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IDEA Complaint Decision 22-067

On August 29, 2022, the Department of Public Instruction (department) received two complaints under state and federal special education law from #### (complainant) against the #### School District. This is the department’s decision regarding those complaints. The issues are whether the district, beginning August 29, 2021, properly responded to requests for special education evaluations for two students, and properly considered all information provided by the students’ parent.

This complaint pertains to two students who are siblings. Issues pertaining to each student are addressed separately below.

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. Wis. Stat. § 115.77(1m)(a). Any person, including the parent, who reasonably believes that a child is a child with a disability, may refer the child to a local educational agency (LEA). Wis. Stat. § 115.77(1)(c). As part of any evaluation of a student with a disability, the IEP team must review existing data. During this review, members of the student’s individualized education program (IEP) team appointed by the LEA, including the student’s parents, review existing information, including evaluations and information provided by the parents, current classroom-based, local, or state assessments and classroom-based observations, and observations by teachers and related service providers that are available before any activities associated with the evaluation. The purpose of the review is to determine what additional information, if any, the IEP team needs to obtain through assessments or other means to determine the student’s eligibility for special education and educational needs. 34 CFR 300.305(a)(1).

In developing a student’s program, the IEP team must consider the student’s individual needs and parents’ concerns for enhancing their child’s education. 34 CFR 300.324(a)(1)(ii); Wis. Stat. § 115.787(3)(a). The IEP team should work toward consensus, but the district has the ultimate responsibility to ensure that the IEP includes the services that the student requires in order to receive a free, appropriate public education (FAPE). If the team cannot reach a consensus, the district must provide the parents with written notice of the district’s proposals or refusals, and the parents have the right to seek resolution of any disagreements through the dispute resolution options. When confronted with the situation of complying with one procedural requirement of the IDEA or another, the LEA must make a reasonable determination of which course of action promotes the purposes of the IDEA and is least likely to result in the denial of a FAPE. Ensuring parents have the opportunity to meaningfully participate in all IEP team decisions is of primary importance. Doug C. v. Hawaii Dept. of Educ., 720 F.3d 1038, 1046 (9th Cir. 2013).

An independent educational evaluation (IEE) is an evaluation conducted by a qualified examiner who is not an employee of the student’s school district. 34 CFR § 300.502(a)(3)(i). The parents of a student with a disability are entitled to an IEE at no cost when they disagree with a school district’s evaluation of their child. 34 CFR § 300.502(b)(1). Parents are entitled to only one publicly funded IEE for each assessment performed by a school district examiner with which they disagree. 34 CFR § 300.502(b)(5). An IEE at public expense is available to parents each time the LEA conducts an evaluation. School districts must respond to a parent’s request for an IEE in a reasonable amount of time and in a manner that does not interfere with the child’s right to receive a FAPE. 34 CFR §§ 300.502(b)(2) and (b)(4). School districts must either provide the IEE at public expense or request a due process hearing to show that its evaluation is appropriate. 34 CFR §§ 300.502(b)(2)(i)-(ii). School districts may establish qualifications requiring IEE examiners to hold or be eligible to hold the same licensure as their own staff. 34 CFR § 300.502(e)(1). However, school districts may not impose other conditions or timelines on parents’ requests for IEEs at public expense. 34 CFR § 300.502(e)(2).

Student A

Throughout the fall 2021 school semester, the parent spoke to district staff about concerns regarding Student A. On December 3, 2021, the parent provided a copy of an outside medical report to the district. Various district staff members raised concerns regarding Student A to the parent. On December 11, 2021, the parent requested a special education evaluation. District staff completed the necessary paperwork and initiated the evaluation. On December 19, 2021, IEP team members reviewed existing data, including the medical report provided by the student’s parent, and the district requested the parent’s consent to conduct additional assessments. On January 6, 2022, the district received the parent’s consent. Beginning on January 26, 2022, the district made attempts to schedule the eligibility meeting with the parent on numerous occasions, but the parties were unable to reach a mutually agreed upon meeting time until March 10, 2022.

