Information Update Bulletin 11.01

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October 2011

TO:District Administrators, CESA Administrators, CCDEB Administrators, Directors of Special Education and Pupil Services, and Other Interested Parties
FROM:Carolyn Stanford Taylor, Assistant Superintendent
Division for Learning Support: Equity and Advocacy
SUBJECT:Statewide Services Provided by the Wisconsin Educational Services Program for the Deaf and Hard of Hearing and the Wisconsin Center for the Blind and Visually Impaired
 

PART I: BACKGROUND

The Wisconsin Educational Services Program for the Deaf and Hard of Hearing (WESPDHH) and the Wisconsin Center for the Blind and Visually Impaired (WCBVI) were established to serve as a statewide educational resource relating to either hearing or visual impairments to benefit all students who have those disabilities. Wis. Stat. §§ 115.52(1m), 115.525(1m). Both provide services that benefit students throughout the State of Wisconsin, including outreach services to students who are enrolled in local school districts or educational placements at the state schools. Wis. Stat. §§ 115.52(3)(d), 115.525(3)(d). WESPDHH and WCBVI are referred to as “state schools” in this bulletin.

The state schools provide Wisconsin local educational agencies (LEAs) one point on the continuum of alternative educational placements for students with hearing disabilities, vision disabilities, or both, as determined by the students’ individualized education program (IEP) teams. The state schools, however, are not hospitals or residential treatment facilities for the provision of medical, mental health, or psychiatric treatment services for students.

Typically, the LEA where the student would reside has the responsibility for providing the student with a free appropriate public education (FAPE). Where it is possible that more than one LEA has residency responsibility for a student, the LEAs determine the student’s district of residence.

This bulletin revises Information Update Bulletin 02.06 and integrates Information Update Bulletin 04.04 from the Division for Learning Support: Equity and Advocacy, and it replaces those bulletins. Part II of this bulletin explains the procedures that LEAs must follow in using the services provided by the WESPDHH and the WCBVI Outreach Teams for locally conducted evaluations. Part III explains the procedures for initial placement at a state school; IEP development, placement, and reevaluation of students already enrolled at a state school; transportation related to enrollment at a state school; and removal from a state school. The procedures in this bulletin include those specified in state and federal special education law.

PART II: DEAF AND HARD OF HEARING OUTREACH AND
BLIND AND VISUALLY IMPAIRED OUTREACH

A. Assistance with Locally Conducted Evaluations

Among other services, WESPDHH and WCBVI provide assistance to LEAs with locally conducted evaluations for students with suspected or identified hearing disabilities, vision disabilities, or both. Outreach team members must ensure that the LEA has obtained written parental consent prior to reviewing a student’s records. Outreach team members must have time to review a student’s records before providing assistance.

The IEP team determines whether a student is a student with a disability and is eligible for special education and related services. Wis. Stat. § 115.78(2)(a). Members of the outreach team do not evaluate students to determine eligibility for special education and are not required members of the IEP team. Wis. Stat. §§ 115.78(1m), 115.82. However, outreach team members may assist the IEP team with the development of a comprehensive evaluation by providing supplemental testing, assessment services, and programming recommendations for the IEP team to consider. Wis. Stat. §§ 115.52(3)(b)(1.), 115.525(3)(b)(1.), 115.782. For example, the outreach team may provide written reports to the IEP team or be available to answer questions outside of an IEP team meeting with the parent(s) or guardian(s) present. The IEP team shall not use any single measure or assessment, including information provided by an outreach team member, as the sole criterion for determining whether a student is a student with a disability or for determining an appropriate educational program for the student. Wis. Stat. § 115.782(2)(a). To avoid confusion regarding their presence, outreach team members do not attend IEP team meetings, unless they are the direct service provider of the student.

