Lessons in Manifestation Determinations

1. Lessons in Manifestation Determinations Michelle H. Basi Celynda L. Brasher September 24, 2017

2. The Basics Who?: The LEA, the parent, and relevant members of the child’s IEP Team (as determined by the parent and the LEA)

3. The Basics What?: An evaluation of a child’s misconduct to determine whether that conduct is a manifestation of the child’s disability • Was the conduct in question caused by, or have a direct and substantial relationship to, the child’s disability • Was the conduct in question the direct result of the LEA’s failure to implement the IEP • If yes to either, MANIFESTATION!

4. The Basics When?: 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 Why?: Nondiscrimination!

5. The Basics: Details • Change of Placement: • Removal is more than 10 consecutive school days; OR • Student has been subjected to a series of removals that constitute a pattern: • Because the series of removals totals more than 10 school days in a school year; • Because the child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals; and • Because of such additional factors 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

6. The Basics: Details • What to Review: • All of the relevant information in the student’s file, including: • The IEP • Any teacher observations • Any relevant information provided by the parents • Other?

7. The Basics: Details • Then What? • Behavior IS related: • Conduct a functional behavioral assessment, unless District conducted one before the behavior that resulted in the change of placement, and implement a behavioral intervention plan for the student • If a BIP had already been developed, review and modify it, as necessary, to address the behavior • Return the student to the placement from which the student was removed, unless parent and District agree to change of placement as part of the modification of the BIP, or “special circumstances”

8. The Basics: Details • Then What? • “Special Circumstances” – can remove to an IAES for not more than 45 days if the student: • Carries a weapon to or posses a weapon at school, on school premises, or to or at a school function • Knowingly possesses or used illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function • Has inflicted serious bodily injury upon another while at school, on school premises, or at a school function

9. The Basics: Details • Then What? • Behavior IS NOT related: • Student subject to the same sanctions for misconduct as a student without a disability • Student must continue to receive educational services so as to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals in the student’s IEP • Student receives, 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

10. Lessons Learned Facts: • 17 year old with ADHD. Present levels describe him as easily distracted, sometimes off-task and not engaged in the learning process early in the year. Also has good interpersonal skills and peer relationships and is generally good in the classroom, respectful of teachers and compliant with academic demands. • Roughhousing in the hallway between classes with girlfriend and another friend. • Teacher told him to stop twice; then touched his arm. He verbally and physically reacted. • Suspended for assault.

11. Lessons Learned Facts: • Manifestation Determination conducted. • Special education director filled out worksheet in preparation of meeting. • Brief description of incident • Answered “no” to related and failure to implement questions • Did not discuss facts of incident at the meeting, saying that was not the purpose of the manifestation determination. • Discussed the incident & disability from a “global picture”

12. Lessons Learned Lessons: • Don’t just talk generalities or what is “typical” for a disability, but look at specifics of individual student • Be willing to discuss the facts of the underlying – details may be relevant. • Don’t answer the questions about whether the conduct is related prior to the meeting.

13. Lessons Learned Facts: • 13 year old student with primary disability of SLD in Math, also ADHD • Served as a “middle man” in drug transaction. He received money for transaction during 3rd and 4th periods. Principal saw the transaction and questioned student. Student reported that it was the return of a loan of lunch money. • Another student reported that he had also been involved in another transaction earlier in the day. • Had not been taken his medication for several days. • Conduct found unrelated to disability

14. Lessons Learned Facts: • Principal felt not a manifestation because student had lied about the money, plus team thought that because there appeared to be more than one transaction, it was not impulsive. • Mom produced a laboratory report of a drug test, showing student was not on any drugs, including the ADHD medication, and Student reported he had not taken his ADHD medication for several days. No one at manifestation had expertise to understand the report. • Team also focused on fact that SLD was his primary disability, not the ADHD. • Not a significant discipline record in student information system.

15. Lessons Learned Lessons: • Don’t focus only on primary condition; consider all aspects of student’s disability or disabilities. • Consider recent developments, such as a student stopping medication. • Use anecdotal evidence as well as documents, i.e., recent behaviors in class, not just discipline record report. • If needed, seek explanation of medical reports.

16. Lessons Learned Facts: • Student eligible as ED and OHI (ADHD); evaluation report also said ODD and SLD. • In a behavior support program in regular public school. Evaluation report recommended therapeutic placement. • Several disciplinary incidents – in one, student threw a desk at a peer after being provoked. Team said manifestation. In subsequent incident, student refused to go to class multiple times. Staff members intervened, student pushed staff, used profanity, and was threatening. Threw juice at administrator and ultimately ran from the building. Team said not related because he had not been provoked.

17. Lessons Learned Lessons: • Don’t forget to review the BIP and make modifications. • Review evaluation reports, FBAs, etc. – does language describing the impact of the disability encompass the conduct at issue? • Consider who needs to receive training on BIPs. Which staff members may be called upon to engage with the student in the hallway, cafeteria, recess, etc.?

18. Lessons Learned Facts: • 17 year old student with learning disabilities, ADHD, and ODD • Student was eating Pop Tarts and drinking Gatorade in Math class. Teacher told him to put it away. • He got mad; teacher directed him to the back of the classroom to de-escalate. He responded “I’m going to head butt you.” • Assistant principal took him to the office; he left and called mom. He was yelling on the phone and then threw the phone. • Behavior found not related – State Agency overturned.

19. Lessons Learned Lessons: • Don’t take too narrow of a view of past behavior. • Consider the context of the incident as a whole.

20. Compliance Tips • Establish protocols for communication between building administrators and case managers. (Don’t wait until Day 10!) • Be proactive about addressing behaviors. • Clarify and distinguish for parents/guardians the difference between the general education disciplinary proceedings and the special education procedures. • Keep records of all of the information discussed and considered. • Make individualized determinations!

21. Celynda L. BrasherEmail: cbrasher@tuethkeeney.comDirect Dial: 314-880-3602Michelle H. BasiEmail: mbasi@tuethkeeney.comDirect Dial: 314-880-3615