IDEA Complaint Decision 07-014

On February 21, 2007, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the [Unnamed] Public Schools. This is the department’s decision regarding that complaint. The issues covering the period between February 21, 2006, and February 21, 2007, are addressed in the following pages.

  • Whether the district properly considered including in the student’s individualized education program (IEP) required positive behavioral interventions, strategies, and supports to address behavior impeding learning).

The student turned 18 during the 2006-2007 school year, at the end of which the student graduated with a regular diploma. In her complaint letter, the parent stated the student had a history of behavior problems that should have been addressed in the IEP. When the student entered the district in May 2005, transfer records did not identify behavior concerns that impeded learning nor include IEP goals or services to address behavior.

In the January 19, 2006, IEP evaluation report, the district documented information provided by the parent including cyclic behavior, a diagnosis of ADHD, and the student’s medication. The IEP team documented the student needed special education to address academic problems. No behavioral needs requiring special education were noted because the student had not exhibited problem behaviors in school. Prior to the student’s expulsion in May 2006, one behavioral incident had been reported related to lying about an assignment. The principal and student’s case manager reported no other concerns about the student’s behavior being brought to their attention.

Individualized education programs developed by the district following the student’s expulsion, brief return to school and subsequent reinstatement of the expulsion in the fall of 2006, included documentation of the consideration of behavior factors and identified a goal and benchmarks to address student behavior concerns. The IEP completed on October 27, 2006, included documentation of the results of a functional behavioral assessment and strategies for addressing behavior concerns. The district properly considered whether the student required positive behavioral interventions, strategies, and supports to address behavior impeding learning.

  • Did the district, during the 2006-2007 school year, properly determine the student’s educational needs relating to concrete thinking and develop required goals and services to meet those needs?

District IEP team participants and the student’s parents state the student’s concrete, hands-on learning was discussed at the May 12, 2006, and February 27, 2007, IEP team meetings. The student’s May 12 and February 27 IEPs include a statement of transition service needs, "(Student) enjoys hands-on learning and the outdoors." Both IEPs present levels of educational performance state "Enjoys hands on activities." The February 27, 2007, special factors behavior statement specifies that instruction will incorporate practical and hands-on applications. The student’s need for concrete hands-on learning was considered at IEP team meetings, and reflected in the student’s IEP.

  • Whether the district properly considered parent concerns regarding the extent to which the student would be educated with students who do not have disabilities; and
  • Whether the district properly determined the extent to which the student would be educated with students who do not have disabilities.

In the complaint, the parent indicated, upon moving to the district, she had requested the student be mainstreamed, but not fully. She recalled requesting the student be pulled out of mainstream classes beginning in January 2006 because insurance would be ending and the student would no longer be taking medication. The parent stated that although the district noted her request, they did not do anything to address it.

In the IEP developed on January 19, 2006, a meeting which the parent did not attend, the team noted the student’s use of medication and considered the extent to which the student would participate with non-disabled peers. The IEP team documented the student would continue to receive special education programming and supplemental aids and services to address academic achievement needs. District staff do not recall a parent request to remove the student from mainstream classes, but do recall the parent sharing concerns related to the student no longer taking medication during second semester. No goals or services were recommended to address behavior because staff were not seeing behavioral concerns in school. The IEP team considered the parent’s concerns and properly determined the extent to which the student would be educated with students who do not have disabilities. The IEPs developed following the May and October 2006 changes in placement properly documented that the student would not participate with non-disabled peers as a result of receiving services at a neutral site due to his expulsion.

On September 6, 2006, an IEP team meeting was held to review and revise the IEP and consider placement. The IEP team decided IEP goals and services developed on May 3, 2006, would be implemented until reviewed on October 19, 2006. The only change made was to indicate the IEP would be implemented in school rather than at the neutral site. When the student returned to school in September following placement at a neutral site, the IEP team should have considered whether the student’s current IEP needed revision with respect to the extent to which the student would be educated with non-disabled peers. There is no documentation that the IEP team reviewed this section of the IEP. The IEP team did not properly document the parent’s concerns nor properly consider and document the degree to which the student would participate with non-disabled peers in the September 6, 2006, IEP. Because the IEP team which met in October 2006 revised the student’s program and the student has since graduated, no student-specific corrective action is required. Within 30 days of receiving this decision, the district must submit proposed corrective action to the department to ensure that IEP teams properly revise students’ IEPs when transitioning from one educational placement to another.

  • Whether the district properly determined in May 2006, during a manifestation determination, whether the student's conduct subject to disciplinary proceedings was caused by, or had a direct and substantial relationship to, the student’s disability, and
  • Whether the district properly conducted a functional behavioral assessment following the May 2006 disciplinary change of placement.

On April 20, 2006, the student engaged in behavior which resulted in a disciplinary action. The student was suspended on April 24th pending a manifestation determination. On April 26, 2006, the district sent a notice of expulsion hearing scheduled for May 3. On May 2 the district held an IEP team meeting to conduct a manifestation determination. The district determined the behavior subject to the disciplinary action was not a manifestation of the student’s disability. In its consideration, the IEP team applied the standard in IDEA 1997 rather than the standard in IDEA 2004 and current state law. The district is now using updated DPI forms which address current manifestation determination requirements. No corrective action is needed.

When a student with a disability is subject to a disciplinary change in placement such as an expulsion, and the behavior is determined not to be a manifestation of the student’s disability, the student must receive, as appropriate, a functional behavioral assessment (FBA). The IEP team documented its decision that an FBA was not needed following the disciplinary change in placement. The district was not required to conduct an FBA.

