On June 20, 2016, the Department of Public Instruction (department) 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 issue is whether the district, during the 2015-16 school year, properly conducted a special education evaluation for a student.
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. Upon receipt of a referral, the district must appoint an individualized education program (IEP) team. The IEP team must conduct a review of existing data to determine what additional data, if any, are needed to complete the evaluation. The student’s parent must be afforded an opportunity to participate in this review. In addition, this review must include not less than one regular education teacher of the child, one special education teacher who has recent training or experience related to the child’s known or suspected area of special education needs, and a local educational agency (LEA) representative. Within 15 business days of receiving the referral, the district must send to the student’s parent a request for consent for additional testing or notice that no additional testing is necessary.
Wisconsin’s special education eligibility rule for specific learning disabilities (SLD) requires IEP teams to review student progress data based upon the student’s response to two scientific research-based interventions (SRBIs). In some instances SRBIs are completed prior to referring the student for evaluation, and in other circumstances they are provided during the evaluation process. Following the review of existing data, if the IEP team finds the required SRBIs were not completed and/or weekly progress monitoring data were not collected during SRBIs, the IEP team must request consent to collect the required progress monitoring data during provision of intensive interventions. 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. Published SRBIs frequently provide information about the recommended intervention schedule in the manual or guide. 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 in only three circumstances. Two of these possible extensions apply to all evaluations (when a student transfers school districts before the evaluation is completed or when the parent repeatedly does not make the student available for testing). The third circumstance, applicable only to initial evaluations for SLD, allows a timeline extension to allow for the collection of necessary data when the student has not received two SRBIs with weekly progress monitoring at the time of referral. 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 implemented and progress monitoring data used by IEP teams are collected in a manner consistent with state SLD evaluation criteria. Any concerns about the implementation of SRBIs should be addressed well before an IEP team evaluation meeting is held to determine eligibility.
The student was initially referred for a special education evaluation on February 2, 2015. Because the student was being evaluated for SLD, and additional time was needed to implement SRBIs and collect progress monitoring data, the IEP team and the parent agreed to extend the evaluation until November 20, 2015.
On August 6, 2015, the student transferred to another elementary school within the district. On August 31, 2015, district staff sent to the parent an invitation to a September 9, 2015 IEP team meeting. The IEP team meeting was scheduled by the district-level initial IEP team without checking the school’s progress monitoring log to determine if the SRBIs were implemented and if sufficient data had been collected. On September 9, an IEP team meeting was conducted to determine initial eligibility for special education. The student’s parent did not attend or participate in the IEP team meeting. There were not at least three reasonable attempts documented to obtain the parent’s participation or of the parent’s participation by other means, and there is no documentation the parent agreed to participate but did not arrive for the scheduled meeting. The required district IEP team members attended the meeting. The IEP team determined the student did not meet the criteria for SLD, stating, “There is not sufficient data at this time to determine inadequate classroom achievement in the area of basic reading. Interventions were started at her previous school but not monitored at grade-level. At this time not enough data exists to make a determination from her current interventions.” Rather than implementing interventions and collecting data weekly by November 20, 2015, as previously agreed to by the district and parent, the district prematurely conducted the IEP team meeting without collection of necessary data. On September 9, the district provided the parent written notice of the IEP team determination that the student was not a student with a disability due to insufficient data. The district did not meet their responsibility to ensure SRBIs were implemented and sufficient data collected weekly to allow the IEP team to determine the student’s eligibility for special education. The district did not properly conduct a special education evaluation.
On December 21, 2015, a county case manager completed a written referral and requested an initial special education evaluation for the student. On December 21, 2015, the notice of receipt of referral and start of initial evaluation was sent to the parent along with the procedural safeguards. On January 8, the student’s parent participated in a review of existing data to determine what additional data, if any, were needed to complete the evaluation. Documentation indicates district staff appointed to the student’s IEP team participated in a review of existing data on January 13. The student’s general education classroom teacher did not return to the school following winter recess, however the teacher’s name was inaccurately included on the list of district staff who reviewed the existing data. Documentation indicates the form requesting the parent’s consent for additional testing was sent to the parent on January 12, 2016, one day before the review of existing data by district staff was completed. The request for consent for additional assessments did not include collection of required progress monitoring data during SRBIs. The review of existing data was not properly conducted or documented.
The district received written parental consent for the initial evaluation on January 22, 2016, creating the 60-day timeline due date of March 22, 2016. On January 26, 2016, the student’s parent and a district school psychologist agreed verbally to extend the timeline to April 30, 2016, to allow adequate time to implement SRBIs as part of the evaluation process. On January 26, the parental consent agreement to extend the time limit to complete the evaluation of a child suspected of having a SLD was sent to the parent, and on January 28, 2016, the district received the signed parent consent. Although the district-level initial evaluation IEP team received the signed parent consent to implement SRBIs and collect data, the information was not communicated to staff at the student’s elementary school.
On April 27, an IEP team meeting was conducted to determine initial eligibility for special education. The student’s parent attended the IEP team meeting with four county advocates. Required district IEP team members attended the meeting. Although the name of a regular education teacher of the student does not appear on the list of meeting participants, other IEP team meeting participants stated the teacher actually did attend the meeting. The teacher stated at the IEP team the SRBIs were not consistently implemented and required weekly data were not collected because the need to do so was never communicated to the elementary school staff. The IEP team determined the student did not meet the criteria for SLD, indicating “Inadequate classroom achievement and insufficient progress in the area of reading fluency can only be determined after two SRBIs are delivered with integrity for a minimum of 8-12 weeks per SRBI with weekly grade-level progress monitoring. At this time, there is not sufficient data to consider insufficient progress nor administer a reading fluency assessment.” On April 27, 2016, at the IEP team meeting, the student’s parent and a district school psychologist agreed verbally to extend the timeline to evaluate the student for a SLD and allow adequate time to implement SRBIs in the area of reading fluency to determine inadequate classroom achievement and insufficient progress for SLD. They agreed the evaluation would be completed by November 30, 2016. On April 29, 2016, the district received the signed parent consent to extend the timeline. After the IEP team meeting, the regular education teacher implemented an SRBI and collected data on May 6, 13, 20, 27, and June 3.
District administrators informed department staff that the lack of communication between the district-wide evaluation IEP team and school-based staff resulted in the delay of implementation of SRBIs and collection of weekly data. District staff should have ensured SRBIs were being properly implemented and progress monitoring data collected, and should have addressed the lack of data before the IEP team meeting was held to determine eligibility. The district did not properly conduct a special education evaluation for the student.
As soon as possible, the district must properly complete the evaluation for the student. The interventionist may continue the interventions started in May and June 2016. If the IEP team determines the student is a student with a disability, an IEP must be developed immediately and the IEP team must determine the compensatory services the student will receive due to the unnecessary delay in implementation of SRBIs and collection of progress monitoring data. Within 10 days of completing the evaluation, a copy of the evaluation report must be sent to the department. In addition, if an IEP is developed it must clearly document the decision regarding compensatory services and be sent to the department within ten days of the IEP team meeting.
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.
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 8/18/2016
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support
Dec/jfd