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IDEA Complaint Decision 21-013

On April 29, 2021, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainants) against the ##### School District (district). This is the department’s decision regarding that complaint. The issues identified are whether the district, during the 2020-21 school year:

  • Properly conducted a special education evaluation of a parentally-placed private school student;
  • Improperly predetermined the outcome of a special education evaluation;
  • Properly ensured that the student’s parents were notified and afforded an opportunity to meaningfully participate on the Individualized Education Program (IEP) team; and
  • Properly engaged in meaningful consultation with private school representatives and representatives of parents of parentally-placed private school students with disabilities regarding the equitable participation of those students in special education and related services.

Whether the district properly conducted a special education evaluation of a parentally-placed private school student; improperly predetermined the outcome of a special education evaluation; and properly ensured that the student’s parents were properly notified and afforded an opportunity to meaningfully participate on the IEP team.

A parent may submit a special education referral to the school district, and the district must accept and process all referrals submitted to the district, including for students who are parentally placed in private schools within the geographical boundaries of the school district. 34 CFR § 300.131. The purpose of an evaluation is to determine whether the student qualifies as a child with a disability in need of specially designed instruction and the nature and extent of the student's educational needs. The referral must be in writing and include the child's name and the reasons why the parent believes the child is a child with a disability. Upon receipt of a referral, the district must appoint an IEP team, and the IEP team must conduct a review of existing data to determine what additional data, if any, are needed to complete the evaluation. 34 CFR §§ 300.503(a)(1), 300.305(a); Wis. Stat. §§ 115.792(2), 115.782(2)(b). An IEP team meeting must be conducted to determine eligibility within 60 days after receiving parental consent for evaluation or notifying the parent that no additional assessments are needed. 34 CFR § 300.301(c); Wis. Stat. § 115.78(3)(a). The IEP team must include a representative of the local education agency (LEA) with the authority to commit the available resources of the LEA and an individual who can interpret the instructional implications of evaluation results. IEP team participants may fulfill multiple required roles provided they are qualified to do so. Wis. Stat. § 115.78(1m)(d)(e).

A school district may not predetermine matters that are the responsibility of the student’s IEP team. However, a school district may develop proposals for the IEP team to consider as long as the proposal is used solely for discussion purposes and is not represented as a final decision. 34 CFR § 300.501.

School districts must take steps to ensure that the parent of a student with a disability is present at each IEP team meeting or is afforded the opportunity to participate, including notifying the parent of the meetings early enough to ensure that there will be an opportunity to attend, and scheduling the meeting at a mutually agreed time and place. Prior to an IEP team meeting, a district must provide notice to the parent of the purpose, time, and location of the IEP team meeting, including a list of who will be in attendance at the IEP team meeting. 34 CFR § 300.322.

On February 2, 2021, the parent of the student who is the subject of this complaint contacted the school district to inquire about submitting a special education referral. The parent was informed that a specific district staff member would contact the parent about submitting a special education referral. On February 3, 2021, the parent contacted the specified school staff member by email and provided all required information to process the referral. In the email, the parent described concerns for the student in reading, math, and expressive language. In response, the district staff person provided the district’s special education referral form to the parent. On the same day, the parent filled out the district special education form and submitted it to the district. The district should not have required the parent to provide the same information using the district’s special education referral form. Because the parent provided the first email with referral information and submitted the district’s form the same day, no student-specific corrective action is required as a result of this error.

On February 5, 2021, district staff sent the student’s parents a Notice of Receipt of Referral and Start of Initial Evaluation. The student’s newly convened IEP team, including all required district staff members and the student’s parents, reviewed existing evaluation data about the student on February 5, 10, and 11. IEP team members considered information regarding the student’s historical, educational background, current academic and functional achievement, progress reports from the student’s private school, the results of an outside psycho-educational evaluation, and other information provided by the student’s parents. The team also discussed the need for additional assessments. The outside evaluation report suggested an additional math assessment called KeyMath be administered as part of the special education evaluation. Although the district IEP members felt the team had sufficient information about the student’s math achievement from the outside evaluation and achievement scores provided by the student’s private school to conduct an evaluation, they agreed to administer the KeyMath per the recommendation of the outside evaluation.

On February 11, 2021, within 15 business days of receiving the referral, the district sent the parent notice and request for consent to evaluate the student and conduct additional assessments. This included a description of the areas to be evaluated and the types of assessments that would be used. On February 12, 2021, the district received the parent’s consent to conduct additional assessments. District staff administered the KeyMath assessment over two testing sessions on March 10th and March 15th. Members of the IEP team conducted observations at the private school as part of the evaluation during the student’s math and English Language Arts (ELA) classes.

On March 3, 2021, a district staff member sent an email to the IEP team members to propose a time to conduct the evaluation meeting. On the same day, the parent and the student’s private school teacher responded in agreement with the date and time proposed by the district. The private school teacher inquired about the length of the meeting. District staff responded the meeting would take between 45-60 minutes. On March 3, 2021, district staff sent the parent a Google document called “Positive Student Profile” to collect additional input from parents as a part of the special education process, including an invitation to the IEP team meeting listing all IEP team participants. On March 3, 2021, the district added the private school principal to the IEP team, and an updated Google meeting invitation listing the IEP team members was sent to all team members, including the parents. On March 22, 2021, district staff again sent the Google meeting invitation to the IEP team members and included a draft special education evaluation report. On March 23, 2021, a district staff member emailed the parent to inform her the Director of Special Education would also attend the evaluation meeting. The parent, through the google document and the March 23rd email, was properly notified that both the special education director and the private school principal would attend the IEP team meeting. The documentation provided by the district and parents list the director as the LEA representative for the IEP team meeting; however, this was an error resulting from a technical problem with the district’s electronic IEP forms. The district staff member originally identified on the meeting invite as the LEA representative served in that role during the meeting. Although this technical error occurred, the parent was notified, as required under special education law, of the people who would attend the meeting.

In the complaint, the student’s parent noted that in a draft special education evaluation report provided to all members of the IEP team prior to the meeting, the box on the eligibility checklist for “Specific Learning Disability (SLD)” was checked as “no” for insufficient progress. The parent was concerned that the district predetermined the student’s special education eligibility outside of the IEP team meeting. The district acknowledges that contrary to district policy and practice, a staff member inadvertently checked the box on the SLD criteria form. A conversation took place prior to the IEP team meeting between the parent and a district staff person in which the staff member provided information on the standard scores used to make eligibility determinations. The staff person also explained the IEP team would review the student’s scores during the evaluation meeting. The district did not improperly predetermine the outcome of the student’s special education evaluation.

On March 23, 2021, within the 60-day time limit, the IEP team met virtually to determine the student’s eligibility for special education. The parent attended the IEP team meeting, which began at 7:43 a.m. and ended at 8:44 a.m. The IEP team conducted a review of existing information about the student, including academic results on classroom-based and district-wide assessments in the areas of reading and math, current teacher observations provided by the student’s private school, and information from the outside evaluation. The IEP team also reviewed information from new assessments, including the KeyMath assessment and speech and language evaluation. Throughout the IEP team meeting, the parent provided information, which was considered and documented in the report. For example, the parent provided information on the student’s at-home participation in reading intervention. The parent also informed the team of a specific multiplication chart the family created from a math application used at home to support multiplication facts through stories.

The IEP team used the SLD significant discrepancy checklist to determine whether the student met the criteria as a student with an SLD. In order to meet the criteria for SLD, the student must demonstrate both insufficient progress and inadequate classroom achievement. Department guidance in effect at the time of the evaluation allowed IEP teams to use the significant discrepancy method to determine whether a parentally-placed private school student demonstrated insufficient progress. The department provided this guidance to facilitate the evaluation of parentally-placed private school students, as school districts can neither compel private schools to complete intensive scientific research-based or evidence-based interventions nor collect data necessary to analyze the student’s response to the interventions. However, effective December 1, 2013, IEP teams were no longer permitted to use significant discrepancy as an SLD eligibility criterion. Instead, they must use progress monitoring data collected during intensive scientific research-based or evidence-based interventions as part of a comprehensive special education evaluation to make SLD eligibility decisions. Since receiving this complaint, this significant discrepancy guidance has been removed from the department’s website.

