On October 25, 2023 (form dated October 17, 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 issues identified are whether the district, beginning October 25, 2022:
● Properly fulfilled its responsibility to locate, evaluate, and identify a student with a disability,
● Properly provided the student’s parent a copy of the student’s individualized education program (IEP) prior to its implementation, and
● Properly followed special education discipline requirements.
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Whether the district properly fulfilled its responsibility to locate, evaluate, and identify a student with a disability.
The purpose of a special education evaluation is to determine whether the student qualifies as a student with a disability in need of specially designed instruction and the nature and extent of the student’s educational needs. Referrals for evaluations must be in writing and include the student’s name and the reasons why the parent believes the student is a student with a disability. When a verbal request for a special education evaluation is made, the local education agency (LEA) must inform the person of the right to make a referral and how to make a referral. Upon receipt of a referral, the district must appoint an individualized education program 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 information to determine what additional data, if any, are needed to complete the evaluation. 34 CFR §§ 300.503(a)(1), 300.305(a); Wis. Stat. §§ 115.792(2), 115.782(2)(b). An IEP team meeting must be conducted to determine eligibility within 60 days after receiving parental consent for evaluation or notifying the parent that no additional assessments are needed. 34 CFR § 300.301(c); Wis. Stat. § 115.78(3)(a). School districts must take steps to ensure that the parent of a student with a disability is present at each IEP team meeting or is afforded the opportunity to participate, including notifying the parent of the meetings early enough to ensure that there will be an opportunity to attend, and scheduling the meeting at a mutually agreed time and place. Prior to an IEP team meeting, a district must provide notice to the parent of the purpose, time, and location of the IEP team meeting, including a list of who will be in attendance at the IEP team meeting. 34 CFR § 300.322.
On November 30, 2022, the school counselor followed up with the school psychologist regarding the parent’s request for a special education evaluation. The school psychologist responded they would like to meet with the student prior to submitting the referral to the director of special education. On December 14, 2022, the parent again requested a special education evaluation. The school counselor then submitted a paper referral to the director of special education. An evaluation was conducted, and the student was found eligible for special education services on April 3, 2023. Any person, including the parent, who reasonably believes that a student is a child with a disability may refer the student to a local educational agency for evaluation. Under Wisconsin law, any time a district receives a referral, it must proceed with an evaluation without delay. The district did not properly respond to the parent’s request for a special education evaluation.
Whether the district properly provided the student’s parent a copy of the student’s IEP prior to its implementation.
Prior written notice must be given to the parents of a child with a disability a reasonable time before the school district proposes or refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the student. Among several required components, this notice must include a description of the action proposed or refused by the district, an explanation of why the district proposes or refuses to take the action, and a description of other options that the IEP team considered and the reasons why those options were rejected. 34 CFR § 300.503. Following a change to a student's IEP, to ensure prior written notice, district staff must provide parents a copy of the finalized IEP and placement page before implementing the changes. The provision of a draft IEP does not meet the prior written notice requirements.
School districts must provide a free appropriate public education (FAPE) to each student with a disability by developing an individualized education program that meets the student's unique needs and by implementing special education and related services in accordance with the student's IEP. 34 CFR §§ 300.323(c)(2) & 300.324.Each student’s IEP must address the student's needs that result from the student's disability in order to enable the student to be involved and make appropriate progress in the general education curriculum and toward their IEP goals and meet the student's other educational needs that result from the student's disability. The IEP must include a statement of the special education services to be provided to the student. 34 CFR §§300.320(a), 300.324(a). The district must ensure that the student's IEP is accessible to each regular education teacher, special education teacher, related services provider, and any other service provider who is responsible for its implementation and that they are informed of their specific responsibilities. 34 CFR § 300.323(d).
The student’s parent indicated they did not receive copies of the finalized IEPs after IEP team meetings held on April 3 and September 28, 2023, until they requested them from the student’s special education teacher in mid-October 2023. While the placement pages of both IEPs state the parent was provided notice within days of the IEP team meetings, the district was not able to provide documentation that the IEPs were provided to the parent. The district noted that their typical practice is that after revision of an IEP, it is shared with the special education director for review. After the director’s review, district staff finalizes the IEP and adds the date, and then the IEP is mailed via USPS and the notice of placement is emailed. The district was not able to demonstrate that copies of the student’s IEPs were provided prior to their implementation.
