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IDEA Complaint Decision 19-023

On April 23, 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 issue is whether the district, since April 10, 2019, properly followed special education disciplinary procedures.

An expulsion is considered a disciplinary change of placement. On the date on which the decision is made to make a removal that constitutes a change of placement of a student with a disability because of a violation of a code of student conduct, the district must notify the parents of that decision, and provide the parents with a copy of the procedural safeguards notice. Within 10 school days of this decision, the district must also conduct a manifestation determination that includes the parent and relevant members of the student’s individualized education program (IEP) team (as determined by the parent and the district). All relevant information in the student’s file, including the student’s IEP, any teacher observations, and any relevant information provided by the parents must be reviewed determine if the conduct in question was caused by, or had a direct and substantial relationship to, the student’s disability or was the direct result of the district’s failure to implement the IEP. If the behavior is determined not to be a manifestation of the student’s disability, school personnel may apply the relevant disciplinary procedures to students with disabilities in the same manner and for the same duration as would be applied to students without disabilities, except that the student must receive educational services beginning on the 11th day of removal so as to enable the student 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. When there is a disciplinary change of placement, the student’s IEP team determines the appropriate services and the interim alternative educational setting for services. If the behavior is not a manifestation of the student's disability the student must receive, as appropriate, a functional behavioral assessment (FBA) and behavioral intervention plan (BIP) that are designed to address the behavior violation so that it does not recur (34 CFR 300.530 & 300.531).

The student who is the subject of this complaint has a specific learning disability in the area of reading comprehension. The student’s IEP in effect during the 2018-19 school year, states that the student’s behavior does not impede the student’s learning or the learning of others. The services in the student’s IEP include supplementary aids and services permitting the student to have tests read aloud, to retake tests, and to have modified grading in some classes; and the student’s special education case manager to collaborate 10 minutes weekly with the student’s regular education teachers to track the student’s academic progress. There is no specially designed instruction included in the IEP for the second semester of the 2018-2019 school year. On March 20, 2019, the student violated the school’s code of student conduct by knowingly possessing and selling a controlled substance at school thereby endangering the property, health or safety of others. As a result, the student received a five-day out-of-school suspension pending an expulsion hearing. The suspension period began on March 22, spring break occurred March 25-29, and the remainder of the five-day suspension resumed April 1. This was the student’s first disciplinary removal during the 2018-19 school year. The student’s materials were gathered from the student’s locker and made available for the parent to pick up in the office. On April 3, the district notified the student and parent that an expulsion hearing was scheduled for April 9 and the student’s suspension was extended for a total period of ten days. An invitation was sent to the parents on April 2 to attend an IEP team meeting on April 4 to conduct a manifestation determination and review and revise the student’s IEP. During the meeting, the IEP team reviewed relevant information in the student’s file, including the student’s IEP, teacher observations, and information provided by the parent. The team determined the student’s violation was not caused by or have a direct and substantial relationship to the student’s disability, nor was it the direct result of the district’s failure to implement the student’s IEP. After the team finished the manifestation determination, discussion ensued regarding possible placement options and services. A notice dated April 5, documenting the changes to the IEP discussed at the IEP team meeting, indicates the student would be provided tutoring off campus at the local library, with an implementation date of April 9 through June 7, 2019, and regular education teachers would communicate about course assignments with the student and tutor via “Schoology,” the district’s online learning management system. A copy of the procedural safeguards was included with the notice. An expulsion hearing occurred on April 9 and the student was expelled from school beginning that date. The order included conditional early reinstatement through enrollment at an online academy commencing with the 2019-20 school year and permission to return to participate in band during the 2019-20 school year. During interviews with district administration, it was clarified the 2019-20 school year commences July 1. Following the expulsion hearing, there was confusion among the staff, parents, and student regarding regular education course assignments, materials, and tutoring services, so the director of special education scheduled a meeting for April 29 with the student, parent and teachers to discuss and clarify expectations. During the meeting, it was determined the tutor would provide services at least twice a week and it was clarified teachers should post assignments in Schoology. The IEP was not revised. On April 30, the student met with the tutor at the local library for the first time.

The parents were notified of a disciplinary change of placement on April 3, but were not provided the procedural safeguards notice of parent and student rights, as required. The IEP team met within the required timeline following the student’s disciplinary removal and properly conducted a manifestation determination. The behavior was determined not to be a manifestation of the student’s disability, but the IEP team did not consider if a FBA and a BIP designed to address the behavior violation were needed to help ensure the behavior does not recur. During the IEP team meeting, the IEP team determined the educational placement and services; however, when documenting these decisions, the district did not specify the frequency and amount of the services. The district was required to provide educational services beginning on the 11th day of disciplinary removal, which was April 12, but the tutoring service was not provided until April 30. The student’s special education case manager continued to monitor the student’s progress in regular education classes. Confusion regarding course completion requirements and location of assessments continued.

Within 15 days of this decision, the IEP team must reconvene to determine compensatory services for the student due to the district’s failure to provide services beginning on the 11th day of disciplinary removal. The IEP team must also consider if a FBA and BIP are needed, and develop if appropriate, to address the behavior that resulted in disciplinary removal; revise the student’s IEP program summary to include the frequency and amount of IEP services; clarify requirements for regular education course completion and the location of assessments; and determine and document any services needed to support the student’s progress in the online academy school. The district must also develop a corrective action plan to ensure the procedural safeguards notice is provided with any notice of change in educational placement, including with a notice of expulsion hearing; and ensure educational services are provided beginning the 11th day of any disciplinary removal. Within 30 days of the complaint decision, submit copies of the revised IEP, including the description of compensatory services, and the corrective action plan to the department.

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 6/14/2019
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support