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IDEA Complaint Decision 04-038

On September 22, 2004, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Hortonville Area School District. This is the department's decision regarding that complaint. The issues related to the 2003-2004 school year are identified separately and discussed below.

  • Whether the district notified the parents of the determination regarding eligibility for special education within required time limits.

On October 21, 2003, the parent addressed a written request to a school psychologist for a psychological and academic evaluation of her child. Because of the wording of the request and past parent and school communications, the school psychologist was uncertain whether the parent intended to request a special education evaluation. The school psychologist contacted other district staff and ultimately the parents to determine their intentions. On November 13, 2004, a district representative acknowledged receipt of a referral for a special education evaluation. On February 5, 2004, the district requested an extension of the 90-day time limit for completing a special education evaluation, based on receipt of new information from an outside agency relating to the evaluation. The parent agreed to the extension of the time limit to April 15, 2004. On April 5, 2004, the district again requested an extension of the time limit in order to complete development of an individualized education program (IEP) for the student. The parent agreed to the extension of the time limit to May 15, 2004. The parents received a notice of placement on May 12, 2004.

Districts must complete an evaluation for special education, develop an IEP, and provide parents with a notice of placement within 90 days of receiving a special education referral. The 90-day timeline can be extended with parent consent, or by the department following parent refusal of an extension request. A district must request an extension of the time limit from the parents or the department before the expiration of the 90 days or previous extension. The district did request and receive from the parent an extension of the 90-day time limit. The first extension was requested within 90 days of the district's acknowledging receipt of a referral and the second extension was requested prior to expiration of the first extension. The parent agreed to both extensions. Based on the specific circumstances of this investigation, the department concludes that the district followed requirements related to accepting parent evaluation requests and completed the evaluation within required time limits.

  • Whether the district obtained parent consent to conduct a speech/language assessment.

The district provided the parents with notice of the IEP team determination to conduct tests as part of the child's evaluation and requested the parents' consent for the tests. A school district must obtain informed, written parental consent before administering tests or other evaluation materials to a child with a disability as part of an evaluation. Consent means that the parent has been fully informed of all information relevant to the activity for which consent is sought, that the parent understands and agrees in writing to the activity and that the consent describes that activity. The parents maintain that the consent one parent signed did not indicate that a test of the child's articulation abilities was included in the evaluation. An articulation test was conducted. The consent the parent signed indicates that the areas to be assessed by a speech and language pathologist are "expressive and receptive language" and that the tests to be given are "standardized, individually administered tests" and a "language sample." These terms, particularly indicating that a language sample is included in testing, reasonably include an assessment of the student's speech articulation.

  • "Whether the district properly responded to the parents' request for an assistive technology assessment of their son.

On May 6 and 19, 2004, the parent made written requests to district staff for an assistive technology assessment of her child. The district sent the parents a notice of placement which they received May 12, 2004. On May 25 the parents signed and returned the consent form indicating that they did not consent to initial placement of their child in special education. The district responded to the request for an assistive technology assessment by developing an accommodation plan in September 2004 which included an assistive technology assessment which now has been completed. The district properly responded to the parent's request for an assistive technology assessment.

  • Whether the district properly notified the parents regarding who would attend IEP team meetings and ensured that IEP team meetings included required participants.

The parents maintain that the director of special education for the district attended IEP team meetings but was not included among the names of people who participated at the meetings. The notices to the parents regarding the initiation of their child's evaluation do not include the director of special education as a participant on the IEP team. These notices relate to who will review existing data to determine the need for additional testing and who will conduct needed tests. They are not notices regarding who will attend IEP team meetings. IEP team meetings were held on January 27, February 5, and April 5 and 19, 2004. The invitations sent to the parent for all but the January meeting indicate that the director was expected to be present at the meeting. The cover sheets for all but the January meeting indicate that the director attended the meeting. The director did not attend the January meeting. The district properly notified the parent that the director would attend IEP team meetings.

The parents maintain that their child's regular education teacher attended the April 19, 2004, meeting for only ten minutes of a two-hour meeting. While a regular education teacher must be a participant on the IEP team if the child is, or may be, participating in the regular education environment, the teacher need not, depending upon the child's needs and the purpose of the specific IEP team meeting, be required to participate in all decisions made as part of the meeting or to be present throughout the entire meeting or attend every meeting. In determining the extent of the regular education teacher's participation at IEP team meetings, school districts and parents should try to agree on whether the child's regular education teacher should be present at a particular meeting and for what amount of time. The extent to which the regular education teacher participates in IEP team meetings is to be decided on a case-by-case basis.

The regular education teacher attended the previous three IEP team meetings. The supplementary aids and services and program modifications and supports for school personnel-two areas where regular education teacher participation can be important-did not change between the draft which had been prepared for discussion at the April 19 meeting and the one sent to the parent following the meeting. The regular education teacher already had participated in several meetings where she could describe the student's educational strengths and weaknesses. The district was permitted to have the teacher attend for only a portion of the April 19 meeting.

