On March 28, 2022, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainants) against the #### (district). This is the department’s decision regarding that complaint. The issues, which pertain to the 2021-22 school year, are identified below.
Whether the district properly conducted a comprehensive special education evaluation, including procedures to determine whether the student met criteria under the category of Specific Learning Disability (SLD) and improperly predetermined the outcome of the evaluation.
The IEP in effect at the start of the 2021-02 school year documents that the student has a disability in the areas of reading and writing that “limits [the student’s] ability to participate in and meet grade level expectations;” “is unable to perform reading skills expected of typical peers;” “fluency rate and decoding skills do not match peers for grade level passages;” and when writing, the student struggles to organize a paragraph. On August 10, 2021, the student’s parents emailed the district and requested an evaluation to consider dyslexia and the results of an outside evaluation. At the time, the student was receiving special education services due to a previous eligibility determination under the impairment area of Other Health Impairment (OHI). During the complaint investigation, the parents explained to the department’s investigator that they wanted a reevaluation of the student because they did not believe the student was making sufficient progress in reading due to the district not having a complete picture of the student’s learning profile. They specifically wanted the district to document in the IEP that the student has dyslexia and address this disability-related need through appropriate instruction.
Written notice must be given to the parents a reasonable time before the district proposes to initiate an evaluation of the student. 34 CFR § 300.503. The IEP team must conduct a review of existing evaluation data on the student to identify what additional data, if any, are needed to determine whether the student has a disability. The IEP team must include a regular education teacher of the student. 34 CFR 300.321(a)(2).
On August 18, 20, and 23, the district conducted a review of existing data to determine if additional information was needed to conduct a comprehensive special education evaluation of the student. The parents, the director of special education/school psychologist, the student’s special education teacher, and the occupational therapist participated in the review. They determined information from behavior rating scales and observations was needed. A regular education teacher did not participate in the review. On August 24, 2021, the district provided the parents with a notice of evaluation and the list of members on the IEP team responsible for conducting the evaluation. The list consisted of the same individuals who participated in the review of existing data. The review of existing evaluation data should not have occurred before the parent was notified in writing of the start of the evaluation. In addition, the district should have included a regular education teacher of the student in the review of existing data.
When considering SLD criteria for the first time, a student’s IEP team may identify a student as having SLD if the student demonstrates both insufficient progress and inadequate classroom achievement after the student has received at least two intensive, scientific, research-based, or evidence-based interventions (SRBIs). In addition, the IEP team must determine the student’s insufficient progress and inadequate classroom achievement are not primarily due to one of the exclusionary factors listed in the rule. A student’s achievement is considered inadequate when the student’s standard score, after the intensive intervention, on one or more assessments of achievement is equal to or more than 1.25 standard deviations below the mean in one or more of the eight achievement areas unless the IEP team determines that the student cannot attain valid and reliable standard scores. To determine insufficient progress, IEP teams analyze progress monitoring data collected weekly or more frequently using probes during at least two intensive SRBIs in each area of concern. The data collected must be shared during the IEP team meeting and used when determining if the student meets the criteria for SLD. In some instances, SRBIs have been completed prior to a request for evaluation, and required progress data is available during the review of existing data. In other instances, all or some of the SRBIs must be implemented and required progress data collected after the request for evaluation. PI 11.36(6). Additionally, when conducting a comprehensive evaluation for SLD, the IEP team must use information from a systematic observation conducted by a member of the IEP team in the student’s learning environment, including the regular education classroom setting, and during intensive intervention for the areas of potential SLD. The observation of SRBIs must be conducted by an individual who is not responsible for implementing the interventions with the student. PI 11.36(6)(e).
