El Dorado County Office of Education, Placerville

Suspension, Expulsion and Manifestation Determination Reviews

General Information

Students may be subject to suspension or recommended for expulsion after demonstrating behaviors consistent with California Education Code (EDC) sections 48900 and 48915. The decision to implement a suspension or recommend expulsion is at the discretion of the Local Education Agency (LEA)/district administration. Under California Law, the disciplinary procedures, including expulsion procedures (EDC §48900), for students attending public schools do not apply to charter schools (EDC §47610).  Instead, California law requires all disciplinary procedures be included in the charter petition and provided to parents before any expulsion (CA EDC § 47605(b)(5)(J)).  If a Charter seeks to expel a student, it must follow the procedures in its charter and ensure, before taking any action, the parents are given a copy of these procedures.  All students have basic rights when disciplinary actions are taken by an LEA/district. In addition to their basic rights, students with disabilities have additional protections. If a student qualifies as a student with a disability under either the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1400 et seq.) or Section 504 of the Rehabilitation Act (Section 504) (29 U.S.C. §794) the Charter must comply with any requirements imposed by these laws,including guidelines set forth by this section of the El Dorado SELPA Procedural Guide.

State Guidance for New Laws on Discipline

The California Department of Education (CDE) encourages administrators to provide alternatives to suspension or expulsion, using a research-based framework with strategies that improve behavioral and academic outcomes for students. The CDE’s letter to County and District Superintendents and Charter School Administrators, titled “State Guidance for New Laws on Discipline,” outlines recent laws, minimizing suspension for attendance, highlights the importance of suspension as a last resort, and the idea of support instead of suspension. The El Dorado SELPA recommends that LEA/districts consider implementing alternatives to suspension as part of their multi-tiered system of support.

Suspension, In-school Suspension, and Removal

“Suspension” typically refers to the disciplinary action taken by school administration which involves a student not being allowed on campus for a specified number of days. An “in-school suspension” occurs when the LEA/district suspends a student during the school day (partial or full day) without the student leaving the school campus.

The IDEA distinguishes between short-term suspensions -- a period of 10 school days or less-- and long-term suspensions. Generally, a special education student who has been suspended for less than 10 days receives no special protection under the IDEA, even if the misconduct is related to the student's disability 34 CFR §300.530 (b).

Special education students are considered removed from their educational placement when they cannot (34 CFR §300.530and71 CFR 46715):

Continue to appropriately progress in the general education curriculum
Continue to receive services or progress on goals listed on their IEP; and
Participate with non-disabled peers to the extent dictated by their IEP.

An in-school suspension or any other disciplinary action that meets the criteria above counts towards the total number of days of suspension for a student with a disability. The terms “suspension” and “removal” are utilized interchangeably in the Code of Federal Regulations, California Education Code, and within this section of the El Dorado SELPA Procedural Guide.

Disciplinary Removals of 10 days or Less

An LEA/district may remove a student with a disability who violates a code of student conduct from their current placement to an appropriate interim alternative educational setting, another setting, or suspension, for 10 days or less, as long as the removal does not constitute a change of placement(34 CFR §300.536).

Determining Whether a Change of Placement Occurs

For removals of a student with a disability from their current educational placement, a change of placement occurs if (34 CFR §300.536):

The removal is for more than 10 consecutive school days; or
The child has been subjected to a series of removals that constitute a pattern when:
- A series of removals totaling more than 10 school days, within a single school year;
- The student’s behavior is substantially similar to their behavior in previous incidents that resulted in the series of removals; and
- Additional factors, such as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another

Disciplinary Removals of More Than 10 Days

If a student with a disability is removed from their current placement for more than 10 days in an academic school year (including extended school year), the removals qualify as a change in placement and the LEA/district must conduct a Manifestation Determination Review (MDR) meeting within ten days of the decision to change the student’s placement (34 CFR § 1415(k)).

Manifestation Determination Review

A Manifestation Determination Review (MDR) must be held when an LEA/district proposes to take disciplinary action that results in a change of placement. More specifically, it is required once a student reaches 10 days of suspension and for each instance of suspension thereafter. It is also required when a student is being considered for expulsion (see Expulsion Procedures for Students with Disabilities). An MDR examines the relationship between a student’s disability and their misconduct (34 CFR §300.530 (e)(1)). The purpose of an MDR is to determine the following:

(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.To achieve this purpose, the MDR meeting attendees shall review all relevant information in the student’s file, including but not limited to:

Current/past health and medical information
Current/past assessments
Current/past IEPs
Current/past teacher observations,
Any relevant information provided by the parents

MDR Meeting Requirements

Attendees

The following individuals shall be in attendance:

Parent1
LEA/District Representative
Any relevant members of the IEP team as determined by the parent and the LEA/district

Note: The school psychologist falls under the “relevant members” of the IEP team and is generally regarded as the expert in understanding and explaining a student’s disability. Due to this critical role, it is strongly suggested that the school psychologist be included. Although it is not legally required, it is considered best practice for the LEA/district school psychologist to complete a written MDR report to assist the MDR team in answering the relevant questions. A template to support school psychologists in writing MDR reports is available for download through the El Dorado SELPA School Psychologist Portal.

