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

Manifestation Determination (Sec. 300.530(e))

Comment: Several commenters requested including in Sec. 300.530(e) the following measures when determining the relationship between a behavior and a disability: 1) whether the child's disability impaired the ability of the child to control the behavior; 2) whether the child understood the impact and consequences of the behavior; 3) whether the placement was appropriate; or 4) whether the IEP, the identified services, and their implementation were appropriate.

Another commenter recommended clarifying that when a determination is made that a child's behavior is not a manifestation of his or her disability, if the group does not consider whether the IEP and placement were appropriate, the parents have the right to file a complaint.

Discussion: The language requested by the commenters was included in section 615(k)(4) of the Individuals with Disabilities Education Act Amendments of 1997, P.L. 105-17. Congress later removed the requirements mentioned by the commenters for conducting a review to determine whether a child's behavior was a manifestation of the child's disability and it would be beyond the authority of the Department to include the language in these regulations. Section 615(k)(1)(E) of the Act now requires the LEA, the parent, and relevant members of the IEP Team (as determined by the parent and the LEA), to determine whether a child's behavior was a manifestation of the child's disability based on two inquiries: (1) was the conduct caused by, or did it have a direct and substantial relationship to the child's disability; or (2) was the conduct the direct result of the LEA's failure to implement the child's IEP?

It is not necessary to clarify that a parent has the right to file a complaint, as the commenters suggest. Section 300.532, consistent with section 615(k)(3) of the Act, provides that a parent of a child with a disability who disagrees with any decision regarding placement under Sec. Sec. 300.530 and 300.531, or the manifestation determination under Sec. 300.530(e), may request an expedited due process hearing, which must occur within 20 school days of the date the complaint requesting the hearing is filed, and the determination by the hearing officer must be rendered within 10 school days after the hearing.

Changes: None.

Comment: Several commenters recommended that the observations used for the manifestation determination review be from both teachers and related service personnel. Some commenters requested Sec. 300.530(e) clarify that the phrase "all relevant information in the child's file" includes a review of the child's IEP, placement appropriateness, special education services, supplementary aids and services, and if the behavior intervention strategies were appropriate and consistent with the IEP. One commenter recommended documents and discussions at IEP Team meetings referencing the child's behavior should be maintained and considered at a manifestation determination.

Discussion: Section 300.530(e)(1), which tracks section 615(k)(1)(E) of the Act, requires a review of all relevant information in the child's file, including the child's IEP, any teacher observations, and any relevant information provided by the parents. We believe this clearly conveys that the list of relevant information in paragraph (e)(1) of the section is not exhaustive and may include other relevant information in the child's file, such as the information mentioned by the commenters. It would be impractical to list all the possible relevant information that may be in a child's file and, therefore, it is not necessary to further regulate on this matter.

Changes: None.

Comment: Several commenters requested clarifying that a manifestation determination under Sec. 300.530(e) would not need to be conducted for removals of not more than 10 consecutive days or for removals that otherwise do not constitute a change in placement.

Discussion: By including an introductory phrase to proposed Sec. 300.530(e)(1) we intended to clarify that a manifestation determination need not be conducted for removals that will be for not more than 10 consecutive school days and will not constitute a change in placement under Sec. 300.536. In other words, manifestation determinations are limited to removals that constitute a change in placement under Sec. 300.536. Upon further consideration, we believe the phrase "except for removals that will be for not more than 10 consecutive school days and will not constitute a change in placement under Sec. 300.536" is unnecessary and confusing. We believe limiting Sec. 300.530(e)(1) to the statutory language in section 615(k)(1)(E)(i) of the Act makes it sufficiently clear that within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct a manifestation determination must be conducted and, therefore, we are removing the introductory phrase as it is unnecessary.

Changes: We have revised Sec. 300.530(e) by removing the introductory phrase "except for removals that will be for not more than 10 consecutive school days and will not constitute a change in placement under Sec. 300.536."

Comment: A few commenters expressed concern that the manifestation determination is too narrow and does not account for the spectrum of inter-related and individual challenges associated with many disabilities.

Discussion: We believe the criteria in Sec. 300.530(e)(1) that the LEA, parent, and relevant members of the IEP Team must determine whether a child's conduct is a manifestation of the child's disability is broad and flexible, and would include such factors as the inter-related and individual challenges associated with many disabilities. The revised manifestation provisions in section 615 of the Act provide a simplified, common sense manifestation determination process that could be used by school personnel. The basis for this change is provided in note 237-245 of the Conf. Rpt., pp. 224-225, which states, "the Conferees intend to assure that the manifestation determination is done carefully and thoroughly with consideration of any rare or extraordinary circumstances presented." The Conferees further intended that "if a change in placement is proposed, the manifestation determination will analyze the child's behavior as demonstrated across settings and across time when determining whether the conduct in question is a direct result of the disability." No further clarification is necessary.

Changes: None.

Comment: A few commenters recommended that the manifestation determination in Sec. 300.530(e) include a case-by-case analysis of the disability of the child involved compared with the child's conduct as many children with disabilities display behaviors that can be disruptive to a classroom, but these behaviors should not be considered a current disciplinary issue when the behaviors are characteristic of the disability.

