IDEA Complaint Decision 07-086

On November 15, 2007, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Milwaukee Public Schools. This is the department’s decision regarding that complaint. The issue is whether the district, during the 2007-2008 school year, properly determined a student’s placement following a manifestation determination.

On May 8, 2007, the district held an individualized education program (IEP) team meeting to develop an annual IEP including a functional behavioral assessment and behavioral intervention plan and determine placement. On Friday, November 2, 2007, the student was involved in an incident of physical aggression toward staff. The student was suspended on November 5, 6, 7, 8, and 9. A district central office discipline hearing was held on November 9. The student was not expelled and a manifestation determination IEP team meeting was scheduled. On November 12, an IEP team meeting was held to review and revise the student’s IEP including the functional behavioral assessment and behavioral intervention plan, conduct a manifestation determination, and determine placement. The student’s parent participated in the IEP team meeting through a conference call. The team determined the student’s behavior was a manifestation of his disability and that the IEP should continue to be carried out at the student’s current school. The student’s mother was informed during the IEP team meeting that her child could return to the school. However, a school administrator informed the student’s mother that the student could not return to the school until the behavior incident was further evaluated and that the student would be provided services. On November 20, after guidance from the district special education leadership liaison (SELL), the school administrator informed the student’s mother by phone that the student could return to school.

The student was excluded from school on September 20 and 21; October 16 and 17; November 5, 6, 7, 8, 9, 12, 13, 14, 15, 16, 19, 20, and 28; December 12, 13, 14, 20, and 21, 2007; and January 8, 2008. The district electronic student information system (ESIS) incorrectly records the student as unexcused absent on November 12, 13, 14, 15, 16, 19, and 20. However, the student was excluded from school by a school official on these days. Information provided to the department by the district indicates that November 12 through 19 exclusions were a continuation of the suspension resulting from the November 2 incident. State law does not permit suspensions longer than five consecutive days unless the district notifies the parent that it intends to proceed with expulsion. Although the school administrator told the student’s mother he would provide the student services on these days, services were not provided.

November 12 was the tenth cumulative day of removal for the student this school year. The district did not provide the student services on days of removal after the student’s school removals exceeded ten cumulative days during the current school year. Between November 5 and November 20 the student was excluded from school on 12 consecutive days. When a student is excluded more than 10 consecutive days it is a change in placement. The district improperly changed the student’s placement despite the determination that the conduct was a manifestation of the student’s disability. Further, when a removal constitutes a change of placement, an IEP team needs to determine the services. The IEP team did not discuss the services and there is no documentation of services for days of suspension in the student’s IEP.

The district has initiated steps to conduct an IEP team meeting to determine whether compensatory services for days when the student was suspended or otherwise improperly excluded from school and not provided services. By February 29, 2008, the district must provide the department a copy of the IEP documenting the IEP team’s compensatory services determination.

In November, the district SELL promptly provided training to the school administrators to ensure required procedures are properly followed when suspending a student with a disability. By February 29, 2008, the district must review all suspensions of special education students at the school between September 4, 2007, and January 11, 2008, to determine if required procedures were followed and, if not, hold IEP team meetings for each student to determine whether compensatory services for days when the student was suspended or otherwise improperly excluded from school and not provided services. In addition, if necessary, the district must correct each students’ ESIS attendance records and provide the department a copy of the students’ corrected ESIS attendance records by February 29, 2008.

This concludes our review of this complaint.

//signed CST 1/14/08
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

Dec/jfd

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