IDEA Complaint Decision 04-006

On February 17, 2004, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Oconomowoc Area School District. This is the department's decision regarding that complaint. The issue is whether the district, during the 2003-2004 school year, improperly developed or modified the behavior intervention plan for a child with a disability without conducting an individualized education program (IEP) team meeting.

On February 2, 2004, the student was suspended for one day for verbally threatening another student. The principal of the student's school contacted the parent about the incident that day and another family member picked the student up at school later in the day. Similar behavior had occurred in November and December and a different kind of behavior incident occurred in January. The student was not suspended for these previous behavior incidents. Several of the student's teachers met with the principal on February 6 to discuss how to address these behaviors. The parent was not invited to this meeting. The meeting was not an IEP team meeting and the student's IEP was not modified. Two days after the meeting, the principal wrote to the parent and student describing staff expectations for the student in several areas and consequences if the student does not meet the expectations. The document indicates that the student will receive an out-of-school suspension as a consequence of not following one of the expectations. The parent maintains that this document improperly modified the student's IEP.

Federal law specifies that school authorities may unilaterally suspend a child with a disability from the child's regular placement for not more than 10 school days in a school year for any violation of school rules if nondisabled children would be subjected to removal for the same offense. Additional suspensions are permitted, but beginning with the eleventh day of suspension, procedural protections must be initiated and the district must continue to provide services to the student. If a child's IEP or behavior intervention plan addresses the behavior that violates a district classroom code of conduct, it generally would be inappropriate to use a response to that behavior other than the response called for by the IEP. Districts have a range of other options under the law for addressing the inappropriate behavior of children with disabilities. These include specially designed instruction or related services, including behavior management strategies, conflict management, the use of study carrels, timeouts and restrictions in privileges, so long as they are not inconsistent with a child's IEP. However, even when local educational agency personnel implement these behavioral interventions and strategies, there still may be times when a child with a disability must be removed from his or her current placement, including suspension from school and other removals permitted under state and federal law.

The student's IEP describes positive behavioral interventions, strategies and supports to address several behaviors, including aggression. Further, teachers and building staff are to send the student to the special education room to process disruptive behavior which occurs in regular education settings. The IEP does not prohibit the use of suspension. The February 8 memorandum to the parent and student did not revise the IEP, but simply set expectations and consequences for the student. The time outs mentioned in the February 8 memorandum are not inconsistent with the IEP requirement that the student be returned to the special education room to process the behavior-time outs can be assessed as set out in the memorandum and staff still can process the behavior with the student. No time outs have been issued to the student for the behaviors set out in the February memorandum.

The student was suspended in early April for aggressive behavior which would result in a suspension for students without disabilities. The student has been suspended fewer than ten times this school year. Federal law specifically permits such suspensions. The student's IEP does not explicitly restrict use of suspension and the suspension was not inconsistent with the behavior interventions required in the IEP.

This concludes our review of this complaint, which we are closing.

//signed CST 4/15/04
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

Dec/jrm