On October 9, 2023, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the #### (District). This is the department’s decision regarding this complaint. The issue identified is whether the district, beginning October 9, 2022, properly fulfilled its responsibility to identify, locate, and evaluate a student with a disability.
Under the Individuals with Disabilities Education Act (IDEA), all children with disabilities must be identified, located, and evaluated. 34 CFR § 300.111. This responsibility is often referred to as “child find.” The child find obligation is an affirmative one. School districts may not take a passive approach and wait for others, including parents, to refer students potentially eligible to receive special education. A person who is employed by a local educational agency (LEA) and who reasonably believes a child has a disability must refer the child to the local educational agency. WI Stats. Ch. 115.777(1)(b).
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.
In rare circumstances when considering a student’s initial eligibility under the area of specific learning disabilities (SLD), upon its review of existing evaluation data, the IEP team may determine the student demonstrates adequate classroom achievement and sufficient progress needed to meet age or state-approved grade-level standards even before conducting any scientific research-based instruction (SRBI). When this happens the IEP team may move forward and conduct an IEP team meeting to complete the evaluation and make a special education eligibility decision based on existing data. Frequently Asked Questions About Making Specific Learning Disability (SLD) Identification Decisions, Wisconsin Department of Public Instruction, question 7. Existing data reviewed by the IEP team include assessments and information provided by the student’s parents; previous interventions and the effects of those interventions; current classroom−based, local, or state assessments; classroom−based observations; and observations by teachers and related services providers. The IEP team must meet to conduct an evaluation and determine special education eligibility and must document the basis of its eligibility decision. Wis. Stats. §115.782.
The student who is the subject of this complaint has attended school in the district for many years and was in high school during the time period relevant to this complaint. Since elementary school, the student has participated in reading support services provided through the general education curriculum. The student has made slow but steady progress over the years as a result but continues to demonstrate below grade level reading skills according to district records.
During the 2022-23 school year, the student’s parent obtained an evaluation from a private neuropsychologist. The evaluator diagnosed the student with anxiety, depression, and dyslexia with particular difficulties in the areas of sophisticated phonological awareness and rapid naming speed, resulting in the student having slower processing of what they read. The evaluator recommended the student should receive specialized instruction in reading in a one-to-one or small group setting, and suggested the district use a research based, multisensory reading program. The report also suggested a number of accommodations including additional time to complete tasks. The district created a disability accommodation plan under Section 504 of the Rehabilitation Act of 1973 (504 plan) that included many accommodations including extended time to complete assignments and tasks, alternative methods of demonstrating understanding, audiobooks, and separate settings for all assessments. The student continued to participate in general education reading interventions with an emphasis on reading fluency and comprehension.
During the Spring semester of the 2022-23 school year, the student’s parent became aware of the student’s results from a series of universal screening tools utilized by the district as part of their general curriculum which continued to show the student was significantly below grade level in reading. The parent was frustrated the district had not provided the specific type of reading intervention suggested by the neuropsychologist. The parent submitted a referral for a special education evaluation of the student, which was dated March 9, 2023.
District staff were assigned to the student’s IEP team and began reviewing the existing evaluation information, including the neuropsychologist's report. On March 21, 2023, the IEP team including the student’s parents met to discuss the data and determine whether additional assessments were needed. The team determined the same assessments they were considering had already been conducted by the neuropsychologist, and that the team could use those scores to complete the eligibility determination without additional assessment information.
The team proceeded to discuss the student’s eligibility. The team looked at the student’s assessment data over time, attendance, and grades. The achievement test scores obtained by the private neuropsychologist indicated that the student’s reading scores in the areas of concern were in the average to low average range. The scores provided were not more than 1.25 standard deviations below the mean in any of the eight achievement areas even without the benefit of participation in SRBIs as prescribed by the SLD criteria. Other data reviewed by the team indicated the student was making progress in the general education interventions. The team decided this meant that although the student was not reading at grade level, they still demonstrated adequate classroom achievement and sufficient progress, and therefore would not meet the disability criteria under SLD. However, the team determined that the student’s anxiety, depression, and dyslexia were contributing to difficulties maintaining attention and impacting the student’s reading, and determined the student met eligibility criteria under Other Health Impairment (OHI). The team determined the student demonstrated a need for specially designed instruction and qualified for special education. The team went on to develop the student’s initial IEP at the same meeting. The student currently receives specially designed instruction addressing the student’s reading needs, as well as instruction in self-advocacy and mental wellness skills.
During the department’s investigation, district staff explained that despite the student’s history of below grade level reading achievement, their ability to make progress through ongoing general education interventions throughout the student’s school career did not give rise to any suspicion the student had a disability under IDEA. The student continues to receive reading interventions and data show the student continues to make progress. Staff informed the department’s investigator that while the general education interventions selected by the district are not the same type of interventions suggested by the student’s neuropsychologist, they address the issues of comprehension and fluency the student exhibits which result from the phonological awareness and rapid naming speed deficits identified in their report in a developmental and age appropriate manner.
When the district learned of the student’s outside diagnoses, they developed an accommodations plan under Section 504. Staff believed the accommodations were working well for the student. When the student’s parent expressed additional concerns, the district promptly conducted an evaluation. While the district determined SRBIs were not necessary to determine the student was not eligible under the area of SLD, the evaluation was comprehensive, and the student qualified for special education under the area of OHI. The district properly fulfilled its responsibility to identify, locate, and evaluate the student.
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.
For questions about this information, contact dpispeddata@dpi.wi.gov (608) 266-1781