On February 11, 2002, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the School District of Brown Deer. This is the department's decision regarding that complaint. The issues are whether the district, during the 2000-2001and 2001-2002 school years, failed to:

• Respond in a timely manner to a parent's request for a special education evaluation of her child during the 2000-2001 school year;

• Develop an individualized education program (IEP) and placement within 90 days of receiving a special education referral on September 28, 2001;

• Properly discipline the child during the 2001-2002 school year when the district had knowledge that the child is a child with a disability;

• Implement the child's IEP requiring special education instruction; and

• Provide the parents with prior written notice when the district proposed to initiate or change the child's identification, evaluation, or educational placement.

During the 2000-2001 school year, the complainant, a licensed psychologist working with the child, contends that at his suggestion the child's parents requested from the district a referral form for a special education evaluation. One parent request was made orally in October 2000. A meeting was held in October with the parent and school guidance counselor. The school guidance counselor recommended to the parents that they seek an outside evaluation for possible Attention Deficit Hyperactivity Disorder (ADHD). In a written statement to the department, the guidance counselor acknowledged that he spoke with the parents concerning their child's behavior as well as ADHD and special education testing. On December 7, 2000, the complainant contacted the school guidance counselor and inquired about the referral. The complainant was told that the parent had requested a referral but instead a meeting with the school guidance counselor and building principal was held. On December 15, 2000, the complainant sent a letter to the school district summarizing his treatment and testing results, including a diagnosis that the child has ADHD. Once the child was diagnosed with ADHD, the school counselor suggested the parents seek outside counseling for their child. During the summer of 2001, the child had a behavior incident that led to an expulsion conference with the superintendent in August 2001. The complainant contacted the superintendent on August 3, 2001, and explained that the parents had requested a special education evaluation. The district held a student service team meeting on September 25, 2001, and decided to inform the child's parents of the district policy requiring requests for special education referrals to be in writing. The school guidance counselor contacted the parents on September 26, 2001, to help clarify the referral process. On September 27, 2001, the complainant contends he contacted the child's new school guidance counselor who explained the process of requesting a referral, including that the request had to be in writing. A written referral for a special education evaluation was received by the district on September 28, 2001, and the district then initiated a special education evaluation of this child.

A district has an obligation to inform parents of the procedure for making special education referrals. In this case, during the 2000-2001 school year, the district failed to inform the parents of their right to make a referral and how to make a referral. Within 30 days of the date of this decision, the district must submit a proposed corrective action plan to the department to ensure district staff understand the proper procedures for making referrals, including informing parents of the referral process.

The complainant alleges that the district failed to develop an IEP and placement within 90 days of receiving the September 28, 2001, referral. Districts must complete an evaluation for special education, develop an individualized education program (IEP), and provide parents with a notice of placement within 90 days of receiving a special education referral. The 90-day timeline can be extended with parent consent, or by the department following parent refusal of an extension request. In this case, the 90-day timeline ended on December 27, 2001.

On October 2, 2001, the district sent the parents a copy of the referral and a Notice of Receipt of Referral and Start of Initial Evaluation. On October 5, 2001, the district contacted the parents concerning their input in determining if additional tests or evaluation materials were needed. The district sent the parents a copy of the Notice and Consent Regarding Need to Conduct Additional Tests on October 5, 2001. The parents signed consent to administer tests and other evaluation materials on October 8, 2001. An IEP team meeting was scheduled for December 7, 2001, but the parents requested a postponement so that the outside therapist could attend. The IEP team meeting was rescheduled for December 17, 2001. The child was found to be a child with a disability in the areas of Emotional Behavioral Disability and Other Health Impairment at that IEP team meeting. Another IEP team meeting was scheduled and held on December 20, 2001, to develop goals and objectives and determine placement. According to the child's IEP, the parents were not provided a notice of placement until January 16, 2002, and services were to begin on January 23, 2002. The IEP indicates that the placement determination was made on December 7, 2001, the date of the postponed IEP team meeting.

