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IDEA Complaint Decision 22-086

On October 31, 2022 (form dated October 24, 2022), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the #### School District. This is the department's decision regarding that complaint. The issues identified are whether the district, beginning October 31, 2021, properly developed the individualized education program (IEP) of a student with a disability to address behavioral needs, improperly changed the student's placement, including shortening the student's school day and properly followed special education disciplinary procedures.

The student who is the subject of this complaint attends fifth grade in the district. The student has medical diagnoses of chronic post-traumatic stress disorder, disinhibited attachment disorder of childhood, and generalized anxiety disorder. At times, the student says hurtful things or behaves aggressively toward others. The student's prior school district conducted a special education reevaluation, including a functional behavioral assessment (FBA), in 2021. The IEP team determined the student had disability-related needs in the areas of mobility, self-regulation, and social skills.

The student transferred to the current school district during the 2021-22 school year. The IEP team met to develop the student's annual IEP on May 24, 2022. The student's most recent behavioral intervention plan (BIP) is dated May 27, 2022. It describes different levels of escalation and appropriate staff responses to each. The start of fifth grade was challenging for the student, including behavior leading to suspensions. The student's IEP team met on September 27, 2022. The team members discussed a lack of noticeable triggers and no advanced warning before the student's behavior. The parent noted the student may have a delayed reaction to circumstances that occurred much earlier. The team thought going to math class was a potential factor contributing to escalation and changed the student's transitions around math class.

On October 10, 2022, the student escalated from self-deprecating language and self-harm with a ruler to suddenly attacking a staff member. The student was suspended for three and a half school days. The district wanted to reconvene the student's IEP team promptly and contacted the parent on October 11, 2022. The parent believed that meeting was a condition for the student's return to school but agreed to hold an IEP team meeting on October 13, 2022. The IEP team discussed the incident and reviewed the positive behavioral strategies implemented to date and interventions within the behavioral intervention plan. The team discussed the possibility of a therapeutic placement in the future. The IEP team could not reach a consensus around the student's placement, but ultimately the district determined the student's placement would be for specially designed instruction for two hours per day in an off-site location. The parent disagreed, concerned about the student seeing the placement as a punishment and barrier to building relationships with staff and peers.

After this meeting, the parent requested a manifestation determination. The IEP team met on October 27, 2022. They found the behavior to be directly related to the student's disability. The IEP team discussed the BIP further. The team continued the existing off-site placement. A follow-up IEP team meeting occurred on November 2, 2022. The IEP team agreed to increase services to four hours per day. The location changed to an office within the school building. The IEP team met again on November 9, 2022. They arranged for the student to join peers in the lunchroom and during recess.

During the bus ride to school on November 16, 2022, the student became aggressive toward a staff member. Then, upon arriving at school, the student attacked multiple staff members and injured a teacher. The district suspended the student from school for five days. A second manifestation determination occurred on November 21, 2022. The IEP team found the behavior to be a manifestation of the student's disability. The IEP team reviewed the current BIP and discussed moving away from identifying zones of regulation in the future. They discussed concerns about physical aggression during transportation. The district changed placement to an interim alternative educational setting (IAES) due to their determination that the student's behavior had caused serious injury. Services changed to two hours of academic instruction plus additional time for related services.

Whether the district properly developed the student's IEP to address the student's behavioral needs.

Local education agencies (LEAs) meet their obligation to provide a free appropriate public education (FAPE) to each student with a disability, in part, by developing a program based on the student's unique, disability-related needs that is reasonably calculated to enable the student to make progress appropriate in light of the student's circumstances, documenting that program in the IEP, and implementing the program as articulated in the IEP. 34 CFR § 300.324. If the student has disability-related needs related to behavior, the IEP team must document those needs and identify special education services, including positive behavioral interventions, strategies, and supports to address those needs. 34 CFR § 300.324(a)(2).

The IEP team must ensure that the student is educated, to the maximum extent appropriate, with students who are not disabled. Special classes, separate schooling, or other removals from the regular education environment should only occur if education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. In developing the student's IEP, the IEP team must consider the concerns of the student's parents for enhancing the education of their child. 34 CFR § 300.320; Wis. Stat. § 115.787 (3)(a). The IEP team must work toward consensus, but the district has the ultimate responsibility to ensure that the IEP includes the services the student needs in order to provide FAPE.

The student's IEPs in effect since October 21, 2021, identify the student's known behavioral needs and describe several positive behavioral supports. The IEP team has met frequently throughout the 2022-23 school year to discuss the student's behavior and potential root causes. Members of the IEP team reported that behavioral triggers for specific incidents have been difficult to identify. IEP team members believed the appropriate next step toward better understanding the behavior was a functional behavior assessment and reevaluation. On October 14, 2022, the district initiated a reevaluation to conduct an FBA. The student's parents have not provided consent because they believe it would not be effective to assess the student outside a traditional school setting, but they have indicated that they would consent to additional assessments once the student returns to the classroom. The department agrees that an FBA is warranted. However, given that the student's parents have not yet provided consent to permit the district to conduct an FBA, the district properly developed the student's IEP to address the student's behavioral needs with the information that was available.

