On August 21, 2024, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (parent) against the #### (district). This is the department’s decision regarding that complaint. This complaint applies to the period of time beginning August 21, 2023, and the issues identified are described below.
Whether the district properly conducted a comprehensive special education evaluation of the student.
School districts must ensure that each special education evaluation is sufficiently comprehensive to identify all of the student’s special education and related service’s needs, whether or not commonly linked to the disability category in which the student has been classified. 34 CFR § 300.304(c)(6). During a reevaluation of a student previously identified with a specific learning disability (SLD), the student’s individualized education program (IEP) team analyzes whether the student demonstrates a continued need for specially designed instruction to determine whether the student continues to meet disability criteria, including whether the student performs to generally accepted grade level expectations. Wis. Admin. Code § PI 11.36 (6)(h).
The student initially qualified for special education under the disability area of SLD in reading fluency in January of 2021. The student was due for a three-year reevaluation on February 3, 2024. The district provided the parent a notice of reevaluation on October 30, 2023. A review of existing data, which included information provided by the parent, took place on November 6, 2023, and the district sought the parent’s consent to evaluate the student in the areas of academics, cognition, and behavior. The parent provided the district written consent for the identified assessments on November 14, 2023, and the district proceeded to conduct the assessments.
The student’s IEP team met on December 18, 2023, to complete the reevaluation. The student’s IEP team reviewed the student’s current progress data which demonstrated they had met their previous IEP’s annual goals. The team also reviewed results of recent district-wide assessments that showed the student’s percentile score in reading improved from the 20th percentile in the fall of 2021 to the 59th percentile in the fall of 2023. Those same district-wide assessments showed the student continued to have math scores around 40th percentile in both 2021 and 2023. Standardized assessments conducted as part of the evaluation resulted in the student scoring in the average range in math and of reading except orthographic fluency. Data from standardized measures of behavior showed the student largely in the average range but identified some concerns in areas related to adaptive skills. The team also considered information provided by the student’s parents regarding the student’s fall 2023 medical diagnosis of attention deficit hyperactivity disorder (ADHD). The team applied this information to the reevaluation criteria for SLD and determined the student was no longer eligible as the student was performing to generally accepted expectations in the general education classroom as demonstrated by her average reading scores, progress towards IEP goals, and generally successful performance in routine classwork involving reading. Additionally, the team determined the student met initial eligibility under the criteria for other health impairment criteria (OHI), and found the student was in need of specially designed instruction as the result of their medical condition. The team identified one disability related need in the area of executive functioning specific to the student’s planning, task initiation, time management, and coping skills.
The evidence reviewed by the department shows the evaluation was sufficiently comprehensive to identify all of the student’s disability related needs. Additionally, the evidence considered by the student’s IEP team formed a reasonable basis for the IEP team to conclude the student was no longer eligible under the SLD criteria but was eligible under the OHI criteria, and that the student’s disability related need was executive functioning. The district properly conducted a comprehensive evaluation of the student.
Whether the district properly developed the IEP of a student with a disability including appropriate annual goals and special education services in the areas of reading, social emotional needs, spelling, and math.
At the beginning of each school year, a district must have in effect an IEP for each child with a disability. 34 CFR § 300.323(a). The IEP must be individualized and developed based on the unique, disability related needs of the student. The IEP must be reasonably calculated to allow the student to make appropriate progress, both in the general education curriculum and toward their IEP goals. 34 CFR § 300.320(a)(4).
Following completion of the reevaluation on December 18, 2023, the IEP team proceeded to develop an IEP for the student. Consistent with the findings of the reevaluation, the team identified the student’s disability related need as executive functioning and proceeded to develop two annual goals for the student. The first goal involved the student developing a plan for accomplishing multi-step academic tasks with one or fewer adult prompts and successfully completing the task. The second goal involved the student using at least one strategy to problem solve when working independently. The team identified nine supplementary aids to support the student’s achievement of these goals including assignment modification, additional time to complete tasks and assessments, and supports such as sentence stems and graphic organizers. The team also concluded the student required 20 minutes per week of specially designed instruction in the areas of social skills, planning, task initiation, and time management.
The determinations made in the evaluation support the IEP team’s conclusion that the student’s executive functioning deficits were the root cause of any difficulty the student was experiencing in the areas of reading, social emotional needs, spelling, and math. The IEP developed by the team on December 18, 2023, was reasonably calculated to address the student’s disability related needs and allow the student to make appropriate progress in the general curriculum and towards their IEP goals.
Whether the district properly responded to the student’s parents request for an independent educational evaluation (IEE).
An IEE is an evaluation conducted by a qualified examiner who is not an employee of the student's school district. A parent has the right to an IEE at public expense if the parent disagrees with the district's special education evaluation. Upon receiving a request for an IEE, a school district must respond to the request for an IEE without unnecessary delay by ensuring that an IEE is provided at public expense or requesting a due process hearing to show that its evaluation is appropriate. 34 CFR § 300.502. The district must inform parents about where an IEE may be obtained and the district’s IEE criteria. 34 CFR § 300.502.
Shortly after the student’s reevaluation was completed, the parent requested an IEE. The district promptly provided the parent a list of qualified examiners in the area and explained the district’s procedures for ensuring the examiner receives payment from the district for the evaluation. The parent selected an examiner from the list, and the district arranged for the examiner to be paid. The initial examiner was not able to see the student on a schedule suitable to the parent, so the parent selected a different examiner, and again the district arranged for payment. When the examiner presented their initial report, the parent was dissatisfied because the examiner had not conducted all the tests requested by the parent. The district arranged for the examiner to conduct the additional tests. The examiner completed the testing and provided a written report including the additional results to the district and parent. The district properly responded to the parent’s request for an IEE.
