On December 17, 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 issues identified are whether the district, during the 2019-2020 school year, properly implemented the individualized education program (IEP) of a student with a disability and properly followed special education disciplinary procedures.
School districts must provide each student with a disability a free appropriate public education (FAPE) in the least restrictive environment. A school district meets its obligation to provide FAPE to each student with a disability, in part, by developing and implementing each student’s IEP. (34 CFR §§§ 300.320, 300.323, 300.324; Wis. Stat. § 115.787).
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. Expulsion is considered a disciplinary change of placement. 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 IEP team. All relevant information in the student’s file, including the student’s IEP, any teacher observations, and any relevant information provided by the parents, including medical information, must be reviewed to 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 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 IEP team must determine the special education placement for a child with a disability during an IEP team meeting. (Wis. Stat. § 115.78[c]). Districts must take steps to ensure that one or both of the parents of a child with a disability are present at each IEP team meeting or afforded the opportunity to participate through other means. Districts must notify parents of the meeting early enough to ensure they have the opportunity to attend and schedule the meeting at a mutually agreed upon time and place. (34 CFR §§ 300.321 and 300.322; Wis. Stat. § 115.78).
The student who is the subject of this complaint receives special education under the area of other health impairment. On December 16, 2019, the student was given a five-day out-of-school suspension, pending expulsion, for violating the district’s code of student conduct. According to the disciplinary referral, the student began physically engaging another student after the other student grabbed the student around the neck. While staff attempted to separate the students, a staff person was struck. The student tried to pursue the other student and resisted staff attempting to hold him back. As a result, the student was handcuffed by the school resource officer. The student was suspended beginning December 16, 2019, through December 20, 2019. This was the only suspension for the student for the 2019-2020 school year.
The annual IEP in effect as of the date of the incident was developed on May 10, 2019. The IEP documented the students’ current academic and functional performance. The IEP indicated the student had difficulty maintaining focus. The IEP included disability related needs and special education services in reading comprehension and written language. While the IEP team did not indicate the student’s behavior interfered with the student’s learning or the learning of others, the IEP included positive behavior supports during instruction and class time to address difficulty staying on task, focusing, staying awake, and completing work. The IEP was internally inconsistent in that it noted the student had three incident referrals but also documented that the student did not have any reports of behaviors at the time of the IEP meeting. The IEP documented that all other academic and functional performance areas were age and grade appropriate. The IEP included goals and services to address the effects and needs and input provided by the student’s parent. The annual IEP documented specially designed instruction in the general education setting, including 15 minutes per week check in with the case manager and 20 minutes five days per week of reading and written language to focus on comprehension and organization.
As a result of a previous IDEA complaint, the department required the district to correct unclear descriptions of services in the student’s IEP and consider compensatory services. IEP team meetings were held in August and November 2019 to address the parent’s concerns and make required corrections. At each meeting, the team updated the student’s supplementary services.
District staff scheduled an IEP team meeting to conduct a manifestation determination for December 19, 2019. School staff contacted the student’s parent by telephone on December 17, 2019, to inform the student’s parent of the date and time for the meeting. At that time, the student’s parent told staff that she had other appointments during the proposed meeting time and that she could not attend. Staff also sent the parent an email on December 18, 2019, inviting the parent to the manifestation determination and attempted to hand deliver the invitation to the parent this same day. The parent confirmed staff attempted to hand deliver the invitation to her on December 18, 2019, but the parent did not take the invitation and directed staff to leave.
The student’s IEP team met to conduct the manifestation determination on December 19, 2019. The student’s parent did not attend the meeting. The IEP team discussed the student’s most recent evaluation and discipline referral history, including documentation of the incident on December 16, 2019, and five referrals from the previous school year for profane language, inciting disruption, disrespect, and fighting. The team also documented teacher observations, including that the student rarely interacted with peers or staff, had limited participation in class, chose to keep to himself, did well in online classes, and worked well independently. The team noted that the student’s evaluation indicated appropriate social participation and communication skills. Information provided by the student’s parent in other contexts, including the student’s current medical information, was not discussed during the manifestation determination. The team documented that the student’s IEP was implemented at the time of the incident. The team concluded the violation of a code of student conduct on December 16, 2019, was not a manifestation of the student’s disability.