On October 13, 2021, the IEP team met for the purpose of conducting the evaluation. The IEP team considered continuing special education eligibility under the disability category of OHI and initial identification of the disability category of SLD. The district provided a draft evaluation report. During the IEP team meeting, the outside evaluator provided a report and summary, noting the student exhibited characteristics of SLD in the areas of reading fluency and decoding with an associated impact on spelling. The district shared the results of a norm-referenced assessment and a benchmark assessment of words read per minute, both administered in the fall of 2021. The district shared the results of formal observations of the student conducted by the school psychologist on September 23, October 7, and October 8, 2021, to assess on-task behavior and functioning in the educational environment. During an English Language Arts regular education class, the student was observed watching a video and answering comprehension questions during recess and during a regular education social studies class using an online program. The district did not provide weekly progress monitoring data collected during SRBIs. The IEP team completed the OHI criteria checklist, indicating that the student continues to meet the criteria and noting diagnoses of attention deficit hyperactivity disorder, dyslexia in the areas of fluency and decoding, and generalized anxiety disorder. The IEP team reviewed but did not complete the eligibility criteria checklist for SLD. The checklist failed to include progress monitoring data required for applying the SLD rule and other required information. Additionally, the evaluation report itself did not describe consideration of any disability categories. During the IEP team meeting, the director of special education/school psychologist stated that the student did not meet SLD criteria and asked if IEP team members agreed or disagreed. Four district staff members agreed. The regular education teacher disagreed and stated there was insufficient data about the student’s writing skills to determine whether the student did not meet the criteria under SLD. The outside evaluator and parents also disagreed, citing the lack of researched-based interventions in the areas of concern and progress monitoring data used in the determination. One staff member abstained.
District staff acknowledged during the complaint investigation that the student was not observed reading aloud as part of the evaluation. There was also no systematic observation of the student conducted during intensive interventions. In conducting the evaluation, the district did not conduct a systematic observation during SRBIs. The IEP team also did not consider progress monitoring data collected during SRBIs or include specific documentation in the evaluation report and criteria checklist for the eligibility determination, such as a statement of whether the student has an SLD and the basis for making the determination. 34 CFR § 300.311.
Within ten days of this complaint decision, the district must initiate a comprehensive evaluation of the student, including proper consideration of SLD. The district must submit documentation of this evaluation to the department within seven days after the meeting to determine eligibility. Within thirty days of the complaint decision, the district must develop and submit a corrective action plan to the department to ensure the district properly understands how to conduct comprehensive evaluations to determine eligibility under the category of SLD. The plan must address prior written notice and review of existing data; inclusion of required IEP team members during the review of existing data; the use of at least weekly progress monitoring data from two intensive SRBIs implemented with adequate fidelity and closely aligned with student needs; observations of the student’s academic performance in the areas of concern and during SRBI; and specific documentation for the eligibility determination, including a statement of whether the student has an SLD and the basis for making the determination. Submit the required documentation and the corrective action plan to the attention of #### at DPI.
During the complaint investigation, the parents expressed concern that the district had predetermined the outcome of the evaluation. School district staff members may not predetermine matters that are the responsibility of the student’s IEP team. However, they may develop proposals for the IEP team to consider if the proposal is used solely for discussion purposes and is not represented as a final decision. 34 CFR § 300.501. Although the district presented a draft evaluation report, it was made clear in an email and at the start of the meeting that the document was a draft and could be revised. During the meeting, revisions were made to the evaluation documentation in response to IEP team members’ input and requests, including requests made by the parents. The district did not predetermine the outcome of the evaluation when they presented a draft evaluation report during the meeting.
Whether the district properly developed the IEP regarding determining progress toward meeting previous annual goals, addressing progress through the development of current goals, and properly provided the student’s parents periodic reports on the progress the student was making toward meeting annual goals.
IEPs must include a description of how the student’s progress toward meeting the annual IEP goals will be measured, and when periodic reports on the progress the student is making toward the goals will be provided to the parent. 34 CFR 300.320(a)(3). Each LEA must ensure the IEP team reviews a student’s IEP periodically, but not less than annually, to determine whether the annual goals for the student are being achieved and revises the IEP, as appropriate, to address any lack of expected progress toward the annual goals. 34 CFR 300.324(b).
At the IEP team meeting on October 13, 2021, the IEP team reviewed the student’s annual goals from the previous IEP prior to developing goals for the new IEP. The IEP includes a description of how goal progress will be measured and that reports will be provided to the parents at the end of each grading period. The student’s previous IEP had a goal to increase writing skills by constructing a paragraph that includes an introduction and concluding sentence and a goal to increase executive functioning skills by completing three of four assignments with no more than three prompts. According to documentation and data in the annual review, each of these goals was met. New goals related to writing (write a paragraph consisting of a topic sentence, supporting details, and a concluding sentence) and executive functioning (follow directions and initiate tasks) were developed for the new IEP. The student’s IEP also included a goal to “increase [the student’s] reading skills by improving decoding and fluency skills as evidenced by reaching an independent reading level equivalent to an end year 4th grade reading level expectation.” In the Annual Review of IEP Goals, documentation indicates the student was given a 4th grade reading passage in the fall of 2021 and correctly read 101 words per minute (wpm). At the annual review, the reading goal was initially marked “Met,” but the district acknowledged they made a mistake and changed the determination to “Not Met.” The district clarified the student made progress but “did not meet the end of 4th grade Spring scores.” The parent asked the district to address the student’s lack of sufficient progress by changing the reading program used with the student. The district subsequently changed the reading program and added additional supports such as audiobooks. The IEP team also developed a new goal for the student to improve reading fluency skills, as evidenced by correctly reading 130 wpm with 1.5 or fewer errors when given a 5th grade level fluency probe. The student’s baseline score was 103 wpm given a 5th grade level fluency probe. The location of the student’s specially designed reading instruction was changed from the general education environment to a special education setting with a focus on reading fluency. Instruction also shifted from virtual to in-person. Interim progress reports were shared via email with the parents on December 3, 2021, and March 9, 2022, commensurate with the end of grading periods. Progress on the new reading fluency goal indicated the student averaged 88 wpm with two errors and 99 wpm with .8 errors, respectively when given 5th grade level reading probes. The interim reports documented the student is making sufficient progress in meeting the annual goal, although the progress reported was below the student’s baseline score for the goal.
During the complaint investigation, the student’s teacher expressed that she feels the student is making good progress in reading, although the student demonstrates inconsistent performance. The teacher acknowledged she should base her analysis of goal progress on the benchmark data compared to the baseline and would do so in the future. The district properly reviewed the student’s progress toward their IEP goals prior to developing new goals. The district revised the student’s IEP to address the lack of sufficient progress in reading, and the district properly provided periodic reports as specified in the student’s IEP. No further action related to this issue is required.
Whether the district properly implemented the student’s IEP regarding checking the student’s daily assignment notebook, additional time to complete assignments, and specially designed instruction in reading.
Each student’s IEP must include a statement of the special education, related services, supplementary aids and services, and program modifications or supports for school staff to be provided based on each student’s unique needs. IEPs must describe services so the level of the district’s commitment of resources is clear to parents and other IEP team members. The description of the amount, frequency, location, and duration of each service must be appropriate to the specific service and stated in the IEP in a manner clear to all who are involved in both the development and the implementation of the IEP. All services must be provided as described in the IEP. 34 CFR §§ 300.320 and 300.323.
The student’s IEP, in effect during the 2021-22 school year, requires the student’s assignment notebook to be checked by an adult one time per day in the regular education environment. The parents do not believe this occurs as the assignment notebook is sometimes blank when the student returns home. During the complaint investigation, the student’s teachers confirmed that the assignment notebook is checked daily during 3rd period by the regular education and special education teachers, but most teachers also do this on a regular basis during each class period. In addition, an online document with information about assignments is available to students and parents. Sometimes teachers tell students to write in their planners, and other times they do not because of the online document; this might account for the assignment notebook being blank on occasion. Given the lack of shared understanding of the requirement across all involved in implementing the IEP, the district is directed to revise the IEP to clearly describe the service and clarify whether the student is expected to write in the assignment notebook or utilize the online document.
The student is allowed two additional days to complete “homework/written work” in the regular education environment. On one occasion, the student stayed in class during recess to complete an assignment. The teacher explained that she told the student they could have extra time to complete the assignment at home. The teacher did not know why the student stayed in from recess. The district provided documentation of times when the student was given an assignment and had extended time to complete the assignment. The student’s regular and special education teachers confirmed this is the district’s practice.
The student’s IEP requires 80 minutes per week of specially designed instruction in reading fluency in the special education classroom. The parents were concerned the student did not receive reading instruction in January 2022. During the complaint investigation, the district explained that services never ceased during January, although an online text-to-speech program expired and was not available. Other read-aloud programs were utilized, and the student’s teacher read aloud to the student. The parents also expressed concern with the instructional methodology the district selected to address the student’s reading needs and requested a different program be used. The district is using an adaptive research-based intervention to target the student’s reading fluency and decoding, but the parents would prefer another reading program. The IEP does not specify a particular reading program. Districts are not required to include specific instructional methodologies in an IEP; unless the IEP team determines a specific instructional method is necessary for the student to receive a free appropriate public education, the instructional methods should be specified in the IEP. 71 Fed. Reg. 46665 (2006). A district is not obligated to carry out the parent’s preferred program or methodology. While a district should maintain an open discussion with parents regarding the use of various educational methodologies, the ultimate decision generally falls within the discretion of the district.
The district properly implemented the student’s IEP regarding additional time to complete assignments and specially designed instruction in reading.
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 or contact the special education team at (608) 266-1781.