BACKBACK
A California
hearing officer recently ruled in one of the first cases contesting an alternative
educational setting under the IDEA-97 amendments. In William S. Hart Union High Sch
Dist, 26 IDELR 1258 (SEA CA, 1997), a high school student with a learning disability
was suspended pending expulsion for smoking marijuana during the lunch period. The student
had been in regular education classes except for one daily resource specialist program
class.
The student was suspended on September 12, 1997. An IEP meeting was convened on
September 22 and proposed an interim alternative placement of five hours a week of
home instruction. The district had not previously conducted a functional behavioral
assessment of the student or implemented a behavioral intervention plan. The IEP meeting
did not develop a functional behavioral assessment plan. The IEP team also did not review
the relationship between the student's disability and his behavior.
The parent refused to consent to the proposed interim alternative placement and
requested a due process hearing. On September 24, she filed a motion requesting the
hearing officer to determine that the "stay-put" placement was the high school
program. Also on September 24, the district withdrew its offer of home instruction,
resulting in no educational services being provided from September 12 until the
hearing on October 16.
The hearing officer concluded that the district had not provided an interim alternative
educational placement and had failed to comply with the requirements of IDEA-97 pertaining
to removal of a special education student from an educational placement for more than
10 days. The hearing officer ruled that the stay-put placement was the high school
program and ordered the district to immediately reinstate the student.
In a second case from Maine, Freeport Pub Sch, 26 IDELR 1251 (SEA ME, 1997), a
high school student with a behavior impairment was suspended for showing a knife during an
argument with another student on school property. The student had been in regular
education for all academic classes. His IEP did not provide for any behavioral services
but did address conflict resolution and behavioral intervention.
The student was suspended on September 8, 1997. An IEP meeting was convened on
September 15. The IEP team determined that his behavior was a manifestation of his
disability. It determined that he would receive a comprehensive psychological assessment
and access counseling to address behavior concerns. It ordered placement in an alternative
educational setting of 2 1/2 hours a day of tutoring services at the local
public library.
The parent appealed and contended that "stay put" was the regular education
high school program. The hearing officer found that the interim setting did enable the
student to continue to participate in the general curriculum but that it was deficient in
not providing services and modifications either to enable him to meet the goals set out in
his IEP or to address the behavior which led to his removal. The hearing officer also
criticized the IEP because it had not included a behavior plan to address the student's
episodes of anger and aggression.
The hearing officer nonetheless upheld the interim alternative educational setting but
ordered the IEP team to reconvene to incorporate into it services and modifications to
enable the student to meet the goals in his IEP and to address the behavior which led to
his removal.
IMPLICATIONS:
The California case is a textbook example of "how not to do it." The only
thing the district did right was convene the IEP meeting within 10 days of the
initial disciplinary action. If it had developed and implemented a 45-calendar day interim
alternative placement, then the stay put when the parent appealed the IAP would have been
the IAP, at least to the 45th calendar day of that placement. However, because the
district withdrew the IAP and still kept the student out of school what in effect happened
was a suspension in excess of 10 school days without a manifestation determination (and
preliminary to that a functional behavioral assessment plan as the student here did not
have a behavior intervention plan).
In contrast, in the Maine case both the district and the IEP team basically "got
it right." The IEP meeting was timely convened. The IEP team reviewed and modified
the behavior intervention plan and conducted a manifestation review. It determined an
interim alternative educational setting, albeit one the hearing officer found deficient.
The lesson to be drawn is that, if a district makes a good faith effort to comply with the procedural requirements of IDEA-97, a hearing officer or court may uphold an interim alternative placement and afford the district an opportunity to correct deficiencies in it. Procedural failures that compromise the required IEP team process, however, almost certainly will result in the alternative placement being overturned. Districts need to ensure that IEP meetings are timely convened and IEP team members clearly understand their responsibilities.