Serious Bodily Injury Under Special Circumstances in a Manifestation Determination Review

Current as of January 2022

At specific times, and for certain violations of the student code of behave, IDEA's field of study procedures require schoolhouse systems to conduct what is known as a "manifestation determination review." The purpose of this review is to determine whether or not the child'south behavior that led to the disciplinary infraction is linked to his or her disability.

Manifestation determinations were first introduced into Idea with the 1997 amendments. The procedure has been simplified nether IDEA 2004, which at present:

• limits the requirement to perform a manifestation determination to removals that plant a alter of placement under IDEA's disciplinary procedures; and
• does not crave a manifestation determination for removals for less than ten consecutive school days that do not constitute a change in placement.

As the Senate Assistance committee observed, what is now required is "a more than simplified, common sense process for schools to apply." [i] Read on for the details.

• When is the review necessary? (Keep scrolling)
• Who'south involved?(Keep scrolling)
• Scope of the review
• If the decision is "aye"
• What about placement?
• If the conclusion is "no"

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When is a Manifestation Conclusion Review Necessary?

Under §300.530(east), a manifestation determination must occur within x days of any conclusion to change the child'due south placement because of a violation of a code of student bear.

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Who is Involved?

The LEA, the parent, and relevant members of the IEP squad (as determined by the parent and the LEA) are involved in conducting the review. Their purpose is to determine:

(i) If the behave in question was acquired past, or had a directly and substantial relationship to, the child's disability; or

(ii) If the conduct in question was the directly result of the LEA'southward failure to implement the IEP. . .   [§300.530(e)(one)-(two)]

To brand these determinations, the group volition review all relevant information in the student'due south file, including the kid'southward IEP, whatever teacher observations, and any relevant information provided past the parents.

The link betwixt the child's conduct violation and his or her disability is important. As the Department notes:

Nosotros believe the Act recognizes that a child with a inability may display disruptive behaviors characteristic of the child'south inability and the child should not be punished for behaviors that are a result of the kid's disability. (71 Fed. Reg. 46720)

The human relationship between the child's behavior and disability, withal, is not the only factor to exist considered in a manifestation determination. A manifestation determination must also consider if the child's conduct was the direct result of the LEA's failure to implement the IEP [§300.530(due east)(1(ii)]. If such a finding is made, the regulations require the LEA to have immediate steps to remedy those deficiencies [§300.530(e)(3)]. This will be discussed further below.

Here, first, a little review, past style of a little Q&A.

Under what circumstances must a manifestation determination be conducted? (Whenever a determination is made to change the placement of a kid with a disability because he or she has violated a lawmaking of student deport.)

What's the time frame for conducting a manifestation decision? (The manifestation determination must occur within 10 school days of any decision to change the placement of a child with a inability because of a violation of a lawmaking of educatee behave.)

Who is involved in conducting a manifestation determination? (The LEA, parent, and relevant members of the child'due south IEP Team.)

Who decides who'south a "relevant fellow member" of the Team? (The parent and the LEA.)

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Scope of the Review

Thought states that the LEA, the parent, and relevant members of the child's IEP team must review "all relevant data in the student'due south file, including the child's IEP, any teacher observations, and any relevant information provided past the parents" as part of conducting a manifestation decision [§300.530(east)(1)]. This list is non exhaustive, according to the Department. Information technology may include other relevant information in the child's file, including placement appropriateness, supplementary aids and services, and if the beliefs intervention strategies were appropriate and consistent with the IEP. (71 Fed. Reg. 46719)

Consider this extract from the U.Southward. House of Representatives Conference Report 108-779. It clarifies both the scope of the manifestation review and the intent behind it.

[T]he Conferees intend to assure that the manifestation determination is done carefully and thoroughly with consideration of whatsoever rare or extraordinary circumstances presented." The Conferees farther intended that "if a change in placement is proposed, the manifestation  decision will analyze the child's behavior as demonstrated beyond settings and across fourth dimension when determining whether the conduct in question is a direct result of the disability. (71 Fed. Reg. 46720)

Let'south move on and say the grouping has met, reviewed all relevant information in the child'southward file, considered the child'southward comport in light of his or her disability, considered the LEA'south implementation of the IEP, and come to a determination. What happens if that determination is yeah—or no? Each answer leads to specific outcomes.

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If the Determination is Yes

There are two scenarios under which the manifestation determination would be "yep." These are when the conduct:

• was a manifestation of the child's disability, or
• the direct outcome of the LEA's failure to implement the kid'southward IEP.

If either condition is met, the pupil's conduct must exist determined to be a manifestation of his or her disability [§300.530(e)(2)-(three) and (f)]. In other words, the manifestation determination is "aye."

But it matters which of the ii weather condition was the footing for the determination of "yes."

