Manifestation Determination in West Virginia: Policy 2419 and Policy 4373 Explained

Your child has an IEP and has just been suspended — or the school is threatening a long-term removal. Before the district can proceed with a disciplinary change of placement, West Virginia law requires a specific legal process: a Manifestation Determination Review. Most parents have never heard of it until they are in the middle of a crisis.

What a Manifestation Determination Review Is

A Manifestation Determination Review (MDR) is a meeting required under IDEA and West Virginia Policy 2419, governed specifically by the discipline provisions of Policy 4373: Expected Behavior in Safe and Supportive Schools. The meeting's sole purpose is to answer one legal question: was the behavior that led to the school's proposed disciplinary action caused by, or substantially related to, the student's disability?

If the answer is yes — if the behavior was a manifestation of the disability — the school cannot proceed with a long-term suspension or expulsion as though the student does not have an IEP. The student must remain in or return to their educational placement, and the district must conduct a Functional Behavior Assessment (if one has not been done) and develop or revise the Behavior Intervention Plan.

What Triggers an MDR in West Virginia

An MDR is required any time a school district proposes to remove a student with a disability from their current educational placement for more than 10 consecutive school days, or when a pattern of shorter removals constitutes a "change of placement."

A pattern exists when the student has been removed for more than 10 school days cumulative in the school year, the behavior in each removal is substantially similar, and factors such as total length of removals, proximity of removals to each other, and the nature of the behavior support the conclusion that the removals constitute a pattern.

West Virginia districts sometimes remove students one to three days at a time, repeatedly, without triggering the MDR requirement — because each individual removal stays under 10 days. If this is happening to your child, document every removal with dates, durations, and the stated reason. When the cumulative pattern becomes clear, request the MDR in writing.

The MDR Meeting: What Happens

The MDR must be conducted by the IEP team within 10 school days of the decision to change placement. The meeting reviews all relevant information in the student's file, including the IEP, teacher observations, and any relevant information provided by the parents.

The team must determine:

Prong 1: Was the conduct in question caused by, or did it have a direct and substantial relationship to, the student's disability?

Prong 2: Was the conduct in question the direct result of the school's failure to implement the IEP?

If either prong is met — if the behavior was related to the disability, or the school failed to follow the IEP — the behavior is determined to be a manifestation. This is significant: IEP implementation failures can themselves constitute a manifestation finding. If the school has been skipping therapy sessions, not providing a promised aide, or failing to implement the sensory supports written into the IEP, and those failures contributed to the behavioral incident, the school bears responsibility.

What Happens After a Manifestation Finding

If the behavior is found to be a manifestation:

• The student returns to the placement from which they were removed (with limited exceptions for weapons, drugs, or serious bodily injury)
• The IEP team must conduct an FBA if one has not been done, or review and revise the existing BIP
• Any further disciplinary action must be consistent with the IEP and the child's right to FAPE

The district cannot proceed with expulsion proceedings for behavior that is a manifestation of a disability. Attempting to do so is a violation of IDEA, Policy 2419, and Policy 4373.

What Happens If the Manifestation Finding is "No"

If the team finds the behavior was not a manifestation of the disability, the district can apply the same disciplinary procedures that apply to students without disabilities — including expulsion. However, even during a long-term suspension or expulsion, the student must continue to receive educational services that enable them to participate in the general education curriculum and make progress toward IEP goals. The right to FAPE does not disappear during disciplinary removal.

Challenging a "Not a Manifestation" Finding

If you believe the team wrongly concluded the behavior was not a manifestation, you have the right to challenge that finding through an expedited due process hearing. The request must be filed promptly — expedited hearings move on a compressed timeline, typically resulting in a hearing within 20 school days.

Before that hearing, make sure you have:

• Documentation showing the relationship between your child's disability and the behavior (evaluation reports, medical records, prior behavioral data)
• Evidence of IEP implementation failures (service logs showing missed sessions, progress notes showing the BIP was not being followed)
• Your own written timeline of behavioral incidents and what supports were or were not in place at each point

The Kanawha County Context

Kanawha County Schools — West Virginia's largest district — has been the subject of significant federal class-action litigation specifically alleging the denial of behavioral supports and illegal disciplinary removals for students with IEPs. Parents in Kanawha County dealing with repeat suspensions are operating in a high-scrutiny legal environment where documentation and procedural knowledge are particularly important.

If you are in Kanawha County or another district where behavioral discipline has become a pattern, Disability Rights of West Virginia (DRWV) takes on cases involving alleged IDEA discipline violations and can be a resource for families in crisis.

The West Virginia IEP & 504 Blueprint covers the Policy 4373 discipline provisions in detail, with a checklist for tracking removals, a MDR preparation guide, and script templates for challenging manifestation findings. Get the complete toolkit.

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