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IDEA Complaint Decision 18-004

On January 16, 2018 (form dated January 12, 2018), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (parent) against the School District of West De Pere (district). This is the department’s decision regarding that complaint. The issues are whether the district, during the 2017-18 school year:

  • Properly followed special education disciplinary requirements;
  • Properly shortened the school day of a student with a disability; and
  • Properly implemented the individualized education program (IEP) of a student with a disability regarding alternate passing times and lunch period.

Properly followed special education disciplinary requirements and properly shortened the school day of a student with a disability

 If the district proposes to change the student’s placement because of a violation of a code of student conduct, the school district must conduct a manifestation determination within 10 school days from the date of that decision. A disciplinary change of placement occurs when the student’s removal is for more than 10 consecutive school days or when a series of removals constitutes a pattern. If the IEP team makes the determination that the student’s conduct was a manifestation of the child’s disability, the IEP team 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 child; or if a BIP already has been developed, review and modify it, as necessary, to address the behavior. The IEP team must also return the child to the placement from which the child was removed, unless the parent and the IEP team agree to a change of placement as part of the modification of the BIP, or unless the incident involves weapons, drugs, or serious bodily injury.

On January 4, 2018, the student was issued a five day out-of-school suspension. The district initiated a manifestation determination hearing on January 9, 2018. The IEP team determined that the student’s behavior was a manifestation of his disability and proceeded to review and revise the student’s IEP and discuss placement. At the meeting, it was determined that the student’s placement would be changed to accommodate work study. The IEP team revised the IEP to reflect that the student’s Specially Designed Instruction would be reduced from 160 minutes a day to 85 minutes a day. Prior to the student’s suspension from school on January 4 through January 9, the student attended school during the normal school hours, and attended classes in both the special education classroom and regular education classrooms. The student attended drawing and physical education class in the regular education classroom, and the rest of his classes were offered in the special education classroom. However, when the student’s suspension ended, he was not returned to his drawing class, and attended school from only 8:00 until 10:00 in the morning.

The parent agreed to the student participating in work study because it aligned with her child’s interest and he would still earn credit towards graduation but the parent did not agree with the drastic reduction of in-school instruction where the student went from attending a full day of school to only two hours in the morning. The parent articulated her concerns and disagreement with the educational change of placement during the IEP meeting and in an email addressed to a staff member, which was sent on January 12, 2018. In the email, the parent wrote, “I don’t feel the change of placement fits for the behavior. He [student] should be in school full time…although he enjoys art, I don’t see him earning credit without support at home.” Once the student’s conduct was determined to be a manifestation of his disability, the student should have been returned to his original placement unless the parent agreed with the educational change of placement. The district improperly shortened the student’s day by not following the special education disciplinary requirements.

Properly implemented the IEP of a student with a disability regarding alternate passing times and no lunch period

Each student’s IEP must include a statement of the special education, related services, supplementary aids and services, and program modifications or supports for school staff to be provided based on each student’s unique needs. IEPs must describe services so the level of the district’s commitment of resources is clear to parents and other IEP team members. The description of the amount, frequency, location, and duration of each service must be appropriate to the specific service and stated in the IEP, in a manner clear to all who are involved in both the development and the implementation of the IEP. All services must be provided as described in the IEP.

During the IEP meeting on January 9, 2018, the IEP was revised to reflect that the student would be released early or escorted during passing times for the length of the current IEP. Although the student’s IEP included a provision for him to be released from class early or escorted during passing times, this was not implemented on a daily basis, as required by the IEP. The district did not properly implement the IEP regarding alternate passing times. The IEP in effect at the time the IDEA complaint was filed did not include a provision for where the student would eat lunch, so staff were not obligated to permit the student to eat in the special education classroom. 

As corrective action, the student must be immediately returned to his original placement prior to the January 4th suspension, unless the parent agrees to a different placement. Within 20 days from the date of this decision, the district must conduct an IEP team meeting to determine compensatory services for improperly shortening the student’s school day. All noncompliance identified above must be corrected as soon as possible. This concludes our review of this complaint.

//signed CST:bvh
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support