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IDEA Complaint Decision 20-007

On January 27, 2020 (form dated January 24, 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, during the 2019-20 school year:

  • Properly responded to a parent’s request for a special education evaluation;
  • Properly conducted a special education evaluation;
  • Properly conducted a meeting of the student’s individualized education program (IEP) team including all required participants; and
  • Properly implemented the student’s IEP.

The district identified the student who is the subject of this complaint as having a disability under Section 504 of the Rehabilitation Act on May 17, 2019, and developed a Section 504 Plan. On August 5, 2019, the parent contacted district staff via email and informed them the student’s functioning had decreased, and as a result, the student would be attending day treatment at the beginning of the 2019-20 school year. The parent also requested the district to consider providing the student online classes during this time, and asked whether to “adjust her [the student’s] 504 or convert to an IEP.” District staff responded by email to the parent on August 6, explaining that a review of the Section 504 Plan would be the next step and that an IEP may be appropriate in the future. The parent’s email reply indicated that the review of the student’s Section 504 Plan was her biggest concern. On August 20, 2019, the parent sent a follow up email stating that she was awaiting information regarding the student’s Section 504 Plan or IEP “adjustment.” On September 13, 2019, a Section 504 Plan meeting was held with the parent in attendance. The team discussed the need for data related to the student’s new medical diagnosis and changes in student behavior, as reported by the parent. The parent later requested that the student’s Section 504 Plan be converted to an IEP in an email to another special education staff member on September 19, 2019. Special education staff replied in an email on September 20, 2019, that a Section 504 Plan is not automatically converted to an IEP, but that the parent would need to complete a referral to start the evaluation process and attached the referral to the email reply to the parent. The parent did not submit a referral under IDEA.

On October 3, 2019, another Section 504 Plan meeting was held with the parent to revise the plan. The district reported that throughout this meeting, the parent did not indicate a desire for a special education evaluation or an IEP. The district further reported that at the conclusion of the meeting, the parent was asked if her concerns were addressed, and the parent responded “yes” and, again, did not request an evaluation under IDEA. On October 23, 2019, the parent sent an email to the student’s teacher inquiring about the student’s assignments and asked about getting an IEP for the student. On Oct 24, 2019, the school psychologist emailed the parent a referral form to complete and informed the parent that the referral would initiate the evaluation process.

On October 25, 2019, the district received a completed Referral for Special Education Evaluation form from the parent. The parent’s referral documented a medical diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) along with anxiety and other medical diagnoses, concerns with executive functioning, communication, theft, and maintaining relationships. The district initiated the evaluation process by sending the parent the Notice of Receipt of Referral form along with the procedural safeguards document on October 25, 2019. The Notice and Consent Regarding Need to Conduct Additional Assessments, dated November 8, 2019, documented the required IEP team members’ and parent’s review of the student’s existing data and documented additional assessments to be conducted in the areas of behavior, executive, and classroom functioning. The consent was given to the parent to sign on November 8, 2019, and the parent returned the signed consent to the district the same day.

On December 10, 2019, an initial evaluation was conducted with the required team members. It included information from multiple sources of data. The review of existing data included information and observations from the parent and teacher, results of district assessments, and information about the student’s current academic performance. The IEP team considered the accommodations included in the student’s Section 504 plan as interventions and discussed their effects. The IEP team also considered the student’s prior and current behavioral history along with results of behavioral and executive functioning rating scales from the student, parent, and teacher. The IEP team determined the student met criteria for emotional behavioral disability and was determined to need special education, including instruction in executive functioning, self-monitoring, coping strategies, self-advocacy, and organization.

The IEP team subsequently met on January 6, 2020, to develop the student’s initial IEP and determine placement. The parent’s complaint noted that a regular education teacher of the student did not attend the initial IEP meeting. The district acknowledges the regular education teacher in attendance at the meeting was not a teacher of the student. The initial IEP documents an offer of placement dated January 28, 2020, at the high school that the student was already attending and a projected implementation date of February 4, 2020. The district received the signed Parent Consent for Placement from the parent on February 14, 2020. The parent placed the student in a residential treatment facility in mid-January due to mental health concerns. The student has been excused from school attendance while at the residential treatment program in accordance with district policy. During the complaint investigation, the parent reported the student was still in residential treatment and was expected to return to school in mid-March. An IEP team meeting was held on March 4, 2020, to address concerns the parent raised regarding the student’s initial IEP. This team included a regular education teacher of the student. During the course of this complaint investigation, district staff reported the IEP document was still being finalized with a possibility of holding another IEP meeting to address additional concerns from the parent.

Whether the district properly responded to a parent’s request for a special education evaluation.

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][1][i]). District staff who reasonably believe a student has a disability must refer the student for a special education evaluation. (Wis. Stat. § 115.777[1]). 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[1][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[2][a]). The district must accept and process all referrals that are submitted. (Wis. Stat. § 115.777[3]).

