On July 27, 2015 (form dated July 22, 2015), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX against the XXXXX School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2014-15 school year:
- Properly responded to a parent’s request for services,
- Properly implemented the student’s behavior intervention plan (BIP),
- Properly followed the special education disciplinary requirements, and
- Properly responded to the parent’s request for pupil records.
Did the district properly respond to a parent’s request for services?
The parent states that she requested an aide during lunch and recess time because the student had difficulty with unstructured time. In the IEP written on March 10, 2015, under the section on the student’s present levels of performance, the team described how during more unstructured times of the day (such as lunch, or recess, hallway, or gym) the student struggled with controlling and self-regulating his behavior. He ate lunch in the cafeteria with his class and went out to recess with his class. Staff members who were interviewed noted there was always adult supervision on the playground during recess. The student’s aide said she made sure the student was seated in the cafeteria before she left to have his lunch. Staff persons interviewed said they had discussed having a one-on-one aide with the student during lunch and recess but the IEP team determined it was not necessary because there was adult supervision.
The IEP team must work toward consensus, but the district has the ultimate authority and responsibility to determine and provide FAPE. If the IEP team cannot reach consensus, the district must provide the parent with prior written notice of the district’s proposals or refusals, or both, regarding the child’s educational program and the parent has the right to seek resolution of any disagreements by seeking dispute resolution options. There is no documentation indicating that the district provided notice of its refusal to provide an aide during lunch or recess.
Did the district properly implement the student’s BIP?
A BIP was developed for the student at an IEP meeting on March 11, 2015. It was updated at a subsequent IEP meeting held on May 28, 2015, and a functional behavioral assessment (FBA) was also written. The parent attended both meetings.
The student’s target behaviors to be reduced or eliminated included aggressive behaviors such as kicking, hitting, pushing, shoving, and throwing objects and noncompliant behaviors such as ignoring staff and arguing. At the first indication of target behaviors in the regular education classroom, the student was to be given verbal prompts and reminders to comply with directions. If he became upset, he was to be reminded to use his self-control and calming strategies. If these strategies were unsuccessful, the student was to take a break in the special education classroom. He could return to the regular education classroom when he demonstrated the desired behaviors. He could also request a break in the special education classroom if he was unable to calm down in the regular education classroom. In the event his behavior escalated in the special education classroom, the principal or another staff member would be contacted to help provide back-up in de-escalating the situation. In the event the student’s behavior endangered the safety or well-being of others, restraint could be used by trained staff.
The parent alleged the district used exclusion as a form of discipline by requiring the child to stay in the special education classroom on numerous occasions in the spring of 2015, instead of being allowed to return to his regular classroom. During the spring semester, the student’s behavior deteriorated, and the student was sent to the special education classroom for a total of 13 times. The classroom logs, student referral documents, and staff interviews show the student was sent to the special education classroom in accordance with the BIP when he acted aggressive, and on one occasion when he was verbally disruptive. The special education classroom logs indicate the student was usually working on assignments while he was removed. The student was able to return to the regular education classroom when he became calm in accordance with the BIP.
During this time, the IEP team met on March 10, to review the BIP and to discuss the child’s deteriorating behavior. The IEP team met again on May 28, to review a FBA and to again review the BIP to ensure the positive behavioral interventions, supports, and strategies addressed the needs of the student. There is no evidence that the student was kept in the classroom as a form of punishment. The district properly implemented the student’s BIP.
Did the district properly follow the special education disciplinary requirements?
A school district must provide educational services to a student with a disability when a student is removed for violating a code of conduct for more than 10 cumulative school days in a school year. The educational services provided must enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student’s IEP. In-school suspensions must be considered removals unless the child has the opportunity to continue to participate in the general curriculum, receive the services specified in his IEP and to participate with nondisabled children to the extent he would have in the current placement.
The student served a two-day out-of-school suspension on February 3 and 4, 2015 for aggressive behavior. The student again served a one and a half day out-of-school suspension on the afternoon of March 23 and 24, 2015. The student also served a half-day suspension on May 14, when his parents were called and asked to take him home. The student received a total of four days of out-of-school suspensions during the spring.
District records show the student received in-school suspensions in the special education classroom for most of three school days due to aggressive behavior on March 26, May 4, and May 26. Thus, even if the in-school-suspensions are counted, the total amount of disciplinary removals did not exceed 10 days. The district properly followed the special education disciplinary requirements.
Did the district properly respond to the parent’s request for education records?
A district must permit parents, on request, to inspect and review their child's education records. An “education record” is defined as “those records, files, documents, and other materials which contain information directly related to a student; and are maintained by an educational agency or institution or by a person acting for such agency or institution.”
On May 26, the parent sent an email to the special education teacher with the following request: “My understanding is that when a child is in the EBD room, it is logged. I would like a copy of all of (student’s) time spent in the EBD room for this school year…”
According to interviews with staff, the logs of student behavior were kept in separate files, by the name of the student, in a locked file in the special education classroom, and were reviewed by the special education teacher and the student’s aide. Staff did not give the parent the logs, but instead shared with the parent a summary of what was in the logs. The logs were not personal notes as they were shared with others, and are considered an education record. A copy should have been provided to the parent upon her request.
Within 30 days from the date of this decision, the district must develop a corrective action plan to ensure the district properly provides prior written notice and properly responds to a parent’s request for pupil records. If the district has not done so already, the district must provide a copy of the behavioral logs to the parent within 10 days from the date of this decision. 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. This decision is final for the IDEA State Complaint process.
//signed CST 9/25/2015
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support