Discussion: We believe that it is not necessary to modify the regulations to include a requirement that a manifestation determination include a case-by-case analysis of the disability of the child because section 615(k)(1)(E) of the Act and Sec. 300.530(e) are sufficiently clear that decisions regarding the manifestation determination must be made on a case-by-case basis. We believe the Act recognizes that a child with a disability may display disruptive behaviors characteristic of the child's disability and the child should not be punished for behaviors that are a result of the child's disability. The intent of Congress in developing section 615(k)(1)(E) was that, in determining that a child's conduct was a manifestation of his or her disability, it must be determined that "the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability, and was not an attenuated association, such as low self-esteem, to the child's disability." (Note 237-245 of the Conf. Rpt., p. 225). The regulation, which follows the statutory language, thus accurately reflects the manner in which the Act describes the behavior of the child is to be considered in the manifestation determination.

Further, section 615(k)(1)(F) of the Act and Sec. 300.530(f) provide that if the LEA, the parent, and relevant members of the IEP Team make the determination that the behavior resulting in the removal was a manifestation of the child's disability, the following actions must be implemented: (1) the IEP Team must conduct a functional behavioral assessment, unless the LEA had conducted a functional behavioral assessment before the behavior that resulted in the change in placement occurred, and implement a behavioral intervention plan for the child; (2) or if a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior; and (3) return the child to the placement from which the child was removed (other than a 45 day placement under Sec. 300.530(g)), unless the parent and the LEA agree to a change in placement as part of the modification of the behavioral intervention plan.

Changes: None.

Comment: One commenter recommended clarifying that when a determination is made that a child's behavior is not a manifestation of his or her disability, if the group does not consider whether the placement was appropriate, the parents have the right to file a complaint.

Discussion: The Act no longer requires that the appropriateness of the child's IEP and placement be considered when making a manifestation determination. The Act now requires that the LEA, the parent, and relevant members of the IEP Team must, when making a manifestation determination, determine whether (1) the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability; or (2) the conduct in question was the direct result of the LEA's failure to implement the IEP. However, Sec. 300.532, consistent with section 615(k)(3) of the Act, does provide that a parent of a child with a disability who disagrees with any decision regarding placement under Sec. Sec. 300.530 and 300.531, or the manifestation determination under Sec. 300.530(e), may request an expedited due process hearing, which must occur within 20 school days of the date the hearing is requested and must result in a determination within 10 school days after the hearing.

Changes: None.

Comment: Several commenters requested clarification on the potential range of consequences when a disciplinary change in placement has occurred for a child with a disability and the child's behavior is determined to be a manifestation of his or her disability.

Discussion: Under section 615(k)(1)(F) of the Act and section 504 of the Rehabilitation Act of 1973, if the behavior that resulted in the change of placement is determined to be a manifestation of a child's disability, the child must be returned to the placement from which the child was removed (other than a 45 day placement under Sec. Sec. 300.530(g), 300.532(b)(2), and 300.533), unless the public agency and the parents otherwise agree to a change of placement.

When the behavior is related to the child's disability, proper development of the child's IEP should include development of strategies, including positive behavioral interventions, supports, and other strategies to address that behavior, consistent with Sec. 300.324(a)(2)(i) and (a)(3)(i). When the behavior is determined to be a manifestation of a child's disability but has not previously been addressed in the child's IEP, the IEP Team must review and revise the child's IEP so that the child will receive services appropriate to his or her needs. Implementation of the behavioral strategies identified in a child's IEP, including strategies designed to correct behavior by imposing disciplinary consequences, is appropriate under the Act and section 504, even if the behavior is a manifestation of the child's disability. A change in placement that is appropriate and consistent with the child's needs may be implemented subject to the parent's procedural safeguards regarding prior notice (Sec. 300.503), mediation (Sec. 300.506), due process (Sec. Sec. 300.507 through 300.517) and pendency (Sec. 300.518).

Changes: None.

Comment: Many commenters requested modifying Sec. 300.530(e) to require that, if it is determined that the child's behavior was a direct result of the LEA's failure to implement the child's IEP, it must take immediate steps to remedy those deficiencies.

Discussion: If the LEA, the parent, and the relevant members of the IEP Team determine that the child's conduct is a manifestation of the child's disability because the child's behavior was the direct result of the LEA's failure to implement the IEP, the LEA has an affirmative obligation to take immediate steps to ensure that all services set forth in the child's IEP are provided, consistent with the child's needs as identified in the IEP. We agree with the commenters that these regulations should require that, if it is determined that the child's behavior was a direct result of the LEA's failure to implement the child's IEP, the LEA must take immediate steps to remedy those deficiencies. Therefore, we are adding a new paragraph (e)(3) to this section, consistent with this obligation.

Changes: We have added a new paragraph (3) to Sec. 300.532(e) which provides that, if the LEA, the parent, and relevant members of the child's IEP Team determine that the child's behavior was a direct result of the LEA's failure to implement the child's IEP, the LEA must take immediate steps to remedy those deficiencies.

Comment: A few commenters expressed concern that the absence of short-term objectives in the IEP hampers the ability to determine if the child's conduct was the direct result of the LEA's failure to implement the IEP.

Discussion: We disagree with the commenters that the absence of short-term objectives in the IEP will hinder the ability of the LEA, the parent, and relevant members of the IEP Team to determine whether a child's conduct is the direct result of the LEA's failure to implement the child's IEP. The group members making the manifestation determination are required to review not only the IEP of the child, but all relevant information in the child's folder, any teacher observations of the child, and any relevant information provided by the parents. We believe the information available to the group making the manifestation determination, when reviewed in its totality, is sufficient to make a manifestation determination.

Changes: None.