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IDEA Complaint Decision 07-074

On October 24, 2007, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Marshall Public Schools. This is the department’s decision regarding that complaint. The issues are whether the district:

  • Properly determined needed health-related services to be included in a student’s individualized education program (IEP) for the 2007-2008 school year;
  • Properly responded to the parents’ request in May 2007 that their child be evaluated to determine whether he has an other health impairment (OHI);
  • Properly determined the student’s need for adaptive physical education (APE) and properly provided physical education to the student during the 2007-2008 school year; and
  • Properly determined and provided needed transportation services for the 2007-2008 school year.

On May 23, 2007, the IEP team met, at the request of the parent, to discuss parental concerns related to the health and safety of the student for the upcoming year and to review and revise the IEP and determine placement. A number of possible changes to the students program were discussed at the meeting.

At the time, the student’s IEP included Speech and Language, Occupational and Physical therapies (OT and PT) to address language, balance, endurance, fatigue, fine motor, and sensory needs. School nursing consultation services and supplemental aids and services related to the student’s identified special education needs were also included. The student also had a detailed Individual Heath Plan (IHP). The school nurse was responsible for implementing the IHP.

During the meeting, the parent shared outside medical information with the team and noted additional medical assessments and procedures would be completed during the summer. The team discussed the student’s health related needs and brainstormed options to address the needs. For example, the IEP team reached consensus that the student should begin the school year on a modified schedule to address anticipated fatigue issues. The district agreed to provide transportation to allow the student to attend school half days. On August 28, the parent informed the district she wanted the student to attend school full days rather than half days. The district complied with the parent’s request and provided transportation accordingly. The district properly determined and provided needed transportation services for the 2007-2008 school year.

The IEP team decided the school nurse would work with the student’s parents and doctors to update the student’s health plan as additional information was made available. District staff mentioned the student’s three-year reevaluation was due on November 3, 2007, and recommended the reevaluation include a consideration of Other Heath Impairment (OHI). The team recommended making no changes to the student’s IEP with respect to health needs pending additional medical information and the reevaluation to be scheduled in the fall. The parent requested the student’s IHP be attached to the IEP. The parents were told the district did not attach student health plans to IEPs.

The district is required to determine whether a child with a disability needs related services including school health or school nursing services in order to benefit from special education. Related services found necessary must be included in the student’s IEP. The district discussed the student’s health needs and made a decision regarding how to address the needs, including the decision to initiate a reevaluation to consider whether the student met eligibility criteria for OHI. The student’s IHP was shared with appropriate staff. Under the circumstances specific to this case, the district properly addressed the student’s health related needs.

The district was not required to attach the IHP to the IEP, but was required to notify the parent of their refusal to do so in a timely fashion after the parent’s request on May 23rd. The district did not provide such timely notice. On September 10, the parent again requested the student’s health plan be attached to the IEP. On September 13, 2007, the district properly provided the parent with notice of the district’s refusal to modify the student’s IEP in this way. This response, however, was well after the parent’s original request in May and does not meet the statutory requirement of timely notice.

The district, through counsel, argues that a district is not required to initiate a reevaluation upon parent request to consider an additional area of disability when a child is already receiving special education services. State law, however, specifically requires a district to reevaluate a child with a disability upon parent request. The only exception to this requirement is when the child has already been evaluated within a year and the district does not agree that another evaluation is necessary. If the district refuses to initiate a reevaluation relying on this exception, it must provide the parent timely notice of its refusal to grant the parent’s request. The exception does not apply in this case because the last evaluation was completed in November 2004.

The district acknowledges through counsel that the parent requested a reevaluation during the May 23, 2007, IEP team meeting. The district argues, through counsel, that there is no statutory or regulatory timeline within which a school district must respond to a request for reevaluation of a student with a disability who is receiving special education services (outside the three-year required reevaluation timeline and one time per year maximum reevaluation requirement). Unlike federal law, Wisconsin has long had a timeline for both initial and reevaluations. A timeline for reevaluations was preserved when state law was revised to reflect the new federal 60 day timeline for initial evaluations created in IDEA 2004. Under state law, if additional data is necessary to complete an evaluation, a district must send to the parent a request for consent to evaluate within 15 business days of receipt of a referral for evaluation. This requirement applies to both initial evaluations and reevaluations. The 60-day timeline runs from receipt of parent consent and applies to both initial evaluations and reevaluations. In this case, the district had an obligation to initiate the reevaluation and to seek parent consent within 15 business days of the parent’s request or to advise the parent to put her referral in writing and seek parent consent within 15 business days of receipt of the written referral. Instead, it appears the district decided to delay initiation of the reevaluation because the triennial reevaluation would be due in November 2007. A notice initiating the reevaluation was sent to the parent on September 6. The district did not properly respond to the parent request for reevaluation because the district failed to timely act upon that request.

The parents also assert the district did not properly respond to their request for an evaluation to consider OHI because the notices they received did not identify OHI would be considered and noted August 28 instead of May 23 as the date the reevaluation was discussed with the parent. On August 28, 2007, following a planning meeting not considered to be an IEP team meeting, the parent was told she would soon be receiving paperwork to initiate the three-year reevaluation including a consent form to be signed before assessments could be completed. The district considered this to be the date of parent participation in the review of existing data and decision to conduct additional assessments. The parent does not recall discussing specific assessments on August 28 and believed the discussion about the evaluation occurred on May 23.

The September 6 notice initiating the reevaluation indicated the student’s heath related needs and adaptive physical education (APE) eligibility would be addressed but did not specify eligibility for OHI would be considered. On September 10, the district notified the parent of the need to complete additional assessments and requested parental consent. The notice did not specify OHI would be considered. The parent interpreted the notices to mean the IEP team would not be considering OHI during the reevaluation.

A district is not required to specify impairments the IEP team may consider on a notice of reevaluation or consent to conduct additional assessments. On September 11, the parent informed the district she would not sign the consent form and requested OHI be added to the notice. On September 13, the district responded it has processed a referral for OHI, would proceed with necessary assessments when consent was received, and would consider if the student met OHI eligibility criteria at the evaluation meeting. On September 21, an amended referral notice was sent to the parent, followed on September 24, by an amended notice of assessments to be administered and request for consent. The notices specified OHI would be considered. A second request for consent was sent on October 8. The parent provided consent for the reevaluation on Oct. 22, 2007. The district appropriately responded to the parent request for documentation that the IEP team would consider OHI. IEP team evaluation meetings were held November 2 and November 16, 2007. The student’s eligibility for OHI was considered and the student was found to meet criteria as having the impairment of OHI.

During the May 23rd meeting, the IEP team also discussed the student’s needs related to physical education. There was a consensus the student would likely need modification to regular physical education when school resumed in the fall. However, the IEP team did not make changes to the IEP at that time. The district asserts through counsel that it could not proceed to make a decision regarding adding APE to the student’s IEP until required members of the IEP team conducted assessments of the student’s motor functioning and determined the student’s eligibility for specialized physical education instruction.

No eligibility criteria exist in federal or state law to qualify or disqualify a child with a disability for specially designed physical education. An IEP team may add a special education service, including specially designed physical education, or may add supplementary aids and services, such as adaptations or modifications to regular physical education, to a student’s IEP without an evaluation. An evaluation is only required if there is insufficient information with which to determine needed special education or related services. In this case, the IEP team reached consensus that the student needed modification to regular PE. However, the IEP team participants incorrectly assumed an evaluation by a licensed APE teacher was required before the IEP team could revise the student’s IEP with respect to PE. The district did not properly determine the student’s need for adaptive physical education on May 23, 2007.

After requesting a copy of the student’s revised IEP on August 1, and receiving a coversheet and letter stating it was the district’s belief that no changes were made to the IEP during the May 23 IEP team meeting, the parent, on August 14 voiced concern the student’s needs, including the need for APE, would not be addressed until the annual IEP date in November. On September 7, the student’s doctor sent a letter to the district recommending the student receive APE and asked the district to adhere to this recommendation. The district responded to the physician and parent that the decision to add adaptive physical education must be made by the student’s IEP team. The district did not immediately schedule an IEP team meeting to discuss the student’s physical education program. Soon after, the parent told school staff the student was not allowed to participate in physical education, unless it was APE. District staff honored the parent’s request and did not include the student in PE after September 13, 2007.

On September 10, the parent requested the student receive APE immediately. The district responded on September 13 that it would schedule an IEP team meeting to consider the student’s need for APE. On October 17, 2007, a notice was sent to the parent scheduling an IEP team meeting on November 2 for the purpose of reevaluation, IEP review and revision, annual IEP, and placement. Federal law requires districts to provide physical education, specially designed if necessary, to every student with a disability unless it does not provide physical education to children without disabilities in the same grades. On November 2, the district completed its reevaluation and determined the student required APE. APE was provided beginning the following week. Adaptive physical education was added to the student’s IEP during an IEP team meeting on November 16. The student did not receive any physical education until the week of November 5, 2007. The district failed to provide physical education to the student between September 13, 2007, and November 6, 2007.

In summary, there was no formal written documentation of the IEP team decisions made during the May 23, 2007, meeting. The district’s failure to provide timely written notice of the district’s decisions regarding the students identification, evaluation, IEP, or provision of a free appropriate public education (FAPE), likely added to the parent’s confusion about what, if any, decisions had been made regarding the student’s IEP for the upcoming year, the exact nature of the student’s reevaluation, and when the reevaluation would be initiated and completed. It was not until September 13, 2007, following numerous correspondences between the parent and district during August and early September, that the district provided written notice regarding decisions made during the May 23, 2007, meeting. As a result of the department’s investigation, within 30 days of receiving this decision, the district must submit proposed corrective actions to the department to ensure the following:

  • IEP team decisions are properly documented and written notice is provided to parents a reasonable time before the district proposes or refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child, including timely response to requests for reevaluation.
  • IEP team participants understand an IEP team may add specially designed physical education, including APE, without conducting a reevaluation of the child by a licensed APE teacher.
  • Physical education services, specially designed if necessary, are made available to every child with a disability, unless the public agency enrolls children without disabilities and does not provide physical education to children without disabilities in the same grades.
  • An IEP team meeting is held within 30 days to consider whether compensatory services are needed to address the district’ failure to provide physical education to the student between September 13 and November 6, 2007.

This concludes our review of this complaint.

//signed CST 12/19/07
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy