On February 23, 2005, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the XXXXX School District. This is the department's decision regarding that complaint. The issues are whether the district:
- Properly responded to a parent request in January 2004 that the district provide special education services for her child; and
- During the 2004-2005 school year, had knowledge that the student is a child with a disability when it disciplined the student.
The student was hospitalized following a serious accident and required homebound instruction from December 9, 2003, to January 22, 2004. In January 2004, a meeting was held at the school to discuss the student's educational needs. A report from the hospital was reviewed and the parent asked about developing an individualized education program (IEP) for her child. The report indicated the child might regain skills lost as a result of the accident in 6-12 months. The assistant principal, director of pupil services and special education, school counselor, school psychologist, Spanish teacher, and the parent were present. All agreed the child should not be evaluated for special education at that time in order to allow the child to recuperate more fully.
Any person who reasonably believes that a child is a child with a disability may refer the child to a local educational agency. All referrals must be in writing and include the name of the child and the reasons why the person believes that the child is a child with a disability. Although the parent asked about developing an IEP for her child at a meeting in January 2004, the parent participated in the decision to delay conducting the evaluation to allow time for her child to regain skills following the accident. The district informed the parent of her rights regarding referral for special education during a meeting in November 2003 to discuss homebound instruction and again at the January 2004 meeting. The district properly responded to the parent's request.
In January 2004, the child returned to school. Accommodations were provided in regular education, including increased structure, a shortened school day and reduced course load. Prior to the accident, the student had received three disciplinary referrals. Between February 2004 and June 2004, the student received seven disciplinary referrals and two out-of-school suspensions. On October 19, 2004, the student was suspended for fighting at school and subsequently expelled on November 9. Following the suspension, the parent called the district and requested an evaluation for special education. The school psychologist completed a referral for evaluation on behalf of the parent on November 1, 2004. Until the evaluation was completed, the child remained in the educational placement determined by school authorities: expulsion without educational services.
An IEP team met on January 19, 2005, and determined the student has an impairment and a need for special education. The district convened an IEP team meeting on February 8 to develop an IEP, conduct a manifestation determination, develop a functional behavioral assessment plan and develop appropriate behavioral interventions to address the behavior, and determine placement. The behavior that resulted in the child's expulsion was found to be a manifestation of the child's disability. The district subsequently rescinded the order of expulsion. The IEP was implemented beginning February 14, 2005.
The complaint alleges that the district failed to follow the required procedures when it disciplined the student in November 2004. If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures, the evaluation must be conducted in an expedited manner. The district did not conduct the evaluation in an expedited manner and, in fact, took more than the required 90 days from the date the child was referred for evaluation to determine placement. In light of the February 8, 2005, IEP team meeting, the district acknowledges the student was a child with a disability when the student was expelled from school in October 2004.
The district has agreed to conduct training with school principals and other staff regarding protections for children not yet eligible for special education and related services including when a request is made for an evaluation of a child during the time period in which the child is subject to disciplinary measures, and the evaluation is conducted in an expedited manner. The district will provide the department with documentation of this activity by September 2005. Since the district conducted a review of the student's IEP at the February 8, 2005 meeting and determined the student would meet graduation requirements by the end of the current school year, would substantially complete the IEP goals, and would not need new IEP goals for the coming school year, no child-specific action is required.
This concludes our review of this complaint.
//signed CST 4/18/05
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy
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