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IDEA Complaint Decision 20-020

On February 24, 2020 (form dated February 21, 2020), 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 this complaint. The issue is whether the district, during the 2019-20 school year, properly conducted a special education evaluation.

An individualized education program (IEP) team may identify a student as having a specific learning disability (SLD) if the student demonstrates both insufficient progress and inadequate classroom achievement after the student has received at least two intensive scientific research-based interventions (SRBIs). (Wis. Admin. Code PI 11.36[6][c]). SRBIs are not special education assessments; rather, they are components of a school district’s general education multi-level system of support. Insufficient progress is determined when a student does not make enough progress to meet age or grade-level standards in one or more of the eight areas of potential SLD when using a process based on the student’s response to intensive SRBIs. SRBIs must be implemented for each area of concern, and SRBIs for each separate area of concern must be provided consecutively and with fidelity to the design of the SRBI. Inadequate classroom achievement is determined when the student’s score, after intensive intervention, on one or more assessments of achievement is equal to or more than 1.25 standard deviations below the mean in one or more of the eight areas of potential SLD.

The district must determine if a student is eligible for special education within 60 days after the district receives parental consent for the evaluation. (Wis. Stat. § 115.78[3]). When conducting an initial SLD evaluation, the 60-day timeline may be extended by mutual written agreement of the student’s parents and IEP team if the student has not received two consecutive SRBIs with weekly progress monitoring at the time of referral. If the parent does not agree to an extension, the IEP team must meet and complete the evaluation within the 60-day timeline using the data collected to date. If the IEP team does not have sufficient data to determine whether the student meets the SLD criteria, it may find the student not eligible. Other health impairment (OHI) means having limited strength, vitality, or alertness (due to chronic or acute health problems), which adversely affects a child's educational performance. (Wis. Admin. Code PI 11.36[10]).

On September 10, 2019, the district received a referral for special education from the parent. The parent cited the student’s difficulty reading, problems with learning, behavioral-emotional problems, and concerns in the area of sensory/perceptual skills as reasons for the referral. The parent requested an evaluation in the areas of SLD and OHI. On September 18, 2019, the district sent the parent notice of receipt of the referral and the start of the evaluation. The IEP team, including the parent, conducted a review of existing data and determined additional information was needed, including data from two SRBIs in basic reading skills and results of additional assessments. On September 23, 2019, the district spoke with the parent by phone, and the parent agreed to extend the evaluation timeline to March 31, 2020, to allow adequate time for the two SRBIs to be completed with fidelity. On September 29, 2019, district staff mailed the parent a form to document this agreement in writing, but the parent did not sign the agreement and instead indicated disagreement with the timeline extension. District staff contacted the parent multiple times to explain the reasons for the request for the timeline extension, but the parent refused to provide written agreement to extend the timeline. The district began providing the student SRBIs in basic reading on September 30, 2019. On October 9, 2019, the district received the parent’s consent to conduct other additional assessments.

IEP team meetings were held on December 4 and 5, 2019, to determine the student’s initial eligibility for special education. During the meetings, the student’s parent shared the student’s struggles with reading. The student’s parent reported the student has a hard time finding answers to questions, has trouble remembering words, and gets frustrated and anxious. The IEP team considered information from the student’s teachers; classroom, district, and statewide assessments; and an outside agency’s neuropsychological evaluation provided by the parent. The IEP team also discussed observations conducted during the evaluation and the results of additional testing.

The IEP team considered, but rejected, an impairment of SLD after analyzing whether the student demonstrated insufficient progress or inadequate classroom achievement. The IEP team determined the student was making sufficient progress during the first nine weeks of a 10-12 week SRBI in basic reading. The IEP team documented that the student’s rate of progress during the first SRBI was greater than that of the student’s same-age peers and as such, district staff believed the student would reach the average range of academic achievement in basic reading in a reasonable amount of time (before the end of the school year). The IEP team also determined the student demonstrated adequate classroom achievement based on assessments in the area of basic reading, including letter-word identification and word attack/decoding. The assessment was administered after the first nine weeks of intensive reading intervention because the 60-day timeline was ending. The student scored above the mean (or above grade-level average) on the basic reading assessment. Because there was no mutual agreement to extend the 60-day timeline, the IEP team was unable to complete the two SRBIs, and therefore, did not have sufficient data to determine eligibility. The IEP team properly evaluated the student for SLD eligibility.

The IEP team also considered and determined the student was not eligible for special education services under the impairment area of OHI. In making this determination, the IEP team reviewed information from a neuropsychological evaluation shared by the parent, behavior rating scales completed by multiple teachers, the parent and the student, the student’s academic achievement and functional performance, and the results of classroom observations. The IEP team documented the student had a chronic health problem as evidenced by a diagnosis of attention-deficit hyperactivity disorder (ADHD), but it did not adversely affect the student’s education performance such that specially designed instruction was required. As such, the IEP team determined the student was not eligible for special education services under the impairment area of OHI. The IEP team recommended consideration for a 504 accommodation plan due to the student’s health condition. The IEP team properly conducted a special education evaluation.

In evaluating each of the impairment areas, the IEP team considered the neuropsychological report shared by the parent. The report indicated the student was diagnosed with developmental dyslexia/SLD in reading and ADHD. A student with a non-educational diagnosis of dyslexia or other conditions must also meet the eligibility criteria for impairment and demonstrate a need for special education prior to identification as a student with a disability. The IEP team considered the relevant medical findings but determined the student did not meet the educational standards for these impairments.

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 4/20/20
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support

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