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IDEA Complaint Decision 16-016

On March 12, 2016, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX against the Milwaukee Public Schools. This is the department’s decision regarding that complaint. The issues are concerning the 2015-16 school year, and are addressed below.

Properly implemented the student’s individualized education program (IEP) in September 2015

The school district must provide a free appropriate public education (FAPE) to each student with a disability by developing a program that meets the student’s unique needs, documenting that program in the IEP, and implementing the program articulated in the IEP.

On May 15, 2015, an IEP team meeting was held to develop an annual IEP and determine placement. The IEP developed was to continue into the 2015-16 school year when the student would move to a different MPS school. The required IEP team members attended the IEP team meeting, including the student’s parent. The student’s IEP team determined the services the student would receive for the 2015-16 school year, as well as the student’s placement. The student’s IEP includes a comprehensive placement in a highly structured special education classroom 240 minutes a day, with transportation daily as a related service. On September 1, 2015, the first day of school for the 2015-16 school year, the student was placed in all regular education classes. Between September 1, 2015, and September 14, 2015, the student was assigned to and attended all regular education classes. On September 14 2015, the student’s daily schedule was adjusted and the student was placed in the comprehensive special education program as required by the IEP. On November 12, 2015, an IEP team meeting was conducted to review and revise the student’s IEP, develop a functional behavior assessment (FBA) and behavioral intervention plan (BIP) and determine continuing placement. All required IEP team members, including the student’s parent with an advocate, participated in the meeting. The revised IEP includes specially designed instruction in a special education classroom 225 minutes a day, specially designed math instruction in a regular education environment 30 minutes a day, regular physical education and vocational education classes, daily specialized transportation, and supplementary aids and services. On November 20, 2015, the student’s daily schedule was changed to reflect the placement determined by the IEP team. Between September 1, 2015, and September 14, 2015, the district did not properly implement the student’s IEP in effect at the beginning of the 2015-16 school year.

Properly followed disciplinary procedures

After the tenth 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 IEP goals. If the removal will not result in a change of placement, school personnel in consultation with at least one of the student’s teachers determine the required services as well as where the services will be provided. The services may vary depending on the needs of the student and the length of the removal.

A disciplinary change of placement occurs if the removal is for more than 10 consecutive days or the student has been subjected to a series of removals that constitute a pattern. When a student has been removed for more than 10 cumulative school days during the school year, the LEA must determine whether there is a pattern of removals that constitutes a change in placement. A series of removals constitute a pattern when: the student has been removed for more than 10 cumulative school days in a single year; the behavior is substantially similar to previous incidents; and other additional factors are considered, such as the length of each removal, the total amount of time removed, and the proximity of the removals to one another. After the student has been removed for more than 10 cumulative school days, the LEA must review each subsequent removal to determine if a pattern of removals exist. The decision as to whether there is a pattern of removals is made on a case-by-case basis by the LEA.

If the removal results in a change of placement, the IEP team determines the services and setting. Within 10 school days of any decision by a district to change the placement of a student with a disability because of a violation of the student code of conduct, the district, the parent, and relevant members of the student’s IEP team must conduct a manifestation determination.

On September 17, 23, 28, October 1, and 4, 2015, the student was involved in behavior incidents resulting in a total of six days of suspension. On November 12, an IEP team meeting was conducted to review and revise the student’s IEP, conduct a FBA, develop a BIP, and determine continuing placement. On December 4, the student was involved in a behavior incident resulting in a one day suspension for a total of seven days of suspension. On January 27, 2016, the student was involved in a behavior incident resulting in a five day suspension for a total of 12 days of suspension. On February 4, 2016, a school administrator in consultation with the student’s teacher determined the services to be provided during the period of suspension; however, the district did not consider whether the series of disciplinary removals constituted a pattern resulting in a change in the student’s placement. Although a central office discipline hearing was scheduled for February 8, it was not conducted and the district did not proceed with an expulsion hearing. On February 8, the student’s parent and an advocate participated in a school-level investigative review. A school administrator and special education supervisor followed the central office discipline hearing outline. Following this school-level review, an IEP team meeting was conducted to review and revise the student’s IEP, review the FBA and BIP, determine continuing placement, and add additional regular education classes. On March 1, the student was involved in a behavior incident resulting in a two-day suspension for a total of 14 cumulative days of suspension. On March 1, a school administrator in consultation with the student’s teacher determined services to be provided during the period of suspension; however, the district again did not consider whether the series of disciplinary removals constituted a pattern resulting in a change in the student’s placement.

When the student was removed for more than 10 cumulative school days during the 2015-2016 school year, for each subsequent removal on February 3 and March 1, the LEA was required to determine if a pattern of removals exist, and if so, conduct a manifestation determination.  The district did not properly follow disciplinary procedures.

Properly implemented the behavioral intervention plan from November 2015 to the present

The student’s November 12, 2015 IEP contains a BIP and supplementary aids and services designed to increase the student’s ability to self-regulate and to support the student during periods of behavioral difficulties. The supplementary aids and services include a daily point sheet, access to a designated trusted adult, and 10 small breaks in designated areas for special education settings. The BIP indicates the student will be provided behavior management strategies across all school settings. The BIP strategies include positive praise and encouragement, one to one support, choice time as a reward, daily review of classroom expectations, role playing, and extra time to allow for physical activities. On February 16, an IEP team meeting was conducted at which the supplementary aids and services designed to address the student’s behavior needs and the student’s BIP was revised.

Between November 2015, and February 16, 2016, there were several occasions when the student had behavioral incidents, and as acknowledged by staff, the student’s BIP and the supplementary aids and services were inconsistently provided. After February 16, the revised supplementary aids and services designed to address the student’s behavior needs and the student’s BIP were consistently implemented. The student’s IEP and BIP were not properly implemented between November 2015, and February 16, 2016.

Properly responded to the parent’s request for reevaluation

Districts must reevaluate a student with a disability if the educational or related services needs of the child, including the child’s academic performance, warrant a reevaluation, or if the child’s parent or teacher requests a reevaluation. Within 15 business days of the notice of reevaluation, the district must send the student’s parent a request for consent for additional testing or notice that no additional testing is necessary. The IEP team must convene and determine eligibility within 60 days of receiving parental consent for reevaluation or notifying parents that no additional assessments are needed.

On November 12, 2015, at an IEP team meeting, the student’s parent requested the student be reevaluated. There is no documentation of a notice of reevaluation or a review of existing data, and the 15-day timeline was not followed. The parent and the parent advocate participated in a review of existing data at the November 12 IEP team meeting and suggested assessments. On December 14, the parent signed the form without checking the box to indicate she was giving consent. District staff did not follow up with the parent about the consent until January 4, 2016. On January 4, a revised form was delivered to the parent. On January 11, at an IEP team meeting the parent signed and gave her consent for additional assessments. On February 16, the IEP team convened and determined continuing eligibility, developed an IEP, and determined the student’s placement. The district’s delays resulted in the district not conducting the reevaluation timely. The district did not properly responded to the parent’s request for reevaluation.

Within 30 days of the date of this decision, the district must conduct an IEP team meeting to determine if the student should be provided compensatory services due to the delay in implementing the student’s IEP, failure to consistently implement the student’s BIP and supplementary aids and services designed to address the student’s behavior needs, and the delay in conducting a reevaluation of the student. In addition, within 30 days from the date of this decision, the district must submit a proposed corrective action plan to ensure all IEPs in the school are properly implemented, including BIPs and supplementary aids and services; disciplinary procedures are properly followed; and school staff properly respond to a parent’s request for reevaluation within the required timelines.

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 5/2/2016
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support

Dec/jfd