The Individuals with Disabilities Education Improvement Act of 2004 (IDEA) and its implementing federal regulations have changed the process school districts must follow to conduct a manifestation determination review for a student with disabilities facing long-term suspension or expulsion.
The new manifestation determination review provisions are found at 34 Code of Federal Regulations (CFR) § 300.530(e)–(h). The final IDEA 2004 regulations were published in the August 14, 2006, edition of the Federal Register and will become effective 60 days from that date, on October 13, 2006. The new provisions on Manifestation Determination state:
§300.530(e) Manifestation Determination (under Discipline Procedures)
(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
(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.
§300.530(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.
§300.530(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 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.
§300.530(h) Notification. On the date on which the decision is made to make a removal that constitutes a change in the 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 required by §300.504 of the IDEA regulations.
The Special Education Unit of the Arkansas Department of Education (ADE) has begun the process of revising the State Special Education Rules and, as necessary, the accompanying State forms to comport to the newly issued IDEA Part 300 federal regulations. The goal is to complete the revision process by June 30, 2007. In the meantime, school districts must conduct manifestation determinations in a manner consistent with IDEA 2004 and the new regulations, and must carefully document all findings and actions taken during the course of each manifestation determination review. The Manifestation Determination Review form, adopted by the ADE in 2000 following publication of the IDEA 1997 federal regulations in 1999, is now technically incorrect. Therefore, until the revised form is available, school districts must document a Manifestation Determination Review in a manner that reflects the requirements of the new regulations at §§300.530(e)-(h).