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IDEA Complaint Decision 13-030

On May 24, 2013, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against XXXXX. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2012-13 school year:

  • Properly developed and implemented individualized education programs (IEPs) that addressed the student’s behavioral needs,
  • Properly followed special education disciplinary requirements, and
  • Properly reduced the student’s school day.

The student’s IEP in effect in the beginning of the 2012-13 school year identified behavior as a concern, and included behavioral interventions such as a small, structured classroom with less distraction, clearly defined and often repeated classroom expectations in general education classes, and earning points each day with a daily report sent to parents. The IEP included annual goals and objectives addressing behavior. The student was attending school for the full school day and attended several general education classes. An annual meeting to review the IEP was held on October 16, 2012, and the IEP team met several additional times throughout the school year. On February 13, 2013, the IEP team met and added the use of the resource room or guidance counselor’s room in the afternoon to provide a calming area and a full-time aide to the existing behavioral supports. On February 20, 2013, following a behavioral incident, the IEP team revised the IEP, reducing the school day to three hours and forty-five minutes of instruction per day occurring in a self-contained special education resource room. On March 20, 2013, the IEP was revised to include a checklist of behavioral expectations for the student. The IEP team did not add or revise the student’s behavioral interventions, and the student’s placement was not changed. On April 16, 2013, the IEP team met to conduct a reevaluation and review the IEP. The student continued to meet criteria for specific learning disability and emotional behavioral disability. The student’s behavioral supports and placement were not changed at this meeting.

While serving an after school detention on May 15, 2013, the student made statements that raised staff concerns. The student received a three-day, out-of-school suspension following this incident. On May 22, 2013, the IEP team held a manifestation determination and found the statements were a manifestation of the student’s disability. The IEP was revised to include a functional behavioral assessment, behavior intervention plan, and crisis intervention plan. The behavior intervention plan includes behavioral contracting, allowing time to process, social stories, social skills curriculum, perspective taking, identifying appropriate ways to gain power or control, and behavioral referrals with consequences as interventions. The student’s placement was also changed without agreement by the parent. The student’s instructional time was further reduced to three hours, three days per week at an off-site location.

In the case of a student whose behavior impedes his or her learning or that of others, IEP teams must consider the use of positive behavioral interventions and supports and other strategies to address that behavior. Positive behavioral interventions are designed to either prevent challenging behaviors and/or teach replacement behaviors and skills. Throughout the 2012-13 school year, the IEP team met repeatedly to revise the IEP to adjust the behavioral supports and interventions included in the IEP. Each IEP includes some positive behavioral interventions and supports, and the IEP was implemented as written.

School districts must have procedures in place to record and count disciplinary removals including, but not limited to, expulsions, out of school suspensions, certain in-school suspensions, and de facto suspensions occurring when the school district removes a student from school or class for not following school rules but does not refer to it as a suspension. Beginning on the eleventh cumulative school day of removal in a school year, and during subsequent removals, the district must provide services to the extent necessary to enable the student to continue to participate appropriately in the general curriculum, although in another setting, and to progress toward achieving the student’s IEP goals. The student’s attendance record indicates the student was suspended from school nine and a half days during the school year. Based on information provided by the parent and district, the student was sent home from school early due to not following school rules on several other occasions throughout the school year. These were not recorded or counted as disciplinary removals. Therefore, the removals exceeded ten days. The district did not accurately record and count the student’s disciplinary removals during the 2012-13 school year or provide services after the tenth day of removal as required.

Within 10 school days of any decision to make a disciplinary change of placement for a student, the district, the parent, and relevant members of the student’s IEP team must conduct a manifestation determination. If the student’s conduct is determined to be a manifestation of the student’s disability, the IEP team must convene to conduct a functional behavioral assessment (FBA), unless one had been conducted before the behavior that resulted in the change of placement occurred, and implement a behavior intervention plan (BIP). If a BIP has already been developed, the IEP team must review the BIP and modify it, as necessary, to address the behavior. The student must also be returned to the placement from which the student was removed, unless the parent and the LEA agree to a change of placement as a part of the modification of the BIP. On the date on which the decision is made to make a removal that constitutes a change of placement of a student with a disability because of a violation of a code of student conduct, the district must notify the parents of the decision and provide the parents a copy of the procedural safeguards notice. During the IEP team meeting on May 22, 2013, the student’s placement was changed without the parent’s agreement following a determination the student’s behavior was a manifestation of the student’s disability.

A student’s school day should be reduced only in rare circumstances, when it is warranted by the unique needs of the particular student and it cannot be used as means of disciplining a student. Generally, any plan to reduce a student’s day should include a plan to increase the amount of time the student spends in school to that of all other students. The plan should be documented in the IEP and the team should include goals and/or services designed to increase the time the student spends in school. During the 2012-13 school year, the amount of instruction time was decreased without discussion of a plan to increase the amount of time the student spends in school. There is also no evidence the IEP team decisions to reduce the school day were based on the individual needs of the child. The district improperly reduced the student’s school day.

By September 1, 2013, the district must convene an IEP team meeting to determine compensatory services to be provided because of the improper reduction of the school day. In doing so, the IEP team must also consider whether compensatory services are required because of disciplinary removals beyond the 10th day during the 2012-13 school year. The district must submit to the department a copy of the revised IEP within 10 days of the meeting. In addition, by September 1, 2013, the district must submit a proposed corrective action plan to the department to ensure the district has procedures to record and track all disciplinary removals, including de facto suspensions, to ensure the special education disciplinary requirements are properly followed, and to ensure the amount of instructional time is reduced only when warranted by the individual needs of the student and there is a plan in place designed to return the student to a full day of instruction. The corrective actions must include a plan to contract with an outside consultant to provide professional development in addressing behavioral concerns of students with disabilities in order to reduce disciplinary removals of students with disabilities. 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 7/23/2013
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support