District Failed to Provide IEP Counseling, Making Student's Misconduct a Manifestation

A 16-year-old student with a specific learning disability and auditory processing disorder was suspended and recommended for expulsion after two incidents of defiance and profanity at Manteca High School. The district held a manifestation determination and concluded her behavior was not related to her disability. The ALJ overturned that determination, finding that the district had failed to provide the anger management counseling required by her IEP, and that this failure was the direct cause of the student's misconduct.

What Happened

Student was a 16-year-old 11th grader at Manteca High School eligible for special education due to a specific learning disability and auditory processing disorder. Despite her disability, Student was highly motivated — she earned all A's and B's, completed her homework on time, and did extra credit work. However, Student had a documented history of behavior problems, including being defiant, verbally abusive, and disruptive at a frequency of every two to four weeks. Her IEP, dated December 20, 2005, specifically identified these behaviors as impeding her ability to learn and required her to receive counseling two times per month from a school counselor and two times per month from an outside provider (Valley Community Counseling) for anger management.

On January 23 and 24, 2006, Student answered her cell phone in class, refused to hand it over to her teacher, walked out, and the next day left the dean's office shouting profanities. She was suspended and recommended for expulsion. The district held a manifestation determination IEP meeting on January 30, 2006, and concluded that her behavior was not caused by her disability and was not the result of any failure to implement her IEP. As a result, Student was removed from Manteca High School and placed in an alternative county program. Parents disagreed and filed for a due process hearing.

What the District Did Wrong

The ALJ found that the district had failed to implement Student's IEP in three critical ways. First, although Student's IEP required counseling from Valley Community Counseling, the district never had Father sign Valley's separate consent form at the December 20, 2005 IEP meeting — even though the team knew Student would need it. Instead, the district gave the form to Student to take home and return, which she failed to do. The district's responsibility is to ensure IEP services are delivered, not to rely on a teenager to manage her own consent paperwork.

Second, between the IEP meeting on December 20, 2005 and the incidents on January 23–24, 2006, Student received only one counseling session — when she should have received at least four. Third, Student received zero sessions from the school counselor, as required by her IEP. Ms. Cumvy, the dean of discipline, occasionally spoke with Student about her behavior, but she had no counseling training and was not a substitute for the professional counseling the IEP required.

The ALJ concluded that Student's conduct — defying her teacher, walking out of class, and yelling obscenities — was exactly the type of behavior the IEP counseling was designed to address. Because the district failed to provide that counseling, Student's misconduct was the direct result of the district's failure to implement her IEP. Under federal law (IDEA 2004), that makes the behavior a manifestation of her disability, and the district's manifestation determination was legally incorrect.

What Was Ordered

The ALJ granted Student's request for relief from the district's manifestation determination.
The finding that Student's behavior was not a manifestation of her disability was overturned.
Student was determined to be the prevailing party on all issues heard in the expedited proceeding.

(Note: The non-expedited issues, including the procedures at the January 30, 2006 IEP meeting, were set for a separate hearing on May 24, 2006 and were not resolved in this decision.)

Why This Matters for Parents

Your district cannot rely on your child to deliver their own consent paperwork. When an IEP requires a service from an outside provider, the district must make sure the consent forms are signed at the IEP meeting — or follow up directly with parents. Giving paperwork to a student to bring home does not fulfill the district's legal obligation to implement the IEP.
Failure to implement IEP services can legally excuse behavior that leads to discipline. Under IDEA 2004, if a student's misconduct is the direct result of the district's failure to carry out the IEP, that behavior must be treated as a manifestation of the disability — and the student cannot be expelled under standard procedures. This is a powerful protection for students whose districts are not following through on agreed services.
Substituting an untrained staff member for a required specialist does not count as service delivery. The district here pointed to conversations with the dean of discipline as a form of counseling. The ALJ rejected this. If your child's IEP requires a credentialed counselor or therapist, a teacher or administrator talking to your child informally does not satisfy that requirement.
Document everything about service delivery — not just what the IEP says. This case turned on how many counseling sessions Student actually received versus what the IEP required. Parents should ask for regular written updates on service logs, session counts, and provider notes so that any gaps can be identified and addressed before a crisis occurs.

What Happened

What the District Did Wrong

What Was Ordered

The ALJ granted Student's request for relief from the district's manifestation determination.
The finding that Student's behavior was not a manifestation of her disability was overturned.
Student was determined to be the prevailing party on all issues heard in the expedited proceeding.

(Note: The non-expedited issues, including the procedures at the January 30, 2006 IEP meeting, were set for a separate hearing on May 24, 2006 and were not resolved in this decision.)

Why This Matters for Parents

Your district cannot rely on your child to deliver their own consent paperwork. When an IEP requires a service from an outside provider, the district must make sure the consent forms are signed at the IEP meeting — or follow up directly with parents. Giving paperwork to a student to bring home does not fulfill the district's legal obligation to implement the IEP.
Failure to implement IEP services can legally excuse behavior that leads to discipline. Under IDEA 2004, if a student's misconduct is the direct result of the district's failure to carry out the IEP, that behavior must be treated as a manifestation of the disability — and the student cannot be expelled under standard procedures. This is a powerful protection for students whose districts are not following through on agreed services.
Substituting an untrained staff member for a required specialist does not count as service delivery. The district here pointed to conversations with the dean of discipline as a form of counseling. The ALJ rejected this. If your child's IEP requires a credentialed counselor or therapist, a teacher or administrator talking to your child informally does not satisfy that requirement.
Document everything about service delivery — not just what the IEP says. This case turned on how many counseling sessions Student actually received versus what the IEP required. Parents should ask for regular written updates on service logs, session counts, and provider notes so that any gaps can be identified and addressed before a crisis occurs.