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IDEA Complaint Decision 11-048

On December 5, 2011, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against Franklin Public Schools. This is the department’s decision regarding that complaint. The issues are whether the district in July 2011 properly responded to a special education evaluation, and properly followed special education disciplinary requirements.

On February 9, 2011, the student was expelled through his 21st birthday for an incident that occurred in January. The expulsion order allowed for “probationary readmittance” if certain conditions were met. The student was an 8th grader at the time of the incident and was not identified as a student with a disability. In July 2011, the student’s parent made a written request for a special education evaluation and requested that the student be readmitted into school. The request for readmission was granted but the district did not respond to the request for a special education evaluation.

The student attended school in the beginning of the 2011-12 school year. In October, the student violated the terms of his early readmission and the expulsion was reinstated. In November 2011, the parent again requested a special education evaluation. An evaluation was completed at this time, and on December 19, 2011, the individualized education program (IEP) team determined that the student was a student with a disability and in need of special education. An IEP was developed, which included a behavioral intervention plan. The IEP team also determined compensatory services because of the delay in the evaluation and provision of special education services. On December 20, 2011, a manifestation determination was conducted and the IEP team determined that the incident for which the student was expelled was a manifestation of his disability. The student began attending school January 3, 2012.

If a request for a special education evaluation is made after disciplinary action, the district must conduct the evaluation in an expedited manner. The district acknowledges that it did not properly respond to the July 2011 request for a special education evaluation. Furthermore, because a request for an evaluation was made prior to the October 2011 incident, the special education disciplinary requirements applied. Under federal law, a school district is considered “deemed to know” that a child is a child with a disability if before the incident the parent of the child requested a special education evaluation. Therefore, the district did not properly follow special education disciplinary requirements when it reinstated the expulsion without first conducting a manifestation determination. A special education evaluation has been completed, a manifestation determination has been conducted, and the student has been readmitted to school. In addition, the IEP team has determined compensatory services. Consequently, no further student specific corrective action is required. As district-wide corrective action, the district must, within 30 days from the date of this decision, submit a corrective action plan to ensure that the district properly responds to referrals for special education and properly follows special education disciplinary requirements.

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. You may contact Patricia Williams, Special Education Team, at (608) 267-3720 if you have any questions about this decision or for technical assistance.

//signed CST 1/31/2012
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy