On July 9, 2024 (form dated July 3, 2024), 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 that complaint. The issue is whether the district, beginning the 2023-24 school year, properly conducted a special education evaluation.
If a parent believes their child is a student with a disability, they may make a referral to the school district. All referrals must be in writing and include the name of the student and the reasons why the person believes that the child is a student with a disability. The district must accept and process all referrals that are submitted. Within 15 business days of receiving a request for a referral, the individualized education program team must conduct a review of existing data to determine if additional assessments are necessary and send to the parent a request for consent to conduct additional assessments or notice that no additional assessments are needed. Wis. Stat. § 115.777.
The district must complete all assessments and hold an individualized education program (IEP) team meeting to determine the student's eligibility within 60 days of the district's receipt of the parent's consent to conduct the additional assessments or from when the district provides notice 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 conducting a comprehensive special education evaluation for a student who is frequently absent or truant, the excessive absences become one data point of many, to consider when determining whether the student meets criteria for one or more disability categories and whether the student requires specially designed instruction. Frequent student absences pose a challenge to IEP teams as it can be difficult to do assessments and observations when a student is not at school. In such cases, the IEP team would document and discuss the impact that the student’s absences have on collecting necessary assessment information and the impact absences have on the student’s ability to access, engage, and make progress in the general education curriculum.
The student who is the subject of this complaint began the 2023-24 school year attending classes in person after being expelled from the district the year prior. The student began having increased anxiety around being in school which resulted in a significant number of absences beginning in September 2023. The complainant emailed school staff on October 4, 2023, stating “Things are not progressing as hoped, with [the student’s] education. Moving forward; [the student] is in need of an Individualized Education Plan. I am currently working with a family therapist, and she was going to reach out to the high school's social worker. [The student] needs help navigating this school year. Please let me know what the next steps are.”
Given the complainant's written communication, the district provided documentation of their attempts to contact the parent for additional information and whether the parent intended to refer the student for a special education evaluation. Despite multiple attempts from the district, the parent did not respond to the district until November 16, 2023, which is when the district processed the parent’s referral. The district sent the notice of receipt of referral and start of initial evaluation on November 16, 2023. The district also held the review of existing data and requested consent for additional assessments on November 16, 2023.
On January 12, 2024, within 60 days of receiving the student’s parent’s consent to conduct additional testing, members of the evaluation team met to consider their findings and determined that the student did not meet the criteria to be considered a student with a disability under the criteria for the disability area of emotional behavioral disability (EBD). EBD means a condition in which a child demonstrates frequent and intense observable behaviors, either over a long period of time or of sudden onset due to an emerging mental health condition which includes a diagnosis by a licensed mental health professional, which adversely affects the child's educational performance. The behaviors shall occur in an academic setting in school, in a non-academic setting in school and in the child's home or community. WI Administrative Code PI 11.36(7)(a). The IEP team did not consider other disability areas, including other health impairment (OHI), as district staff reported they were not aware of any medical diagnosis for the student. However, IEP teams can consider OHI without a diagnosis from a licensed physician. Given that the complainant had raised concerns about the student having health issues including anxiety, depression, and suicidal ideation, only considering one impairment area meant that the evaluation was not sufficiently comprehensive to identify all the student’s needs. Further, the student’s absences continued to be a significant issue throughout the school year and did not consider if those absences were attributable to a possible health condition. Interviews with school staff confirm that it was difficult to conduct the evaluation since the student was rarely in school. Attendance records confirm the student had missed all or part of at least 44 days of school up to January 12, 2024.
The evaluation report confirms that the district did not consider all of the requirements found in WI Administrative Code PI 11.36(7)(c). The district did not include the results of evidence-based positive behavioral interventions implemented within general education settings, nor did it interview a staff member, identified by the student, if possible, as having the most positive or a positive relationship with the student, to gather information regarding the student's strengths and ecological factors that may impact the student's behavior. Staff were only able to observe the student on four occasions. The IEP team also did not consider the effects of any known history of trauma or mental health disorder on the child's functioning per the requirements of in WI Administrative Code PI 11.36(7)(d). The IEP team did not document their attempts to observe the student when they were absent per DPI guidance. The IEP team ultimately determined that the student did not meet the EBD criteria because during their limited observations of the student at school. They did not observe evidence that the student displayed behaviors which adversely affect the student’s educational performance in a non-academic setting within the school. On May 9, 2024, the student was expelled.
The district did not properly conduct a special education evaluation in this case as the evaluation was not sufficiently comprehensive to identify all of the student’s disability-related needs, did not properly consider data from each of the required sources outlined in WI Administrative Code PI 11.36(7)(c), and did not include the student’s absences as part of the documented observation attempts or as a demonstration of frequent and intense observable behaviors which adversely affects the student’s educational performance.
Within 10 days of the receipt of this decision, the district must initiate a new initial special education evaluation that is sufficiently comprehensive to identify all the student’s unique disability-related needs. Within 10 days of the conclusion of this evaluation, the district must submit to DPI, the evaluation report and all associated documentation. If this evaluation shows that the student meets the impairment criteria for at least one disability area and that, as a result, the student requires special education, the district must:
1. Determine compensatory education services owed to the student beginning January 12, 2024.
2. Conduct a manifestation determination to determine whether the behavior that resulted in the student’s expulsion on May 9, 2024, was a manifestation or result of the student’s disability.
3. If the behavior is determined to be a manifestation of the student’s disability, the expulsion must be removed per DPI Information Update Bulletin 14.02. If a manifestation determination is held, the results of this meeting and all associated documentation must be sent to DPI within 10 days.
Within 30 days of the receipt of this report the district must submit to DPI a corrective action plan for ensuring that, and all relevant staff are trained on conducting comprehensive special education evaluations.
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