IDEA Complaint Decision 99-006

On January 28, 1999 (letter dated January 25, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Greenfield School District. The complainants alleged violations of state and federal laws regarding the district's implementation of programs for children with disabilities. Specifically, it is alleged that (1) the district failed to provide the child special education and related services through modification of curriculum and assistive technology consistent with the child's current IEP during the 1998-99 school year; (2) improperly suspended their child from transportation from November 18, 1998; and (3) improperly refused to include adaptive PE classes in their child's IEP at the February 28, 1998, IEP team meeting. Allegations (1) and (3) are being held in abeyance, and this investigation will be limited to allegation (2).

Pursuant to 34 CFR 300.660-662 of the regulations implementing the Individuals with Disabilities Education Act (IDEA) and ss. 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 conducting this investigation, department staff interviewed the parent in person. Department staff interviewed the following staff from Maple Grove Elementary School: the psychologist/case manager, the principal, the CD teacher, and the speech clinician; department staff interviewed the following staff from Greenfield Middle School: the assistant principal, the CD teacher, and the speech clinician.

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ISSUE:

Did the district improperly suspend the child from transportation from November 18, 1998?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes (Effective May 1, 1998)
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 (Effective May 1, 1998)
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 115.787, Wisconsin Statutes (Effective May 1, 1998)
Individualized education programs.

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(1) REQUIREMENT THAT PROGRAM BE IN EFFECT. At the beginning of each school year, each local educational agency shall have in effect, for each child with a disability, an individualized education program.

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Wisconsin Statutes, Section 120.13
School board powers.

The school board of a common or union high school district may * * *:
(1) SCHOOL GOVERNMENT RULES; SUSPENSION; EXPULSION. (a) Make rules * * * pertaining to conduct and dress of pupils in order to maintain good decorum and a favorable academic atmosphere * * *
(b) The school district administrator or any principal or teacher designated by the school district administrator also may make rules, with the consent of the school board, and may suspend a pupil for not more than 5 school days or, if a notice of expulsion hearing has been sent under par. (c)4. or (e) 4. or s. 119.25(2)(c), for not more than a total of 15 consecutive school days for noncompliance with such rules or school board rules, or for knowingly conveying any threat or false information concerning an attempt or alleged attempt being made or to be made to destroy any school property by means of explosives, or for conduct by the pupil while at school or while under the supervision of a school authority which endangers the property, health or safety of others at school or under the supervision of a school authority or endangers the property, health, or safety of any employee or school board member of the school district in which the pupil is enrolled. Prior to any suspension, the pupil shall be advised of the reason for the proposed suspension. The pupil may be suspended if it is determined that the pupil is guilty of noncompliance with such rule, or of the conduct charged, and that the pupil's suspension is reasonably justified. The parent or guardian of a suspended minor pupil shall be given prompt notice of the suspension and the reason for the suspension. The suspended pupil or the pupil's parent or guardian may, within 5 school days following the commencement of the suspension, have a conference with the school district administrator or teacher in the suspended pupil's school. If the school district administrator or his or designee finds that the pupil was suspended unfairly or unjustly, or that the pupil suffered undue consequences, or penalties as a result of the suspension, reference to the suspension on the pupil's school record shall be expunged. Such finding shall be made within 15 days of the conference. A pupil suspended under this paragraph shall not be denied the opportunity to take any quarterly, semester, or grading period examinations or to complete course work missed during the suspension period, as provided in the attendance policy established under s. 118.16(4)(a).

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Wisconsin Administrative Code, Section PI 11.01 (Repealed October 1, 1998)
Purpose.

(1) LEGISLATIVE INTENT. The legislature recognized that many children and youth, 3 to 21 years of age, have not experienced appropriate educational opportunities because comprehensive services were not available through all public schools which were commensurate with their EEN. Subchapter V, ch. 115, Stats., was enacted to ensure the identification of such needs and the development of services for children to appropriately serve these needs. School districts shall provide children with EEN who have attained the age of 3 with a free appropriate public education in accordance with this chapter.

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Wisconsin Administrative Code, Section PI 11.02 (Repealed October 1, 1998)
Definitions.

In this chapter:

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(20) "Free appropriate public education" or "FAPE" means special education and related services which:

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(b) Meet the statutes and rules enforced by the department; and (c) Are provided in conformity with a child's IEP.

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34 CFR 300.8 Free appropriate public education.

As used in this part, the term "free appropriate public education" means special education and related services that--

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(d) are provided in conformity with an IEP that meets the requirements of ss. 300.340-300.350.

ADMINISTRATIVE & JUDICIAL INTERPRETATIONS:

U.S. Department of Education, Office of Special Education Programs (OSEP) Memorandum 95-16, April 26, 1995, 22 IDELR 531.

A series of short-term suspensions in the same school year could constitute a change in placement. Factors such as the length of each suspension, the total amount of time that the student is excluded from school, the proximity of the suspensions to each other, should be considered in determining whether the student has been excluded from school to such an extent that there has been a change in placement. This determination must be made on a case-by-case basis.

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Department of Public Instruction, Learning Support: Equity and Advocacy Information Update Bulletin No. 94.10, August 1994

5. Is there a limit on the total number of days a pupil with EEN may be suspended during the school year?

Yes. While the law does not establish a limit by stating a particular number of cumulative days of suspension permitted during a school year, there are limitations with regard to a district's ability to suspend a child with EEN. A series of short suspensions may create an exclusionary pattern that constitutes a significant change in placement. If a series of suspensions creates such a pattern of exclusion, the district has denied the child a free appropriate public education (FAPE) in violation of state and federal law.

6. How may a district ensure that it does not deny FAPE to a child with EEN through a pattern of suspensions that exclude the child?

A district should take steps to ensure the child's educational program addresses his or her unique needs, including educational interventions to address inappropriate behaviors arising from the child's disability. If a pattern of disciplinary suspensions emerges, then the district should review the child's IEP and placement offer. The department recommends that the district conduct an IEP meeting no later than the child's seventh cumulative day of suspension during the term of the current IEP. The department recommends that the board representative at the meeting be someone other than the individual issuing the suspensions.

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13. Are short-term suspensions from the school bus counted when determining whether a series of suspensions may result in a significant change in placement?

If the suspension from the school bus is a suspension from the district's entire transportation system that results in the child not being able to receive special education and related services, then the suspension from the bus would be counted. If the district suspends the child from the bus, but provides alternative transportation, then the suspension would not be counted. Alternative transportation provided by the district may include transportation provided by a child's parent under contract to the district, or other contracted transportation services.

Opinion of the Attorney General; Letter to Dr. Barbara Thompson, State Superintendent, October 17, 1974

There is little doubt that school boards * * * have the authority to promulgate rules governing the behavior of students riding school busses, and in the case of public school students, to provide that such misbehavior might result not only in the suspension of bus riding privileges * * *

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In my opinion, the bus driver is, or at least may be appointed such school authority to see that the rules of behavior duly adopted are obeyed by bus riders * * *

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It is necessary¿that each student¿be afforded¿due process before his or her bus riding privilege can be suspended or revoked.

FINDINGS OF FACT:

On November 18, 1998, the IEP team met and developed a bus behavior plan to include in the child's IEP. The plan requires transportation for the child between home and school.

One day in early 1999, the afternoon bus driver left the school before the child boarded the school bus. The district called the parents and asked if they would pick up the child at school. The parents were unable to pick up the child, and the building principal and child's special education teacher drove the child home.

A paraprofessional aide is required as part of the child's bus behavior plan. The paraprofessional aide drives to the child's house, boards the bus with the child, and accompanies the child to school. In the afternoon, the paraprofessional boards the bus at the child's school with the child and accompanies the child home. The paraprofessional gets off the bus with the child at the child's house to pick up her car.

