On January 12, 2015, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the XXXXX School District. This is the department’s decision regarding that complaint. The issues are whether the district, after January 12, 2014, properly identified, located and evaluated a child with a disability, and properly followed special education discipline requirements.
The student enrolled as a freshman in the district’s high school during the 2012-13 school year. In November of 2012, the student received one week of inpatient treatment for mental health issues. In connection with this hospitalization, the district’s school counselor participated telephonically in meetings with hospital staff. Midway through the school year, the counselor initiated weekly general counseling with the student to address the student’s academic issues, as well as the student’s depression and anxiety. These sessions continued throughout the student’s tenure at the district’s high school. The counselor was also aware that the student was receiving regular outpatient mental health treatment.
During the fall semester of the 2013-14 school year, the student’s attendance at the high school and academic performance became sporadic. Several of the student’s absences related to suspensions. In September of 2013, the student received three suspensions. The first suspension stemmed from a tobacco violation. Shortly thereafter, the student received a suspension for displaying a video on social media depicting inappropriate behavior. The student received a third suspension for using social media, while at school, to display an inappropriate image that the student had drawn. During the same semester, in December, the student again received a suspension for a tobacco violation. In communications between the student’s parents and the principal resulting from these behavioral issues, the principal learned that the student was receiving regular treatment for depression.
During fall semester, in addition to the absences stemming from the suspensions, the student missed 14 full or partial days in connection with out-of-school medical appointments, illness, or unexcused absences. These absences did not include classes missed to attend sessions with the school counselor.
The district’s high school reports grades on a quarterly basis. During the fall semester, the student received two failing quarterly grades and three quarterly grades in the D range. The student’s averages for the semester did not contain any failing grades, but they did contain three grades in the D range.
School staff discussed the student’s poor academic performance during faculty meetings. Staff perceived the student’s academic performance to be sporadic. For periods of time, the student performed well, turned in assignments, and attended classes. At other times, the student did not perform well, did not complete assignments, and missed class for health reasons and disciplinary reasons. District staff did not suspect that the student’s behavioral and academic problems were related to a disability because, at least for periods of time, the student was capable of performing adequately.
In January of 2014, the school counselor arranged a meeting with the student, the student’s parents, and the student’s teachers. The purpose of the meeting was to address the student’s poor academic performance. The details of the discussions during this meeting are disputed; however, to some extent, the participants discussed accommodations for the student.
During the spring semester, the student’s academic, attendance, and behavioral problems persisted. For the period of time that the student was enrolled in the district during this semester, the student missed 12 full or partial days in connection with out-of-school medical appointments, illness, or unexcused absences.
On March 7, 2014, the student received a five day suspension for attempting to give another student over-the-counter cold medicine. On March 28, 2014, the student received a 10 day suspension pending an expulsion, because the student again offered a fellow student nonprescription medicine.
On March 31, 2014, in an email to the school principal and the school counselor, the student’s mother asked about the procedures related to obtaining an individualized education program (IEP). The next day, April 1, 2014, the principal responded to other concerns raised in the email, but did not specifically respond to the question about the special education evaluation process.
In April, the mother contacted the department and was informed of how to initiate a special education evaluation. This communication was the first time that the parents received an explanation regarding the process for making a special education referral. On April 3, 2014, the mother sent the district a written referral for special education and related services. Upon receiving the request, the district commenced the special education evaluation process. However, the district did not move forward with the expulsion or complete the special education evaluation process because the student subsequently withdrew from the district and enrolled in the neighboring district.
On April 8, 2014, the district received a request from a neighboring school district for the student’s records. The neighboring district evaluated the student for special education and related services, but it did not conduct any additional testing. Instead, it relied on the previous examinations and other data it received from the district. The neighboring district determined that the student was a student with an emotional behavioral disability and that the student needed special education and related services.
On August 13, 2014, and August 14, 2014, the district published a “Notice of Child Find Activity” in two local newspapers. The publication described the district’s written policies related to special education referral procedures as follows:
The school district has a special education screening program to locate and screen all children with suspected disabilities who have not graduated from high school. Upon request the school district will screen a child who has not graduated high school to determine whether a special education referral is appropriate. A request may be made by contacting [name and contact information for the district’s Director of Special Education].
