On March 22, 2015, the Department of Public Instruction (department) 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, during the 2015-16 school year:
- properly developed and implemented positive behavioral supports and interventions for a student with a disability;
- improperly changed the placement of a student with a disability; and
- properly followed special education disciplinary requirements.
When the behavior of a student with a disability impedes his or her learning or that of others, the student’s individualized education program (IEP) team must consider the use of positive behavioral interventions and supports and other strategies to address that behavior.
After the tenth cumulative school day of disciplinary removal of a student with a disability in a school year, and during subsequent disciplinary removals, the district must provide services to the extent necessary to enable the student to continue to participate appropriately in the general curriculum, although in another setting, and to progress toward achieving IEP goals. If the removal will not result in a disciplinary change of placement, school personnel in consultation with at least one of the student’s teachers determine the required services as well as where the services will be provided. The services may vary depending on the needs of the student and the length of the removal.
A disciplinary change of placement occurs when a student with a disability is removed from school for more than 10 consecutive days or the student has been subjected to a series of removals that constitute a pattern. After a student has been removed for more than 10 cumulative school days, the district must review each subsequent removal to determine if a pattern of removals exist. A series of removals constitute a pattern when the student has been removed for more than 10 cumulative school days in a single year, the student’s behavior is substantially similar to previous incidents; and other additional factors are considered, such as the length of each removal, the total amount of time removed, and the proximity of the removals to one another. The decision as to whether there is a pattern of removals is made on a case-by-case basis by the district.
If the removal results in a disciplinary change of placement, the IEP team must determine the student’s services and setting. Within 10 school days of any decision by a district to change the placement of a student with a disability because of a violation of the student code of conduct, the district, the parent, and relevant members of the student’s IEP team must conduct a manifestation determination. If the behavior is found to be a manifestation of the student’s disability, the IEP team must conduct a functional behavioral assessment (FBA), unless one has been conducted before the behavioral incident, and implement a behavior intervention plan (BIP) to address the student’s behavioral needs. However, if a BIP has already been developed, then the IEP team must review the BIP and modify, as necessary, to address the behavior. The student must also be returned to the placement from which he or she was removed unless the parent agrees to a change of placement, the code of conduct violation involves weapons, drugs, or serious bodily injury, or a hearing officer orders a change of placement.
The student’s May 22, 2015 IEP in effect at the beginning of the 2015-16 school year identified behavior as a concern, and included positive behavioral interventions and a behavior intervention plan (BIP), based on a FBA. The IEP included an annual goal and objectives addressing behavior. On September 17, and 23, 2015, IEP team meetings were conducted to review and revise the IEP and determine placement. The student’s parent attended the meetings with a parent advocate. The IEP team changed the student’s placement to a special education classroom at the middle school the student would attend if not disabled. On September 28, 2015, the student began attending the middle school. On October 7, an annual IEP team meeting was conducted to review and revise the student’s IEP and BIP, and to determine continuing placement. The student’s parent attended the meeting with a parent advocate. The IEP team included additional positive behavior interventions in the BIP.
The student was suspended during the 2015-2016 school year for a cumulative total of 28.5 school days. All of the suspensions received were out-of-school suspensions. During the course of the year, the district conducted three manifestation determinations. On October 28, 2015, the IEP team conducted a manifestation within the 10-day timeline, and determined that the student’s behavior was a manifestation of the student’s disability. However, the IEP team did not review the student’s BIP until November 24, 2015. Between the manifestation determination and the November IEP team meeting, the student incurred 6 of the suspensions.
The second manifestation determination was conducted on January 26, 2016, and the IEP team again determined that the student’s behavior was a manifestation of the student’s disability. On January 29, 2016, the IEP team met and reviewed the student’s IEP and BIP. Revisions were made to address the student’s behavior. On March 16, the district conducted the third manifestation determination and also determined the student’s behavior was a manifestation of the student’s disability. Both of these manifestation determinations were not conducted within the required 10 school days.
On March 9, 16, and 22, IEP team meetings were conducted to review and revise the student’s IEP and BIP. The IEP team added additional positive behavior supports to the BIP including sensory items. The March IEP team discussed changing the student’s placement to an alternative placement. However, the parent did not agree with the alternative placement and the student’s placement was not changed. The student continues to attend the middle school the student would attend if not disabled. The district did not improperly change the student’s placement.
Throughout the 2015-16 school year, the IEP team met repeatedly to revise the IEP to adjust the behavioral supports and interventions included in the IEP. A review of documents and staff interviews confirm each IEP includes positive behavioral interventions and supports, and the IEPs were implemented as written. The district properly developed and implemented positive behavioral supports and interventions for a student with a disability.
However, the district did not properly follow the special education disciplinary requirements. The district did not consider for each removal after the 10th school day, whether a pattern of removals existed. Furthermore, even though the IEP team determined services for the student, these services were not provided during the disciplinary removals. Rather, they were considered by the IEP team as “compensatory services” to be provided after the removals already occurred. Two of the manifestation determinations were not conducted within the required 10 school days, and the student’s BIP was not reviewed during the first manifestation determination. Student corrective action is not required because services were ultimately provided. By June 2, 2016, the district must submit a proposed corrective action plan to the department to ensure the special education disciplinary requirements are timely and properly followed at the school the student attends including training for teachers at the school and all school and district-level administrators serving the school.
All noncompliance identified above must be corrected as soon as possible, but in no case more than one year from the date of this decision. This concludes our review of this complaint.
//signed CST 5/20/2016
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support