You are here

IDEA Complaint Decision 18-095

On December 12, 2018 (form dated December 10, 2018), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (parent) against the XXXXX (district). This is the department’s decision regarding that complaint. The issues, beginning December 12, 2017, are outlined below.

Whether the district properly fulfilled its responsibility to identify, locate, and evaluate students with disabilities and properly responded to a request from a parent for a special education evaluation.

School districts must identify, locate, and evaluate all resident students with disabilities who are in need of special education and related services. District staff who reasonably believe a student has a disability must refer the student for a special education evaluation. This responsibility is often referred to as “child find.” The child find obligation is an affirmative one. School districts may not take a passive approach and wait for others, including parents, to refer students potentially eligible to receive special education. School districts are required under state and federal special education law to establish procedures for processing referrals. All referrals must be in writing and the district must accept and process all referrals submitted to the district. (34 CFR §300.111; Wis. Stats. §§ 115.77(1m)(a) and 115.777(3)(e))

The district did not properly fulfill its responsibility to identify, locate, and evaluate the student who is the subject of this complaint and did not properly respond to the parent’s request for a special education evaluation. The evidence in this complaint indicates district staff understood the obligation to refer students believed to be disabled and the district’s policy and procedures for referring and evaluating students for eligibility under the Individuals with Disabilities Education Act (IDEA). However as of December 7, 2018, to February 8, 2019, documentation provided by the parent and the district including intervention data, district assessments, report cards, emails between parent and staff, and student work samples demonstrate that the student is struggling academically and functionally as compared to same aged peers. The student is currently in sixth grade and is significantly behind grade level achievement in the areas of reading and spelling, despite the various targeted interventions provided to the student during the 2017-18 and the beginning of 2018-19 school years. The parent requested assistance from the district staff on several occasions throughout the 2017-18 and 2018-19 school years, specific to the student’s reading and spelling skills, and functional performance regarding the student’s social relationships, anxiety, stress, and depression. On December 13, 2017, the parent emailed the district with concerns about the student’s intervention schedule and continued concerns about the student’s reading and spelling achievement. The district responded on December 14, 2017, and explained that due to the student’s assessment data that included benchmark assessment scores, classroom assessments, and classroom performance, the district data team determined the student required more intensive, targeted intervention support in phonological awareness that includes decoding and oral fluency. This targeted intervention was computer based and provided one-on-one under the direction of two district staff members. The data team met again in late February 2018 and determined the student had made inconsistent progress due to the intervention moving too fast for the student.

On March 2, 2018, the student received an outside comprehensive neuropsychological evaluation that included an assessment of the following areas: intellect, academic achievement, attention, concentration, executive processes, learning memory, verbal abilities, visual-spatial abilities, motor abilities, and mood/personality. Following the receipt of the results of the student’s neurological evaluation on March 19, the parent immediately contacted the district to request a meeting to review the results of the evaluation. On March 22, the parent met with several district staff members and provided the results of the neuropsychological report that suggest the student is functioning in the high average range of intellectual abilities with slightly stronger nonverbal than verbal abilities. The student’s academic achievement in whole word reading is at the second to third grade levels. The student’s attention/concentration, executive processes, learning memory, verbal abilities, visual-spatial abilities, and motor abilities are in the normal range. In addition, the student suffers from adjustment disorder, which includes mild anxiety and depression. The staff members agreed that based on the results of the report, the student required accommodations.

Following the meeting, the student was provided access to technology accommodations that included text-to-speech technology, read and write technology, a pen that reads for the student, as well as, classroom accommodations that included not allowing the student to read out loud in class or write on the classroom board in front of peers. The staff also discussed the student’s current interventions and determined the student would continue to receive the targeted, intense intervention. At the conclusion of the meeting, the parent submitted a written referral for a special education evaluation. Under the circumstances present in this complaint, the district failed to initiate a special education evaluation. The district did not properly fulfill its responsibility to identify, locate, and evaluate the student. In addition, although the parent did not use the exact words of “special education evaluation,” evidence in this case demonstrate that the district did not properly respond to the parent’s request for a special education evaluation. The student’s parent contacted several district staff members with concerns about the student’s reading and spelling achievement and social emotional health over a significant period of time. District staff should have responded by informing the parent how to complete a referral for an evaluation.

Whether the district properly conducted a special education evaluation.

Special education evaluations must be sufficiently comprehensive to identify all of the student’s disability-related needs. If an IEP team suspects a student may have disability related needs in more than one area, IEP teams must consider multiple areas of impairment in an evaluation. Wisconsin’s special education eligibility criteria 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 each area of concern for the student. The criteria include eight possible areas of intervention for SLD. 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. However, when conducting an initial evaluation for SLD, districts are allowed to request a timeline extension to allow for the collection of necessary data when the IEP team does not have sufficient weekly progress monitoring data from two SRBIs within the 60-day timeline. 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. (34 CFR §§300.301, 300.304 300.306; 300.307-300.311; Wis. Admin. Code PI § 11.36(6))

On May 30, 2018, an IEP team meeting was conducted to determine the student’s initial eligibility for special education. The required district IEP team members attended the meeting. As part of the evaluation, district staff administered an academic assessment to assess the student’s academic skills in the areas of reading and spelling. The student’s reading scores fell within the below average range overall and spelling scores are within the extremely low average range when compared to same age peers. The evaluation report states the student “has well developed comprehension skills but struggles with basic reading skills needed for decoding, reading fluently, and spelling. (The student) demonstrates difficulties accurately decoding works while reading. This affects (the student’s) ability to read grade-level material and complete assessments similar to peers. (The student) also struggled in spelling. This makes it difficult for (the student) to complete longer writing assignments without assistance. (The student) often spelled words as they sounded, which suggests that (the student) is able to make the connection between sounds and letters. However, (the student) has not yet mastered the ‘special’ rules and uncommon patterns used in spelling.”

The report also states that the student’s self-worth and confidence should continue to be addressed. Despite the neuropsychological report stating that the student suffered from mild anxiety, depression and dyslexia, the IEP team did not consider any impairment areas other than SLD. Documentation provided by the parent and district, staff interviews, and parent concerns in the areas of the student’s confidence and self-worth demonstrate that there was a universal concern for the student in those areas. The district’s evaluation was not sufficiently comprehensive to identify all potential areas of the student’s disability-related need. Despite staff and parents expressing concerns about the student’s social/emotional performance, the IEP team considered only one area of special education eligibility.

In its evaluation of the student for SLD, the IEP considered data from only one SRBI. The IEP team determined the student did not meet the criteria for SLD, due to the student not completing two SRBIs in the areas of concern. The district explained that the school year was ending and the team did not have enough time to complete two interventions; and therefore, determined the student did not met eligibility for SLD. The district did not seek from the parent an extension of the 60 day timeline. The district did not meet its responsibility to ensure SRBIs were implemented with required fidelity to allow sufficient data to be collected to make a proper SLD eligibility determination. The district chose to end the evaluation by determining the student was not eligible rather than requesting an extension of the evaluation timeline to rectify the situation. The district failed to properly conduct a special education evaluation.

Following the special education evaluation, the district developed a 504 plan for the student. The district informed the parent that the student would continue receiving the intense, targeted intervention in reading and spelling during the 2018-19 school year, during which the student would be starting at the district’s middle school for sixth grade. Although the district began the school year providing the intervention, district staff discontinued the intervention on October 19 due to the student’s schedule and staff availability, not based on the student’s needs.

Whether the district properly responded to a parent’s request for an independent educational evaluation

An independent educational evaluation (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. Upon receiving a request for an IEE, a school district must inform parents about where to obtain an IEE. The agency must also inform the parents of the district's IEE criteria. The district must respond to the request for an IEE in a reasonable amount of time by either providing the IEE at public expense or requesting a due process hearing to show that its evaluation is appropriate. (34 CFR § 300.502)

On December 7, 2018, the student’s parent requested an IEE disputing the May 30 special education evaluation. The parent and district staff participated in a conference call on December 7 and agreed to the IEE. District staff informed the parent information on obtaining an IEE would be emailed to the parent the following week. On December 12, the district provided the parent with a list of approved IEE evaluators and the IEE district policy. The parent selected an IEE evaluator on December 13 and the evaluator contacted the district to make arrangements to obtain consent forms to begin the IEE. The district provided the required consent documents signed by the parent on December 18. The district properly responded to a parent’s request for an IEE.

As corrective action, the district must complete a comprehensive special education evaluation of the student, taking into consideration the results from the IEE. The district must ensure sufficient current intervention data is collected to make a proper determination of the student’s eligibility under the area of SLD. Within 10 days of the eligibility determination, the district must submit a copy of the evaluation report to the department. If the student is determined to be eligible for special education, the IEP team must, as part of development of the student’s initial IEP, determine the amount of compensatory services to be provided to the student to rectify the significant delay in completing the evaluation. Within 10 days of the IEP team meeting, the district must submit a copy of the IEP including determination of compensatory services to the department.

In addition, within 30 days of the date of this decision, the district must submit to the department a corrective action plan to ensure the following:
  • IEP teams are properly trained on the requirements of conducting comprehensive special education evaluations and properly applying SLD eligibility criteria;
  • All district staff are properly trained on state and federal law requirements regarding identifying, locating and evaluating students with disabilities; and
  • All district staff know how to properly respond to a request from a parent for a special education evaluation.

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 BVH:pmw 2/8/2019
Barbara Van Haren, PhD, Director
Special Education Team
Division for Learning Support