B. Contacting Outreach

For more information regarding assistance with locally conducted evaluations or other services provided by the outreach teams, please contact:

WESPDHHWCBVI
Marcy Dicker, Outreach DirectorStacy Grandt, Outreach Services Director
N25 W23131 Paul Road, Suite 1001700 W. State St.
Pewaukee, WI 53072Janesville, WI 53546
Phone: (262) 787-9540Phone: (866) 284-1107 x2
Fax: (262) 787-9505Fax: (608) 758-6169
marcy.dicker@wesp-dhh.wi.govstacy.grandt@wcbvi.k12.wi.us
http://www.wesp-dhh.wi.gov/wesp/http://www.wcbvi.k12.wi.us/outreach/index.html
  
Alex Slappey, DirectorDan Wenzel, Director
309 W. Walworth Ave.1700 W. State St.
Delavan, WI 53115Janesville, WI 53546
Phone: (262) 728-7120Phone: (608) 758-4925
Fax: (262) 728-7160Fax: (608) 758-6161
alex.slappey@dpi.wi.govdan.wenzel@wcbvi.k12.wi.us

PART III: PROCEDURES AT THE STATE SCHOOLS

A. Components of an Educational Placement

A student’s educational placement includes three components:

  1. The educational services set out in the student’s IEP;
  2. The educational environment in which the IEP services will be implemented (e.g., regular classroom, resource room, or special education classroom). This information is included in the services section of the IEP as the “location” of the service; and
  3. The site; that is, the school or facility that is selected to implement the IEP. This information is included in the placement notice.

Each LEA must ensure that a range of programming options, known as a continuum of alternative placements, is available to meet the needs of students with disabilities for special education classes and related services. 34 CFR § 300.115. The placement continuum includes instruction in general classes, special education classes, and schools that meet a student’s unique needs. The student’s IEP team must determine participation in the general curriculum, which may occur in any educational environment, based on the student’s needs and abilities.

When students are placed in special education environments, they may participate in the general curriculum. During the IEP development process, the IEP team must specify in the student’s IEP the educational environment(s) within which the special education services will be provided and the extent to which the student will participate in the general curriculum.

At the state schools, students are classified as either day students who attend classes at the state school but reside with their parent(s) or guardian(s) each night, or as residential students who live in the school’s dormitories. State school students that are unable to travel to and from the state school on a daily basis may live in dormitories, subject to Department policies. Residential placement may only be considered for students who are 5 years of age and older, unless the state school director approves an exception.

Students may be placed at the state school in conjunction with attendance in the Delavan-Darien School District, Janesville Public Schools, or a postsecondary institution. This placement must be sufficiently described in the student’s IEP and placement notice. In such cases, the resident LEA pays tuition directly to the Delavan-Darien School District, Janesville Public Schools, or the postsecondary institution. Tuition will include any related services or supplementary aids and services included in the IEP that are necessary for the student’s participation in the Delavan-Darien School District, Janesville Public Schools, or the postsecondary institution. Transportation to the Delavan-Darien School District, Janesville Public Schools, or the postsecondary institution is determined by the state school, and the resident LEA reimburses the state school for these costs.

B. Procedures for Determining Initial Placement at a State School

A state school will not consider a request for enrollment of a student until the student’s eligibility as a student with a disability in the area of visual impairment, hearing impairment, or both, has been established and an appropriate IEP has been developed. A representative of the LEA where the parent(s) or guardian(s) reside and the student’s parent(s) or guardian(s) are strongly encouraged to visit the state school before the IEP team considers a placement determination at a state school.

Placement determinations are made by IEP teams. Wis. Stat. § 115.78(2)(c). If the IEP team is considering the state school as a placement option, a state school teacher or other state school staff, selected by state school management, must participate on the IEP team. Parental consent is required for state school staff to participate on a student’s IEP team. The resident LEA must obtain the parental consent.

When a resident LEA initiates an IEP team meeting to consider placement at a state school and obtains parental consent to invite state school staff, the resident LEA should contact the state school to obtain the names and titles of the state school participant(s) to ensure that their names are included in the IEP team meeting notice. If the state school IEP team participant(s) cannot participate in the IEP team meeting at the site where the meeting is held, participation must occur by other means such as a teleconference or videoconference. To arrange for a state school representative to participate in the IEP process, contact the state school principal or director.

