How to Challenge a Kansas Manifestation Determination That Got It Wrong

The Manifestation Determination Review happened. The team decided that your child's behavior was not a manifestation of their disability. Now the school is moving forward with expulsion, a long-term suspension, or transfer to a more restrictive setting.

That outcome is not necessarily final. If the determination was made on incomplete information, without full IEP review, or by a team that didn't genuinely apply the legal standard — it can be challenged. Here's what the law required the team to do, how to identify where the analysis failed, and the specific steps to appeal.

What the Team Was Required to Do

Under K.A.R. 91-40-38 and IDEA, the manifestation determination must answer two specific legal questions:

Question 1: Was the conduct caused by, or did it have a direct and substantial relationship to, the child's disability?

Question 2: Was the conduct a direct result of the school's failure to implement the IEP?

If the answer to either question is yes, the behavior is a manifestation of disability, and the school cannot proceed with expulsion or a long-term removal as it would with a non-disabled student.

The team must review all relevant information in the child's file, including the current IEP, all teacher observations, behavioral records, and any evaluation data. "All relevant information" is not optional language — it's the legal standard for the review.

Where MDR Teams Most Commonly Get It Wrong

Kansas MDR teams regularly issue flawed determinations in predictable patterns. Identifying which failure applies to your situation is the first step in building a challenge.

Failure 1: Circular reasoning on the disability-conduct link. The most common error is a team that asks "was this behavior typical of the disability?" rather than "was this behavior caused by or directly and substantially related to the disability?" These are different questions. A student with ADHD who impulsively threw an object during a meltdown may not behave that way "typically" — but the impulsivity that caused the behavior is a hallmark of ADHD. If the team focused on whether the behavior was "typical" or "predictable" rather than whether the disability contributed causally, the analysis was legally inadequate.

Failure 2: Not reviewing all relevant information. Teams sometimes conduct the MDR without reviewing private evaluation data the parents have submitted, behavioral records from previous years, or the student's FBA/BIP. If information you submitted — a recent neuropsychological evaluation, a psychiatrist's letter, prior behavioral incident reports that establish a pattern — was not discussed or documented as considered, the review was procedurally deficient.

Failure 3: The IEP was not being fully implemented. If the student had a Behavior Intervention Plan and it wasn't being consistently implemented, or if the student wasn't receiving the behavioral supports specified in their IEP, the second legal question — was the conduct a direct result of the school's failure to implement the IEP? — should have been answered yes. Teams often overlook this second prong, particularly when the district is also the entity that failed to implement the IEP.

Failure 4: Team composition problems. The MDR team must include the parent and relevant members of the IEP team. If the team that conducted the MDR was missing required IEP team members, or if you were excluded or effectively prevented from participating, the review had a procedural defect.

Failure 5: The timeframe was missed. The MDR must occur within 10 school days of the decision to remove the student for more than 10 consecutive school days. If it happened after that deadline, the removal itself may be unlawful.

Documenting Your Challenge

Before filing anything formal, create a written record of your objections. Within 48 hours of the MDR outcome, send a letter to the district's special education director that:

1. States clearly that you dispute the manifestation determination finding
2. Identifies specifically which legal questions you believe the team answered incorrectly, and why
3. Notes any information that was not considered and should have been
4. Notes any procedural defects (timing, team composition, absent documentation)
5. Requests, pursuant to K.A.R. 91-40-38, that the IEP team reconvene to reconsider the determination with the complete record

Keep a copy of this letter dated and delivered via email with read receipt or certified mail.

Your Formal Appeal Options

You have two primary routes to formally challenge a manifestation determination in Kansas:

Option 1: KSDE State Complaint

A KSDE state complaint is the faster option and is most effective for procedural violations — the team missed the 10-day deadline, didn't review all required information, excluded you from the review, or used the wrong legal standard. KSDE investigates complaints within approximately 30 days and can issue corrective action requiring the district to reconvene the MDR with proper procedures.

File the complaint directly with the KSDE ECSETS Division. The complaint must:

• Identify the specific regulation(s) violated (K.A.R. 91-40-38, 34 C.F.R. § 300.530–300.536)
• State the specific facts supporting the violation (dates, who was present, what information was or wasn't reviewed)
• Describe the harm to the student
• Request specific relief — in an MDR challenge, that typically means reconvening the review with complete information and proper team composition, and restoring the student to the stay-put placement during the process

Option 2: Expedited Due Process Hearing

If you want to challenge the substantive correctness of the MDR finding — not just the procedure, but the actual legal conclusion — an expedited due process hearing is the route. Under K.A.R. 91-40-32, these hearings are conducted on an accelerated schedule: the hearing must be scheduled within 20 school days of the filing and a decision must be issued within 10 school days of the hearing.

The expedited timeline matters because your child may be in an IAES or facing expulsion while the challenge proceeds. During the pendency of the expedited hearing, the student remains in the IAES — not the original placement. But the hearing officer's ruling on whether the behavior was a manifestation can determine whether expulsion proceeds or the student returns.

For an expedited due process hearing, you should have legal representation if at all possible. The burden of proof in Kansas due process hearings rests on the party requesting the hearing (under Schaffer v. Weast), which means you bear the burden of demonstrating that the MDR finding was wrong. Presenting expert testimony about the relationship between your child's disability and the behavior is often necessary to meet that burden.

Requesting Private Expert Review Immediately

One of the most important steps after a disputed MDR is getting your own expert's assessment of the disability-conduct relationship. A licensed psychologist, psychiatrist, or behavioral analyst who can review the student's records and offer a professional opinion on whether the disability was causally linked to the behavior is essential evidence for an expedited due process hearing.

This is also where the interlocal cooperative structure creates complications in Kansas. If the MDR was conducted primarily by cooperative staff who serve the district — school psychologists, behavior specialists, diagnosticians employed by the cooperative — their testimony in favor of the district's MDR finding will carry institutional weight. An independent expert with no affiliation with either the district or the cooperative provides the counterweight.

Stay Put During the Challenge

When you file for expedited due process to challenge an MDR, document and invoke your stay-put rights. For discipline-related placements, the stay-put rule during expedited proceedings keeps the student in the IAES — not necessarily the original classroom. But if the district is proceeding with expulsion rather than an IAES, invoking stay put can prevent permanent removal while the hearing is pending.

Send the stay-put invocation letter to the district the same day you file for expedited due process. State specifically that you are invoking 20 U.S.C. § 1415(j) and K.A.R. 91-40-1, and that the student must remain in the current educational placement (or IAES) pending resolution.

Getting Help

• Disability Rights Center of Kansas: (877) 776-1541 — provides legal advocacy for MDR disputes, particularly where the student faces expulsion or severe placement restriction
• Kansas Legal Services: legal assistance for low-income families; offices in Topeka, Wichita, Kansas City, Dodge City, and Hays
• Families Together, Inc.: (800) 264-6343 — parent training and consultation; can help you understand the MDR process and your appeal options before you file

The Kansas IEP & 504 Advocacy Playbook includes the MDR dispute letter template, the state complaint template for procedurally deficient MDRs, and the expedited due process checklist — so you can begin the challenge the same day the determination is issued.

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