Episode Fifteen: Manifestation Determination Reviews, Student Discipline: Part Three

Joined by Christina Peer, Lisa and Miriam delve into the depths of manifestation determination reviews for students with disabilities who have violated their school’s code of conduct. Was the behavior related to or a result of the student’s disability? How do teams decide? Learn about the key issues to keep in mind and how to avoid some of the common mistakes teams make in conducting these reviews.

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Miriam: Welcome to Class Act: Updates in Education Law. I’m Miriam.

Lisa: I’m Lisa.

Miriam: We’re attorneys at Walter Haverfield in Cleveland. We practice school law. Every few weeks, we get together, we talk about the most recent legal developments in education relevant to school boards, administrators, teachers, just anybody who works in education.

Lisa: Yes. If you’ve been listening to our podcast for a while, you’ve noticed that we have a change in our name, we’re really excited. The new name is Class Act, same great podcast, just a new fun name.

Miriam: All right. Today, we are still talking a little bit about discipline, we’re going to talk about manifestation determinations. With us, we have Christina Peer, a partner at Walter Haverfield. She’s very experienced in working with school districts on special education issues when discipline is in play.

Lisa: Thanks for joining us again, Christina.

Christina Peer: Thanks for having me come back.

Lisa: As Miriam mentioned, today, we are going to continue talking about discipline and specifically students with disabilities and the protections that are in place for them. If you remember, last episode, we hit on the 10-day rule. Now, we’re going to talk about once you are past that 10-day rule, what needs to happen.

Miriam: Manifestation determination reviews, that’s the key point for this episode.

Christina: Super, super, super exciting, right? What everybody needs to know about manifestation reviews in 25 minutes or less. That’s the goal here.

Miriam: Let’s do it.

Christina: All right. Do you guys want me to talk about, just for a minute, what is a manifestation review?

Lisa: Yes, absolutely.

Miriam: Let’s start with that.

Christina: All right. I think one of the things that people tend to do, they call them manifestation hearings. It’s not a hearing. I just want to start with that because it’s so misleading. When you do a manifestation determination review, the team gets together. When I say the team, I mean the student’s IEP team. I like to think of it as an IEP meeting with a really specific purpose.

The specific purpose of this IEP meeting is to determine whether or not the conduct that the student engaged in, which is leading to this discipline was related to or a result of their disability. That’s all the team is getting together to consider. I think sometimes parents have a misperception that this meeting is to decide whether or not the student actually engaged in the conduct or not and that’s not what you’re here for.

Lisa: Right, it’s not a discipline here.

Christina: Right, exactly. That’s why I said it’s so important not to call it a hearing because it’s not. It’s just a manifestation determination and you’re trying to decide whether or not, like I said, the student’s conduct was related to or caused by their disability, so whether or not it was a manifestation of their disability.

Miriam: The second question I think that teams do need to look at is whether the conduct was a direct result of the district’s failure to implement an IEP.

Christina: Absolutely.

Lisa: This is something not to just gloss over either and just assume, “Oh no, we were implementing the IEP.”

Christina: Yes. I think as we talk about that a little bit more, we all probably have some horror story of a district glossing over that when really it was probably someone in the district’s fault that that student behaved in the way they did. I don’t know what else to say necessarily about the manifestation determination itself other than when you get together and you start to have this conversation, it’s important for the team to really look at, “All right, first, let’s talk about what was the conduct. What conduct did the student actually engage in?”

You need to have somebody at the meeting who’s familiar with all the facts and all the circumstances. Let’s say it was a fight, somebody who knows all about the fight. Again, it’s important to make sure you say to the parents, “For purposes of this meeting and this meeting only, we’re going to assume that the fight actually happened and that your child was actually involved in it.” Because otherwise there’s nothing to go off of.

Lisa: Right. Avoid the debate of basically turning it into a disciplinary hearing of it happened or it didn’t happen. Take the assumption, yes, it happened and now we need to look at the student’s needs, the student’s eligibility, all those relevant factors about the student to determine if it was a manifestation of [crosstalk]

Miriam: Yes, I guess my question is how does the team decide whether the student’s conduct was a manifestation, what are the factors a team looks at?

Lisa: I think Christina hit it right with the first step is look at what was the actual incident that occurred that led to discipline.

Christina: Right. Then I think you have to look at what is the student’s disability. When I say that, I mean both, what is the eligibility category under IDEA? What is the student identified as? Are they a student with autism? Are they a student with an emotional disability? Are they a student with a specific learning disability? Then you also have to look at what is the other information that we know about a student.