During the three years preceding this complaint, staff received no training on the district’s special education referral procedures. Some of the district’s staff had never received training on the district’s special education referral procedures. District staff members generally informed the district’s special education personnel when they suspected that a student needed special education and related services.
Whether the district properly identified, located, and evaluated a child with a disability
A school district must identify, locate, and evaluate all resident students with disabilities who are in need of special education and related services. In order to carry out this duty, a district must conduct "child find" activities. These activities include procedures directed at licensed educators employed by the district and non-district professionals who are required under state law to refer a child who they reasonably believe is a child with a disability for a special education evaluation. The district must establish written procedures for accepting and processing referrals, and the district must annually inform parents and persons required to make these referrals about the district’s referral and evaluation procedures. In addition, the district must provide information and in-service opportunities to its entire licensed staff to familiarize them with the district’s referral procedures.
Referrals must be in writing, include the name of the child, and the reasons why the person believes that the child is a child with a disability. Any person, including the parent, may make a special education referral, and a district must accept and process all the referrals that it receives. When a parent makes a verbal request for a special education evaluation, the district must inform the parent of their right to make a referral and how to make a referral.
The district did not properly identify, locate, and evaluate a student with a disability. The district’s annual child find notice does not explain how to make a referral and, moreover, creates the impression that the ability to make a special education referral lies exclusively with the district. The district also failed to provide adequate training opportunities for its staff to learn about special education referral procedures. For more than three years, the district did not make this training available to its staff. As a consequence of this gap, some staff members had never received training on the district’s special education referral process.
In addition, when the parent asked for information about special education evaluation procedures on March 31, 2014, the district did not inform the parent of her right to make a referral and how she could do so. Finally, based on the facts in this case, the district had an independent obligation to refer the student for a special education evaluation. Independently, failing grades, behavioral issues, and poor attendance do not trigger a district’s obligation to refer a student for a special education evaluation; however, in the aggregate, these factors may give rise to such an obligation. The student was enrolled in the district’s high school for nearly two years. During that time, the student experienced periods of low and failing grades. Also, the student incurred excessive absences, including hospitalization and regular outpatient mental health treatment. District personnel were aware that the student received regular mental health treatment and had been hospitalized for mental health issues. Finally, the student exhibited behavior which resulted in multiple suspensions. Combined, these factors triggered the district’s obligation to refer the student for a special education evaluation.
Whether the district properly followed special education discipline requirements
The student was not identified as eligible for special education and related services until after the disciplinary actions had occurred, while the student was enrolled in a different district. Accordingly, the district was only required to follow the special education disciplinary requirements if it was deemed to have had knowledge that the student was a student with a disability. Three circumstances exist under which a district will be deemed to have had knowledge that the student was a student with a disability.
The first circumstance is when a parent has expressed concern in writing to district supervisory or administrative personnel, or to one of the child's teachers, that the child is in need of special education and related services. The student’s parents expressed such concerns to the appropriate personnel; however, not until after the disciplinary actions had transpired.
The second circumstance is when a parent has requested an evaluation of the child. Wisconsin law requires that special education evaluation request be made in writing. Here again, the student’s mother made a written evaluation request, but not until after the disciplinary actions had transpired.
The third circumstance is when the child's teacher, or other district personnel, has expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education or to other district supervisory personnel. Interviews with the director of special education, the school principal, and the student’s teachers revealed that no district personnel expressed concerns about a pattern of behavior to the director of special education or other district supervisory staff.
In this case, the student had not yet been identified as eligible for special education at the time of the disciplinary actions, and no further disciplinary actions occurred after the district was deemed to have had knowledge that the student was a student with a disability. Accordingly, the district did not violate special education discipline requirements.
Within 30 days from the date of this decision, the district must develop a corrective action plan to ensure that staff are trained on state and federal law requirements regarding properly identifying, locating and evaluating a child with a disability. The corrective action must include a process to ensure training is conducted periodically to address staff turnover. The district must also revise the procedures described in its child find notice so that it complies with state and federal special education law. The district must submit to the department a copy of the revised notice. No child specific corrective action is required because the student is no longer enrolled in the district.
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 3/13/2015
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support