IDEA Complaint Decision 01-018

On March 1, 2001, a complaint was filed with the Department of Public Instruction XXXXX against the Montello School District. This complaint alleges a violation of special education law regarding the implementation of programs for children with disabilities.

Pursuant to 34 CFR 300.660-662 of the regulations implementing the Individuals with Disabilities Education Act (IDEA) and 115.762(3)(g) and 115.90(1), Wis. Stats., the Department of Public Instruction investigated this complaint. In investigating a complaint, the department reviews a district's compliance with state and federal requirements.

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ISSUE #1:

Did the district fail to the meet the child's needs as identified in the functional behavior assessment (FBA) completed on January 8, 2001?

 

ISSUE #2:

Did the district fail to conduct a timely functional behavior assessment of the complainants' child following behavior problems during the 1999-2000 school year?

 

ISSUE #4:

Did the district improperly exclude the child from school for more than 10 days during the 1999-2000 and 2000-2001 school years?

 

ISSUE#5:

Did the district, on February 20, 2001, violate a provision of the child's IEP and behavior intervention plan that requires the district to contact the complainant regarding the child's behavior problems before contacting the police?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

In this subchapter:

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(7) "Free appropriate public education" means special education and related services that are provided at public expense and under public supervision and direction, meet the standards of the department, include an appropriate preschool, elementary or secondary school education and are provided in conformity with an individualized education program.

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Wisconsin Statutes, Section 115.77
Local educational agency duties.

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(1m) A local educational agency shall demonstrate to the satisfaction of the division that it does all of the following:

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(b) Makes available a free appropriate public education to children with disabilities as required by this subchapter and applicable state and federal law.

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(9) The local educational agency shall exercise its authority in compliance with 20 USC 1415 (k).

34 CFR 300.519 Change of placement for disciplinary removals.

For purposes of removals of a child with a disability from the child's current educational placement under 300.520-300.529, a change of placement occurs if--
(a) The removal is for more than 10 consecutive school days; or
(b) The child is subjected to a series of removals that constitute a pattern because they cumulate to more than 10 school days in a school year, and because of factors such as the length of each removal, the total amount of time the child is removed, and the proximity of the removals to one another.

34 CFR 300.520 Authority of school personnel.

(a) School personnel may order--
(1)(i) To the extent removal would be applied to children without disabilities, the removal of a child with a disability from the child's current placement for not more than 10 consecutive school days for any violation of school rules, and additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change of placement under 300.519(b));

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(b)(1) Either before or not later than 10 business days after either first removing the child for more than 10 school days in a school year or commencing a removal that constitutes a change of placement under 300.519, including the action described in paragraph (a)(2) of this section--
(i) If the LEA did not conduct a functional behavioral assessment and implement a behavioral intervention plan for the child before the behavior that resulted in the removal described in paragraph (a) of this section, the agency shall convene an IEP meeting to develop an assessment plan.
(ii) If the child already has a behavioral intervention plan, the IEP team shall meet to review the plan and its implementation, and, modify the plan and its implementation as necessary, to address the behavior.

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34 CFR 300.529 Referral to and action by law enforcement and judicial authorities.

(a) Nothing in this part prohibits an agency from reporting a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.
(b)(1) An agency reporting a crime committed by a child with a disability shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom it reports the crime.
(2) An agency reporting a crime under this section may transmit copies of the child's special education and disciplinary records only to the extent that the transmission is permitted by the Family Educational Rights and Privacy Act.

ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

Department of Public Instruction, Learning Support/Equity and Advocacy, Information Update Bulletin 00.01, May 2000, Questions 7 and 20.

7. When is FBA used?

Functional behavioral assessment is legally required in certain circumstances. The IEP team must take actions related to an FBA and BIP when a child has disciplinary removals that exceed 10 cumulative school days in a school year and whenever a disciplinary change of placement is proposed. These specific requirements are more fully addressed in Information Update 00.02, Legal Requirements Relating to Disciplining Children with Disabilities.

20. How are the results of FBA incorporated into a child's IEP?

The IEP is the centerpiece of instructional programming for a student with a disability. If the student's behavior is interfering with his/her learning or that of others, the IEP must address that behavior. An FBA provides baseline data for appropriately addressing the student's behavioral needs. Information from the FBA can be incorporated as part of the present level of educational performance (PLOP) and may also provide the basis for annual goals, short term objectives, and benchmarks. Use the data from the FBA to describe the student's current level of functioning, including situations or settings in which the student is most or least appropriate, and consequences that may positively or negatively influence the behavior.

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FINDINGS OF FACT:

The complainant alleges that the 2000-2001 goals and objectives do not reflect the findings of the functional behavioral assessment (FBA) completed on January 8, 2001. The student whose education is the subject of this complaint had an initial IEP written on May 25, 1999, with a projected beginning date of August 25, 1999, and a projected ending date of May 25, 2000. A behavior intervention plan (BIP) was included as a part of this IEP. Revisions were made to the student's BIP at IEP team meetings held on February 24, 2000, and March 29, 2000. On May 24, 2000, an annual IEP team meeting was held and the student's goals and objectives and BIP were not changed from those in the student's February 24, 2000, IEP.

The district began charting the student's behavior and collecting data as part of a functional behavior assessment (FBA) on August 23, 2000. The IEP was amended at a December 4, 2000, IEP team meeting to include an additional provision under the area of consideration of special factors. An IEP team meeting was held on January 8, 2001, to review the information from the FBA. No changes to the student's IEP or BIP were made at this meeting.

In regard to issue #2, the complainant alleges that the district failed to conduct a FBA following behavior problems during the 1999-2000 school year. She claims that in staff notes from the February 24, 2000, IEP team meeting, it was stated, "We may already know the results of such an assessment [FBA] but paperwork can be initiated beginning next Wednesday, when one will be done per CESA rep." The department could find no mention of an agreement to conduct a FBA in the February 24, 2000, IEP.

In regard to issue #4, the complainant maintains that the child was removed from school for more than 10 school days during the 1999-2000, and 2000-2001 school years. Attendance records received from the district indicate the child was suspended from school for a total of 8.5 days during the 1999-2000 school year.

During the 2000-2001 school year, district records show that the student was suspended for seven days. Complainant's records indicate that the child was suspended for eleven days. Based on official district attendance records, the student's FBA, and office referrals and teacher notes, the student has been suspended from school a total of nine days from the start of the 2000-2001 school year to the time of this complaint. The dates September 25, 2000, and November 7, 2000, which the complainant maintains were days of suspension, are not suspensions, but absences from school for a doctor's appointment and due to illness. While the district's attendance records do not reflect suspension on November 30, 2000, and December 1, 2000, the child's FBA indicates that he was suspended for a portion of November 30, 2000, and for all of the next day, December 1, 2000.

In regard to issue #5, the complainant alleges that the district violated a provision of the child's IEP and BIP that requires the district to contact the complainant regarding the child's behavior problems prior to contacting the police. The student's BIP in effect on February 20, 2001, lists intervention options that correspond with behaviors. The BIP states that if the student, " begins physical aggression OR if physical aggression or assault occurs" a series of interventions will be used, including calling the parent.

In the event the student makes suicidal threats or expresses suicidal ideation, the BIP lists four options as possible interventions, including contacting the police, "as a last resort or in the case [Student] becomes a danger to himself or others. This call will be made by the principal or his designee."

On February 20, 2001, the child was involved in an incident that involved being disrespectful, physical violence and threats (including suicidal), and out-of-control behavior. Several attempts to bring the student's behavior under control were tried, including the use of time-out. The student's behavior continued to escalate and a decision was made by the building principal to contact the complainant and the police. In this incident, the complainant alleges that once contacted by the district she arrived within four minutes and a police officer was already present. The district reports that, while both the complainant and the police were contacted, the police arrived shortly before the complainant. The police officer had just begun to restrain the student when the complainant arrived.

CONCLUSION:

A school district must provide each child with a disability a free appropriate public education (FAPE). A school district meets its obligation to provide FAPE to a child with a disability, in part, by providing special education and related services. If the IEP team determines that the student's behavior is interfering with the student's learning or that of others, the IEP team must consider strategies, including positive interventions and supports to address the behavior. Functional behavioral assessment (FBA) is a useful process in developing appropriate interventions; however, FBA is not legally required except when a child has disciplinary removals that exceed 10 cumulative school days in a year and whenever a disciplinary change of placement is proposed.

In this case, the complainant alleges that the student's IEP goals and objectives do not reflect the findings of a FBA completed on January 8, 2001. Documents reviewed by the department indicate that the student had a behavior intervention plan (BIP) since his initial IEP was written on May 25, 1999. Changes were made to the BIP to address behavior issues at IEP team meetings held on February 24, 2000; March 29, 2000; and December 4, 2000. Following the FBA, an IEP team meeting was held on January 8, 2001, and the team concluded that no changes were necessary to the BIP in order to address the student's behavior needs, because the needs identified in the FBA were being addressed in the student's current BIP and IEP. The district correctly implemented the legal requirements related to Issue #1 of the complaint.

The complainant further alleges that the district failed to conduct a FBA following behavior problems during the 1999-2000 school year. The district was under no legal obligation to conduct a FBA during the 1999-2000 or 2000-2001 school years because the student was not suspended for more than 10 cumulative days during the year and no change in placement was considered. The district correctly implemented the legal requirements related to Issues #2 and #4.

In order to provide a student FAPE, a district must implement the IEP provisions, including provisions in a BIP. Issue #5 deals with the allegation that the district violated a provision of the child's IEP and BIP that requires the district to contact the complainant regarding the child's behavior problems prior to contacting the police. The child's February 20, 2001, IEP included intervention options that correspond with the student's behaviors. While the student's BIP does state that the parent is to be called if the child displays physical aggression or if physical aggression or assault occurs, and if the student makes suicidal threats or expresses suicidal ideation, the BIP also includes calling law enforcement if the student becomes a threat to himself or others. The BIP states that law enforcement may be called if the parent is not available and student remains out of control, and, as a last resort or in the case the student becomes a danger to himself or others.

On February 20, 2001, the student was involved in an incident that included physical violence and threats of suicide. After attempts using other interventions failed, and the student's behavior continued to escalate, a decision was made by the building principal to contact the complainant and the police because the child was a threat to himself and others. The district contacted both. The district provided services consistent with the child's needs set forth in his BIP and IEP. The district correctly implemented the legal requirements related to Issue #5.

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ISSUE #3:

Did the district, on or about November 28, 2000, release the child's educational records to the police without the complainant's consent?

APPLICABLE STATUTES AND RULES:

 

Wisconsin Statutes, Section 115.77
Local educational agency duties.

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(1m) A local educational agency shall demonstrate to the satisfaction of the division that it does all of the following:

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(b) Makes available a free appropriate public education to children with disabilities as required by this subchapter and applicable state and federal law.

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34 CFR 99.3 What definitions apply to these regulations?

The following definitions apply to this part:

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"Education records"
(a) The term means those records that are:
(1) Directly related to a student; and
(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.

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"Record" means any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche.

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34 CFR 99.30 Under what conditions must an educational agency or institution obtain prior consent to disclose information?

(a) Except as provided in 99.31, an educational agency or institution shall obtain a signed and dated written consent of a parent or an eligible student before it discloses personally identifiable information from the student's education records.
(b) The written consent must:
(1) Specify the records that may be disclosed;
(2) State the purpose of the disclosure; and
(3) Identify the party or class of parties to whom the disclosure may be made.

