What is a "Manifestation Determination Review" and How To Prepare For It.

When a student with an IEP or Section 504 Plan has been suspended for over ten days or recommended for expulsion, there must first be a meeting to determine whether the incident was a "manifestation of the student's disability." For Parents, this meeting can be daunting.

What is a "Manifestation Determination Review"?

After your special needs student has been suspended a total number of ten school days within a school year, or has been recommended for expulsion , you should receive an invitation to a special IEP meeting called a "Manifestation Determination Review." The purpose of this meeting is to discuss two primary questions:

1. Was the Student's behavior a "manifestation " of their disability?

2. Was the Student's behaviors the result from a failure to implement the IEP?

If the answer to either question is yes, the Student cannot be disciplined and the District should propose to conduct a Functional Behavioral Assessment.

Answering the question; was the Student's behavior a "manifestation " of their disability?

This first question is likely the one that the meeting will spend the majority of the time discussing. IEP teams will often look at what your student's eligibility category is to answer this question. However, the discussion should not be limited to just your student's eligibility categories.

Take for example, a Student who is eligible for an IEP under the Other Health Impairment category due to their diagnosis of ADHD. If that Student is expelled for physical aggression towards a teacher, the IEP team cannot take a general view of ADHD and discount the act as a manifestation simply because physical aggression is not a symptom of ADHD. The law requires that the IEP team view the student as a whole and with "specific consideration." Bristol Twp. Sch. Dist. v. Z.B., No. CV 15-4604, 2016 WL 161600, at *2 (E.D. Pa. Jan. 14, 2016). A general discussion of ADHD precludes any meaningful discussion of whether the student's behavior was a manifestation of his disability. Id.

Likewise, information outside of a Student's eligibility category and diagnosis should be considered by the IEP team. The team must "review all relevant information in the student's file, including the child's IEP, any teacher observations, and any relevant information provided by parents." 20 USC §1415(k)(1)(e)(i). There is no limitation to what can be relevant information as long as it might aid in determining whether the conduct was a manifestation of the student's disability. Sch. Bd. of the City of Norfolk v. Brown, 769 F. Supp. 2d 928, 947 (E.D. Va. 2010).

Any information that could inform the team about the student's mental and psychological well-being should be considered. This goes beyond the eligibilty category and even what is in a Student's IEP. If a student has a long history of trauma, that history should be considered. Especially if that trauma can amplify the symptoms of a student's disability.

Answering the question; was the Student's the result from a failure to implement the IEP?

This question is often not discussed at length. IEP team will simply state that the answer is no because they have been implementing the IEP, usually without much discussion to follow. However, this should not be discussed with only a conclusory statement. The IEP team should take steps to review and consider whether the IEP was actually implemented with fidelity.

For example, service logs should be reviewed to review whether the Student has been recieving his services as required by his IEP. If the Student has a behavioral intervention plan, the IEP team should review whether the strategies and steps included within it were used and taken during the incident at issue.

Preparing for a Manifestation Determination Review as a Parent

Once you receive the invitation for the manifestation determination review you can start taking steps to build a record to establish that the answer to either of the questions is yes. You will want to gather any information you have to help establish that your student's conduct was a manifestion of their disability. Send this information to the IEP team before the meeting and refer to them during it.

Here's a list of information you may want to gather.

1. Research Articles about the Student's Disability

You may wish to send the IEP team research about the student's disability to address common misperceptions and stereotypes that could interfere with the team's understanding of the disability and lead to an incorrect determination.

For example, IEP teams often misunderstand ADHD impulsivity and consider it to be only a "knee-jerk reaction." However, research shows this is not the case. While it certainly can take the form of an instant spontaneous reaction, that is not the only way in which ADHD impulsivity can manifest. Impulsivity in ADHD is also deeply tied to executive dysfunction and complex emotional processing, which means it might not always be spontaneous. Sebastian, A., Jung, P., Krause-Utz, A., Lieb, K., Schmahl, C., & Tüscher, O. (2014). Frontal Dysfunctions of Impulse Control: A Systematic Review in Borderline Personality Disorder and Attention-Deficit/Hyperactivity Disorder. Frontiers in Human Neuroscience, 8. https://doi.org/10.3389/fnhum.2014.00698 Bringing articles that support this would help explain to an IEP team that even if your student's conduct was not a "knee-jerk reaction" it could still have been a manifestation of their ADHD.

2. Letters,Notes , and Reports from the Student's Doctors and Providers

While research articles can certainly help, we have to remember that the I in IEP stands for individualized. What might be true for your child's disability in general might not always apply to your child specifically. For that reason, if your child sees a therapist outside of school or other professional, having them write a letter that specifically describes how your child's disability affects them and how it may be related to the incident at issue could go a-long way.

An Independent Educational Evaluation would be even better. But if you didn't already have one, you likely will not be able to get one between the moment you're invited to the Manifestation Determination review and when it is held. These letters and notes from your student's providers are a good-enough alternative. If you already have an IEE that was done recently though, you will want to remind the IEP team about it and highlight specific portions of it that support your position.

3. Information about your Child's Educational and Behavioral Background

Finally, you're going to want to bring any information you might have about the student's background that would provide helpful insight to their mental and psychological well-being. You may want to create a timeline of the Student's history and send that to the District before the meeting and refer to it throughout.

Addressing Whether There Was A Failure to Implement

Just like how you want to be prepared to address whether the incident was a manifestation of their disability, you will want to be prepared for whether this was the result of a failure to implement the IEP. Before the meeting, ask the IEP team to send you a copy of your student's service delivery logs. If they do not send it to you beforehand, bring this up at the meeting and share that you feel that you cannot adequately discuss this question without having that information. If they do provide the service logs, cross-reference them with your Student's IEP to verify if they had been recieving all the services they should have.

If your student had a behavioral intervention plan, you should review that plan and ask the IEP team what steps were taken during the incident pursuant to the Behavioral Intervention Plan. If they indicate that they did not follow what is in the plan then that is a potential failure to implement.

What Happens if the IEP Team Decides That The Answer To Both Questions was No?

If the IEP team determines that the incident was neither a manifestation of the disability or resulted from a failure to implement, the District will move-forward with the suspension or expulsion hearing. However, you can challenge the determination by filing a request for Due Process with the Office of Administrative Hearings.

Whether you need IEP advocacy to help you navigate the discussion at the Manifestation Determination Review or you need to file due process against your district for their incorrect decision, our office is here to help.