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IDEA Complaint Decision 10-024

On April 9, 2010, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the School District of Janesville. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2009-2010 school year, considered all relevant information when making a manifestation determination and properly considered positive behavioral interventions, strategies, and supports to address behavior which impedes the student's learning or that of others.

Following repeated behavior reports due to the student’s failure to comply with reinstatement conditions related to a previous disciplinary change in placement, on January 6, 2010, the district decided to make a disciplinary change of placement and recommend expulsion. On January 15, 2010, an individualized education program (IEP) team meeting was held to conduct a manifestation determination.

A manifestation determination is required within 10 school days of any decision to change the placement of a student with a disability because of a violation of a code of student conduct. In determining whether the conduct was a manifestation of the student’s disability, the local educational agency (LEA), the parent, and relevant members of the student’s IEP team (as determined by the parent and the LEA) must review all relevant information in the student’s file, including the student’s IEP, any teacher observations, and any relevant information provided by the parents. Based upon its review, the group determines if the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or if the conduct in question was the direct result of the LEA’s failure to implement the IEP. The district conducted the manifestation determination through the IEP team meeting. During the January 15 IEP team meeting, the team reviewed the student’s IEP, behavior plan, discipline records, and information provided by the parent and outside agency representatives. Following a consideration of the information, the team decided the student’s conduct was not a manifestation of the student’s disability. The student was expelled from school on January 18, 2010.

During the January 15 IEP team meeting, the parent shared a variety of information, including her belief the student had maintained similar behavior and emotional difficulties since early childhood, and had been diagnosed years ago by an outside evaluator with several mental health conditions while enrolled in another district. The parent did not share any outside evaluation reports with the team and did not request additional time so such information could be shared prior to making the manifestation determination.

The IEP team had conducted a reevaluation of the student on March 10, 2009. The IEP team evaluation report documented a number of mental health concerns including anxiety and psychosomatic symptoms, and the student was determined to continue meet the eligibility criteria for an emotional behavioral disability. No additional impairments were considered nor did the parent raise the topic of additional impairments during the reevaluation. Consideration of information related to the student’s disability, consistent with that from the recent IEP team evaluation, was documented in the January 15 manifestation meeting report.

While the parent disagreed with the IEP team decision, there is no evidence the district failed to consider all relevant information when making the manifestation determination. Following the student’s expulsion, the parent provided the district with a copy of a 2002 outside evaluation report and new information about the student’s disability. The parent has also agreed to share a copy of a recent psychiatric report with the district. An IEP team meeting has been scheduled for June 11, 2010, at which time all new information will be considered and an IEP and placement will be developed for the 2010-2011 school year.

With respect to the second issue, the IEP team must, in the case of a student whose behavior impedes the student’s learning or that of others, consider the use of positive behavioral interventions and supports and other strategies to address that behavior. The student’s IEPs in effect during the 2009-2010 school year identified behavior as a special factor and included a behavior goal. The statement of special factors addressed academic learning behaviors including short term memory and use of an assignment notebook. The IEP team did not address social emotional and behavioral issues related to the student’s diagnosis of an emotional behavioral disability as identified in the student’s March, 9, 2009 evaluation report.

The IEP in effect between August 31, 2009, and January 25, 2010 included supports for academic behavior including preferential seating, group assignment, and tests read orally. The program summary indicated the attached behavior intervention plan (BIP) should be followed when “negative situations occur.” There was no information provided to define what constituted a “negative situation.”

The IEP team met to review the student’s progress three times between August 31, 2009, and January 25, 2010. No revisions were made to the student’s IEP goals, services, or BIP following these meetings even though the student continued to fail to meet behavioral expectations, was repeatedly disciplined for leaving school without permission, and refused to utilize the behavior resource room as a support. The student’s placement and program summary were revised on January 25, 2010, following the student’s expulsion. No changes were made to the student’s IEP goals or BIP. The IEP team next met on March 19, 2010. At that time changes were made to the IEP statement of special factors, behavior goal, services, and BIP. The revisions identify several positive behavior supports and strategies but do include statements specific enough to clearly identify under what conditions the student requires positive interventions, supports, and other strategies.

During the 2009-2010 school year, the district did not properly consider positive behavioral interventions, strategies, and supports to address behavior which impedes the student's learning or that of others. The student’s expulsion order expires at the end of the 2009-2010 regular school term, and the student could return for summer school. An IEP team meeting is scheduled on June 11, 2010 to revise the student’s IEP to address behavioral needs resulting from the student’s disability and to develop positive behavioral interventions, supports, and other strategies to address those needs. During this meeting, the IEP team is directed to review the student’s behavioral needs and determine if a functional behavioral assessment is warranted. The IEP team must also determine if additional services are necessary due to the district’s failure to properly consider positive behavior interventions, strategies, and supports during the 2009-2010 school year.

Within 30 days from the date of this decision, the district must submit to the department documentation of the student specific corrective actions including a copy of the student’s updated IEP and a corrective action plan to ensure district IEP teams properly consider the use of positive behavioral interventions and supports and other strategies to address student behavior that impedes the student’s learning or that of others.

All noncompliance identified above must be corrected as soon as possible, but in no case more than one year from the date of this decision. This concludes our review of this complaint.

//signed CST/SJP 6/8/10
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy