IDEA Complaint Decision 10-018

On March 9, 2010, 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 issues are addressed below.

  • Whether the district, during the 2008-2009 and 2009-2010 school years, properly developed an individualized education program (IEP) that addressed the student’s needs in the area of behavior.

In the case of a student whose behavior impedes the student’s learning, or that of others, an IEP team must consider the use of positive behavioral interventions and supports and other strategies to address that behavior. The April 23, 2009 IEP team meeting notice and cover page included the completion of a functional behavioral assessment (FBA) and development of a behavior intervention plan (BIP) as purposes of the meeting. Only the FBA was completed during the meeting. The student and the student’s parent participated in the IEP team meeting. The present level of academic achievement, functional performance, and special factors indicate the student’s behavior impedes his learning and that of others. The only positive behavioral interventions and supports and other strategies listed to address his behavior are “continuous encouragement and alternative assignments.” The IEP team did not complete a BIP even though the number of student suspensions was significant. The only positive behavioral interventions and supports and other strategies listed were too vague to address the student’s needs in the area of behavior.

On February 5, 2010, the district conducted an IEP team meeting at which they reviewed and revised the student’s IEP, conducted a manifestation determination, determined placement, and developed a BIP which included positive behavioral interventions and supports and other strategies to address the student’s behavior. The student, the student’s parent, and a parent advocate participated in the IEP team meeting. On February 5, 2010, the district properly developed an IEP that addressed the student’s needs in the area of behavior.

Within 30 days, the district must submit a proposed corrective action plan to ensure, in the case of a student whose behavior impedes the student’s learning or that of others, an IEP team properly considers the use of positive behavioral interventions and supports and other strategies to address that behavior.

  • Whether the district properly implemented the student’s April 23, 2009 IEP regarding provision of special education during the 2009-2010 school year.

A school district must provide each child with a disability 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. The amount of time to be committed to each of the various services to be provided must be appropriate to the specific service and stated in the IEP in a manner clear to all who are involved in both the development and the implementation of the IEP.

The student’s April 23, 2009, IEP described special education services to be provided between April 23, 2009, and April 22, 2010, and stated the student would receive 45 minutes per day of specialized instruction in reading and writing and 45 minutes per day of specialized instruction in math in the special education classroom, for a total of 90 minutes per day.

Class schedules at the school follow a block schedule consisting of four 90-minute periods between 8:35 AM and 3:45 PM. During the first semester of the 2009-2010 school year, the student received specialized instruction in math five days a week, 90 minutes a day, in a special education classroom. The student was in a regular education English class, and school staff expected he would also receive 45 minutes per day specialized instruction in reading and writing in a special education resource room to help with his regular education assignments during the English class time. There is no evidence the student was provided 45 minutes per day specialized instruction in reading and writing in the special education classroom during the 90-minute English class or at another time during the school day. The student received a total of 90 minutes per day specialized instruction in a special education classroom. However, the 90 minutes of specialized instruction was 90 minutes of math instruction, not 45 minutes of math instruction and 45 minutes of instruction in reading and writing, as stated in the student’s IEP.

Within 30 days, the district must provide the department a corrective action plan to ensure all IEPs are properly implemented within the high school’s block schedule of classes. The district is directed to conduct an IEP team meeting to determine whether the student should receive compensatory services due to a failure to implement the student’s IEP. By June 10, 2010, the district must send the department a copy of the student’s IEP with the consideration of compensatory services documented. In addition, the district is directed to review the current IEPs, instruction provided, and class schedules of all students with disabilities at the student’s September 2009 high school of placement to ensure all students’ IEPs were properly implemented during the 2009-2010 school year. If any students’ IEPs were not being implemented, the district must adjust the student’s instruction and class schedule, if needed, to implement the IEP and conduct an IEP team meeting to determine if the student should receive compensatory services. In addition, the district must review the IEPs and class schedules for all students with disabilities for the 2010-2011 school year to ensure special education services can be provided as described in the IEPs in the high school block schedule. By June 25, 2010, the district must send to the department an assurance all IEPs and student class schedules have been reviewed and, if necessary, IEP team meetings conducted to determine if additional services are needed.

  • Whether the district, during the 2008-2009 and 2009-2010 school years properly followed special education discipline requirements.

The department is required to investigate alleged violations that occurred up to one year prior to the date a complaint is received. During the 2008-2009 school year, when the student was suspended between March 9 and June 10, 2009, the student’s special education teacher and a school administrator determined the student's removals did not result in a pattern that is a change of placement, and determined services to enable the student to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child’s IEP. The services described on the student’s “Educational Services Plan of Provision” indicate services were made available on specific dates from 4:00 p.m. to 7:00 p.m.

During the 2009-2010 school year, the student was suspended between September 4, 2009, and February 3, 2010, for a total of 18 school days. On January 6, the student’s days of removal exceeded 10 cumulative days. The student’s special education teacher and a school administrator determined the removals did not result in a pattern that was a change of placement, and determined services to enable the student to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child’s IEP. The services described on the student’s “Educational Services Plan of Provision” indicate services were made available January 6 and 7 from 4:00 p.m. to 7:00 p.m.

On January 28, the student was involved in a behavior incident, which included possession of marijuana, in school. The student was suspended for five days. The student’s special education teacher and a school administrator determined the removals did not result in a pattern that was a change of placement, and determined services to enable the student to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child’s IEP. The services described on the student’s “Educational Services Plan of Provision” indicate that services were made available during the period of removal. On February 3, a central office discipline hearing was conducted, and it was determined the student’s possession of illegal drugs, marijuana, was substantiated. On February 5, an IEP team meeting was conducted to review and revise the student’s IEP, conduct a manifestation determination, develop a BIP, and determine placement. The IEP team determined the student’s behavior, which was subject to disciplinary action, was not a manifestation of the student’s disability. In addition, the IEP team determined the student’s placement should be changed to an alternative school and did not recommend an expulsion hearing be conducted. The IEP team also recommended the student be reevaluated by an IEP team and a new annual IEP, along with a FBA and BIP, be developed to address parent concerns and the student’s needs.

For disciplinary changes in placement that would exceed 10 consecutive school days, if the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child’s disability, the district may apply relevant disciplinary procedures to students with disabilities in the same manner, and for the same duration, as the procedures would be applied to students without disabilities. The student must continue to receive educational services to allow the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student’s IEP. The student must also receive, as appropriate, a FBA, and behavior intervention services and modifications designed to address the behavior violation so that it does not reoccur. During the 2009-2010 school year, the district properly followed special education discipline requirements.

All noncompliance identified above must be corrected as soon as possible, but in no case more than one year from the date of this decision. This concludes our review of this complaint.

//signed CST 5/6/10
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