CSE Chairpersons Technical Assistance Meeting Manifestation Determinations: Legal and Practical Considerations presented by Susan T. Johns, Esq. Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C. stjohns@ferrarafirm.com March 18, 2015 2015 1 Understanding Manifestation Determinations IDEA No unilateral disciplinary change in placement for conduct that is a manifestation of the student s disability. Honig v. Doe (1988) Section 504 Prohibits discrimination on the basis of disability 2015 2 Understanding Manifestation Determinations Manifestation Determination Review ( MDR ) is required when there is a disciplinary change in placement. 2015 3 1
What is a Disciplinary Change in Placement? Suspension or Removal for More than 10 Consecutive School Days, or A series of suspensions/removals, each 10 days or less, that creates a pattern No 10 Day Cap 2015 4 What is a Suspension or Removal? Suspension: disciplinary penalty pursuant to N.Y. Educ. Law 3214. Removal: removal of a student from the student s current educational placement for disciplinary reasons, other than a suspension; placement in an IAES by an IHO; placement in an IAES for conduct involving a serious bodily injury, weapons or drugs. 2015 5 When is there a Disciplinary Change in Placement? In determining whether there is a disciplinary change in placement, also consider Bus suspensions OSEP: If transportation is in the IEP, a bus suspension is a removal that may trigger MDR within 10 days of the decision to suspend. NY Commissioner of Education has viewed bus suspensions as a suspension from school in some instances. 2015 6 2
When is there a Disciplinary Change in Placement? Also consider In-school suspensions; Partial day suspensions/removals. Need to consider all suspensions/removals, not just bus suspensions, to determine if a bus suspension, for example, creates a disciplinary change in placement. (59 IDELR 141) 2015 7 What Constitutes a Pattern? A Pattern is created when Suspensions/Removals cumulate to >10 school days in a school year, and Behavior is substantially similar to previous incidents that resulted in suspension/removal, and Additional factors weigh in favor of a pattern Length of each suspension Proximity of each suspension Total time removed Case-by-case determination, made by principal Subject to impartial hearing review 2015 8 When is there a Disciplinary Change in Placement? Even if not a Change in Placement, School personnel may not use their ability to suspend a child for 10 days or less at a time on multiple occasions in a school year as a means of avoiding appropriately considering and addressing the child s behavior as a part of providing FAPE to the child. (U.S. Dept. of Educ.) 2015 9 3
Procedure for a Disciplinary Change in Placement Suspensions >10 consecutive days Principal s suspension for first 5 days Opportunity for Superintendent s hearing for suspension beyond 5 days Determine guilt Determine if suspension likely to exceed 10 days If so, refer for manifestation determination 2015 10 Procedure for a Disciplinary Change in Placement Suspensions 10 days or less Person imposing discipline determines if it will create a disciplinary change in placement, i.e., whether pattern exists If so, refer for manifestation determination (Remember that Superintendent s hearing is required for any suspension longer than 5 days) 2015 11 Procedure for a Disciplinary Change in Placement Parents must be notified of procedural safeguards no later than date on which decision is made to impose a suspension/removal that creates a change in placement 2015 12 4
MDR Meeting MDR Team to meet immediately, if possible MDR Team to meet no later than 10 school days after any decision to impose a suspension that is a disciplinary change in placement MDR Team to meet within 10 school days after a superintendent or IHO decides to place a student in an IAES 2015 13 MDR Meeting Where suspension for an indefinite period of time began on May 3, the MDR meeting on May 21 exceeded the 10 day deadline by 2 days But, was only a technical violation. IHO s decision annulling MDR team s determination was overturned because no harm to the student and parent s ability to participate not impeded. Student received services during the delay and no indication that the delay affected the outcome. (SRO #12-164) 2015 14 MDR Meeting Give Parent written notice of the meeting, identify by names the individuals who will attend, and state that parent may request other relevant CSE members to attend. Notice must specify purpose of the meeting. 5 day notice requirement does not apply, but notice must ensure that parent has the opportunity to attend. 2015 15 5
