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IDEA Complaint Decision 15-004

On January 28, 2015, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX, through their attorney, against the XXXXX School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2013-14 and 2014-15 school years, properly identified, located, and evaluated a child with a disability; and properly followed special education discipline requirements.

Under the Individuals with Disabilities Education Act (IDEA), school districts must identify, locate, and evaluate all resident students with disabilities who are in need of special education and related services. School districts must conduct "child find" activities and establish procedures informing licensed educators employed by the district, parents, and non-district professionals who are required under state law to refer a student who they reasonably believe is a child with a disability about these activities. Each district must establish written procedures for accepting and processing referrals for special education evaluations from these individuals, and must annually inform parents and persons required to make referrals about the district’s special education referral procedures.

A student who has not been determined to be a child with a disability who engages in behavior violating a code of student conduct may assert protections provided under IDEA if the school district is deemed to have knowledge the student was a child with a disability before the behavior precipitating the disciplinary action occurred. A school district is deemed to have knowledge a child is a child with a disability if prior to the behavior precipitating disciplinary action the student’s parent expressed concern in writing to supervisory or administrative personnel or a teacher of the student that the student is in need of special education and related services; the student’s parent requested a special education evaluation of the student; or the teacher of the student, or other personnel of the district, expressed specific concerns about a pattern of behavior demonstrated by the student directly to the director of special education or other supervisory personnel.

The student had five minor behavior incidents during the 2013-14 school year. District staff shared concerns regarding the student’s behavior and academic performance with the student’s parents, including concerns the student was coming to class without needed materials and was not turning in homework. In October 2014, the student was evaluated by a private psychologist who provided a medical diagnosis. The psychologist’s report suggested the student’s parent seek further medical consultation and sessions with a mental health clinician, but did not suggest a need for a referral for a special education evaluation. The student’s parents did not provide the results of the student’s medical evaluation to the school district.

Between September 11, 2014, and October 30, 2014, the student had 18 behavior incidents for minor offenses such as tardiness, coming to class without needed materials, and using a prohibited small electronic device in the hallway. The student received four after-school detention periods for these offenses, but no in-school or out-of-school suspensions. In early October, the student began participating in a regular education intervention based upon the recommendation by the district’s positive behavioral intervention and supports (PBIS) team. The intervention was intended to provide the student additional behavior support within the regular education program.

On November 3, 2014, the student brought a multi-purpose tool, including a pocketknife, to school. The student showed the pocketknife to other students. The district gave the student a 10 day out-of-school suspension and recommended the student be expelled. On November 14, the student was expelled for the remainder of the 2014-15 school year and the entire 2015-16 school year with conditions for early readmission. A referral for a special education evaluation was made by the student’s parents on January 8, 2015. The district received consent for evaluation from the parent on February 10, 2015, and is in the process of completing the assessments.

Prior to November 3, 2014, district staff communicated with the parents regarding concerns and provided the student regular education interventions according to established district procedures. During the complaint investigation interviews, multiple district staff stated that in their professional judgment, the student’s academic and behavioral concerns did not give them reason to believe the student might have an impairment requiring special education. The student’s parents did not request a special education evaluation either verbally or in writing, or share information with district staff that might have led them to believe the student had an impairment and might require special education. The district has special education referral policies and procedures in place to ensure notification of annual child find activities are disseminated and to inform parents and persons required to make referrals. The district did not fail to properly identify, locate, or evaluate the student as a child with a disability, nor did the district fail to properly follow special education discipline requirements when taking disciplinary action against the student.

This concludes our review of this complaint.

//signed CST 3/25/2015
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support