"Yes," for failure to implement the IEP. If the grouping determines that the kid's misconduct was the directly outcome of the LEA's failure to implement the kid's IEP, the "LEA must have firsthand steps to remedy those deficiencies." As the Department explains, if such a determination is fabricated:

[T]he LEA has an affirmative obligation to have immediate steps to ensure that all services set forth in the child's IEP are provided, consistent with the kid'southward needs equally identified in the IEP. (71 Fed. Reg. 46721)

What near placement? Unless the beliefs involved ane of the special circumstances—weapons, drugs, or serious actual injury—the child would exist returned to the placement from which he or she was removed every bit part of the disciplinary activeness. However, the parent and LEA can concur to a modify of placement every bit function of the modification of the behavioral intervention programme. [§300.530(f)(ii)]

"Yes," for conduct directly related to disability. If the grouping finds that the child's misconduct had a direct and substantial relationship to his or her disability, and then the grouping must as well reach a manifestation determination of "yes." Such a determination carries with it ii immediate considerations:

• Functional behavioral cess (FBA)—Has the kid had one? Does ane need to be conducted?
• Behavioral intervention plan (BIP)—Does the kid have one? If so, does it need to be reviewed and revised? Or if the kid does not have ane, does one need to be written? [§300.530(f)]

Thus, if a child'south misconduct has been plant to accept a direct and substantial human relationship to his or her inability, the IEP squad will demand to immediately deport a FBA of the child, unless one has already been conducted. Co-ordinate to the Senate HELP committee:

An FBA focuses on identifying the function or purpose behind a child'due south behavior. Typically, the process involves looking closely at  a wide range of child-specific factors (e.g., social, affective, environmental). Knowing why a child misbehaves is directly helpful to the IEP Team in developing a BIP that will reduce or eliminate the misbehavior. [2]

In add-on to conducting an FBA (if necessary), the IEP team must also write a BIP for the student, unless one already exists. If the latter is the example, and then the IEP team will need to review the plan and modify it, as necessary, to address the behavior.

The IEP team must too address a kid'southward misbehavior via the IEP process every bit well. Equally the Department explains:

When the behavior is  related to the kid's disability, proper  evolution of the child's IEP should include development of strategies, including positive behavioral interventions, supports, and other strategies to accost that behavior… When the behavior is determined to be a manifestation of a child'southward disability only has not previously been addressed in the kid'due south IEP, the IEP Team must review and revise the child's IEP so that the child volition receive services advisable to his or her needs. Implementation of the behavioral strategies identified in a child's IEP, including strategies designed to right behavior by imposing disciplinary consequences, is appropriate… even if the behavior is a manifestation of the child's disability. (71 Fed. Reg. 46720-21)

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What about placement?

The kid must be returned to the placement from which he or she was removed equally part of the disciplinary activity, with two exceptions:

• if the behavioral infraction involved special circumstances of weapons, drugs, or serious bodily injury; or
• if the parents and LEA agree to change the kid's placement equally part of the modification of the BIP.

If either of these exceptions employ, and so the child need not necessarily return to the same placement.

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If the Determination is "No"

A manifestation determination of "no" ways either that:

• the child's behavior was non caused by or did not accept a direct and substantial human relationship to the kid'southward disability; or
• the child's behavior was not the straight result of the LEA's failure to implement the IEP.

In either example of "no," school personnel have the say-so to employ the relevant disciplinary procedures to the child with disabilities in the aforementioned mode and for the same duration as the procedures would be applied to a child without disabilities, except—and this is very of import—for whatever special didactics and related services the schoolhouse organization is required to provide the kid with disabilities under §300.530(d).

What Thought requires nether the services provision at §300.530(d) is the subject of the next commodity in this clarification of Discipline, in Detail– Are Services Provided During Disciplinary Removals?

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One, Two, Iii

You may remember that nosotros've twice mentioned the Senate HELP committee's summary of the three categories of disciplinary actions a school district can take under Idea. The starting time was the 10-day dominion, and the third was special circumstances involving drugs, weapons violations, or serious bodily injury. What nosotros've but described corresponds to the second category of disciplinary deportment a school district can take. Equally the Senate HELP committee described in its Written report [to Accompany S. 1248]:

In the 2nd category, if a school chooses to subject area a child for a violation of the schoolhouse lawmaking for a period beyond 10 consecutive schoolhouse days, and then the school tin apply the aforementioned disciplinary procedures that it would utilise to a child without a disability, equally long as the school has determined that the violation in question was not a manifestation of the child's disability.[i]

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What's Coming Upwards Next?

A pivotal topic is next up for discussion: the requirements of §300.530(b)(2). To jog the memory, here's that provision again:

Afterward a child with a disability has been removed from his or her current placement for 10 school days in the same school year, during any subsequent days of removal the public agency must provide services to the extent required under paragraph (d) of this department.

And what does paragraph (d) require? That is the field of study of our next section in these web pages, Are Services Provided During Disciplinary Removals?

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References

[1] Senate Report No. 108–185, at 44 (2003). Available online at: https://www.congress.gov/congressional-report/108th-congress/senate-report/185/1

[2] Id.

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Would you lot like to keep reading the details of IDEA's disciplinary procedures?

If so, use the links below to jump to the discussion of your choice. They're listed in the order they appear in IDEA.

• General Say-so of Schoolhouse Personnel
• School Authorization in Special Circumstances
• Manifestation Determination
• Are Services Provided During Disciplinary Removals?
• Appeals and Expedited Due Procedure
• Child's Placement During the Appeal Procedure
• What is Basis of Knowledge?
• Reporting Crimes
• Putting Information technology All Together: A Case Report

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Source: https://www.parentcenterhub.org/manifestation/

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