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IDEA Complaint Decision 06-014

On March 16, 2006, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the [Unnamed] School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2005-2006 school year:

  • Properly implemented a student’s individualized education program (IEP) regarding behavior interventions; and
  • Followed required procedures in removing a student with a disability from school including properly determining the student’s placement.

This complaint primarily relates to an incident which occurred in January 2006 which resulted in changes to the student’s IEP and placement. The student’s IEPs in recent years have included behavior-related goals and positive behavioral interventions. An IEP team met in September 2005 to consider a functional behavioral assessment (FBA) and to develop a behavior intervention plan (BIP). This meeting was convened in part as the result of a behavior incident involving the student in mid-September. During the September meeting, the team completed the FBA and developed a BIP for the student and also reviewed existing data regarding the student’s needs and performance to decide whether assessments should be conducted during the student’s reevaluation. The team met in November to consider recently completed assessments, to determine continuing eligibility for special education, and to modify the student’s IEP.

During the January incident, the student repeatedly refused to follow staff requests for the student to complete assigned work. The teacher attempted several times to encourage completion of the work, but after being unsuccessful notified the student what the consequence would be for continued refusal to complete the work. The student’s behavior plan requires that staff explain potential consequences to the student when encouragement has not worked. The student became upset on hearing the consequence and began arguing that the consequence was unfair. The teacher offered approaches for the student to avoid the consequence, but the student continued to argue and began damaging district property. Other staff, including an administrator, became involved but were unsuccessful in defusing the situation. District staff called the student’s parent in the hope this would calm the student. The student physically threatened staff, and ultimately the police were called. As a result of this incident, the student was suspended for five days. Materials submitted by the district in response to this complaint included extensive contemporaneous staff documentation describing the incident in detail. District administration considered expulsion, but believed the IEP team would find the behavior was a manifestation of the student’s disability and chose not to take that course.

An IEP team, which included the parents, met on the fifth day of suspension. District staff contended that the student no longer could be successful in programs available within the district. Two programs operated by other entities were proposed as possible placements. The one selected by the team offered more educational instruction and a very low student-to-staff ratio. The team decided the student would benefit more from the greater instructional opportunities and staff support. The parents accepted the proposal but were invited to visit the program before their child began attending. Several days later the parents visited the program accompanied by a district staff member. The staff member gave the parents a copy of the IEP and the notice of placement at the end of the visit. The student began attending the program at the beginning of the next week. Between the IEP team meeting and the start of the new placement, the district provided materials to the student for completion while the student remained out of school. An IEP team, including the parent, met in March 2006 to review and revise the IEP and continue the out-of-district placement.

The parent maintains that had district staff properly followed the student’s BIP the incident leading to a change in placement would not have occurred. Interviews with district staff and review of the BIP and material submitted by the district support the conclusion that staff followed the student’s BIP during the incident in January. Staff repeatedly attempted to offer the student the choice to comply with the original request and even ultimately modified the request. Staff repeatedly tried to redirect the student’s behavior from the disruptive and destructive course it had taken. One of two staff listed in the BIP as resources to be called upon was brought into the room. The student twice was offered the chance to take a walking break but refused. The student’s parent was called and arrived before the behavior which led to suspension. The district implemented the student’s BIP.

The parent also maintains that the district administrator made the placement decision prior to the meeting and that the IEP team did not determine placement based on the student’s needs. The district administrator acknowledges having stated to staff prior to the meeting that he would support placement in a program outside the district. However, he maintains that his intent was to indicate his willingness, as district administrator, to agree to an outside placement if the IEP team concluded the student required a placement outside the district in order to have an appropriate program. Interviews with district staff who participated in the January IEP team meeting indicate they made an independent judgment about the student’s need for the outside placement based on the student’s needs. They concluded that the district did not have a program to meet the student’s needs at the time of the meeting and that the program they selected, with parent input, offers an appropriate program for the student. An IEP team meeting is scheduled for late May to discuss a transition plan to return the student to the district. The IEP team properly determined the student’s placement.

However, the district did not properly remove the student from school for the five days following the suspension when the student remained out of school before the new placement started. While federal law would permit this, state law limits suspension to five days unless a notice of expulsion is provided. The IEP team did discuss making materials available to the student during those five days before the placement began and staff did discuss with other teachers what should be provided to the student. The IEP team did not revise the student’s IEP to reflect these decisions and the district did not implement the IEP which was in effect during those five days. The district has taken steps to ensure that should a similar situation occur in the future, the district will have a properly developed IEP in place.

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

//signed CST 5/15/06
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy