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IDEA Complaint Decision 20-060

On October 26, 2020 (form dated October 23, 2020), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against XXXXX (district). This is the department’s decision regarding that complaint. The issue identified is whether the district, beginning October 26, 2019, properly conducted a special education evaluation.

Wisconsin’s eligibility criteria for initial specific learning disability (SLD) evaluations require individualized education program (IEP) teams to review student progress data based upon the student’s response to two scientific research-based interventions (SRBIs) for each area of concern. In some instances, SRBIs have been completed prior to the referral and required progress data is available during the review of existing data. In other instances, all or some of the SRBIs are implemented and required progress data are collected after the referral. SRBIs must be implemented with adequate fidelity, meaning they must be provided in a manner highly consistent with their design and for at least 80 percent of the recommended number of weeks, sessions, and minutes per session. The duration of the intervention must be long enough for collection of sufficient progress monitoring data for the IEP team to make reliable decisions about eligibility.

Following the district’s receipt of written parental consent to administer assessments, the IEP team must determine the student’s eligibility for special education within 60 days. However, when conducting an initial evaluation for SLD, districts are allowed to request a timeline extension to allow for the collection of necessary data when the IEP team does not have sufficient weekly progress monitoring data from two SRBIs within the 60-day timeline. The decision to extend the timeline for this reason must be made by written agreement of the IEP team, including the parent. The agreement should include the date when the evaluation will be completed. Timeline extensions may not be used to unnecessarily delay special education evaluations. The school district is responsible for ensuring SRBIs are properly implemented and progress-monitoring data used by IEP teams are collected in a manner consistent with state SLD evaluation criteria. Any concerns about the implementation of SRBIs or the collection of required progress data should be addressed well before an IEP team evaluation meeting is held to determine eligibility. (34 CFR §§ 300.301, 300.304, 300.306, 300.307-300.311; Wis. Admin. Code PI § 11.36[6]).

In October 2019, the district was in the process of completing an initial SLD evaluation of the student. As part of the evaluation, the team needed to obtain data from two SRBIs in math computation and information from additional formal academic assessments. Prior to the initial 60-day timeline expiring, the student’s parent agreed to extend the evaluation timeline to December 20, 2019, to allow adequate time for the two SRBIs to be completed with fidelity. In October 2019, the student’s advocate contacted the district for an update on the administration of the student’s SRBIs. Although the special education director responded immediately to the email, the district staff person responsible for overseeing the student’s SRBI schedule did not respond to the advocate for weeks. This district staff member stated that the student was receiving SRBIs twice a week but was not able to give an exact date as to when the student started the SRBIs. In fact, district staff did not begin delivering the first SRBI until December 2, 2019.

On November 25, 2019, the district requested a second extension to the evaluation timeline until June 30, 2020. The parent agreed, in writing, to this second extension. The student completed the first of the two required SRBIs on February 2, 2020, and began the second SRBI on February 12, 2020. The district completed four data points of the second SRBI prior to the statewide order closing schools for all in-person pupil instruction activities effective March 18, 2020, until June 30, 2020. No SRBIs were administered from March 2020 to June 2020. On May 28, 2020, the district requested a third extension to the evaluation timeline until December 18, 2020. There is no documentation indicating parental agreement was sought. In September 2020, the student transferred to another school within the same district. On October 7, 2020, the district began providing the student’s second SRBI in math computation. District staff delivered the SRBI virtually as the district was not providing in-person instruction due to the COVID-19 pandemic. The student’s participation in these weekly virtual interventions was inconsistent.

The district must ensure collection of sufficient current intervention data in order to properly determine the student’s eligibility under the area of SLD. Timeline extensions may not be used to unnecessarily delay special education evaluations. In this case, the lengthy extensions and delayed SRBIs have obstructed this student’s special education evaluation. The district did not properly conduct an evaluation to determine the student’s eligibility under the impairment area of SLD. The district must take all necessary steps to expedite the completion of SRBIs for this student and conduct the eligibility determination, which must include steps to address the student’s failure to participate. This may include determining that in-person interventions are necessary.

Within 10 days of this decision, the district must inform the department of its plan for completing the evaluation and the dates it expects to complete the SRBIs. Within 10 days of the eligibility determination, the district must submit a copy of the evaluation report to the department. If the student is determined to be eligible for special education, the IEP team must, as part of development of the student’s initial IEP, determine the amount, type, and schedule for compensatory services to be provided to the student to address the significant delay in completing the evaluation. Within 10 days of the IEP team meeting, the district must submit a copy of the IEP, including determination of compensatory services, to the department.

The department understands the proper completion of special education evaluations is a shared responsibility of special education and regular education staff. This is particularly true for initial SLD evaluations, for which SRBIs are usually provided by regular education school-based staff. This shared responsibility is of utmost importance, and the department expects districts to have procedures in place to ensure evaluations occur in a timely manner so as not to delay a student’s access to a free, appropriate public education (FAPE). In this instance, the district failed to establish clear communication and expectations among district special education and regular education administrative staff, district departments, and school-based special education and regular education staff.

Within 30 days of the date of this decision, the district must submit to the department a corrective action plan to ensure initial SLD evaluations are properly conducted, including properly and timely implementing SRBIs and collecting progress-monitoring data. This corrective action plan must include procedures to ensure regular education school-based staff begin delivering needed interventions on a prompt, timely basis so as not to unreasonably delay evaluations.

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

Sincerely,

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

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