Process

To access a visual summary of the MDR process please refer to the El Dorado SELPAs Manifestation Determination Review Flowchart. After completing a full review of all relevant information, the manifestation determination meeting attendees shall answer the following two questions:

Was the conduct in question caused by the student’s disability (medical or educational), or did it have a direct and substantial relationship to the disability?
Was the conduct in question the direct result of the LEA/district’s failure to implement the IEP?

If the team needs additional information to answer either of the questions listed above, further assessment may be required. Under these circumstances, the MDR process is on hold, and an Assessment Plan shall be developed and provided to the parent. The MDR would resume once the assessments have been completed and reviewed by the IEP team. The student returns to the placement identified in the last IEP that was signed with parental consent. When appropriate, the IEP team may convene while the MDR is on hold to review the student’s current needs/goals/services and placement while awaiting additional assessment information. If the MDR meeting attendees answer “no” to both questions above, the determination is made that the behavior was not a manifestation of the disability.

If the MDR meeting attendees answer “yes” to either or both questions above, the determination is made that the behavior was a manifestation of the disability.

The El Dorado SELPA recommend MDR meeting attendees utilize and complete the “Manifestation Determination” form located in the student’s SEIS profile.

MDR Team Determines Misconduct is a Manifestation of the Student’s Disability

If the MDR team determines the misconduct is a manifestation of the student’s disability, the student shall return to the placement from which the student was removed, and an IEP meeting shall be convened.

The IEP team must then:

Conduct a Functional Behavioral Assessment (FBA), unless the LEA/district had conducted an FBA before the behavior that resulted in the change of placement occurred, and implement a Behavioral Intervention Plan (BIP) for the child; or
If a BIP already has been developed, review the BIP and modify it, as necessary, to address the behavior.

MDR Team Determines Misconduct is not a Manifestation of the Student’s Disability

If the MDR team determines the misconduct was not a manifestation of the student’s disability, then the student may be subject to the same sanctions for misconduct as a child without a disability.

Expulsion Procedures for Students with Disabilities

Expulsions are considered a change of placement under the IDEA and require the following procedures CFR 34 CFR §300.530:

The LEA/district must determine whether the behavior constitutes “special circumstances” under which a student may be removed to an Interim Alternative Educational Setting (IAES) for up to 45 school days. 
Convene an MDR meeting within 10 school days of the decision to start the expulsion process, see Manifestation Determination Review Meeting Requirements.
- At the MDR meeting, the team must review all relevant information regarding the student, including information on the specific conduct leading to disciplinary action. 
- After fully reviewing all relevant information, the team must answer the following two questions:
  - Was the conduct in question caused by the student’s disability or did it have a direct and substantial relationship to the student’s disability?
  - Was the conduct in question the direct result of the Charter’s failure to implement the IEP?
The procedures vary based on whether the team determines the behavior was a manifestation of the student’s disability. 
- When the behavior is a manifestation of the student’s disability, the LEA/district may not go forward with the expulsion and return the student to the placement from which the student was removed, unless an IEP meeting is convened, and a new placement is agreed upon. The LEA/district must also conduct a functional behavioral assessment (FBA), unless an FBA was completed before the behavior occurred, and implement a behavior intervention plan, or if a behavior intervention plan has been developed, review it, and modify it as necessary to address the behavior.
- If the behavior is not a manifestation of the student’s disability, then the LEA/district may go forward with expulsion proceedings used for all students. However, the student is still entitled to FAPE 34 CFR §300.530 (b). Therefore, the IEP team must convene and develop a program and placement.  (See Program and Placement for Students Who Are Expelled) The student must receive, as appropriate, a functional behavioral assessment, and behavioral intervention services and modifications, designed to address the behavior violation to prevent the behavior from occurring again.

Program and Placement for Students Who are Expelled

Students must continue to receive FAPE during any period of suspension beyond ten days, during any period of interim placement, and during any period of expulsion 34 CFR §300.530 (b)(2). 

