A manifestation determination is a meeting that must be held after a decision to change the placement of a student with a disability because of a violation of a student code of conduct. (20 USC 1415(k)(1)(E)(i);34 CFR 300.530(e)(1))
At the meeting, participants review the incident that led to the most recent exclusion to determine
- if the conduct in question was caused by, or had a direct and substantial relationship to,
the student’s disability; or
- if the conduct in question was the direct result of the district’s failure to implement the
student’s IEP. (20 USC 1415(k)(1)(E)(i);34 CFR 300.530(e)(1))
If the answer to either question is yes, then the conduct is a manifestation of the student’s disability. In such a case, there may be no change in placement unless otherwise agreed by all parties, and no disciplinary measures may be taken against the student. ( 34 CFR 300.530(e)(2))
In these cases, the district must:
- on the day of the district’s determination, notify the student’s parents/guardian/SESP of the decision to change placement and of the parent/guardian/SESP’s procedural rights to have that decision reviewed; and (20 USC 1415(k)(1)(H); 34 CFR 300.530(h). These are rights under 34 CFR 300.504.)
- schedule a meeting, called a “manifestation determination” to review the decision to change placement. (20 USC 1415(k)(1)( E); 34 CFR 300.530(e))
A parent challenging a finding that conduct is not a manifestation of a disability has the “burden of persuasion” (i.e., the parent has the obligation to produce evidence and witnesses that persuade the hearing officer that conduct was due to disability).
A BSEA hearing officer may
- order an interim alternative education setting for up to 45 school days if it is determined that maintaining the current placement is likely to result in injury to the student or to others; or
- return the student to his/her original placement if it is determined that the behavior was a manifestation of the student’s disability.
20 USC 1415(3)(B)(ii); 34 CMR 300.532(b)(2).
A student or a district may appeal the result of a manifestation determination. (20 USC 1415(k)(3)(A); 34 CFR 300.532(a))
The district may only appeal if it believes that maintaining the current placement is substantially likely to result in injury to the child or others. (20 USC 1415(k)(3)(A); 34 CFR 300.532(a))
Appeal is to the Massachusetts Bureau of Special Education Appeals (BSEA). The BSEA has both mediation and hearing processes.
The student may be disciplined in same manner and for same duration as a non-disabled student. (20 USC 1415(k)(1)(C); 34 CFR 300.530(c)) The student may return to the previous placement after the discipline.
When removed from his/her current placement, a student has a right to FAPE to enable participation in general education curriculum and progress toward meeting the goals set out in the student’s IEP. (20 USC 1415(k)(1)(D); 34 CFR 300.530(d)(5)) This right exists even if the student is placed in a different setting. (34 CFR 300.530(d))
When removed, the district must provide, as appropriate, a functional behavior assessment and behavioral intervention services and modifications, designed to address the behavior so it does not recur. (20 USC 1415(k)(1)(D(ii)); 34 CFR 300.530(d)(ii))
In addition to these requirements of the IDEA, the district must also comply with state law regarding school discipline. Under state law, a student serving a suspension for over 10 consecutive school days or an expulsion, whether in school or out of school, shall have an opportunity to receive education services and to make academic progress toward meeting state and local requirements, through a school-wide education service plan. Education services shall be based on, and be provided in a manner consistent with, the academic standards and curriculum frameworks established for all students. (M.G.L. c. 76, § 21; 603 CMR 53.13(2))
The district may move a student to an Interim Alternative Education Setting (IAES) for up to 45 days without regard to whether the behavior is determined to be a manifestation of the student’s disability. (20 USC 1415(k)(1)(G); 34 CFR 300.530(g))
The team determines the IAES. ( 34 CFR 300.531)
The student has the same right to educational services and assessments as if the student’s conduct was found not to be a manifestation of disability. (34 CFR 300.530(d)(1))
Special circumstances exist when an incident at school or a school function involves:
- the possession of weapon;
- the possession or use of illegal drugs; or
- infliction of serious bodily injury1 upon another person. (20 USC 1415(k)(1)(G); 34 CFR 300.530(g))
- Serious bodily injury is defined as substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily part or mental faculty. (18 U.S.C. 1365(h)(3))
If the conduct is due to failure to implement an IEP, the district must remedy those deficiencies.23 To do so, the district must conduct/update a functional behavioral assessment (FBA) and implement or modify a behavior intervention plan (BIP). ( 20 USC1415(k)(1)(F); 34 CFR 300.530(f))
The student has the right to return to the original educational setting, unless the parent/guardian/SESP and the school agree to change the placement or special circumstances exist. (20 USC 1415(k)(1)(F); 34 CFR 300.530(f)(2))
There may be no exclusion or other discipline.
Hearing decisions suggest that parents should try to articulate a fairly close connection.
Participants should review all relevant information in the student’s file including:
- the student’s IEP;
- teacher observations;
- relevant information provided by the parent/guardian/SESP.
20 USC 1415(k)(1)(E)(i); 34 CFR 300.530(e)(1)