On May 16, 2017, the department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX against the XXXXX School District (district). This is the department’s decision regarding the complaint. The issues are whether the district, during the 2016-17 school year:
properly fulfilled its responsibility to identify, locate, and evaluate a student with a disability; and
properly followed special education disciplinary requirements.
In October 2016, the student violated the district’s code of student conduct resulting in potential expulsion. The student was not identified as a student with a disability at that time. Pursuant to district policy a pre-expulsion administrative hearing was held on October 11, 2016. At the hearing district staff and the student’s parent reviewed the conduct and the student’s academic and behavioral history. Reports from the student’s teachers indicated the student was generally experiencing academic and social success at school with some minor concerns expressed regarding the student’s ability to focus and avoid distraction. The student had been suspended on several occasions during the 2015-16 school year, but had not been suspended during the first month of the 2016-17 school year. The parent shared that the student had a medical diagnosis of attention deficit hyperactivity disorder (ADHD), was on medication for the condition, and was currently in day treatment related to the behavior incident. The district placed the expulsion proceedings in abeyance with the conditions that the student would not return to school before November 7, 2016, the student would complete coursework from home, the student would receive outside counseling, and on return to school the student would follow school rules and avoid major behavioral incidents.
The student returned to school on November 7, but shortly thereafter again violated the district’s code of student conduct. At that point, the district modified the expulsion abeyance with the added condition the student attend the district’s virtual school for the remainder of the 2016-17 school year and continue to participate in outside counseling. An administrative review was scheduled for August 2017, to consider the student’s return to his home school for the 2017-18 school year.
On February 25, 2017, the parent submitted a written request for an evaluation. The district conducted the evaluation in accordance with the required timelines, and on May 9, 2017, which was within 60 days from receiving parental consent for additional testing, the individualized education program (IEP) team determined the student eligible for special education and developed an IEP for the student. The student’s parent has not yet provided consent for the initial provision of special education services.
A school district must identify, locate, and evaluate all resident students with disabilities who are in need of special education and related services. Towards that end, district staff who reasonably believe a student has a disability must refer a student for evaluation for eligibility for special education. The question which arises in this complaint is whether the district should have initiated an evaluation of the student prior to the receipt of the parent’s referral in February. The evidence in this complaint indicates district staff understood the obligation to refer students believed to be disabled and the district’s policy and procedures for referring and evaluating students for eligibility under the Individuals with Disabilities Education Act (IDEA). The evidence also shows district staff did not refer the student for evaluation because of a reasonable belief that the student was not a student in need of special education. Once the parent submitted a written referral for evaluation, the district processed the evaluation in compliance with appropriate timelines, policies, and procedures. The district properly fulfilled its responsibility to identify, locate, and evaluate a student with a disability
A student with a disability is entitled to certain IDEA protections when a school district proposes to remove a student from his or her current placement as a consequence for a violation of the school’s code of student conduct. A student who has not been determined eligible for special education and related services may be entitled to these protections if, before the behavior occurred, either the parent or teacher of the student expressed concern in writing to school supervisory personnel that the student is in need of special education, the parent requested a special education evaluation of the student, or school personnel expressed concern about a pattern of behavior demonstrated by the student directly to the director of special education or other supervisory personnel of the district. In this instance none of these events occurred prior to the behavior which gave rise to the student’s potential expulsion, and therefore the student is not entitled to the IDEA discipline protections. The district properly followed special education disciplinary requirements.
This concludes our review of this complaint which we are closing.
//signed 7/13/17 by CST
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support