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IDEA Complaint Decision 17-005

On February 6, 2017, the Department of Public Instruc­tion (department) received a complaint under state and federal special education law from XXXXX against the Oak Creek-Franklin School District (district). This is the department’s decision regarding that complaint. The issues are whether the district beginning on February 6, 2016:

  • properly fulfilled its responsibility to identify, locate, and evaluate a student with a disability; and
  • timely evaluated, developed an individualized education program (IEP), and offered an appropriate educational placement for the student.

The student was enrolled as a freshman at the district’s high school during the 2015-16 school year. Beginning in the summer of 2016, the student’s parents enrolled the student in a private school located in another school district, and have maintained this enrollment through the 2016-17 school year.

During the first semester of the 2015-16 school year the student accumulated a significant number of tardies which resulted in several behavioral referrals. The student failed one class during first semester and earned a GPA of 1.498. School staff referred the student to the school counselor in November and the counselor met with the student several times. In March, the parents contacted the school social worker with concerns about the school’s response to the student’s chronic tardiness and failing grades. In April, school staff received consent to, and did, contact the student’s outside therapist. School social workers met with the student several times to discuss personal issues, including one instance of suicidal ideation by the student. Eventually concerns about the student were brought to the attention of the 9th grade Student Intervention Team (SIT). The SIT discussed the student’s situation on several occasions and eventually recommended a parent meeting. The student failed four classes and earned a GPA of 0.667 for the second semester.

School staff met with the student’s parents on May 12, 2016. Staff reported to the department’s investigator that the special education referral process was explained to the parents at the meeting, but that a decision was made, with the parent’s agreement, to proceed only with a “non-special education” evaluation. The student’s parents agreed that school staff explained the special education referral and evaluation process and provided them with several documents to sign. The parents indicate they believed they had consented to a special education evaluation. At no point did the parents tell school staff that they were opposed to a special education evaluation.

The district proceeded with a “psycho-educational intervention” process which included classroom observations, attention/behavior rating scales, and achievement testing. District staff reviewed the results of the assessments with the student’s parents in June, but the district did not initiate an evaluation for special education until July 25, when the parents contacted the district requesting an IEP be developed on the basis of the assessments.

A school district must identify, locate, and evaluate all resident students with disabilities who are in need of special education and related services. Referrals for special education evaluations 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. In this case there was a break-down in communication between school staff and the student’s parents regarding when to proceed with an evaluation for special education. As of May 12, the student was clearly struggling academically and functionally, parents had requested assistance, and the district’s own intervention team had determined some type of evaluation was necessary. Furthermore, the assessments administered by district staff were typical of the type of assessments used in evaluations for special education eligibility and revealed several areas of concern. The “child find” obligation is an affirmative one, and school districts should not take a passive approach waiting for others to refer potentially IDEA eligible students. Under the circumstances present in this complaint, effective “child-find” mandated either clearer instructions to the parents regarding completing the referral/evaluation process, or a direct referral by the district.

After receiving a referral from the parents on July 25, 2016, the district provided the parents proper notice of the referral and proceeded with the special education evaluation process. An IEP team meeting was held on September 2, 2016, for the purpose of determining the student’s eligibility for special education. After considering the criteria for other health impairment and emotional behavioral disability, the IEP team determined the student was eligible for special education.

The student’s IEP team met again on September 28, 2016, to determine initial placement for the student and develop an initial IEP. The IEP team reviewed the student’s current academic achievement and functional performance, and identified disability-related needs in the areas of attention, math problem solving, and reading comprehension. The team developed four annual goals to address the student’s needs. The team identified seven supplementary aids and services for the student and specified 300 minutes per week of specially designed instruction. At the meeting, the parent expressed concerns that the student’s emotional and behavioral issues had been getting more significant and that needs stemming from those issues could not be appropriately met in the environment at the district’s high school. The student’s parents asserted the student’s needs would be better addressed in the student’s current private school placement with its small class size, flexible curriculum, and shortened schedule. However, the IEP team ultimately determined the student’s placement would be at the district’s high school.

A district must complete an evaluation for special education within 60 days of receiving parental consent for the evaluation. The student’s IEP team must meet to develop an IEP and determine placement within 30 days of a determination that the student is 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, and that separate schooling occurs only when education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. Unless the IEP requires some other arrangement, the student should be educated in the school the student would attend if the student did not have a disability.

The district timely evaluated, developed an IEP, and offered an appropriate educational placement for the student. As discussed above, the student referral for special education was delayed, however once a referral was made, the district met all required timelines in completing the evaluation and developing the student’s IEP. The student’s IEP was created 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 but 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.

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 identifying, locating and evaluating a child with a disability. 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 4/7/2017
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support

Dec/pas