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IDEA Complaint Decision 10-077

On December 9, 2010, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Wisconsin Rapids School District. This is the department’s decision regarding that complaint. The issues are whether the district properly conducted a special education evaluation in the spring of 2010 and properly responded to a request for a special education evaluation in the fall of 2010.

On March 16, 2010, a guardian of a student submitted a written referral for a special education evaluation to the district. The guardian indicated the student was diagnosed with attention deficit hyperactivity disorder (ADHD) on the referral form. The Notice of Receipt of Referral was sent to the guardian on March 29, 2010. A Notice and Consent regarding the Need to Conduct Additional Assessment as part of an initial evaluation dated April 5, 2010, was sent to the guardian. The district received the guardian’s written consent to evaluate on April 19, 2010. On the consent form, the guardian indicated that his primary concern was the student’s poor grades and ADHD, and not behavioral issues. The student had previously been determined eligible for special education under the area of emotional behavioral disability (EBD) but was later dismissed.

On June 1, 2010, an individualized education program (IEP) team meeting for the purpose of evaluation, including determination of eligibility, was held. The IEP team reviewed information, including medical reports, indicating that the student was diagnosed with ADHD. The IEP team also noted that the student struggled with completing assignments and was receiving organizational support. In determining eligibility, the IEP team only reviewed the criteria for EBD and found the student did not meet the criteria.

An IEP team must assess in all areas of suspected disability. A child with ADHD may be eligible as a child with a disability under the other health impaired (OHI) disability category solely by reason of ADHD, if the child meets the OHI eligibility criteria and requires special education. The parent had informed the district that behavior was not his primary concern, but rather the student’s academic struggles as a result of his ADHD. The district also had information that the student was having difficulty with homework completion and organization. However, the district failed to consider OHI as a possible area of impairment. The district did not properly conduct an initial evaluation in the spring of 2010.

In late November 2010, a district staff member submitted a written referral for special education. The reason for the referral included the student’s aggressive behaviors and academic struggles. On December 1, 2010, the district sent an email to the guardian stating a referral had been made for the student to evaluate behavior and academics. Later on December 1, 2010, the guardian sent an email to the district stating he wanted to go through with a 504 evaluation. The guardian was unclear about the differences and believed that a 504 evaluation would not focus on behavior. The district did not continue with the special education referral and evaluation process but conducted a 504 evaluation. The 504 evaluation was completed on January 12, 2011, and a 504 plan was developed. The guardian is now requesting a special education evaluation.

Once the referral had been submitted by the district staff member, the district should have provided the guardian with the notice of receipt of referral and start of initial evaluation and proceeded with the special education evaluation process. If the guardian did not consent to testing, the district could chose not to proceed further with the evaluation. The district, however, would also have the option of requesting mediation or a due process hearing about whether the assessments should be administered. An individual who is required by state law to make a referral is also required under state law to notify the student’s parent before submitting a referral to the LEA. The district staff member did not provide notice to the parent before submitting the referral, and the district did not properly respond to a request for a special education evaluation in the fall of 2010.

As corrective action, the district must proceed with the November 2010 referral, and upon completion, submit the evaluation materials to the department. The district must also submit a corrective action plan to ensure special education evaluation procedures are followed.

All noncompliance identified above must be corrected as soon as possible, but in no case more than one year from the date of this decision. This concludes our review of this complaint.

//signed CST/SJP 2/7/11
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy