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IDEA Complaint Decision 08-041

On April 10, 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 issue is whether the district, during the 2007-2008 school year, properly followed the required special education disciplinary procedures including the provision of services.

On March 13, 2007, the individualized education program (IEP) team developed an IEP which included access to a resource room and additional assistance with assignments and test completion due to the student’s disability in mathematics. The IEP states the student’s behavior did not impede her learning and no functional behavioral assessment was conducted.

On February 19, 2008, the student made a written threat about a school shooting. As a result, local police were called and they removed the student to a counseling center. That evening, the student received an out of school suspension for an unlimited number of days and was placed in an interim setting. The district did not conduct a manifestation determination meeting or a functional behavior assessment.

A number of informal meetings between the school principal, special education director, and parent took place in late February. Due to safety concerns, the principal suggested an alternate placement where the student could receive educational and counseling services for the remainder of the 2007-08 school year. During those meetings, the principal, special education director, and parent agreed to placement at a day treatment program. It was also decided by school staff that the student would remain at home until the student attended the day treatment program. These decisions were not made by the IEP team.

On February 22, 2008, school staff members began providing assignments for the student that were picked up by her parents and returned to school. On March 11, 2008, the parent asked the district to provide the student with additional support in the area of mathematics.

On March 25, 2008, the IEP team met to review and revise the child’s IEP and determine the student’s continuing placement. The IEP states the student’s placement will be implemented at the school; however, the parties continued to operate under the assumption the student would attend the treatment facility for the remainder of the 2007-08 school year. At the meeting, the IEP team did not explore the possibility the student’s behavior may be a manifestation related to the disability, and there is no mention of positive behavioral interventions, strategies, or supports included in the IEP.

As a result of the parent request on March 11, the school began providing two hours a week of individual tutoring to the student outside of the school building on April 3, 2008. The parent asked for additional tutoring sessions on April 18, 2008. On April 28, 2008, the student began to receive individual tutoring twice a week for a total of four hours. The student began attending the day treatment program on May 7, 2008 and plans to return to school in September 2008.

The department determines the district did not follow the required special education discipline procedure. Because the removal of the student exceeded ten consecutive school days, it constituted a disciplinary change in placement.

Within ten days of a change of placement, the district must convene an IEP team meeting to determine whether the conduct is a manifestation of the student’s disability. The conduct is a manifestation of the student’s disability if it was caused, or has a direct and substantial relationship, to the student’s disability or if it was the direct result of the district’s failure to implement the student’s IEP. If the behavior is a manifestation of the student’s disability and does not involve weapons, drugs, or serious bodily injury, the IEP team must return the child to the placement unless the parent and the district agree to a change of placement. The IEP team must also conduct a functional behavioral assessment (FBA) if one was not previously conducted and implement a behavioral intervention plan (BIP).

If the behavior is not a manifestation of the disability, the district may proceed with the change in placement. The student must receive, as appropriate, a FBA and behavioral intervention services and modifications designed to address the violation so it does not reoccur. The requirement to conduct a manifestation determination applies whenever the placement of a student with a disability changes based on a violation of the student code of conduct. The district acknowledges no manifestation determination took place for this student.

Once a student has been removed from the current placement for more than ten school days, educational services must be provided to allow the student to continue to participate in the general education curriculum and to progress toward meeting the goals set out in the IEP. When the disciplinary removal is a change of placement, as in this case, the services must be determined by the IEP team. The district has failed to meet its responsibility to provide educational services for the student because the services were delayed and were not determined by the IEP team.

Students with disabilities can be removed to an interim alternative educational setting even if the behavior is a manifestation of the student’s disability in certain circumstances. School personnel may remove a child for up to 45 school days for specific violations involving a weapon, controlled substances or drugs, or when the student inflicts serious bodily injury upon another person while under school control. These special circumstances do not apply to the disciplinary action in this case.

On the date the decision is made to make a removal that constitutes a change in placement, the child’s parents must be notified of that decision and must be provided a procedural safeguards notice. The parent did not receive notice of the student suspension until late March 2008.

The department concludes the district did not properly follow the required special education disciplinary procedures regarding manifestation determinations, placement in an interim alternative educational setting, the provision of services, and notice to parents. The district is directed to conduct a manifestation determination and based upon that determination, revise the IEP to develop a FBA and BIP as necessary. The district is further directed to determine what additional services may be required because the student was improperly removed from school and services were inadequately provided during that removal. The district must submit a revised copy of the IEP to the department by July 9, 2008.

By July 9, 2008, the district will submit a corrective action plan (CAP) to the department for approval. The plan will include provisions to review and revise current district policies on discipline of students with disabilities as necessary, to ensure future compliance. The plan will also include a training component on discipline procedures for students with disabilities for all district staff.

This concludes our review of this complaint.

//signed CST 6/5/08
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy