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IDEA Complaint Decision 20-040

On April 27, 2020 (form dated April 23, 2020), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainants) against XXXXX (district). This is the department’s decision regarding that complaint. The issue is whether the district, during the 2019-20 school year, properly conducted a special education evaluation.

School districts are required under state and federal special education law to locate, identify, and evaluate all resident students with disabilities who have not graduated from high school. The purpose of an evaluation is to determine whether the student qualifies as a child with a disability and the nature and extent of the student's educational needs. As part of a special education evaluation, the school district must appoint an individualized education program (IEP) team. Within 15 days of the district’s 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. The district must complete all assessments and hold an IEP team meeting to determine the student's eligibility within 60 days of the district's receipt of the parent's consent to conduct assessments or notify the parent that no additional assessments are needed. (34 CFR §§ 300.304 - 300.306; Wis. Stat. § 115.78[3][a]).

If a district receives a referral for a special education evaluation for a student after an incident that prompted a disciplinary removal, the district must complete the evaluation in an expedited manner. If the student is determined to be a student with a disability, the school district must then provide educational services so as to enable the student to receive a free, appropriate public education, including continuing to participate in the general education curriculum, although in another setting, and to make progress toward meeting the goals set out in the student’s IEP for the remainder of the removal. (34 CFR § 300.534).

The student who is the subject of this complaint started high school at the beginning of the 2019-20 school year. On July 16, 2019, prior to school starting, the parent emailed the school nurse inquiring about available options to support the student with executive functioning challenges and difficulties related to the student’s medical diagnosis of Attention Deficit Hyperactive Disorder (ADHD). The parent reported the student’s grades had declined during the previous school year. Prior to replying to the parent, in an email on July 29, 2019, the school nurse followed up on the parent’s concerns with the health office at the middle school. The school health office had not been involved in the management of the student’s ADHD in the past, and the student’s parents had not raised any related concerns. The middle school health office staff noted the student had been to the health services office for physical altercations on several occasions at the end of the 2018-19 school year, and the student received informal support from the student services office.

On August 28, 2019, the school nurse replied to the parent’s inquiry and set up a meeting for September 6, 2019, with the parent, the school nurse, and the school psychologist. The student’s parent replied on September 2, 2019, restating concerns about the end of eighth grade and asked whether an “IEP was the only way to get assistance” for the student’s difficulties. The school nurse responded that there were options for assistance outside of an IEP and that she would refer the parent’s inquiry about an IEP to the district special education coordinator and school psychologist. On September 5, 2019, the special education coordinator emailed school staff and copied the parents indicating that the coordinator left a voicemail message for the parent, informing the parent that general education universal supports could be provided for the student prior to considering special education and recommended student services staff and advisors as additional resources.

At the meeting on September 6, 2019, the school nurse and school psychologist met with the parent and developed an Individual Health Plan (IHP) with general supports. The IHP was shared with all of the student’s teachers on September 9, 2020. Interviews during the investigation in this complaint confirmed that neither the school nurse, school psychologist, nor the parent could recall any request for an IEP being made at the September 6, 2019 meeting. The school nurse and school psychologist did not feel the information shared by the parent at the meeting indicated the need for a special education referral.

In October, the school psychologist followed up with the teachers and parents regarding the student’s transition into high school. The student was adjusting well to high school at that time, and teachers had no concerns regarding the student’s behavior or mental health during the fall 2019 semester. Some minor challenges were noted, such as a few missing assignments and difficulty initiating conversations, but staff felt the student’s challenges completing work were not unusual for a student that age and staff did not have reason to suspect the student might have a disability or needed special education.

On January 14, 2020, the student made threats of harm to students in school. The student was issued an out-of-school suspension beginning on January 15, 2020, and the district completed a risk assessment of the student on January 15-16, 2020. As a result of the risk assessment, on January 17, 2020, special education staff contacted the student’s parents to notify them the district was initiating a referral for a special education evaluation. On January 24, 2020, the district sent the parent a Notice of Expulsion Hearing, due to the behavioral incident on January 14, 2020, and similar behavioral incidents occurring both in school and outside of school on January 15, 2020, January 18, 2020, and January 23, 2020.

Between January 24, 2020, and January 29, 2020, the school psychologist documented discussions with the student’s parents regarding the evaluation and initiated the referral process on January 29, 2020. During these discussions, the parents reported that they believed differences in the student’s social and communication skills were related to the student's recent behavioral incident and that the student had experienced anxiety and depression since elementary school. The student had made statements regarding extreme violence and hate and had become involved in physical altercations. The parents had a private evaluation of the student conducted, and the student was admitted to a mental health facility in January. Despite the student being provided interventions since eighth grade, the parent described the student’s behaviors to be repetitive and perpetual, resulting in the behavioral incident in January. The parents were sent the notice of referral for a special education dated January 29, 2020.

Between January 30, 2020, and February 5, 2020, the parent and district diagnostician exchanged emails discussing and confirming the parent’s concerns as described in the referral, existing behavior and academic data, and results of the private evaluation provided by the parent to be considered in the upcoming evaluation. The student’s parents also inquired about testing for dyslexia and specific learning disability (SLD). The student’s private evaluation was quite comprehensive but did not look at dyslexia, and the parents expressed that they “may or may not be” interested in assessing the student in that area. The diagnostician informed the parents of the process for conducting an educational evaluation for SLD, but that dyslexia is a medical diagnosis that cannot be made by an IEP team. The diagnostician explained further that based on the existing data, in the diagnostician’s professional opinion, there was not a need to assess the student for SLD. The parent expressed understanding of the process and told the diagnostician the parents would follow up with the student’s physician regarding a medical diagnosis.

On February 5, 2020, the parent requested via email to include the speech language pathologist (SLP) and occupational therapist (OT) in the evaluation team, as had been recommended in the student’s private evaluation. Due to the pending expulsion, the district expedited the evaluation process, and an IEP meeting was scheduled for February 10, 2020. The invitation for the meeting indicated two purposes: to review existing data and conduct an initial evaluation for special education. District staff sent the student’s parents two separate invitations on February 5, 2020, and February 6, 2020. The second invitation included the addition of the OT and SLP at the parent's request.

The student’s expulsion hearing was held on February 7, 2020. The district’s order dated February 18, 2020, documented the order to expel the student for the remainder of high school for violation of the student code and conduct on January 14, 2020, January 15, 2020, January 18, 2020, and January 23, 2020. The district offered the student continuation of online coursework to earn credits towards graduation in an alternate placement.

The student’s IEP team met on February 10, 2020. The team reviewed the existing data to determine the need for additional testing. Parent concerns, medical information, interventions and effects, current grades and assessments, previous evaluations, behavior history, and teacher information were discussed and documented in the evaluation report. The parent shared that the student was seeing a psychologist monthly, under psychiatrist supervision with yearly follow up, was taking medication, and had been hospitalized to address mental health needs from January 18, 2020, to January 27, 2020. The parent provided a doctor’s letter documenting the student’s ongoing mental health diagnoses and treatments. The student’s private evaluation included the parent’s reports of physical aggression towards family members and threats of physical harm to others at school. The student had been diagnosed with ADHD and other medical conditions related to anxiety and social functioning. The student’s behavior history included 13 incident referrals for the 2018-19 school year, including fighting, threats, bullying, disrespect, and defiance. The incident occurring on January 14, 2020, was the only incident referral for the current school year.

The team also reviewed the student’s current grades and the results of recent state assessments. The student’s current teachers reported the student was quiet and respectful and had limited interactions with peers. The student showed no obvious inappropriate behaviors in class. The student was reported to receive extra time, frequent check-ins, and preferential seating according to accommodations in the student’s IHP. The IEP team concluded that the existing information, including information from the private evaluation, was sufficient to make an eligibility determination and that no further assessments were needed. The student’s parent, who was assisted in the meeting by a private attorney, agreed with the team’s decision of needing no additional assessments. During the course of the complaint investigation, district staff told the department’s investigator that had there been a need for additional assessment, the IEP team would have stopped the meeting and completed the assessments. The team would have reconvened at a later date to complete the evaluation portion of the meeting.

The IEP team next considered the student’s eligibility for special education. The IEP team considered the eligibility categories of emotional behavior disorder (EBD) and other health impairment (OHI). After a lengthy discussion, IEP team members agreed that the student’s behaviors were severe and chronic as required for eligibility under EBD, but could not come to a consensus that the student’s behaviors were frequent. Some IEP team members argued the majority of the student’s behavior referrals occurred during the prior school year, and the student’s behaviors had been on a positive trajectory prior to the incident on January 14, 2020. Additionally, although the parent reported the student’s mental health issues were observed at home, district staff had not observed them at school during the fall 2019 semester. The team determined the student was not eligible under the impairment area of EBD. The team then went on to consider the student’s eligibility under OHI. The student had medical documentation supporting the existence of a health problem, but the majority of IEP members did not believe they caused the student to exhibit limited vitality, alertness, or strength. The school psychologist and parents disagreed. The director of special education, who was serving as the LEA representative, made the decision that the student did not meet the OHI criteria based on the opinion of the rest of the IEP team members. The team recommended continuation of the accommodations in the student’s IHP and scheduled a meeting for consideration of a Section 504 health accommodation plan.

The school board approved the student’s expulsion on February 24, 2020, and the student was placed in an alternate school setting to continue receiving instruction online. The student’s parents pursued an evaluation under Section 504. The student qualified under Section 504 on February 13, 2020, and district staff developed a Section 504 plan for the student. District staff offered the parents to conduct another district special education evaluation. However, the parents reported that they did not want to pursue an evaluation at this time and were waiting on an additional private evaluation for autism before they would consider requesting an evaluation again.

The IEP team properly responded to the parent’s concerns expressed at the beginning of the fall 2019 semester and did not violate its child find obligation by not initiating the IEP process until after the January 14, 2020, behavioral incident. The IEP team completed the review of existing data and special education evaluation within the required timelines. Once the IEP team considered the existing data, they came to a decision that no additional assessments were needed. The student’s parent expressed agreement with this decision at the meeting. The IEP team properly completed the review of existing data in preparation for the eligibility determination.

The IEP team deliberated extensively about the student’s eligibility under both EBD and OHI. However, when discussing the frequency of the student’s behaviors, the IEP team failed to consider behavioral incidents that occurred after the incident on January 14, 2020. Specifically, the team failed to consider behavioral incidents documented in the student’s expulsion records prior to the special education evaluation on February 10, 2020. Within 30 days, the district must conduct an IEP team meeting to discuss all relevant academic and behavioral information for the student and reconsider the student’s special education eligibility. If the student is found eligible, the IEP team must develop an IEP to ensure the student receives a free, appropriate public education, including continuing to participate in the general education curriculum, although in another setting, and to make progress toward meeting the goals set out in the student’s IEP. The IEP team must also determine whether compensatory services are required as a result of the delay. The district must send a copy of the new evaluation report, and if appropriate, the IEP, including documentation of the compensatory services discussion within ten days of the meeting.

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 http://dpi.wi.gov/sped/dispute-resolution for more information.

Sincerely,

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

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