IDEA Complaint Decision 24-099

On August 28, 2024, 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 this complaint. The issue identified is whether the district, beginning August 28, 2023, properly implemented special education disciplinary requirements.
 

A disciplinary change of placement occurs when a student with a disability is removed from their current placement due to discipline for more than 10 consecutive school days or when a series of removals for more than 10 cumulative days within the same school year constitutes a pattern. 34 CFR §300.536(a). Within 10 school days of any district decision that has the potential to result in a disciplinary change of placement of a student with a disability because of a violation of a code of student conduct, the district must conduct a manifestation determination. 34 CFR §300.530, 34 CFR § 300.536. The district, the parent, and relevant members of the student's individualized education program (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 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 under three limited conditions not applicable in this case. 34 CFR § 300.530(f)(2). The IEP team must address the student’s behavior by either conducting a Functional Behavioral Assessment (FBA) and implementing a behavior intervention plan (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 who is the subject of the complaint was in ninth grade at the district’s high school during the 2023-24 school year. At the student’s school, instruction is provided in 87-minute blocks. From August 29, 2023, to May 2, 2024, the student received two daily blocks of specially designed instruction for developing coping strategies, academic support, and self-advocacy skills. The student also received three daily blocks of specially designed instruction via co-taught classes in English, Math, and World Connections.
 

The student engaged in behavior constituting an expellable offense under district policy on September 1, 2023. Instead of initiating expulsion proceedings, the district and parents met for a pre-expulsion meeting September 14, 2023. The purpose of this meeting was to explore whether the district and the student’s family could agree on alternative arrangements and conditions in lieu of the district immediately initiating expulsion proceedings. At the time of the incident, the student was already attending school under the terms of an existing pre-expulsion agreement from a prior behavioral incident. In the meeting, district staff amended the original agreement to “...move [the student] to online learning effective immediately for the remainder of the 2023-24 school year…” Further, the amended agreement disallowed the student from participating in district sponsored events and activities for the remainder of the 2023-24 school year. The district did not conduct a manifestation determination meeting prior to moving the student to online learning.
 

The student’s IEP team met September 21, 2023, to revise their IEP and end in person services “due to the transition to online schooling” as described in the pre-expulsion agreement. The team also drastically reduced the student’s specially designed instruction to 15 minutes two days per week.

The student’s IEP team met again to review and revise the student’s IEP on February 7, 2024. The team further decreased the student’s specially designed instruction to 15 minutes one time per week as the student had not been attending both virtual sessions and the team determined one session was sufficient for the student to continue making adequate progress in the virtual program.

The IEP team reconvened again April 18, 2024, to review the results of the student’s three-year reevaluation and develop an annual IEP. The IEP team found the student to continue to be eligible for special education under the disability category of emotional behavioral disability. From May 1 to May 30, 2024, the student was to receive 10 minutes per week of specially designed instruction in task completion, social skills, and appropriate decision making. From August 28, 2024, to April 30, 2025, the student was to receive 10 minutes of specialized instruction in the areas noted above “per two-day cycle”. The student returned to the physical school environment for the 2024-25 school year, but the district has not yet reconvened the student’s IEP to reflect this change in placement from virtual instruction to in-person or to determine the amount of specially designed instruction the student requires.
 

The district acknowledges they did not hold a manifestation determination meeting prior to changing the student’s placement after the behavioral incident in lieu of initiating expulsion proceedings. The district indicated they typically conduct manifestation determinations prior to or shortly after pre-expulsion meetings for students with disabilities but did not do so here as they were under the impression the parent wanted the student to attend school virtually. However, during the complaint process the student’s parent indicated they did not feel they had a choice about their student attending school virtually given the original pre-expulsion agreement. The district did not properly implement special education disciplinary requirements as the district was required to conduct a manifestation determination prior to initiating a change of placement as a result of a disciplinary incident.

Within 20 days of the date of this decision, the district is directed to conduct a manifestation determination meeting based on the September 1, 2023, incident. If the student’s behavior is found to be a manifestation of their disability, the district is directed to consider whether a functional behavior assessment should be conducted and review or revise the student’s behavior intervention plan. Additionally, the district is directed to consider whether the student is owed compensatory services given the significant reduction in special education services during their time in the virtual setting. Within 10 days from the date of the manifestation determination, the district must submit evidence that the above activities have been completed to the department.
 

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.