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IDEA Complaint Decision 19-021

On April 17, 2019, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (parent) against the XXXXX (district). The department initially identified the issue in the complaint as whether the district, since April 17, 2018, properly responded to a parent’s requests for special education evaluations of two children. As a result of further fact-finding, department staff determined that the parent requested the evaluations more than one year prior to the date of the department’s receipt of the complaint. Federal special education law does not provide the department authority to investigate events occurring more than one year of the date the department receives a complaint (34 CFR §300.153[c]). On May 24, 2019, department staff informed the parties the issue would be revised. The revised issue is whether the district, since April 17, 2018, timely conducted the special education evaluations for two students. This is the department’s decision regarding that complaint.

School districts are required under state and federal special education law to locate, identify, and evaluate all resident students with disabilities who have not graduated from high school with a regular high school diploma, including resident students who attend home-based private education (34 CFR §300.111[a][1][i], Wis. Stats §115.77[1m][a]). Each district must establish procedures for accepting and processing referrals (Wis. Stats §115.777[3][a]). All referrals must be in writing and the district must accept and process all referrals submitted to the district (Wis. Stats §115.777). Upon receipt of a referral, the district must notify the parent of the referral, appoint an individualized education program (IEP) team, and the IEP team must conduct a review of existing data to determine what additional data, if any, are needed to complete the evaluation (34 CFR §300.503[a][1], 34 CFR §300.305[a], Wis. Stats §115.792[2], and §115.782[2][b]). Districts are not required to convene an IEP team meeting for the purpose of reviewing existing data to determine whether additional assessments are necessary (34 CFR §300.305[b]).

Within 15 business days of receiving a referral, the district must send to the student’s parent a request for consent for additional assessments or notice that no additional assessments are necessary (Wis. Stats §115.777[3][e]). An IEP team meeting must be conducted to determine eligibility within 60 days after receiving parental consent for evaluation or notifying parents that no additional assessments are needed (34 CFR 300.301[c], Wisconsin Stats §115.78[3][a]).

This complaint involves the evaluations of two students who are siblings: Student A and Student B. At the time of the events giving rise to this complaint, both Student A and Student B were being educated by their parent in a home-based private educational program. On March 28, 2018, the parent contacted the school district requesting special education evaluations for both students, and district staff initiated referral paperwork. The district’s practice is to assign referrals received for a student not enrolled in public school to the school the student would attend given the student’s’ age and location of the student’s residence within the district. As such, Student A’s referral was assigned to a district elementary school and Student B’s to a district middle school.

Members of Student A’s IEP team, including the student’s parent, completed the review of existing data on April 30, 2018. On that same date, the district also requested parental consent to conduct assessments. This request was not timely in that it was more than 15 days after the district received the student’s referral on March 28, 2018. The district received consent from the student’s parents on May 3 and May 4. On June 7, 2018, the IEP team met and determined Student A was eligible for special education. The IEP team developed the student’s IEP and placement at the same meeting. On September 10, 2018, Student A began attending the district elementary school and district staff immediately implemented the student’s IEP.

The review of existing data for Student B was conducted on April 13, 2018, and on that same day, the district requested and parental consent was given to conduct assessments. On June 4, the IEP team met and determined Student B was eligible for special education. The IEP team reconvened on June 6, 2018, and developed Student B’s IEP and determined the student’s placement. On September 10, Student B began attending the district middle school and district staff immediately implemented the student’s IEP.  Student’s B evaluation was timely conducted.

Since the delay in Student A’s evaluation occurred when the student was not enrolled in public school, no student specific corrective action is required. Within 30 days of the date of this decision, the district must review, and if necessary, revise its procedures for receiving referrals and conducting evaluations for students who are not enrolled in public school. The district is directed to send the results of this review to the department within 10 days of its completion.

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 6/14/2019
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support