Insufficient Progress

Per the department’s guidance at the time of the district’s evaluation, the student would have needed to achieve a 79 or below on a measure of one or more of the eight areas of SLD to demonstrate insufficient progress in comparison to the student’s obtained cognitive ability score. During the evaluation meeting, the IEP team reviewed the student’s achievement results from the outside evaluation in the areas of basic reading, reading comprehension, reading fluency, and math calculation. The team also reviewed the scores of the KeyMath assessment completed by the district that measures essential mathematical concepts and skills. The total test combines three content areas that include basic concepts, operations, and applications. When an IEP team determines a significant discrepancy between cognitive ability and academic achievement, scoring should use age-based norms, except in rare circumstances where there is a compelling reason to use grade-based norms because the comparison scores on the cognitive ability assessment use age-based norms. However, in this case, the team used grade-based norms for the KeyMath results and did not explain why. The team determined the student’s math and reading scores did not demonstrate insufficient progress.

Inadequate Achievement

Additionally, according to department guidance in effect at the time of the district’s evaluation, the student would have needed to obtain a standard score of 81.25 or below on assessments to demonstrate inadequate classroom achievement. Although the outside evaluation lists the student’s standard score at 80 in the area of math calculation, there are no other scores near or below 81.25. As noted in the special education evaluation report, “a student with inadequate classroom achievement would likely have multiple measures below that score of 81.25 and consistently score below on other measures (classroom-based or other formal assessments such as MAP)”. The student did not receive a score below 81.25 in either of the areas of potential SLD assessed by the KeyMath. The IEP team reviewed the outside evaluation scores and KeyMath assessment scores compared to the student’s MAP scores, classroom-based standard assessments, progress reports, district observation, and teacher input, and determined the student’s math and reading achievement do not demonstrate inadequate classroom achievement. As required by the SLD evaluation rule, the IEP team considered multiple data sources, including data from systematic observation and formal and informal evaluation data. The team noted that although the student participates in an outside reading comprehension intervention at home, no data from the intervention were available for the team’s review. The student’s private school teacher confirmed the student does not participate in any school-based interventions. The IEP team determined the student did not demonstrate inadequate classroom achievement.

The student’s parents raised concerns about the administration of the KeyMath assessment, including that district staff allowed the student unlimited time to complete the test and erroneously started testing the student at the incorrect item number according to the test instructions. The KeyMath assessment is not designed to be time-limited. However, the KeyMath uses an initial Numeration subtest to establish a starting point for the remaining subtests based on the ceiling item of the Numeration subtest. The test administrator calculated the ceiling item incorrectly and therefore began the remaining subtests at the incorrect starting item. Ultimately this resulted in additional test items being administered. It was also noted that one subtest administered failed to establish a baseline according to the standardized administration directions.

Although the parent’s referral included concerns about reading, math, and expressive language, in several instances, the district did not consistently communicate which of the areas of SLD concern were being assessed for the student during this evaluation. The draft evaluation report provided to the IEP team prior to the meeting listed only “math calculation skills” as an area of concern in the summary of eligibility criteria consideration. During the meeting, the IEP team discussed formal and informal data in both math and reading and used the data to look for consistency and inconsistencies among the variety of data sources for both areas. However, after their review of achievement data, the team did not conduct an analysis of the data to apply SLD eligibility criteria regarding all areas of concern the parent raised. Due to the meeting being held virtually, the IEP team members signed the SLD eligibility criteria form including only “math calculation skills” as an area of concern after the meeting.

On March 25, 2021, the parent provided additional written input, including concerns about the IEP team meeting. On March 26, 2021, the district responded to the parent and offered to reconvene the IEP team to address the parent’s concerns. On March 31, 2021, the parent acknowledged the district’s offer and informed the district they were considering their options and would let the district know whether they wished to reconvene. On April 5, 2021, a district staff member contacted the IEP team, proposing several dates to reconvene the IEP team. In addition, a district staff person sent a revised draft version of the evaluation report to all IEP team members, including the parent, incorporating the additional information the parent provided staff in their communication on March 25, 2021. Notably, this draft document includes some additional information about math in the section discussing insufficient progress but includes additional information about both math and reading in the section discussing inadequate classroom achievement. “Math calculations skills” is the only area of concern for which the team documented its eligibility determination.

