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IDEA Complaint Decision 13-052

On October 17, 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 on the complaint. The issues are whether the district, during the 2013-14 school year, properly responded to a parent’s request for an independent educational evaluation (IEE), provided a free appropriate public education (FAPE) to a student with a disability, and properly determined placement in the least restrictive environment.

A school district must provide to parents, upon request for an IEE, information about where an IEE may be obtained and the agency criteria applicable for IEEs. The district must then ensure the IEE is provided at public expense without undue delay. The parent submitted a request for an IEE on June 7, 2013. The IEE requested identified academics, occupational therapy, and speech and language as areas to be evaluated and designated a specific evaluator. The parent also requested observations of the student by a specific evaluator regarding autism when school resumed in the fall. Over the next several months the district worked to contract evaluators that met the parent’s requirements and were available to conduct the evaluation. Ultimately three individuals evaluated the student in the areas of academic achievement and sensory processing, speech and language, and autism. The student’s individualized education program (IEP) team met on November 25, 2013, to review the results of the IEE. The IEE was delayed by the availability of the evaluators specified by the parent, the parent's desire to have the student observed in the classroom setting, and some confusion over the responsibilities of particular evaluators. Under all of the circumstances, the time in completing the IEE was not unreasonable. The district appropriately responded to the parent’s request for an IEE.

The student’s IEP team met on May 31, 2013, and June 10, 2013, to complete a reevaluation of the student. During the meeting the IEP team agreed the student’s IEP, originally developed on May 30, 2012, would continue in effect until the IEP team could consider the results of the IEE requested by the parent. The IEP, developed in May of 2012, indicated all special education and related services would be provided in the regular education environment. The district implemented this IEP when the student returned to school in September. From October 10 to November 14, the student received daily outpatient medical treatment in the afternoons, while attending school in the mornings. The parent believes providing services in a different environment would have been appropriate during this period.

FAPE is defined as special education and related services that are provided at no charge under public supervision and direction, meet the standards of the State Education Agency, include an appropriate preschool, elementary school, or secondary school education, and are provided in conformity with an IEP. In Wisconsin, IEP teams are not only responsible for developing the student’s IEP that will provide FAPE, but in also determining where it will be provided. A student must, to the maximum extent appropriate, be educated with his or her nondisabled peers. Special classes, separate schooling, or other removal from the regular education environment should only occur if education in the regular classroom cannot be satisfactorily achieved with the use of supplementary aids and services. Districts must ensure a student’s IEP team meets as least annually to review and revise the IEP and determine the student’s placement in the least-restrictive environment. A parent’s request for an IEE does not relieve a district of its obligation to complete an annual review of the IEP. Likewise a student’s IEP should be reviewed when a student experiences a significant change in circumstances, such as an extended absence, to determine whether the student’s IEP continues to meet the student’s individual needs.

The student’s IEP team should have reviewed and revised, as appropriate, the student’s IEP in May and again in October. Although the district continued to implement the IEP developed in May 2012, the department is unable to determine whether the district properly determined placement in the least restrictive environment because of the district’s failure to review the IEP as required.

The district must, within 30 days from the date of this decision, schedule an IEP team meeting to discuss whether the student was provided FAPE between October 10, 2013, and November 14, 2013, and consider whether compensatory services are necessary. The district must, within 30 days from the date of this decision, submit a corrective action plan to ensure IEPs are reviewed and revised on an annual basis and when there is a significant change in a student’s circumstances.

This concludes our review of this complaint.

//signed CST 12/16/2013
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support