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IDEA Complaint Decision 06-030

On June 6, 2006, the Department of Public Instruction received a complaint under state and federal special education law from XXXX against the School District of New London. This is the department’s decision regarding that complaint. The issue is whether the district, during the 2005-2006 school year, properly evaluated a child with a suspected disability in the areas of emotional behavioral disabilities (EBD) and other health impairment (OHI).

The complaint letter raises several concerns related to determining whether the student is a child with a disability. The parent maintains that district staff should have recognized the student has an impairment and a need for special education services before an incident which resulted in the student’s expulsion and that they should have initiated an evaluation. The parent also maintains that during the evaluation, the individualized education program (IEP) team did not consider medical information provided by the parent and did not properly apply eligibility criteria. Finally, the parent alleges that the district did not provide her with a procedural safeguards notice which included a full explanation of safeguards under the Individuals with Disabilities Education Act (IDEA) as amended in 2004.

The student was evaluated for an EBD and in December 2003 determined not to be a child with a disability. The evaluation report indicates the district would develop an education plan to address the student’s needs as a regular education student which were identified during the evaluation. An education plan was developed in early 2004, was revised by the beginning of the next two school years and was in place during the 2005-2006 school year. Although the parent raises several concerns with this plan, because it is not an IEP the department will not address these concerns in this complaint.

In early April 2006, the student violated school rules and ultimately was expelled. Shortly after the incident, the parent submitted a referral to initiate a special education evaluation. The parent had not made a written request for an evaluation nor written district staff that the child is in need of special education and related services before the incident. The district expedited the evaluation, completing it before the end of the school year. The student again was determined not to be a child with a disability. The district decided to continue to provide services to the student outside the school setting during the evaluation and until the end of the school year and the student passed all classes.

Interviews with district staff and a review of documents developed during two IEP team meetings held in May establish that the district developed information needed to determine the student’s eligibility for OHI and EBD. IEP teams, including the parent, identified additional assessment materials which were needed and district staff conducted the assessments. The IEP team used the department’s EBD eligibility checklist in making its eligibility determination. The team decided that the student did not display behaviors at school required to conclude that the student has an EBD. The team documented on the checklist that some behaviors did occur in the home and that while the parent believes some of the behaviors occurred in school, other teams members believe they did not. The team also documented that the behaviors in the home were frequent and chronic, but not severe.

At the time of the meeting, the department had not yet issued an OHI eligibility checklist. However, one of the participants submitted a report which included OHI eligibility criteria along with her findings and another participant included her findings regarding OHI in her summary findings. The team discussed the findings and criteria and determined the student does not have an OHI. The team concluded that while the student does have chronic health problems, they do not result in limited strength, vitality or alertness in the school setting.

The parent met with one of the IEP team participants several days prior to the IEP team meeting. During the discussion with this staff member, the parent provided a letter prepared by a professional who was providing services to the child. The parent wanted the letter considered by the IEP team in making its determination. However, the parent, during her interview with department staff acknowledged that the district staff member could have thought the information was provided for her consideration during her assessment of the student. The district staff member did read the letter and did consider the information provided during her evaluation of the student. The staff member also gave the letter to another IEP team participant for inclusion in the student’s file. District staff did not share the letter with all IEP team participants during the meeting. The parent also did not provide the letter at the meeting. District staff properly responded to the parent’s request that the letter be considered during the evaluation.

The district properly determined that the student does not have an other health impairment or an emotional behavioral disability. The department reviewed the test results, evaluation report, emotional behavioral disability checklist and reports submitted by IEP team participants. The district developed, and the IEP team considered, the information needed to determine whether the student is a child with a disability and properly documented its eligibility determination. The conclusion that the student does not have a disability is supported by information regarding the student which was gathered during the evaluation. The team made an individualized decision based on the student’s performance in school and information from evaluation assessments, applying criteria required in making the decision.

The parent maintains that district staff should have known the student is a child with a disability and referred the student for a special education evaluation prior to the incident resulting in the expulsion. Staff interviewed during this investigation did not believe they had reason to refer the student for an evaluation. In light of the IEP team decision regarding eligibility, district staff properly concluded that they did not have reasonable cause to believe the student has a disability.

Finally, the parent maintains she did not receive a proper procedural safeguards notice during the evaluation. The district did provide her with a copy of the safeguards notice developed by the department, along with modifications developed by Cooperative Educational Service Agency 6. These modifications were internet website addresses for guidance developed by the department following the reauthorization of the Individuals with Disabilities Education Act (IDEA 2004) in December 2004. The guidance explained many of the changes resulting from the reauthorized IDEA. It is the district’s practice to offer print version of the guidance to parents who may not have internet access. IDEA 2004 requires the United States Department of Education (US DOE) to develop a model procedural safeguards notice to be issued at the same time US DOE issues regulations implementing IDEA 2004 changes. US DOE initially indicated it would issue the final regulations no later than December 2005. The department chose to await development of the model safeguards statement by US DOE rather than develop such a statement for Wisconsin. The final federal regulations and model safeguards statement will be published on August 14, 2006. The department will make the safeguards statement available directly to districts, as well as making it available to the public from the department’s website.

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

//signed CST/SJP 8/7/06
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy