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IDEA Complaint Decision 18-038

On April 18, 2018, 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 that complaint. The issues are whether the district, since April 18, 2017:
  • Properly identified, located, and evaluated a child with a disability; and
  • Properly followed special education disciplinary procedures.

A school district must identify, locate, and evaluate all resident students with disabilities who are in need of special education and related services. In order to carry out this duty, a district must conduct “child find” activities. These activities include procedures directed at licensed educators employed by the district and non-district professionals who are required under state law to refer a child who they reasonably believe is a child with a disability for a special education evaluation.

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’s “child find” obligation is an affirmative one, and school districts should not take a passive approach in waiting to refer and evaluate students who are potentially in need of special education.

The student who is subject of this complaint was in 9th grade during the 2016-2017 school year. When the student was in middle school, the student’s classroom performance and grades were commensurate with peers. However, when the student entered high school the student’s academic performance markedly declined. The student participated in a screening by a private agency with his peers in the spring of 2017. The purpose of the screening was to identify students with unmet needs for mental health services, provide communication and resources to parents, and connect district families with resources in the community. Following the screening, the student’s parent was contacted by a representative of the private agency who believed the student’s results indicated the student had significant mental health needs.

In May 2017, the parent contacted the school psychologist several times asking to meet to discuss concerns about the student. In an e-mail to the parent, the school psychologist acknowledged she received the parent’s messages and was working to collect updated information from the student’s teachers regarding classroom performance and functioning. The school psychologist had been in contact with the student’s teachers several times during the school year to let them know about the student’s history of depression and how that might manifest in the classroom setting. The psychologist noted school staff members were very concerned for the student’s well-being, grades, and future.

The school psychologist arranged a meeting for June 2, 2017, with the parent and a high school counselor. An administrator did not attend the meeting. The parent believed this would be a special education evaluation meeting. The parent attended the meeting, at which school staff presented the parent with a “building plan” for the upcoming school year. The parent believed the proposed building plan contained special education services for the student. In district practice, a building plan is a document outlining additional supports and strategies for a student. A building plan is not based on identifying a student as having a disability, and is not an individualized education program (IEP) or a plan for accommodations under Section 504 of the Rehabilitation Act of 1973. The plan outlined staff concerns for the student, including the student’s significant history of severe depression, low motivation, inattention, difficulty completing tasks, and weak organizational skills. The plan included strategies such as flexible scheduling and a guided study hall. On November 13, 2017, the parent met with several staff members from the high school at their request to discuss the student’s growing problems in school. They discussed how they could support the student with a tutor or more support in individual classes.

Under the circumstances of this case, the district did not properly identify, locate, and evaluate a student with a disability. Although the district did not believe the parent was requesting a special education evaluation in May 2017, the district had an independent obligation to refer the student for a special education evaluation. During the June 2 meeting and again on November 13 district staff members expressed concerns to the parent about the student’s declining academic performance, behavioral issues, low motivation, distractibility, difficulty completing tasks, and issues with organization. The student’s parent repeatedly expressed concerns about the student’s significant mental health challenges and asked for help starting in the spring of 2017. Given these factors and the student’s continued declining performance, the district was obligated to refer the student for a special education evaluation. The district did not properly identify and locate a child with a disability.

Under federal law, special education disciplinary requirements apply to students who have not been determined eligible if a district is “deemed to know” that a student is a student with a disability. “Deemed to know” is defined under federal law and is very limited. It only applies if prior to the behavior that precipitated the disciplinary action, the parent requested an evaluation, district staff expressed specific concerns about a pattern of behavior directly to the director of special education or to other supervisory personnel, or the parent of the child expressed concern in writing to administrative personnel or a teacher of the child that the child is in need of special education and related services.

On February 28, 2018, the student engaged in behavior in violation of the district code of student conduct. On March 1, 2018, the student was suspended pending expulsion. On March 15, 2018, the district sent the complainant a notice of hearing to consider expulsion of the student. On March 21, 2018, at the expulsion hearing, the parent requested a special education evaluation for the student. The execution of the expulsion order was then put in abeyance until an evaluation could occur. During this time, the district offered the student educational services. The district conducted a special education evaluation and the IEP team met on May 15, 2018, to determine eligibility. The evaluation team determined the student met the criteria for Other Health Impaired (OHI) and Emotional Behavioral Disability (EBD). A manifestation determination was conducted on May 21, 2018, and the team determined the behavior for which the student was disciplined was a manifestation of his disability. An IEP meeting was held on May 24, 2018, and the student returned to school on May 29, 2018. The expulsion order was expunged from the student’s record.

Under the circumstances of this case, the deemed to know provisions did not apply. There is no documentation that prior to the incident, the parent specifically requested a special education evaluation or expressed concern in writing to the teacher or an administrator that the student was in need of special education and related services. In addition, although staff members had expressed concern to the parent in June and November 2017, an administrator was not present, and there is no evidence that school staff expressed concerns about a pattern of behavior directly to the special education director or other supervisory personnel. The district properly followed special education disciplinary requirements.

Within 30 days from the date of this decision, the district must conduct an IEP team meeting to determine compensatory services for the delay in identifying the student as a student with a disability, and provide documentation to the department of this determination. Within 30 days from the date of this decision, the district must also develop a corrective action plan to ensure that staff are trained on state and federal requirements regarding 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. This decision is final for the IDEA State Complaint process.

//signed CST 6/15/2018
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support