October 2009

Issue of the Month: Manifestation Determination, three scenarios

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1. Let's say you have a student on an IEP who misbehaves and is referred for expulsion. The district holds an expulsion hearing before conducting any manifestation determination but does not expel the student or even suspend the student for more than ten consecutive school days. Did the district violate the requirement to hold a manifestation determination review before a disciplinary change in placement? OSEP says no, the requirement is to hold the review before the removal, not before the expulsion hearing to consider the removal. Letter to Annon., (OSEP, March 18 2005).

2. Same student, but this time the district holds the manifestation determination review within the ten school day timeline, determines that the misconduct was not a manifestation of the student's disability and, following an expulsion hearing, expels the student and moves the student to an alternative school for the duration of the expulsion period. About a month later, the parent gets a private evaluation which diagnoses a previously undiagnosed (and unknown to the district) condition which, if the district had known at the time of the manifestation determination review, might well have changed the outcome of that meeting. Should the district hold another manifestation determination review to consider the new information? OSEP says no, "it is not recommended that the IEP team reconvene to re-conduct the manifestation determination. Any new information, could, however, be used as a basis for an IEP meeting to reexamine the student's program and placement." Letter to Brune, (OSEP, March 17, 2003). In other words, the district still has a responsibility to provide an appropriate education, and should address the newly identified needs in the student's current IEP going forward.

3. Now we have a student who is identified as having a specific learning disability for IDEA purposes, but also has ADHD. Student misbehaves, and district holds a manifestation determination review. Should the team just consider whether the misbehavior is related to the SLD or should the team also consider the ADHD? Does it matter whether the team knew the student had ADHD at the time of the misbehavior or if, instead, the parent came to the manifestation determination with a new diagnosis? Here, OSEP says that the team must consider "all relevant information". Surely, information related to a known disability should be considered as part of the manifestation determination. If the parent brings information to the meeting about a previously unknown disability, the team should only "look back" with that information if the district "knew or should have known" of the disability. Either way, the district should consider and address the new information going forward. See Letter to Yuden,(OSEP, August 1, 2003).