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IDEA Complaint Decision 07-079

On November 2, 2007, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Milwaukee Public Schools. This is the department’s decision regarding that complaint. The issue is whether the district, in early 2007, ensured that it properly determined a child’s eligibility for special education.

On April 23, 2007, the child’s legal guardian met with a district school psychologist and referred the child for a special education evaluation. The child’s guardian shared the report of a private licensed clinical psychologist who examined the child. Referral concerns recorded on the special education referral form state: “(Student’s name) has been suspended a number of times for disorderly conduct. A recent evaluation (March 2007) was completed by a psychologist who indicated that (student’s name) is currently functioning around a 4th/5th grade level. The psychologist recommended an IEP. (Student’s name) guardian indicated some behavioral concerns such as being inattentive, destructive, and disrespectful.” After reviewing the current referral information, parent information and outside agency reports the district individualized education program (IEP) team determined with guardian input that the student would be evaluated in the following areas: academic achievement, behavior, intellectual, social, emotional, and developmental/adaptive. On April 27, the child’s guardian gave consent for the school district to administer the tests or other evaluation materials described in the notice and consent regarding the need to conduct additional tests.

On June 12, 2007, an IEP team met to determine eligibility, develop an initial IEP, develop a transition statement, and determine initial placement. The child’s guardian attended the IEP team meeting. The evaluation report includes information provided by the guardian through the school social worker interview. The child’s guardian stated the child had a complete physical from a doctor one month ago and the guardian did not have any health concerns for the child. Both the child’s guardian and classroom teacher regarded the child’s behavior to be more problematic than typical peers of his age. The school psychologist noted that the student’s behavior was “...different than that of his other classmates. He appeared to be disruptive to others.” The team considered the criteria for other health impairment based on possible attention deficit and determined the child did not have an impairment. Members of the IEP team do not recall why the team did not consider other impairments.

A local educational agency must conduct a full and individual initial evaluation to determine if the child is a child with a disability. The child must be assessed in all areas related to the suspected disability. Although the district assessed the student in all appropriate areas the IEP team focused only on attention deficit under other health impairment criteria in determining eligibility. Information from the parent, teacher, school psychologist, and outside psychologist included behavior and academic concerns but the team did not consider whether the student met the criteria for emotional behavioral disabilities, learning disabilities or cognitive disabilities. The student is currently being evaluated at another school in the district. If the IEP team determines that the child is a child with a disability the IEP team must also determine if compensatory services are required due to the delay in determining the child’s eligibility for special education.

By January 18, 2008, the district must review and revise if needed special education procedures to ensure that when conducting a special education evaluation a child is assessed in all areas and all areas of suspected disability are considered by the IEP team. All special education leadership liaisons, special services supervisors, school psychologist and special education teachers must be provided training on evaluation procedures. By February 15, 2008, the district must send to DPI a copy of the district procedures and a signed assurance that all identified staff has been provided training.

This concludes our review of this complaint.

//signed CST 12/20/07
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy