On May 8, 2017, the Department of Public Instruction (DPI) 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 issues cover a time period starting May 8, 2016, and are addressed below.
The student began attending a district school on November 2, 2015. Prior to this, the student resided and received education in a country outside of the United States. In December 2015, the student was referred for special education by the student’s teacher, and the parent provided consent for additional testing on January 19, 2016. On February 1, district staff spoke to the parent on the telephone and they agreed the evaluation would be extended because the student was being initially evaluated for specific learning disabilities (SLD), and additional time was needed to implement scientific, research-based interventions (SRBIs) and collect progress monitoring data. On February 25, the parent signed the agreement to extend the time limit to complete the evaluation to June 18. On
May 24, district staff spoke to the parent on the telephone and they agreed the evaluation would be extended, and on May 26, the parent signed a second agreement to extend the time for completing the evaluation to November 30, 2016.
During the evaluation process, the IEP team received an evaluation report from the student’s country of origin. This report indicated very low scores in intellectual functioning and achievement. Given this new information the IEP team conducted a second review of existing data on June 13, 2016, to determine what additional data, if any, were needed to complete the evaluation and consider the impairment area of intellectual disability (ID). The parent participated in the review by telephone and provided signed consent for the additional assessments. In August 2016, the parent hired a private educational consultant to assist in getting a program in place for the student, and also hired a psychologist to conduct a private evaluation of the student. This evaluation was provided to the district as additional information for the purpose of the special education evaluation.
On October 10, 2016, the student’s IEP team met to determine the student’s initial eligibility for special education, develop an initial IEP with a transition plan and determine the student’s initial placement. The student’s parent participated in the IEP team meeting by phone. The required district IEP team members attended the meeting. The IEP team determined the student did not meet the criteria for SLD, stating, “The IEP team considered and rejected the impairment area of SLD. (Student’s Name) has not completed two scientific, research-based interventions designed to increase (the student’s) level of basic reading skills. As a result there is not sufficient data to determine if (Student’s Name) displays sufficient progress toward age or grade expected levels or adequate levels of classroom achievement.” The IEP team determined the student met the criteria in the impairment area of ID. The IEP team reviewed the student’s current academic achievement and functional performance, identified disability-related needs, and developed four annual goals. The IEP team identified special education services to meet the student’s needs and support the annual goals. The team determined the student would receive 30 minutes per day of specially designed instruction in reading and writing and 30 minutes per day of specially designed instruction in mathematics, to be provided in the regular education environment. In addition, the team determined the student would receive 51 minutes per day of specially designed reading and writing instruction in the content area of social studies and 51 minutes per day specially designed instruction in organization, and work completion to be provided in the special education environment. On October 17, 2016, the district provided the parent written notice of the IEP team determination and placement notice.
On October 21, 2016, the IEP team met again to review and revise the student’s IEP and determine continuing placement. The parent participated in the meeting by telephone along with the student’s private psychologist. The family’s private education consultant and the student participated in the IEP meeting in person. The IEP team reviewed the student’s current services and academic achievement and functional performance, and did not change the four annual goals. The team added three additional supplementary aid and services for the student. Additionally, in the present levels section of the IEP, the team stated: “A daily sheet will be implemented that “Student’s Name” can take home to her aunt so she is aware of her behavior during the day.” During the meeting, the parent, the private education consultant and the private psychologist expressed concerns that the student needed a different placement with smaller class sizes, as well as a functional skills curriculum, to become independent. The IEP team considered these concerns but determined the student’s current services and placement was appropriate to address the student’s needs and the team would reconvene in January to assess the student’s progress. The IEP team also agreed to a reevaluation to determine whether the student qualified for special education in the area of speech and language (SL) and to consider whether the student had needs for related services in the area of SL and occupational therapy (OT). The IEP developed on October 21 was implemented on October 28, 2016.
On December 21, 2016, the IEP team met again to review and revise the student’s IEP and determine continuing placement. The parent participated in the meeting by telephone. The family’s private education consultant and the student participated in the IEP meeting in person. The IEP team determined starting second semester, the student would participate in the alternate academic achievement standards (Wisconsin Essential Elements). The student’s four existing annual goals were not changed; however short-term objectives were added to each goal. The team added a fifth goal with objectives in the area of work readiness skills. The team adjusted the duration dates on the supplementary aids and services for the student but did not change the description of the services. The IEP team determined the student’s related services would remain the same. In addition, the team added the special education service, “specialized instruction in all academic areas concurrent with vocation, functional, and social skills,” in the special education environment, 51 minutes six times per day.
On January 6, 2017, the district conducted an IEP team meeting to consider whether the student was eligible for special education in the impairment area of SL, and whether the student had needs for related services in the areas of SL and OT. The parent did not participate in the meeting. The family’s private education consultant and the student participated in the IEP meeting in person. The IEP team determined the student continued to be a child with a disability with an impairment in the area of ID, but considered and rejected the student’s eligibility under the impairment area of SL and provision of related services in the areas of SL or OT. The IEP team determined the student would continue to receive specialized instruction in math in a team taught class and be provided specialized instruction in all other academic content areas, concurrent with social and vocational skills, in the special education environment.
On March 10, 2017, the district conducted an IEP team meeting to review and revise the IEP, develop a transition plan and determine continuing placement. The parent did not participate in the meeting, but had instructed the district to conduct the meeting with the family’s private education consultant representing the family. The consultant and the student participated in the IEP team meeting in person. The IEP team discussed the student’s needs in the areas of reading, basic functional math, behavior, motivation, assistive technology, use of a daily behavior sheet, specialized reading class, math assessment, career field of interest, and missing classes. The team determined the student would continue to be provided specialized instruction in all academic content areas concurrent with social and vocational skills in the special education environment between March 20, 2017 and January 5, 2018.
Did the district properly identify, locate, and evaluate a child with a disability?
School districts are required under state and federal special education law to locate, identify, and evaluate all resident students with disabilities who have not graduated from high school. Each district must establish procedures for processing referrals. All referrals must be in writing and the district must accept and process all referrals submitted to the district.
Wisconsin’s special education eligibility rule for initial SLD evaluations requires IEP teams to review student progress data based upon the student’s response to two SRBIs for each area of concern. In some instances SRBIs have been completed prior to the referral and required progress data is available during the review of existing data. In other instances, all or some of the SRBIs are implemented and required progress data are collected after the referral. SRBIs must be implemented with adequate fidelity, meaning they must be provided in a manner highly consistent with their design and for at least 80 percent of the recommended number of weeks, sessions, and minutes per session. The duration of the intervention must be long enough for collection of sufficient progress monitoring data for the IEP team to make reliable decisions about eligibility.
Following the district’s receipt of written parental consent to administer assessments, the IEP team must determine the student’s eligibility for special education within 60 days. The 60-day timeline may be extended if the student is being initially evaluated for SLD and additional time is needed to collect the necessary data. The decision to extend the timeline for this reason must be made by written agreement of the IEP team, including the parent. The agreement should include the date when the evaluation will be completed. Timeline extensions may not be used to unnecessarily delay special education evaluations. The school district is responsible for ensuring SRBIs are properly and timely implemented and progress monitoring data used by IEP teams are collected in a manner consistent with the SLD evaluation criteria. Any concerns about the implementation of SRBIs or the collection of required progress data should be addressed well before an IEP team evaluation meeting is held to determine eligibility. In this case, although the timeline for determining eligibility was extended twice, the SRBIs were not completed and the district did not collect the necessary progress data to determine eligibility. Consequently, the district did not properly conduct an evaluation to determine eligibility for SLD. However, because the student was identified as a student with an intellectual disability, the district is not required to conduct another SLD evaluation of the student. A student who has been identified under the impairment area of ID cannot also be identified with SLD. ID is considered the primary reason for the student’s below expected levels of academic achievement, and is an exclusionary factor for the impairment area of SLD.