The student’s parent submitted documentation to the department expressing disagreement with the number of disciplinary referrals in the documentation of the manifestation determination. The district’s referral history recorded a referral on May 27, 2019, which was Memorial Day, when students were not in attendance. The parent also noted that she believed two incidents reported in March and April of 2019 were the same incident.
The student’s IEP team met again on December 20, 2019, as had been planned prior to the behavioral incident. Neither the expulsion hearing, manifestation determination, nor change in the student’s placement were discussed during the IEP team meeting held on December 20, 2019. The district sent the student’s parent a Result of Administrative Hearing and Notice of Expulsion Hearing dated December 20, 2019. The notice documented that the student was recommended for expulsion until June 2020 and that the student could begin receiving educational services in an alternative setting on January 2, 2020.
Although the district had informed the student’s parent the student could enroll in the alternative setting on January 2, 2020, staff at the alternative placement informed the parent they could not enroll the student until they confirmed the student’s placement change with the prior school. The parent enrolled the student in the alternative placement on January 7, 2020. On January 24, 2020, the student’s IEP team met to determine the student’s placement. The parent, student’s aunt, and other required IEP team members attended the meeting. The IEP documented the student had been attending the alternative setting due to his expulsion and documented the team’s determination to continue the student’s placement there. The Board of Education affirmed the student’s expulsion on January 28, 2020, and sent the parent a notice of disposition dated January 30, 2020.
The IEP team properly implemented the student’s IEP as written to support behaviors in the classroom. However, the district did not properly follow special education disciplinary requirements. The district did not provide the student’s parents a copy of the procedural safeguards notice. When the student’s parent informed staff she could not attend the December 19, 2019 manifestation determination meeting, the school did not offer alternative dates or times and did not afford the parent the opportunity to participate through other means. During the manifestation determination, staff did not consider or document information from the student’s parent. After finding the behavior was not a manifestation of the student’s behavior, the team did not consider an FBA and BIP to ensure the student’s behavior on December 16, 2019, did not recur. The district also initially determined the student’s special education placement outside of an IEP team meeting. It should also be noted that the district was not required to provide educational services during the days the student was removed from school due to suspension and missed days for delayed enrollment in the alternative placement since the cumulative removals did not exceed 10 school days.
Within 15 days, the district must reconvene an IEP meeting to properly conduct a manifestation determination, to include the following student specific correction:
- Inviting the parent to the meeting early enough to ensure the meeting is at a mutually agreed upon date and time, offer other means of participation if a parent is unable to attend in person, and deliver to parent the procedural safeguards;
- Consider all relevant information in the student’s file along with parent information and current medical information provided by the parent to determine whether the behavior was a direct result of the student’s disability, clarify and document in the manifestation determination, the student’s correct number of referrals for 2018-2019 school year;
- Determine appropriate services to address the student’s needs in the current placement, including consideration of behavioral needs and an FBA and BIP if the behavior is a manifestation of the student’s disability and if not a manifestation, consider an FBA and BIP to ensure the behavior does not recur;
- If the behavior is determined to be a manifestation of the student’s disability, the district must return the student to the placement from which the student was removed, unless the parent and the LEA agree to a change of placement as part of a modification of a behavioral intervention plan (34 CFR § 300.530); and
- The district must submit a copy of the new manifestation determination and revised IEP documents to the department within ten days of the meeting.
In addition, within 30 days, the district must develop and submit a corrective action plan to ensure special education disciplinary procedures are followed for: conducting manifestation determinations, giving parents proper notice on the date a decision is made to change a student’s placement due to violation of a code of conduct, providing notice of procedural safeguards with any notice of change in educational placement, including with a notice of expulsion hearing, and that determinations of student placement during expulsion are properly determined by IEP teams.
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. These issues may be addressed through other dispute resolutions, including mediation and due process hearings. Visit the department's website at http://dpi.wi.gov/sped/dispute-resolution for more information.
//signed by BVH 2/13/20
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support