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34 CFR 99.31 Under what conditions is prior consent not required to disclose information?

(a) An educational agency or institution may disclose personally identifiable information from an education record of a student without the consent required by 99.30 if the disclosure meets one or more of the following conditions:

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(9)(I) The disclosure is to comply with a judicial order or lawfully issued subpoena.

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34 CFR 300.529 Referral to and action by law enforcement and judicial authorities.

 

(a) Nothing in this part prohibits an agency from reporting a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.
(b)(1) An agency reporting a crime committed by a child with a disability shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom it reports the crime.
(2) An agency reporting a crime under this section may transmit copies of the child's special education and disciplinary records only to the extent that the transmission is permitted by the Family Educational Rights and Privacy Act.

FINDINGS OF FACT:

On February 29, 2000, the district reported to the Marquette County Sheriff's Department a November 28, 2000, incident involving the student. The incident involved physical injury to a teacher and was therefore reported as criminal activity. The district provided the sheriff's department with copies of the "Notice of Office Referral" from November 28, 2000, and with notes from staff members documenting physical and verbal aggression towards them. The reports identified the youth by name and described in detail the youth's behavior that resulted in the police being called to the school, as well as behavior the student exhibited in the past. The district did not obtain written permission from the complainant to release the discipline reports and teacher notes, which are student records, and was not ordered by a court to release the reports to the police. In its response to the department the district maintains that it furnished these documents to the police in the belief federal regulation required release when the district made the referral to law enforcement.

CONCLUSION:

A school district must preserve the confidentiality of personally identifiable information from a child's education records. Education records are directly related to a student and maintained by an educational agency or institution or by a party acting for the agency or institution. Special education records and behavioral records, including student discipline reports, are confidential education records. Federal regulation requires school districts to ensure that copies of the special education and disciplinary records of a child are transmitted for consideration by the appropriate authorities to whom it reports a crime committed by a child with a disability. However, a district may transmit copies of the child's special education and disciplinary records only to the extent that the transmission is permitted by the Family Educational Rights and Privacy Act (FERPA). Under FERPA parental consent must be obtained before personally identifiable information is disclosed to anyone other than officials of participating agencies collecting or using the information, unless specific exceptions apply. These exceptions include complying with a judicial order or lawfully issued subpoena.

In this case, the district provided the sheriff's department with the "Notice of Office Referral" from November 28, 2000, and with notes from staff members documenting physical and verbal aggression towards them. These reports constitute behavioral records which are education records that must be treated confidentially. The district did not obtain written permission from the parent to release the reports and none of the exceptions permitting release apply. The district failed in this regard to correctly implement the law related to issue # 3.

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DIRECTIVE:

The Montello School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that the district transmits copies of the special education and disciplinary records of a child to the appropriate authorities to whom it reports a crime only to the extent that the transmission is permitted by the Family Educational Rights and Privacy Act (FERPA).

The CAP shall include the activities the district will undertake to implement the directives, the personnel responsible for each activity, the date by which each activity will be completed, and the type of documentation that will be submitted to the department as evidence of completion of each activity. If a CAP requires the district to develop one or more products, the district may submit the product(s) as part of the corrective action plan. The CAP will be reviewed and the district will be informed if any revisions are required. The district will implement the CAP after it has been approved by the department.

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This concludes our investigation of this complaint 01-018. This letter is not intended, and should not be construed, to cover any other issues regarding compliance with the IDEA or Chapter 115, Wisconsin Statutes, which may exist and which are not specifically discussed herein. Under the Wisconsin public records law, 19.31-19.39, Wisconsin Statutes, it may be necessary to release this document and related correspondence and records upon request.

signed MJT
4/30/01
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Mike J. Thompson, Assistant Superintendent
Division for Learning Support: Equity and Advocacy

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For questions about this information, contact Patricia Williams (608) 267-3720