IDEA Complaint Decision 07-027

On March 26, 2007, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Kenosha Unified School District. This is the department’s decision regarding that complaint. The issues are whether the district, between March 26, 2006, and March 26, 2007, followed required procedures when disciplining a child with a disability and, between October 2006 and March 26, 2007, properly implemented the student’s behavior intervention plan (BIP).

On February 2, 2006, the student’s parent referred the student for a special education evaluation. On March 27, 2006, the district held an individualized education program (IEP) team meeting to conduct an evaluation, determine eligibility, develop an annual IEP, and determine placement. The IEP team determined the student was a child with a disability and the IEP was implemented beginning April 3, 2006. The student’s parents participated in the IEP team meeting. District "Critical Behavior Incident Referral" forms provided by the parents and district records document the student was sent home from school for discipline reasons 47.5 days between September 19, 2005, and June 8, 2006. Removals exceeded a total of ten cumulative school days during the 2005-06 school year on October 23, 2005.

A student who has not been determined eligible for special education is entitled to protection of special education law when the district had knowledge the student was a child with a disability prior to the behavior that precipitated the disciplinary action. The district is deemed to have knowledge when the student’s parent requested a special education evaluation on February 2, 2006. On February 2, 2006, the student had been removed for 17.5 days during the 2005-2006 school year. On February 8, when the student’s behavior precipitated disciplinary measures, the district needed to provide the student the protections of special education law, including the protections relating to discipline.

Beginning on the 11th cumulative school day of removal in a school year, and during subsequent removals, the district must provide services to the extent necessary to enable the student to continue to participate in the general curriculum, although in another setting, and to progress toward meeting goals set out in the child’s IEP. The decision about the necessary services is made by school personnel, e.g., the school principal or other administrator in consultation with at least one of the child's teachers. School personnel determine where the services will be provided. The services may vary depending on the needs of the child and the length of the removal. There is no record of school personnel determining necessary services or of any services provided to the student between February 9 and March 26, 2006, on days of removal. After March 27 when the student was determined to be a child with a disability, the student’s special education teacher provided services as required.

On August 14, 2006, an IEP team meeting was held to conduct a functional behavioral assessment (FBA), develop a BIP, and review and revise the student’s IEP. During the 2006-2007 school year, the student was sent home from school for discipline reasons 19 days between September 2006 and March 26, 2007. On December 20, 2006, an IEP team meeting was held to review and revise the student’s IEP adding more behavioral interventions. On January 22, 2007, the student’s behavior precipitated disciplinary measures which resulted in removals that exceeded a total of ten cumulative school days during the 2006-2007 school year. On January 25, within ten business days of January 22, an IEP team meeting was held to conduct a manifestation determination and review and revise the students IEP including the student’s FBA and BIP. The team agreed the student’s IEP was implemented, and the student’s behavior was a manifestation of his disability. The IEP team returned the student to his placement. On February 2, 2007, an IEP team was held to conduct a FBA and revise the student’s BIP. On February 21, 2007, an IEP team meeting was held to develop the student’s annual IEP and determine placement. The student’s placement was changed to a small school with a more structured setting. The student’s parents participated in all the IEP team meetings. The district provided the student services on days of removal after January 23, 2007, when the student’s school removals exceeded ten cumulative days. During the 2006-2007 school year, the district followed required procedures when disciplining a child with a disability and, between October 2006 and March 26, 2007, properly implemented the student’s BIP.

By July 20, 2007, the district must conduct an IEP team meeting to determine whether the student needs additional services as a result of not receiving services on days of disciplinary removals between February 9 and March 26, 2006. The district is deemed to have had knowledge when the student’s parent requested a special education evaluation on February 2, 2006. The district must submit a copy of this IEP to the department by July 30, 2007. In addition, the corrective action plan for this complaint must include district-wide training to be conducted by September 30, 2007, for school district administrative and special education staff on discipline requirements. The training must ensure building staff provide services and the protections of special education law to students when the district is deemed to have knowledge the student is a child with a disability. The corrective action plan describing this district-wide staff training must be sent to the department for approval by July 30, 2007.

This concludes our review of this complaint.

//signed 6/15/07
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