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IDEA Complaint Decision 17-023

On April 14, 2017, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX against the School District of New Berlin. This is the department’s decision regarding the complaint. The issue is whether the district, during the 2016-17 school year, properly conducted a comprehensive special education evaluation.

Before an individualized education program (IEP) team can determine a student has a specific learning disability (SLD), it must document that the student demonstrates inadequate achievement and insufficient progress in one or more of the following areas: oral expression, listening comprehension, written expression, basic reading skill, reading fluency skills, reading comprehension, mathematics calculation, and mathematics problem solving. A timeline extension specific to initial SLD evaluations may be granted. The decision to extend the timeline and the date when the evaluation will be completed must be made by written agreement of the IEP team, including the parent.

On April 28, 2016, the parent referred the student for a special education evaluation due to ongoing academic issues including concerns about the student’s reading skills. The student received academic help throughout grade school and middle school including English and writing support, guided study, and extended learning opportunities in the summer. The parent was notified of the receipt of the referral and start of an initial evaluation to determine if the student has a specific learning disability. On May 11, 2016, a review of existing data was conducted by the IEP team to determine if additional assessments or evaluation data were needed. The review included information about the student’s reading achievement, math achievement and academic achievement in other areas such as science and social studies. The district requested consent to conduct additional assessments and observations in the areas of “academic functioning” and “academic achievement.” That same day, the parent gave permission for the district to administer assessments. On May 19 the district requested to extend the time limit to complete the evaluation on the student suspected of having a specific learning disability stating, “Weekly progress monitoring data from two intensive intervention[s] is needed to make an eligibility decision.” The parent expressed concern about the amount of time it was taking to complete the evaluation and that the evaluation only included reading. An addendum was added to the original referral on May 20, 2016, stating the student needs help attending to assignments, self-advocating and help with math, specifically mathematical equations, and with science and social studies. In a May 24 e-mail to the parent, the district acknowledged the need to create a plan to provide interventions simultaneously in reading and math as part of the SLD evaluation. On June 2, district staff met with the parent to discuss the evaluation timeline extension and to develop a plan to conduct intensive interventions in reading and math. The district recalls they suggested placing the student in a math intervention class so the intensive interventions could be provided; however, they believed the parent did not want the student’s schedule changed to accommodate the evaluation, and further, that math was no longer an area of concern. According to the parent, however, it was not clear that an intervention class was necessary for the student to receive intensive math interventions in order to be evaluated for SLD in the area of math. The parent agreed to extend the time limit to December 31, 2016.

On December 20, 2016, the district requested an extension to complete the SLD evaluation by April 15, 2017, stating, “First round of intensive intervention was completed on 12/16/16. The second of two required interventions was started on 12/1/9/16 and is expected to be completed by March 31, 2017.” Holding the evaluation meeting in December was discussed and rejected as there would be insufficient data to make an eligibility decision. The parent signed the extension.

On April 10, 2017, an IEP team meeting was held to determine initial eligibility for special education. Information from the review of existing data included assessment data for math, reading, and language usage; current classroom-based observations in English, Engineering, Science, and Geometry; information about reading interventions and the effects of those interventions; and information provided by the parent. Information from additional testing included letter and word recognition, decoding, fluency, and reading comprehension; progress monitoring of Scientific Research-Based Interventions (SRBIs) in reading comprehension from September 2016 through January 2017 and reading fluency from September 2016 to March 2017. The IEP team determined after SRBIs in reading, the student achieved adequate classroom achievement and made sufficient progress to meet grade-level reading comprehension standards. Due to inconsistencies in performance where the student sometimes exhibited grade-level performance and at other times well below grade-level performance, the student did not demonstrate sufficient progress to meet grade-level reading fluency standards; however the student did achieve adequate classroom achievement in reading fluency. Since the student did not demonstrate both inadequate achievement and insufficient progress in reading fluency or reading comprehension, the IEP team determined the student did not meet the eligibility criteria for SLD. No other impairments were identified and the student did not qualify for special education. The parent disagreed with the conclusion and filed a complaint with the department expressing concerns that the district had not considered math as an area of concern during the evaluation for SLD.

All evaluations of public school students to determine initial SLD eligibility must be based, in part, on an analysis of student progress data collected during at least two intensive, scientific-research or evidence-based interventions in each area of SLD concern. Wisconsin’s SLD rule requires SRBIs be implemented with adequate fidelity. The intervention should be implemented as intended and for a long enough period so it can be determined if the intervention is effective in accelerating student progress. The IEP team may request an extension to allow for the completion of required SRBIs and collection of progress monitoring data. Neither state nor federal law limits the amount of time for which an evaluation may be extended. If the parent does not agree to an extension, the IEP team must meet and complete the evaluation using the data collected to date. If the IEP team does not have sufficient data to determine whether the student meets the SLD criteria, it may find the student not eligible. In this case, the district needed additional time to implement SRBIs with fidelity and collect progress monitoring data. On May 19 and December 20, 2016, the district requested extensions to allow for the completion of required SRBIs and collection of progress monitoring data. On June 2 and December 22, the district received consent from the parent to extend the time limit to complete the evaluation of a student suspected of having a specific learning disability.

A student must be found to have insufficient progress and inadequate classroom achievement in at least one of the eight areas of SLD concern in order to be found eligible as a student with SLD. Following the existing data review, the district must notify the parent of any test or other evaluation materials it proposes to administer. If the specific assessment tools are known, the tools should be listed along with a brief description. In this case, it was not clear from the existing data review or from the Notice and Consent Regarding Need to Conduct Additional Assessments which of the eight areas of SLD concern were being evaluated. The notice included the specific assessment tool that would be used; however, this particular tool could be used to assess reading, writing, language and mathematics. It was not clear from the description “academic achievement” provided in the notice that the evaluation was limited to an assessment of reading achievement. The parent repeatedly expressed concerns about the student’s math achievement throughout the evaluation process. The district acknowledged the concern and met with the parent to develop a plan to simultaneously evaluate reading and math. The plan included changing the student’s schedule of courses to accommodate the evaluation, but the parent did not agree to the change. It was not clear to the parent at the end of the meeting however that the evaluation plan was to continue to focus only on reading. No written summary of the meeting or documentation regarding the scope of the evaluation was provided to the parent following the meeting. Because of the parent’s ongoing concerns about the student’s math achievement, the district should have evaluated the student’s math achievement. The district did not properly evaluate the student in all areas of concern.

In an e-mail to the parent dated June 6, 2016, the district offered to conduct an SLD evaluation of the student in the additional area of concern. The district also offered to discuss compensatory services in math, if the student is found eligible for special education. Within 15 days of this complaint, the district must provide documentation to the department of the notice of reevaluation of the student. Documentation of the reevaluation should be sent to Anita Castro at the Department of Public Instruction, 402 Graham Avenue, Eau Claire, Wisconsin 54701.

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.

//signed 6/13/17 by PMW
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support


For questions about this information, contact Margaret Resan (608) 267-9158