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IDEA Complaint Decision 22-100

On December 1, 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 for this complaint. The issue identified is whether the district, during the 2022-23 school year, properly conducted a special education evaluation.

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. The school district must appoint an individualized education program (IEP) team. Within 15 days of the district’s receipt of the referral, the IEP team, including the student's parent, must conduct a review of existing data to determine the need for additional data to complete the evaluation, including information from assessment or other evaluation activities. 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 of the notification to the parent that no additional assessments are needed. 34 CFR §§ 300.304 - 300.306; Wis. Stat. § 115.78(3)(a). In order for an IEP team to determine a student has a disability under federal special education law, the IEP team must find that the student meets impairment criteria for at least one disability area and that, as a result, the student requires special education. 34 CFR § 300.308.

When considering a student’s eligibility under the criteria for the disability area of specific learning disability (SLD) for the first time, the IEP team must determine whether 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 exclusionary factors listed in the rule. A student’s achievement is considered inadequate when the student’s standard score, after 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. 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 progress data collected after the referral. Wis. Admin. Code PI 11.36(6)(c)2.a. Parties may agree to extend the 60-day evaluation timeline when interventions occur after the referral. Wis. Admin. Code PI 11.36(6)(b).

The student that is the subject of this complaint attends sixth grade in the district. During fifth grade, the district created a disability accommodation plan under Section 504 of the Rehabilitation Act of 1973 (504 plan) based on a spinal condition. This fall, the complainant, one of the student’s parents, initiated a referral for a special education evaluation. In addition to the student’s spinal condition, the parent identified concerns in the areas of reading comprehension, task completion, short-term memory, and Attention Deficit Hyperactivity Disorder (ADHD). Team members reviewed existing data, including information from the parents, two teachers, report cards, the 504 plan, and previous district-wide assessments. The student’s grades are As and Bs. The student’s recent language arts assessments included high-average, average, and low-average scores.

Additional assessments conducted for the evaluation included the Woodcock-Johnson IV Tests of Achievement (WJ IV ACH), the Test of Silent Contextual Reading Fluency (TOSCRF2), and an ADHD screener. All areas of the WJ IV ACH subtests were in the average range except passage comprehension (low average) and oral vocabulary (low). The WJ IV ACH reading comprehension domain included a memory component (reading recall), but the TOSCRF2 test did not. The student’s TOSCRF2 reading passage comprehension score was average. The assessment report summary suggested that memory issues factored into the WJ IV ACH reading comprehension score. The ADHD screener did not find attention problems. Throughout the assessment, the student remained attentive and wanted to continue work, declining optional breaks.

On November 30, 2022, the IEP evaluation team met to conduct the initial evaluation meeting. The student’s parents participated by video conference. The team discussed the results of assessments and considered eligibility for the disability categories of other health impairment (OHI) and SLD. For OHI, the team found the student’s spinal condition was chronic rather than acute. The team considered the student’s performance and ability to sustain activity in classes, including physical education. Based on the spinal condition causing no limitations to the student’s strength, vitality, or alertness and it having no adverse effect on the student’s educational performance, the team found the student did not meet the disability category criteria for OHI.

Prior to the referral, the student had not participated in an intensive intervention. District staff reported they did not conduct SRBIs for the evaluation of SLD because the student’s classroom progress was adequate. The student’s English Language Arts (ELA) teacher indicated that reading comprehension is a challenge for the student but that the student has found strategies to succeed, including the use of audiobooks, note-taking, and participation in small groups. The student’s current ELA grade is a B. The team found that the student did not meet the disability category criteria for SLD based on strong classroom achievement and the assessment results, including multiple assessments of reading comprehension. The complainant disagreed based on the student’s performance on the WJ IV ACH reading comprehension subtest. The team determined the student was not eligible for special education because the student did not meet impairment criteria under at least one disability area. After the special education evaluation was complete, the district reviewed and revised the student’s 504 accommodations to address concerns identified during the evaluation.

The district erred when it conducted the WJ IV ACH and the TOSCRF2 assessments before they administered intensive interventions with the student. Achievement must be assessed after an intensive intervention. Wis. Admin. Code PI 11.36(6)(c)1. The district also did not certify each team member’s conclusion regarding SLD eligibility. Wis. Admin Code PI 11.36(e)3. The district did not properly conduct a special education evaluation. In this specific case, no student-level correction is required since the data about the student supports the IEP team’s determination. Within 30 days of the complaint decision, the district must develop and submit a corrective action plan to the department to ensure the district uses proper procedures for conducting evaluations to determine eligibility for SLD. The plan must address the use of SRBIs; 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 finding of eligibility determination.

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.