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Culturally Responsive Practices- Making Manifestation Determination Decisions Presented by Debbie Morrison www.laspdg.org.

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Presentation on theme: "Culturally Responsive Practices- Making Manifestation Determination Decisions Presented by Debbie Morrison www.laspdg.org."— Presentation transcript:

1 Culturally Responsive Practices- Making Manifestation Determination Decisions Presented by Debbie Morrison

2 Considerations This webinar is being recorded and will be available for viewing at If you need to ask a question, please use the Chat Pod on your screen

3 Roll Call If you have not already done so, EVERYONE please use your chat pod and indicate the district/LEA you are representing If multiple people are in the room with you watching this as a group, send their names as well

4 People First Language Kathie Snow. (n.d.) A few words about People First Language. Disability is Natural. Retrieved August 1, 2012 from “People First Language puts the person before the disability and describes what a person has, not who a person is.”

5  If the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability.”  IDEA 34C.F.R (e)(I)  Importantly, if the conduct in question was the direct result of the school system failing to implement any part of the IEP, the conduct must, be determined to be a manifestation of the child’s disability.  IDEA 34 C.F.R (e)(ii)

6  How can you ensure that appropriate manifestation determination reviews have been conducted???????

7 Examine what the courts have decided regarding MDR’s Answer Who? What? When? Why? questions about MDR’s Identify key legal requirements of MDR’s “You be the Judge!” Activity

8  WHEN to meet????

9 Counting the days……… And on the 11 th day… Produced by NICHCY, 2007

10  When the district proposes removal of student that would exceed 10 school days due to violation of code of conduct, district, parent, and relevant members of the IEP team shall meet to conduct MDR within 10 school days of district’s decision.

11  IDEA requires presence of “relevant members” of the IEP team.  Who is “relevant?”  Who is responsible for deciding the participants?  The flexibility offered by Congress also means there can be disputes over determining the “relevant” members of the IEP team. (Fitzgerald v. Fairfax)

12  64 Fed. Reg. 12,625 requires that a MDR must conducted by the IEP team and other qualified personnel  “Other” qualified people may include individuals who are knowledgeable about: -how a child’s disability can impact on behavior -understands the impact and consequences of behavior on persons, the child and his disabilities.

13  IEP team members  Parent and their representatives  School psychologist and behavior specialist(must be able to certify disability and verify IEP is implemented) Prior notice is given

14  High Out of School Removal Rate (based on total SWD population 2800 students) Sent to Alternative Site Added a School Psychologist/Behavior Strategist to every MDR meeting; SPED Administrative review of all decisions *22 *7 Big Three-Total 29

15  Student with emotional disturbance had behavior plan for rude/sarcastic behavior  Student led a weekend paintball attack on school  Attack included breaks to replenish supplies  District convened MDR

16  Parents challenged composition of MDR team on two grounds  1 st challenge: Parents claimed IDEA requires parent consent to MDR Composition  Poll Question: What do you think? Is this correct? Must a school district get consent for the MDR composition? Answer Yes or NO.

17  Outcome: No  Both the hearing officer and the district court rejected their argument that they had an “equal right” to determine the members of the MDR team.  LEA determines which school/LEA personnel will participate-The school determines the school staff’s members  Parents may determine whom else they wish to invite in addition

18  Second (2 nd ) Challenge: Parents claimed a member is only “relevant” if he/she:  Knows the student personally and  Has previously served on the student’s IEP team  Poll Question: Is this correct? Vote “Yes” or No”

19  Outcome: No. IDEA isn’t so strict.  Each member must serve a purpose relevant to the MDR:  Here-Parents, teachers who knew student personally  Psychologist familiar with students with emotional disturbance  Special Education Administrator familiar with programs  Assistant Principal who investigated the incident

20  Parents claimed violation of IDEA:  Not all MDR members reviewed the file.  The review was not done prior to the MDR.  POLL QUESTION: Was there a violation of IDEA?? Vote Yes or No.

21  The answer is NO.  The Court found the district’s review satisfied IDEA:  There is no requirement that every member review all information  No requirement that the review be completed before the MDR

22  The district psychologist reviewed student’s file before the MDR  At the meeting, psychologist presented a summary  MDR team reviewed discipline history  Teachers presented class observations  Team discussed paintball incident

23  A parent successfully challenged an MDR on the basis that the notice did not properly notify her of her right to invite relevant members of the IEP team.  Parents must be aware of their right to invite relevant participants.

24  Exactly how much opportunity must be provided to parents to provide input on members???  What if there are disagreements on membership??  To what degree must each member participate?  To avoid problems and confusion, schools can choose/continue to conduct MD’s in properly scheduled and constituted IEP team meetings.

25  34 CFR (e) (1) states the individuals involved in making the manifestation determination are charged with reviewing all relevant information in the student’s file, including the IEP, any teacher observations, and any relevant information provided by the parent.

26  Evaluation and diagnostic results  Observations and objective data  Current IEP  Relevant written information by parent  Discipline history ◦ Suspension/Expulsion information ◦ Louisiana form ◦ Principal’s investigation report ◦ Informal due process (Student report of incident) ◦ PBIS and interventions

27  Student with Other Health Impairments  Left threatening messages on principal’s voic  District convened MDR  State DOE found MDR failed to consider relationship of conduct to student’s disability  District was ordered to hold a new MDR

28  After the first MDR, student was admitted to psychiatric hospital  Hospital conducted an assessment  Parent provided assessment report to second MDR team  MDR team did not consider the report. Poll Question: Did the district do anything wrong in this MDR meeting? Yes/ No

29  Yes. The court held the psychiatric report WAS RELEVANT INFORMATION.  The MDR’s refusal to consider the report was an “Egrgious procedural violation.”  Second MDR was ordered by Va. DOE  District felt only purpose was to consider relationship between conduct and disability— NOT to redo the whole meeting

30  District barred the parent from submitting any information  Second MDR was made up of different members  The HO and court found this approach seriously flawed.  District erred by: Fragmenting the inquiry, having different members on the MDR, Denying parental participation, failing to review psychiatric report

31  Lessons Learned:  Comply with procedure the FIRST time  Consider all relevant information to get a total picture of a student  Beware of “fragmented” discussion of the issues

32  Was the conduct in question caused by or had a direct relationship to the student’s disability?  Was the conduct in question a direct result of the district’s failure to implement the student’s IEP?  (20 U.S.C (k)(1)(E)(i))

33 M anifestation Determination -- If Yes -- Produced by NICHCY, 2007

34  If the answer to either question (1) or question (2) is “YES”, the conduct shall be determined to be a manifestation of the child’s disability.  The student is returned to the placement from which he was removed, unless the parent and the district agree to change a placement as part of its modification of the student’s behavior intervention plan. 34 CFR (f) (2)

35  IEP Team shall:  Conduct FBA and implement BIP (if not done prior)  If BIP exists, review BIP and modify it to address behavior  Behavioral goal and objective covering the actual offense that student committed should be included in IEP  BIP may need to include some counseling services from Social Worker or School Psychologist

36 Examples of Manifestations Kicking a male schoolmate in the groin was directly related to the post-traumatic stress student with emotional disturbance suffered as the result of a sexual assault. Manteca Unified Sch. Dist., 50 IDELR 298 (SEA CA 2008). Finding that a child’s (with emotional disturbance) emotional and oppositional behavior "spiraled out of his control" when an assistant principal confronted the child rather than allowing him to back off as provided in his BIP. Swansea Pub. Schs., 47 IDELR 278 (SEA MA 2007). Finding of no manifestation was overturned regarding student who had learning disabilities and left threatening messages for principal when district failed to properly assess student and failed to develop a BIP. School Board of the City of Norfolk, 56 IDELR 18 (E.D. Va. 2010).

37 M anifestation Determination - If NO - Produced by NICHCY, 2007

38 M anifestation Determination – If No – (D etermination is that behavior is not a manifestation) Child is disciplined in the same manner and for the same length of time* as a child without disabilities would be disciplined except that services provisions apply * Child continues to receive services as described in (d) Produced by NICHCY, 2007

39 Not a Manifestation Student with a learning disability ripping pants off of a female student outside lunch room. Randy M. v. Texas City ISD, 32 IDELR 168 (S.D. Tex. 2000). 11th-grader’s( who had emotional disturbance) decision to conduct a weekend paintball raid on his high school was unrelated to his anxiety issues. Fitzgerald v. Fairfax County Sch. Bd., 50 IDELR 165 (E.D. Va. 2008). Decision of student with a learning disability to bring marijuana and tobacco to school. Lancaster Elementary Sch. Dist., 49 IDELR 53 (SEA CA 2007).

40  Drugs  Weapons  Serious bodily Injury  For certain violations of code of conduct, district may remove a student to interim alternative educational setting (determined by IEP Team) for not more than 45 school days regardless of whether behavior was a manifestion.

41  Is it a manifestation???  Is it not a manifestation????  Use the Poll Box to answer Yes or No for the following student cases:

42 Case Number 1: Los Angeles USD, 111 LRP (SEA CA 2011 A student with ADHD (had a history of impulsive behavior) sold his prescription drugs ADDERALL to another student. He went home and brought the drugs back the next day to conduct the sale. Manifestation????Vote yes or no.

43 NO. The student was unable to convince the Hearing Officer that his sale was related to his disability. Considering a variety of sources of information, the school found out that the student initially planned the details of the sale, went home, and brought the drugs back the next day. The hearing officer agreed that this was NOT impulsive, but “planned and deliberate.” “The student’s conduct demonstrated poor judgment but the evidence did not demonstrate that the poor judgment was a manifestation of his disability.

44 Case Number 2- Medford Public Schools 110 LRP (SEA MA 2010) Another student with ADHD with impulsivity issues was involved in a campus felony car break-in. A private psychologist wrote to the school arguing that the behaviors were in fact related to executive function deficits. There was no evaluation record of such deficits. The Psychologist had not conducted an evaluation and had little contact with the student. Manifestation of his disability?? Vote Yes or NO.

45 NO. The hearing officer agreed with the school staff that the circumstances of the nighttime car break-in involved careful planning, and preparation, including arranging for a disguise and attempting to set up an alibi. NOTE: Impulsivity Argument-frequently raised by students with a variety of emotional and behavior disabilities, but must have to indicate behavior that is quick, reactive, and without planning or thought.

46  Each MDR should have an administrative review for compliance  A behavioral support person should be assigned to attend every MDR meeting  The MDR is NOT determined based on a student’s disability label or classification.  Make sure all decisions answer the 2 questions for the MDR  Keep the meeting student centered and discuss alternatives to keep the student in school.

47  “Legal Lessons Learned from Manifestation Determination Cases”-Jan Tomsky, Esq.  “The Proper Role of IEP Teams in Disciplinary Actions”-Jose L. Martin, Attorney at Law  “Student Discipline and the Manifestation Determination Review” David B. Hodgins  LRP Publications  NICHCY

48 Please use your chat pod if you have questions related to this presentation (if time permits, we will answer them, if not, please questions to contacts below)  After this webinar, you may any content-related questions to You may any grant-related questions to Melanie Lemoine

49 The contents of this PowerPoint presentation were developed under a grant from the US Department of Education, #H323A However those contents do not necessarily represent the policy of the US Department of Education, and you should not assume endorsement by the Federal Government.

50  At this time we will launch the brief survey to complete regarding this webinar  If the survey does not appear on your screen, you can go directly to it at After you have completed the webinar, you may exit the webinar


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