IEP Process: Manifestation Determination Part 1

It’s that time of year, again.  A time special education teachers find themselves stressed: IEP Annual Reviews.  And I’m going to talk about those annual reviews but I want to spend a minute on a special IEP process that is dreaded by all parties even more than an IEP.  That would be the manifestation meeting.  I’m going to speak primarily to/about case managers here, but parents would do well to pay attention in order to better understand the process.

My kids will never see a manifestation because virtually every strange behavior can be attributed to having a severe or profound cognitive disability.  Also, my kids are supervised 24/7 and if there was a manifestation someone would probably be fired in the process.

A manifestation determination meeting is triggered by some disciplinary action that will effectively change a student’s placement.  For instance, if a student is suspended for more than 10 days or expelled or if they are going to an alternative school or boot camp or to a more restrictive setting.

The purpose of the manifestation hearing is to answer 2 basic questions:

– Are whatever charges against a student a manifestation of their disability?
and
– Are whatever charges brought against a student a direct result of the school’s failure to provide services to the student as outlined in the IEP?

If the answer to both of these questions is “No” then it’s pretty much a slam dunk that the student’s actions were not a manifestation of the disability.  That does not mean the student is automatically guilty or not guilty, it simply means that the local education agency can now go through the more typical disciplinary process.

I was at one such meeting last week and it was interesting.  The parent was there and I believe that she is not the first parent to arrive at a manifestation thinking that this meeting was going to determine her son’s fate.  So let us suppose as just an example that the charge was larceny (stealing) in which he might have accepted money that he knew was stolen.  Charges are filed and a manifestation was triggered because the pending penalty for this was 10 or more days suspension.

The meeting is run almost exactly like an IEP.  There are more administrators and teachers there, but we went through the steps.  We signed in, made introductions and gave the parent a copy of her rights.  The specific charges were presented and then a present level of performance was given.

If you’ve read my article on that, you know that a parent can present their own and introduce other people like private service providers to present a current picture of performance.  Like a regular IEP, this will lay groundwork for future actions and decisions.  This particular student was being served for a specific learning disability in the area of written expression.  What the heck does written expression have to do with stealing money from someone’s purse?  To most, it looks like a slam dunk for the district.  But teachers did present little things that a savvy parent could have picked up on.  For instance, one teacher did notice that the student seemed to lack focus.  He seemed to be somewhat impulsive.  He had difficulty staying on task.  He was not turning in assignments.  Otherwise he was not a disciplinary problem and seemed to try hard in some of his classes.

Can you spot the opening?  Poor impulse control and poor reasoning are things that might lead one to steal or succumb to peer pressure to accept stolen goods.  As a parent, you may have to pry a bit to make a small crack into a bigger opening in order to get help for your student.

This student did not have a behavior intervention plan as part of their IEP and no functional behavior assessment (FBA) was done.  I can say that an FBA specific to stealing for this kid would not be worth much.  But impulse control and better judgment might be worthy goals to consider.  Attempting to identify the function of his thievery might be a worthwhile at least informally.  Was it peer pressure?  Was it maliciousness?

As a teacher, being notified of having to do a manifestation can send your blood pressure soaring.  You’re pretty much guaranteed that at least one administrator and parent will be there along with a host of other colleagues.  And you’re guaranteed that emotions will be running a bit high.  You’re truly in the middle between parent and administration.  You don’t get much notice and have a hard deadline to meet for having it all ready.

So if you’re a new teacher, how do you prepare for a manifestation?  What are your responsibilities as a caseload manager?

Each district might be slightly different, but there are a couple of areas that will always be the same.  First off, look at the most current IEP.  Is it, indeed, current?  Is the eligibility up to date?  Is the student currently getting all the services in the IEP?  Does the student have a behavior intervention plan (BIP)?  Is it based on a functional behavior assessment (FBA)?  If there is no FBA, you’re going to have to do a very quick and very dirty one.  This is why I continue to advocate every student with a BIP also have an FBA.  It’s much better to have a proper one done in advance than a poor one hastily cobbled together when you’re desperate and stressed.

The present level of the IEP will have to be updated for the manifestation to reflect the most current status as far as attendance, grades, and disciplinary records.  A counselor and psychologist can be helpful members of the manifestation committee.

The caseload manager is primarily responsible for all things having to do with an IEP because the manifestation hinges on the implementation of that document.  More than one due process hearing has started in a manifestation.   On occasion, the manifestation meeting will transform into an IEP committee meeting, especially if it is determined that the incident in question is a manifestation of the child’s disability.  Then it is a matter of assembling supports and services that can better serve the student.

Beyond the mechanics of the manifestation, there are some other considerations that a caseload teacher needs to assess.  These probably won’t be mentioned in any text but it has to do with the agenda of the system vs the student.  The administrator in charge of the manifestation is definitely voicing the views of the district.  The parent is advocating for their child.  Whose side are you on?  This is going to be evident in how you assemble your part of the hearing.  There is considerable pressure to always go along with the district.  Remember the question about implementing the IEP?  That usually falls heavily on the case manager.  However there are ethical considerations that when violated may haunt you for a long time.  Sometimes the district is just trying to get rid of a kid they would rather not serve at all.  In almost every instance, the district does NOT want an incident to be a manifestation of the student’s disability.   Being determined as a manifestation of a student’s disability represents some failure on the part of the district to provide sufficient support.  They are interested in getting to the tribunal or other regular disciplinary process.

All I’m saying is, be prepared to be pressured but do not automatically assume the district is correct or right in their assertions.  Having said that, I would strongly recommend getting as many facts as possible and investigate as much as possible.  If you, as a case manager, see the possibility that this might be either a manifestation of a student’s disability or a manifestation of the school’s failure to provide services, you really need to talk to the administrator before hand.  They may not appreciate it at first, but they have to appreciate your knowledge and expertise in the field.  They may respect it even more if the parent brings an advocate.  Surprises at this point are not going to be appreciated, so do not wait until the manifestation to spring your view that the district has no case.

I’m going to split this topic in two, because I think I need to speak directly to parents about this issue.  If you are a case manager, it would do well to read that part as well.  You need to know all the angles here.  One other helpful resource is found here.

Part 2 can be found here.

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