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IDEA Complaint Decision 17-047

On June 30, 2017, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX against the Appleton Area School District. This is the department’s decision regarding this complaint. The issues are whether the district, beginning on July 29, 2016, properly considered the results of an independent educational evaluation (IEE) and properly conducted a special education evaluation.

An IEE is an evaluation conducted by a qualified examiner who is not an employee of the student's school district. A parent has the right to an IEE at public expense if the parent disagrees with the district's special education evaluation. The local educational agency must consider the results of an IEE that meets agency criteria in any eligibility, program planning, and placement decisions about providing a free appropriate public education to the child. The law does not require the local educational agency to carry out the IEE recommendations. At a minimum, the local educational agency should ensure that an individualized education program (IEP) team reviews the IEE and discusses the results. Any time a district proposes or refuses to make a decision concerning the identification, evaluation, educational placement, or the provision of free appropriate public education to the student, the district must send the parents a written notice regarding the team's decisions, including a description of the action proposed or rejected by the district, an explanation of why the district proposes or rejects to take the action, a description of other options the IEP team considered and the reasons why those options were rejected, a description of any other factors relevant to the district’s decision, and a statement indicating parents have the right to utilize dispute resolution options available under special education law if parents disagree.

The student attends a private school within the boundaries of the school district. During the 2015-2016 school year, the district conducted an evaluation of the student. The student’s IEP team determined the student met the educational eligibility criteria for other health impairment (OHI); however, the student did not require special education. The student’s parents disagreed with the results of the evaluation and requested, and subsequently obtained, an IEE at public expense. On October 19, 2016, the parents sent the district a copy of the IEE report and requested an IEP team meeting for the purpose of discussing the results of the IEE and to reconsider the student’s eligibility for special education services in light of the additional information. The district worked with staff and parents to find a mutually agreed upon IEP team meeting date and on December 1, 2016, the district sent an invitation to the parents to attend a December 8 IEP team meeting for the purpose of reviewing the results of the IEE. The IEE examiner participated in the IEP team meeting by phone. The examiner shared the results of the evaluation, including the examiner’s belief that student had Asperger’s syndrome and a specific learning disability (SLD) in written expression and was in need of special education. The district decided not to adopt the recommendations contained in the IEE as the examiner’s conclusions were not consistent with the district’s assessment results. No documentation of the team’s discussion or decisions was taken during the meeting, and no written notice was subsequently sent to the parents. The district properly considered the results of the IEE; however, the district should have sent the parents a notice regarding the team's decisions.

Districts must establish written procedures for accepting and processing referrals. A parent may refer their child to the district for a special education evaluation. The referral must be in writing and include the name of the child and the reasons why the parent believes the child is a child with a disability. The district must immediately document and date the receipt of the referral by district staff on the date it is received. Within 15 business days of receiving a referral, the local educational agency (LEA) must send to the student’s parents a request for consent to evaluate the student. The LEA must determine if a child is a child with a disability within 60 days after receiving parental consent for the evaluation of the child.

In an email dated January 30, 2017, the parents contacted the district and asked about the status of the SLD evaluation. The district responded that they had encouraged the parents at the December 8 IEP team meeting to contact the district if they desired to refer their child for SLD evaluation. In the email, the district explained they would now proceed with the SLD evaluation. This began the 15 business day timeline to review existing data, determine if additional assessments were needed, and notify the parents of the determination by February 20, 2017. However, the district sent a notice to the parents stating the district received a referral to evaluate the student on February 3, and the IEP team would notify the parents by February 24 whether or not additional assessments were needed. A review of existing data was conducted and on February 22, 2017, the district sent the parents a notice and request for consent to conduct additional assessments. The parent hand-delivered the signed consent form to the district that same day. The district received further information from the parents and the student’s medical doctor and determined there was a need to expand the evaluation to include other areas of disability and additional assessments. On March 14, during a phone call with the parent, the parent agreed to the additional assessments and a second notice of initial evaluation and consent regarding the need to conduct additional assessments was sent to the parents. When the second notice was issued, the district’s record keeping system deleted the first notice. This caused the district to miss the required timeline associated with consent for evaluation and eligibility determination.

On March 17, the parent hand-delivered to the high school building written consent to conduct additional assessments. Due to the district’s routing system and spring break, the consent form was not received in the district’s central special education office until April 4. The district documented receipt of consent on April 4. The next day an invitation to an IEP team meeting tentatively scheduled for April 12 was sent to the parents. The purpose of the meeting was to determine initial eligibility for special education and if found eligible to develop an IEP and determine placement, or if appropriate, develop a private school services plan. The IEP team meeting was held on April 12, but an eligibility determination was not made due to time constraints. On April 25, the district sent the parents an invitation to an IEP team meeting tentatively scheduled for May 10 and documented the purpose of the meeting was to develop an IEP, or if appropriate, a private school services plan. However, it is noted in the evaluation report and IEP cover sheet that eligibility for special education was not determined until the May 10, 2017, IEP team meeting. Each of the invitations to the meetings indicated district staff who would be in attendance at each meeting and their roles, as well as indicated a regular education teacher and a representative from the private school would be in attendance. Each of the IEP team meetings included the required members in attendance and in accordance with the invitations. Over the course of the two meetings, the IEP team applied the eligibility criteria checklists, and considered information from a variety of sources including existing data, information provided by the parents, classroom-based observations and assessments, additional assessments administered, medical information, and IEE results. The IEP team determined that while the student had a health condition, the student did not demonstrate a need for special education. The IEP team provided a list of modifications that could be made in regular education to meet the student’s needs. The parents did not agree with the IEP team’s conclusion. Notice of the IEP team findings that the student is not a child with a disability was sent to the parents on May 23, 2017. A copy of the final evaluation report was sent to the parents on June 13, 2017. The district offered to meet with the private school representatives and the parents to assist in developing a 504 plan for the student.

The district acknowledged they received a referral from the parent on January 30. The district did not properly document receipt of the referral and begin the 15 business day timeline to review existing data, determine if additional assessments were needed and notify the parents by February 20. The district also acknowledges their electronic system for documenting notice of the start of an initial evaluation did not accurately track the eligibility determination due date of April 23. A district may add areas of assessment to an evaluation once the evaluation has started, but consent for additional testing does not reset the 60-day timeline to determine eligibility. The district did not properly conduct a special education evaluation because it was not conducted within the specified timelines. Because the district properly determined the student was not found eligible for special education, there are no student specific corrections required by the district.

Within 30 days of this decision, the district must submit to the department a corrective action plan to ensure the district has established written procedures for accepting and processing referrals and consent for evaluation and all staff members are aware of the procedures; the district’s electronic system for documenting consent for initial evaluation tracks the 60-day timeline from receipt of parental consent after subsequent notices are provided; and when the results of an IEE are considered, proper documentation of the IEP team’s decision is provided to the parents following the IEP team meeting.

This concludes our review of this complaint.

//signed by CST 8/21/17
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support
For questions about this information, contact Margaret Resan (608) 267-9158