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IDEA Complaint Decision 19-009

On February 21, 2019, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against the XXXXX (district). This is the department’s decision regarding the complaint. The issues are whether the district, during the 2018-19 school year,
  • Properly conducted a special education evaluation;
  • Properly followed special education disciplinary procedures;
  • Properly developed the individualized education program (IEP); and
  • Properly determined placement of a student with a disability.

On October 3, 2018, the student who is the subject of this complaint transferred to the XXXXX. The student had not previously been identified as a student with a disability. On October 10, the student, while in class, engaged in behavior that was in violation of the district’s code of student conduct and staff escorted the student to the office. The student refused to follow staff directives and the school resource officer became involved. The student was suspended, and the district sent the student’s legal guardian notice of a five-day suspension beginning October 11, 2018, pending expulsion.

On October 11, the district received a referral from the student’s legal guardian for a comprehensive special education evaluation of the student. The district sent the student’s legal guardian notice of receipt of the referral and start of an initial evaluation. In consultation with the student’s legal guardian, the district decided to delay conducting the expulsion hearing pending the completion of the special education evaluation. On October 18, the district began providing online/virtual educational services to the student in the group home in which the student was residing. The district did not consider the student to be suspended from school during this time. The student did not return to attendance at the high school.

On October 31, the district requested consent to conduct additional testing as part of the special education evaluation, and the district received the signed consent form from the student’s guardian on November 14, 2018. Members of the IEP team conducted testing with the student. An IEP team meeting was held on January 10, 2019, to determine the student’s initial eligibility for special education, develop an IEP, determine placement and conduct a manifestation determination. The IEP team determined the student was a student with a disability and the behavior that resulted in disciplinary action was a manifestation of the student’s disability. The IEP team offered six hours of one-on-one specially designed instruction weekly at an off-site location as the student’s initial special education placement. The IEP team established and documented criteria for the student to meet in order to return to high school which included perfect attendance at the off-site instructional sessions, no behavioral infractions with law enforcement, completion of a physical education log documented by the group home staff, completion of a mental health log for counseling sessions with the student’s mental health provider, and completion of four semester-length online courses. The IEP team planned to reconvene March 26, 2019, to review the placement. The student’s legal guardian disagreed with the placement and did not provide consent for the provision of initial special education services, and the student withdrew from the district on February 2, 2019. 

Properly conducted a special education evaluation

If a district receives a referral for a special education evaluation for a student after an incident that prompted a disciplinary removal, the district must complete the evaluation in an expedited manner. Unless the school district is deemed to have knowledge that a student is a student with a disability, the student remains in the placement determined by the school district while the evaluation is being completed, which can include serving a suspension or expulsion without receiving educational services. If the student is determined to be a student with a disability, the school district must then provide educational services so as to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student’s IEP for the remainder of the removal (34 CFR § 300.534).

The district received the student’s referral for special education on October 11, 2018, via email. The date the school district received the referral began the 15 business day timeline to complete the review of existing evaluation data and send the student’s guardian notice and request to administer additional assessments or other evaluation materials (Wis. Stat. § 115.777[3][e]). The district incorrectly dated the receipt of referral as the date it was recorded in their system, instead of the date it was received via email. However, this error did not result in noncompliance since the district sent notice to the guardian within the required 15 business days of the actual date the referral was received.

A school district must determine if a student has a disability within 60 days after the district receives parental consent for the evaluation of the student (Wis. Stat. § 115.78 [3][a]). The district received consent for evaluation on November 14, 2018, and the district determined the student had a disability on January 10, 2019. If a referral is made for a special education evaluation after an incident that prompted a disciplinary removal, an expedited evaluation should be conducted in a shorter period of time than a typical evaluation (71 Fed. Reg. p. 46728,

August 14, 2006). The period of time depends on the nature and extent of a student’s suspected disability and the amount of additional information necessary to make an eligibility determination. In this case, the eligibility determination was made 57 days after the district received consent for evaluation. Given intervening holidays and school breaks, this was not an unreasonable delay. The district properly expedited the special education evaluation.

Properly followed special education disciplinary procedures and determine placement

Within ten days of a decision to change the placement of a child with a disability because of a violation of a code of student conduct, the school district, the parent, and relevant members of the student’s IEP team must conduct a manifestation determination. If the conduct was a manifestation determination of the student’s disability, the IEP team must conduct a functional behavioral assessment (FBA) and develop a behavioral intervention plan (BIP), and return the student to the placement from which the student was removed, unless the parent and the school district agree to a change of placement as part of the modification of the behavioral intervention plan, or the conduct involved weapons, drugs, or serious bodily harm (34 CFR 300.530[g]). If none of these exceptions apply, but the school district believes that maintaining the current placement of the student is substantially likely to result in injury to the student or others, the agency may request an expedited due process hearing to request a hearing officer to place the student in an interim alternative educational setting (IAES) (34 CFR 300.532).

Unless the “deemed to know” provisions apply, a district is not required to conduct a manifestation determination if the student had not been found eligible for special education prior to the incident that resulted in the disciplinary change of placement, which in this case was an expulsion. The “deemed to know” provisions apply, if prior to the incident, the parent expressed written concerns to a teacher or administrative personnel that the student was in need of special education, or the parent requested a special education evaluation, or a teacher or other personnel express specific concerns about a pattern of behavior directly to the director of special education or other supervisory personnel (34 CFR 300.534). In this case none of the “deemed to know” provisions applied. Although a special education evaluation was requested by the parent, it occurred after the conduct that precipitated the disciplinary action.

Nonetheless, the district proceeded to conduct a manifestation determination, and the IEP team determined that the conduct that resulted in disciplinary action was a manifestation of the student’s disability. However, after this determination was made, the district did not conduct an FBA and develop a BIP. The district also did not return the student to the high school from which he was removed or request an expedited due process hearing to place the student in an IAES as none of the other exceptions applied. The district did not properly follow special education disciplinary procedures and determine placement.

Properly developed the student’s IEP

A school district may not reduce a student’s instructional time to manage student behavior or as a form of punishment in lieu of a suspension or an expulsion. In addition, a school district may not require a student to “earn” back the return to a longer or full school day by demonstrating good behavior. A student’s IEP team may shorten the student’s school day if the student’s IEP team determines a shortened day is required to address the student’s unique disability-related needs. Before deciding to shorten the student’s day, the IEP team must consider if there are other ways to meet the student’s needs. When a student’s school day is shortened, the student’s IEP must include an explanation of why the student’s disability-related needs require a shortened day and a plan for the student’s return to school for a full day (DPI Special Education Information Update Bulletin 14.03).

In developing the student’s IEP, the IEP team shorted the student’s day by providing five hours one day per week of one-on-one specially designed instruction focused on academics and one hour per week focused on self-regulation. The district also established criteria for the student to return to high school. The district did not properly develop the student’s IEP when the district improperly shortened the student’s school day and required the student to earn admittance back to the school.

The student is no longer enrolled in the district; no student specific corrective action is possible at this time. Should the student return to the district, the district must, within 30 days of the student’s return date, hold an IEP team meeting to properly determine the student’s placement, and determine compensatory services to be provided as a result of failing to provide a full day of instructional time to a student with a disability. The district must submit to the department a copy of the student’s IEP, including the amount of compensatory services determined, within ten days of the IEP team meeting.

Within 30 days of this decision, the district must submit to a corrective action plan to ensure the district:
  • Properly follows special education disciplinary requirements; and
  • Does not improperly shorten a student’s day.

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. This decision is final for the IDEA State Complaint process.

//signed BVH 4/22/2019
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support
BVH:abc
For questions about this information, contact DPI Sped Team (608) 266-1781