In Ohio, students on IEP, so students who are eligible under IDEA are only allowed to have one eligibility category even though they might have several different things that are going on. You still have to put them under one category, but for a manifestation determination, it’s important to consider all of the different things that a student has that plays into their profile. Maybe you have a student who is identified as a student with a specific learning disability because that covers most of their needs, but they’ve also been diagnosed with ADHD, depression, and anxiety. You’re not going to have all of that as their “diagnosis” that’s their specific learning disability. You have to consider all of those things when you’re doing the manifestation determination.

Lisa: Right. You really want to avoid simply looking at the label but it is a very important consideration, right?

Christina: Yes. It’s a starting point, right?

Miriam: It’s a starting point. I think the next step school districts typically do is look at the actual evaluation and what the examiner found in terms of the child’s behaviors, what do the child’s behaviors look like that led to the disability category.

Lisa:  In Ohio, your evaluation team report, and they’re called different evaluation terms in other states, but that’s going to be a very important starting point.

Miriam: But we don’t end it there.

Lisa: Nope, not at all.

Miriam: Sometimes, we see districts who just say, “Okay, this is a disability category, this is what the ETR says from two and a half years ago” but there’s more to it than that. There’s more to it than that and what school districts should be looking at is all the information brought to the table by everyone. If the parents shows up and says, “I understand the ETR talked about my child with a specific learning disability, she cannot read as well as other students, but look, it turns out she’s actually got bipolar. This was something we talked about with her psychiatrist a few weeks ago and I did not bring it to the school’s attention at that time, but now that we’re having this manifestation determination, by the way, she’s got bipolar.”

Lisa: You need to consider that for sure.

Christina: Absolutely. It really does happen all the time. I understand it from a parent’s perspective too. Some diagnoses like bipolar, take that for example, I think they see it as a personal thing, there’s a stigma that’s associated with that. Maybe if I don’t have to share it with the school, I don’t really want to share it with the school, but when it starts to then impact and you got this discipline situation, okay, well now’s the time I should share it because you need to know that my child is more than just a student with a specific learning disability, they have other challenges that they’re facing as well.

Lisa: Also don’t forget about those private evaluations that you might have gotten back a year or two years ago that maybe you didn’t adopt all the findings in your evaluation team report, but you still need to be considering or maybe there’s another diagnosis in there. Like you said, maybe some anxiety, depression, and something else that might have played a factor at this point.

Miriam: Hey, I have a question. Ladies, what happens if a parent just shows up with this information verbally, does she have to bring something in writing from a doctor saying diagnosis bipolar or can she just say it?

Christina: IDEA doesn’t say that you have to have anything in writing nor does it say that teams have to consider things that parents just bring up verbally. What I usually advise teams to do in that situation is to say to parents, “We’re willing to take this into consideration but we really need you to bring us something from the doctor.” and if the parent says, “Well, I can’t do that.” Then my advice to teams is, “We can’t wait as heavily ma’am what you say without actually having something from the doctor.” There’s a little bit of consideration there, but I can’t just accept at face value that your daughter has a diagnosis of bipolar simply because you told me that today.

Lisa: Well, and I would also be careful not to just leave it at that too. Certainly, consider asking for a release to talk to that physician or something like that so it’s not just a one time exchange of this information and then it’s put to the side because it was only given verbally.

Miriam: I do want to point out, it’s a judgment call. It’s a judgment call here. If your team considers the parent liable, if your team considers the parent credible, you do not need a formal written diagnosis to consider that child’s disability. Whatever the parent brings to the table, you have to take a look at it. I think that what you should keep in mind is if this goes to hearing, how are you going to explain to the hearing officer why you found the parents not credible.

Christina: I think that’s a really good point. I think one of the things you consider with that is how does the student usually conduct themselves at school? For something like bipolar, for example, it’s not like you’re not going to see perhaps signs or symptoms of that at school. If teachers are also seeing that, I think, that lends credibility to what the parents are saying even if they don’t come in with a diagnosis, but you can also have the reverse.

You have a situation where nobody at school has any idea about this because the student isn’t manifesting any of the symptoms at school and I think that might lead you to you said it’s a judgment call. Maybe we’re going to put a little bit less credibility with what the parent said because we’re not seeing it at school.

