On June 22, 2020, the Department of Public Instruction (department) received complaints under state and federal special education law from XXXXX (complainant) against the XXXXX (district). This is the department’s decision regarding the complaint. The issues identified are whether the district, beginning June 22, 2019:
- Properly fulfilled its responsibility to identify, locate, and evaluate a student with a disability;
- Properly conducted a special education evaluation;
- Properly followed special education disciplinary procedures; and
- Properly responded to a parent’s request for pupil records prior to an individualized education plan (IEP) team meeting to determine eligibility for special education.
Whether the district properly fulfilled its responsibility to identify, locate, and evaluate a student with a disability and properly conducted a special education evaluation.
A local educational agency must identify, locate, and evaluate all children with disabilities who are in need of special education and related services. (Wis. Stat. § 115.77[1m]). All referrals must be in writing and must include why the person believes that the student is a student with a disability. (Wis. Stat. § 115.777[a]). Upon the completion of the administration of assessments and other evaluation measures, the individualized education program team must determine whether the child is a child with a disability and the educational needs of the child. (Wis. Stat. § 115.782[a]).
On June 12, 2019, due to a violation of the code of student conduct, the student who is the subject of this complaint was expelled from school until 2026 or when the student reaches age 21. The district provided the student with an opportunity for early reinstatement to school if certain conditions were met. The student subsequently fulfilled the conditions for reinstatement and began attending school again at the beginning of the 2019-20 school year. On October 14, 2019, the student violated one of the conditions of reinstatement, and the expulsion was reinstated.
The student’s parent referred the student for a special education evaluation on October 21, 2019. On October 29, 2019, the district received consent from the parent to conduct additional testing as part of the evaluation. The IEP team met on December 16, 2019, in order to determine the student’s eligibility for special education. During the IEP team meeting, the parent expressed concerns about the student’s impulsivity, drug use, running away, oppositional behavior, flat affect, and lack of understanding of cause and effect. The IEP team conducted a review of previous interventions and noted that past records indicated the student had difficulty with impulsivity and focusing attention and was referred to the district student intervention team, and that general education supports put in place at that time effectively addressed the student’s needs. The IEP team noted the student experienced a marked decline in course grades after the first quarter of the 2018‑19 school year, which the IEP team attributed to the student starting to use drugs. The IEP team considered medical information that documented the student’s diagnosis of attention deficit-hyperactivity disorder (ADHD) in the summer of 2019, and hospitalization in July for a major depressive disorder (single episode) and unspecified trauma and stressor-related disorder. Additional testing was conducted for the purpose of the special education evaluation. The student scored at the average to the above average level in all academic areas tested. Two behavior rating assessments of the student were completed by teachers and the parent. The assessments indicated clinically significant social-emotional and behavioral concerns, including hyperactivity, aggression, conduct and attention problems, depression, atypicality, behavioral and emotional dysregulation, and self-monitoring concerns.
The IEP team found the student did not meet the criteria under the area of emotional behavioral disability. Although the student exhibited behavior that so departs from accepted norms that it adversely affects the student’s in-classroom adjustment, the behaviors were not chronic. The IEP team found the student met the criteria for other health impairment because of limited vitality and alertness due to a chronic health problem (ADHD), which adversely affects the student’s educational performance. The IEP team identified a number of accommodations the student required, including breaking down assignments into smaller tasks, additional time for assignments and tests, modifying the length of an assignment, check-ins with a staff person for organizational tasks, restating directions, allowing choices for how to demonstrate understanding, movement breaks, and providing class notes to the student. The IEP team determined these accommodations and modifications could be provided by regular education staff, and the student did not demonstrate a need for specially designed instruction. In making the decision about the need for special education, the IEP team also considered information shared by the parent and student during the meeting that the student was interacting with others more positively since hospitalization, receiving treatment, and experiencing a change in medication. The IEP team subsequently found the student eligible under 504 of the Rehabilitation Act. The district properly conducted a special education evaluation of the student.
No referrals were made in writing prior to October 21, 2019. District staff did not refer the student for special education prior to that time because they felt that supports in regular education were addressing the student’s needs and that the student academically performed comparably to nondisabled peers when motivated and engaged in learning. Once a referral was received, the student was evaluated within the required timeline. The district properly fulfilled its responsibility to identify, locate, and evaluate a student for special education and related services.
Whether the district properly followed special education disciplinary procedures.
A student who has not been determined to be eligible for special education and related services who has engaged in behavior that violated a code of student conduct may assert any of the protections provided under IDEA if the public agency had knowledge that the student was a student with a disability before the behavior that precipitated the disciplinary action occurred. (34 CFR § 300.534[a]). The school is deemed to have knowledge that a student is a student with a disability if before the behavior occurred, the parent expressed concern in writing to supervisory or administrative personnel or a teacher of the student, that the student is in need of special education and related services; the parent of the student requested a special education evaluation; or a teacher of the student, or another staff member, expressed specific concerns about a pattern of behavior demonstrated by the student directly to the special education director or other supervisory personnel. (34 CFR § 300.534[b]). None of these actions occurred prior to the behavior that precipitated the disciplinary action, so the special education disciplinary procedures were not applicable.
Whether the district properly responded to a parent’s request for pupil records prior to an individualized education plan (IEP) team meeting to determine eligibility for special education.
School districts must permit parents to inspect and review any education records that are collected, maintained, or used by the district. A district must comply with a request without unnecessary delay and before any meeting regarding an IEP. In no case may the district response be more than 45 days after the request has been made. (34 CFR § 300.613). If any education record includes information on more than one student, the parents of those students have the right to inspect and review only the information relating to their student or to be informed of that specific information. (34 CFR § 300.615).
On October 30, 2019, the parent called the district and requested a copy of records related to the student. All of the student’s records were made available to the parent approximately two weeks from the date of the request, and prior to the December 2019 IEP team meeting. During the complaint investigation, the district shared a copy of the materials provided to the parent with the complaint investigator; the materials included report cards, attendance records, behavioral detail reports (including from grades 4, 7, 8, and 9), Wisconsin Forward Exam results, and expulsion documentation. During the IEP team meeting on December 16, 2019, the parent requested additional records, including personal notes related to the student, a copy of the video of the incident that resulted in expulsion, expulsion meeting minutes, expulsion letters, names of other students involved in the incident and the number of students expelled for drug use. The district provided all information requested to the extent available and permitted by law. On January 24, 2020, the parent emailed the district and indicated additional records should have been provided as part of the initial request. These included behavioral records prior to 8th grade, progress reports, certain statewide test scores, any shared personal notes regarding the student, and evidentiary notes and minutes related to the student’s expulsion hearings. However, evidence provided by the district demonstrates the district provided all information requested to the extent available and as permitted by law. The district properly responded to the parent’s request for pupil records prior to the IEP team meeting to determine eligibility for special education.
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.
//digitally signed by BVH 8/20/20
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support