Whether the district properly followed special education disciplinary requirements and improperly shortened the student's day.

A manifestation determination is required when a disciplinary change of placement occurs. 34 CFR § 300.536. The district, the parent, and relevant members of the student's IEP team must review all relevant information in the student's file, including the student's IEP, any teacher observations, and any relevant information provided by the parents 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 IEP team must address the behavior by either conducting an FBA and implementing a BIP for the student or, if a BIP already has been developed, reviewing and modifying the BIP as necessary. 34 CFR § 300.530(f)(1). 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 student's behavioral intervention plan or one of the limited exceptions discussed below apply. 34 CFR § 300.530(f)(2). Following a finding that a student's behavior was a manifestation of a disability, districts have limited avenues for changing the student's placement. A parent and the LEA can agree to a change of placement. Additionally, an LEA may unilaterally remove the student to an interim alternative educational setting (IAES) for carrying or possessing a weapon at school, on school premises, to or at a school function; knowingly possessing or using illegal drugs while at school, on school premises, or at a school function; selling or soliciting the sale of a controlled substance, while at school, on school premises, or at a school function; or inflicting serious bodily injury upon another person while at school, on school premises, or at a school function. "Serious bodily injury" means bodily injury that involves: a substantial risk of death; extreme physical pain; protracted and obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. Factors used to determine serious bodily injury include the amount and degree of medical care, whether pain medication is required, and the inability to work. The school district may also request a due process hearing if it is believed that maintaining the current placement is substantially likely to result in injury to the student or others, even if the incident did not involve drugs, weapons, or serious bodily injury.

The student's IEP team determines services during the IAES placement. 34 CFR § 300.531. A student removed to an IAES must continue to receive educational services so as to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the IEP. 34 CFR § 300.530 (d)(1). However, an LEA is not required to provide exactly the same services in exactly the same settings as the student was receiving prior to the removal to an IAES. 71 Fed. Reg. 46,716 (2006). The removal cannot be for more than 45 school days unless the LEA, through a due process hearing, requests an extension because returning the student is substantially likely to result in injury to the student or to others.

When the student was suspended for three and a half days on October 10, 2022, the district should have conducted a manifestation determination before changing the student's placement and shortening the student's day in response to the incident that led to the disciplinary action. However, a manifestation determination was not conducted until October 27, 2022. As the behavior was ultimately determined to be a manifestation of the student's disability, the student should have been returned to the student's original placement or filed a due process hearing request seeking unilateral placement in an IAES. After reviewing relevant information and finding that the behavior on October 10, 2022, was a manifestation of the student's disability, the IEP team discussed the student's current FBA and BIP. The IEP team did not revise the BIP but planned on conducting a new FBA. The entire IEP team agreed that revising the BIP before conducting a new FBA would not be effective. On October 14, 2022, the district initiated an evaluation with the purpose of conducting an FBA, but the parent has not provided consent.

The manifestation determination that was held on November 21, 2022, was timely as it was within 10 school days of the incident on November 16, 2022. The IEP team determined the student's behavior was a manifestation of the student's disability. The district unilaterally changed the placement back to the off-site location as an interim alternative educational setting (IAES) because the district appropriately determined that the serious bodily injury exception applied. The teacher suffered a serious injury based on hospitalization, the extent of the injuries, and the inability to work. The teacher has not been able to work for at least one month due to the injuries. In these circumstances, the decision to remove the student to an IAES for up to 45 school days was permissible. However, the amount of services provided to the student in the IAES was not properly determined. Students with disabilities must continue to receive a free and appropriate public education such that they can continue to make progress in the general education curriculum and to make progress toward their IEP goals. The decision to shorten the student's school day to two hours was based in part on administrative convenience. Staff availability and concerns with possible interactions with older students using the location later in the day were impermissible factors that limited instruction time.

The district did not properly follow special education disciplinary requirements when it did not conduct a manifestation determination before changing the student's placement on October 13, 2022, and did not return the student to their original placement or file a due process hearing after it was subsequently determined that the incident on October 10, 2022, was a manifestation of the student's disability, and did not appropriately determine services in the IAES setting.

As corrective action, the district is required to conduct an IEP team meeting to determine compensatory services for improperly determining the amount of services in the IAES and for not following the special education disciplinary requirements. The district shall provide the department with the determination of compensatory services within 10 days of the IEP team meeting. Within 30 days from the date of the decision, the district must submit a corrective plan to ensure that special education disciplinary requirements are followed.

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, and 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 or contact the special education team at (608) 266-1781.