulsions for children with disabilities exceed those for typical students by at least 1 percent.)

    Intent:

    To determine whether child's behavior that resulted in disciplinary actions was caused by or had a direct and substantial relationship to the child's disability.

    Timelines:

    The day the decision is made to suspend or expel
    Notify child of the intent to suspend or expel; notify the parents through prior written notice and provide procedural safeguards notice, Whose IDEA Is This?, and send the parents an invitation to the manifestation determination meeting.

    Within 10 school days of any decision to change the placement of a child with a disability due to a violaltion of a code of student conduct
    Relevant members of the child's individualized education program (IEP) team and other qualified personnel must conduct a manifestation determination review.

    Within 10 school days of the manifestation determination
    If the behavior is a manifestation of the child's disability, the IEP team meets to either:

    • Conduct a functional behavior assessment (FBA) and implement a behavior intervention plan (BIP); or
    • Review the existing FBA and BIP and modify as needed to address the behavior.

    REQUIREMENT

    3301-51-05
    (K) Conflict resolution
    (20) Authority of school personnel

    (e) Manifestation determination

    (i) Within ten 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 school district, the parent, and relevant members of the child's IEP team (as determined by the parent and the school district) must review all relevant information in the child's file, including the child's IEP, any teacher observations, and any relevant information provided by the parents to determine:

    (a) If the conduct in question was caused by, or had a direct and substantial relationship to the child's disability; or
    (b) If the conduct in question was the direct result of the school district's failure to implement the IEP.

    (ii) The conduct must be determined to be a manifestation of the child's disability if the school district, the parent, and relevant members of the child's IEP team determine that a condition in either paragraph (K)(20)(e)(i)(b) or (K)(20)(e)(i)(b) of this rule was met.

    GUIDANCE

    Manifestation determination review

    School personnel:

    • And the parents determine the relevant members of the IEP team to conduct the manifestation review. Relevant members may include the parents, principal, intervention specialist, regular educator, related service personnel, someone with authority to make decisions, the child, when appropriate, and other qualified personnel.
    • Sends the parents an invitation to the meeting to conduct a manifestation determination along with a copy of the procedural safeguards notice, Whose IDEA Is This?. This notice should be sent with the intent to suspend or expel notice so the required timelines for conducting the review are met.
    • Arrange the team meeting (at a mutually agreed upon time and place) and notify team members of the time and location of the meeting.
    • Identify and collect all relevant information in the child’s file needed to conduct the review, including but not limited to:
      • The child's IEP;
      • Any teacher’s observations;
      • Evaluation data;
      • Relevant information provided by the parents; and
      • The functional behavior assessment (FBA), if conducted.
    • Convene the meeting and review relevant information.
    • Using the relevant information, the team must determine if the behavior resulting in disciplinary action was caused by, or had a direct, substantial relationship to, the child’s disability. To make this determination:
      • Consider placement appropriateness, supplementary aids and services and whether the child’s behavioral intervention strategies were appropriate and consistent with the IEP.
      • Analyze the child’s behavior across settings and across time.
    • If the team can answer yes to either of the following questions, the child's behavior was a manifestation of the disability:
      • Was the conduct in question caused by, or did it have a direct and substantial relationship to, the child's disability? or
      • Was the conduct in question the direct result of the school district’s failure to implement the IEP?

    REQUIREMENT

    3301-51-05
    (K) Conflict resolution
    (20) Authority of school personnel

    (f) Determination that the behavior was a manifestation

    If the school district, the parents, 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:
    (i) Either:

    (a) Start to conduct a functional behavioral assessment within 10 days of the manifestation determination and complete the assessment as soon as is practicable, unless the school district had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavior intervention plan for the child; or
    (b) If a behavioral intervention plan had already been developed, within 10 days of the manifestation determination, review the behavioral intervention plan and the implementation of the plan, and modify it, as necessary, to address the behavior subject to disciplinary action; and

    (ii) Except as provided in paragraph (K)(20)(g) of this rule (special circumstances involving weapons, illegal drugs or serious bodily injury), return the child to the placement from which the child was removed, unless the parent and school district agree to change the placement as part of the modification of the behavioral intervention plan.

    GUIDANCE

    Determination that the behavior WAS a manifestation

    If the school district and parents agree with the manifestation determination:

    • The child remains in the interim alternative educational setting (IAES) for 45 school days with services that enable the child to continue to make progress in the general curriculum and to progress on his or her IEP goals. However, if the behavior is determined to not be a manifestation of the child's disability, the school district may remove the child for a longer period of time, to the same extent a child without a disability would be removed.

    If the school district or parents disagree with the manifestation determination:

    • The school district or parents may request an expedited due process hearing. (See Procedural Safeguards - 5.16 Expedited Due Process Hearing.)
    • The child remains in the IAES until the decision of the hearing officer, or for the same period of time as children without disabilities if the behavior is not a manifestation of the child's disability, or 45 school days if the behavior is a manifestation of the child's disability.

