On September 8, 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 issues in the complaint, beginning September 9, 2023, are described below.
Whether the district properly identified who was authorized to make special education decisions for a student with a disability.
The student who is the subject of this complaint was placed in foster care on February 8, 2023, and remained in the foster parent’s home during the entire 2023-24 school year. Based on an interview with the county social worker who case-manages the student, the complainant, who is the student’s biological parent, retained parental legal rights, including educational decision-making authority. The district acknowledges that staff presumed the foster parent was authorized to make educational decisions for the student and did not communicate with the student’s biological parent. The district did not properly identify who was authorized to make special education decisions for a student with a disability.
Whether the district improperly changed the special education placement of the student.
At the beginning of the 2023-24 school year, the student’s attendance school changed because the foster home was located in a different attendance area within the district. The student’s individualized education program (IEP) was implemented in the new school, and no placement changes were made. The district did not improperly change the student’s placement.
Whether the district properly conducted a reevaluation of the student.
The purpose of a special education reevaluation is to determine whether a student continues to have a disability requiring specially designed instruction, and to ensure the student’s IEP team has sufficient current information about the student’s educational needs to develop an appropriate program. 34 CFR § 300.301(c)(2). A district must conduct a reevaluation of each student with a disability at least once every three years unless the district and parent agree that a reevaluation is unnecessary. As part of any special education reevaluation, the IEP team, including the student’s parents, must conduct a review of existing data and information about the student. If the IEP team determines additional information is needed, the district must, within 15 business days of a notice initiating an evaluation, request in writing parental consent for additional testing. The IEP team must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child and may not use any single measure or assessment as the sole criterion for determining whether a student is, or continues to be, a student with a disability and for determining an appropriate educational program for the child. Within 60 days after the district receives parental consent for administering tests or other assessments, the IEP team must meet to determine whether the student is eligible to receive special education. 34 CFR §§ 300.303-311 and Wis. Stat. § 115.787 and 115.78(3).
On October 5, 2023, the case manager sent the parent a notice of re-evaluation, and on October 6, 2023, the IEP team, including the parent, met virtually to review the existing data. At this meeting, the IEP team agreed to conduct additional assessments. The case manager sent a notice and consent regarding the need to conduct additional assessments to the parent the same day of the meeting. On October 23, 2023, the parent signed consent for the IEP team to administer additional assessments.
On January 11, 2024, the IEP team, including the parent, met to discuss the re-evaluation. This meeting was not held timely as the 60-day timeline to conduct the evaluation ended on December 22, 2023. Documents submitted by the district show that the IEP team improperly completed the Required Documentation for Specific Learning Disability - Re-Evaluation Form. The IEP team determined that the student met the criteria for a specific learning disability as a secondary disability category and met the criteria for emotional behavioral disability as the student’s primary disability. When considering the criteria for a specific learning disability, if the IEP determines that another impairment is the primary reason for the student’s delays, the team cannot find that the student has a specific learning disability. PI 11.36(6).(d.)1.a. The IEP team did not properly conduct a reevaluation of the student.
Whether the district properly provided the student’s parent a copy of their IEP prior to its implementation.
Following a change to a student's IEP, district staff may provide proper prior written notice by providing parents a copy of the finalized IEP and placement page before implementing the changes. The provision of a draft IEP does not provide adequate prior written notice.
On February 21, 2024, the IEP team met for the annual IEP meeting. During this time, the IEP team member serving as the Local Education Agency Representative was unable to attend the entire meeting. The IEP team agreed to reschedule and continue the meeting at a later date. On March 14, 2024, the IEP team met and completed the annual IEP meeting. The district did not provide the parent with a final copy of the IEP, or a placement notice prior to the implementation. On March 20, 2024, the student was involved in a behavioral incident and the IEP team reconvened on April 12, 2024 to discuss the incident and update the student’s IEP. On April 22, 2024, the case manager emailed the parent a copy of the IEP that included the changes made at the annual meeting and the revisions made at the April 12, 2024, IEP meeting. The district did not properly provide the student’s parent a copy of the IEP prior to its implementation.
Whether the district properly followed special education disciplinary procedures.
After a student has been subjected to 10 days of disciplinary removal in a school year, during subsequent removals, the district must provide each student services to the extent necessary to enable them 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).
The complainant raised several concerns about discipline issues that occurred prior to September 9, 2023, outside the time period covered by this investigation. The district provided a report which showed the student received 2 one-day suspensions during the 2023-24 school year. School staff addressed other documented behavior incidents during the 2023-24 school year according to the student's behavior intervention plan. The district did not improperly follow special education disciplinary procedures as the removals did not exceed 10 days.
Within 30 days of the date of this decision, the district must initiate a reevaluation of the student to properly determine the student’s special education eligibility and educational needs. Within 10 days of the IEP meeting held, the district is directed to send to the department a copy of the evaluation and IEP.
In addition, within 30 days of the date of this decision, the district must review and, if necessary, revise district policies and internal system to ensure that staff are able to make appropriate determinations about which individuals are authorized to make special education decisions for students with disabilities. Additionally, the district is directed to develop a corrective action plan to ensure special education evaluations are conducted correctly and the district provides the parent a copy of the finalized IEP before implementing the IEP. The district must submit a copy of this plan for department approval within 45 days of the date of this decision.
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