On January 16, 2020, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against the XXXXX (district). This is the department’s decision regarding that complaint. The issues identified are whether the district, since January 16, 2019:
- Properly developed and implemented the individualized education program (IEP) of a student with a disability regarding behavior interventions and supports; and
- Properly followed special education disciplinary requirements.
School districts must provide a free appropriate public education (FAPE) to each student with a disability by developing a program that meets the student’s unique needs, documenting that program in the student’s IEP and implementing the program as articulated. (34 CFR § 300.324). Any time an IEP team determines a student’s behavior impedes their learning or that of others, the IEP team must consider the use of positive behavioral interventions and supports to address that behavior. (34 CFR § 300.324[a][2]). The amount of services to be provided must be stated in a manner appropriate to the service and must include anticipated frequency, including the amount. In the case where it is impossible or inappropriate to describe supplementary aids and services in daily or weekly allotments of time, the IEP must clearly describe the circumstances under which the service will be provided. (34 CFR § 300.320[a]).
A student with a disability may be suspended for up to five consecutive school days, as long the removal does not constitute a disciplinary change of placement. (34 CFR § 300.530[b][1]; Wis. Stat. § 120.13[1][b]2). A change of placement occurs when a disciplinary removal is for more than 10 consecutive days, or when the student has been subjected to a series of removals of more than 10 cumulative days that constitute a pattern. (34 CFR § 300.356[a]). Within 10 school days of any decision by a district to make a disciplinary change of placement of a student with a disability, the district, the parent, and relevant members of the IEP team must conduct a manifestation determination to determine if the conduct prompting the removal was caused by, or had a direct and substantial relationship to the student’s disability, or was the direct result of the district’s failure to implement the IEP. The team must review all relevant information in the student’s file, the student’s IEP, teacher observations, and any relevant information provided by the student’s parents. If the conduct is either caused by, had a direct and substantial relationship to the student’s disability or was the direct result of the district’s failure to implement the IEP, the conduct must be determined to be a manifestation of the student’s disability. (34 CFR § 300.356[e]).
On May 15, 2019, the student’s IEP team met to develop an annual IEP. During this meeting, the team determined the student’s behavior impacted her learning. The IEP included supplementary aid and services described as “check in at beginning of day to address concerns of [student] and go over expectations of the day” and “check out at the end of the day to review accomplishments and address any concerns.” The team reviewed an updated FBA that was nearly identical to the previous one, and attached a document labeled BIP that was almost identical to one previously developed. The BIP document included the use of restorative circles/conversations and additional positive behavioral interventions and supports without clear descriptions of the amount or frequency these services were to be provided. The IEP team added additional supports such as “clarifying directions, breaks when needed, ask student if [the student] is worried about anything, pre-teach, check-in’s, ability to use pass to the resource room and speak with a trusted adult” to the IEP; however, the IEP did not clearly describe the amount and frequency the supports were to be provided.
The IEP developed on May 15, 2019, contained many services that could be considered positive behavioral interventions and supports. However, the IEP lacked clear descriptions of the amount and frequency of the services. As such, the district failed to properly develop the student’s IEP regarding positive behavioral interventions and supports, and developed an IEP that could not be appropriately implemented.
On December 4, 2019, the student was involved in a verbal altercation. The student’s BIP indicated the student would participate in a restorative circle or conversation after such altercations, but several months earlier, the student’s parent had requested that service be discontinued. The IEP team did not remove the service. The district acknowledges they did not provide the student a restorative circle or conversation as listed in the student’s BIP after the verbal altercation on December 4, 2019, in accordance with the parent’s request. On December 5, 2019, the student arrived late to school. The district acknowledges it did not initiate a check in with the student as required by the student’s IEP, nor did the student request a five-point check in. The student’s IEP was not implemented regarding behavioral interventions and supports on December 4 and 5, 2019.
During the afternoon of December 5, 2019, the student was in a physical altercation with another student. Under the district’s student code of conduct and given the serious nature of the physical altercation, school staff had the discretion to consider recommending the student for expulsion. On Friday, December 6, 2019, school staff investigated the incident, and decided to suspend the student for four days but not to proceed with expulsion. The student was suspended on December 6, 9, 10, and 11, 2019. These were the first four days of disciplinary removal for the student during the 2019-2020 school year. The student was eligible to return to school on December 12, 2019.
