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Flawed Manifestation Determinations and Lack of FBAs Lead to Compensatory Education

Updated: Nov 12

New Jersey Special Education Decision Explains How School District Violated the IDEA

A recent New Jersey Special Education hearing decision highlights school districts’ obligations to complete special education evaluations within the required timelines and conduct proper manifestation determinations. The events in this case occurred in the months prior to school closings due to the coronavirus pandemic -- but remember that all federal and state special education requirements remain intact now.

There are no “COVID waivers.”

Before we look at this case, please note that there are often additional issues and facts in a special education situation that are not clear from a hearing decision. This article is based solely on what we can read in this decision. This author did not discuss the case with either party.

What happened in this case?

In J.C. on behalf of C.C. and C.C. v. Lawnside Borough Board of Education (NJ OAL DKT. NO. EDS 03275-20, October 5, 2020), a guardian of two children filed a request for relief on behalf of both students when they were repeatedly suspended from school and placed on homebound instruction. The parties worked out an agreement for placements in a private school, but the guardian pursued a compensatory education claim under the Individuals with Disabilities Education Act (IDEA) for the time the students were denied appropriate supports and suspended from school.


This case is very unusual because the Administrative Law Judge (“ALJ’) wrote one decision that discusses the facts and findings for two students. The decision explains: “The parties agreed that the matter should be decided as a consolidated case with one decision.” For the sake of clarity, below I refer to the students as "Student."


The Background Facts:


The students in this case transferred to the defendant school district in August of 2019. Both students were identified by their prior New Jersey school district as Communication Impaired. Records indicated both students experienced significant disruption and trauma in the home. Both students’ IEPs stated that they were receiving counseling outside of school and that [student] "may exhibit some behaviors in school due to the trauma [student] has experienced.” The sending district’s IEPs contained clear statements that any discipline should be undertaken in consultation with a school psychologist, learning disabilities teacher consultant (LDTC), or school social worker. The IEP also said that the students’ guardians must “immediately” be notified of any disciplinary actions. The receiving school district retained this language in their IEPs. At an IEP meeting in August 2019, the school district obtained consent for comprehensive re-evaluations including psychological and achievement testing, psychiatric evaluation, audiological evaluation, speech and language evaluation, and Functional Behavior Assessments (FBAs).


As soon as school started the students each exhibited ongoing, serious behaviors that impeded their own learning and that of others. The school district issued the first suspension of one student in September 2019; disciplinary exclusions continued through January. Meanwhile, evaluators and school staff expressed concern about the students' needs. The re-evaluations that were conducted consistently confirmed both students’ difficulties with communication, language, attention, academics, and behavior. The district did not put written, individualized Behavior Intervention Plans (BIPs) into place.


By January 23 and February 4th, 2020, both students had been suspended for 10 days or more. Under the IDEA and New Jersey special education regulations, this triggers the requirement that manifestation determinations be held.[i] The school conducted a manifestation determination for each student following additional behavior incidents. In each case, the school team decided that the student’s behavior was NOT a manifestation of their disability, suspended both students, and placed them on homebound instruction.


What did the Administrative Law Judge (ALJ) say about the Functional Behavior Assessments (FBAs) and manifestation determinations?

  • The school failed to complete the needed, proposed FBAs within the required 60-day timeframe.

The decision states: “It is my view that [Assistant Vice Principal] and [Child Study Team Supervisor] sincerely believed that [School District] tried to address the students’ behavioral issues and made accommodations, such as providing laptops, using praise and accolades, and giving extra time by having breakfast or lunch with the students. However, such actions were not enough and did not excuse [the School District’s] failure to immediately conduct the FBA. In August 2019, the [Child Study Team] suspected social/emotional and behavior problems, yet, there was no testimony why the FBA was not performed within sixty days of consent.”

  • The School District failed to respond to the students’ behavioral needs and failed to convene IEP meetings to address “escalating” behavior issues.

The ALJ explained: “In this matter, involving known trauma and emotional/behavioral issues, the FBA was an essential reevaluation. … This failure was not inconsequential. The Board had reason to know that the FBAs were warranted and necessary. It is difficult to conceive of a situation in which the need for FBAs was so clearly established.”

The decision also states: “[The School District] knew prior to the start of the 2019-2020 school year that [Student 1] and [Student 2] required an FBA. Its failure to timely perform the FBA impacted [the Students’] academic success, impeded their ability to learn, and created an adverse learning environment. The students’ behaviors, coupled with the evaluations, especially [the psychiatrist's] Psychiatric Evaluation. . . triggered the need for IEP meetings to revisit the appropriateness of the current IEPs.”

  • Suspending the students violated the IDEA and New Jersey special education regulations.

1. The school failed to have appropriate behavior support and programming in place.

2. The school failed to conduct proper manifestation determinations.


Both manifestation determination teams found that the student’s behaviors had a “direct and substantial relationship to the child’s disability,” but then determined that the behaviors were NOT a manifestation of a disability. This is not consistent with how to conduct a proper manifestation determination. See e.g. NJ DOE flowchart on manifestation determinations.


Important to the ALJ’s ultimate finding of IDEA violations was the fact that both manifestation determination teams failed to consider the then-current evaluations and data. The ALJ found that the school district failed to properly answer the key manifestation determination question of whether the students’ behaviors were a manifestation of their disabilities.


Describing one manifestation determination, the ALJ states: “In reaching its determination, the IEP Team did not consider any of the current assessments. [The Guardian] reminded the IEP Team of [Student’s] ODD and PTSD diagnoses. [The Guardian] also stressed that the FBA was promised before the start of the school year, but never done. Although the IEP Team affirmed that the conduct in question had a direct and substantial relationship to the child’s disability, it still determined that [Student’s] behavior was not a manifestation of [Student's] disability.”


What was the Administrative Law Judge’s Final Order?


Ultimately, the Administrative Law Judge found that the School District had violated the IDEA and awarded both students seven months of compensatory education, along with the expungement of the disciplinary records.


What can we learn from this case?

  • Whenever a student is exhibiting challenging behaviors, and especially where a pattern of repeated suspensions develops, it is essential to convene the IEP to discuss the student’s needs.

  • Where a student’s behavior impedes his or her learning, schools must, under the federal and New Jersey state regulations, take appropriate action. This could involve any number of things depending on the case, such as (but not limited to) convening the IEP team (or Intervention and Referral Services “INRS”, if the student is not identified), initiating an FBA, reviewing behavior data, adding counseling support, revising an existing behavior intervention plan or discussing therapeutic supports or a more therapeutic setting.

  • Consider all existing data and evaluations when conducting a manifestation determination!

  • You can read more about a related topic in Student Mental Health and Special Education….What Can We Agree On?

Have comments, questions or concerns about this topic? Contact us at jlenhart@posternockapell.com! We welcome your feedback!


“All Rights Reserved.” © 2020 Advo-Kids,

This material is for educational purposes only; it does not provide legal advice. Please be advised that there is no attorney-client relationship between you and Advo-Kids or this author. This article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

[i] 20 U.S.C. 1415(k(1)(E), N.J.A.C. 6A:14-2.8(d).

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