Lisa: It may not even be fully credibility to the parent, it just may be looking at the facts specifically of the situation even should you agree that maybe that diagnosis is there and evident, it may not be relevant to the specific facts of the discipline. Your consideration and how in depth that consideration goes is all going to be very fact-specific.

Christina: That’s true. I think that’s the thing that makes manifestation determination so challenging because it is so fact-specific. You’re never going to have two cases that come out exactly the same way. Even if you have two students who are identified as students with autism who engaged in exactly the same kind of misconduct, you have to look at each student and their needs and their issues individually to make that determination. Is the misconduct of the student engaged in related to their disability? Is there a substantial relation there? Was the misconduct caused by the student’s disability in some way?

Lisa: Really, you can have a possibility that a student with an emotional disability could have an incident that is not a manifestation of their disability, but you could also have a student with a learning disability engaged in something that very much is a manifestation. It just depends on what the circumstances are.

Christina: I actually have one of those once. We had a student who was identified as a student with an emotional disturbance and he engaged in a lot of behavior. Most of his behavior was very physically aggressive and acting out. Then one day, he stole the teacher’s wallet out of her purse and took some cash and credit cards. When the team did the manifestation determination, they determined that it was not a manifestation of his disability because there was nothing in his history, or in the ETR, or anything that related to actually having sticky fingers and taking things that he shouldn’t have. Because all of his emotional issues dealt with this more acting out type of behavior. Just because a student has a label of emotional disturbance, does not necessarily mean every single act of misconduct is going to result in, “It’s a manifestation of their disability.”

Lisa: It’s going to be really important to make sure you’re going through this process of discussion and consideration of the whole situation.

Christina: Yes, it’s a long discussion process or at least it should be. I think one of the mistakes the district makes sometimes is they try to just go like, “Let’s go to the process really fast.”

Miriam: Check off the boxes, we’re done.

Christina: Right. Exactly. Without really going into a more full discussion of what’s happening and why it’s happening. They treat it as just a, “This is a box we need to check and something we have to do so we can move on to the next thing” but that really isn’t how you should be looking at this.

Miriam: I want to piggyback off of that and talk about the second question. Was the conduct a direct result of the district’s failure to implement the IEP?

Christina: I’ve got a good story there too. Want to hear my good story there?

Miriam: Yes, go ahead.

Christina: Here’s my good story for that one. We had a district and a student at one point who had a very, very specific behavior plan in place and it was a student who had a lot of emotional issues. Part of the behavior plan dealt with how teachers were going to respond to him when he started to become escalated. We had a teacher who had clearly either never read the behavior plan or didn’t remember, or perhaps just completely disregarded it. Don’t know which of the three it was, don’t really care. What ended up happening is the student became escalated, the teacher responded pretty much a textbook example of the opposite way they needed to respond.

Everything they did made the situation worse. Then the student ended up getting into an actual physical altercation where the teacher got hit. When the team went back and did the manifestation determination, they had to look at what the teacher did. Because the teacher legitimately did not follow the student’s plan and everything that the teacher did actually made the situation worse.

Miriam: We recognize that might be an uncomfortable conversation, but you got to have it.

Christina: It was horrible.

Miriam: It’s so funny, Christina, that you told us the story because that’s exactly what I was going to say. That’s the example I was going to give and I was going to say the same story. [chuckles]

Christina: It happens and I think districts need to be open. Administrators need to be open, and directors of special education need to be open to the idea that sometimes our staff members don’t do everything the right way. Like you said, as uncomfortable as it might be to call them on it, you have to because otherwise, you’re not going through the process in the way you need to. You’re just going to end up in legal trouble, frankly, because it was not this child’s fault in that particular circumstance or instance. Most of the time, you get to check that box and say, “Nope, it wasn’t the district’s fault because we didn’t implement the IEP. We dealt with what we needed to do.” Sometimes, there’s an issue.

Lisa: We go through these meetings and we make a manifestation determination. Obviously, it’s either a manifestation or it’s not. Let’s start with what if the team determined that it’s not a manifestation?

Christina: That’s easy, relatively speaking. If it’s not a manifestation of the student’s disability, they can be disciplined in the same manner as their non-disabled peer. I want to be clear about that because a lot of times I get questions like, “It’s a student on an IEP or student on a section 504 plan, so there’s some limitation to how many days you put them out.” No, there’s not. If it is not a manifestation of their disability, if a student would be expelled for up to 80 days for the same conduct that the student engaged in and it’s not a manifestation of their disability, they can also be expelled for 80 days if that’s what the superintendent decides to do in that situation.