    If the conduct in question was the direct result of the school district's failure to implement the IEP:

    School personnel must:

    • Remedy deficiencies in the implementation of the IEP.
    • Either conduct a functional behavior assessment (FBA) and implement a behavior intervention plan (BIP), or review the existing FBA and BIP and modify them as needed to address the behavior.

    If the child's behavior is a manifestation of the child's disability, school personnel must:

    • Review and modify the child's BIP or begin conducting an FBA:
      • The school district arranges for the IEP team meeting and notifies IEP team members of the time and location of the meeting.
      • The IEP team will consider the problematic behavior that precipitated the disciplinary change of placement.
      • The purpose of the meeting is to review and modify the child's BIP as needed to address the problem behavior, or to plan and begin conducting a FBA and create a behavior intervention plan,if one is not in place.
      • The behavioral interventions should be implemented as soon as is practical.
    • Remedy deficiencies, if any, in the IEP, placement or implementation of the IEP.
      • Were the goals and objectives appropriate?
      • Was the IEP implemented?
      • Was the placement appropriate?
      • Has the child received the supplementary aids and services indicated in the IEP?
      • Were behavior intervention strategies appropriate?
    • Review the existing BIP and modify it, if needed, to address the behavior.
      • Does the child have a BIP?
      • If so, does it need to be revised?
      • If not, does one need to be written?
    • Or, start conducting an FBA and create and implement a BIP.
      • Has the chid had an FBA?
      • If not,provide prior written notice, obtain written parental consent,develop an assessment plan, begin conducting the FBA and develop a BIP.
        • If an FBA is conducted either to determine whether the child is, or continues to be, a child with a disability, or to determine the nature and extent of the special education and related services that the child needs, then an FBA is an evaluation or a reevaluation and parental consent is required.
        • Parental consent is not required if the district is not conducting an evaluative process, but merely collecting or reviewing data that already exists.
        • If the parents do not give written parental consent for the FBA, the school district may, but is not required to, use procedural safeguards (including the mediation and due process procedures)to pursue the evaluation. See Procedural Safeguards - 5.3 Parent Consent for Evaluation.
      • Although the child has been removed from his or her current educational setting, school personnel can begin conducting an FBA to determine the purpose (avoidance or escape, attention or sensory needs) the behavior serves the child.
      • Collect historical and background data by reviewing cumulative folder, IEPs, IAT minutes, statewide assessment scores, attendance and discipline files;
      • Conduct indirect assessments such as rating scales, interviews and checklists;
      • Determine the target behavior for behavioral intervention planning; and
      • Develop a hypothesis, including the context of the behavior, description of the behavior and the function of the behavior.

    School personnel will be unable to collect direct observational data or to verify the hypothesis during the child's removal from school. As soon as the child returns, school personnel should begin to collect direct observational data to verify the hypothesis and to develop behavioral interventions and supports so that the behavior does not recur.

    It may be necessary for school personnel and the parents to develop a plan to return the child to school.

    The child returns to the placement from which he or she was removed unless the parents and school personnel agree to a change of placement as part of the modification of the BIP.

    REQUIREMENT

    Determination that behavior was not a manifestation

    3301-51-05
    (K) Conflict resolution
    (20)Authority of school personnel
    (c) Additional authority
    For disciplinary changes in placement that would exceed ten 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 (K)(20)(e) of this rule, 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 (K)(20)(d) of this rule.

    (d) Services
    (i) A child with a disability who is removed from the child's current placement pursuant to paragraphs (K)(20(c) or (K)(20)(g) of this rule must:

    (a) Continue to receive educational services, as provided in rule 3301-51-02 of the Administrative Code, so as to enable the child to continue to participate in the general curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP; and
    (b) 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.

    GUIDANCE

    Determination that the behavior was NOT a manifestation

    If the team determines that the child’s behavior was not a manifestation of the child’s disability, school personnel may:

    • Apply disciplinary procedures in the same manner and for the same duration as would be applied to children without disabilities.
    • The IEP team meets, if needed, to review and modify the child’s IEP to address the behavior, or conduct an FBA and create and implement a BIP to address the behavior so that it does not recur. (See Guidance above.)
    • If the removal constitutes a change in placement, the IEP team determines services that enable the child to advance in the general curriculum and to progress in achieving the goals of his or her IEP.
      • FAPE must be provided to the child beginning on the 11th cumulative day of removal in a school year.

    REQUIREMENT

    3301-51-05
    (K) Conflict resolution
    (22) Appeal
    (a) General
    The parent of a child with a disability who disagrees with any decision regarding placement under paragraphs (K)(2) and (K)(21) of this rule, or the manifestation determination under paragraph (K)(20)(e) of this rule, or a school district that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others may appeal the decision by requesting a hearing. The hearing is requested by filing a complaint pursuant to paragraphs (K)(7) and (K)(8) of this rule.

    GUIDANCE

    When parents challenge a manifestation determination

     

Last Modified: 7/11/2013 4:39:12 PM