However, FAPE is defined differently for expelled students. The following IDEA requirements apply to expulsions:

A student with a disability who is expelled from the student’s current placement must:
- Continue to receive educational services to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student's IEP; -and- 
Receive, as appropriate, an FBA and BIP and modifications designed to address the behavior violation so it does not reoccur.
- The services required to provide a student with a FAPE, may be provided in an IAES.

Prior Written Notice Requirements

The LEA/district must provide the parent with prior written notice (PWN), including their procedural safeguards, before taking any action to change a student’s placement, including any decision to commence expulsion proceedings 34 CFR §300.503. When an MDR is conducted, a PWN may be provided with the written findings following the meeting.

Special Circumstances

An LEA/district may remove a student to an Interim Alternative Educational Setting (IAES) for no more than 45 school days without regard to whether the behavior is determined to be a manifestation of the student’s disability if the student 34 C.F.R. §300.530(g):

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 LEA/district;
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 LEA/district; or
Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of an LEA/district.

When a decision is made by an LEA/district to place a student into an IAES based on any of the behaviors listed above, the IEP team is responsible for determining the student’s IAES placement. This includes the location of the IAES and the services the student receives during their IAES placement 34 CFR § 300.531. Although the student may remain in an IAES for up to 45 days without regard to whether the behavior is determined to be a manifestation of the student’s disability, an MDR meeting must still be held within 10 days from the decision to change the student’s placement 71 Fed. Reg. 46715 (2006). This meeting may support the IEP Team with relevant information in determining the next steps to support the student. A student removed to an IAES "must continue to receive educational services to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP" 34 CFR 300.530(d)(1). However, the LEA/district is not required to provide exactly the same services in the same setting as the student was receiving before the removal to an IAES 71 Fed Reg 46716 (2006).

Student Not Yet Found Eligible

A student who has not been determined to be eligible under the IDEA or Section 504 of the Rehabilitation Act and who has engaged in behavior that violated a code of student conduct may be entitled to a manifestation determination review meeting if the LEA/district had knowledge the student was a student with a disability before the behavior that precipitated the disciplinary action occurred (34 CFR 300.534(a)).An LEA/district shall be deemed to have knowledge a student is a student with a disability if before the behavior precipitated the disciplinary action occurred; one or more of the following took place:

The parent of the student expressed concern in writing to administrative or instructional personnel of the LEA/district that the student needs special education and related services;
The parent of the student requested an evaluation of the student;
The teacher of the student, or other personnel of the LEA/district, expressed specific concerns about a pattern of behavior demonstrated by the student to the Director of Special Education or to other supervisory personnel of the LEA/district (34 CFR 300.534);

LEA previously assessed the student, and the student did not qualify for special education services; or the student did qualify for services and parents declined them;

LEA referred the student for special education testing to establish initial eligibility, but the parent refused evaluation and/or services.

Alternatives to Suspension & Expulsion

LEAs are encouraged to provide alternatives to suspension or expulsion, using a research-based framework with strategies that improve behavioral and academic outcomes, that are age-appropriate and designed to address and correct the pupil’s specific misbehavior under EDC §48900(w)(1).It is recommended LEAs consider replacing Suspension with Support and except for specified exceptions, suspension, including supervised suspension, shall be imposed only when other means of correction fail to bring about proper conduct and then continues to provide an extensive list of suggested positive, non-exclusionary alternative practices. Other means of correction may include additional academic support, to ensure, for example, instruction is academically appropriate, culturally relevant, and engaging for students at different academic levels and with diverse backgrounds EDC §48900.5.

The CDE provides a webpage for Behavioral Intervention Strategies and Supports which can be found at: https://www.cde.ca.gov/ls/ss/se/behaviorialintervention.asp.

If you have any questions regarding the guidance provided in this document, please contact your El Dorado SELPA Program Specialist.

1 The term “parent” refers to a natural parent, adopted parent, or legal guardian (EDC §49061). Any rights afforded to the parent are transferred to the adult student when they reach the age of majority (age 18), except in cases when a student with a disability has been deemed unable to make their own educational decisions under California Law. Therefore, references to the parent may also include adult students.

State Guidance for Laws on Discipline: https://www.cde.ca.gov/nr/el/le/yr21ltr0819.asp

Federal Guidance Documents to Help Schools Support Students with Disabilities and Avoid Disparities in the Use of Discipline: https://sites.ed.gov/idea/new-guidance-helps-schools-support-students-with-disabilities-and-avoid-discriminatory-use-of-discipline/