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IDEA Complaint Decision 19-088

On November 6, 2019, (form dated November 3, 2019), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainants) against the XXXXX (district). This is the department’s decision regarding that complaint. The issue is whether the district, beginning on November 6, 2018, properly fulfilled its responsibility to locate, identify, and evaluate a student with a disability.

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. School 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. (34 CFR § 300.111[a][1][i]; Wis. Stat. § 115.77[1m][a]). Each district must establish procedures for accepting and processing referrals. (Wis. Stat. § 115.777[3][a]). All referrals must be in writing, and the district must accept and process all referrals submitted to the district. (Wis. Stat. § 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], 300.305[a]; Wis. Stat. §§ 115.792[2], 115.782[2][b]). An IEP team meeting must be conducted to determine eligibility within 60 days after receiving parental consent for evaluation or notifying the parent that no additional assessments are needed. (34 CFR § 300.301[c]; Wis. Stat. § 115.78[3][a]).

In November 2018, the parent and the student’s second-grade teacher exchanged emails about the student’s progress in reading and math. The teacher reported the student’s performance was as expected, although the student struggled with phonics and vocabulary. The teacher also explained the student’s struggles in reading did not seem to affect the student’s performance in math. On February 21, 2019, the parent asked the teacher for an update on the student’s progress in math and asked about an intervention the student had reported receiving. The teacher replied that the student was not receiving a math intervention as the student typically did well on math tests, but struggled in some areas. The teacher further stated the student did well on the reading portion of a recent assessment and showed great growth in this area even though vocabulary and comprehension remained areas of difficulty.

In the spring of the 2018-19 school year, the parent raised concerns about the student’s anxiety and possible processing delays. The teacher said that the student was struggling with some newer concepts in the classroom and that the teacher was trying to determine the root cause of the issues. The teacher planned to consult with the building consultation team (BCT) to consider strategies for the student. The BCT met on April 23, 2019. The BCT team recommended general education interventions for the student, including instruction on problem solving and mindfulness, time with a school counselor, and scripted dialogue when the student showed signs of anxiety. The BCT team also planned to review the student’s progress before the end of the year to determine whether further interventions or a special education referral would be appropriate.

The teacher and the student’s parent planned to meet on April 25, 2019, to discuss the recommendations from the BCT. Before the meeting, the parent informed the teacher of the parent’s intent to request an accommodation plan under Section 504 of the Rehabilitation Act (Section 504). The teacher was surprised by the request for a Section 504 plan because the teacher believed that the student was an average 2nd grader experiencing struggles typical of other 2nd grade students. The parent asked the teacher’s opinion of whether the student would qualify for a Section 504 plan. The teacher told the parent she did not think the student would qualify for a Section 504 plan but admitted it was not an area of the teacher’s expertise. The student’s parent responded that it did not make sense to proceed with an evaluation if it would be a waste of time. The teacher and the principal met with the parent as scheduled. During the meeting, the parent stated she wanted some testing accommodations for the student to address anxiety. The principal explained the district’s process for evaluating students for eligibility under Section 504 was to evaluate students under the Individuals with Disabilities Education Act (IDEA) at the same time. She further explained that this helped the district rule out a need for special education and ensure that students receive the services and supports they need to be successful. The student’s parents were not in favor of having the student evaluated for special education at that time. Everyone at the meeting agreed on a plan to continue to monitor the student’s progress and the effectiveness of the BCT’s recommended interventions.

The BCT reviewed the effectiveness of the interventions in late May. The student’s teacher reported improvement in the student’s classroom performance, including participation, interactions, and answering questions. The BCT recommended that the student’s third-grade teacher start the next school year using the strategies learned during sessions with the school counselor.

Before the start of the 2019-20 school year, the parent called the student’s third-grade teacher. The student’s parent shared concerns and asked for the teacher’s opinion about the student, but the teacher was not able to offer an opinion until the teacher worked directly with the student. On October 17, 2019, the parents met with the third-grade teacher for a parent/teacher conference. At the conference, the parent was satisfied with the student’s progress. The parents indicated that the student was not showing signs of anxiety and that the teacher should “keep doing what you are doing.”

The parent notified the district on October 25, 2019, that the student recently had a medical appointment, and the doctor was concerned the student had an auditory processing disorder. The parent also requested a special education evaluation for the student. The parent sent the district two medical notes about the student from the student’s provider. The first note, dated October 30, 2019, stated that the student was being evaluated for an Auditory Processing Disorder and requested the district provide the student accommodations. The second note, dated November 4, 2019, requested accommodations at school for an Auditory Processing Disorder and social/emotional health related to anxiety and depression associated with school struggles.

The district received the parent’s referral on October 30, 2019. It initiated the evaluation process on November 4, 2019, by sending the parent Form IE-3 “Initial Evaluation: Notice and Consent Regarding Need to Conduct Additional Assessments.” The district received the parent’s signed consent form on November 18, 2019. As of late November, the district was nearing completion of the evaluation process and expected to hold a team meeting soon to determine the student’s eligibility under the IDEA and Section 504. The district properly fulfilled its responsibility to locate, identify, and evaluate a student with a disability.

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.

Sincerely,

//signed by BVH 12/26/19
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support
BVH:mm

For questions about this information, contact DPI Sped Team (608) 266-1781