IDEA Complaint Decision 08-074

On September 2, 2008, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from xxxxx against the Unnamed School District. On July 25, 2008, the complainant requested a due process hearing regarding eight of the issues. The department proceeded in investigating the final three issues of the complaint and issued a decision on November 3, 2008. On October 7, 2008, the hearing officer dismissed the due process hearing without prejudice. As a result, the department proceeded in investigating the remaining issues. This is the department’s decision regarding the remaining eight issues of the complaint. The issues covering the 2007-2008 school year, are addressed in the following pages.

  • Whether the district properly implemented the student’s behavioral intervention plan (BIP);
  • Whether the district properly developed the student’s individualized educational program (IEP), including considering and determining positive behavioral interventions, strategies, and supports;
  • Whether the district properly implemented the student’s IEP regarding provision of related services, supplementary aids and services, program modifications or supports;

The IEP team met on April 14, 2008, to conduct a manifestation determination. Following a review of the student’s records, the team determined the student’s IEP was inadequate because there was no BIP in place and agreed to develop one using the results of a previously conducted functional behavioral assessment (FBA). The team met on April 16 and April 30, 2008, to develop the BIP. The April 30, 2008, meeting was stopped before the BIP was finalized and a partial BIP was attached to the IEP. The district attempted to schedule an additional IEP team meeting in June to complete the BIP, but it was cancelled because the parents could not attend. The district did not attempt to schedule another meeting prior to the 2008-09 school year. The student’s BIP was not completed during the 2007-08 school year. The district failed to properly develop and implement the student’s BIP following the April 14, 2008 manifestation determination meeting.

In the beginning of the 2007-08 school year, the March 2, 2007 IEP was in place. The March 2 IEP did not describe services with the required specificity. For example, special education included independent instruction “per need to complete written work.” Occupational therapy was to be provided with a frequency of “per teacher/student/parent discretion.” Following the March 2 IEP, there were a number of additional changes to the IEP during the 2007-08 school year. On December 14, 2007, the student’s IEP was revised to include frequency of program supports such as “per teacher/student discretion,” “per need,” and “as needed.” The parents and district met on February 6 and 7, 2008, and agreed to a number of changes to the student’s IEP including “limit the amount of alternative assignments (teachers can choose...case manager to collaborate),” “access to computer across all appropriate settings,” and grading based on “content rather than grammar, spelling, and/or writing.” An IEP must specify the amount, frequency, and location of special education services to be provided so that the level of the agency's commitment of resources will be clear to parents and other IEP team participants. Use of terms such as “per need,” “as needed,” “per teacher/student/parent discretion,” and “access across all appropriate settings” did not inform the parents and other IEP team participants of this commitment. The district failed to properly develop the student’s IEP.

The failure to clearly specify the amount and frequency of services to be provided made it difficult to implement the IEP consistently. Some district staff confirmed the student received grades on work the student produced in class, while others stated grading was based on homework completed outside of class. The staff understood the computer access to be provided and had such services available; however, it was not provided when the student said he did not want to use it. District staff were unable to confirm the student’s assignments were graded based solely on content; most staff did not provide alternative assignments because they felt the student had the ability to complete regular assignments. The district failed to properly implement the IEP regarding provision of related services, supplementary aids and services, program modifications, or supports.

  • Whether the district ensured staff responsible for implementing the student’s IEP were informed of their specific responsibilities;

A school district must ensure all responsible teachers and service providers have access to the student’s IEP, are informed of their specific responsibilities related to implementing that IEP, and are aware of the specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP. In the complaint, the parents indicate staff did not receive required information needed to implement the student’s IEP. The parents believed the failure to communicate this information resulted in staff implementing behavior and support strategies inconsistent with those agreed upon by the IEP team and led to student behavior that resulted in disciplinary action by the district.

The district has an established system in place to provide information about student IEPs to the staff responsible for implementation. When a student’s IEP is developed or revised, each staff assigned to work with the student receives a copy of the IEP. The student’s case manager also meets individually with staff to discuss IEP implementation. Information provided by the district supports the finding that this process was used with the student. Staff who worked with the student were familiar with the special education services and supports included in the student’s annual and revised IEPs. Both general and special education staff participated in training activities consistent with the IEP and communicated regularly about the student with the special education teacher and paraprofessional. However, some confusion existed around individual responsibility for implementing some of the IEP services in general education settings including behavioral interventions and academic supports. Staff generally believed the student’s paraprofessional, special education teacher, or the director of special education were responsible for making sure services were provided. The confusion regarding staff responsibility for implementing services was related to the lack of clarity in the development of the IEP, rather than the failure of the district to inform staff of their responsibilities.

