Dated March 18, 2005

This is in response to your email to the Office of Special Education
Programs (OSEP) in which you seek written clarification of the
requirements of Part B of the Individuals with Disabilities Education
Act Amendments of 1997 (Part B) for conducting a manifestation
determination review for children with disabilities in disciplinary
situations.

In your inquiry, you request that OSEP provide an opinion on the Oregon
Department of Education's interpretation of 34 CFR §300.523 of the March
12, 1999 regulations implementing Part B. Specifically, you state:
"Oregon has determined that no manifestation determination review need
be held, even when a student has an expulsion hearing pending." You
further state that it is your contention that "the IDEA was written to
include all times a district 'contemplates' such a removal, and
furthermore, that scheduling and holding an expulsion hearing, no matter
what the outcome, is evidence of contemplating exactly that." This
response confirms the oral clarification that members of my staff
provided you regarding this matter.

The U.S. Supreme Court decision in the case of Honig v. Doe, 108 S. Ct.
592 (1988) established that a student with a disability could not be
unilaterally removed from school for more than ten school days for
misconduct that arose from the student's disability. The Individuals
with Disabilities Education Act Amendments of 1997 included specific
provisions in law requiring a manifestation determination review before
a school district could implement a disciplinary removal that
constituted a change of placement. 20 U.S.C. §1415(k)(4); [see
also]{.underline} 34 CFR §300.523.

[]{.mark}

Section 300.519 of the Part B regulations defines "change of placement
for disciplinary removals" as a "removal for more than 10 consecutive
school days" or "a series of removals that constitute a pattern because
they cumulate to more than 10 school days in a school year, and because
of factors such as the length of each removal, the total amount of time
the child is removed, and the proximity of the removals to one another."
34 CFR §300.519(a)-(b).

The Part B regulation at 34 CFR § 300.523(a) provides as follows:

§300.523 Manifestation determination review.

\(a\) **General**. If an action is contemplated regarding behavior
described in §§300.520(a)(2) or 300.521, or involving a removal that
constitutes a change of placement under §300.519 for a child with a
disability who has engaged in other behavior that violated any rule or
code of conduct of the LEA that applies to all children---

\(1\) Not later than the date on which the decision to take that action
is made, the parents must be notified of that decision and provided the
procedural safeguards notice described in §300.504; and

\(2\) Immediately, if possible, but in no case later than 10 school days
after the date on which the decision to take that action is made, a
review must be conducted of the relationship between the child\'s
disability and the behavior subject to the disciplinary action.

34 CFR §300.523(a)(1)-(2). Part B does not require that a manifestation
determination review occur when a disciplinary removal is being
considered; rather, the requirement to conduct the manifestation review
determination is triggered on the date that the decision is made to
implement a removal that constitutes a change of placement, and such
review must occur "immediately, if possible, but in no case later than
10 school days after the date on which the decision to take that action
is made." With regard to your inquiry, Part B does not require that a
manifestation determination occur prior to scheduling or conducting an
expulsion hearing.

I hope this information is helpful.

> Sincerely,
>
> /s/

Patricia J. Guard

> Acting Director
>
> Office of Special Education Programs

cc: Dr. Nancy J. Latini

> Associate Superintendent