On May 16, 2005, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the [Unnamed] School District. This is the department's decision regarding that complaint. The issues are whether the district, during the 2004-2005 school year:
- Properly developed an IEP, including a behavioral intervention plan;
- Properly determined that the student receive homebound instruction;
- Properly responded to a parent's request that the student return to school;
- Scheduled IEP meetings at a mutually agreed on time;
- Properly determined transportation as a related service;
- Improperly required payment for an evaluation as a condition for returning to school; and
- Properly complied with pupil records requirements.
The student was referred for special education by a teacher in January 2004, and the district received parental consent for evaluation in February 2004. The student was then expelled on March 4, 2004. The referral process was not completed and no educational services were provided.
In September 2004, the parents made another referral for special education. On December 2, 2004, an IEP team determined that the student is a student with a disability. An IEP was developed that provided for homebound services until the second semester, at which time the student was to return to school for a half day, and then receive 5-10 hours of homebound services per week. The homebound services were to be provided at a neutral site, and the district arranged for transportation to and from the site. This transportation arrangement was not reflected in the student's IEP.
The homebound arrangement was not successful because the student did not make herself available. The student did return to the school for the half day during the second semester. During this time the student was either within walking distance or transportation pursuant to the half-day schedule was provided by the district.
In April 2005, the IEP team met to conduct a manifestation determination related to the conduct that had resulted in expulsion. The team could not reach an agreement, and the district requested an Independent Educational Evaluation (IEE). In June 2005, the IEP team met again and determined that the behavior that led to the expulsion was a manifestation of the student's disability. The school board subsequently expunged the expulsion.
A special education evaluation was pending prior to the expulsion. Under special education law, the district could not expel the student without first completing the evaluation. Because the district determined that the student was a child with a disability, then it was required to conduct the manifestation determination before proceeding with the expulsion. Because the IEP team determined that the behavior was a manifestation of the student's disability, then the student could not be expelled. Furthermore, a functional behavioral assessment (FBA) must be conducted and a behavioral intervention plan (BIP) must be developed.
In this case, there was significant delay in evaluating the student, in ultimately determining that the student was a student with disability, and that the student's behavior was a manifestation of that disability. As a consequence, there was a significant amount of time when the student was not provided with educational and special education services. Furthermore, the district acknowledges that an FBA has not been conducted or a BIP developed. The district is directed to convene an IEP meeting within 30 days from the date of this decision to develop a functional behavioral assessment plan. After a FBA has been conducted, the IEP team must meet to develop a behavioral intervention plan. In addition, the IEP team must meet to determine whether additional services are required because of the delay in services. These activities must be completed prior to the beginning of the 2005-2006 school year. Documentation of these activities must be submitted to the department upon completion. Within 30 days of receiving this decision, the district must also submit a corrective plan to the department to ensure that disciplinary procedures are followed. This plan must include training of district staff who may impose disciplinary actions.
With regard to the other issues, the homebound instruction was improperly determined because it was based on the improper expulsion. However, the district did respond to the parent's concerns about returning the student to school. The IEP was developed so that transition back to the school setting would be successful, and the half-day schedule was based on child specific information. Furthermore, transportation was provided for both the homebound services at a neutral site and when the student returned to school for a half day. Although the IEP team review notes indicate that transportation was an issue for the student, transportation was not reflected in the student's IEP. Within 30 days from the date of this decision, the district must submit a corrective action plan to ensure that related services are properly developed and documented in the IEP. The district acknowledges that the times, but not the dates, of IEP meetings were changed without informing the parent. However, actions have been taken by the district to prevent future occurrence of this problem, and no further corrective action is required. An AODA evaluation was a condition for early readmission to the school under the expulsion order, but it was paid for by the county. Finally, the department finds no evidence that the district failed to comply with the public records requirements. Pupil record information was shared only with the parents and the student.
This concludes our review of this complaint.
//signed 7/15/05 by SJP
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy
Dec/pmw