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IDEA Complaint Decision 04-027

On June 9, 2004, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Valders Area School District. This is the department's decision regarding that complaint. The issues are whether the district implemented the individualized education program (IEP) of a child with a disability regarding modifications to disciplinary interventions and behavior management during the 2003-2004 school year and whether the district properly responded to the parents' request in February 2004 for a functional behavioral assessment (FBA) of their child.

An IEP team met at the beginning of the 2003-2004 school year to review the IEP which had been developed the previous January when the student first was determined to be a child with a disability. The team concluded that the IEP, including the behavior intervention plan (BIP), continued to be appropriate. An IEP team which met in November 2003 increased the amount of special education service in the IEP and modified the BIP in response to the student's performance. An IEP team which met in January 2004 included additional behavior modifications and adaptations in the IEP. Teachers generally report significant improvement in the student's behavior following this meeting.

The parents maintain that their son's teachers disciplined him by sending him to the hall and that doing so was inconsistent with the portion of his IEP providing that he should not be left alone when he is upset. They also maintain that when he was sent to the special education room as provided for in his BIP, he was not escorted as the IEP requires. The IEP in effect until November 2003 does not provide that the student is not to be left alone or require that he is to be escorted when directed to go to another room. The November IEP indicates that the IEP team decided that the student is to be escorted in the halls throughout the day and the November and January IEPs provide that he is to be escorted when he is to go to the special education room or office for a time out as provided for in his BIP. None of the three IEPs directly require that the student is not to be left alone when he is upset. Instead, they indicate that he is to be escorted in the halls throughout the day and when he is sent to the special education room according to his BIP.

A district must provide special education and related services to a child with a disability in accordance with the child's IEP. District staff maintain that the student was not placed in the hallway as a disciplinary measure. It is common practice in the student's school for teachers to direct individual students who have not completed their assignments to work quietly in the hallway while others remain in the classroom to correct their class work, a process where answers are given out loud. This practice was used with this student several times. Additionally, the teachers maintain that they were careful about who would be in the hall with him and monitored him closely for the brief period he was in the hall. The student's IEPs, including the BIPs, do not restrict the teachers from using this common practice with him. The district maintains, and the special education teacher confirms, that on the few occasions when teachers sent the student to the special education classroom pursuant to his BIP, he was escorted. The department concludes that the district followed the BIP provision requiring that the student is to be escorted when he is sent to the special education classroom.

In February 2004 during a meeting with one of the district staff, one of the parents submitted a written request that the district conduct an FBA for the child. The district maintains that the staff member responded that the district had conducted an FBA before developing the child's BIPs. The staff member explained that there is no separate form for reporting the results of an FBA. She suggested that the parent discuss the situation with the other parent and let her know whether they still wanted an FBA. The district maintains that the parent did not communicate again about the FBA request. The parent maintains that during the meeting the district staff simply responded that the district does not conduct FBAs.

A district must ensure that a child's parents are provided prior written notice whenever the local educational agency proposes to initiate or change, or refuses to initiate or change, the identification, evaluation or educational placement of the child, or the provision of a free appropriate public education to the child. Because the parent made a request and did not clearly withdraw it, the district was required to provide the FBA or provide the parent with written notice that the district refused the request. During the investigation of this complaint the parent indicated that she still wants another FBA conducted. The district is directed to conduct an FBA and provide the department with a copy of the results no later than September 30, 2004. The district also is directed to submit a corrective action plan to the department within 30 days of receiving this decision to ensure that the district properly responds to parents' requests for evaluations.

This concludes our review of this complaint.

//signed CST 8/4/04
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy