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IDEA Complaint Decision 22-046

On May 26, 2022, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the #### (district). This is the department’s decision regarding the complaint. The issues are whether the district, during the 2021-22 school year, properly documented decisions and revisions made by the student’s individualized education program (IEP) team and properly conducted a manifestation determination.

Properly documented decisions and revisions made by the student’s IEP team.

Each student’s IEP must include a statement of the student’s present levels of academic achievement and functional performance. 34 CFR §300.320(a)(1). In developing a student’s IEP, the IEP team must consider the concerns of the parent for enhancing the education of the student. 34 CFR §300.324(a)(1)(ii).  The student’s IEP team met on February 8, 2022; February 16, 2022; March 23, 2022; April 8, 2022, and May 15, 2022.  Despite the fact that the student’s present levels of performance and parental concerns were discussed in all of these meetings, no updates were made to the student’s IEP reflecting the additional information reviewed and considered by the team after the February 8, 2022, team meeting. The district did not properly document decisions and revisions made by the student’s IEP team.

Within 30 days of the date of this decision, the district shall submit to the department a corrective action plan outlining the steps it will take to ensure the information discussed by IEP teams is properly documented.

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 constitute a pattern. 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).

The student was initially determined to be a student with a disability in January 2021, when the IEP team determined the student met other health impairment (OHI) criteria due to the student’s attention deficit hyperactivity disorder (ADHD) and demonstrated a need for specially designed instruction. The student’s most recent IEP was developed on February 16, 2022. The IEP noted significant deficits in academic performance compared to grade-level peers and functional deficits in attendance, organization, and self-advocacy. The IEP described the student’s disability as affecting the student’s ability to remember sequences and steps and planning and prioritizing. The student’s IEP team completed a functional behavioral assessment (FBA) and developed a behavior intervention plan (BIP) on April 8, 2022. The target behavior examined in the FBA was the student’s truancy from class, and the BIP specified the provision of supervised breaks from class as the desired replacement behavior.

On February 16, 2022, the student was suspended for five days due to possession and consumption of alcohol at school. On May 6, 2022, the student was again suspended for five days due to possession and consumption of alcohol at school and recommended for expulsion. In both instances, the student had been consuming prior to arrival at school and brought alcohol to school with her. The student’s IEP team completed the manifestation determination review on May 20, 2022. At the meeting, the team reviewed information from the student’s file, teacher observations, and information provided by the parent. The school members of the team determined the student’s behavior did not have a direct and substantial relationship to the student’s disability and was not the direct result of the district’s failure to implement the IEP. The parent and her advocate disagreed with the conclusions of the school team members on both points. The parent asserted that the student’s anxiety and depression were part of the student’s ADHD and that the student’s use of alcohol was a coping mechanism. The parent also expressed concerns that the school had not offered counseling services to the student following the February 2022 incident, that the student’s IEP did not appropriately address the student’s needs, and that as the FBA/BIP were so recent that not enough time had elapsed to determine the root cause of the student’s behavior. Following the manifestation determination review, the student was expelled.

The U.S. Department of Education has noted the intent of the manifestation determination requirement is that the student’s IEP team must find a direct and substantial relationship between the behavior subject to disciplinary action, not an attenuated association, such as low self-esteem, and the student’s disability. Federal Register, Vol. 71, No. 156, p. 46720. Given that the student’s file indicated the effects of the student’s ADHD related primarily to memory, planning, and self-advocacy and not to factors such as decision-making or impulse control, it was reasonable for the team to conclude the student’s decision to come to school intoxicated was not a result of the student’s disability. Similarly, while the student’s consumption of alcohol may have been associated with the stressors she was experiencing at school and elsewhere, such an association is one step removed from the type of direct and substantial cause analysis required by IDEA.

Consistent with the student’s identified disability-related needs, the student’s IEP contained specially designed instruction and supplementary aids and services designed primarily to keep the student engaged with schoolwork and to improve the student’s attendance. Specially designed instruction included instruction in attention-related skills and organization skills. Supplementary aids and services included the use of a resource room, modifications for tests and assignments, the use of text to speech, and the opportunity for breaks during class times. The parent did not identify any specific service described in the IEP that was not implemented, and it appears that even if one or more of the special education services specified in the IEP had not been implemented, failure to do so would not have directly resulted in the student showing up at school with alcohol in her possession after consuming alcohol off school grounds.

Whether a student’s placement, IEP, and identified services were appropriate are not considerations for the manifestation determination review process. Federal Register, Vol. 71, No. 156 p. 46719. Therefore, the parent’s concerns about the lack of counseling services, appropriateness of the IEP, and the recently conducted FBA/BIP are not part of the consideration in determining whether the student’s conduct is a manifestation of their disability. 

This concludes our review of this complaint, all corrective action identified above must be completed within one year of the date of this decision. 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