WESPDHHWCBVI
Marla Walsh, PrincipalPatrick Byrnes, Principal
309 W. Walworth Ave.1700 W. State St.
Delavan, WI 53115Janesville, WI 53546
Phone: (262) 728-7131Phone: (608) 758-6120
Fax: (262) 728-7155Fax: (608) 758-6116
marla.walsh@wsd.k12.wi.uspat.byrnes@wcbvi.k12.wi.us
http://www.wsd.k12.wi.us/http://www.wcbvi.k12.wi.us/index.html
  
Alex Slappey, DirectorDan Wenzel, Director
309 W. Walworth Ave.1700 W. State St.
Delavan, WI 53115Janesville, WI 53546
Phone: (262) 728-7120Phone: (608) 758-4925
Fax: (262) 728-7160Fax: (608) 758-6161
alex.slappey@dpi.wi.govdan.wenzel@wcbvi.k12.wi.us

The state school team participant(s) must have an opportunity to review the student’s pupil records, including evaluation data, prior to the IEP team meeting. With written parental consent, a copy of the student’s IEP must be provided to the state school at least two weeks prior to the IEP team meeting.

IEP teams that determine placement for a student at a state school must also include:

  • The parent(s) or guardian(s) of the student;
  • At least one regular education teacher of the student if the student is or may be participating in the regular education environment;
  • At least one special education teacher or special education provider of the student;
  • A representative of the school district where the parent(s) or guardian(s) resides who meets the requirements of 34 CFR § 300.321(a)(4);
  • A person who can interpret the instructional implications of evaluation results;
  • At the discretion of the parent(s) or guardian(s) or the LEA, other individuals who have knowledge or special expertise regarding the student; and
  • Whenever appropriate, the student with a disability. 34 CFR § 300.321(a).

A placement determination must be based on the student’s needs as documented in the IEP. The IEP must address the student’s individually identified special education needs and cannot be developed based on the availability of the programs and resources at a specific placement site. A state school is not an appropriate placement if the student’s IEP cannot be fully implemented at the state school.

For a student who is blind or visually impaired, the IEP team must provide for instruction in Braille and the use of Braille unless the IEP team determines, after an evaluation of the student’s reading and writing skills, needs, and appropriate reading and writing media (including the student’s future needs for instruction in Braille or the use of Braille), that instruction in Braille is not appropriate for the child. 34 CFR §§ 300.324(a)(2)(iii). The IEP team must also consider the student’s orientation and mobility needs, the need for assistive technology devices and services, and all other areas of the expanded core curriculum. For a student who is deaf or hard of hearing, the IEP team must consider the student’s language and communication needs, opportunities for direct communication with peers and professional personnel in the students’ language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child’s language and communication mode. 34 CFR §§ 300.324(a)(2)(iiii). The IEP team must also consider the student’s needs for assistive technology devices and services.

The student must attend the school he or she would attend if nondisabled, unless the IEP requires another placement. If an alternate placement is required to implement the IEP, the site must be as close as possible to the student’s home where the IEP can be implemented. If the student will not attend the school he or she would attend if nondisabled, the IEP must include an explanation of why the student cannot be educated in the school he or she would attend if nondisabled. 34 CFR § 300.116(c). The placement decision must be made in conformity with the least restrictive environment provisions. Students with disabilities must be educated in the general curriculum with nondisabled peers in the regular education environment, to the extent appropriate. Special classes, separate schooling, or other removal from the regular educational environment and the general curriculum occur only when the nature or severity of a student’s disability is such that education in regular classes in the general curriculum with the use of supplementary aids and services cannot be achieved satisfactorily. 34 CFR §§ 300.114–300.118.

If residential placement at the state school is being considered, the IEP team must consider all of the circumstances and conditions that would influence the student’s success in a residential placement. The IEP team should discuss relevant family, medical, social, and emotional histories, and other needs that would influence a successful residential experience.

The IEP team, including the state school representative, must determine that the state school is the proper placement for the student before the student enrolls at the state school. Each initial placement at a state school will be for a period of up to 45 school days for the purpose of determining the appropriateness of placement at a state school. During this 45-day placement, the state school will contact the resident LEA and parent(s) or guardian(s) and schedule an IEP team meeting to discuss whether continuing placement at the state school is appropriate. If the IEP team determines placement at the state school will continue beyond 45 days, the team may review and/or revise the IEP, as necessary. If the IEP team determines the student’s placement at the state school will not continue, the state school must send a notice of change of placement to the resident LEA and the parent(s) or guardian(s). The IEP team may decide to schedule additional IEP team meetings to discuss the appropriateness of the student’s placement at a state school.

If the state school representative(s) do not agree that placement at the state school is appropriate to meet the needs of the student, the resident LEA must develop and implement an appropriate IEP. The resident LEA may convene another IEP meeting to discuss placement at the state school at a future time. The additional meeting must include the state school representative(s), and it could include new participants or additional information about the student, including new evaluation information, if needed. Any placement option that is proposed by an IEP team participant, including frequency, location, duration, or site of services, but is rejected, must be documented in the IEP or placement notice, including the reasons why the option was rejected.

C. IEP Development, Placement and Reevaluation of Students Already Enrolled at a State School

After a student is placed at a state school, a state school representative(s) will be responsible for scheduling and preparing documents related to subsequent IEP team meetings. These documents must be shared with both the parent(s) or guardian(s) and the resident LEA. The state school representative(s) will contact the parent(s) or guardian(s) and the resident LEA to schedule the meeting at a mutually agreeable time and place and to obtain the names and titles of resident LEA participants. If placement continues at a state school, the state school will maintain the responsibility for preparing and sharing documents related to the IEP team process. If the student leaves the state school, the resident LEA will resume the responsibility for paperwork and documentation.

The state school representative must ensure that reevaluations are initiated at least every three years, unless the student’s parent(s) or guardian(s), the resident LEA, and the state school agree that a reevaluation is unnecessary. Wis. Stat. § 115.782(4)(a)(2). The state school representative is responsible for ensuring the evaluation is conducted in a manner consistent with special education law and that the student’s state school teacher and other state school staff selected by state school management participate on the IEP team in the reevaluation. The state school representative must obtain informed consent from the student’s parent(s) or guardian(s) before reevaluating a student with a disability, unless the student’s parent(s) or guardian(s) have failed to respond to the state school’s requests for consent, and the state school has taken reasonable measures to obtain consent. A representative of the resident LEA who meets the requirements of 34 CFR § 300.321(a)(4) must participate in the IEP team reevaluation of the student. If the student is or may be participating in the regular education environment, at least one regular education teacher of the student must participate in the IEP team reevaluation of the student. The state school representative must send a copy of the evaluation notice to the resident LEA.

D. Transportation Related to Attendance at a State School

Transportation to and from the student’s home to the state school is provided daily for day students and weekly for residential students at no cost to the parent(s) or guardian(s) Wis. Stat. § 115.53(6). This transportation is paid for by the resident LEA. Students are brought to school by their parent(s) or guardian(s) for registration at the beginning of the school year and picked up from school if any contagious illness or disciplinary issues arise.

E. Removal from the State Schools

Placement determinations are made by IEP teams. When the site selected to implement the IEP is a state school, the members of the IEP team should include those listed in section B above.

i. Student Reaches Age 18

Beginning at age 17, and each year thereafter, the state school must include a statement in the student’s IEP that the student has been told that his or her rights will transfer to the student when the student reaches the age of 18. Wis. Stat. § 115.787(2)(g)(3.). If a student has been found incompetent by a Wisconsin court, rights remain with the parent(s) or guardian(s) and do not transfer to the student at age 18.

When a student enrolled at a state school reaches the age of 18, the state school must provide any required notices or IEP paperwork to both the student and the parent(s) or guardian(s). Wis. Stat. § 115.807(1). In addition, all rights given to the parent(s) or guardian(s) under IDEA transfer to the student when the student reaches age 18. Wis. Stat. § 115.807(2). If a student who is age 18 or older decides he or she no longer wants to attend school, the student may revoke consent for special education and related services in writing to the state school. Once the state school receives written revocation, the state school must promptly provide prior written notice to the parent(s) or guardian(s), the student, and the resident LEA in accordance with 34 CFR § 300.503 within a reasonable time before stopping special education and related services. The student’s placement at the state school ends on the date the special education and related services are ended. The state school may not use mediation or due process procedures to challenge the student’s revocation of consent.

Once special education and related services end, neither the state school nor the resident LEA is required to make FAPE available to the student, to have an IEP meeting, or to develop an IEP for the student. The state school and resident LEA are not required to offer the student discipline protections under IDEA. Finally, the state school and the resident LEA are not required to amend the student’s education records to remove any reference to the student’s receipt of special education and related services. However, if the student is referred for special education in the future, the resident LEA must act upon that referral, and the evaluation will be treated as an initial evaluation.

ii. Change of Residency

The decision to place a student at a state school is made by the IEP team, which includes a representative of the LEA with residency responsibility for the student. 34 CFR § 300.321(a)(4). If the student’s residency changes while enrolled in the state school, the parent(s) or guardian(s) must notify the state school and enroll the student in the new LEA of residence. In addition, the state schools will request updated contact information from the parent(s) or guardian(s) at registration and in the mail with first semester grades. If the state school determines the student’s resident LEA has changed, the state school will contact the parent(s) or guardian(s) and request that the student be enrolled in the new resident LEA.

The new resident LEA, in consultation with the parent(s) or guardian(s), must provide FAPE and services comparable to those described in the student’s current IEP. Under stay-put provisions, the student’s placement must continue at the state school until the new school district adopts the student’s IEP from the previous school district or develops, adopts, and implements a new IEP. 34 CFR § 300.323(e). The student’s state school teacher or other state school staff selected by state school management will participate in an IEP team meeting convened by the new resident LEA. 34 CFR § 300.321(a)(3). The new resident LEA must also take reasonable steps to promptly obtain the student's records, including the IEP and supporting documentation, along with any other records relating to the provision of special education and related services to the student from the previous school district. 34 CFR § 300.323(g)(1).

iii. Parent(s) or Guardian(s) Want to Discuss Removal from State School

Decisions to place a student at the state school are made by the IEP team, which includes the parent(s) or guardian(s) of the student and other school officials. 34 CFR § 300.321(a). Once a student is placed at a state school, the state school maintains the responsibility for preparing and sharing documents related to the IEP team process. If the parent(s) or guardian(s) wish to discuss placement options other than the state school, the parent(s) or guardian(s) must request an IEP team meeting.

iv. School Personnel Have Concerns about Placement at the State School

If school officials at either the LEA of residence or state school have concerns about the student’s placement at the state school, they must request an IEP team meeting conducted by the state school to discuss the student’s continued placement. The state school representative will contact the parent(s) or guardian(s) and the resident district to schedule the meeting at a mutually agreeable time and place, and obtain, in a reasonable amount of time, the names and titles of the resident district participants.

v. Absence and Truancy

State school staff should consider the impact of a student’s absence on the student's progress and performance, determine how to ensure the continued provision of FAPE, and assess the extent to which such absences affect the student’s ability to progress and meet the annual goals in his or her IEP. Whether an interruption in special education services constitutes a denial of FAPE is an individual determination that must be made on a case-by-case basis. Letter to Clarke, 107 LRP 13115 (OSEP 2007). http://www2.ed.gov/policy/speced/guid/idea/letters/2007-1/clarke030807disability1q2007.pdf. If the student is absent from the state school for a prolonged period of time, or there is a pattern of repeated short-term absence from the state school for reasons associated with the student’s disability, the state school staff should reconvene the IEP team to discuss the student’s current IEP and to determine if it is necessary to modify the student’s current program or placement. Letter to Balkman, 23 LRP 3417 (OSEP 1995). See the attachment to http://www2.ed.gov/policy/speced/guid/idea/letters/2008-1/copenhave031108fape1q2008.doc.

