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IDEA Complaint Decision 18-001

On January 4, 2018, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against the XXXXX (district). The issue is whether the district, during the 2017-2018 school year, properly followed special education disciplinary requirements. This is the department’s decision regarding this complaint.

A disciplinary change of placement occurs when a student is removed from the student’s current educational placement for disciplinary reasons for more than 10 consecutive days or when a student has been subjected to a series of removals that constitute a pattern. An expulsion is considered a disciplinary change of placement. 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 individualized education program (IEP) team must conduct a manifestation determination. In determining whether the conduct is a manifestation of the student’s disability, district staff, the parent, and relevant members of the student’s IEP team (as determined by the parent and the district) must review all relevant information in the student’s file, including the student’s IEP, any teacher observations, and any relevant information provided by the parents. The conduct must be considered a manifestation of the student’s disability if the conduct was caused by or had a direct and substantial relationship to the student’s disability, or if the conduct in question was the direct result of the district’s failure to implement the IEP. If the behavior is a manifestation of the student’s disability, the district cannot unilaterally proceed with changing the student’s placement. The parent and the district, however, may agree to a change of placement. If the conduct is not a manifestation of the student’s disability, the student may remain in the removed setting but must continue to receive educational services so as to enable the student to continue to participate in the general education curriculum and to progress toward meeting the goals set out in the student’s IEP.

School districts have a responsibility to locate, evaluate, and identify students with disabilities residing in the district. Special education evaluations must be sufficiently comprehensive to identify all of a student’s special education and related service needs.

The student who is subject of this complaint is in elementary school and has been identified as a student with a specific learning disability. Evaluations conducted in January 2011 and January 2014 include growing concerns regarding the student’s behavior in addition to the student’s academic needs. The IEP in effect at the time of the incident giving rise to this complaint, most recently revised on December 8, 2017, identifies behavior as a special factor for the student and includes a behavior intervention plan addressing significant behaviors while the student is emotionally escalated such as making inappropriate comments, calling adults names, touching others or their items, and throwing and kicking items.

On December 18, 2017, while on the bus the student engaged in verbal and physical behavior toward a paraprofessional on the bus that violated the student code of conduct. The paraprofessional reported the information to the principal the next day. The student received a 10-day out of school suspension and was recommended for expulsion. On January 3, 2018, the student’s IEP team, including the student’s parents, the student’s county social worker, and the student’s provider of ongoing in-home family therapy, met to conduct a manifestation determination. The team reviewed a detailed description of the December 18 incident, the student’s current academic progress, records of behavior referrals and suspension, previous evaluations, and statewide assessment results. The student’s parents shared information regarding the student including medical information. The student’s county social worker and home therapist shared information regarding the student’s history, including significant possible past trauma. The therapist indicated the student had multiple psychiatric diagnoses. Teachers shared observations that although the student occasionally exhibited behaviors, the student’s in‑class behavior had been improving as compared to the beginning of the school year and the student was making academic progress. The student’s IEP contained academic goals as well as a goal to improve age-appropriate pro-social skills. District staff determined that although the student had past aggressive behaviors, based on review of bus video and staff reports, the nature of the behavior in question was different in that the student appeared calm and not emotionally escalated during the incident. The team determined there was no direct and substantial relationship between the behavior and the student’s identified specific learning disability. The team also determined the student’s IEP was appropriate and being implemented appropriately. As a result of these determinations, the team concluded the behavior was not a manifestation of the student’s disability. The student’s parents, county social worker, and therapist disagreed with this determination. The team decided to initiate a re-evaluation of the student to consider the criteria for emotional behavioral disability in light of the student’s changing needs. The team also determined the educational services to be provided to the student during the period of removal. At the conclusion of the meeting, the district intended to move forward with an expulsion hearing, but given the student’s age and unique needs, ultimately decided not to pursue the expulsion.

The district conducted the student’s manifestation determination timely, as the winter break occurred between the time of the student’s suspension and the manifestation determination meeting. The team reviewed all required information. The team properly conducted the manifestation determination. Although the team determined the behavior in question was not a manifestation of the student’s disability, at the same meeting the district decided it was necessary to conduct an additional evaluation to learn more about the student’s emotional and behavioral needs. Given the student’s extensive history of behavioral issues spanning the student’s entire educational career, the district should have conducted a comprehensive evaluation into those areas much earlier.

Since the meeting on January 3, 2018, the student’s IEP team has met multiple times and is in the process of conducting a comprehensive evaluation. As such, no student-specific corrective action is required. The district must review its policies regarding conducting comprehensive special education evaluations, and revise them if necessary. Within 30 days of this decision, the district must submit to the department evidence of this review and a corrective action plan to ensure all staff understand the requirements and policies in this area.

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 3/5/2018
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support
CST:mhr