Miriam: Does the school have to provide the same services on the child’s IEP or accommodations on the 504 plan during that period?

Christina: They have to provide services, but they don’t have to look exactly the same so I guess that’s the caveat. Let’s talk about IDEA, IEPs first. It’s not really a true expulsion if you will because the student has to be educated in an Interim Alternative Educational Setting. What is that? It’s some other way that they’re going to receive all of their special education and related services without being at the high school, for example. It can be anything from home instruction to placement in like a separate facility day treatment setting where maybe there’s more support for their behavioral and emotional needs. The key point here is that the IEP team makes that determination.

Miriam: When do they do that? When is this placement decided on?

Christina: Well, in my mind, you can do it two different ways. This gets a little bit convoluted. You can certainly make a decision after you do the manifestation determination. You’re sitting there, you’re at that same meeting and you say, “All right. We don’t know yet what the disciplinary outcome is going to be, but let’s just assume, for the sake of argument, if the student were to be expelled, let’s make a decision about what the Interim Alternative Educational Setting would be. Then if the superintendent decides not to expel the student, it’s like no harm, no foul. We don’t have to go forward with it because they were just going to come back to school because there was no discipline.” Or you can say, “Well, let’s wait and see what the superintendent decides.” If you do it that way, then you’ve got to get the IEP team back together for a second meeting.

Lisa: The key point here is that at that hearing when the superintendent makes the decision perhaps to expel the student, the superintendent as a sole individual is not deciding that interim placement.

Christina: Correct.

Miriam: That is the IEP team– [ crosstalk]

Lisa: Sorry, superintendents, out there.

Christina: Exactly. It’s hard because sometimes superintendents want to make that decision. Sometimes, building principals want to make that decision if it’s just a suspension but you’re over your 10 days. I’ve seen more letters than I care to count from building principals that say to a parent, “Dear parent, your student is going to be suspended for 10 days because they’re on an IEP, we’re going to provide them with home instruction. Thank you very much. Have a nice day.” That’s wrong on so many levels, we won’t even go into it. Because the key point here is it’s not the building principal’s decision.

Miriam: It’s not the building principal’s decisions, the IEP team’s decision, and sometimes I also see districts being too nice. The parents says, “No, I don’t like this. No, I don’t like that setting. No, I don’t like home instruction. I don’t want this specialized school environment that you’re offering. I’m going to take my time. I’m going to think about it, and I’ll let you know.” Then the school is just waiting. They’re waiting for the parents, maybe they’re taking the parent to different settings, different schools. In the meantime, the child is sitting at home.

Lisa: This isn’t your typical change of placement type of scenario either.

Christina: In Ohio, it was different than most states. Most states, parents don’t have to consent to a change in placement because that’s not part of federal law. In Ohio, parents have to consent to a change in placement, except in a circumstance where it’s a disciplinary change in placement. Here, the IEP team can make that change to an Interim Alternative Educational Setting, even if the parent disagrees with what the team decided. It gets back to Miriam’s point, you don’t want to be too nice. The team has to make a decision. You can’t just let it go, and let it go, and let it go. Because you end up in a place then where the student is not actually getting what they need.

Miriam: The first question a hearing officer asks, and maybe I should preface this by saying a parent who’s displeased with the outcome of the manifestation determination review can file a due process complaint. The first question, in my experience, the hearing officer asks is, “Where is the child being educated right now? Where is the child going to school tomorrow? If you’re the district and your answer is, “Well, we were waiting for the parent to decide.”

Lisa: Yes, not a good thing.

Christina: No, no. Not good.

Lisa: Let’s talk about then the other end of the spectrum of the team decides it is a manifestation.

Christina: Can I go back in here, one other quick thing very quickly?

Lisa: Yes, absolutely.

Christina: I made a distinction before between IDEA and section 504, if it’s not a manifestation of the student’s disability. Under section 504, districts are not required to provide any educational services to students after you determine that it’s not a manifestation of a disability. For a student on a 504 plan, an 80-day expulsion really can be 80 days without services.

Lisa: That’s a good distinction to me.

Christina: It doesn’t have to be.

Miriam: It makes sense because 504 plans are very often accommodations and modifications, and if the child’s not in school, what are you accommodating?

