On September 29, 2004, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Tomah Area School District. This is the department's decision regarding that complaint. The issues are whether the district:
- Ensured that individualized education programs (IEPs) for the student developed in November 2003 included:
- Proper statements of present levels of educational performance;
- Annual goals statements related to meeting the child's needs resulting from his disability;
- Proper statements of special education and supplementary aids and services to be provided to the student;
- A proper transition service statement; and
- Strategies appropriate to address student behavior which interferes with his learning or learning of others;
- Properly determined that the student would attend school on a reduced schedule during the 2003-2004 school year; and
- Followed required procedures when it disciplined the student in September 2004.
The student has a learning disability, and during the 2003-2004 school year, the student was in eighth grade and attended middle school. On November 11, 2003, the IEP team met for the annual review and revision of the student's IEP. In describing the student's present level of educational performance, the IEP developed did not provide baseline information that corresponded to the annual goals. Furthermore, one of the two goals was not measurable, and except for one, the corresponding short term objectives were also not measurable. The special education services provided were "resource room when needed and for directed study." The frequency specified was "daily" and no amount was given. The special education services identified in the student's IEP were not described in sufficient detail to clearly indicate the districts commitment of resources to both parents and district staff. The IEP also indicated that the student was fourteen years old, and he was invited to the meeting. Beginning at age 14 (or younger if determined appropriate by the IEP team) and annually thereafter, the IEP must include a statement of transition service needs focusing on the student's courses of study needed to prepare for a successful transition to post-secondary life. District staff stated that they do not remember discussing the student's post-secondary goals or interests at the November 2003 IEP meeting and the IEP does not reflect such a discussion. Finally, although the IEP team determined that the student's behavior did impede his learning and the learning of others, IEP team participants interviewed do not remember considering positive interventions or strategies, and none are listed in the IEP. During April 2004, a plan was developed that included positive interventions. However, this plan was not incorporated into the IEP.
The student's current IEP, dated November 2, 2004, has rectified many of the problems associated with his previous IEP as discussed above. Four out of the six goals are measurable, there is corresponding information relating to present levels of performance, and a transition goal is included. Positive behavioral intervention and strategies are listed, which include establishing safe places and promoting social behaviors. A goal was also developed to help the student develop and maintain pro-social interpersonal skills. However, the phrases "as needed" and "up to 30 minutes" were used in specifying the amount of supplemental aids and services and related services. These phrases do not describe the circumstances when a service is needed or the amount of service in sufficient detail.
The complaint also alleges that the student's schedule was improperly reduced. Throughout the first semester of the 2003-2004 school year, the student received numerous disciplinary actions for incidents involving aggressive behavior. On December 17, 2004, the student and his mother met with the principal and his special education teacher outside the context of an IEP meeting to discuss a behavior plan. The plan required the student to be escorted from class to class, reduced his schedule from a full day to a half day, and changed his schedule. The student was placed in special education classrooms instead of regular education classrooms, and the plan required coursework in science to be completed at home. Directed study and other courses were eliminated. The plan specified that if the student could successfully follow the schedule, he could move between classes unescorted, and a meeting would be held to develop a plan extending the school day. Both the mother and the student signed the plan, and it went into effect on December 18, 2003. The plan was attached to the November 11, 2003 IEP. Because of continued behavioral problems, the student never returned to a full schedule. The reduced schedule constituted a change in placement and determinations regarding placement must be made by the IEP team, which was not done in this case. The district also did not provide prior written notice of its proposal to change the educational placement of the child or notice of placement.
Finally, the complaint alleges that the district failed to follow the required procedures when it disciplined the student in September 2004. On September 14, 2004, the student received a one day suspension, and on September 16, 2004, he received a five day suspension for an incident that occurred at a high school sporting event. A manifestation determination was held on September 17, 2004, regarding the incident, and the IEP team determined that the incident was not a manifestation of the student's disability.
In making this determination, the IEP team reviewed evaluations and observations of the student. The IEP team also reviewed the student's November 11, 2003 IEP, which was still in effect. Although IEP team participants recognized that there were problems with the IEP, they determined these problems were not related to the incident that occurred at the football game. Participants further determined that the student had control over his actions, knew the consequences of his behavior, and understood that his behavior was wrong or inappropriate. The team considered the proper factors in making its determination.
The student was not recommended for expulsion. However, the district asked the student's parents to keep him at home until placement was determined. On October 4, 2004, the IEP team determined that the student would return to high school with the provision of an aide that would escort him between classes. The student returned to high school on October 5, 2004. The student's attendance record indicates that he was out of school twelve consecutive days. State law permits a suspension in excess of five days only when a notice of expulsion hearing has been sent to the parent and pupil.
Because the removal of the student exceeded ten consecutive school days, it constituted a disciplinary change in placement. Under these circumstances, the IEP team was required to determine the extent to which services were necessary to enable the student to appropriately progress in the general curriculum and appropriately advance toward achieving the IEP goals. This was not done in this case. Furthermore, the district must ensure that a functional behavioral assessment is conducted if one has not previously been done, and as soon as practicable after completing the assessment, the district must convene an IEP team meeting to develop an appropriate behavioral intervention plan to address the behavior. The district acknowledged that although there was a behavioral plan attached to the November 11, 2003 IEP, a functional behavioral assessment had not previously been conducted for the student. District staff stated that one function of the aide was to conduct an informal assessment by observing the student's behavior and by completing a log. They acknowledged though that this was never competed because of subsequent disciplinary problems, and that a functional behavioral assessment plan had not been developed by the IEP team.
The district is directed to conduct an IEP team meeting to develop a functional behavior assessment plan and to determine whether additional services are required because the student's schedule was reduced in 2003 and services were not provided during the disciplinary removal in 2004. The IEP team must also address the lack of specificity in the student's IEP regarding supplementary aids and services and related services and ensure that all of the goals are measurable. After the assessment has been conducted, the IEP team must meet to review, and revise if necessary, the student's current behavioral intervention plan. Due to the impending reauthorization of the Individuals with Disability Education Act, the department will work with the district to ensure that staff are aware of the current requirements pertaining to goals and objective, present levels of performance, transition, behavioral intervention plans, and change in placement and disciplinary procedures.
This concludes our review of this complaint.
//signed 11/29/04 by SJP
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy