IDEA Complaint Decision 11-040

On October 3 and 14, 2011, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against Milwaukee Public Schools. This is the department’s decision regarding that complaint. The issues are addressed below.

Did the local educational agency (LEA), beginning October 2010, properly conduct a reevaluation?
A LEA must ensure a reevaluation of each child with a disability is conducted if the LEA determines the educational or related services needs, including improved academic achievement and functional performance, warrant a reevaluation, or if the child’s parent or teacher requests a reevaluation. Each public agency must ensure the child is assessed in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities. In evaluating each child with a disability the evaluation must be sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified. A reevaluation may occur not more than once a year, unless the parent and the public agency agree otherwise and must occur at least once every three years, unless the parent and the public agency agree a reevaluation is unnecessary.

On September 27, 2010, district staff spoke on the phone with the child’s mother and they agreed a reevaluation was not necessary at this time. This was within the three-year time frame. A notice of agreement that a three-year reevaluation was not needed was mailed to the parent. The LEA was not required to conduct a reevaluation because of the agreement with the parent that one was not necessary, and the proper procedural requirements were followed by providing the notice.

Did the LEA, during the 2011-12 school year, properly respond to a request for a reevaluation and a functional behavioral assessment (FBA)?
Within 15 business days of receiving a referral to evaluate a child, or initiating a reevaluation, the individualized education program (IEP) team must complete its review of existing evaluation data and send the child’s parents a request for consent to evaluate, or, if no additional data are needed, notify the parents of that determination. The LEA must obtain informed parental consent prior to conducting any reevaluation of a child with a disability, except such consent need not be obtained if the LEA demonstrates reasonable efforts were made to obtain consent, and the child’s parent failed to respond. Within 60 calendar days of receiving parental consent to evaluate, or informing parents no additional assessment or evaluation data are needed, the LEA must complete its evaluation of the child and determine whether the child is, or continues to be, a child with a disability.

On August 2, 2011, the child’s parent, a parent advocate, the LEA equitable educational opportunities coordinator, and an LEA regional coordinator of specialized services met to resolve issues regarding the child. During this meeting, conducting a reevaluation was discussed, but there was a misunderstanding as to when it would begin. LEA staff believed the parent was requesting a reevaluation to begin in the middle of October 2011 after the child returned to school for the 2011-12 school year. The parent and the parent advocate believed they requested a reevaluation including a FBA and behavior intervention plan (BIP) to be completed by the middle of October 2011.

On September 14, the parent advocate submitted an Individuals with Disabilities Education Act (IDEA) complaint to DPI stating the LEA agreed to schedule by the middle of October 2011 an IEP team meeting to evaluate the child and conduct a FBA and revise a written BIP. On October 13, the parent advocate also contacted LEA staff regarding the August 2 request for a reevaluation, FBA, and BIP for the student. In response, on October 19, the LEA initiated a reevaluation and sent the child’s parent a notice of reevaluation. The review of existing data was completed within 15 days, and on November 3, the child’s parent provided the LEA consent for testing. An IEP team meeting to determine continued eligibility, to conduct an FBA and to develop a BIP is scheduled for December 15, which is within 60 days of receipt of consent. Given the confusion over when the reevaluation was to begin, the department determines the LEA under the unique facts of this case properly responded to the parent’s request for a reevaluation and a FBA and followed the applicable timelines.

Did the LEA, beginning October 2010, properly develop an IEP that addressed the student’s needs?
In developing each child’s IEP, the IEP team must consider the strengths of the child, the concerns of the child’s parents for enhancing the education of their child, the results of the most recent reevaluation of the child, and the academic, developmental, and functional needs of the child. In the case of a child whose behavior impedes the child’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.

On October 14, 2010, an IEP team meeting was conducted to review and revise the child’s IEP and determine continued placement. The IEP team discussed and documented the child’s strengths, parent concerns, and the individualized needs of the child. The IEP team determined the child’s behavior impedes his learning and that of others, and noted this when describing the child’s present level of functional performance and listed it as a special factor. The IEP team discussed and included the following positive behavioral interventions and supports in the child’s IEP: Verbal praise; pizza rewards; and W.I.N. (What Incredible News) tickets. The IEP includes English/language arts, mathematics, and a behavioral goal. The team determined the student would receive special education services five hours five times a week in a special education classroom at the child’s current school beginning October 14. However the parent was not provided the notice of placement until October 19.

On January 6, 2011, an IEP team meeting was conducted to review and revise the child’s IEP and to conduct a manifestation determination. The child and the child’s parent participated in the IEP team meeting. The IEP team reviewed the student’s IEP and considered the required information, but no revisions were made except for an increase in the amount of time the student would receive special education services in the special education classroom. The placement notice states the IEP was developed on December 13, 2010, and would be implemented on October 27. These were clerical errors.

On January 25, 2011, the district conducted another IEP team meeting, to review and revise the child’s IEP and to conduct a manifestation determination. The child’s parent participated in the meeting. The team determined the child would receive special education services six hours one time per day in a special education classroom at a behavioral reassignment school beginning January 31, 2011. On February 10, 2011, an IEP team meeting was conducted at the new school. The February 10 IEP does not include any behavioral interventions although behavior was identified as a special factor and the student was assigned to the school because of his behavioral needs. The team determined the child would receive special education services six hours one time per day in a special education classroom continuing at the child’s behavioral reassignment school.

