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IDEA Complaint Decision 22-077

On October 6, 2022 (form dated October 5, 2022), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### against the #### School District (district). This is the department's decision regarding that complaint. The issue is whether the district, during the 2022-23 school year, properly initiated a special education evaluation, including properly obtaining parental consent to conduct additional assessments.

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. 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 were notified that no additional assessments are needed. 34 CFR §§ 300.304 - 300.306; Wis. Stat. § 115.78(3)(a).

State and federal special education law require a district to obtain informed consent from a parent before conducting an initial evaluation or a reevaluation of a child with a disability. 34 CFR § 300.300(a) and (c) and Wis. Stat. § 115.782(b). In a situation where parents are divorced or separated, the local educational agency (LEA) must determine whether one or both parents have educational decision-making authority for the child. If both parents have this right, the LEA must accept either parent's consent for additional testing during an initial evaluation. DPI Bulletin 10.01, 2010 and Letter to Cox, OSEP 2009. When conducting an evaluation, the district must ensure that the child is assessed in all areas of suspected disability. Wis. Stat. § 115.782(2)(a)3.c.

On August 31, 2022, the complainant emailed the district to request that his child be evaluated for special education services. The email included the student's name and the reasons that the complainant believed the child was a child with a disability. The district acknowledged its receipt of this referral on September 6, 2022. On September 16, 2022, both parents, who are divorced, participated in a review of existing data and agreed that the IEP team should assess and evaluate the student for special education eligibility under the disability area of speech and language. At the meeting, the student's mother requested that the IEP team conduct additional assessments to enable the IEP team to consider whether the student might qualify under the disability area of other health impairment. The complainant, who is the student's father, stated that he did not consent to any testing outside of those concerning speech and language. On September 27, 2022, the district sent both parents a form notifying the parents of the district's intent to conduct the evaluation and requesting written consent to administer assessments. On September 28, 2022, the student's mother provided written consent for additional testing. The same day, the complainant returned the form indicating that he did not consent to additional testing. The student's parents share educational decision-making authority for the student. After the district received written consent to conduct assessments from one of the student's parents, they properly proceeded with the assessments. On November 9, 2022, the IEP team determined that the student did not qualify for special education and related services. The district properly obtained consent to conduct additional assessments.

As the complainant's initial email included all the necessary components to be considered a referral, the district erred when it did not consider August 31, 2022, the date of the receipt of the referral, and did not begin the 15-business day timeline to assign an IEP team for the student, conduct the review of existing data, and send the parents a request for consent to conduct assessments. The request for consent for additional assessments should have been sent to the student's parents by September 21, 2022, but was not sent until September 27, 2002. As such, the district did not properly initiate a special education evaluation within the specified timelines. No student-specific corrective action is required for this delay since the student did not qualify for special education.

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.