MDR Meeting MDR Team includes District representative knowledgeable about the student and the interpretation of information about child behavior, The parent, and Relevant CSE members, as determined by parent and school 2015 16 MDR Meeting MDR Team reviews all relevant information in the student s file, including current IEP, FBA/BIP (if any), teacher observations, and any relevant information from parent. Need not review every piece of information in student s file, but must review information pertinent to the decision. (SRO 11-034, 11-083, 12-060) 2015 17 MDR Meeting MDR Team to review circumstances surrounding the code of conduct violation in light of relevant information in student s file and other relevant information presented. Important for the MDR Team that the description of the code of conduct violation be clear. 2015 18 6
MDR Meeting Ask: (1) Was conduct caused by or did it have a direct and substantial relationship to disability? Or (2) Was conduct the direct result of the school s failure to implement the IEP? If yes to either question, conduct is a manifestation of the disability. 2015 19 The SRO on Manifestation Determinations Charge of inappropriate language in study hall. Student lost focus in study hall, looked around the class, made comment in response to newspaper article displayed in classroom, did not respond to teacher s attempt to correct language, and became argumentative. SRO: Behavior is one of the types of impulsive behaviors targeted by BIP, referenced in current evaluations, and has a direct and substantial relationship to student s ADHD. (SRO 11-083) 2015 20 The SRO on Manifestation Determinations Charge that student placed a magnet on computer monitor that damaged the monitor. Student acknowledged wrongfulness of action, noted that he would not touch the Macintosh computers because they are expensive and selected a monitor other than a Mac to be damaged. Student s statements indicate awareness and not impulsivity. Also, property damage not a type of conduct addressed by IEP or BIP. No manifestation. (SRO 11-083) 2015 21 7
The SRO on Manifestation Determinations Charge of physical altercation. Student was diagnosed with ADD. Behavioral rating scores indicated a concern for aggression, but the aggressive behaviors were non-violent. Prior discipline reports, IEP and teacher and parent feedback did not indicate prior violent behavior. Student s assaultive behavior was not caused by and did not have a direct and substantial relationship to the student s disability. (Primary concern was inattention, not impulsivity.) (SRO 12-060) 2015 22 Manifestation Determination If behavior IS a manifestation of the disability, the student may not be further suspended. The Superintendent s Hearing is to be dismissed, unless weapons/drugs/serious bodily injury exception applies. The student returns to prior placement, unless parent and school agree to a change in placement as a modification of the BIP. If manifestation is the direct result of a failure to implement the IEP, the District must take immediate steps to correct that deficiency. Conduct FBA and prepare BIP, or review existing BIP. 2015 23 Manifestation Determination If behavior is NOT a manifestation, the student may be suspended to the same extent as a nondisabled student. Return to penalty phase of Superintendent s Hearing. Student s special education and disciplinary records to be transmitted to Superintendent or hearing officer for consideration. 2015 24 8
Manifestation Determination Parent may appeal manifestation determination Parent may appeal decision to place student in IAES Expedited hearing Suspension/removal from the prior placement may continue pending the hearing decision or end of the suspension 2015 25 Manifestation Determination OSEP opinions: MDR process does not preclude CSE meeting to review IEP while doing MDR. (40 IDELR 46) MDR process does not preclude determination that additional evaluations are required, after which MDR meeting to reconvene. (39 IDELR 242) 2015 26 Weapons, Drugs, Serious Bodily Injury Exception Permits suspension/removal even when the conduct is determined to be a manifestation of the disability. Applies when a student: Carried a weapon to school or school function Knowingly possessed or used illegal drugs while at school or school activity Sold or solicited the sale of a controlled substance while at school or school activity, or Inflicted serious bodily injury upon another person while at school, on school premises or at a school activity 2015 27 9
Weapons, Drugs, Serious Bodily Injury Exception SERIOUS BODILY INJURY is injury which involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ or mental faculty. 2015 28 Weapons, Drugs, Serious Bodily Injury Exception After guilt phase of Supt. s hearing, Supt. may order that student s placement be changed to an IAES for 45 school days, or time for which a nondisabled student would be suspended, whichever is less. Even where conduct is a manifestation of the disability. 2015 29 Weapons, Drugs, Serious Bodily Injury Exception IAES determined by CSE Student is to receive services to Prevent the behavior from recurring; Participate in general curriculum; Continue to progress to meet IEP goals. 2015 30 10
