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IDEA Complaint Decision 13-036

On June 24, 2013, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against XXXXX. This is the department’s decision regarding that complaint. The issues are whether the independent charter school, from August 20, 2012 through December 19, 2012, properly conducted a special education evaluation and properly followed the special education disciplinary requirements.

Independent charter schools established under 118.40(2r) of the Wisconsin Statutes are not covered under state special education requirements unless explicitly stated otherwise. Independent charter schools are covered under Federal special education law and must follow the federal requirements. Federal law, like Wisconsin state law, permits a parent to request an initial evaluation at any time to determine if a child is a child with a disability. However, unlike Wisconsin law where the LEA must always proceed with the evaluation when a referral is made, federal law permits the local education agency (LEA) to decide whether to proceed with the evaluation. If the LEA agrees with a parent that the child may be a child who is eligible for special education and related services, the LEA must seek parental consent within a reasonable period of time after the referral and determine eligibility within 60 days of receiving the consent. If the LEA does not suspect that the child has a disability, the LEA may deny the request for an initial evaluation. The LEA must provide written notice to parents explaining why the LEA refuses to conduct an initial evaluation and the information that was used as the basis for this decision. The parent may challenge this decision by requesting a due process hearing or filing a complaint to resolve the dispute regarding the child’s need for an evaluation.

On October 10, 2012, the child’s parent requested, in writing, a special education evaluation of the child. Instead of proceeding with an initial evaluation, staff reviewed the May 31, 2012 special education evaluation completed by a previous Wisconsin LEA, which found the child not to be a child with a disability. The independent charter school’s intent to evaluate the child is documented in an e-mail communication from the child’s teacher stating, “[the child] has been in my room daily as [the child’s] referral begins and until a formal setting or plan is in place.” However, the LEA took no further action to evaluate the student. The LEA did not properly respond to the parent’s request for a special education evaluation.

Although the LEA did not move forward with the special education evaluation after the referral was made, the LEA began treating the student as a student with a disability in need of special education services. The student was removed from the regular education classroom, placed in a special education classroom, and began receiving instruction from a special education teacher. In doing so, the charter school placed a child in special education without following the required procedures, including seeking parental consent for initial placement. On December 10, 2012, the child engaged in behavior that violated the school’s code of student conduct. On December 19, an expulsion hearing was conducted and the child was expelled for the remainder of the 2012-13 school year. During the 2012-13 school year, before the December 10th incident, the student was suspended or removed from school for behavior that violated the code of student conduct for 14 days. Because the student was being treated as a special education student, the special education disciplinary requirements applied. Consequently, the LEA was required to provide services beginning on the 11th cumulative school day of removal in the school year and to conduct a manifestation determination prior to moving forward with the expulsion.

After the expulsion, the student enrolled in a different LEA. The new LEA evaluated the student and determined the child is not a child with a disability. Therefore no student specific corrective action is required. However, the LEA must, within 30 days from the date of this decision, submit to the department a corrective action plan to ensure the LEA properly responds to a request for a special education evaluation, follows proper procedures in placing a child in special education, and properly follows the special education disciplinary requirements.

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 8/23/2013
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support