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IDEA Complaint Decision 16-033

On April 27, 2016 (form dated April 22, 2016), the Department of Public Instruction (department) 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, during the 2015-16 school year, properly responded to requests from a parent for a special education evaluation and properly applied special education disciplinary requirements.

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 written procedures for accepting and processing referrals and 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, who reasonably believes that a child is a child with a disability, may refer the child to a local educational agency (LEA). Any department-licensed school staff member who reasonably believes a child has a disability is required to refer the child for a special education evaluation. When a verbal request for a special education evaluation is made, the LEA must inform the person of the right to make a referral and how to make a referral.

Prior to the events related to this complaint, the student had never been evaluated for special education eligibility. On November 10, 2015, the parent contacted the school requesting an occupational therapy assessment. The district responded to the request and informed the parent that school-based occupational therapy may be provided only as a related service to assist a student with a disability to benefit from special education. Since the student was not identified as a student with a disability at that time, the district staff informed the parent they could not conduct an occupational therapy assessment. School staff provided the parent with information about how to request a special education evaluation and contact information for the director of student services. On November 17, school staff met with the parents to discuss the student’s increased aggression and the parents’ request for an occupational therapy assessment. In late November 2015, the student’s behaviors escalated. On December 1, school staff met with the student’s parents to discuss a general education behavior support plan and explain the special education evaluation process. The parents were given information on completing a special education referral. However, the student’s parents did not complete the special education referral at that time. The student’s behavior began to improve following implementation of the general education behavior support plan.

In March 2016, the student’s aggressive behaviors again began to escalate and in addition to the general education behavior support plan, the district provided a one-on-one assistant for the student. On April 4, a district special education staff member completed a special education referral and provided the parent with the referral form and notice of receipt of referral.  A review of existing evaluation data was conducted on April 4 with the parent and required district staff members. On April 5, within 15 business days of receiving the referral, the district sent the parent notice and a request for consent to evaluate the student and conduct additional assessments. This included a description of the areas to be evaluated and the types of assessments that would be used. On April 11, the district received the parent’s consent to conduct additional assessments. On May 31, within the 60-day time limit, the IEP team met to determine eligibility for special education. The IEP team reviewed information, including evaluations, behavior and sensory checklists, discipline records, and teacher observations. The student was determined to be a student with a disability.

When the parent asked for information about occupational therapy assessment procedures, the district informed the parent of the right to make a referral for a special education evaluation and how to do so. However, based on the facts in this case, the district had an independent obligation to evaluate the student for special education. While the district provided information to the parent about making a referral, district staff who reasonably believed the student may have a disability did not timely refer the student for a special education evaluation as required.

A school district must provide educational services to a student with a disability when a student is removed for violating a code of conduct for more than 10 cumulative school days in a school year. District records show the student received a total of nine days of out-of-school suspension during the 2015-16 school year. Since the suspensions did not exceed 10 school days, the special education disciplinary requirements did not apply. The district properly followed the special education disciplinary requirements.

Prior to the beginning of the 2016-17 school year, the district must convene an IEP team meeting to determine whether compensatory services are required for delaying in making a referral for a special education evaluation. The district must send a copy of the revised IEP to the department within 10 days after the IEP team meeting. In addition, within 30 days from the date of this decision, the district must develop and submit to the department a corrective action plan to ensure all department-licensed staff are trained on state and federal requirements regarding properly identifying, locating, and evaluating a child with a disability.

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 6/23/2016
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support


For questions about this information, contact Margaret Resan (608) 267-9158