On September 8, 2022, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the #### School District (district). The identified issues are whether the district, beginning September 8, 2021, properly identified, located, and evaluated a student with a disability and properly followed special education disciplinary procedures.
Under the Individuals with Disabilities Education Act (IDEA), all children with disabilities, must be identified, located, and evaluated. 34 CFR § 300.111. This responsibility is often referred to as “child find.” The child find obligation is an affirmative one. School districts may not take a passive approach and wait for others, including parents, to refer students potentially eligible to receive special education. A person who is employed by a local educational agency (LEA) and who reasonably believes a child has a disability must refer the child to the local educational agency. WI Stats. Ch. 115.777(1)(b). A child who has not been determined to be eligible for special education and related services and who has engaged in behavior that violated a code of student conduct, may assert any of the protections provided under the IDEA if the public agency had knowledge that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred. A district is “deemed to have knowledge“ that a child is a child with a disability if before the behavior that precipitated the disciplinary action occurred: (1) the parent of the child expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services; (2) the parent of the child requested a special education evaluation; or (3) the teacher of the child, or other personnel of the LEA, expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education of the agency or to other supervisory
personnel of the agency. 300 CFR § 300.534. If an LEA is deemed to have knowledge that a student is a student with a disability, then the disciplinary protections under special education law apply, and a manifestation determination is required, even if the student has not been determined eligible for special education.
The student who is the subject of this complaint has not been identified as a student with a disability and does not have an individualized education plan (IEP) or a Section 504 plan. The complainant, who is the parent, alleges the district neglected their child find responsibility due to their knowledge of the student receiving ongoing inpatient and outpatient mental health services over the years which adversely affected the student’s behavior and school attendance. The complainant further alleges the district “never mentioned anything about an IEP” or how to make a referral for a special education evaluation. The district’s website includes information about special education referral and evaluation procedures and states, “Upon request, the (district) is required to evaluate a child for eligibility for special education services. A request for evaluation is known as a referral.” The website includes specific information about how parents can make a referral in writing to the district’s Department of Pupil Services. The district also provides referral information in brochures to medical agencies in the community and in an annual newsletter sent to all households in the community.
In an email from the parent to district staff sent on October 22, 2021, the parent says the student’s anxiety and depression were “back in full force.” The district responded by email thanking the parent for the information and stating, “It certainly helps to better understand the situation.” The district did not refer the student for a special education evaluation nor did the parent request an evaluation. During the complaint investigation, the parent said staff were aware for years of the student’s anxiety which caused the student to be tardy, absent, spend time in the health room and receive a “magic pass” from the school counselor in order to “retreat to the counselor’s office when anxious and needing to calm down.” Teachers also provided accommodations for the student during absences. District staff confirmed during the complaint investigation that they were aware of the student’s history of anxiety and treatments and provided accommodations to enable the student to pass classes and earn credits. Although district staff sometimes saw the student appearing tired or wanting a snack, they did not witness any panic attacks or the student in a “state of angst that incapacitated the student during school hours.” District records indicate between September, 2021 and February, 2022, the student was absent 20 days for one or more hours, had 17 “unverified absences” typically for one hour a day, was tardy to one or more classes 19 days and went to the school guidance office 27 times and to the school health room 37 times. The student served three 45-minute detentions as a result of being tardy. The district suggested mental health resources for the student, but the parent felt the student “already had an abundance of these services.” The district has an administrative team that includes principals, counselors, social workers and others who meet on a regular basis to discuss students at risk of failing. The group reviews academic grades and credit status to identify at-risk students. While the student received detentions due to tardiness, was absent multiple days and spent time in the health room and guidance office, district staff did not perceive these as indications of a potential disability because the student was passing classes, had friends and was involved in extracurricular activities. However, students do not have to fail or be retained in a course or grade in order to be considered for special education and related services. 34 CFR 300.111(c)(1). The district was aware of the student’s anxiety and suggested mental health resources. In addition, the student’s record of tardiness, poor attendance and excessive visits to the health room and guidance office, paired with the known history of inpatient and outpatient mental health services, reasonably triggered the district’s affirmative child find obligation. The district should have referred the student for a special education evaluation. Within thirty days of this complaint, the district must develop a corrective action plan to ensure the district properly identifies, locates, and evaluates students with disabilities who are in need of special education and related services and submit the plan to the department for approval.
On February 8, 2022, the student was suspended for knowingly possessing and using an illegal drug and drug paraphernalia on school premises. The school board met on February 22, 2022, for a hearing to consider expulsion. In a letter dated February 21, 2022, included in the expulsion packet materials, the district’s director of pupil services verified the student was not a child with a disability or under consideration to be a child with a disability under IDEA or Section 504 at the time of the misconduct that resulted in expulsion. The parent presented a letter dated February 15, 2022, from the student’s psychiatric mental health nurse practitioner to the school board during the expulsion hearing. The letter states the student has been under psychiatric care for the management of bipolar disorder and explains, “bipolar disorder includes rapid shifts in mood with potential for periods of increased impulsivity and out-of-character behavior…[participation] in activities they would not choose otherwise and may lose sight of consequences.” The student’s psychiatric mental health nurse practitioner concluded by saying they hoped “this may be taken into consideration when reviewing [the student’s] case.” The district cannot confirm the letter was received and read during the expulsion hearing. Citing a review of the testimony and other evidence presented, the School Board expelled the student from the school district from February 16, 2022, to December 11, 2026. The parent believed the School Board should have had a different view of the student based on the information in the letter from the student’s psychiatric mental health nurse practitioner and should have applied the disciplinary protections of IDEA to the student’s situation. However, whether the disciplinary protections apply depends upon what the district knew before the disciplinary infraction that occurred on February 8, 2022, and IDEA defines what is considered “deemed to know” under very limited circumstances. There is no evidence that prior to February 8, 2022, the parent had expressed concern in writing to supervisory or administrative personnel or a teacher of the student that the student needed special education; that the parent had requested a special education evaluation; nor that any district staff had expressed specific concerns about a pattern of behavior demonstrated by the student directly to the district’s director of special education or to other supervisory personnel. Based upon the limited three-pronged “deemed to have knowledge” analysis, the district did not have knowledge the student was a child with a disability at the time the behavior occurred that precipitated the expulsion. The disciplinary protections under special education law, therefore, do not apply and a manifestation determination was not required.
Following the expulsion, the district provided services to the student through a virtual instruction program so the student could finish out the school year and obtain four credits. On July 28, 2022, the district received a referral for a special education evaluation from the parent. The district began the evaluation process by notifying the parent on August 3, 2022, that they had received the referral and would conduct the evaluation. On August 9, 2022, the district received a request for transfer of student records from another school district, and the Germantown School District sent records including the referral and notice of the start of initial evaluation to the district in which the student had transferred. The district then informed the parent that the new district would complete the evaluation.
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 http://dpi.wi.gov/sped/dispute-resolution or contact the special education team at (608) 266-1781.