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IDEA Complaint Decision 04-055

On October 26, 2004, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Tomah Area School District. This is the department's decision regarding that complaint. The issues are whether the district followed required procedures when it disciplined the student in October 2004, and properly responded to a parent's request for an aide.

On October 19, 2004, the student was suspended for three days because of an incident involving the aide. When the suspension was given, the student had already been removed from school for more than 10 school days in the 2004-2005 school year. The district did not provide services to the student during the suspension. In another recent complaint decision involving this student, the department determined that an Individualized Education Program (IEP) team meeting had not been convened to develop a functional behavioral assessment plan. In the decision, the department directed the district to conduct an IEP team meeting to develop a functional behavior assessment plan and, after the assessment has been completed, to conduct an IEP team meeting to review and revise if necessary the student's behavioral intervention plan. The district was also directed to convene an IEP team meeting to determine whether additional services were required. In doing so, the IEP team must also consider whether additional services are required because of the days of removal that occurred in October 2004. The district, no later than January 27, 2005, will provide documentation to the department that these actions have been taken.

On October 21, 2004, a manifestation determination was held regarding the October incident, and the IEP team determined that the student's behavior was not a manifestation of his disability. In making this determination, all of the IEP team participants agreed to use a draft IEP that they were in the process of developing. The IEP team was required to review the IEP that was currently in effect for the student, which they acknowledge they did not do. However, the student was not recommended for expulsion, and the IEP has since been revised. No child specific corrective action is required. The department will work with the district to ensure that staff are aware of the requirements pertaining to change in a student's educational program and disciplinary procedures.

The complainant further states that the district, in October, agreed to provide the student with a "consistent, certified, and trained" aide. However, the student's IEP does not include this commitment. The department generally advises against assigning specific staff in an IEP. An IEP should identify the special education and related services that a child needs. A district cannot be reasonably expected to guarantee a consistent staff member because of the potential for illnesses, resignations, or situations that would interfere with implementing the IEP.

This concludes our review of this complaint.

//signed 12/22/04
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy