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IDEA Complaint Decision 08-010

On January 25, 2008, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Kettle Moraine School District. This is the department’s decision regarding that complaint. The issues covering the 2007-2008 school year are addressed on the following pages.

  • Whether the district properly responded to a parent’s request her child be evaluated for an emotional behavioral disability (EBD);

A school district must conduct a reevaluation of a student with a disability either when the district determines a reevaluation is needed or if the student’s parent or teacher requests an evaluation. However, the individualized education program (IEP) team shall not reevaluate a child more frequently than once a year unless the child’s parent and district agree otherwise. The parent raised concerns about the student’s emotional status in September. The district responded by agreeing to schedule an IEP team meeting to discuss the parent’s concerns. On October 12th, before the IEP team meeting date had been finalized, the parent formally requested a reevaluation be conducted to consider whether the student had an EBD. A reevaluation notice and consent for assessment was sent to the parent on October 15. At the parent’s request, additional assessments were added. The parent provided consent on October 31. The IEP team met on November 28 and determined the student met criteria as having an EBD. The district properly responded to the parent’s request for an evaluation.

  • Whether the district properly considered including in the student’s IEP required positive behavioral interventions, strategies and supports to address behavior impeding learning; and
  • Whether the district properly implemented the student’s behavior intervention plan (BIP) prior to suspending the student;

The complainant’s concern regarding these issues focuses primarily on the belief that the change in the student’s placement occurred because the district did not address the root causes of the student’s behavioral concerns, did not implement positive behavioral interventions and supports early enough, and failed to implement the student’s BIP on December 18th, resulting in a behavioral incident that led to the decision to change the student’s placement.

On November 8, 2006, the IEP team determined the student needed special education to address academic problems. The district documented parental concerns about the student’s well being and need for support to achieve; however, no behavioral needs requiring special education were noted and no behavior intervention plan was developed.

The student began exhibiting behaviors of concern the first week of the 2007-2008 school year. This was a significant change in behavior and attitude from the prior year. In a correspondence dated September 27th, the parent raised concerns about how the school was dealing with the student. By this time there had been two behavioral incidents, including one suspension. On October 5th, the district responded noting an IEP team meeting would be scheduled to address the concerns. On October 8th, the parent was contacted and provided with possible IEP team meeting dates. At the parent’s request, the meeting was scheduled for November 6th to allow for the participation of individuals the parent wanted to bring to the meeting.

On November 8, 2007, the IEP team considered parental and staff concerns regarding the increasing incidence of skipping classes and aggressive behavior. The current IEP was extended with the addition of an emergency interim plan of behavioral supports and interventions, pending the student’s upcoming IEP team evaluation scheduled for November 28. The student’s teachers who were not at the IEP team meeting and any staff who would likely have contact with the student were notified of the contents of the plan.

On November 28th, the IEP team met to consider the reevaluation results and review and revise the student’s IEP. The IEP included documentation of parental and staff concerns, the results of a functional behavioral assessment, strategies for addressing behavior concerns, and goals to address student behavior concerns. A detailed BIP was developed and included in the IEP team documentation. The district properly considered whether the student required positive behavioral interventions, strategies, and supports to address behavior impeding learning.

On December 5th all staff who worked with the student received training on how to implement the student’s BIP and provide positive supports. Following the implementation of the BIP developed on November 28th, the student had only one minor behavior incident prior to December 18. On December 18, the student engaged in disruptive and threatening behavior and was suspended. Interviews with district staff and review of the student’s BIP and other materials provided by the district support the conclusion staff followed the student’s BIP on December 18. All staff involved in the behavior incidents that day had participated in the December 5th training. The district properly implemented the student’s BIP prior to suspending the student.

  • Whether the district properly determined the student’s placement in an alternative educational program; and
  • Whether the district properly responded to the parent’s request that the student be placed in a private school;

District staff recall the student expressing a desire to attend the district’s alternative school early in the school year. Discussion with the student’s parent about the alternative school came up a number of times. The director of special education shared information about the alternative school with the parent when the student’s behavior concerns came to her attention. This is consistent with the standard district practice of making parents of students encountering behavioral difficulties aware of the alternative school as a possible placement option. However, the alternative school was not considered formally as a placement option during the November IEP team meetings because supports and interventions that might allow the student to succeed in the regular high school had not been exhausted.

Following the behavioral incident on December 18, 2007, described above, an IEP team meeting was scheduled to address IEP needs resulting from the student’s behavior and to consider placement. The meeting was scheduled for January 3, 2008, the day school resumed following winter break. The parent requested the meeting be rescheduled to allow the student’s private therapist to attend. The district refused the request noting urgency to address the student’s behavioral needs. The district suggested the therapist participate by phone or provide a written report for consideration by the team and offered to arrange for a visit by the therapist to the district’s alternative program prior to the meeting date. Prior to the January 3rd IEP team meeting, there had been discussion with the parent regarding sending the student to a private school and the possibility of the district’s alternative school.

The parent maintains district administration made the placement decision prior to the meeting. District administration acknowledges the district’s alternative school, as well as two private schools, was discussed as a possible placement option during the semester. However, staff interviews and documentation provided by the parent and district confirm the final decision to change the student’s placement was made by the IEP team on January 3.

When determining the educational placement of a student with a disability, the district must ensure the placement decision is made in conformity with least restrictive environment (LRE). Removal from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. The placement must be based on the student’s IEP, must be as close as possible to the child’s home and, unless the IEP requires some other arrangement, should be the school he or she would attend if nondisabled. In selecting LRE, the IEP team must consider any potential harmful effect on the child or on the quality of services he or she needs.

Both parents participated in the January 3rd IEP team meeting. IEP documentation includes the parent’s concerns regarding the district alternative program and the parent’s request for placement in a private school. The IEP team documented its decision the district’s alternative school would meet the student’s needs. Documentation included a comparison of the private and district alternative school services and consideration of LRE requirements consistent with IDEA. Remaining at the regular high school was not considered a viable option given the student’s need for a more structured environment and the parent’s expressed belief the regular high school was an unacceptable option and could no longer be a place where the student could succeed. The district considered the parent’s request for placement in a private school and appropriately determined placement in the district’s alternative school.

  • Ensured the student receive required services after the tenth day of suspension during the school year.

After a student with a disability has been removed from his or her current placement for ten school days in the same school year, during any subsequent days of removal the district must provide services to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student’s IEP.

Between September 6 and December 18, 2007, the student was suspended for a total of thirteen and one half days. Ten and one-half days were out-of-school suspension. The other three days were served as in-school suspension during which the student had access to his school work, received special education services, and was in an environment with at least one non-disabled student. In-school suspension is not considered a part of the days of suspension as long as the student is afforded the opportunity to participate in the general curriculum, receive the services specified on the student’s IEP, and continue to participate with nondisabled children. Following the tenth day of out-of-school suspension, the district provided tutoring at the student’s home by a licensed special education teacher for the half-day additional suspension. The district appropriately provided required services to the student.

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

//signed CST/AJC 3/26/08
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy