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IDEA Complaint Decision 19-035

On May 23, 2019 (form dated May 21, 2019), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against the XXXXX (district). This is the department’s decision regarding this complaint. The issues are whether the district, since May 23, 2018,

  • Properly determined a student’s eligibility for special education including properly identifying the student’s educational needs;
  • Properly developed and implemented an individualized education program (IEP) reasonably calculated to enable a student with a disability to make progress appropriate in light of the student’s circumstances;
  • Properly responded to a parent’s request for an IEP team meeting; and
  • Properly responded to a parent’s request for student records.

Properly determined a student’s eligibility for special education including properly identifying the student’s educational needs.

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 sufficient 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. (34 CFR §§300.301, 300.304 300.306; 300.307-300.311; Wis. Admin. Code PI § 11.36[6]).

On May 24, 2018, the student’s IEP team met to determine the student’s initial eligibility in the areas of SLD in the area of reading fluency, and deaf and hard of hearing (DHH). In early spring 2018, the team had previously determined the student did not meet eligibility criteria in the area of emotional/behavioral disability (EBD). During the meeting on May 24, 2018, the student’s IEP team reviewed information from the student’s response to two SRBIs conducted between September 18, 2017, and May 24, 2018. The team determined the student’s rate of improvement as measured by bimonthly probes was not sufficient to close the gap between the student’s achievement and the expected rate of improvement given the interventions. The team also reviewed the results of two systematic observations of the student conducted by school staff. The team considered the results of standardized academic achievement assessments conducted by school staff and outside evaluators provided by the student’s parents, and determined the student also demonstrated inadequate classroom achievement in the area of reading fluency. The team reviewed medical information provided by the student’s parents demonstrating the student experienced fluctuating hearing abilities. The team determined the student met the eligibility criteria in the area of DHH. The team discussed the student’s reduced hearing and agreed it was not the primary reason for the student’s difficulties in reading achievement, and therefore did not exclude the student from being identified as eligible under the area of SLD. The team also determined no other exclusionary factors applied. The team determined the student was in need of special education in the area of reading fluency. The team also determined the student would need supports in the areas of self-advocacy and coping related to the student’s hearing loss. The district properly determined the student’s eligibility for special education including properly identifying multiple areas of the student’s educational needs.

Properly developed and implemented an individualized education program (IEP) reasonably calculated to enable a student with a disability to make progress appropriate in light of the student’s circumstances.

A district meets its obligation to provide a free and appropriate public education (FAPE) to a student with a disability, in part, by providing special education and related services. Districts must provide FAPE to each student with a disability by developing a program based on the student’s unique needs that is reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances, documenting that program in the IEP, and implementing the program as articulated in the IEP. For most students the IEP must be designed to allow the student to progress from grade to grade, but if that is not possible, the IEP should be appropriately ambitious in light of the child’s circumstances. (34 CFR §§ 300.320-300.324; Wis. Stats. § 115.78[2]; Endrew F. v. Douglas County School District, [137 S.Ct. 988]).

On June 6, 2018, the student’s IEP team met to develop the student’s initial IEP. Upon receiving the finalized IEP, placement notice, and request for consent for special education, the student’s parents contacted the district concerned that the IEP did not include all determinations, decisions, and services agreed to by the IEP team during the meeting. The district worked with the parent to schedule an additional IEP team meeting, and after having to reschedule one time, the team met on September 14, 2018. The IEP includes information about the student’s current academic achievement and functional performance. The IEP indicates that although the student made progress in reading during the previous school year, the student’s achievement remained over one year behind that of his peers, and that reading fluency difficulties continued to hold the student back. The IEP indicates the student is to receive 30 minutes of specially designed instruction in reading daily. The IEP indicates the student may experience anxiety in some circumstances which may lead to mild behavioral difficulties, but that overall, the student’s behavior did not impact the student’s learning or that of others. The IEP describes the student’s fluctuating hearing abilities, and includes strategies for teachers to use, including specific seating and visual supports. The student’s parents reported the student had been using hearing aids that appeared to be helping the student. The IEP also includes time for the student to work with a DHH teacher to develop advocacy skills around the student’s hearing needs. The IEP indicates the student needs assistive technology, including use of text to speech and speech to text, and audiobooks for independent reading. The IEP includes counseling services of 15 minutes per month. The district provided the parent periodic reports of the student’s progress.

The student’s parent provided signed consent for the IEP to be implemented on September 25, 2018. The district began implementing the IEP upon its receipt of the parent’s consent. During the 2018-2019 school year, the student’s parents and district staff were in frequent communication. In late October, district staff contacted the parent regarding some behavioral concerns. The parents responded by requesting information regarding the student’s assistive technology. The student’s IEP team met on October 26, 2018 to discuss these concerns. The district provided an assistive technology device to provide text to speech for the student toward the end of November 2018. However, the student was not able to take the device home. The IEP did not clearly describe the circumstances under which the student was to use the device; therefore it is not possible to determine whether the IEP was properly implemented in this area.

The district did not properly develop the student’s IEP regarding the use of assistive technology. Within 30 days of the date of this decision, the district is directed to clearly describe the assistive technology needed by the student including a clear description of the amount and frequency of its use. The district is directed to send a copy of the IEP to the department within 10 days of the meeting.

Properly responded to a parent’s request for an IEP team meeting and student records.

A parent of a student with a disability may request an IEP team meeting at any time, and school districts should grant any such reasonable request. If the district denies the parent’s request for an IEP team meeting, the district must, within a reasonable amount of time, provide the parent with a notice of refusal, including an explanation of why the district has determined that conducting the meeting is not necessary (34 CFR § 300.503). School districts must permit parents and/or adult students to inspect and review any education records that are collected, maintained, or used by the district. In all cases, the school district must comply with a parent’s and student’s request within 45 days. (34 CFR §§§ 99.10, 300.613, and 300.611[b]; Wis. Stats. § 118.125[2][a]).

On December 7, 2018, the student was involved in a behavioral incident at school. The student’s parents emailed the district with concerns about the incident and the supports the student was receiving. The district promptly responded, indicating that in spite of the behavior incident, the student was making progress. The district mentioned the parents had met with some of the student’s teachers, and had indicated a desire to wait to conduct an IEP team meeting until after the winter school break. The student’s parents responded indicating concern regarding the district’s reaction to the behavior and the parents’ belief the student’s IEP was not being implemented appropriately. The district responded by suggesting the district and parents attempt mediation around the parent’s concerns. On December 27, 2018, the student’s parents requested a copy of the student’s entire record prior to agreeing to mediation. The district provided the parents copies of the student’s records on February 6, 2019, which was within 45 days of the parents’ request. The district properly responded to the parent’s request for an IEP team meeting and for student records.

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 7/22/2019
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support