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IDEA Complaint Decision 18-097

On December 19, 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 the complaint. The issue is whether the district, since December 19, 2017, properly responded to a parent’s request for a special education evaluation.

School districts must identify, locate, and evaluate all students with disabilities residing within the district. A parent who believes their child has a disability and is in need of special education may submit a written referral for evaluation to the school district. The school district must conduct an evaluation on submission of a written referral. As part of any special education reevaluation, the individualized education program (IEP) team, including the student’s parents, must conduct a review of existing data. If the IEP team determines additional tests or other assessments are needed, the district must, within 15 business days of receiving the referral, request in writing parental consent for the additional testing.

A district must make reasonable attempts to obtain consent from the parent. Within 60 days after the district receives parental consent, the IEP team must meet to determine whether the student has an impairment and needs special education. The 60-day timeline does not apply if the district into which the child transfers is making sufficient progress to ensure a prompt completion of the evaluation, and the child’s parent and district agree to a specific time when the evaluation will be completed. (34 CFR §§ 300.300 and 300.304; Wis. Stats. § 115.777 and 115.78)

The student who is the subject of this complaint transferred in to the district in January 2018. The student had been referred by for an evaluation in the previous school district prior to the student’s transfer. The student’s parent had not provided consent for the previous district to conduct additional assessments prior to the student’s transfer. Immediately upon transferring in to the district, the student’s parent communicated with district administration that a special education referral had been made at the student’s previous district; however, when district staff attempted multiple times to contact the parent by telephone to discuss further, they were not successful. The district, however, did not take steps to contact the parent by others means, or provide the parent with the form providing notice of the need to conduct additional assessments, and the request for written parental consent.

According to the district, the student transitioned well. Report cards showed the student was functioning well academically; one of the student’s teachers noted the student was “putting for a lot of effort into his assignments, attentively listens, uses his time wisely, and is very respectful.” In May 2018, the district staff spoke to the student’s parent via telephone to discuss the student’s current progress and the pending special education evaluation. The parent and the district agreed that a special education evaluation was not needed at that time. The district followed up with a letter to the parent, dated May 10, 2018, documenting the conversation and decision. No further action was taken by the district at that time to complete the evaluation.

In September 2018, the student was involved in a behavioral incident that resulted in the student receiving a half-day in-school suspension and losing recess for two days. At the time of this incident, the parent expressed concerns about the student’s behavior at home, but did not express either verbally or in writing a desire to refer her child for a special education evaluation. On December 21, 2018, the parent spoke with district personnel via phone and expressed her desire to refer her child for a special education evaluation. On December 26, 2018, the parent made a referral for her child in writing, which the district is in the process of completing.

While in May 2018, the parent and district staff agreed, based on the student’s then-current school performance, an evaluation was not necessary; it was several months after the student transferred in to the district. The district failed to take the necessary steps to complete the previously initiated evaluation upon transfer; as such, the district did not fulfill its responsibility to identify, locate, and evaluate a student with a disability.

Because the district is in the process of completing a special education evaluation of the student, there is no student specific corrective action required. Within 30 days of the date of this decision, the district must develop and submit to the department a corrective action plan to ensure the district promptly completes special education evaluations when a referred student transfers into 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. This decision is final for the IDEA State Complaint process.

//signed BVH 2/15/2019
Barbara Van Haren, PhD, Director
Special Education Team
Division for Learning Support