On November 21, 2022 (form dated November 18, 2022), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the #### School District. This is the department's decision regarding this complaint. The issues identified are enumerated below and pertain to the time period beginning November 21, 2021.
Whether the district properly conducted an initial special education evaluation.
School districts are required under state and federal special education law to locate, identify, and evaluate all resident students aged three to twenty-one 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. All referrals for special education evaluations must be in writing and include the name of the child and the reasons why the person believes that the child is a child with a disability. Wis. Stat. § 115.777(2)(a). Within 15 business days of receiving a referral, the district must appoint an individualized education program (IEP) team, including the student's parents. The IEP team 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, and the district must send the student's parents either a notice that no additional assessments are needed or request for consent to evaluate the student and conduct additional assessments. Wis. Stat. § 115.777 (3)(e). 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 from the date the parents eeee notified that no additional assessments are needed. 34 CFR §§ 300.304 - 300.306; Wis. Stat. § 115.78(3)(a). The student's IEP team must meet to develop the student's initial IEP and placement within 60 days of the date the student is found eligible for special education.
The student who is the subject of this complaint is a resident of the school district but had not attended public school prior to the events leading to this complaint. The student was three years old when their parents requested a special education evaluation via email from the district on March 16, 2022. The parent's email described concerns about the student's communication skills, noting that the student had several episodes of screaming at home and at daycare when frustrated. The district responded by sending the parent notice of receipt of the referral and the start of the initial evaluation on March 17, 2022. The district assigned staff members to the student's IEP team and held a meeting at the daycare center to review existing information and data regarding the student on March 25, 2022. The student's parents and staff from the student's daycare center attended the meeting. The team discussion included concerns about the student's communication skills and some concerns about the student's sensitivity to loud sounds. The team determined they would conduct assessments to gather additional data on the student's physical, language, social/emotional and cognitive development, and adaptive and language skills. The comprehensive assessment plan included observations of the student in natural environments, including the student's daycare program. Given some concerns about the student's responses to loud noises, the district assigned an occupational therapist to the student's IEP team to assess the student's sensory processing and fine motor development.
The district sent the parent notice and request for consent regarding the need to conduct additional assessments on April 6, 2022. The student's parent immediately signed and returned the form on the same day. As such, the 60-day timeline to determine the student's eligibility for special education was June 5, 2022. The district scheduled an IEP team meeting to determine the student's eligibility for special education for May 23, 2022. The student's parents and staff from the student's daycare center attended the meeting. The team discussed the results of the assessments conducted and determined that the student qualified for special education in the area of Speech and Language Impairment (SLI) due to the student's needs in the areas of receptive and expressive language. The IEP team felt that the student's sensory needs and associated behaviors, such as screaming, were related to the student's language needs. The IEP team also considered and rejected the student's eligibility under the disability category of Significant Developmental Delay (SDD). The district decided to schedule a meeting to develop the student's initial IEP for June 5, 2022, to ensure the student had a timely IEP in place.
Per the parent's request, district staff rescheduled the IEP team meeting for June 9, 2022, which coincidentally was the district's last day of instruction for the 2021-22 school year. The IEP team met and developed the student's IEP which provided the student would receive specially designed instruction in speech and language therapy, occupational therapy consultation, and many supplementary aids and services to support the student's sensory and behavioral needs, including a quiet place to take a break, visual supports, and additional time to process statements and questions. The team determined the IEP would be implemented when the student started four-year-old kindergarten at the beginning of the 2022-23 school year. The student's daycare provider questioned whether the student should have extended school year (ESY) services during the summer rather than waiting until the start of the school year to begin, but district staff explained that because the student had not yet started school, the team did not have data to show the student required ESY services to receive a free, appropriate public education. The student's parent and daycare center staff raised additional concerns about the student's behavior and communication and questioned whether the evaluation and IEP fully explained and addressed the student's behavioral needs. While district staff felt the evaluation was sufficiently comprehensive to address the parents’ concerns, the team agreed to conduct an additional evaluation to consider the disability category of autism and gather information for a functional behavioral assessment (FBA). This was the first time the team had discussed concerns related to autism.
On July 11, 2022, the district reconvened the student's IEP team to review existing data regarding the student's potential eligibility under the disability category of autism. The student's parents attended the meeting, as did an outside autism specialist, occupational therapist, and school psychologist from the local Cooperative Educational Services Agency (CESA) contracted by the district to assist with the evaluation. The IEP team determined they would conduct additional assessments, including informal language samples, autism rating scales, and behavioral observations and assessments. The student's parent provided written consent for CESA staff to conduct the assessments during the meeting.
The IEP team met again on July 26, 2022, to discuss the results of the additional assessments and determine the student's eligibility in the area of autism. The student's parents, daycare staff, district staff, and CESA staff attended the meeting. The team determined the student continued to meet the eligibility criteria for the disability category of SLI. The IEP team also determined that due to differences in the student's social participation with peers and adults, communication, delays in sensory and social skill development, perseverant thinking patterns, sensitivity to sounds, difficulties dealing with changes, and restricted range of interests, the student met criteria for the disability category of autism.
The student started school at the beginning of the 2022-23 school year. School staff reported that the student had a very good start to the school year. On September 17, 2022, the IEP team met to review the IEP in light of the additional information gained through the July evaluation and the student's performance since the school year began. School staff reported that the student was doing well at school. The student's parents indicated that they were seeing some increasing behaviors, including hitting and screaming at home, and that they wanted the student to receive as much support as possible in the student's least restrictive environment, which they considered to be the regular 4K classroom as well as the student's daycare center. The team developed an FBA and determined the function of the student's behavior was social communication. The team indicated the student was not having behavioral difficulties at school and planned to continue supporting the student's social communication needs through positive behavioral supports as described in the IEP. The team determined the student would continue to receive specially designed instruction in the form of speech and language therapy for five 20-minute sessions monthly in a special education environment to allow the student to practice language skills in a quiet, distraction-free environment that allows for one-to-one or small group learning opportunities.
Given the circumstances, the district properly conducted the student's initial special education evaluations. The May 2022 evaluation was the district's first experience with the student and was based on the parents’ concerns about the student's communication and sensory processing. It was reasonable for the team to have considered the student's eligibility under the disability categories of SLI and SDD. As a result of the evaluation, the team concluded the student's behaviors were primarily due to communication needs. The evaluation was sufficiently comprehensive to allow the IEP team to determine the student's disability-related needs and develop an appropriate IEP to address them. When the student's parents expressed additional concerns, the district responded appropriately by initiating an additional evaluation to consider an additional disability area. The IEP team made minor changes to the student's IEP in light of the information obtained through the second evaluation, but that does not mean the first evaluation was inappropriate or deficient. All evaluation activities were conducted timely and by appropriately constituted IEP teams, and the student's parents participated fully in all decisions.
Whether the district properly determined the student's placement in the least restrictive environment.
To the maximum extent, appropriate students with disabilities must be educated with other students who are non-disabled. Removal of students from the regular education environment should occur only if the nature or severity of the student's disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 34 CFR § 300.114(2). In Wisconsin, the IEP team determines placement for a student with a disability. Wis. Stat. § 115.78(2). IEP teams must describe other options considered, if any, related to the student's placement.
The district properly determined the student's placement in the least restrictive environment. The student was not enrolled in school when the evaluations began, and by the time the initial IEP was complete, the school year had ended. The student's parents expressed concern that the district did not provide the student with services in the student's daycare program prior to the beginning of the school year, as this was the student's natural environment at that time. However, the district was not obligated to do so as the student did not require ESY services, so it was not inappropriate for the district to wait until school started. At the beginning of the school year, the student began attending the regular 4K class and spends the majority of the time in that location with age-appropriate peers. Since the IEP team determined the nature of the student's communication needs require speech and language services to be provided in an environment with fewer distractions and noise than the regular classroom, it is appropriate for the student to be removed to a special education environment for that instruction.
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 or contact the special education team at (608) 266-1781.