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IDEA Complaint Decision 19-092

On November 25, 2019, (form dated November 21, 2019), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against XXXXX (district). On December 10, 2019, the department received notification that the parties agreed to participate in mediation relating to the issues in this complaint and a request to extend the time to complete the complaint investigation. Federal regulation permits the department to extend the time limit for investigating complaints when parties to mediation agree to an extension. On February 2, 2020, the department received a communication indicating that the parties terminated their efforts to seek a resolution through mediation. The department resumed the investigation; however, as a result of disruptions caused by the COVID-19 pandemic, the complainant did not respond to department communications until June 11, 2020. The department subsequently completed the investigation, and this is the department’s decision regarding that complaint. The issues are whether the district, since November 25, 2018, properly conducted an evaluation and developed an individualized education program (IEP) for a student with a disability.

Under state and federal special education law, school districts are required to locate, identify, and evaluate all resident students with disabilities who have not graduated from high school. The purpose of an evaluation is to determine whether the student qualifies as a child with a disability and the nature and extent of the student's educational needs. As part of a special education evaluation, the school district must appoint an IEP team. Within 15 days of the district’s receipt of a special education referral, the IEP team, including the student's parent, must conduct a review of existing data to determine what additional data, including information from assessments or other evaluation activities, are needed to complete the evaluation. The district must complete all assessments and hold an IEP team meeting to determine the student's eligibility within 60 days of the district's receipt of the parent's consent to conduct assessments. (34 CFR §§ 300.304 - 300.306). When applying eligibility criteria for the impairment category of significant developmental delay (SDD), IEP teams must consider all other suspected impairments under this section before identifying a child's primary impairment as a significant developmental delay. (Wis. Admin. Code PI 11.36[11][b]).

If a determination is made that a child has a disability and needs special education and related services, an IEP must be developed for the child. (34 CFR § 300.306). A school district meets its obligation to provide a free appropriate public education (FAPE) to each student with a disability, in part, by developing and implementing each student’s IEP. A student’s IEP must describe services such that the level of the district’s commitment of resources is clear to parents and other IEP team members. All services must be provided, as described in the IEP. (34 CFR §§ 300.320-300.324)

Whether the district properly conducted a special education evaluation.

The district received a special education referral for the student from district staff on February 21, 2019. The reasons for the referral included the student’s distractibility, difficulty with transitions, difficulty with verbal communication, and difficulty with pre-academic concepts. After conducting a review of existing data, which involved the parent, the IEP team determined that additional assessments were needed to conduct the evaluation. On February 26, 2019, the parent consented to an assessment of the student’s phonological skills, an assessment of the student’s receptive and expressive language skills, as well as an assessment of the student’s physical development, adaptive behavior, language development, academic skills, cognitive development, and social-emotional development.

After the district conducted the assessments, the student’s IEP team met on April 18, 2019, to determine the student’s eligibility. During this meeting, the IEP team focused on eligibility under the impairment category of SDD and completed an eligibility checklist for SDD to assist in applying eligibility criteria. The checklist indicates that all other suspected impairment areas were considered before identifying the category of SDD. The IEP team determined that the student met eligibility criteria for SDD, and, by reason of this impairment, the student needed special education. The form documenting the determination of eligibility indicates that other impairment areas were considered and rejected, but the document neglects to identify which impairments were rejected and how the student did not meet the criteria; however, during the evaluation process, neither the parent nor any of the other members of the IEP team discussed concerns that would give rise to suspicion the student might have a disability in the area of autism. Following the initial eligibility determination, the student received a medical diagnosis of an autism spectrum disorder from a private clinic. This diagnosis caused the parent to become concerned with the comprehensiveness of the student’s initial evaluation and formed the basis for the parent’s complaint as it relates to this issue.

In this case, the initial evaluation is not rendered inappropriate by a subsequent autism diagnosis from a private clinic. At the time of the initial evaluation, none of the IEP team members discussed concerns related to autism, and the district conducted a timely evaluation, which included assessments in all areas identified by the IEP team. Additionally, an IEP team need not consider all other impairments before identifying a child's primary impairment as SDD; rather, it must consider all other suspected impairments. At the time of the initial evaluation, autism was not a suspected impairment, and the IEP team was, therefore, not required to consider and reject this impairment before identifying SDD. Although the district properly determined and conducted the assessments, it did not properly document the determination of eligibility. The form indicated that other impairments were considered and rejected, but did not indicate which impairments were rejected and how the student did not meet the criteria.

Whether the district properly developed the individualized education plan (IEP) of a student with a disability.

At the same meeting as the eligibility determination, the student’s IEP team developed the student’s IEP and determined initial placement. The district sent the parent a copy of the IEP document, but, due to a clerical error, the version the parent received inadvertently contained pages interspersed from a draft version of the IEP. The parent’s concerns with the IEP resulted from this clerical error. The district provided the parents with a correct, final version of the IEP prior to implementation, and the student received services pursuant to the final version of the IEP after the parents provided initial consent for placement. The district properly developed the student’s IEP.

After the parent filed this complaint, the district conducted a subsequent evaluation of the student, and the student’s IEP team met and resolved all of the parent’s concerns. Additionally, the parent acknowledges that, notwithstanding the documentation errors, the student received FAPE during the period the IEP was in effect. Accordingly, no student-specific corrective action is required.

Within 60 calendar days of this decision, the district must develop and submit for department approval a corrective action plan designed to ensure that when completing special education evaluations, district staff properly document impairment areas considered and rejected.

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 the department’s review of this complaint. This decision is final for the IDEA State Complaint process. These issues may be addressed through other dispute resolution options, including mediation and due process hearings. For more information, visit the department’s website at http://dpi.wi.gov/sped/dispute-resolution.

Sincerely,
//digitally signed by BVH
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support

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