The student was readmitted to school on September 4, 2006, following the principal’s determination that the student had met the necessary conditions for early readmission outlined in the expulsion order. The IEP team documented on the September 6, 2006, placement notice that it would reconvene on October 19 to discuss the student’s progress and possible need for a behavior intervention plan following the completion of a functional behavior assessment. Before this could be accomplished, on September 27, the student violated the terms of his early readmission and the expulsion order was reinstated on October 3, 2006. The IEP completed on October 27 includes documentation of the results of a functional behavioral assessment and strategies for addressing behavior concerns. As will be discussed below, the district was required to conduct a second manifestation determination prior to reinstating the expulsion.

  • Whether the district ensured that the required participants were included in IEP team meetings conducted in October 2006.

IEP meetings were held on October 3, October 20, and October 27. The parents chose not to attend the meeting on October 3. All other required participants were in attendance on October 3. All required participants attended the October 20th meeting. On October 27, the parent verbally agreed that the general education teacher and guidance counselor could be excused and the Superintendent could replace the building principal as the LEA representative. Because the student had been expelled and was not participating in the regular education environment, the regular education teacher was not a required participant on October 27. The guidance counselor was not a required participant and could be excused with parent oral agreement. The district included the required participants including an LEA representative, the student’s special education teacher, the student, and the student’s parents on October 27.

  • Whether the district properly determined the student’s educational placement in October 2006.

Following the September 27th behavioral incident, the district determined the behavior was a violation of the student's early reinstatement agreement. The district revoked the student's early reinstatement and again changed the student's placement from the high school to a neutral site. The district did not conduct an IEP team meeting to determine whether the behavior was a manifestation of the student's disability. Special education law requires that the IEP team conduct a manifestation determination within 10 school days of any decision to change the placement of a student with a disability because of a violation of a code of student conduct. The law includes no exception to this requirement based on an earlier manifestation determination and/or expulsion. Because the student had been returned to school and was later subject to another disciplinary change in placement, the district should have conducted a second manifestation determination.

The department recognizes that the discipline requirements in special education law can be complex. Further, the final regulations implementing IDEA 2004 related to these requirements had been issued only a month earlier and were still being analyzed. The special education director, during a break at a conference on October 17, 2006, asked a department consultant whether a manifestation determination is necessary when a student violates an expulsion order and the district reinstates the expulsion. The consultant did not believe a second manifestation determination was required. Following a more complete analysis of the specific facts and law involved in this complaint, it is clear that the consultant's initial reaction was incorrect. The department has shared this decision with all special education consultants. Because the student has graduated, there is no student specific corrective action. Within 30 days of receiving this decision, the district must submit proposed corrective action to the department to ensure the district will conduct a manifestation determination within 10 school days of any decision to change a student’s placement because of a violation of a code of student conduct.

On October 3, 2006, an IEP team meeting was held following the reinstatement of the expulsion order. The parent notified the district on that same day that the student would not be returning to school and requested any future correspondence occur only via the mail. The parents and student did not attend the meeting. An IEP was developed and placement offered at a neutral site. The district admits the IEP mailed to the parent following the October 3rd IEP team meeting did not reflect the IEP developed on that date. Instead, a draft IEP prepared for the originally scheduled annual IEP meeting mistakenly was sent to the parent attached to the correct placement notice. Because the parent was not at the meeting on October 3, she was unaware the IEP mailed to her did not reflect the IEP team decision. The IEP developed on October 27 accurately reflected the IEP developed on October 3 with updates made on October 27 including an appropriate placement decision.

At the parent’s request, an IEP team meeting was held on October 20 to discuss educational options following placement at a neutral site and the parent’s decision not to send the student to the neutral site. A placement notice was developed for a county alternative school and handed to the parent at the end of the meeting. The director of special education, who participated via telephone, believed the notice was provided to the parents as a draft for her files to be given to her when she met the parents at the alternative school later that day. The notice was not marked as a draft. The parent believed this to be a placement offer pending the arrangement of transportation. Following the meeting, the principal and special education administrator were informed that the student was not eligible to attend the alternative program due to the expulsion order. The district then reconvened the IEP team and appropriately revised the IEP to provide educational services at the neutral site.

Errors related to documentation of the October 3rd and October 20th IEP team meetings led to confusion on the part of the parent and other IEP team participants. Within 30 days of the receipt of this decision, the district will propose corrective action to the department regarding how it will ensure the accuracy of notices and other IEP meeting documentation.

  • Whether the district provided required transportation services after October 2006.

The IEP in effect following reinstatement of the student’s expulsion included transportation as a related service. The parent chose to transport the student one way and the district provided transportation home. The parent was informed she could receive reimbursement for transporting the student and how to make a claim for reimbursement. The district afforded required transportation to the student.

  • Whether the district ensured the student received services from properly qualified teaching staff beginning October 2006, and
  • Whether the district properly provided services to the student following a May 2006 disciplinary change in placement so as to enable the student to continue to participate in the general education curriculum and to progress toward meeting IEP goals.

From October 2006 to the end of the school year, the student received services at a neutral site from a licensed general education teacher (Oct.-Dec.), a licensed school social worker who held a substitute teacher license (Dec.-Feb.) and an unlicensed district employee (February through the end of the school year). All instruction the student was to receive at the neutral site was special education. Special education instruction must be provided by a licensed special education teacher.

The student did not receive appropriate special education services from properly qualified teaching staff after October 2006. The student has since graduated with a regular diploma. No student specific corrective action is required. Within 30 days of receiving this decision, the district must submit proposed corrective action to the department to ensure that properly licensed teaching staff provide special education services to students being educated at alternate site settings.

This concludes our review of this complaint.

//signed CST/SJP 7/11/07
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

Dec/pv

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