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IDEA Complaint Decision 20-027

On March 5, 2020, the department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against the XXXXX (district). On May 1, 2020, the department notified the parties that it would not be possible with reasonable efforts to obtain all relevant information necessary to make an independent determination as to whether the district is violating the requirements of state or federal special education law due to the school closures related to COVID-19 and would, therefore, be extending the 60-day complaint resolution timeline. This is the department’s decision regarding the complaint. The issues are whether the district, beginning March 5, 2019, properly developed the individualized education program (IEP) of a student with a disability regarding behavior and whether the district properly conducted a manifestation determination of a student with a disability.

Whether the district properly developed the student’s IEP regarding behavior.

A student’s IEP team must consider whether the student’s behavior impedes their learning or that of others. If the team determines the student’s behavior does impede their learning or that of others, the team must document the student’s behavioral needs and specify positive behavioral interventions, strategies, and supports to address those needs. (34 CFR § 300.324[a][2]).

The student’s IEP team met on February 22, 2019, March 11, 2019, June 24, 2019, September 20, 2019, October 29, 2019, and December 13, 2019, to review and revise the student’s IEP. The student’s IEP team determined that the student’s behavior impeded the student’s learning or that of others. The student’s IEPs included a variety of positive behavioral supports to address the student’s needs, including specially designed instruction in behavior support, provision of sensory breaks, counseling services, sensory regulation tools, adult support, and breaks for self-regulation.

The district employed an independent behavioral consultant to observe the student in October. The IEP team reviewed the consultant’s findings at the IEP team meeting on October 29, 2019. During the 2019-20 school year, the student attended school on a reduced schedule and participated primarily in the special education environment. The student’s IEP described reasons based on the student’s disability-related needs that the student required a shortened day and included a plan for the IEP team to regularly review the student’s reduced schedule with the goal of returning the student to full-time attendance. The IEP team met according to this plan and added an additional 30 minutes to the student’s day following the IEP team meeting on December 13, 2019. The district appropriately developed the student’s IEP regarding behavior.

Whether the district properly conducted a manifestation determination.

A manifestation determination is required when a student with an IEP experiences a change of placement due to disciplinary removals of more than ten consecutive days, or the student has been subjected to a series of removals that total ten days in a school year. (34 CFR § 300.536). In such circumstances, the parent and relevant members of the IEP team must review all relevant information in the student’s file to determine if the conduct in question was caused by, or had a direct and substantial relationship to, the student’s disability; or if the conduct in question was the direct result of the district’s failure to implement the IEP. (34 CFR § 300.530[e]). If the conduct is determined to be a manifestation of the student’s disability, the student must be returned to the placement from which the student was removed, unless the parent and the district agree to a change of placement as part of the modification of the behavioral intervention plan. (34 CFR § 300.530[f]).

The student’s IEP team met on January 31, 2020. One of the identified purposes of the meeting was to conduct a manifestation determination. In conducting the manifestation determination, the IEP team reviewed 12 behavior incidents that had occurred during the 2019-2020 school year. The student was suspended from school for five of these incidents, for a total of 8-1/2 days of disciplinary removal. These incidents were documented in the IEP in a section entitled “Description of the violation of the code of child conduct in question.” After reviewing relevant information from the student’s file, the IEP team determined the student’s behavior was not a manifestation of the student’s disability because the student was identified under the special education impairment area of other health impairment (OHI), as opposed to different impairment areas that more directly involve behavioral concerns. The team also determined that a reevaluation was warranted in order to obtain more information about the student's educational needs. At no point did the district issue a notice of expulsion for the student, though the parent was told that expulsion was an option under consideration by the district.

The IEP team went on to consider the student’s placement. The team determined that the student’s placement would be changed from the elementary school he currently attended to the district’s middle school building. The placement notice stated, “[The student] is a health and safety threat to [the student], other students, and to staff. Due to [the student’s] aggressive behavior and increasing incidents of hurting others emotionally and physically [the student] will not return to [the elementary school] at this time.” Other locations within the community were explored as potential placements but were rejected due to concerns of the student’s family. The student’s parent disagreed with the placement determination and did not return the student to school after January 31, 2020.

The district referred the student for a reevaluation, conducted a review of existing data, concluded additional assessments were needed and sought and obtained the parent’s consent to conduct the additional assessments. On March 12, 2020, the student’s IEP team met for the purpose of determining the student’s eligibility and placement, development of the IEP, and conducting a manifestation determination. The team determined that the student met the criteria for the disability categories of OHI and emotional behavioral disability (EBD). The team conducted a manifestation determination based on the same 12 behavior incidents considered on January 31, 2020, and concluded, based in part on the new information obtained through the evaluation, that the student’s behavior was a manifestation of the student’s disability. The team determined the student’s placement would be at the district office until the parent and the district agreed on appropriate private school placement. Again, the placement notice stated, “[The student] is a health and safety threat to [the student], other students, and to staff. Due to [the student’s] aggressive behavior and increasing incidents of hurting others emotionally and physically [the student] will not return to [the elementary school] at this time.” The district proceeded to schedule tours with two potential schools for the parents to consider. Shortly after that, schools in Wisconsin were ordered closed for in-person instruction due to the COVID-19 public health emergency, and the operators of the private schools under consideration canceled the tours. No further IEP team meetings have been held.

The district erred in several respects in its conduct of the manifestation determinations. First, during the 2019-20 school year, the student had not experienced a disciplinary change of placement requiring a manifestation determination. The manifestation determination is a matter of due process designed to respond to disciplinary determinations already made by school authorities, not to be used as an information gathering tool or as part of IEP team discussions related to other matters. Nor should the manifestation determination process be used to “test the waters” to determine whether proceeding with disciplinary action against a student with a disability would be worth the administrative effort. To unnecessarily introduce a manifestation determination into an IEP team meeting creates confusion and misunderstanding, and makes the other IEP team determinations made at the same meeting unclear, particularly those around placement.

On January 31, 2020, the IEP team also erroneously applied the factors in determining whether the student’s conduct had a direct and substantial relationship to the student’s disability. The IEP team cannot base the decision solely on the student’s identified impairment category. The student’s disability and its relation to the conduct must be examined more broadly and not limited to a particular impairment area.

The department’s long-standing position is that when a school district conducts a manifestation determination when one is not legally required, the district must abide by its results. Based on the second manifestation determination conducted on March 12, 2020, the student should have been returned to the previous placement at the elementary school unless the parent agreed otherwise. In this case, the student’s parent has clearly not yet agreed otherwise. However, the evidence reviewed by the department indicates the student’s IEP team had been considering the student’s placement in light of the student’s disability related needs, rather than as a disciplinary matter, prior to January 31, 2020, and continued to do so at that meeting and the IEP team meeting on March 12, 2020. Given the incomplete resolution of the process and the subsequent school closure, it is not at all clear that the IEP team has actually formulated a change of placement as part of a modification of a behavioral intervention plan to which the parent could actually agree. Finally, the extended period of school closure warrants a full review of the student’s IEP before any determination regarding placement can be made.

As a corrective action, the district shall within 30 days conduct an IEP team meeting to review and revise the student’s IEP. The IEP team shall:

  • Review the student’s current behavioral needs;
  • Review and revise, as appropriate, the student’s behavior intervention plan; and
  • Before considering placements other than the student’s elementary school, thoroughly review and document why education in that school cannot be achieved satisfactorily with the use of supplementary aids and services.

Within 30 days, the district shall submit to the department a corrective action plan outlining the steps it will take to ensure it ceases the practice of conducting manifestation determinations when a student has not been removed for more than ten consecutive days or more than ten cumulative days in the same school year determined to constitute a pattern and ensure IEP team members understand the appropriate analysis for manifestation determinations.

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. For more information, visit the department’s website at

//digitally signed by BVH 7/7/20
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support