Students enrolled at the state schools are subject to compulsory attendance requirements under Wisconsin Statute section 118.15. If a student will be absent or tardy, the parent(s) or guardian(s) must arrange for their own transportation, if necessary, and notify the state schools utilizing the process described in the school’s Parent/Student Handbook. If the parent(s) or guardian(s) fail to contact the state school and report the absence, the state school will contact the parent(s) or guardian(s) at home or at a place of employment. The parent(s) or guardian(s) must provide a written explanation of absence when the student returns to school. If the absence is planned, parent(s) or guardian(s) are encouraged to provide advanced notification of the absence using the school’s procedure in the Parent/Student Handbook. Exceptions to compulsory school attendance are listed in Wisconsin Statutes section 118.15(3).

A student is considered truant if he or she is absent without an acceptable excuse for all or part of one or more days during which school is held. Wis. Stat. § 118.16(1)(c). By the end of the second day following an unexcused absence, the state school must notify the resident LEA and the parent(s) or guardian(s) and direct the parent(s) or guardian(s) to either return the student to school or provide an excuse in writing. Wis. Stat. § 118.16(2)(c). Notice must be attempted by personal contact or telephone call first and may also be made by mail if a personal call or personal contact is unsuccessful. Wis. Stat. § 118.16(2)(c). A student is habitually truant when he or she is absent without an acceptable excuse all or part of five or more days in a school semester. Wis. Stat. §§ 118.16(1)(a), (c). If a student is habitually truant, the state school must notify the parent(s) or guardian(s) and the resident LEA that the student is habitually truant in a manner consistent with Wisconsin Statute section 118.16(2)(cg).

vi. Disciplinary Suspension and Expulsion

Students at the state schools are subject to disciplinary actions comparable to students enrolled in the resident LEA, including suspension and expulsion. A state school staff selected by school management may suspend a student for not more than five school days under the conditions stated in state statute and school policy. A state school administrator or any principal or teacher designated by the state school administrator may suspend a pupil for:

  • Noncompliance with school rules;
  • 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;
  • Conduct by the pupil while at school or under the supervision of a school authority which endangers the property, health, or safety of others; and/or
  • Conduct while not at school or not 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 conduct that endangers the property, health, or safety of any employee or school board member of the school district in which the pupil is enrolled. Conduct that endangers a person or property includes making a threat to the health or safety of a person or making a threat to damage property.

Prior to suspension, the student must be advised of the reason for the proposed suspension. If the student denies the accusation, the state school must explain the information it has and allow the student to provide his or her version. The student's parent(s) or guardian(s) must be given prompt notice of the suspension and the reason for the suspension. If a student is suspended for five calendar days in a school year, the state school staff notifies the resident LEA and schedules an IEP team meeting within a reasonable amount of time from the suspension. The purpose of the IEP team meeting is to consider the student’s needs, whether the student’s placement at the state school continues to be appropriate, and whether the student requires a functional behavioral assessment, a behavioral intervention plan, or both.

The parent(s) or guardian(s) of a student may, within five school days following the start of a suspension, have a conference with the state school administrator. If the state school administrator finds that the student was suspended unfairly or unjustly, the suspension was inappropriate given the nature of the offense, or the student suffered undue consequences or penalties as a result of the suspension, reference to the student's suspension must be removed from the student's records. The finding must be made within 15 days of the conference. The parent(s) or guardian(s) of a student with a disability may also challenge any issue relating to the identification, evaluation, educational placement, or provision of FAPE to the student by requesting a due process hearing. Due process procedures are available online at http://sped.dpi.wi.gov/sped_dueproc.

