On January 24, 2020, (form dated January 21, 2020), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against XXXXX (district). This is the department’s decision regarding that complaint. The issues identified are whether the district, beginning January 24, 2019, properly conducted a special education evaluation, and improperly changed the individualized education program (IEP) outside of an IEP team meeting.
Whether the district properly conducted a special education evaluation.
A parent may refer their child to the school district for a special education evaluation. The referral must be in writing and include the name of the child and the reasons why the parent believes the child is a child with a disability. Upon receipt of a referral, the district must appoint an 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], 300.305[a]; Wis. Stat. §§ 115.792, 115.782[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[a]). School districts must ensure that assessments and other evaluation materials used are selected and administered so as not to be discriminatory on a racial or cultural basis, and are administered in the child's native language or other modes of communication and in the form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is clearly not feasible to do so. The district must also ensure the assessments are used for the purposes for which the assessments or measures are valid and reliable, are administered by trained and knowledgeable personnel, and are administered in accordance with any instructions provided by the producer of the assessments. The district must ensure assessments and other evaluation materials are tailored to assess specific areas of educational need and not merely those that are designed to provide a single general intelligence quotient (34 CFR § 300.304 [c]). A child must not be determined to be a child with a disability if the determinant factor for that determination is limited English proficiency (34 CFR § 306 (b)(1)(iii)).
On February 20, 2019, the district received an initial verbal request from the student’s parent for a special education evaluation for the student, followed by a written request. A Notice of Receipt of Referral and Start of Initial Evaluation was provided to the parents. On February 21, 2019, a review of existing data was conducted using a team process that included required school staff members and the parent. Information regarding the student’s history and educational background were discussed in addition to potential assessment approaches. On February 27, 2019, the student attended his first day of school in the district after being recently adopted from another country.
In arranging the evaluation and assigning the IEP team members, district staff discussed the importance of adding a bilingual school language psychologist (SLP) to the team due to the student’s recent move to the U.S. and status as a student with Spanish as the primary language. The staff also determined the need to add a bilingual SLP on the team for language and articulation assessment for the same reasons. On March 2, 2019, the district learned that a bilingual SLP was available to support the student’s evaluation. On March 5, 2019, the district contracted with a bilingual school psychologist and bilingual special education teacher to be part of the IEP team. The specialists contracted to support the student’s evaluation were fluent in Spanish and specialized in completing culturally and linguistically diverse evaluations on students that come from Spanish-speaking backgrounds.
On March 11, 2019, the district school psychologist talked with the parent to get parent input regarding the need for additional testing. As a result, an initial evaluation Notice and Consent regarding the need to conduct additional assessment form was sent to the parents. On March 15, 2019, the parents consented to additional assessments. On April 5, 2019, an invitation for an IEP meeting was sent to the parents.
An IEP meeting was held on May 2, 2019, to discuss evaluation results, determine eligibility, and to develop an initial IEP. When the parents arrived at the evaluation meeting, they were handed a copy of the evaluation containing the partially completed final pages of the evaluation. The parent noted the final pages of the evaluation had been filled out with the impairment area of “Intellectual Disability” identified for the student, and the parent was concerned the district had predetermined the eligibility determination. The district acknowledges that contrary to district policy and practice, the box on the form for an intellectual disability was checked prior to the IEP team meeting. The district believes this error was the result of a technical problem with the district’s electronic IEP forms. The district has taken affirmative steps to notify staff that none of the boxes for impairment should be checked in advance on the Determination of Eligibility and Need for Special Education pages of the evaluation if draft evaluation paperwork is printed prior to the meeting.
During the evaluation portion of the meeting, the IEP team determined that the student’s intellectual ability, adaptive skills, and academic skill levels fell two or more standard deviations below the mean and identified the student as meeting the eligibility criteria for intellectual disability. The IEP team acknowledged that this identification was to be considered with caution, as the impact of the student’s prior experiences and opportunities for exposure to concepts was unknown. In addition, while the team considered the criteria for speech/language impairment, the team determined the student's language skills were delayed, but consistent with the student’s developmental levels. The team determined the student did not meet the eligibility criteria for a speech/language impairment. Finally, the IEP team considered the impairment area of other health impairment at the parents' request. The IEP Team determined the student was not demonstrating characteristics of a health problem in the educational environment, and as such, did not meet the criteria for other health impairment. The IEP team then determined as a result of the student’s impairment, the student required specially designed instruction.
The IEP team, however, did not adequately consider whether the determinant factor for the student’s eligibility was the student’s limited English proficiency. During interviews with the department’s investigator, one of the contracted evaluators expressed concern that the district did not adequately consider the student’s new situation as the student was still affected by culture shock and the trauma of adjustment. The department staff member was also informed that non-verbal assessments of the student would have been more appropriate and would have provided better information about the student’s functioning. However, under the district’s direction, verbal tests were conducted. The department staff member was also informed that it would have been more appropriate to use a cognitive test with less cultural bias than the test used by the district, but the test used complied with district directions. Another individual interviewed expressed concern that the identification of intellectual disability was not necessarily an appropriate identification for a child who had been in the country for such a limited amount of time. It was also noted the district staff and outside contractors disagreed about the determination during the evaluation meeting. One of the district staff members on the team also felt rushed to make a decision as the parent wanted the student to get services in place as soon as possible. The district did not properly conduct an initial evaluation of the student. In recognition of the unique circumstances of this case, district staff has begun a new evaluation of the student. Due to concerns raised about the district’s previous identification of the student as having an intellectual disability, the district must consider the initial criteria for an intellectual disability during this evaluation. The district must submit a copy of the new evaluation within ten days of the IEP team meeting. Due to public school closures as a result of the COVID-19 virus, we recognize that this evaluation may be delayed. Given the unique circumstances of this situation and actions the district has taken to ensure similar errors do not recur, no further district-level corrective action is required.
Whether the district improperly changed the individualized education program (IEP) outside of an IEP team meeting.
Each public agency must take steps to ensure that one or both of the parents of a child with a disability are present at each IEP team meeting or are afforded the opportunity to participate by notifying parents of the meeting early enough to ensure that they will have an opportunity to attend and scheduling the meeting at a mutually agreed on time and place. The district must provide the parents notice of the IEP team meeting indicating the purpose, time, and location of the meeting and who will be in attendance. A meeting may be conducted without a parent in attendance if the public agency is unable to convince the parents that they should attend. In this case, the public agency must keep a record of its attempts to arrange a mutually agreed on time and place (34 CFR § 300.322). After the annual IEP team meeting, the district and the parent can agree to make changes to an IEP without holding a meeting. Districts must be sure to obtain and document the parent’s agreement and provide the parent prior written notice of the changes made (34 CFR § 300.324[a]; 34 CFR § 300.503[b]).
The student’s IEP team met to develop the student’s IEP and determine the student’s placement on May 2, 2019. On May 6, 2019, the parents were provided with notice of placement by the student’s special education teacher. On May 20, 2019, the parents signed the initial consent for placement for the IEP that took effect on May 22, 2019.
At a November 2019 parent-teacher conference, the parents discovered the IEP goals the teacher shared with them differed from the goals in the IEP the parents had received in May. The parent asked the teacher for an official copy of the student’s IEP and received it on January 6, 2020.
The parent called the district office as she was concerned the district had improperly changed the IEP outside of the IEP team meeting. The district confirmed that the version of the IEP that the parent received was different from the version in the district’s student information system that was being implemented. The district noted it was unclear how or when the final copy of the IEP was later revised. District staff immediately scheduled an IEP team meeting to discuss and address the parent’s concerns and revise the student’s IEP. The district has taken district-wide steps to ensure that the error does not recur. It is purchasing a premium add-on to its student information system starting in the 2020-2021 school year. This will allow staff to track all changes made to IEPs and to determine when they were made and by whom. Additionally, the district determined that the IEP was not mailed to the parent per district policy and procedure. While the staff was unable to determine how this may have occurred, the district has taken steps to ensure that parents are properly provided a copy of the IEP prior to implementation. No further corrective action is required.
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 the department's website at http://dpi.wi.gov/sped/dispute-resolution for more information.
//digitally signed by BVH 3/24/20
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support