Whether the district improperly disclosed the student’s special education records without obtaining parental consent.
The IDEA regulations require a school district to obtain written consent to disclose personally identifiable information related to special education. 34 CFR §300.622. The definition of records and the provisions regarding the disclosure of records are made by reference to the Family Educational Rights and Privacy Act (FERPA) of 1974. 34 CFR 99.30(a). Prior written consent is not required to release information to other school officials, including teachers, within the school district who the school district has determined to have a legitimate educational interest. 34 CFR § 99.31(a)(1)(A). In order to qualify as a school official, a “contractor, consultant, volunteer, or other party” must perform an institutional service or function for which the district would otherwise use employees, be under direct control of the district with respect to the use and maintenance of education records and be subject to other requirements regarding use and redisclosure of information from education records. 34 CFR § 99.31 (a)(1)(i)(B).
The district provided the student’s special education records to the second independent examiner without first obtaining the parent’s written consent. Given that an IEE is, by definition, an independent evaluation not conducted by an employee of the school district and that the examiner is not under the direct control of the district, the exceptions allowing disclosure without obtaining parental consent do not apply. A school district is required to pay for the cost of an IEE, but that requirement does not create the type of relationship contemplated by the exceptions between the district and the examiner. Within 60 days of the date of this decision the district shall revise its IEE policy to indicate written consent of the parent must be obtained prior to release of personally identifiable information to IEE examiners. The district shall provide the department a copy of the revised policy.
Whether the district properly conducted IEP team meetings including all required staff, provided the student’s parents meaningful opportunities to participate in the IEP team meetings, and properly documented decisions made by the IEP team.
A school district must ensure that the IEP team for each child with a disability includes the parents of the child, at least one regular education teacher of the child, and at least one special education teacher or special education provider of the child. The team must also include a representative of the public agency who is qualified to provide or supervise the provision of specially designed instruction, is knowledgeable about the general education curriculum, and is knowledgeable about the availability of the resources of the public agency. 34 CFR § 300.321. In developing a student’s IEP, the team must consider the concerns of the parents for enhancing the education of the student. 34 CFR § 300.324(a)(ii).
The parent described several instances when they believed the district did not include all required IEP team members in the student’s IEP team meetings. The special education teacher designated to attend the student’s December 18, 2023, IEP team meeting was unexpectedly admitted to the hospital the morning of the meeting. Prior to the meeting the district informed the parent that a different special education teacher would attend instead, which was reasonable under the circumstances. The parent was concerned that the principal, who was a required member of the March 8, 2024, IEP team meeting, left prior to its conclusion; however, evidence reviewed by the department shows the IEP team meeting had formally ended before the principal departed. Two school psychologists attended the May 7, 2024, IEP team meeting, and one of them left the meeting 30 minutes prior to its conclusion, however only one was required. The district’s attorney did not attend the May 7, 2024, IEP team meeting despite being listed as a participant on the invitation; however, their attendance was not required. In none of these instances was the IEP team meeting deprived of the required necessary members.
The evidence in this complaint indicates that at each IEP team meeting the parents were afforded the opportunity to provide their input regarding the student’s education and that their concerns were appropriately documented. The evidence further shows that the IEP team properly considered the parent’s input and properly documented all IEP team determinations. The parent’s belief that the IEP team reached decisions that were not the parent’s preferred outcome is not evidence that the IEP team did not give meaningful consideration to the parent’s input.
Whether the district properly provided the student’s parent prior written notice including providing a copy of the IEP prior to its implementation.
A student’s parents must be provided with a copy of the student’s IEP prior to the implementation of the IEP. 34 CFR § 300.503(a). The district acknowledges it provided the parent a copy of the December 18, 2023, IEP after its implementation. Evidence reviewed by the department shows copies of the March 8, 2024, May 7, 2024, and September 12, 2024, were provided to the parent prior to implementation. The district provided training to all staff regarding the requirement to provide a copy of the IEP prior to implementation. No further corrective action is required.
Whether the district properly implemented the student’s IEP regarding accommodations and specially designed instruction using properly licensed staff.
Each school board must ensure every teacher, aide, or other professional staff holds a valid certificate, license, or permit issued by the department for the position for which the individual is employed. Special education services must be provided by properly licensed special education teachers. 34 CFR § 300.156; Wis. Stats § 118.19; Wis. Admin. Code § PI 34.
During the student’s special education teacher’s maternity leave, accommodations and specially designed instruction were provided by a staff member holding a substitute teaching license. The district acknowledges the staff member was not properly licensed to provide specially designed instruction and will convene the student’s IEP team meeting within 30 days of the date of this decision to discuss whether the student requires any additional services as a result and will provide the department documentation of the results of the discussion within 10 days of the date of the meeting.
Whether the district properly responded to the parent’s request for the student’s special education records.
A school district must permit parents to inspect and review any education records related to their child at the request of the parent. The district must comply with the request without unnecessary delay and before any meeting regarding the student’s IEP. 34 CFR § 300.613(a).
The district received a pupil records request from the parent on January 24, 2024. The district emailed the records to the parent on January 26, 2024. On February 15, 2024, the parent emailed asking for the records and the district again sent the requested records. The district also provided a hard copy of the records for the parent to pick up on February 28, 2024. The student’s IEP team met on March 8, 2024. The district properly responded to the parent’s request for education records.
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