A state school administrator may recommend a student for expulsion from the resident LEA and the state school placement for:

  • Repeated refusal or neglect to obey the rules;
  • Threatening to destroy school property by explosion; and/or
  • Engaging in conduct at school that endangers the property, health, or safety of others; or engaging in conduct while not at school or under the school's supervision; or endangering the property health or safety of any employee of the district in which the student is enrolled. Conduct that endangers a person or property includes making a threat to the health or safety of a person or making a threat to damage property.

The resident LEA must begin expulsion proceedings and expel a student for at least one year for possession of firearms on school property. The school may, however, modify the expulsion requirement on a case-by-case basis.

The decision to expel a student is a change of placement. On the date the decision is made to expel a student from the resident LEA, the student's parent(s) or guardian(s) and the state school must be notified of the decision, and the student’s parent(s) or guardian(s) must be provided a procedural safeguards notice. 34 CFR § 300.530(h). The procedural safeguards notice is also available on the department's website at http://sped.dpi.wi.gov/sped_pcrights.

Within ten school days of the date of the decision to expel a student, the state school, the parent(s) or guardian(s), the resident LEA, and relevant members of the IEP team must determine whether the conduct is a manifestation of the student's disability. In making the determination, all relevant information in the student's file, including the student's IEP, any teacher observations, and any relevant information provided by the parent(s) or guardian(s), must be reviewed. 34 CFR § 300.530(e)(1). The conduct must be determined to be a manifestation of the student's disability if the conduct was caused by, or had a direct and substantial relationship to the students’ disability; or the conduct was the direct result of the state school or resident LEA’s failure to implement the IEP. 34 CFR § 300.530(e)(1). The resident LEA and/or state school must take immediate steps to remedy a failure to implement the IEP. 34 CFR § 300.530(e)(3).

The parent(s) or guardian(s) of a student with a disability who disagree with any decision regarding the manifestation determination may request an expedited due process hearing. Except where a student is disciplined for behavior involving weapons, drugs, or serious bodily harm, if the behavior is determined to be a manifestation of the student's disability, the IEP team must return the student to the state school, unless the parent(s) or guardian(s), the state school, and the resident LEA agree to a change of placement as part of the modification of the behavioral intervention plan. If the behavior is determined not to be a manifestation of the student's disability, the resident LEA may remove the student to the same extent any LEA would remove a student who does not have a disability. 34 CFR § 300.530(f)(2).

If the behavior is a manifestation of the student's disability and the student already has a behavioral intervention plan, the IEP team must meet to review the plan and its implementation. The IEP team must modify the plan and its implementation, if necessary, to address the student's behavior. If the student does not have a behavior intervention plan, the IEP team must conduct a functional behavioral assessment and implement a behavioral intervention plan for the student. 34 CFR § 300.530(f)(1). If the behavior is not a manifestation of the student's disability and the student is going to return to the state school, the student must receive a functional behavioral assessment, behavioral intervention services, and modifications that are designed to address the behavior violation so that it does not recur. When the behavior is determined not to be a manifestation of the student's disability, the resident LEA may proceed with the change in placement. The resident LEA must provide educational services, as determined by the IEP team, to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student's IEP. Participation in the general curriculum does not mean that the resident LEA must replicate every aspect of the services that a student would receive at the state school.

A student, or, if the student is a minor, the student's parent(s) or guardian(s) may appeal the expulsion to the State Superintendent of Public Instruction, who must review the board's decision within 60 days after receiving the appeal. The State Superintendent of Public Instruction determines whether the resident LEA has followed the required procedures. Wis. Stat. § 120.13(1)(c)(4.)(i). Parent(s) or guardian(s) may also challenge the expulsion of a student with a disability by requesting a due process hearing.

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