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IDEA Complaint Decision 08-040

On April 9, 2008, the Department of Public Instruction (DPI) 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:

  • Beginning May 2007, properly evaluated and identified a child in need of special education services;
  • Properly followed the required special education disciplinary procedures; and
  • Properly informed parents and persons required to make special education referrals about the school district’s referral and evaluation procedures.

On November 5, 2007, a pre-expulsion conference was held for the student. The parents, the special education director, the principal, and the counselor attended the meeting. No one at the meeting expressed concern the student may have a disability. On December 6, 2007, the district’s board of education expelled the student based on the youth knowingly possessing or using a controlled substance while at school, on school premises. The student had not been determined to be eligible for special education and related services. The parents allege the district should have known that their child had a disability prior to the expulsion, and consequently, did not follow the required special education disciplinary procedures. The parents further allege the district did not conduct a proper special education evaluation and identification of their child.

In May 2007, several months prior to the expulsion per the parents’ request, the school counselor met with the student and subsequently administered a depression rating scale and the student was found to be in the severe range for depression. The school counselor said he did not interpret the rating scale scores to mean a need for special education. The counselor indicated an elevated score on such a screening inventory does not provide an adequate basis to conclude a student may be a child with a disability. The counselor did not refer the student for special education or express any specific concerns about the possible need for special education, but he did share the assessment information with the parents. Teachers who worked with the student on a daily basis indicated the student’s behavior and academic performance did not demonstrate a need for a special education referral.

When a child who has not been determined to be eligible for special education and related services engages in behavior that violates a code of student conduct, the district is deemed to have knowledge if any of the following specific circumstances occurred before the behavior that precipitated the disciplinary action: (1) the parent of the child expressed concern in writing to supervisory or administrative personnel of the district, or teacher of the child, that the child is in need of special education and related services; (2) the parent of the child requested a special education evaluation of the child; or (3) the teacher of the child, or other personnel of the local educational agency, expressed specific concerns about a pattern of behavior demonstrated by the child directly to the district’s director of special education or other district supervisory personnel. In this case, none of these circumstances applied. Prior to the incident that precipitated the expulsion, the parents had not expressed concern or requested an evaluation for special education and no staff had expressed concern about a pattern of behavior demonstrated by the child. The district was not “deemed to know” the student was a child with a disability, and the district was not required to apply the special education discipline procedures.

Following the district’s expulsion on December 6, 2007, on January 2, 2008, the parent requested a special education evaluation to determine whether the child has a disability and a need for special education for emotional behavioral disability (EBD) and specific learning disability (SLD). A review of existing data was conducted by the individualized education program (IEP) team, and members determined additional testing was required, which was completed. The tests collected achievement, intellectual, and social/emotional/behavioral information. On February 1, the IEP team, including the parents, met to determine eligibility and placement. The IEP team concluded the student is not a child with a disability and prepared an evaluation report of that determination. The report indicates the student does not meet the eligibility criteria for EBD or SLD. In making this determination, the IEP team considered various data including information from staff, the parent, and student interviews, information regarding current achievement, and information provided by the evaluation tests.

In addition, the IEP team considered information provided by the parents, including two reports from an outside psychologist. The outside psychologist conducted testing at two different time periods, June 7, 2007, and November 28, 2007. The earlier report stated psychological testing results were suggestive of Attention Deficit Hyperactivity Disorder (ADHD), Adjustment Disorder with Depressed Mood, Psychoactive Substance Abuse, and possible Oppositional Defiant Disorder. Psychotherapy and consideration of medication were recommended. The later report indicated moderately severe depression and ongoing problems with ADHD. The psychologist noted that since the earlier report, the student had undergone extensive chemical dependency counseling. The IEP team considered the ADHD concerns and, based in part on the psychologist’s second report, determined ADHD was not an educational concern at this time.

The IEP team used the DPI eligibility forms for each disability area as a guide to making the eligibility decision and applied the eligibility criteria. The IEP team determined the student’s behavior was not severe, chronic and frequent, and there was no evidence suggesting a learning disability.

The parents disagreed with the IEP team’s decision and requested an independent educational evaluation (IEE). The IEE report stated there is no indication of a SLD and no substantiation for EBD programming. However, the IEE examiner recommended the student be considered for special education under the other health impairment (OHI) disability category. The parents and the district recently filed a joint mediation application which states the two parties will address possible eligibility for OHI. Based on all of the information submitted to the department, the department concludes the district properly followed the required special education disciplinary procedures and properly evaluated the youth.

The parents also state the district did not properly inform them of their right to make a special education referral for an evaluation and did not properly inform them of the district’s child find procedures prior to the December 6, 2007 expulsion hearing. The district’s child find notice is posted on the [Unnamed] School District website, the annual school calendar of events includes the district child find notice, and the calendar is sent to every resident within the school district boundaries. In this case, the student’s teachers and other staff state they did not have reason to believe the child’s behavior and academic performance were cause for a referral for special education. The department concludes the district properly informed parents and persons required to make special education referrals about the district’s referral and evaluation procedures.

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

//signed CST 6/9/08 (amended 8/19/08)
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy