Section 511IAC7-44-5. Manifestation determinations

   (a) Within ten (10) instructional days of any decision to change the placement of a student with a disability for violating a code of student conduct, the CCC must meet to determine whether the student's behavior is a manifestation of the student's disability.

  (b) All relevant information in the student's file must be reviewed, including the student's IEP, any teacher observations, and any relevant information provided by the parent, to determine if the conduct in question was:

(1) caused by, or had a direct and substantial relationship to, the student's disability; or

(2) the direct result of the public agency's failure to implement the student's IEP.

  (c) The conduct must be determined to be a manifestation of the student's disability if the CCC determines that either of the conditions in subsection (b)(1) or (b)(2) were met.

  (d) If the conduct was the direct result of the public agency's failure to implement the IEP, the public agency must take immediate steps to remedy those deficiencies.

  (e) If the CCC determines that the conduct was a manifestation of the student's disability, the student's CCC must:

(1) either:

(A) conduct a functional behavioral assessment, unless the public agency 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 student; or

(B) 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 section 6 of this rule, return the student to the placement from which the student was removed, unless the parent and the public agency agree to a change of placement as part of the modification of the behavioral intervention plan.

  (f) If the CCC determines that the conduct is not a manifestation of the student's disability, school personnel may apply the relevant disciplinary procedures to the student in the same manner and for the same duration as those procedures would be applied to students without disabilities. However, the student must, during any removal that is ordered, continue to receive appropriate services. The student's CCC must determine appropriate services needed to enable the student to do the following:

(1) Continue to participate in the general education curriculum, although in another setting.

(2) Progress toward meeting the goals set out in the student's IEP.

(3) Receive, as appropriate, a functional behavioral assessment and behavioral intervention services and modifications that are designed to address the behavior violation so that it does not recur.

  (g) Services required by subsection (f) may be provided in an interim alternative education setting. The student's CCC determines the interim alternative education setting for services.

  (h) The parent of a student with a disability who disagrees that the student's conduct was not a manifestation of the student's disability may request the following:

(1) Mediation in accordance with 511 IAC 7-45-2.

(2) A due process hearing in accordance with 511 IAC 7-45-3 or 511 IAC 7-45-10.

(3) Simultaneously, mediation and a due process hearing.

  (i) Upon a parent's request for a due process hearing, the department of education shall arrange for an expedited hearing under 511 IAC 7-45-10.

  (j) In reviewing a decision with respect to the manifestation determination, an independent hearing officer may return the student with a disability to the placement from which the student was removed if the hearing officer determines that the student's conduct was a manifestation of the student's disability. (Indiana State Board of Education; 511 IAC 7-44-5; filed Jul 14, 2008, 1:24 p.m.: 20080813-IR-511080112FRA; readopted filed Nov 6, 2014, 3:23 p.m.: 20141203-IR-511140382RFA)