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IDEA Complaint Decision 20-062

On October 29, 2020 (form dated October 25, 2020), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against the XXXXX (district). This is the department’s decision regarding that complaint. The issue is whether the district, beginning January 10, 2020, 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 in need of special education 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]). There are limited exceptions to the 60-day timeline. If a district is under a state or local health order related to the COVID-19 pandemic and cannot conduct the evaluation in-person, the district must review the student’s individual circumstances. During the COVID-19 pandemic, a district may determine in limited situations that it is impossible to conduct the evaluation virtually or through alternative means and extend the evaluation timeline because the student is unavailable for assessment. In this case, the district must communicate the situation to the parent, document the circumstances in the student’s file, and conduct the evaluation as quickly as possible once the student is available in-person. (Wisconsin Department of Public Instruction, COVID-19 Special Education Question and Answer Document [revised 11/19/2020]).

In December 2019, the student who is the subject of the complaint moved into a foster home located within the school district. The student’s county caseworker met with the district’s director of pupil services and informed the director of the intention to enroll the student and request a special education evaluation. On January 10, 2020, the district received a referral for a special education evaluation for the student from the county caseworker. On January 13, 2020, the student's foster parent enrolled the student in the district. On January 29, 2020, a county protective services staff member signed the consent form for additional testing as part of the evaluation. The 60-day timeline to complete the evaluation was March 29, 2020. On February 26, 2020, the school psychologist completed a classroom observation of the student. Beginning on February 27, 2020, team members began conducting evaluation activities.

On March 13, 2020, because of the COVID-19 pandemic, the Governor ordered schools to close beginning March 18, 2020. The initial IEP team to determine the student’s eligibility was scheduled for March 26, 2020. On March 25, 2020 and March 26, 2020, the school psychologist consulted with IEP team members, as not all assessments had been completed due to the school closure. District staff determined that because of the school closure, the date of the eligibility determination would need to be extended in order to ensure a full, complete, thorough and individual evaluation. On March 26, 2020, district staff emailed the student’s county case manager, foster care worker, and foster parent informing them of the decision to extend the evaluation through the end of September due to "assessments not yet completed, conflicting information from rating scales and an inability to complete additional observations.”

The statewide school closure order expired on June 30, 2020. After that, date districts were able to conduct in-person evaluation activities provided they complied with local health and safety measures. On September 30, 2020, the student’s IEP team met and determined that the student meets eligibility criteria and requires special education. On October 15, 2020, the IEP team met to develop the student’s initial IEP, with the implementation date of October 23, 2020. On October 21, 2020, the District received the signed consent for initial placement from the student’s surrogate parent. On December 1, 2020, the student moved from the District and is now attending school in another district.

The district did not properly conduct the student’s special education evaluation. The original 60-day timeline expired on March 29, 2020. While the mandatory school closures precluded the district from conducting in-person assessments and observations, the team should have known there was a need for additional information prior to the scheduled meeting date. Under typical circumstances, the 60-day timeline cannot be extended except in circumstances that are not applicable in this situation. In addition, given that school staff were able to conduct in-person evaluation activities with students as of June 30, 2020, it was not reasonable to delay the eligibility determination meeting until September 30, 2020. Furthermore, the district did not schedule the meeting to develop the student’s IEP for an additional two weeks. These delays resulted in missed services for the student. No student-specific correction is possible since the student no longer resides in the district. Within 30 days of this decision, the district is directed to submit to the department a corrective plan ensuring that staff understand timelines related to evaluations and when extensions are appropriate.

School districts are responsible for determining who may serve as the student’s parent for the purpose of special education decision-making. In the case of a student who resides in foster care, unless otherwise notified, the district should presume the student’s biological or adoptive parent remains the parent for purposes of education decision-making. Generally, a foster parent cannot act as the student's parent for the purpose of special education. A district may determine a foster parent has the rights and responsibilities of a parent under special education law only if the district first determines the legal right of the student’s parent to make educational decisions concerning the student has been extinguished by termination of parental rights, transfer of guardianship or legal custody, or by other court order. School districts should appoint a surrogate parent for a student with a disability whenever the student’s parents are not known, the district cannot locate the student’s parents after reasonable efforts, and/or the student is a ward of the state. An employee of any agency that is involved in the care of a student cannot serve as the student’s surrogate parent. (Wis. Stat. §§ 115.76[12][a] and 115.792[1][a]).

On April 6, 2020, the caseworker emailed the school psychologist asking about the status of the evaluation. The caseworker included her supervisor in that email. The supervisor then responded and included the complainant and a colleague, indicating that they were “educational advocates that [the county] works with.” On April 15, 2020, the complainant’s colleague emailed the director asking for an update regarding the status of the evaluation. The complainant’s colleague informed the director the student’s current foster home would not be a long-term placement. The complainant’s colleague also told the director the student was a ward of the state and that “we are requesting that the [district] appoint me as the surrogate parent for education purposes.”

The director then sought guidance from the district’s legal counsel as to whether it would be appropriate to name the complainant’s colleague as a surrogate due to the colleague’s working relationship with the county. On April 16, 2020, the director emailed the complainant’s colleague and indicated that to date the district had not received any court orders regarding the student, and that the district would need to see those documents prior to assigning a surrogate parent. The director also sought clarification as to whether the complainant’s colleague was an employee of the county or state, and therefore ineligible for consideration as the student’s surrogate parent. The complainant’s colleague responded that same day, indicating she was not an employee of the county or the state but was a consultant to both agencies, which allowed her to act as a surrogate. On April 20, 2020, the district received a copy of the court order terminating the parental rights of the student’s biological parents. On April 22, 2020, the district appointed the complainant’s colleague as the student’s educational surrogate parent.

The district did not properly determine who was authorized to make special education decisions for the student. When district staff learned the student was involved with the county and residing in a foster home, they should have taken steps to immediately ascertain whether a surrogate parent needed to be appointed. Instead, the district continued communicating about the evaluation with the foster parent, and accepted consent from a county child protective services worker for testing. The district did not take action until April 2020, when the representatives of the county inquired about the evaluation. Within 30 days of this decision, the district is directed to submit to the department a corrective action plan ensuring staff understand their responsibility to determine who is authorized to act as the parent of a student with a disability, and under which circumstances the district must appoint a surrogate parent.

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