On April 7, 2021, the district director of special education emailed the parent, indicating the IEP team would not reconvene since it could not do so within the 60-day evaluation timeline. The director further indicated a final version of the evaluation report would be sent to the parent. On April 8, 2021, the parent responded to the email indicating their desire to reconvene the meeting. The district responded on April 9, 2021, that the team would not be able to reconvene. District staff drafted a final evaluation report including numerous revisions in response to the parents’ concerns, including additional information about reading under insufficient progress and classroom achievement. Prior to sending out the final paperwork, the district collected another set of signatures from each IEP team member agreeing the student did not meet eligibility under SLD. However, this time the signature page listed math calculation, math problem solving, basic reading skills, reading fluency skills, and reading comprehension as areas of concern discussed by the IEP team. On the form, the district staff members and private school staff indicated they agreed with the determination the student did not have a disability under SLD and signed the SLD eligibility checklist and provided their signatures. On April 10, 2021, the district mailed the final copies of the student’s evaluation report to the parent. The parents declined to sign the paperwork and indicated they disagreed with the eligibility determination. The student’s parents raised a concern about the signature page given the multiple versions of the evaluation report. The district acknowledges they re-collected the signatures of other IEP team members as part of composing the final evaluation report without re-convening the IEP team meeting.

Based on the above, the student’s parents were afforded and took advantage of multiple opportunities to provide input to the special education evaluation, including a written parent profile prior to the meeting, input during the meeting, and multiple communications stating concerns following the meeting. The information provided by the student’s parents is included in the final version of the evaluation paperwork. The district properly provided the parent of a student with a disability meaningful opportunity to participate in an IEP team meeting.

However, the district did not properly conduct the special education evaluation of this parentally placed private school student. Although the IEP team discussed reading throughout the evaluation meeting, the IEP team did not consider reading as an area of concern when applying the SLD eligibility criteria. The information added to the revised special education evaluation under insufficient progress specific to reading was not discussed during the meeting. The KeyMath assessment was also not properly administered. Further, the draft versions of the evaluation report, including the final version, inconsistently identified which areas of SLD concern were considered. The final special education evaluation report indicates reading as an identified area of need, but the IEP team did not discuss the information included in the report at the meeting. The IEP team did not conduct a thorough analysis of the student’s identified areas of need under SLD.

Whether the district properly engaged in meaningful consultation with private school representatives and representatives of parents of parentally placed private school students with disabilities regarding the equitable participation of those students in special education and related services.

Students with disabilities who are parentally placed in graded private school programs do not have an individual right to receive some or all of the special education and related services they would receive if enrolled in a public school. School districts must provide for parentally placed private school students with disabilities to equitably participate in special education and related services as a group. The law does not require private school or public school staff to inform parents prior to a special education evaluation of the equitable services that might be available to the student if found eligible for special education. School districts must consult with representatives of parents of parentally placed private school children with disabilities on key issues that affect the ability of eligible private school children with disabilities to participate in special education services. A school district is not required to consult with all parents of parentally placed private school students with disabilities, only with representatives, about its plan to provide equitable services. The school district makes the final decisions about the equitable services it will make available. 34 CFR § 300.134.

Department staff conducted interviews with district and private school staff. These interviews demonstrate that prior to the 2020-21 school year, the district and the private school collaborated on an agreement about the provision of the services and the types of services the school district would provide to parentally placed private school students with disabilities. On February 17, 2021, a district staff member spoke with the parent and provided an example of special education services the students with disabilities may receive at the public school if found eligible for special education services. The district staff person informed the parent that services for the student would need to be determined by an IEP team. The district staff person did not inform the parent about the district’s plan for providing equitable services at that time, but they were not required to do so. The district properly engaged in meaningful consultation with private school representatives and representatives of parents of parentally placed private school students with disabilities regarding the equitable participation of those students in special education and related services.

Corrective Action

As student-specific corrective action, within 10 days of the date of this decision, the district must initiate a new initial evaluation for SLD that addresses all areas of concern and uses the evaluation process as required by the rule, which excludes the use of significant discrepancy. Any assessment given must be properly administered. The district must submit to the department copies of the evaluation report and the eligibility determination within 10 days of the evaluation meeting.

Additionally, within 30 days of this decision, the district must develop and submit to the department a corrective action plan (CAP) to ensure that:

  • All district staff members understand the process for accepting and processing referrals for special education evaluations.
  • IEP teams properly determine special education eligibility, including properly administering assessments.

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