In developing the IEPs in October 2010 and January 2011, the IEP team properly reviewed and considered the required information to address the child’s needs. However, the October 14, 2010 IEP notice of placement was not provided to the parent before the IEP was implemented and the January 6 IEP includes incorrect dates which are clerical errors. The IEP developed in February does not identify positive interventions, supports, and strategies even though behavior was identified as a special factor. By January 13, 2012, the district must conduct an IEP team meeting to develop behavioral interventions, supports, and strategies to address the student’s current behavior concerns, to consider compensatory services for failure to address the student’s behavior, and to submit a copy of the IEP to the department by January 20, 2012. By February 1, 2012, the LEA must provide the special education staff at the child’s 2010-11 MPS elementary school of attendance training on the development of behavioral interventions, supports and strategies and providing parents timely notice of placement. The LEA must submit the training agenda and training documents to the department for review and approval prior to the training. In addition, by February 14, 2012, the LEA must submit to the department a training sign-in list for the special education staff who participate in the training and documentation of individual training provided staff unable to participate in the training.

Did the LEA, beginning October 2010, properly implement the student’s IEP?
A school district must provide each child with a disability a 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.

Since the beginning of the 2011-12 school year, the child attends a day treatment program. On September 9, 2011, a district special education supervisor reviewed the child’s February 10, 2011, IEP and determined the IEP would be implemented at the school the child would attend if nondisabled. Although the child’s IEP states the child would receive special education services six hours one time per day in a special education classroom, the child only attends school from 12:00 p.m. to 2:30 p.m. each day. From 8:00 a.m. to 11:30 a.m. each day the child is at a private day treatment program. This day treatment program is not part of the child’s IEP. Consequently, the child’s current IEP could not have been implemented as written, and the district should have reconvened the IEP team to revise the IEP.

The district is directed to conduct an IEP team meeting to consider whether the child should receive compensatory services due to a failure to review and revise the IEP after the student began attending the day treatment program. By January 20, 2012, the district must send the department a copy of the child’s IEP with the consideration of compensatory services documented.

Did the LEA, beginning October 2010, properly follow the required special education discipline procedures?
An LEA must determine whether disciplinary removals are a change of placement. The LEA determines whether a pattern of removals constitutes a change of placement on a case-by-case basis. If the LEA determines the disciplinary removals do not constitute a change of placement, the LEA must provide educational services after the 10th day of removal as determined by school personnel in consultation with at least one of the student’s teachers. The LEA, the parent, and relevant members of the student’s IEP team must conduct a manifestation determination within 10 school days of any decision to make a discipline change of placement of the student. If the student’s conduct is determined to be a manifestation of the student’s disability, the IEP team must conduct an FBA, unless one had been conducted before the behavior that resulted in the change of placement occurred, and implement a BIP. If the student’s conduct is determined not to be a manifestation of the student’s disability, and a BIP has already been developed, the IEP team must review it and modify it as necessary to address the student’s behavior that resulted in the change of placement. If the student’s conduct is determined to be a manifestation of the student’s disability, the IEP team must return the student to the placement from which the student was removed unless the parent and the LEA agree to a change of placement as a part of the modification of the BIP. On the date on which the decision is made to make a removal that constitutes a change of placement of a student with a disability because of a violation of a code of student conduct, the LEA must notify the parents of the decision and provide the parents the procedural safeguards notice. If the student’s placement is changed, the IEP team must determine the special education placement for the student.

On December 16, 2010, the child was involved in a behavior incident, which included hitting another child, and was suspended for five days. On December 17, 2010, the child’s days of removal exceeded 10 cumulative days. The child’s special education teacher and a school administrator determined what services would be provided during the disciplinary removals. However, interviews with former school staff and the child’s parent indicate the special education teacher did not provide the required services. On January 4, 2011, a central office discipline hearing was conducted, and it was determined the child’s behavior was substantiated and the child could face expulsion. On January 6, a manifestation determination was conducted. The manifestation determination was conducted within 10 school days of the central office discipline hearing decision to make a discipline change of placement of the student. The IEP team determined the child’s behavior, which was subject to disciplinary action, was not a manifestation of the child’s disability. The IEP team reviewed the child’s BIP but determined no revisions were required. The IEP team also determined the student’s placement should be changed to a different elementary school.

On January 13, 2011, the child was involved in another behavior incident, and was suspended for four days. The child’s special education teacher and a school administrator determined the services to be provided. These services, however, were also not provided during the disciplinary removals. On January 19, a central office discipline hearing was conducted, and it was determined the child’s behavior was substantiated and the child could face expulsion. The parent was not provided a copy of the procedural safeguards notice when a decision was made to make a disciplinary change of placement. On January 25, a manifestation hearing was conducted, which was within the required 10 school days of the central office discipline hearing. The IEP team determined the child’s behavior, which was subject to disciplinary action, was a manifestation of the child’s disability. The IEP team also determined the child’s placement would be changed to a behavioral reassignment school, even though the parent did not agree with this decision.

The district did not follow all of the required special education discipline procedures when it did not provide the required services after the 10th day of removal, failed to provide a copy of the procedural safeguards notice, and changed the student’s placement without parent agreement even though the behavior was a manifestation of the child’s disability. The district is directed to conduct an IEP team meeting to determine whether the child should receive compensatory services due to a failure to provide services during the disciplinary removals in December 2010 and January 2011. By January 20, 2012, the district must send the department a copy of the child’s IEP with the consideration of compensatory services documented. In addition, by February 1, 2012, the district is directed to provide all special education, family services, central office discipline hearing officers, and school building administrative staff training on how to properly follow the required special education discipline procedures. The LEA must submit the training agenda and training documents to the department for review and approval prior to the training. In addition, by February 14, 2012, the LEA must submit to the department a training sign-in list for the staff who participate in the training and documentation of individual training provided staff unable to participate in the group training. Following the training, DPI will conduct current compliance activities.

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. You may contact Janice Duff, Special Education Team, at (414) 227-1845 if you have any questions about this decision or for technical assistance.

//signed CST 12/2/2011
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