Weapons, Drugs, Serious Bodily Injury Exception Conduct a manifestation determination If no manifestation, student may be suspended to same extent as would a nondisabled student. 2015 31 Dangerous Student Exception If maintaining a student in the current placement is substantially likely to result in injury to the student or others, district may initiate an expedited impartial hearing. expedited = approximately 8 weeks for decision. IHO may place student in IAES for 45 school days. 2015 32 Dangerous Student Exception Parent is to be notified of the district s decision to initiate hearing and of procedural safeguards on the date on which the decision to take such action is made. District may repeat process if returning the student to the original placement after 45 school days is believed to be substantially likely to result in injury. 2015 33 11
Dangerous Student Exception District may also apply to a court for an order temporarily enjoining student from attending school. Presumption in favor of current placement; District to show futility of administrative review; District to show that maintaining student in current placement is substantially likely to result in injury to the student or others. 2015 34 Students Presumed to be Disabled May assert due process protection if the district is deemed to have had knowledge that the child is a student with a disability before the behavior occurred. 2015 35 Students Presumed to be Disabled District is deemed to have knowledge if, prior to the disciplinary incident: Parent expressed concern in writing to supervisory/administrative personnel or to student s teacher that student needs special education; or 2015 36 12
Students Presumed to be Disabled Parent has requested an evaluation to determine if the student is a student with a disability; or Teacher of the student or other district personnel has expressed specific concern about a pattern of behavior demonstrated by the student, directly to the director of special education or to other supervisory personnel. 2015 37 Students Presumed to be Disabled If the district has conducted an evaluation and determined that the child is not disabled OR has determined that an evaluation is not necessary, AND has provided written notice to the parents of its determination, student is not presumed to be disabled. If the parent has not allowed an evaluation or has refused/revoked consent for services, the student is not presumed to be disabled. 2015 38 Students Presumed to be Disabled Procedure Parent claims a known/presumed disability. School official imposing the suspension determines whether the student is presumed to have a disability. If no basis for knowledge, student may be disciplined. If basis for knowledge exists, parent may assert IDEA protections. 2015 39 13
Students Not Identified and Not Presumed to Have a Disability If a request is made for an evaluation after the misconduct occurs and during the time period in which the child is subject to discipline, the evaluation must be done in an expedited manner. Child is to remain in the educational placement which can include suspension 2015 40 Obligation to Provide Services During Suspension WHAT SERVICES? Those services necessary to enable the child to continue to participate in the general curriculum and to progress toward meeting the IEP goals. Services may vary depending upon the student and the length of the suspension. 2015 41 Obligation to Provide Services During Suspension WHEN DOES OBLIGATION ARISE? Services must be provided as of 11th cumulative day of suspension Regardless of manifestation (Remember that alternative instruction obligation continues for all suspensions of students of compulsory attendance age.) 2015 42 14
Obligation to Provide Services During Suspension If the student has been suspended for 10± days, but new suspension does not create a disciplinary change in placement, 1. provide services, 2. do FBA/BIP, 3. provide behavioral interventions 2015 43 Obligation to Provide Services During Suspension If the student has been suspended for 10± days, but new suspension does not create a disciplinary change in placement, Services to be determined by school personnel, in consultation with at least one of the student s teachers 2015 44 Obligation to Provide Services During Suspension If the student is suspended for 10± days in the school year and it is a disciplinary change in placement, 1. provide services, 2. do FBA/BIP, 3. provide behavioral interventions Determined by CSE as an IAES 2015 45 15
CSE Chairpersons Technical Assistance Meeting Manifestation Determinations: Legal and Practical Considerations presented by Susan T. Johns, Esq. Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C. stjohns@ferrarafirm.com March 18, 2015 2015 46 16