On November 20, 2018, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against XXXXX (district). This is the department’s decision regarding that complaint. The issues are whether the district, during the 2018-19 school year, properly determined the student’s placement in developing the individualized education program (IEP), and properly followed special education disciplinary procedures.
School districts must take steps to ensure one or both parents of a student with a disability are present at each IEP team meeting or are afforded the opportunity to participate by other means. The district must notify the parents of the meeting early enough to ensure they have an opportunity to attend and must schedule the meeting at a mutually agreeable time and place. If the student’s parents are not able to attend, the district must use other methods to ensure parent participation. An IEP team meeting may be held without a parent in attendance if the district is unable to convince the parents they should attend. [34 CFR § 300.322]
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. The conduct must be determined to be a manifestation of the student’s disability if the LEA representative, the parent, and relevant members of the child’s IEP team determine that the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or if the conduct in question was the direct result of the district’s failure to implement the IEP. In making this determination, all relevant information in the student’s file must be reviewed, including the student’s IEP, any teacher observations, and any relevant information provided by the parents.
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 has previously been conducted, and implement a behavioral intervention plan (BIP) for the child based on the FBA; 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 district 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. [34 CFR §§ 300.530 - 300.536]
On October 8, 2018, the student was involved in a physical altercation with a teacher at a district school, and the student was given a five-day suspension from October 9 through October 15, 2018. On October 16, 2018, the student’s IEP team met to conduct a manifestation determination because the district wanted to change the student’s placement. The student and the parent attended the meeting. The team reviewed the student's IEP, his pertinent medical information, his behavioral records, as well as statements taken from district staff as well as the student regarding the incident. The IEP team determined that the student's behavior was not a manifestation of the student's disability, and determined the student would be placed at a different district school. In doing so, the IEP team did not consider information relating to the student’s impulsivity. The student’s parents did not agree with the manifestation determination or the school where the student was placed. Although the student’s placement was changed, the district decided that the student would remain at the school he previously attended due to the parent’s concerns.
On October 18, 2018, the district’s director of special education determined the student’s IEP team would reconvene to reconsider the manifestation determination and change of placement. On November 8, 2018, the student’s IEP team met, and the parent attended this meeting. The IEP team reviewed all of the information previously provided, but determined the student's behavior was a manifestation of the student's disability. In particular, the IEP team determined the incident had a direct relationship to the student’s impulsivity. The parent stated that she did not want her son to remain at the school he currently attended or at the placement determined during the October 16th IEP team meeting. The district and the parent agreed to a placement at a third district school.
The district did not follow the special education disciplinary procedures with regard to the first manifestation determination. Although it was conducted within ten schools of the decision to change the student’s placement due to a violation of the code of student conduct, the IEP team did not properly determine, based on the information presented, whether the incident had a direct relationship to the student’s disability. However, this error was corrected by the second manifestation determination meeting held on November 8, 2018. In addition, placement was properly determined. The district was not required to return the student to his original placement, because the parent and district agreed to a change in placement.
This concludes our review of this complaint. This decision is final for the IDEA State Complaint process. These issues may be addressed through other dispute resolutions, including mediation and due process hearings. For more information, visit the department’s website at http://dpi.wi.gov/sped/dispute-resolution or contact the special education team at (608) 266-1781.
//signed BVH 1/18/2019