IDEA Complaint Decision 00-068

On December 12, 2000, a complaint was filed with the Department of Public Instruction by XXXXX against the Weyauwega-Fremont School District. This complaint alleges a violation of special education law regarding the implementation of programs for children with disabilities.

Pursuant to 34 CFR 300.660-662 of the regulations implementing the Individuals with Disabilities Education Act (IDEA) and 115.762(3)(g) and 115.90(1), Wis. Stats., the Department of Public Instruction investigated this complaint. In investigating a complaint, the department reviews a district's compliance with state and federal requirements. In investigating this complaint, department staff reviewed materials provided by the complainant, portions of the child's education records, the district's written response to the complaint, and phone interviews with the complainant and district.

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ISSUE:

the district fail to provide a free appropriate public education to a child with a disability following his suspension from school on October 12, 2000, and his expulsion by the district on November 2, 2000?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

In this subchapter:

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(7) "Free appropriate public education" means special education and related services that are provided at public expense and under public supervision and direction, meet the standards of the department, include an appropriate preschool, elementary or secondary school education and are provided in conformity with an individualized education program.

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Section 115.77, Wisconsin Statutes
Local educational agency duties.

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(1m) A local educational agency shall demonstrate to the satisfaction of the division that it does all of the following:

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(b) Makes available a free appropriate public education to children with disabilities as required by this subchapter and applicable state and federal law.

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Section 115.78, Wisconsin Statutes
Individualized education program team; timeline.

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(2) DUTIES OF TEAM. The individualized education program team shall do all of the following:

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(b) Develop an individualized education program for the child under 115.787.
(c) Determine the special education placement for the child under 115.79.

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Section 115.79, Wisconsin Statutes
Educational placements.

Each local educational agency shall ensure that all of the following occur:

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(2) An educational placement is provided to implement a child's individualized education program. * * *

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34 CFR 300.121 Free appropriate public education (FAPE).

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(d) FAPE for children suspended or expelled from school. (1) A public agency need not provide services during periods of removal under 300.520(a)(1) to a child with a disability who has been removed from his or her current placement for 10 school days or less in that school year, if services are not provided to a child without disabilities who has been similarly removed.
(2) In the case of a child with a disability who has been removed from his or her current placement for more than 10 school days in that school year, the public agency, for the remainder of the removals, must--
(i) Provide services to the extent necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child's IEP, if the removal is--

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34 CFR 300.520 Authority of school personnel.

(a) School personnel may order--
(1)(i) To the extent removal would be applied to children without disabilities, the removal of a child with a disability from the child's current placement for not more than 10 consecutive school days for any violation of school rules, and additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change of placement under  300.519(b));
(ii) After a child with a disability has been removed from his or her current placement for more than 10 school days in the same school year, during any subsequent days of removal the public agency must provide services to the extent required under 300.121(d);

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix A, Question 31

31. Must the public agency ensure that all services specified in a child's IEP are provided?

Yes. The public agency must ensure that all services set forth in the child's IEP are provided, consistent with the child's needs as identified in the IEP.

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FINDINGS OF FACT:

The student whose education is the subject of this complaint is a child with a disability who resides in the district. On October 12, 2000, the student was suspended from school as a result of possessing marijuana on school premises. An individualized education program (IEP) team meeting was scheduled and held on October 25, 2000, and a manifestation determination was conducted. The IEP team determined that the behavior was not related to the youth's disability. The district then proceeded with an expulsion hearing and the student was expelled on November 2, 2000.

On October 31, 2000, prior to the expulsion hearing, a three-year reevaluation meeting was held. The student, his foster parents, and the complainant, a social worker, were present at this meeting. The child's legal guardian is a social worker for Iowa County. After determining that the student continues to be a child with a disability, the IEP team completed an IEP to be implemented when an appropriate setting could be found and when the district could find a certified teacher to implement the IEP. The IEP team did not make a placement determination. IEP team meetings were scheduled for November 20, 2000, and November 27, 2000. The director of pupil services for the district canceled both meetings because a certified teacher had not been found. Following the manifestation determination, the district suspended the student an additional five school days while awaiting the expulsion hearing. Between October 27, 2000, the eleventh day of suspension for the school year, and January 3, 2001, the district did not provide special education services to the student. On December 21, 2000, an IEP team meeting was held to complete the student's IEP and determine placement. The IEP and placement indicate the youth will receive special education instruction at the local library three days per week for four hours per day; twice the amount of time originally discussed in order to make up for days when services were not provided. A teacher has been hired to work with this student in consultation with his special education teacher. Instruction began on January 3, 2001.

CONCLUSION:

A school district must provide a free appropriate public education (FAPE) to each child with a disability. In order to provide a child with a FAPE, a district must, in part, provide special education and related services consistent with the child's IEP. In addition, the services provided by a district must meet the requirements of the statutes and rules enforced by the department, including those related to the suspension and expulsion of pupils.

Under state law, a child with a disability may be suspended for up to five days or, for up to fifteen consecutive days if a notice of expulsion has been sent to the child's parents; and before the suspension extends to the point that it would constitute a change of educational placement, the district determines that the behavior which led to the suspension is not a manifestation of the child's disability. Under state and federal special education law, school personnel generally may order removal of a child with a disability from the child's current placement for not more than ten consecutive school days for any violation of school rules, if nondisabled children would be subject to removal for the same offense. A district need not provide services to a child with a disability for the first ten school days of disciplinary removal during a school year, if services are not provided to nondisabled children during such removals. A district may expel a child with a disability following a determination that the behavior which lead to the expulsion is not a manifestation of the child's disability. However, during the period of expulsion the district must provide services to the child to the extent necessary to enable the child to progress appropriately in the general curriculum and appropriately advance toward achieving the goals in the child's IEP.

Following the child's suspension on October 12, 2000, the district was obligated to provide services for the student beginning on the eleventh day of his suspension, which was October 27, 2000. The district failed to provide services to the child, as required in his IEP, after this date. Following the child's expulsion, the district failed to provide services to the child until January 3, 2001. The district failed to correctly implement the law relating to this issue.

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DIRECTIVE:

While the Weyauwega-Fremont School District has now hired a teacher to provide services consistent with this student's IEP, the district shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that the district continues to provide FAPE to all students with disabilities when removed from school for more than ten days in a school year, including expulsion periods.

The CAP should ensure that IEP teams do not develop IEPs that delay or deny FAPE. In this case, the student's October 31, 2000, IEP was written to be implemented only when a teacher could be hired, denying the student FAPE in the meantime.

Finally, the IEP provides additional instructional time to compensate for lost instructional time. The district appears to have addressed the issue of compensatory services and is therefore not directed to take further action in this regard.

The CAP shall include the activities the district will undertake to implement the directives, the personnel responsible for each activity, the date by which each activity will be completed, and the type of documentation that will be submitted to the department as evidence of completion of each activity. If a CAP requires the district to develop one or more products, the district may submit the product(s) as part of the corrective action plan. The CAP will be reviewed and the district will be informed if any revisions are required. The district will implement the CAP after the department has approved it.

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This concludes our investigation of this complaint. This letter is not intended, and should not be construed, to cover any other issues regarding compliance with the IDEA or Chapter 115, Wisconsin Statutes, which may exist and which are not specifically discussed herein. Under the Wisconsin public records law, 19.31-19.39, Wisconsin Statutes, it may be necessary to release this document and related correspondence and records upon request.

signed MJT
3/15/01
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Mike J. Thompson, Assistant Superintendent
Division for Learning Support: Equity and Advocacy

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