Special Education Eligibility and Manifestation Reviews
The California Office of Administrative Hearings recently issued decisions in special education cases before it.
This special education case answers a few important questions such as:
1.) May a child’s disability include characteristics of multiple eligibility categories?
2.) Is a school district limited to considering the disability that served as a basis of eligibility during a manifestation determination review?
3.) Is a child with a disability entitled to an appropriate education that meets all of the child’s unique needs despite their eligibility category for special education?
Emma (not her real name) was a 15-years-old student who attended middle school at the time of her special education hearing in May 2020. She was eligible for a special education under the eligibility category of Specific Learning Disability.
The administrative law judge, Alexa Hohensee, who presided at the hearing and issued the decision on June 9, 2020 wrote that Emma had a “history of family disruption, personal trauma, and difficulty with expressing anger.”
Emma earned a reputation for fighting while in middle school in the Santa Paula Unified School District. By the end of the 2017-2018 school year, when she was in 6th grade, she had repeatedly been suspended for assaulting other students, and she had been missed much school as a result. In March 2018, Santa Paula initiated an educationally-related social emotional services assessment to determine whether she qualified for these services.
For the 2018-2019 school year, Emma attended school in the Fillmore Unified School District where she continued to engage in assaultive behavior. Her May 2018 IEP provided her with a behavior goal to verbally express her anger rather than physically act it out and 30 minutes of weekly individual counseling. Emma’s September 2018 IEP noted that she was exhibiting signs of depression. The team agreed to meet again in October to develop a positive behavior intervention plan.
The plan noted that when Emma felt slighted by a peer, she would confront them, which could lead to physical fights. The plan was that she replace that behavior with self-talk to avoid confrontations or ask for adult help. Fillmore also completed the educationally-related social emotional services assessment.
In mid-November 2018, Emma returned to the Santa Paula Unified School District. About two weeks later, she was suspended for assaulting another student. Santa Paula considered expelling her for violating the code of student conduct that forbade causing, attempting or threatening physical injury to another student.
Her IEP team met for a special meeting called a “manifestation determination review”, which is mandated under the Individuals with Disabilities Education Act (IDEA) when a school district is considering changing the placement of a student with an IEP for disciplinary reasons. Expelling a student is considered such a change of placement requiring a manifestation determination review.
At a manifestation determination review meeting, the student’s IEP team is to determine whether the student’s conduct was caused by or have a direct and substantial relationship to the student's disability and whether the student’s behavior was the direct result of the school district’s failure to implement the student’s IEP. If the school district answers yes to either of these questions, the student must be returned to their placement and provided with a behavior intervention plan, or if they have one, their behavior intervention plan may be updated.
Emma's manifestation review meeting was held in January 16, 2019. At the meeting, the team was informed that she had been diagnosed with Disruptive Behavior and Adjustment Disorder, and she was receiving therapy from a community mental health therapist.
During the manifestation review meeting, the school psychologist acknowledged that Emma’s mental health diagnoses might explain the conduct Emma had engaged for which she was being considered for expulsion. However, the psychologist believed that further testing would need to identify an additional category of eligibility that would encompass assaultive behavior.
1.) A child’s disability may include characteristics of multiple eligibility categories.
In Emma's case, she clearly exhibits the characteristics of multiple eligibility categories. The judge wrote in her decision: “Whether or not further assessment would have identified an additional eligibility category applicable to Student’s disability, her disability clearly included social emotional dysfunction and diagnosed mental health disorders that resulted in an inability to use words to express anger, and resultant physical aggression.”
Nevertheless, in making their determination as to whether Emma’s behavior at issue was direct result of her disability, the Santa Paula IEP team disregarded Emma’s social emotional functioning and mental health diagnoses, and limited their analysis to whether her conduct was a manifestation of her specific learning disability.
Not surprisingly, the team determined that her assaultive behavior was not related to her specific learning disability. More specifically, her behavior was not related to the discrepancy between her cognitive ability and her academic achievement. Thus, her assaultive behavior was not a manifestation of her disability.
2.) A school district is NOT limited to considering the disability that served as a basis of eligibility during a manifestation determination review.
The IDEA and several court cases have broached this question, a few of the latter of which are mentioned below:
The IDEA does not require that a child be placed in the most accurate eligibility category, or to be limited to one eligibility category. It requires that each child who has a disability listed in the IDEA and who, by reason of that disability, needs special education and related services, be regarded as a child with a disability. (20 U.S.C.§ 1412(a)(3)(B); Ed. Code, § 56301, subd. (a).) Children with disabilities would be disadvantaged if they had to select one eligibility category to the exclusion of others. (E.M. v. Pajaro Valley Unified Sch. Dist. (9th Cir. 2014) 758 F.3d 1162, 1174-1175 (E.M.).)
The U. S. Department of Education has advised that a child's entitlement is not to a specific disability classification, but to a free appropriate public education. (Letter to Fazio (Office of Special Education Programs 1994) 21 IDELR 572, 21 LRP 2759.)
More specifically, the U. S. Department of Education has taken the position that there is nothing in IDEA or its implementing regulations that limit a manifestation determination review to only the disability that served as the basis for the eligibility determination. (Letter to Yudien (OSEP 2004) 39 IDELR 242.)
3.) A child with a disability entitled to an appropriate education that meets all of the child’s unique needs despite their eligibility category for special education.
A basic tenet of the IDEA is that a child eligible for special education be provided access to specialized instruction and related services that are individually designed to provide educational benefit through an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. (Board of Education of the Hendrick Hudson Central School Dist. v. Rowley (1982) 458 U.S. 176, 201-204; Endrew F. v. Douglas County School Dist. RE-1 (2017) 580 U.S. [137 S.Ct. 988, 1000].) A child’s unique educational needs are to be broadly construed to include the child’s academic, social, health, emotional, communicative, physical and vocational needs. (Seattle Sch. Dist. No. 1 v. B.S. (9th Cir. 1996) 82 F.3d 1493, 1500, citing H.R. Rep. No. 410, 1983 U.S.C.C.A.N. 2088, 2106.)
As for the second question that an IEP team is to consider at a manifestation review meeting, whether the student’s behavior is a direct result of the school district’s failure to implement their IEP, no evidence was presented at the hearing that the IEP team considered this question. Instead, they appear to have done nothing more than check the box on the manifestation determination form indicating that Emma’s behavior in question was not a direct result of Santa Paula’s failure to implement her IEP.
The evidence at hearing showed that Emma’s IEP was not being implemented during the two weeks that she was enrolled in Santa Paula as it appears that she was not provided the counseling included in her IEP during this time, which would have supported Emma in avoiding fights.