In reviewing the student’s records as part of this investigation, department staff noted that the student’s evaluation identified a number of concerns including inattention, hyperactivity, learning issues, anxiety, depression, and difficulty with social skills at home and school. As part of the evaluation, the team determined the student’s disability related need was to increase self-advocacy. However, the student’s initial IEP identifies the student’s disability related need as improving study skills. The student’s family reported there was no discussion about this change to the student’s disability related need and that a great deal of information regarding the student’s social emotional needs was included in the evaluation but not reflected in the IEP. As a result, there was no support or instruction for the student’s IEP for the social emotional needs identified as part of the evaluation. Without proper prior written notice, the student and parent were not aware of the discrepancy prior to the incident for which the student was disciplined.
Whether the district properly followed special education discipline requirements.
When a student with a disability is subject to a potential disciplinary change of placement, the district must determine whether the student’s conduct is a manifestation of the student’s disability within 10 school days of the decision to change placement. 34 CFR § 300.536. Expulsion is a disciplinary change of placement. In conducting a manifestation determination, the district, the parent, and relevant members of the student's IEP team must review all relevant information in the student's file, including the student's IEP, any teacher observations, and any relevant information provided by the parents to determine if the conduct in question was caused by, or had a direct and substantial relationship to, the student's disability, or if the conduct in question was the direct result of the district's failure to implement the IEP. 34 CFR § 300.530(e). If the behavior is determined not to be a manifestation of the student’s disability, the district may proceed with the disciplinary removal to the same extent it would remove a student who does not have a disability.
Beginning on the eleventh cumulative school day of removal in a school year and during subsequent removals, the district must provide services to the extent necessary to enable the student to continue to participate appropriately in the general curriculum, although in another setting, and to progress toward achieving the student’s IEP goals. 34 CFR § 530(d)(1)(i). If such a removal is not a disciplinary change of placement school personnel, in consultation with at least one of the student's teachers, determine the extent to which services are needed. However, if the removal is a disciplinary change of placement the student’s IEP team must determine the appropriate services. 34 CFR § 300.530 (d)(5).
Beginning October 3, 2023, the student was suspended for five days following a disciplinary referral for having marijuana and drug paraphernalia on school property. The district recommended the student’s expulsion. The district held a manifestation determination meeting on October 13, 2023. The director of special education facilitated the meeting and acted as the LEA representative. The director posed each of the questions within the manifestation process to the team with opportunities for members of the team to discuss their viewpoints. Information reviewed included the student’s disability, mental health diagnoses, IEP goals and services, student’s progress, and teacher observations.
While district staff believed that the student’s behavior was not a direct result of their disability, the student’s family disagreed. District staff felt the student knew their behavior was wrong, but knowingly choose to proceed anyway. The family felt the behavior occurred as a result of the student’s mental health. Since the staff and family were not able to come to a consensus, the LEA representative made the determination that the student’s behavior was not a direct result of the student’s disability. The student and parent also reported concerns about implementation of components of the student’s IEP. The student had asked teachers to provide the accommodations within the IEP, and many of them were unaware the student had an IEP. The student did not have a math class in the first quarter, and as a result did not receive their specialized math instruction as required by the IEP. District staff likewise reported being unaware of the student’s IEP until conversation with another colleague or when the student shared they had an IEP. District staff concluded that, for purposes of the manifestation determination, these implementation lapses were not directly related to the behavior that was the subject of the student’s discipline. The district properly conducted the manifestation determination.
As a result of the determination that the student’s code of conduct violation was not a manifestation of their disability, on October 14, 2023, the district sent the parent a written notice of an expulsion hearing. Prior to the expulsion hearing, the student and parent were offered a conditional re-entry and returned to school October 23, 2023. The student and parent accepted the conditional re-entry agreement.
The student was out of school for 15 consecutive school days, which is a disciplinary change of placement. The district provided the student schoolwork via a virtual platform and the special education teacher met with the student October 19 and 20, 2023, for one hour via zoom. The time was utilized to help the student get caught up on work. However, since the removal was a disciplinary change of placement, the student’s IEP team should have determined the services the student required after the tenth day of removal. The district did not properly implement special education disciplinary requirements.
Within 45 days of the date of this decision, due to the district’s failure to provide the student’s parent a copy of the IEP prior to its implementation, the district is directed to reconvene the student’s IEP team to ensure the student’s current IEP reflects an accurate account of the information in the student’s evaluation and appropriate disability related needs. The IEP team must also discuss whether compensatory services are appropriate for the student for the time during which the special education evaluation was delayed, as well as, during the final 5 days of the student's disciplinary removal. The district is directed to submit a copy of the revised IEP documenting all decisions within 10 days of the IEP team meeting.
Additionally, within 30 days of the date of this decision, the district must develop and submit to the department for approval a corrective action plan (CAP). This plan must include the professional development for special education referrals, and onboarding for new staff on IEP timelines specific to special education referrals and prior written notice.
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.
For questions about this information, contact dpispeddata@dpi.wi.gov (608) 266-1781