IDEA Complaint Decision 10-041

On June 1, 2010, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Elmbrook School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2009-2010 school year, provided the parent with a copy of the procedural safeguards notice, properly determined services for a student with a disability, and properly considered positive behavioral interventions, strategies, and supports to address behavior impeding learning.

On February 11, 2010, the student was suspended for five school days for a violation of the student code of conduct. On February 16, 2010, the district notified the parent and the student of its intent to expel the student. The individualized education program (IEP) team met on February 23 and determined the behavior was not a manifestation of the student’s disability. On February 26, the district presented the parent with an agreement stating if they withdrew their child from the district the district would not proceed with expulsion. The parent then withdrew the student from the district. The parent attempted to enroll the student in neighboring districts but was unable to do so because it was outside the open enrollment period. The student received no educational services from February 16, 2010 until he reenrolled in the district in April 2010.

The parent took the student back to school on April 16, and he was reenrolled on April 19. On April 22, the district conducted an IEP team meeting. The IEP team determined the student’s course of study and special education services would be provided at a neutral site. The IEP was implemented at the neutral site on April 23. The district then decided to proceed with the expulsion and the student was expelled on May 3, and the student received services.

On the date on which the decision is made to make a removal that constitutes a change of placement of a child with a disability because of a violation of a code of student conduct, the district must notify the parents of that decision and provide the parents the procedural safeguards notice. Expulsion is a removal that constitutes a change of placement. Though the district provided the parent with a copy of the procedural safeguards notice at the manifestation determination, the district failed to provide the parent with a copy of the notice when the district notified the parent and the student of its intent to expel the student.

A free appropriate public education (FAPE) must be available to all children between the ages of 3 and 21, including children with disabilities who have been suspended or expelled from school. A school district meets its obligation to provide FAPE to a child with a disability, in part, by providing special education and related services. After the agreement was signed, the student continued to reside in the school district. The parent did not place the student in a private school or provide a home-based private educational program. Under the circumstances of this case, the district’s responsibility for providing FAPE continued, and the district failed to properly determine and make available services for the student from February 26 through April 22, 2010.

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, supports and other strategies to address that behavior. At the April 22 IEP meeting, the team determined the student’s behavior impeded his learning or that of others, and included in the IEP positive behavioral interventions, strategies, and supports such as minimizing distractions, preferential seating, praise and encouragement, nonverbal cues/prompts to refocus, and clear expectations. The district properly considered positive behavioral interventions, strategies, and supports to address behavior impeding learning.

Within 30 days of the date of this decision, the district must submit a proposed corrective action plan (CAP) to the department for approval prior to implementation. The CAP must ensure the district provides the parent with a copy of the procedural safeguards notice on the date on which the decision is made to make a removal that constitutes a change of placement because of a violation of a code of student conduct and properly determines services for students with disabilities who are suspended or expelled. The district must also convene an IEP team meeting to determine compensatory services for the student for the period from February 26 to April 22, when the student did not have access to FAPE.

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/SJP 7/29/10
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

Dec/cms

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