Recommendation: Amend the proposed regulation C.6.a.(2) as underlined and crossed out, so that it provides that children who are long-term removed “continue to receive those services and modifications including those described in the child’s current IEP that will to enable the child to progress toward meeting the IEP goals . . .”

Justification: An IEP contains the services and goals that the IEP team has determined are necessary for a child to receive the legally-required FAPE.  By definition, an IEP contains services necessary to make progress towards those goals and receive FAPE.  The IDEA requires the provision of FAPE to all children, which includes progress in the general curriculum and receipt of services and modifications that enable the child to meet IEP goals.  Thus, children who are subject to long-term removals must continue to receive the services in their IEPs.  It would be inappropriate to allow LEAs to pick and choose among the services based on what school personnel might believe are necessary to enable a child to make progress.

Recommendation: Amend the proposed regulation C.6.a.3. to require that a functional behavioral assessment (FBA) and behavioral intervention plan (BIP) be developed to address the conduct that resulted in the child’s exclusion, and that if there is an existing FBA or BIP that is over one year old, a new one must be developed.  If the FBA or BIP is over a year old, the FBA cannot be limited to reviewing existing data in the file.

Justification: Functional behavioral assessments are an important problem-solving process for understanding student problem behavior.  Failure to base the intervention or BIP on the actual cause (function) often results in interventions that are ineffective and unnecessarily restrictive.  Outdated FBAs and BIPs often fail to effectively address the child’s current behavior.  A valid FBA must be conducted that identifies the significant, pupil-specific social, affective, cognitive, and/or environmental factors associated with the occurrence (and non-occurrence) of the behaviors. A review of old data will not accomplish this task.  Because misbehavior can result in the exclusion of children from the classroom and placement in a more restrictive environment, it is important for FBAs to be effectively conducted and both FBAs and BIPs remain up-to-date.   It is important that children have appropriate FBAs and BIPs so as to abate future problematic behavior.  This is important so that the child is not subjected to further discipline. Disciplinary actions on a student’s record can severely limit the opportunities students with disabilities have for employment, vocational training, and post-secondary education. 

Recommendation:  Amend proposed regulation D.7. by adding the following language to require that a functional behavioral assessment (FBA) and behavioral intervention plan (BIP) be developed to address the conduct that resulted in the child’s exclusion, and that if there is an existing FBA or BIP that is over one year old, a new one must be developed.  If the FBA or BIP is over a year old, the FBA cannot be limited to reviewing existing data in the file.

a. conduct a functional behavior assessment, unless the local educational agency had conducted this assessment before the behavior that resulted in the change in placement occurred, and implement a behavioral intervention plan for the child; or

b. If a behavioral intervention plan already has been developed, review this plan and modify it, as necessary, to address the behavior

Justification: Functional behavioral assessments are an important problem-solving process for understanding student problem behavior.  Failure to base the intervention or BIP on the actual cause (function) often results in interventions that are ineffective and unnecessarily restrictive.  Outdated FBAs and BIPs often fail to effectively address the child’s current behavior. A year is adequate time to determine the appropriateness of a BIP and a FBA.

Recommendation: D. Manifestation Determination

Amend proposed regulation D.2. to specify that in selecting the manifestation determination IEP team members, LEAs must make bona fide efforts to work with parents.  Ultimately, as required by 20-81-110 C.1.f. and 34 C.F.R. §300.321(a)(6), the parents or LEA must have the discretion to include all individuals with special knowledge or expertise regarding the child; particularly regarding how a student’s disability can impact behavior and understanding consequences of behaviors.

Justification: A manifestation determination review (MDR) is a serious matter that could result in changing the child’s placement and removing him/her from the LRE; thus weakening the educational services provided to the child.  It is important that all persons with appropriate knowledge and expertise be on the IEP team.  In addition, parents’ rights to include those IEP team members whom they consider to have appropriate expertise is required by 8 VAC 20-81-110 C.1.f. and 34 C.F.R. §300.321(a)(6).  LEAs should not be permitted to prevent parents from designating MDR team members.

Recommendation: The Coalition supports the proposed D.2. requiring that the manifestation determination IEP team convene “immediately, if possible” but not later than 10 school days after the decision to change the placement of the child is made.  We recommend, however, strengthening the language to require that the team meet as soon as possible, and if that is not possible, then the school district must document the specific facts that made it impossible.

Justification: Removing a child from their regular placement can cause harm to the child’s education and take him/her away from the LRE.  If the manifestation team is capable of meeting in fewer than 10 school days, it must do so, rather than waiting the 10 school days.  To allow LEAs to wait until the 10th school day is to allow them to exclude children for 20 school days (4 calendar weeks or more).  LEAs could suspend a child for 10 school days, and on the 10th school day notify parents of a change in placement and then take another 10 days to convene the manifestation team.  Documentation provides the impetus to show efforts are being made to take immediate action for the child.  It can also facilitate identifying unnecessary delays by supervisory personnel.

Recommendation: Amend the proposed regulation D.3 to specify that the review of all relevant information in the child’s file includes all of the child’s education records, as well as new information that parents or LEAs have.

Justification: Given the potential for the manifestation determination review (MDR) to decide whether a child is excluded from the classroom, it is important for the team to consider all relevant information.  This includes new information that would inform the review team. The term “child’s file” should be defined to include all education records of the child, so the term is not interpreted so narrowly that relevant information is excluded.  The child’s file includes all records, including email, electronic documents, recordings, and paper records in the possessions of all LEA employees and agents.  Many parents are uninformed about the extent of school records on their children; and therefore, the regulations should make clear that the file includes all relevant information in all education records.