On March 5, 1999, the paraprofessional waited at the child's house for the child to come out to board the bus. The child did not come out of the house. The bus came and then left without the child. The paraprofessional drove her car to school. The child arrived at a later time, via parental transportation. Because she would not have transportation from the child's house back to her car at school, the paraprofessional was unable to accompany the child on the bus. The district called the parents, explained the situation, and asked if the parents would be willing to transport the child home. The parents agreed.

On March 19, 1999, the paraprofessional got her car stuck in an alley behind her house in a snow drift. She called Greenfield Middle School to let the administration know she would be unable to meet the child at the bus. The vice principal called the parents, explained the situation, and asked if the parents would be willing to transport the child that day. The parents agreed to transport the child to and from school.

On Wednesdays, the child stayed after school to participate in extra-curricular activities. An activities bus transported students home after the activities. The mother stated that the district excluded the child from transportation every Wednesday because the district did not inform her that an activity bus transported children from extra-curricular activities to their homes. The district stated that the mother did know about the activities bus. The district maintained that the mother refused the district's transportation because the mother did not like the district's rule that the child sit near the bus driver.

CONCLUSION:

A district must provide each child with a disability a free appropriate public education (FAPE). A district meets its obligation to provide FAPE to a child, in part, by providing special education and related services that meet the requirements of the statutes and rules enforced by the department.

Such statutes include procedures relating to the suspension of students. The law does not establish a limit by stating a particular number of cumulative days of suspension permitted during a school year; however, there are limitations with regard to a district's ability to suspend a child with a disability. A child with a disability may be suspended for up to five days or for up to 10 consecutive days if a notice of expulsion has been sent to the child's parents. A series of short suspensions may create an exclusionary pattern that constitutes a change in placement. If a series of suspensions creates a pattern of exclusion, the district has denied the child a FAPE in violation of state and federal law. Suspension from the district's transportation is subject to due process requirements and may result in a change of placement and a denial of FAPE. Factors to consider in determining whether the student has been excluded from school to such an extent that there has been a change in placement include the length of each suspension, the total amount of time that the student is excluded from school, and the proximity of the suspensions to each other. Such determinations must be made on a case-by-case basis.

Given conflicting information on the issue of whether the district denied activity bus transportation to the child on Wednesdays, and the absence of corroborating information, the department is unable to determine whether the district improperly suspended the child from activity bus transportation. With respect to the claim that the district suspended the child from the activity bus, the complaint is not substantiated.

From November 18, 1998, the district excluded the child on two days from transportation. The district did not provide transportation to the child because an aide was necessary to ensure the child's appropriate bus behavior. The district's denial of transportation services on two days during the 1998-99 school year does not constitute a change in placement. Therefore, there is no violation in this regard to the issue.

The department notes, however, that a violation of law not raised in the complaint occurred. The IEP required the district to provide a paraprofessional to ride with the child on the bus. On two days, the district did not provide services consistent with an IEP because a paraprofessional was not available to accompany the child on the bus. There is a violation in this regard.

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DIRECTIVE:

The Greenfield School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that the district provides services to the child whose education is the subject of this complaint and to other children with disabilities consistent with a current IEP.

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 it has been approved by the department.

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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, ss. 19.31-19.39, Wisconsin Statutes, it may be necessary to release this document and related correspondence and records upon request.

Please be advised that under 34 CFR 300.661(d) either the school district or the complainant may request a review of these findings by the Secretary of the United States Department of Education. Requests for secretarial review should be submitted to:

Judith Heumann, Assistant Secretary
Office of Special Education and Rehabilitative Services
U. S. Department of Education
Switzer Building
330 C Street, S.W.
Washington, DC 20202

signed JSP
4/28/99
_______________________________________________
Juanita S. Pawlisch, Ph.D., Assistant Superintendent
Division for Learning Support: Equity and Advocacy

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