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U.S. Department of Education: Promoting Educational Excellence for all Americans

Determination that behavior was a manifestation (Sec. 300.530(f))

Comment: Some commenters recommended requiring that, even if a child's conduct is determined not to be a manifestation of the child's disability pursuant to Sec. 300.530(e), the IEP Team, in determining how the child will be provided services, must, at a minimum, consider whether to conduct a functional behavioral assessment and implement a behavior plan. One commenter requested that the requirement in Sec. 300.530(f) for conducting a functional behavioral assessment be removed from this section and added to Sec. Sec. 300.320 through 300.324, regarding IEPs.

Discussion: Section 300.530(f), consistent with section 615(k)(1)(F) of the Act, requires that a child with a disability receive, as appropriate, a functional behavioral assessment, and behavioral intervention plan and modifications, that are designed to address the child's behavior if the child's behavior that gave rise to the removal is a manifestation of the child's disability. As provided in Sec. 300.530(e), a manifestation determination is only required for disciplinary removals that constitute a change of placement under Sec. 300.536. However, we must recognize that Congress specifically removed from the Act a requirement to conduct a functional behavioral assessment or review and modify an existing behavioral intervention plan for all children within 10 days of a disciplinary removal, regardless of whether the behavior was a manifestation or not.

We also recognize, though, that as a matter of practice, it makes a great deal of sense to attend to behavior of children with disabilities that is interfering with their education or that of others, so that the behavior can be addressed, even when that behavior will not result in a change in placement. In fact, the Act emphasizes a proactive approach to behaviors that interfere with learning by requiring that, for children with disabilities whose behavior impedes their learning or that of others, the IEP Team consider, as appropriate, and address in the child's IEP, "the use of positive behavioral interventions, and other strategies to address the behavior." (See section 614(d)(3)(B)(i) of the Act). This provision should ensure that children who need behavior intervention plans to succeed in school receive them. For these reasons, we decline to make the changes suggested.

Changes: None.

Comment: Many commenters requested requiring that a functional behavioral assessment older than one year be considered invalid in a manifestation determination review. One commenter suggested that the regulations include language that requires the agency to conduct a new functional behavioral assessment when the child's most recent functional assessment is not current.

Discussion: We believe it would be inappropriate to specify through regulation what constitutes a "current" or "valid" functional behavioral assessment as such decisions are best left to the LEA, the parent, and relevant members of the IEP Team (as determined by the LEA and the parent) who, pursuant to section 615(k)(1)(E) of the Act, are responsible for making the manifestation determination. As a policy matter, a previously conducted functional behavioral assessment that is valid and relevant should be included in the information reviewed by the LEA, the parent, and relevant members of the IEP Team when making a manifestation determination.

Changes: None.