  • Whether the district properly considered the parents' concerns for the education of their child, including concerns regarding handwriting and written communication.
  • Whether the district ensured that the IEP team properly determined eligibility for special education and properly developed annual goals for the student.
  • Whether the district properly determined the student's need for speech therapy and social skills training and whether the student could be educated with students who do not have disabilities.

The parents believe, based on non-district evaluations, that their son has a disability affecting his written communication. In October 2003, they referred their son for an evaluation at the suggestion of his teacher and so that he could receive assistance with his writing needs. However, during the evaluation process they also gave the district an additional assessment from a non-district evaluation indicating that the student has another impairment which also could entitle him to services as a student with a disability. The additional time needed to complete the evaluation resulted in significant part from receipt of this new information. Ultimately, the district determined the student to be a child with a disability based on this new impairment. Because the parents question whether the student needs special education services based on this impairment, they continue to disagree with the eligibility, programming, and placement decisions made by the IEP teams and have refused consent for placement.

The district convened four IEP team meetings between January and April 2004. The draft IEPs provided to the parents over the course of team meetings clearly include information provided by the parents. The student's present levels of educational performance were substantially modified to include parent suggestions. The final IEP includes two pages of information provided by the parents. In holding several IEP team meetings and modifying the IEP to address parent concerns, the district met requirements related to reaching consensus. The district then gave the parent required notice of the team's decisions. The parents exercised their right to refuse to consent to the program and placement decisions.

Regarding proper determination of eligibility for special education and proper development of annual goals for the student, the district conducted a full evaluation of the student and developed goals based on the determinations the IEP team reached. The final evaluation report documents eligibility determinations which correspond with state eligibility criteria. The goals in the IEP provided to the parents with a notice of placement are measurable and relate to needs identified in the present levels of educational performance stated in the IEP, which relate to needs identified during the evaluation. The district met requirements related to eligibility determinations and goal development.

Regarding the need for speech therapy, the IEP sent to the parents with the notice of placement does not include speech and language services either as special education or as related services. None of the draft IEPs after the first one included this service. The parents challenge the need for social skills training based on their belief that one of the assessments was based on outdated information. However, the IEP includes current examples of similar behavior which suggests a continuing need for social skills training. There is a basis in the IEP for the determination that the student needs social skills training.

The parents maintain that they expressed to the IEP team their preference for their son being educated in the regular education classroom, but that the team ultimately decided the student would receive some services in a special education setting. The IEP requires two kinds of special education instruction three times per week totaling 70 minutes in a special education setting. The IEP also requires one 30-minute session of a related service each week in a special education setting. These services correlate to the needs identified in the student's present levels of performance and IEP goals. The IEP indicates that the student needs this instruction in a small group setting not available in regular education classes. The district met the requirements for determining the amount of instruction to be provided to the student in a setting which does not include students who do not have disabilities.

  • Whether the district properly obtained parent and other IEP team participant signatures indicating agreement with the evaluation report.

When a child is evaluated for a learning disability, the IEP team must document its eligibility determination including whether the child has a specific learning disability, the basis for this determination, and several other factors. Each team participant must indicate in writing whether the report reflects his or her conclusion. If it does not reflect his or her conclusion, the team member must submit a separate statement presenting his or her conclusions. The district director asked the parent to sign the form indicating her agreement with the IEP team determination that the student does not have a learning disability. Although the parent signed the form, she maintains that the director did not explain what she was signing and that she did not understand what she had been asked to sign. The director maintains that she attempted to explain the purpose of the form to the parent and another IEP team participant remembers hearing the explanation. Each district IEP team participant signed the form indicating that the report reflects his or her conclusion. The addendum from the parents which is attached to the IEP clearly articulates the parents' concerns with the evaluation. The district met the requirement for documenting IEP team participant agreement with an LD evaluation.

  • Whether the district, following the IEP team determination that the student is a child with a disability, asked the parents whether they wanted a copy of the evaluation report and whether they needed additional time before continuing with the IEP.

If the IEP team determines that a child is a child with a disability, the team must prepare an evaluation report that includes documentation of determination of eligibility. School district staff must ask each IEP team participant if he or she wants a copy of the evaluation report or additional time before the team develops the child's IEP. District forms provided to the department document that this requirement was met for each IEP team meeting. The parents' complaint is that they did not receive a copy of the evaluation report or additional time prior to proceeding. However, the complaint letter goes on to say that the evaluation report was given to them along with a new version of the IEP at each meeting. The parents provided the department with copies of several draft evaluation reports which were provided to the parents at succeeding IEP team meetings. The draft reports were modified from meeting to meeting. It was not until the last meeting that a report was completed. During these meetings the IEP team also was developing the student's program and placement. In this situation, because of the district's attempts to address the parents' concerns for their child's education, the evaluation and IEP and placement were developed essentially concurrently during multiple meetings. The district provided the parents with drafts of these documents for consideration at each meeting. The district met the requirement permitting the parents more time and affording them a copy of the evaluation report.

This concludes our review of this complaint, which we are closing.

//signed CST 11/23/04
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy