When should a manifestation determination review be held after a school suspension?

Discussion in 'Special Ed 101' started by pinevalley, Sep 12, 2011.

  1. pinevalley

    pinevalley Member

    My difficult child is 18 years old, and he is a senior in high school. He spent the last year in an alternative high school in our district, and he is now on a path to return to his regular high school next semester. He was suspended for 3 days last week, because the staff at the alternative school search all the teens backpacks every day, and difficult child had a package or herbal incense that can be used to get high in his backpack. Now they have called a meeting to reevaluate whether difficult child is ready to return to the regular high school at all, or if he should graduate from the alternative hs. difficult child received a phone call last week telling him that there would be a meeting today before school. My husband or I were not notified by phone or in writing about any meeting at all. I went with difficult child to this meeting today, and was very surprised to find out that it was a formal IEP review meeting, with a room full of administrators and teachers. When I asked them what kind of meeting this was the Special Education chair told me they were going to have a manifestation determination review and then they would evaluate whether difficult child should return to the regular high school. I was so surprised that this was a formal IEP meeting that I got upset and told them that we did not receive any notice of this meeting. I then told them that I was not ready for this review and we would have to reschedule the meeting.
    The staff at the schools want to schedule this meeting ASAP, because they want to review difficult child behavior problem that led to the suspension. Do you know if there is any rule that says a manifestation determination review must be held xxx many days after a student has been suspended? I want to include a therapist that is working with difficult child every week to this meeting, but he is not available at all this week. I want to reschedule this meeting for one week to include the therapist, but can the school tell me that this meeting must be held within one week of any suspension? I'm not sure of the rules about scheduling an IEP meeting or a manifestation determination review. I think that it is important to include our therapist in this meeting, since they will be reviewing whether difficult child's disability led to his being suspended last week. The school psychologist was not in this meeting today, just administrators and teachers.
    Thank you.
  2. TeDo

    TeDo Guest

    Not sure if this helps or not but it is from the federal Individuals with Disabilities Education Act of 2004. As far as I know, power is NOT automatically transferred to him when he turned 18. You might want to call your State Department of Education to find out. Make sure they know of his Special Education status when you call. There are sometimes a different set of rules. Sorry this is the best I can do. Hugs!!

    (e) Manifestation determination.
    (1) 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, the LEA, the parent, and relevant members of the child’s IEP Team (as determined by the parent and the LEA) must review all relevant information in the student’s file, including the child’s IEP, any teacher
    observations, and any relevant information provided by the parents to determine-- (i) If the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or IDEA 2004 Regulations Part E: Procedural Safeguards (ii) If the conduct in question was the direct result of the LEA’s failure to implement the IEP.
    (2) The conduct must be determined to be a manifestation of the child’s disability if the LEA, the parent, and relevant
    members of the child’s IEP Team determine that a condition in either paragraph (e)(1)(i) or (1)(ii) of this section was met.
    (3) If the LEA, the parent, and relevant members of the child’s IEP Team determine the condition described in paragraph
    (e)(1)(ii) of this section was met, the LEA must take immediate steps to remedy those deficiencies.
    (f) Determination that behavior was a manifestation. If the LEA, the parent, and relevant members of the IEP Team make the determination that the conduct was a manifestation of the child’s disability, the IEP Team must--
    (1) Either-– (i) Conduct a functional behavioral assessment, unless the LEA had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the child; or (ii) If a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior; and (2) Except as provided in paragraph (g) of this section, return the child to the placement from which the child was removed, unless the parent and the LEA agree to a change of placement as part of the modification of the behavioral intervention plan.
    (g) Special circumstances. School personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child’s disability, if the child-- (1) Carries a weapon to or possesses a weapon at school, on school premises, or to or at a school function under the jurisdiction of an SEA or an LEA; (2) Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA; or (3) Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA. (h) Notification. On the date on which the decision is made to make a removal that constitutes a change of placement of a child with a disability because of a violation of a code of student conduct, the LEA must notify the parents of that decision, and provide the parents the procedural safeguards notice described in §300.504.
    (i) Definitions. For purposes of this section, the following definitions apply:
    (1) Controlled substance means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)). (2) Illegal drug means a controlled substance; but does not include a controlled substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act or under any other provision of Federal law.
  3. keista

    keista New Member

    Well, they did drop the ball on that part, didn't they?

    Since he's already in an alternative setting, while the meeting should be held in a timely manner, they can wait it out a few more days - especially since they never formally notified you.

    While the incense may be against school rules, there are currently no Federal laws against it. Possibly local laws. But you'd have to go research the controlled Substances Act to be sure.
  4. Malika

    Malika Well-Known Member

    Ummm.... what did your son intend to do with the incense and why did he have it with him? These do seem to me relevant questions when considering how you, and the school, should handle this.
  5. slsh

    slsh member since 1999

    All rights *do* transfer to the student at age 18. The SD should have sent you a letter stating this when he hit 17. If you don't recall getting one, ask for a copy from the SD - I think it's called a notification of transfer of rights, or something like that, and IDEA requires SD to notify parents. Unless you have gotten guardianship of him as an adult (and notified the SD), the SD is no longer under any obligation to notify you of anything. In fact, they can't notify you of anything without your difficult child's permission because he is an "adult" now.

