Appellants requested a hearing on October 9, 2002 with a concern of what they perceived as a pattern of suspensions, an IEP that they asserted was not being followed and their belief that Damian was being disciplined without any consideration of his disability. Damian was a 17-year-old junior attending Mason City High School. Damian was diagnosed with ADHD and Oppositional Defiant Disorder. He attended all regular education classes with a behavioral intervention plan and received counseling services on a weekly basis. Damian was identified as having "behavioral problems" while attending preschool. During his early elementary years, he received services in a self-contained with little integration programwith goals in areas such as accepting authority, accepting consequences and increased self-control among several behaviorally related goal areas. He did have a 504 plan. During his middle-school years, he continued to receive a combination of special education programs and services including psychological counseling services to focus on problem solving and management of implusive behavior and support services from the resource room.

On October 7, 2002 Damian hand-delivered a note which was demeaning and threatening to a female student and another male student. Damian agreed to a 3-day out of school suspension, attenind the alternative placement building and in waiting in the in-school suspension area. A short time later, Damian left ISS without permission and assault the male student, pushing him through a large place glass window and sustaining injuries. The victim's family filed charges of serious assault. There was no substantial disagreement between the parties that Damian wrote the note and was involved in the fight. There was disagreement regarding the extent to which these events could have been prevented and the extent to which these behaviors are related to Damian's disability.

The dangerousness of the situation that occurred is cirtical that the alternative setting address directly the behaviors that led for the need for the change of placement. It also seemed critical that an independent psychiatric evaluation also take place during the 45-day period, which would be paid for by AEA 2. The purpose of this evaluation would be to provide input into designing a revised IEP for Damian.

The manifestation determination team was unable to reach a consensus regarding the relationship of Damian's behavior incident to his disability. There are significant concerns regarding the extent to which Damian's IEP is sufficiently addressing his behavioral needs.