.08 Manifestation Determination.

A. The IEP team shall meet to determine whether a student's behavior that resulted in a disciplinary removal is a manifestation of the student's disability each time the student is subject to a removal:

(1) As set forth in Regulation .03B of this chapter;

(2) That constitutes a change of placement in accordance with Regulation .05 of this chapter; or

(3) To an interim alternative educational setting in accordance with Regulation .06 of this chapter.

B. The IEP team shall meet within 10 school days of the date when school personnel take disciplinary action for the removal of a student with a disability as set forth in §A of this regulation to determine:

(1) Whether the student's behavior that resulted in disciplinary removal is a manifestation of the student's disability; and

(2) The services to be provided during the removal in accordance with Regulation .06C of this chapter to ensure the provision of FAPE.

C. In determining whether the student's behavior was a manifestation of the student's disability, the IEP team shall review:

(1) All relevant information in the student's file;

(2) Any teacher observations;

(3) Any relevant information supplied by the parents; and

(4) The student's IEP.

D. To determine that the behavior subject to the disciplinary action is a manifestation of the student's disability, the IEP team and other qualified personnel must make the determination that the student's behavior 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.

E. If the IEP team determines the student's conduct was the direct result of the public agency's failure to implement the student's IEP, the public agency shall take immediate steps to remedy those deficiencies in accordance with 34 CFR §300.530(e)(3).

F. If any of the determinations set forth in §D of this regulation are made, the IEP team shall consider the behavior a manifestation of the student's disability.

G. If the IEP team determines that the student's behavior is a manifestation of the student's disability, the IEP team shall, as appropriate:

(1) Conduct a functional behavioral assessment and implement a behavioral intervention plan if the public agency had not conducted such assessments prior to a disciplinary removal in accordance with Regulation .03B or .05 of this chapter;

(2) Review the student's behavioral intervention plan and modify it, if necessary, to address the behavior; and

(3) Return the student to the student's placement from which the student was removed unless the parent and the public agency agree to a change of placement as part of a modification of the student's behavioral intervention plan.

H. If the IEP team determines that the behavior is not a manifestation of the student's disability:

(1) The student may be disciplined in the same manner as students without disabilities, including a period of suspension or expulsion, as set forth in COMAR 13A.08.01.11C; and

(2) The IEP team shall determine the extent to which services are necessary during the period of suspension or expulsion to enable the student to appropriately:

(a) Progress in the general curriculum; and

(b) Advance toward achieving the goals of the student's IEP.

I. On initiation of disciplinary actions as set forth in §H of this regulation, the principal shall transmit the student's special education and disciplinary records to the local school superintendent.