District practice is to schedule manifestation determinations when students with disabilities engage in behavior that could be considered for expulsion. Although not required under the circumstances of this case, on December 17, 2019, the district held a manifestation determination meeting. At the meeting, district staff presented a summary report of the behavioral incident, file review, and previous evaluations. District staff included medical notes provided by the parent and information from a previous IEP team meeting in the report. However, the team did not consider the information the parent attempted to provide. The team also did not discuss whether positive behavioral supports and supplementary aids and services were provided as required by the IEP on the date of the incident, and if not provided, whether the behavior was a direct result of the failure to provide them. The team concluded that the behavior was not a manifestation of the student’s disability.
On December 18, 2019, the parent expressed to district staff disagreement with the manifestation determination and again asked the team to consider outside medical information and recommendations. The parent requested an IEP team meeting to revise the student’s behavior plan and include additional services in a variety of areas. The student’s parent also requested that specific district staff attend the IEP team meeting. District staff responded by providing the parent with prior written notice that the district refused to consider those pieces of information in the manifestation determination because they had already been considered and rejected during a prior reevaluation meeting for purposes of determining the student’s continuing eligibility for special education. However, considering information provided by parents during a manifestation determination is a separate requirement, and failure to consider it under these circumstances was improper. The district did not properly follow special education disciplinary requirements when it failed to discuss concerns regarding implementation of the positive behavioral supports and properly consider all relevant information provided by the student’s parent at the manifestation determination.
On January 13, 2020, the IEP team met to consider the parent’s concerns and review and revise the student’s IEP. All of the behavioral interventions previously listed in the attached BIP as preventative strategies were incorporated directly into the IEP, but the team did not revise the descriptions of amount and frequency to make them sufficiently clear, nor did the team describe the conditions under which they should be provided. The prior IEP described the frequency and amount of supplementary aids and services of check in at the beginning of the day, check out at the end of the day, and the five-point check in “per student request,” and these descriptions were unchanged in the January 13, 2020 IEP. Describing the amount and frequency of a service as “per student request” does not make the district’s commitment of resources clear. In failing to make the district’s commitment of resources clear, the district failed to properly develop the student’s IEP.
Within 15 days of the date of this decision, the district must hold an IEP meeting to revise the student’s IEP to clearly describe when each service will be provided. For each behavior intervention and support, an appropriate frequency, amount, or conditional must be stated to make the district’s commitment of resources clear. The IEP team must also determine the compensatory services required because of the failure to properly develop and implement the student’s behavioral interventions and supports since January 16, 2019. While school personnel were within their authority to suspend the student, the manifestation determination held on December 17, 2019, was unnecessary and must be removed from the student’s record. Within 10 days of the date of the IEP team meeting, the district must submit to the department documentation of the IEP team meeting, including appropriate statements of amount and frequency of behavioral interventions and supports, a clear description of the determination of compensatory services to be provided, and a statement assuring the manifestation determination is removed from the student’s record.
In addition, within 30 days of the date of this decision, the district must submit to the department a corrective action plan to ensure:
- All IEPs of students where behavior impedes their learning or that of others, include positive behavioral interventions and supports with anticipated frequency, including the amount. In the case where it is impossible or inappropriate to describe supplementary aids and services in daily or weekly allotments of time, the IEP must clearly describe the circumstances under which the service will be provided to address that behavior; and
- Manifestation determinations are properly conducted so that parent information is properly considered and the factors are properly applied.
All noncompliance identified above must be corrected as soon as possible but in no case, more than one year from the date of this decision. This concludes our review of this complaint, which we are closing. This decision is final for the IDEA State Complaint process. These issues may be addressed through other dispute resolution options, including mediation and due process hearings. Visit the department's website at http://dpi.wi.gov/sped/dispute-resolution for more information.
Sincerely,
//signed by BVH 3/16/20
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support