On October 16, 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 that complaint. The issues are whether the district, since October 16, 2018:
- Properly fulfilled its responsibility to identify, locate, and evaluate a student with a disability;
- Properly responded to a parent’s request for a special education evaluation;
- Properly conducted a special education evaluation;
- Properly provided the parent of a student with a disability an opportunity to participate in the individualized education program (IEP) team meetings;
- Improperly changed the student’s placement;
- Properly followed special education disciplinary requirements; and
- Improperly utilized seclusion and/or physical restraint on a student with a disability.
School districts must ensure all students who reside in the district who may be in need of special education and related services are identified, located, and evaluated. (34 § CFR 300.111[a][i]). District staff who reasonably believe a student has a disability must refer the student for a special education evaluation. (Wis. Stat. § 115.777). This responsibility is often referred to as “child find” and is an affirmative duty. School districts may not take a passive approach and wait for others, including parents, to refer students and the use of Response to Intervention (RTI) strategies cannot be used to delay or deny the provision of a full and individual evaluation under the Individuals with Disabilities Education Act (IDEA). (OSEP, RTI Memo, January 21, 2011). Districts must provide information and in-service opportunities to all of its licensed staff to familiarize them with the district’s special education referral procedures. (Wis. Stat. § 115.777[c]).
Throughout the fall of the 2018-19 school year, the student experienced a number of behavioral incidents. District staff responded by using a team problem-solving approach, which included input and observations from the parents and providing interventions and shortening the student’s school day. District staff did not believe that the student had a disability at that time. On January 2, the student’s parent chose to disenroll the student from the district and enrolled the student in home-based private education. While the district has clear written procedures for accepting and processing referrals, and that under the circumstances of this case, staff members did not believe the student had a disability, interviews with staff demonstrate a general lack of understanding about how to make a special education referral, the child find obligation, and whether it is permissible to make referrals outside of the RTI process.
If a parent reasonably believes their child is a student with a disability, they may make a referral to the school district. (Wis. Stat. § 115.777[c]). All referrals must be in writing and include the name of the student and the reasons why the person believes that the child is a student with a disability. (Wis. Stat. § 115.777[a]). The district must accept and process all referrals that are submitted. (Wis. Stat. § 115.777). Within 15 business days of receiving a request for a referral, the district must work with the individualized education program (IEP) team members, including the student’s parent, to determine if additional assessments are necessary and send the parents a request to evaluate the student. (Wis. Stat. § 115.777[e]). The IEP team must determine if the child is a student with a disability within 60 calendar days after receiving parental consent for evaluation. (Wis. Stat. § 115.78[a]). If the child is a student with a disability under the IDEA, the district must hold an IEP team meeting to develop the IEP and determine placement within 30 calendar days of eligibility. (Wis. Stat. § 115.78[c]).
On March 8, the student’s parent emailed the district to inquire about re-enrolling the student in the district. On March 15, several district staff members met with the other parent to discuss re-enrolling the student. During the meeting, a special education evaluation was discussed by all participants in the meeting. The student’s parent did not submit a written referral at the meeting, so the district did not improperly respond to a parent’s request for a special education evaluation.
On March 18, a district staff member sent an email to six other staff members summarizing the March 15 meeting. The email read, “On Friday [March 15], a team of professionals, in collaboration with a set of parents, decided to request an evaluation for [special education] for [student]. This recommendation is supported by close classroom observations, behavior incidents, previous episodes of S/R, and community interactions. It has been concluded that the team feels that despite several rounds of intensive interventions, supported by multiple staff members, [student] struggles to learn to self-regulate and handle frustration, anger, etc.” On March 19, a different district staff member replied to the email indicating she would alert another staff member to enter the student into the special education data system and would send a referral form to one of the staff members on the email chain, presumably for that staff member to complete. On April 16, the staff member submitted the referral form and the special education evaluation process began. From the time of the email, it took four weeks for the referral to be completed despite several staff members being aware there was reason to believe the student may have a disability. As such, the evaluation process was unreasonably delayed. Further, the email drafted on March 18 included all of the required parts of a written referral: it was in writing, included the name of the student, and included why several members of the staff believed the child was a student with a disability. This information was sufficient to serve as the referral and should have initiated the evaluation process.
On April 17, the student’s parents were provided with notice of the referral for special education. The IEP team, including one of the student’s parents, reviewed existing data, and provided input on the proposed testing on April 23 and 24. A parent provided consent for the additional testing on May 30th. On June 10th, the IEP team met to determine initial eligibility, develop the initial IEP, and determine initial placement. There is evidence that the parents were sent email invitations for the meeting on June 6, and both of the parents conceded they were aware of the June 10th meeting and had indicated that they were able to attend. On June 10, one parent participated in the meeting by phone and the other did not participate. The district properly provided the parents the opportunity to participate in the June 10th IEP team meeting.
During that June 10 IEP team meeting, the team found the student met criteria for an impairment area and is eligible for services under IDEA. Neither of the student’s parents were physically present at the IEP team meeting, and as such, the district was not able to secure parent’s signed consent for the initial provision of services during the meeting. District staff delivered the IEP meeting paperwork to the student’s parents on June 15. In addition, a second copy of the IEP paperwork developed at the June 10th meeting was emailed to the parent that was not able to attend. On August 26, district staff met with both parents to discuss plans for the upcoming school year. However, district staff did not obtain consent for special education services at that time.
On September 3, 2019, the student began the 2019-20 school year as a regular education student. On September 4, the student eloped from the building. On September 5, the student eloped again and was hitting, kicking, and spitting staff and as a result, was suspended for three school days. Upon the student’s return from the suspension, the district changed where the student would receive educational services until it could hold another IEP team meeting. An IEP team meeting was scheduled for September 27. On September 25, the parents notified the district that they would be unenrolling the student and as of September 30, the student is enrolled in home-based private education. The special education provisions related to properly changing the student’s placement, properly following special education disciplinary requirements, and properly utilizing seclusion and/or physical restraint on a student with a disability do not apply from October 16, 2018, to the present because the student was not a student with a disability under IDEA during this time.
Within 30 days of the date of this decision, the district must submit a corrective action plan (CAP) for approval to ensure:
- All licensed staff are familiar with the district’s special education referral procedures and how they relate to the district’s Child Study Team model; and
- Staff members who reasonably believe a student has a disability refer the student for a special education evaluation without delay.
No student specific action is required because the student is no longer enrolled in the school 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. These issues may be addressed through other dispute resolutions, including mediation and due process hearings. Visit http://dpi.wi.gov/sped/dispute-resolution for more information.
//signed by BVH 12/13/19
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support