On April 1, 2020, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against the XXXXX (district). On April 21, 2020, the department extended the 60-day time limit for the resolution of this complaint, as provided in 34 CFR § 300.152(b)(1)(i), due to the existence of exceptional circumstances resulting from a public health department school closure order. The department resumed the investigation when circumstances allowed the possibility of obtaining all relevant information necessary to make an independent determination as to whether the district violated the requirements of state and federal special education law. The issues identified are whether, beginning April 1, 2019, the district:
- Properly conducted a reevaluation of a student with a disability, and
- Properly developed the student’s individualized education program (IEP).
A district must reevaluate a student with an IEP at least once every three years unless the district and parent agree that a reevaluation is unnecessary. As part of any special education reevaluation, the IEP team, including the student’s parents, must conduct a review of existing data. If the IEP team determines additional data are needed, the district must, within 15 business days of a notice initiating an evaluation, request in writing parental consent for additional testing. The IEP team may not use any single measure or assessment as the sole criterion for determining whether a student is, or continues to be, a student with a disability. Within 60 days after the district receives parental consent for administering tests or other assessments, the IEP team must meet to determine whether the student has an impairment and needs special education. (34 CFR §§ 300.303-311 and Wis. Stat. § 115.787 and 115.78).
If a determination is made that a student has a disability and needs special education and related services, an IEP must be developed for the student. 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 district’s commitment of resources is clear to the parent and all involved in developing and implementing the IEP. (34 CFR § 300.320, 34 CFR §§ 300.323-324, and Wis. Stat. § 115.787). If a parent refuses to provide consent for additional testing, the district may conduct an IEP team meeting to determine if, based on available information, the student continues to be eligible for special education.
The student is identified as a student with a disability under the eligibility areas of Specific Learning Disability, Speech/Language Impairment, and Other Health Impairment (OHI). The district initiated the reevaluation that is the subject of this complaint on February 13, 2019. The district notified the parent that the district last evaluated the student on November 21, 2016, and, therefore, a reevaluation was due. On February 26, 2019, after obtaining input from district staff, the student’s case manager spoke with the parent to discuss the need for additional assessments, including assessments to determine whether the student meets eligibility criteria under the impairment area of Visual Impairment (VI). After speaking with the parent, the case manager sent a follow-up email seeking parental input and listing the proposed assessments for the reevaluation, including a vision assessment. The list identified the evaluator who conducted the vision assessment in 2016 as one of two evaluators for the proposed vision assessment.
In the same communication, the case manager also sent the parent form PI-2015, "Ocular Report for Children with a Known or Suspected Visual Impairment." The department developed the form to aid communication between teachers and eye specialists or physicians. Although the form is not required by state or federal special education laws, it is the preferred method for obtaining and documenting requisite information from an eye care specialist or physician. The information documented by the form includes a student’s ocular information, causes of blindness and visual impairment, prognosis, and recommendations. Typically, this information is used to assist the evaluator in conducting the vision assessment and by the IEP team in determining whether the student meets eligibility criteria under the category of VI.
The day after the case manager sent the communication, the parent responded by requesting information concerning the involvement and credentials of the new evaluator listed for the proposed vision assessment. The following day, the case manager sent an email explaining that the new evaluator works for the district as a vision specialist, and the two evaluators would be working jointly in the reevaluation process. In the communication, the case manager again asked whether the parent was in agreement with the proposed assessment plan. The parent did not respond to this communication.
On March 5, 2019, the case manager sent the parent a form requesting consent for the additional assessments. The parent replied, indicating that the parent was still awaiting a response to her inquiry concerning the evaluator. The case manager immediately answered by referring the parent to the previous email containing information about the evaluator. The parent refused consent for the additional assessments.
The parent’s reasons for refusing consent included concerns with the evaluator who conducted the vision assessment in 2016, insufficient information regarding the new evaluator for the visual assessment, and concern that the student would not be able to undergo an eye exam to obtain information for the ocular form until June at the earliest. The district attempted to explain to the parent the importance of the evaluation, but, ultimately, did not conduct the additional assessments based on the parent’s refusal. On May 2, 2019, the district conducted an IEP team meeting, with all required participants, and based on the existing data available, determined the student continued to be a child with a disability in need of special education. The district continued to provide the student with special education services. The district properly conducted a reevaluation of a student with a disability.
Within 30 days from the date of this decision, the district must conduct an IEP team meeting to determine continuing eligibility or, with parent agreement, waive the three-year reevaluation if determined appropriate. The district must send to the department documentation of the meeting within ten days from the date of the meeting or a copy of the agreement to waive the three-year reevaluation.
The student’s IEP team met on May 16, 2019, to conduct the student’s annual IEP. The complaint, in this case, indicates that the student’s IEP was inadequate because the evaluation was not sufficiently comprehensive, and the student received no educational benefit. While the IEP may have benefited from the information that could have been provided through the additional assessments in the reevaluation process, in this case, the IEP team was unable to obtain additional information through additional assessments as a result of the parent’s refusal. Therefore, to the extent the parent’s concerns focus on deficiencies in the IEP resulting from a reevaluation that was not sufficiently comprehensive, the district appropriately developed the student’s IEP.
The complaint also indicates that the student’s IEP was inadequate because the IEP lacks appropriate baseline data related to the student’s annual goals. An IEP must contain measurable annual goals, including baseline data from which progress can be measured. The district acknowledged that several goals contained in the IEP developed at the May 16, 2019, meeting did not explicitly contain baseline data for the student. The district has already implemented appropriate corrective actions to ensure future compliance, and the student’s current IEP goals contain baseline data for the student. Therefore, no additional corrective action is required.
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.
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support