The district provided the parents with An Approval for Extension of Time form. The date the form was provided to the parents is unclear. The form is dated December 20, 2001, the date of the second IEP team meeting, but the complainant maintains that the parents did not receive this until January 2002. The parents signed permission to extend time on January 17, 2002. The district was required to obtain consent for an extension from the parents or from DPI before the 90-day timeline ended on December 27, 2001. Within 30 days of the date of this decision, the district must submit a proposed corrective action plan to the department to ensure that special education staff are aware of the requirements related to completing evaluations within required time limits, including the process for requesting an extension.

On December 14, 2001, the student was accused of threatening district staff. On December 17, 2001, the district suspended the student for that behavior incident. An expulsion hearing was set for January 3, 2002. At the end of the December 17, 2001, IEP team meeting, once the student had been found to be a child with a disability, the complainant asked the director of student services for the district whether a manifestation determination meeting would be scheduled prior to the expulsion hearing. According to the complainant, the director assured him that the required process would be followed.

On January 9, 2002, the district administrator sent a letter to the parents that contained a summary of the January 3, 2002, meeting. In this letter, the administrator referred to the January 3rd meeting as a "pre-expulsion" conference. It acknowledges that the student was suspended on December 17, 2001. The letter also states that, "At this time, the school district will not bring forth a recommendation for expulsion" involving this student. According to the letter, there was an agreement that the parents voluntarily would withdraw their son from school beginning January 3, 2002, through January 22, 2002. The letter states that the child could return to school on January 23, 2002. This was an option presented to the parents instead of proceeding to an expulsion hearing. The district offered to provide tutorial services for one hour per day from January 4, 2002, to January 18, 2002. Wisconsin has compulsory attendance laws and a district cannot avoid special education discipline requirements by obtaining an agreement from the parent to "withdraw" the child in lieu of expulsion when the child is not properly enrolled in another school or receiving home-based private educational programming. Such a "withdrawal" results in denial of FAPE to the child.

State and federal law govern procedures relating to the disciplinary removal of students. A child with a disability may be suspended for up to five days or for up to ten consecutive days if a notice of expulsion has been sent to the child's parents. Immediately, if possible, but in no case later than 10 school days after the date on which the decision to take the action is made, the IEP team must meet and conduct a manifestation determination review concerning the behavior subject to discipline. If the IEP team determines that the behavior is a manifestation of the disability, the child may not be removed in excess of 10 days. If the IEP team determines the behavior is not a manifestation of the child's disability, then the school board may discipline the child in the same manner as a child without a disability. However, the local educational agency may not cease providing a free appropriate public education to the child during the period of removal. In this case, the district did not conduct a manifestation determination as soon as possible after the December 17, 2001, suspension, or no later than 10 school days from the notice of expulsion hearing. The IEP team also did not meet to determine the extent to which services were necessary during the period of removal to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the IEP goals. Within 30 days of the date of his decision, the district must submit a proposed corrective action plan to the department to ensure that IEP teams do not develop IEPs that delay or deny FAPE. In this case, the student's December 20, 2001, IEP was written to be implemented at the beginning of the second semester, January 23, 2002, denying the student FAPE in the meantime. The corrective action plan must also ensure that district staff understand the requirements for disciplinary removals of children with disabilities.

On January 23, 2002, the student returned to school. The student's December 20, 2001, IEP calls for special education support in organizational skills, time on task, and assignment completion for 45 minutes per day, Monday through Friday. The complainant maintains that as of February 1, 2002, the student had not had any "face to face" contact with a special education teacher. The student's special education teacher responded to the department in a letter stating that the student has a point sheet which monitors behavior. The student either reports to the special education room or special education [staff] checks on him in the regular education setting. The December 20, 2001, IEP states that the student, "will be removed from his non-disabled peers when his behavior or difficulty with assignment completion results in disrupting the regular classroom environment. He will be allowed to work in the special education resource room where his behavior will be monitored and addressed." The student received behavior and organizational support in either the regular education setting or the special education resource room consistent with his IEP. The department has determined the district correctly implemented the student's IEP during the 2001-2002 school year.

The complainant also maintains that the parents did not receive proper notices when the district proposed to initiate or change the child's identification, evaluation, or educational placement. The district provided the department with a letter from the person responsible for sending parent notices. In this letter, each required notice, including parent/child rights information, and the date they were sent to the parents was documented. The department concludes that the district properly implemented the requirements of providing parents with copies of prior notices.

This concludes our review of this complaint.

//signed CST 6/11/02
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

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