On March 10, 2022, the eligibility meeting was held, but shortly after the meeting began, the parent requested that the meeting be ended and rescheduled so that an advocate and medical professional that wrote the medical report could attend. District staff agreed, and the meeting ended. District staff repeatedly inquired about rescheduling the meeting with the parent. Eventually, the district and the parent agreed to hold the rescheduled meeting on April 6, 2022, to allow the medical provider to attend. On April 6, 2022, the IEP team, including the parent, met again to consider the student’s eligibility. The IEP team contacted the student’s medical professional, and they presented their findings at the meeting. The IEP team documented consideration of the student’s previous records and special education evaluation, the outside medical report, a student interview, information presented by the parent and district staff, observations of the student at home and at school, and the evaluations conducted by the district. The IEP team, with the exception of the parent, determined that the student was not eligible for special education services. Because there was no consensus, the district determined the student did not meet the eligibility criteria for special education and provided the parent with prior written notice on April 6, 2022. The eligibility meeting occurred more than 60 days after the district received the parent’s consent to evaluate the student due largely to the parent’s request to stop the first meeting to allow the student’s medical provider to attend. On April 7, 2022, and April 25, 2022, the student’s parent requested an IEE because they disagreed with the district’s evaluations. District staff admit they did not respond to the parent’s request for an IEE. The district properly considered all information provided by the student’s parent but failed to respond to the parent’s request for an IEE.

Student B

In mid-January 2022, the parent and the district staff member responsible for processing special education referrals attempted to set up a phone call with the parent to discuss Student B’s needs. There was difficulty in finding a common time to speak, but on February 9, 2022, the parties were able to connect, and the parent requested a special education evaluation for Student B. The evaluation was timely initiated. District staff reviewed existing data and discussed the assessments needed to develop a comprehensive evaluation. The district received the parent’s consent to administer additional assessments on February 17, 2022.

On April 20, 2022, the first mutually agreed upon date the parent and district staff were available, the IEP team, including the parent and one of Student B’s medical providers, attended the evaluation meeting. Although the eligibility meeting occurred more than 60 days after the district received the parent’s consent to evaluate the student, the district reasonably concluded that the parent’s participation in the meeting was necessary. At the meeting, the IEP team discussed and documented the review of existing data, the parent’s concerns, the student’s behavior in and out of school, and the information provided by the student’s medical provider and the staff in their school building. The IEP team reviewed previous behavioral incidents, an evaluation done in a previous district, and the evaluation materials conducted by the district. The IEP Team was unable to reach consensus regarding whether Student B’s met the eligibility criteria for special education; the parent and medical provider believed the student met the criteria while the other IEP team members did not. The district determined the student did not qualify for special education and while they provided a finalized copy of the evaluation report, they did not include a notice that the student did not qualify. On April 25, 2022, the parent requested an IEE. District staff admit they did not respond to the parent’s request for an IEE. The district properly considered all information provided by the student’s parent. However, the district did provide notice of the IEP team’s eligibility decision and respond to the parent’s request for an IEE.

During the investigation, the district offered to engage in a number of efforts to correct the noncompliance. The district has agreed to provide a copy of the district’s IEE policy to the parent and provide an IEE that meets the agency’s criteria for each student. Within 10 days of the date of this decision, the IEE policy must be provided to the parent via certified mail. If the parent obtains an IEE for either Student A or B that meets the criteria, the parties will work together to ensure the district pays for the IEE, and Student A and/or B’s IEP teams are reconvened to consider the IEEs. Should Student A or B be found eligible for special education as a result of their respective IEE, the IEP teams will consider whether compensatory education is needed due to the delay in providing the IEE. Within 30 days of the date of this decision, the district must submit a proposed corrective action plan (CAP), to ensure it properly responds to requests for IEEs. The district has also agreed to provide training to the district’s special education staff regarding IDEA requirements related to initial evaluations and IEEs, which can be included in the proposed CAP.

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 or contact the special education team at (608) 266-1781.