On January 14, 2016 (letter dated January 8, 2016), 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 issue is whether the district, during the 2015-16 school year, properly followed special education disciplinary procedures.
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, the local educational agency (LEA), the parent, and relevant members of the student’s individualized education program (IEP) team must review all relevant information in the student’s education file to determine if the conduct in question is a manifestation of the student’s disability. If the IEP team makes the determination that the conduct was a manifestation of the student’s disability, the LEA must either conduct a functional behavioral assessment (FBA), unless one was conducted before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan (BIP) for the student; or if a BIP already has been developed, review and modify it, as necessary, to address the behavior. Except in limited circumstances involving serious bodily injury (defined as bodily injury that involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ, or mental faculty) the IEP team must also return the student to the placement from which the student was removed, unless the parent and the LEA agree to a change of placement as part of the modification of the BIP.
On November 10, 2015, the student engaged in behavior in violation of the district’s code of student conduct and was suspended from school, with the possibility of expulsion. On November 17, 2015, the student’s IEP team met and determined the student’s initial special education eligibility, conducted a manifestation determination, and developed the student’s IEP and educational placement. The student’s parent attended the meeting. The student was determined to meet the educational eligibility criteria for emotional behavioral disability. In making the manifestation determination, the IEP team reviewed the student’s cumulative file, behavior record, and the information gathered during the special education evaluation. The team determined the student’s behavior was a manifestation of the student’s disability. The team developed a BIP for the student addressing the behavior precipitating the discipline; however, the BIP was not based on an FBA. The district did not move forward with expulsion proceedings due to the IEP team determination that the student’s behavior was a manifestation of the student’s disability. The district did not contend the student’s behavior involved weapons, drugs, or serious bodily injury, and a 45-day placement in an Interim Alternative Educational Setting was not considered during the meeting.
The IEP team developed an offsite placement for the student with special education support. The parent did not agree with this offsite placement. The IEP team should have returned the student to the placement from which the student was removed or developed a different placement agreeable to the student’s parent. The district did not properly follow special education disciplinary procedures.
Within 30 days of the date of this decision, the district must conduct a FBA and revise the student’s BIP as necessary based on the results of the FBA. The student’s placement has been modified from the original offsite placement. The current placement is also an offsite program. The IEP team must meet to review the student’s placement to determine whether the current placement is providing the student a free, appropriate public education (FAPE). If the IEP team determines the current placement is not providing the student FAPE, the IEP team must determine a new placement in agreement with the parent. The district must send a copy of the IEP to the department within 10 days of the IEP team meeting. The district must also develop a corrective action plan to ensure special education disciplinary procedures are followed, including ensuring proper placement procedures following manifestation determinations.
This concludes our review of this complaint.
//signed CST 3/9/2016
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support