The January 6th determination as to whether the student qualified for special education under the impairment area of SL and/or required SL as a related service was also not properly conducted. The documentation contains inconsistent information on which the eligibility determination was based. The IEP team based the eligibility decision on test results that the IEP team also determined were unreliable due a lack of standardization on an appropriate normative sample for the test administered. The team also determined the student did not have a need for related SL services because the student would be receiving educational services through the ID program. The determination as to whether a student requires a specific related service must be based upon that student’s unique needs. The district is directed to reevaluate the student in the area of SL. Within 10 days of completing the evaluation, a copy of the evaluation report must be sent to the department. In addition, if the IEP team determines that SL as specially designed instruction or as a related service is required, the IEP team must consider whether compensatory services are required, and provide documentation to the department.
Did the district properly develop an IEP, including an appropriate placement, for a student with a disability?
The student’s IEP team determines the appropriate education placement for the student giving care to ensure the student is educated with nondisabled students to the maximum extent appropriate. Unless the IEP requires some other arrangement, the student should be educated in the school the student would otherwise attend if the student did not have a disability.
After development of the student’s initial October 10, 2016 IEP, an IEP team reviewed and revised the student’s IEP four times during the course of the school year. The student’s IEP was developed consistent with all procedural requirements and included annual goals and special education services aligned with the student’s disability-related needs. In determining placement, the IEP team considered the parents’ concerns and determined that the appropriate placement was at the district’s high school. This decision was made in accordance with the IEP and requirements that the student be educated to the maximum extent appropriate with students without disabilities and in the school the student would attend if not disabled. The district properly developed IEPs including an appropriate placement for the student.
Did the district provide required special education services utilizing properly licensed staff?
Each school board must ensure every teacher, aide, or other professional staff holds a valid certificate, license, or permit issued by the department for the position for which the individual is employed before engaging in duties of such a position. The local educational agency (LEA) must ensure professional teaching responsibilities are carried out by a special education teacher who is licensed by the department.
Between October 24, 2016, and June, 2017, the student was provided special education services by three special education teachers. Two teachers participated in an alternate route for special education licensure that met all requirements, and were awarded teaching licenses valid July 1, 2016, through June 30, 2017, for early adolescence-adolescence cross-categorical special education. The third teacher, although enrolled a university program to complete initial teaching certification in cross-categorical special education, did not apply for or receive a teaching license. After the first semester of the 2016-2017 school year, the teacher resigned from her position and left the district. During first semester of the 2016-2017 school year, the district did not provide required special education services utilizing properly licensed staff. Within 30 days from the date of the decision, the district must conduct an IEP team meeting to consider compensatory services, and provide documentation to the department of this consideration within 10 days of the meeting.
Did the district properly provide parents information about the student’s progress toward annual IEP goals?
The student’s IEPs included a description of how the student’s progress toward meeting the annual goals would be measured and when progress reports would be provided to the parents. The student’s IEPs, in effect during the first semester of the 2016-17 school year, state that progress on the annual IEP goals would be provided to parents at the end of each semester. Documentation provided by the district demonstrates that while progress reports on each annual goal was provided at the end of the second semester, it was not provided at the end of first semester as specified in the IEP. The district must send a 2016-2017 first semester progress report to the parent, within 20 days of the date of this decision. Within 10 days of sending the progress report, a copy of the progress report must be sent to the department.
In addition to the child specific corrective action, within 30 days of the date of this decision, the district must develop a corrective action plan (CAP) to ensure initial evaluations conducted by district-wide evaluation teams are properly conducted, including properly implementing SRBIs and collecting progress monitoring data. The proper completion of special education evaluations is usually a shared responsibility for special education and regular education staff. This is particularly true for initial SLD evaluations, for which SRBIs are almost always provided by regular education school-based staff. The department emphasizes the importance of this shared responsibility, including clear communication among district special education and regular education administrative staff, district departments, and school-based special education and regular education staff. As such, creation of this corrective action plan, development of the activities to carry it out, and the implementation of the activities will also be shared responsibilities. In addition, the corrective action plan must ensure speech and language evaluations are properly conducted, required special education services are provided utilizing properly licensed staff, and parents are properly provided information about students’ progress toward annual IEP goals.
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.