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IDEA Complaint Decision 19-011

On March 13, 2019 (form dated March 10, 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 that complaint. The issue is whether the district, during the 2018-2019 school year, properly follow disciplinary procedures for a student with a disability.

Under special education disciplinary requirements, when a student with a disability is removed from the student’s current placement more than 10 cumulative school days during the course of a school year, the district must provide services to the extent necessary 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 individualized education program (IEP). 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 student to the placement from which the student 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. Districts must ensure the IEP team, which includes the parent, makes placement decisions based on the student’s unique needs. The placement must conform to the LRE provisions of state and federal law (34 CFR § 300.530-300.536).

The student who is the subject of this complaint attends a district special education alternative school due to behavioral concerns. The student does not have access to same age peers who do not have disabilities while attending this school. The student’s IEP indicates the student’s behavior impacts the student’s learning and the learning of others. The student’s IEP contains positive interventions and supports of daily behavioral monitoring, breaks throughout the school day to help the student calm and re-focus, and specially designed instruction in behavior and social skills including coping skills for unexpected circumstances and unstructured settings.

On December 14, 2018, the student caused injury to another student in the hallway at school. The student received a four-day suspension because of this incident. The student’s 10th and 11th cumulative days of suspension occurred during this removal. The district utilizes a form titled “XXXXX” to document the determination of whether a series of disciplinary removals constitutes a pattern and to document services provided to students during periods of removal. This form was completed, indicating staff determined the series of disciplinary removals did not constitute a pattern and therefore was not a disciplinary change of placement; however, although one was not required, district staff conducted a manifestation determination following this incident. The form also indicates services were provided to the student during the period of removal. The student’s IEP team met on December 20, 2018, to review and revise the student’s IEP, determine the student’s continuing placement, and conduct a manifestation determination review. The team determined the behavior was a manifestation of the student’s disability. The team noted the student had recently been involved in three physical fights during the month of December. The IEP team reviewed the student’s FBA and BIP. While the FBA briefly mentions the student’s physical fights, the BIP does not specifically address this behavior. Instead, the BIP more broadly addresses refusal of directives and inappropriate outbursts when the student is redirected within a social activity or a transition to a non-preferred activity. The IEP team did not change the student’s placement at the alternative school.

On February 28, 2019, the student engaged in a verbal dispute on the bus to school that led to a physical fight with other students. The student received a three-day suspension because of this incident. This suspension was the 12th, 13th, and 14th day of removal for the student. There is no evidence the district provided the student educational services during the period of removal. District records specify staff intended to conduct another manifestation determination following the student’s return to school. However, no manifestation determination meeting was held.

The student returned to school on March 6, 2019. On the way to school in the morning, a fight between other students occurred, and the driver stopped the bus. The student attempted to leave the bus. The student was suspended from school for an additional two days, representing the student’s 15th and 16th days of removal. There is no evidence the district provided the student educational services during the period of removal. The district convened the student’s IEP team on March 20, 2019. The purposes of the meeting were to review and revise the student’s IEP, determine the student’s continuing placement, and conduct a manifestation determination. However, during the meeting, the student’s parent requested the meeting be stopped because the parent disagreed with the description of the student’s behavior. The student’s parent requested to view a video from the bus, as district staff had viewed the video and used it to inform their decision about whether to suspend the student. The district stopped the meeting. The team did not complete the determination of whether the behavior was a manifestation of the student’s disability, nor was the student’s FBA and BIP reviewed.

The district failed to properly implement special education discipline procedures when it did not provide the student educational services during periods of removal beyond the tenth day, and did not properly conduct manifestation determinations. Additionally, following the December 20 determination, the behavior was a manifestation of the student’s disability; the district did not revise the student’s BIP to address the behavior of concern.

Within 20 days of the date of this decision, the district is directed to convene the student’s IEP team to complete the manifestation determination and to review the student’s FBA and BIP to ensure they appropriately address the behaviors that led to the disciplinary action taken in February and March 2019. The district must also determine whether compensatory services are required due to the district’s failure to provide the student educational services during periods of removal beyond the 10th day. Within 10 days of the IEP team meeting, the district is required to submit to the department a copy of the revised IEP including documentation of the discussion of compensatory services, and a copy of the revised FBA and BIP.

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 5/9/2019
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support