  • Whether the district properly changed a student’s placement;

In their complaint, the parents allege the district inappropriately reduced the student’s amount of time in the regular education environment. On December 14, 2007, the IEP team met and determined the student would be removed from regular education and placed in special education for one additional class period. The parent’s requested that the student not be removed. A district must provide written notice to the parents before the public agency proposes or refuses to change the educational placement of the child. The district notified the parents of the IEP team’s decision to change the student’s placement on December 18, 2007. The notice included reasons for denying the parent’s request to keep the student in the regular education environment. The district properly changed the student’s placement.

  • Whether the district ensured the student receive required services after the 10th day of suspension during the school year;

The district must conduct a manifestation determination within ten school days of any decision to change the placement of a student with a disability because of a violation of a code of student conduct. In conducting the manifestation determination, the local education agency (LEA), parent, and relevant members of the IEP team must review all relevant information in the student’s file including the student’s IEP, teacher observations, and relevant information provided by the parents. The team then determines if the conduct in question was caused by or had a direct and substantial relationship to the student’s disability or if the conduct was a direct result of the district’s failure to implement the student’s IEP. If the behavior is a manifestation of the student’s disability, the student must be returned to the placement from which removal occurred, unless the parents and LEA agree to a change of placement.

On April 9, 2008, the district notified the parents of its intent to hold an expulsion hearing on April 15 to consider a possible disciplinary change in placement because of a behavioral incident that occurred on April 8. On April 10, 2008, the parents were invited to an IEP team meeting to review the student’s IEP, conduct a manifestation determination, and consider placement. The meeting was held on April 14, 2008. Both parents attended the meeting.

At the time of the April 14 meeting, the student had served nine and one half days of out of school suspension. The IEP team concluded the behavior resulting in disciplinary action was a manifestation of the student’s disability. During the meeting, the IEP team documented there was no BIP in place and agreed one would be developed with the results of the March 31 FBA. The expulsion hearing was cancelled and the IEP team agreed to reconvene on April 16 to develop a BIP. The student’s removal continued through April 16. The district failed to return the student to the placement from which the removal occurred once it was determined that the behavior was a manifestation of the student’s disability.

After a student with a disability has been removed from his or her current placement for ten school days in the same school year, during any subsequent days of removal the district must provide services to allow the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting IEP goals. In March and April of 2008, the student served 11 ½ days of suspension and services were not provided after the 10th day of suspension. The student served two additional days of suspension during the school year. Both of these days were served as in-school suspensions and the student was provided with required services. The district failed to provide required services to the student during one and one half days during the school year.

  • Whether the district properly afforded the parents an opportunity to participate in IEP team meetings, including scheduling IEP team meetings at a mutually agreed on time and place;
  • Whether the district properly documented IEP team decisions;

An LEA must take steps to ensure that the parents of a child with a disability are present or offered the opportunity to participate at each meeting. Throughout the 2007-08 school year, the IEP team met seven times, and for five of those meetings, the purpose was to review and revise the IEP. The parents received notice and attended every IEP meeting during the 2007-08 school year. The district properly afforded the parents an opportunity to participate in IEP team meetings.

A district must provide written notice to parents a reasonable time before it proposes, refuses to initiate, or changes the identification, evaluation, or educational placement, or the provision of a free appropriate public education to the student. The district reported no changes to the student’s IEP were needed as a result of the meetings on September 21 and 28, 2007. Meetings which resulted in revisions to the IEP occurred on December 14, 2007, and April 16, continued on April 30, 2008. The district properly documented IEP team decisions for these meetings.

After the annual IEP meeting, a LEA may change an IEP without an IEP team meeting if the parent and LEA agree not to convene a team meeting and instead develop a written document to modify the IEP. On February 7 and 8, 2008, the parents and district met about the student’s special education services and agreed to revise the student’s IEP. The meetings were not IEP team meetings. Following the meetings, a document was attached to the student’s IEP. The document did not sufficiently record the agreed-upon revisions to the student’s IEP. The district failed to properly document changes to the student’s IEP.

As a result of the department’s investigation, within 30 days of receiving this decision, the district must submit proposed corrective actions to the department to ensure the following:

  • IEP teams appropriately develop and implement special education and related services to address the needs of students with disabilities. This includes IEP services specify an amount, frequency, and location and are stated so the level of the agency's commitment of resources are clear to parents and other IEP team participants;
  • Students with disabilities receive required services beginning the 11th cumulative day of suspension during a school year and students are returned to the placement from which they were removed when it is determined the behavior was a manifestation of the student’s disability; and
  • IEP team decisions and changes are properly documented.

The district is further directed to reconvene the IEP team to review the student’s academic and behavioral needs and revise the IEP to include special education services, including a BIP, to address those needs. The IEP team must also determine if additional services are necessary due to the district’s failure to develop and implement a BIP and provide needed supplemental aids and services during the 2007-2008 school year and as a result of the district’s failure to provide services to the student following the student’s 10th day of suspension. By January 23, 2008, the district must send the department documentation of the student specific corrective actions including a copy of the student’s updated IEP.

This concludes our review of this complaint.

//signed CST/SJP 12/8/08
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

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