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IDEA Complaint Decision 20-039

On April 23, 2020, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainants) against the XXXXX (district). This is the department’s decision regarding the complaint. The issues are whether the district, beginning January 14, 2020:

  • Properly conducted a special education evaluation;
  • Properly developed the individualized education program (IEP) to provide a free appropriate public education (FAPE) in the least restrictive environment (LRE); and
  • Improperly continued special education services after the student’s parents revoked consent.

School districts must conduct comprehensive evaluations to determine a student’s eligibility for special education by assessing the student in all areas related to the suspected disability. (34 CFR § 300.304[c][4]). As part of the comprehensive evaluation, the IEP team must review existing evaluation data and information provided by the parent of the student. (34 CFR § 300.305[a][1][i]). The IEP team must examine all sources of information and use professional judgment in considering the educational needs of the student. The IEP team must gather information from multiple sources using a variety of methods. If medical information is available, the IEP team must consider it as part of the evaluation, but it must not be the sole component of the evaluation. A medical diagnosis does not result in automatic eligibility for special education. Granting of consent for special education is voluntary on the part of the parent and may be revoked at any time. (34 CFR § 300.309[c]).

The student who is the subject of this complaint was previously identified as having an emotional behavioral disability (EBD) and was receiving special education. On October 24, 2019, the parents requested a reevaluation, as they believed the student was demonstrating characteristics of autism, including sensory sensitivity, social and communication issues, and making inappropriate noises. The IEP team, including the student’s parents, conducted a review of existing data and determined additional assessments were necessary. The district notified the parents of the need for additional assessments in the areas of social emotional functioning, sensory functioning, fine motor functioning, academic achievement, and language processing. The parents gave consent for testing on December 2, 2019.

On January 14, 2020, the IEP team met to discuss the evaluation results and to determine the student’s continuing eligibility for special education. The parents shared that the student has a medical diagnosis of Autism Spectrum Disorder (ASD). District staff clarified the IEP team would consider this information, but identification of an impairment of autism by an IEP team is based on disability-related needs in the educational setting, not strictly upon a medical diagnosis. During the meeting, various IEP team members shared data and information about the student’s academic achievement and functional performance, as well as the results of additional assessments and observations. IEP team members observed the student in the special education room, cafeteria, and hallways. The student’s regular education teacher and special education teacher completed various autism rating scales, which indicated the student demonstrated some behaviors consistent with autism. The IEP team also discussed the results of a sensory profile indicating the student is over-responsive to sensory stimuli, which can lead to dysregulation, anxiety, and adverse effects on interactions. Following the discussion about assessments and observations, the IEP team completed the eligibility checklist for autism.

The IEP team determined the student did not meet the criteria for autism as the student did not display difficulties or differences in interacting with people and events, did not have problems with social communication and possessed age-appropriate social skills. They noted the student enjoys being with peers and adults and seeks social interaction, displays appropriate turn-taking when playing games, eye contact, reciprocal communication, and awareness of others. The team noted the student’s skills are impaired when the student is frustrated or emotionally dysregulated or is asked to complete tasks perceived as too difficult. The student’s parents disagreed with the determination. The student’s parents believed the student met the criteria for autism because of a high level of sensory sensitivities, rigidity in behavior, and difficulties establishing social relationships, particularly outside of school. The student’s parents believed that the student would receive more appropriate programming if the student were identified with autism than other impairment areas. The IEP team concluded that although the student exhibited some behaviors and characteristics associated with autism, they believed the behaviors were situational and the result of recent trauma the student had suffered. The team felt it was appropriate to consider other impairment areas that would more closely align with the observed behaviors and concerns.

The IEP team then considered the student’s continued eligibility under the impairment area of emotional behavioral disability (EBD) and completed the eligibility checklist, despite the parents’ wishes the team not consider EBD. The IEP team noted the student continues to exhibit severe, chronic, and frequent social, emotional and behavioral functioning that so departs from generally accepted age appropriate norms that it adversely affects the student’s academic progress and classroom adjustment. Specifically, the student displays noncompliance, work avoidance, and aggressive behavior in the classroom, as well as pervasive anxiety. However, the student’s parents were not comfortable stating the student exhibited such behavioral functioning at home or in the community. As such, the IEP team could not conclude that the student continued to meet the criteria for EBD. The IEP team meeting ended before any other suspected impairment areas could be considered.

In a follow-up email to the parents sent on January 14, 2020, the district explained that the IEP team needed to reconvene to consider other health impairment (OHI) as a suspected impairment area. The parents responded by email that they were not interested in considering OHI and that they “do not authorize anything and revoke any authorizations.” The parents asked that the student be returned to the regular education classroom. The district acknowledged the parents’ request to return the student to the regular education classroom but was confused as to whether the parents intended to revoke consent for further testing or to revoke consent for all special education services. In an effort to clarify the parents’ intent, the district emailed the parents a district form entitled Parent Revocation of Consent for Special Education. The parents did not complete the form, and in an email on January 15, 2020, requested the district begin occupational therapy and speech and language therapy for the student.

On January 22, 2020, the IEP team reconvened to continue the student’s evaluation. The parents attended the meeting and stated that they wanted to revisit the autism criteria and did not want to consider other impairment areas. The IEP team reviewed the data and criteria related to autism and concluded again that the student did not meet the criteria. The IEP team also considered and completed the eligibility checklist for other health impairment (OHI), determining the student has a chronic and acute health problem characterized by anxiety, emotional dysregulation, attention issues, and over-responsiveness to sensory stimuli that results in limited vitality and alertness and adversely affects academic achievement, behavior (including adaptive behavior), classroom performance, and communication. The student’s OHI adversely affects the amount of time the student is able to attend to instruction and the student’s ability to start and complete tasks, comply with requests and rules, and verbalize frustrations. The team further noted that when frustrated, the student may make a repetitive sound, throw items, or leave the room. Following the determination that the student met the criteria for OHI, the IEP team determined the student continued to need special education as a result of the impairment. Although the parents chose to leave the IEP team meeting early, they were told before they left that the IEP team would develop the student’s IEP in order to meet the state timeline, and it could be revisited at another meeting if the parents’ desired to reconvene. The parents agreed that the IEP team could “come up with their ideas and [the parents and the team] would go over that information at the next meeting.” The IEP team meeting continued, student’s goals and services were reviewed, and occupational therapy was added to the student’s IEP to address the student’s sensory needs.

Whether the district properly conducted a special education evaluation.

The IEP team documented that the student was medically diagnosed with an autism spectrum disorder. The IEP team gathered and shared additional assessment data, classroom data provided by the student’s regular education teacher, the results of multiple autism rating scales, observations in special education and regular education settings, an interview with the student, and information from assessments conducted by a speech and language pathologist, an occupational therapist, and a school psychologist. Based on an examination of all of the information, the IEP team determined the student did not meet the criteria for impairment in the area of autism. The IEP team then considered other areas of suspected impairment, as required, and determined the student met criteria for other health impairment. The evaluation was sufficiently comprehensive to identify all of the student’s special education and related services needs. The district properly conducted a comprehensive special education evaluation.

Whether the district properly developed the IEP to provide a free appropriate public education (FAPE) in the least restrictive environment (LRE).

The parents did not agree with the IEP team’s decision that the student did not meet the educational criteria for autism. During the complaint investigation, the parents shared that they felt they did not have meaningful participation because of this outcome, and because the district developed the student’s IEP after the parents left the meeting. An IEP team must work toward consensus, but the district has the ultimate authority and responsibility to determine and provide a free appropriate public education to students with disabilities. The district offered to reconvene the IEP team to revisit the student’s IEP, and the parents agreed. Documentation of parent participation in the January 14, 2020, and January 22, 2020, IEP team meetings are included in the evaluation report and IEP. Interviews during the complaint investigation confirm that parents expressed their concerns and shared information during the meetings, and the IEP team considered the information. The district properly developed the student’s IEP.

Whether the district improperly continued special education services after the student’s parents revoked consent.

Parents’ revocation of consent for special education must be provided in writing. Revocation of consent applies to all special education and related services; parents cannot decide to revoke consent for some services but maintain others. Districts may provide parents a form for parents to use to revoke consent, although districts may not require parents to use the form. In this case, the parents’ intentions communicated via email were unclear. When the district attempted to confirm whether the student’s parents wished to revoke consent for special education by sending the parents a copy of the district form, the parents did not complete the form and instead requested additional special education services for the student. The student also continued to use specialized transportation provided as part of the student’s IEP and to access the special education classroom. In a subsequent email to the district, the parents stated that they “only signed initial consent for evaluation, not an IEP” and were open to meeting again to discuss the creation of an “autism IEP.” From these statements and actions, it is unclear if the parents were revoking consent for further testing or for special education services. Parents are not required to provide written consent for a student’s continuing placement in special education. Given the parents’ inconsistent communications with the district, it was reasonable for the district to seek clarification regarding the parents’ intentions, including, as one option, requesting the parents complete the district’s form. Since the student’s parents did not provide clear written confirmation of their desire to revoke their consent for special education, the district properly continued to provide the student special education services.

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. For more information, visit the department’s website at http://dpi.wi.gov/sped/dispute-resolution.

Sincerely,

//digitally signed by BVH 6/19/20
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support

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