IDEA Complaint Decision 00-007

On February 22, 2000 (letter dated the same), a complaint was filed with the Department of Public Instruction by XXXXX against Milwaukee Public Schools. This complaint alleges a violation of special education law regarding the implementation of programs for children with disabilities.

Pursuant to 34 CFR 300.660-662 of the regulations implementing the Individuals with Disabilities Education Act (IDEA) and 115.762(3)(g) and 115.90(1), Wis. Stats., the Department of Public Instruction investigated this complaint. In investigating a complaint, the department reviews a district's compliance with state and federal requirements. During this investigation, department staff reviewed relevant education records of the child and materials submitted by the district in response to the complaint. Department staff spoke with the complainant, the school psychologist/building coordinator, a regular education teacher, and the school social worker.

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ISSUE:

the district fail to refer the child for a special education evaluation in a timely manner when district staff had reason to believe he is a child with a disability?

APPLICABLE STATUTES AND RULES:

Section 115.77, Wisconsin Statutes
Local educational agency duties.

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(1m) A local educational agency shall demonstrate to the satisfaction of the division that it does all of the following:
(a) Identifies, locates and evaluates all children with disabilities who are in need of special education and related services, including such children who are not yet 3 years of age. * * *
(b) Makes available a free appropriate public education to children with disabilities as required by this subchapter and applicable state and federal law.

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Section 115.777, Wisconsin Statutes
Special education referrals.

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(b) A person who is required to be licensed under 115.28 (7), who is employed by a local educational agency and who reasonably believes a child has a disability, shall refer the child to the local educational agency. If the local educational agency to whom the referral is made is the school district that the child is attending but the child is a nonresident attending a public school in that school district under 118.51, the school board of the school district that the child is attending shall provide the name of the child and related information to the school board of the child's school district of residence.
(c) Any person other than those specified under par. (a) or (b) who reasonably believes that a child is a child with a disability may refer the child to a local educational agency. If the local educational agency to whom the referral is made is the school district in which the child resides but the child is attending a public school in a nonresident school district under 118.51, the school board of the school district in which the child resides shall provide the name of the child and related information to the school board of the school district that the child is attending.
(2) (a) All referrals shall be in writing and shall include the name of the child and the reasons why the person believes that the child is a child with a disability.
(b) Before submitting a referral to a local educational agency under sub. (1) (a) or (b), a person required to make a referral under sub. (1) (a) or (b) shall inform the child's parent that he or she is going to submit the referral.

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FINDINGS OF FACT:

This complaint concerns the education of a 12-year-old 6th-grader in the Milwaukee Public Schools. The child was diagnosed with attention deficit hyperactivity disorder (ADHD) at age 4-1/2 and takes medication to treat the disorder.

The complainant alleges that the district evaluated the child's twin brother, who also has ADHD and receives poor grades at the same school, and determined in January 2000 that he is eligible for special education services but has failed to refer this child for a special education evaluation.

Thus far during the current school year, the child is receiving failing grades in most core academic classes. On his most recent report card, the child's teachers indicated that he fails to complete coursework and needs to improve his classroom behavior. He was suspended from school for two days in December 1999. At the time the complaint was filed, the child had been truant for six days.

District staff informed the department that these circumstances did not cause them to believe that he was a child with a disability, requiring a referral for a special education evaluation. District staff had taken steps to address the child's academic and behavior problems, including: contacting the child's guardian; changing the child's seating location to reduce distractions; allowing the child additional time to complete assignments; guidance counseling; and other instructional and administrative measures. District staff stated that the child's twin brother exhibits far greater behavioral and academic problems and that the child's guardian did not express serious concerns about the child similar to those she shared about the twin brother. When the child's guardian referred the twin brother for a special education evaluation in October 1999, the guardian did not request that the child be evaluated, as well.

In the district's response to the complaint, the district stated that the complainant, a parent advocate, requested that the district evaluate the child during a telephone call with a district diagnostic teacher on February 9, 2000. According to the district, when the diagnostic teacher asked to speak to the guardian, who was present with the complainant, the complainant hung up the telephone. The district stated that the diagnostic teacher did not contact the guardian regarding the complainant's request for an evaluation.

After the complaint was filed, district staff contacted the child's guardian on March 14, 2000. On that date, the guardian requested that the child be referred for a special education evaluation. In response to the guardian's request, the district referred the child for an initial evaluation on March 15, 2000, and provided written notice of the referral to the guardian.

CONCLUSION:

A local educational agency (LEA) is required to provide a free appropriate public education to a child with a disability. A LEA meets its obligation, in part, by identifying all children in the district who need special education services. The identification process includes screening, referral and evaluation procedures. Any person who has reasonable cause to believe that a child is a child with disability may submit a referral to a school board. Those with a mandatory duty to refer a child believed to have a disability include a person who is required to be certified or licensed under 115.28 (7), who is employed by the public school district that the child attends. A referral must be in writing and state the reasons why the person believes that the child is a child with a disability. If a parent requests an evaluation for a suspected disability, a district must inform a parent of his or her right to make a referral and inform them about how to make the referral.

During the current school year, the child has experienced academic and behavioral problems at school. The district has implemented strategies to address the child's needs. The child's guardian did not refer the child for an evaluation in October 1999 when she referred the twin brother. District staff stated that the child's twin brother exhibits far greater behavioral and academic problems than the child. District staff did not have reasonable cause to believe that the child had a disability and, therefore, did not refer him for an evaluation. According to the district, the complainant requested that the district evaluate the child during a telephone call with a district diagnostic teacher on February 9, 2000. The district stated that it did not contact the guardian about the request. The district should have informed the guardian or her advocate about the right to refer and how to make a referral. However, in response to the guardian's March 14 request, the district referred the child for an evaluation on March 15, 2000. The district is currently working on the child's evaluation, and the 90-day statutory timeline (calculating from February 9, 2000) has not expired. Based upon these facts, the complaint is not substantiated. The district should complete the child's evaluation by May 9, 2000, unless a proper extension has been obtained from the guardian or the department.

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This concludes our investigation of this complaint, and we are closing this complaint investigation. This letter is not intended, and should not be construed, to cover any other issues regarding compliance with the IDEA or Chapter 115, Wisconsin Statutes, which may exist and which are not specifically discussed herein. Under the Wisconsin public records law, 19.31-19.39, Wisconsin Statutes, it may be necessary to release this document and related correspondence and records upon request.

signed JSP
4/20/00
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Juanita S. Pawlisch, Ph.D., Assistant Superintendent
Division for Learning Support: Equity and Advocacy

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For questions about this information, contact Patricia Williams (608) 267-3720