On September 6, 2016 (form dated August 30, 2016), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX against the School District of Janesville. This is the department’s decision regarding the complaint. The issues are whether the district, during the 2015-16 school year:
- properly identified, located and evaluated a student to determine whether the student has a disability;
- improperly excluded a student with a disability from recess during periods of in-school suspension; and
- improperly considered changing the placement of a student with a disability to a more restrictive setting.
Properly identified, located and evaluated a student to determine whether the student has a disability
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. As part of these child find activities, if a licensed educator employed by the school district reasonably believes a child has a disability, the educator must initiate a special education referral. Before submitting the referral, the child’s parents must be informed. Each district must establish written procedures for accepting and processing referrals and provide information and in-service opportunities to its entire licensed staff to familiarize them with the district’s referral procedures. Referrals must be in writing, include the name of the child, and the reasons why the person believes that the child is a child with a disability. Any person, including the parent, who reasonably believes that a child is a child with a disability, may refer the child to a local educational agency for evaluation.
Prior to the events related to this complaint, the student had never been evaluated for special education eligibility. In May of 2015, the student was medically diagnosed and treated for attention deficit hyperactivity disorder (ADHD) following multiple behavioral incidents at school, home, and in the community. When the parent registered the student for first grade in the fall, the parent listed ADHD as a health condition of the student on the district health form. At the fall parent-teacher conferences, the student’s teacher expressed concern to the parent about the student’s behavior and academic progress. In November, the student was restrained for behavior that posed a physical risk to the student and others. Five more behavior incidents occurred at school between November and December, resulting in two half-day in-school suspensions, two lunch detentions, and loss of recess privilege. In December, the school district met with the parent and discussed strategies the district would use with the student to address the behavior and academic concerns. The student’s behaviors continued and began to escalate. Six more incidents occurred over the next two months for which the student received partial day in-school suspensions and one full day in-school suspension. During each removal the student was given his school work to complete while in the in-school suspension room.
On February 23, 2016, the parent submitted a written referral for a special education evaluation. A review of existing data occurred in which the parent participated, and the parent was notified of the need to administer assessments and the start of the initial evaluation on March 2. The district received the parent’s consent to administer assessments and other evaluation materials. On April 14, the IEP team met and determined the student was a student with a disability. On April 18, an individualized education program (IEP) team meeting was held to develop the initial IEP and determine placement. The parent provided consent for the student to receive special education services and on April 28, 2016, the IEP was implemented.
The fact that the district was aware of the student’s medical diagnosis of ADHD combined with the student’s ongoing behavioral and academic challenges triggered the district’s independent obligation to evaluate the student for special education. Although the district was aware of the student’s behavior and academic needs and attempted to address them through various interventions, district staff who reasonably believed the student may have had a disability did not timely refer the student for a special education evaluation as required. The district failed to properly identify, locate and evaluate a student to determine whether the student has a disability.
Within 30 days of this decision, the district must convene an IEP team meeting to determine whether compensatory services are required for the delay in making a referral for a special education evaluation. The district must send a copy of the IEP to the department within 10 days after the IEP team meeting. In addition, within 30 days from the date of this decision, the district must develop and submit to the department a corrective action plan to ensure all department-licensed staff are trained on state and federal requirements regarding properly identifying, locating, and evaluating a child with a disability.
Improperly excluded a student with a disability from recess during periods of in-school suspension
In providing or arranging for the provision of nonacademic and extracurricular services and activities, including recess, the school district must ensure that each child with a disability participates with nondisabled children to the maximum extent appropriate to the needs of that child. State law permits a school district to suspend a student for violations of a code of student conduct, and suspensions may include in-school removals. School personnel may suspend a student with a disability who violates a code of student conduct.
On April 14, 2016, an IEP team determined the student had an impairment and needed special education. The IEP developed on April 18 included a behavior intervention plan (BIP) with positive interventions and supports based on a functional behavioral assessment. Between April 19, and May 11, six behavioral incidents occurred for which the student received in-school suspensions for at least part of the day. During two of the in-school suspensions, the student missed recess or playground time following lunch because of the timing of the incidents. During each of the removals, the student worked on his school work while in the in-school suspension room or in the special education resource room with the assistance of a paraprofessional. The student’s BIP was reviewed and revised on April 26, and June 9, 2016. It is the district’s practice to withhold the privilege of recess or lunch playground from students who are serving an in-school suspension, depending on the nature and timing of the suspension. Nothing in the student’s IEP or BIP prevented the district from applying its typical practice to the student. The district did not improperly exclude a student with a disability from recess during periods of in-school suspension.
Improperly considered changing the placement of a student with a disability to a more restrictive setting
To the maximum extent appropriate, children with disabilities must be educated with children who are nondisabled; and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment may occur only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. Each public agency must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities. In determining the educational placement of a child with a disability, each public agency must ensure that the decision is made by the IEP team during an IEP team meeting and is made in conformity with least restrictive environment (LRE) provisions.
On June 9, 2016, the IEP team met to review and revise the annual IEP and determine placement. The IEP team considered a continuum of placement options, including a more restrictive placement. The district offered to schedule a tour of another school in the district for the parents. Because the student is making progress in the current placement with supplementary aids and services, and it is the LRE, all members of the IEP team agreed that the current placement is the most appropriate for the student.
The IEP team properly considered a continuum of alternative placements during the June 9, 2016 IEP team meeting. It was not improper for the IEP team to consider a different placement for the student and agree the current placement is the most appropriate for the student. The IEP team did not improperly consider changing the placement of a student with a disability to a more restrictive setting.
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 10/31/2016
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support