Prior to September 19, 2019, staff did not interpret the parent’s communications as requests for a special education evaluation. Although parents are not required to use specific language to request a special education evaluation, district staff reasonably interpreted the parent’s August 5, 2019, email as an inquiry about the student’s existing Section 504 Plan. The parent’s follow up email later in August indicated possible consideration of an IEP as an option or revising the Section 504 Plan rather than a request for a special education evaluation when the parent stated that she was “still waiting [for] information regarding a 504/IEP adjustment.” The district reported that during phone calls with the parent, between August 28, 2019, and September 13, 2019, the parent did not indicate a desire for a special education, nor did the parent request an evaluation during meetings to review the student’s Section 504 Plan in September and early October. Staff interviews and the evaluation report indicate the student was considered to be very capable, sociable, worked well both individually and in small groups, and was seen by some as a leader in class. The district reported that they did not believe a special education evaluation was needed during this time and that the student’s needs were being addressed under the Section 504 Plan.

In response to the parent’s September 19, 2020, request for a special education evaluation, district staff sent the parent a referral form to the parent to complete the following day. However, the parent did not return the completed referral form. In response to the parent’s October 24, 2019, request for a special education evaluation, district staff again sent the parent the referral form on October 25, 2019. Upon receipt of the completed referral on October 25, 2019, the district sent the parent the Notice of Receipt of Referral to begin the special education evaluation. The district properly responded to the student’s parent’s request for a special education evaluation.

Whether the district properly conducted a special education evaluation.

Within 15 days of the districts receipt of the referral, the IEP team, including the student's parent, must conduct a review of existing data to determine what additional data, including information from assessment or other evaluation activities, are needed to complete the evaluation. This review also includes any previous interventions and the effects of those interventions. (Wis. Stat. § 115.782[2][b]1). Assessments or other evaluation activities may include observations in a range of environments, standardized or norm-referenced tests, intellectual testing, informal and criterion-referenced tests, rating scales and checklists, and interviews with parents, caregivers, regular education teachers, and others as appropriate. (Wis. Stat. § 115.777[3][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[3][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[3][c]).

The district immediately sent the parent a notice of receipt of referral on October 25, 2019, and within 15 days of receipt of the referral, conducted the review of existing data. On November 8, 2019, the district sent the parent a timely Notice and Consent Regarding Need to Conduct Additional Assessments. The district acknowledges the evaluation report did not include documentation of the effects of the student’s Section 504 Plan as an intervention. However, the team discussed the effects of the Section 504 Plan at the meeting. The evaluation was held within the required 60-day timeline of the receipt of the parent’s signed consent for additional assessments and included information from a variety of sources.

In the complaint, the student’s parent raised concerns that the student’s specific behavior incidents were not documented in the evaluation report. District staff indicated there was an extensive discussion of the student’s behavior during the evaluation. The district reported that although the behavior incidents were not recorded as infractions, records were kept on the behavior incidents, and that ultimately it was the discussion of the student’s behavior incidents that formed the basis of the student meeting criteria for an emotional behavior disability. The district timely held an IEP team to develop the student’s IEP and placement on January 6, 2020, within 30 days of the eligibility determination. The district properly conducted a special education evaluation of the student.

Whether the district properly conducted a meeting of the student’s individualized education program (IEP) team including all required participants.

A student’s IEP team must include the parents of the student, a regular education teacher of the student, a special education teacher of the student, and a representative of the local educational agency (LEA). (34 CFR § 300.321[a][1]-[5]). Other persons may participate on the IEP team at the discretion of the parents or the LEA. (34 CFR § 300.321[a][6]).

The student’s parent raised concern that a regular education teacher of the student did not attend the January 6, 2020, IEP meeting. The district reported that a regular education teacher was at the January 6, 2020, IEP meeting to develop the initial IEP, but acknowledges the teacher was not a teacher of the student. The district reported that there was an error in the student’s list of teachers when it scheduled the IEP team meeting. The district acknowledges that it did not properly conduct the student’s IEP team meeting when a regular education teacher of the student was not included in the IEP team meeting held on January 6, 2020. The district and parent reported that on March 4, 2020, an IEP team meeting was held to review and revise the IEP and included a teacher of the student. This was an isolated error. Therefore, no corrective action is required for this violation.

Whether the district properly implemented the student’s IEP.

School districts must provide each student with a disability a free appropriate public education (FAPE) in the least restrictive environment. A school district meets its obligation to provide FAPE to each student with a disability, in part, by developing and implementing each student’s IEP. The IEP must include a statement of the student’s present levels of academic achievement and functional performance. The IEP team must identify how the student's disability affects the student's involvement and progress in the general curriculum, develop measurable annual goals designed to meet the student's disability-related needs, and align special education services to enable the student to advance appropriately toward attaining the annual goals, make progress in the general curriculum and be educated with nondisabled students. The IEP must include clear descriptions of the amount, frequency, location, and duration of services so the school district’s commitment of resources is clear to the parent and all involved in developing and implementing the IEP. Staff responsible for implementing the student’s IEP must be informed of their specific responsibilities. (34 CFR §§ 300.320, 300.323, 300.324; Wis. Stat. § 115.787).

The initial IEP documents an offer of placement dated January 28, 2020, and February 4, 2020, as the projected implementation date. Although the district sent the parent the IEP and offer of placement on January 28, 2020, the district did not receive the signed Parent Consent for Placement from the parent until February 14, 2020. The special education provisions related to properly implementing the student’s IEP prior to February 14, 2020, do not apply because consent for provision of services had not been received during this time.

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.

Sincerely,

//digitally signed by BVH 3/27/20
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support

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