    In terms of the MDH, yep, 10 days.
  6. JJJ

    JJJ Active Member

    Just wanted to 2nd this, legally without guardianship, the only way you get to go to those meetings is if your son invites you.
  7. pinevalley

    pinevalley Member

    Thank you for your responses. I found out yesterday that all rights automatically transfer to the student when he turns 18 years old. They explained this in the meeting yesterday, and I told them that my husband and I wanted to be part of the decisions regarding our son's education (difficult child also wanted us to be involved). I then signed a form which gives husband and I the right to be included in IEP meetings.

    I have sent an email to the 3 people on the IEP team today to say that we want to reschedule the IEP meeting until next week. I know that they want this to happen ASAP after difficult child was suspended. I have not heard any response from the school yet, but my husband, I and difficult child will not be at any meeting on Wednesday morning.

    Also, when the school searched difficult child's backpack and found the incense, difficult child told them that it wasn't even his incense and that it belonged to a friend of his who had borrowed his backpack. This answer may not be true, but this is what difficult child told the school. difficult child was suspended for three days for bringing in contraband to the school, and now that want to have this manifestation determination review. My husband and I really feel that it is important to include the therapist who has been treating difficult child for the past 18 months in this meeting. Can the school still hold an IEP meeting tomorrow if the difficult child or his parents are not at the meeting?
  8. JJJ

    JJJ Active Member

    The school must make every effort to include the student and his parents. It is reasonable for you to ask for the meeting to be rescheduled for next week. They should honor that request.
  9. seriously

    seriously New Member

    So your son's current IEP calls for his transition to the regular high school and a significant change in the services, modifications and accommodations (i.e. his placement)?

    The results of a Manifestation hearing are either:

    1. The student is responsible for his actions because they cannot be considered a result of his disability. In that case the school is free to administer the typical consequences for the violation and your son is receiving FAPE.


    2. The violation is a result of the student's disability. In which case the school district is at fault for failing to provide FAPE (i.e. appropriate services) since provision of FAPE means that the student's individualized educational placement is meeting his unique needs. This means that a review of the current placement (which is NOT the school site but rather the combination of services, modifications and accommodations called for in the IEP) must be conducted so that the placement (think services NOT school site) can be changed to ensure that the school district is providing FAPE.

    As others have said, the law requires that a Manifestation Hearing be conducted within 10 school days. In order for the School District to avoid a potential procedural violation, they must hold the hearing (whether you and your son are there or not). They will probably not offer this option but I believe that their legal butts are covered if they get a written statement from your son agreeing to an extension of time for the hearing to be conducted. The school district will be understandably reluctant to delay the hearing again. But they should be willing to do so if your son provides them with a written extension for X days or a proposed meeting date(s) within the next 10 school days and guarantees that he will attend.

    School districts can be very focused about Manifestation Hearings if they are paying attention - as I would expect in a large urban school district. Ignoring the legal requirements for a Manifestation Hearing leaves them open to both procedural violations by the State Dept of Ed and Due Process lawsuits from parents/students that the school has failed to provide FAPE.

    Manifestation hearings are mostly held because a student is approaching or expected to approach 10 days lost due to in house or out of house suspensions. Exceptions would be violent acts in or out of school, acts by the student that would normally result in expulsion, things like that.

    In this case it appears that they are holding the hearing because they need to clarify whether the change in placement (i.e. moving to regular high school) will guarantee FAPE.

    In considering whether to try to include the therapist, I would ask what the therapist would bring to the table to help clarify whether the school district's planned placement (i.e. regular high school) will represent FAPE.

    Often, outside therapists are ignored or considered to have nothing to contribute in this kind of situation. And often the school district is right about that since most therapists have no idea what the legal requirements and tests of whether the district is providing FAPE. This doesn't mean the therapist shouldn't attend. But if he/she has not attended previous IEP meetings with your son and/or has limited experience with IEP meetings it may not be helpful to include him/her.

    I would counsel you to at least consult an advocate before the meeting if at all possible. If one can attend the hearing on your son's behalf that would be great but I doubt you have enough time if you have to do it by Wednesday.

    The school district can (but shouldn't) go ahead with the hearing if they have made a legitimate effort to arrange the hearing at a time and place more convenient and communicated with you/your son about it but he refuses to attend. So, you may want to try to go to the Wednesday meeting and ask for a continuation until the following week. This would be something that an advocate could counsel you about. Perhaps an advocate could write a letter for your son to present on Wednesday asking for the continuation to allow time for the advocate to review the records.

    If there is any chance that your son could be expelled as a result of this violation then you absolutely need an advocate, in my opinion.