Christina: Right. 504 is a civil rights law as opposed to an education law so there’s no ability, I guess, or necessity under section 504 to reach a certain standard of educational achievement because that’s not what it’s supposed to do, unlike IDEA where we have to be able to demonstrate progress is being made.

Miriam: Exactly.

Christina: All right. Sorry, Lisa, I got as off track.

Lisa: No worries, that was a really good point to make. We now have determined that the conduct is a manifestation. There are some things that have to happen now. Can you take us through those?

Christina: Right. When conduct is a manifestation of the students’ disability, the first thing you need to know is that the student can’t simply be disciplined like a typical peer, so they’re going to come back to school. If you issued a 10-day suspension, and you are over the 10 days that we talked about, your 10 free days if you will, and the team meets for the manifestation determination on day 8 and decides that it is a manifestation of the student’s disability, the very next day that student is coming back to school. Even though technically, they had some days of suspension that would have been left on their suspension, they have to come back. That’s really the first most important thing you have to know.

You also have an obligation to conduct a functional behavior assessment. The idea is this is a student who is misbehaving or having behavioral difficulties based on their disability. Let’s try to get to the root of what’s causing that behavior, so we can then put better services and other things in place to address it, so we don’t just keep ending up in the same place with the student’s misbehaving and having disciplinary issues.

Miriam: Right. If it’s not working, don’t keep doing the same thing.

Christina: Yes. That’s the definition of insanity, right? [chuckles]

Lisa: Yes. Out of that FBA, the team’s also going to develop a behavior intervention plan?

Christina: Probably yes, you do the functional behavior assessment, you can either develop a behavior intervention plan, or you can go back and revise the students’ IEP to put in very specific behavior goals that relate to whatever the conduct was that you are targeting. Something important to note about functional behavior assessments, they are considered by OSEP, the Office of Special Education Programming, the FEDs. They are considered to be an evaluation, so you have to have parental consent in order to do your FBA.

Lisa: Well, and you bring up a good point about talking about parental consent because I don’t think we really hit on how important it is to have parental participation in this whole process.

Christina: Absolutely. Parental participation is so important, but you also don’t want to let parents, through their non-participation, lead you into procedural errors. It was like Miriam was talking about, sometimes you’re too nice. You’re trying to get to a point where everybody’s in agreement and we can all sing Kumbaya and everything is lovely.

Miriam: Too nice backfires.

Christina: Too nice, almost always. One of the things you have to be cognizant about is the timing for your manifestation determination review. It needs to be done within 10 school days of the discipline that takes you over into your day 11 if you will. When it takes you over that 10 days, I’ve had districts get in trouble because parents are like, “Well, I can’t come in, I can’t come in, I can’t come in.” Then they’ve blown the deadline for the manifestation determination review because they’re trying so hard to accommodate the parent’s schedule. After they blow the deadline, the parent comes back and says, “We blew the deadline. Wait a minute.”

Lisa: Yes, right.

Miriam: So send your invitations, document your conversations with parent, trying to schedule with them and include them.

Christina: Right.

Lisa: And have the meeting.

Christina: And have the meeting. If the parent keeps just trying to push it back and push it back, go ahead and have the meeting. If you do end up in a situation where the parent says, “Well, now I want to come in,” you can have the meeting again. You can do a redo if you will to look at what the parent wants to say, but you’ve at least had the meeting within the right time frame.

Miriam: I just want to point out to our audience, I’m sure many of you are familiar with the issues we just talked about, but if you are sitting, or driving, or on your lawn, and you’re wondering what is an FBA? What is a BIP? What does that specifically involve? I think Lisa, I think Christina we will do maybe a separate episode on the specifics of a Functional Behavior Analysis and Behavior Intervention Plan what that looks like, what the common pitfalls are. Watch out for that in our future episode.

Lisa: Great. Anything anybody else wants to touch on today before we wrap up because I know this was really a complex issue. We’ll have another episode where we can talk about some unique circumstances and problems that we’ve encountered that we haven’t talked about yet today.

Miriam: Yes. There’s some exceptions for weapons and drugs. I think we’ll go into those details next time. In the meantime, thank you so much for tuning in. Thanks so much for listening. We hope you enjoyed this. Send us an email. Let us know what you think, and as always, give us a great rating on iTunes or Stitcher, wherever you get your podcast.

Lisa: Thanks for joining us, Christina.

Christina: Thanks for having me.

Lisa: The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter Haverfield does not guarantee the accuracy of information contained in this podcast.

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