IDEA Complaint Decision 00-024

On May 4, 2000 (letter dated May 1, 2000) a complaint was filed with the Department of Public Instruction by XXXXX against the Sun Prairie School District. 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. In investigating this complaint, department staff reviewed relevant portions of the youth's pupil records and the district's special education referral and CARE Team procedures. Staff also reviewed written statements from each of the following: the complainant, the youth's school guidance counselor, the high school principal, the assistant principal, the school psychologist, and the director of pupil services. Department staff interviewed the school guidance counselor, the high school CARE Team coordinator, and the director of pupil services.

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ISSUE #1:

the district fail to refer the child for a special education evaluation in a timely manner when the high school guidance counselor had reason to believe he was a child with a disability?

ISSUE #2:

the district fail to initiate an evaluation of the child in response to the complainant's written request for a special education evaluation on February 7, 2000?

ISSUE #3:

the district fail to provide the complainant with proper written notice of its refusal to initiate an evaluation of the child in response to the complainant's February 7, 2000, request for an evaluation?

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.

(1) * * * (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.

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(3) A local educational agency shall do all of the following:
(a) Establish written procedures for accepting and processing referrals.
(b) Document and date the receipt of each referral.
(c) Provide information and in-service opportunities to all of its licensed staff to familiarize them with the agency's referral procedures.
(d) At least annually, inform parents and persons required to make referrals under sub. (1) (a) about the agency's referral and evaluation procedures.

Section 115.78, Wisconsin Statutes
Individualized education program team; timeline.

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(1m) APPOINTMENT OF TEAM. The local educational agency shall appoint an individualized education program team for each child referred to it under 115.777.

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(2) DUTIES OF TEAM. The individualized education program team shall do all of the following:
(a) Evaluate the child under 115.782 to determine the child's eligibility or continued eligibility for special education and related services and the educational needs of the child.

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(3) TIMELINE. (a) The local educational agency shall notify the parents of the educational placement of their child within 90 days after the local educational agency receives a special education referral for the child under 115.777 or initiates a reevaluation of the child under 115.782 (4).
(b) Before the expiration of the 90-day period, if a local educational agency needs an extension, it shall inform the child's parent of the need and reasons for an extension and request the child's parent to agree in writing to a specific extension of time beyond the 90-day period.
(c) If the parent does not agree to an extension, the local educational agency may request an extension from the division. The local educational agency shall inform the division of the reasons for the request. The division may grant a specific extension of time beyond the 90-day period if the local educational agency shows that it has acted in good faith and that there is good cause to grant the extension. If the division grants an extension, it shall notify the parent of the extension and the reasons for granting it.

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FINDINGS OF FACT:

The youth whose education is the subject of this complaint is a 17-year-old student in the Sun Prairie School District. He was determined eligible for special education services on April 25, 2000, by an individualized education program (IEP) team.

The complainant alleges that the school failed to insure that the youth's guidance counselor referred the youth for a special education evaluation when she believed the youth to have a disability. The guidance counselor is employed by the school district and is required to be licensed under 115.28 (7), Wis. Stats.

The youth entered Sun Prairie High School as a freshman at the beginning of the 1997-1998 school year. The parent informed the guidance counselor that the youth had been diagnosed with attention deficit disorder (ADD), and that he was not taking any medication for the condition. The youth was enrolled in "Seminar 9" in addition to other classes. Seminar 9 offers additional support for at-risk youth. The youth passed all of his classes and with grades ranging from A to D. In his sophomore year, the youth passed all his classes with grades ranging from B to D. The district reported no significant discipline problems occurred during his freshman and sophomore years. In her written statement to the department, the guidance counselor states that she did not believe that the youth to be a child with a disability. She states:

A review of his cumulative school record did not point to a disability in my judgement¿(Youth's) school performance did not vary significantly during the first four semesters of high school¿(Youth)¿succeeded in passing all but 1 of his 31 classes in five semesters of high school. He was never considered credit-deficient and remained on schedule to graduate. In fact, before (youth's) junior year (1999-2000 school year) I met with youth and his mother to develop a plan for him to graduate early. During the six semesters (youth) has been in high school, not one of this teachers has ever suggested to me that they suspected a disability.

In November 1999, the youth was arrested for a drug offense. The youth began cutting classes and failed to hand in required work. The youth received failing grades in two of six subjects for the first quarter. For the second quarter, the youth received failing grades in three of six subjects. In November 1999, the youth's mother shared information about the child's drug use and recently diagnosed depression with the guidance counselor. After the youth's mother shared the information, the guidance counselor conferred with the school social worker, who is also the "CARE Team" coordinator. The CARE Team, which meets regularly, is a building-based team consisting of a coordinator, building administrator, and pupil services staff. Its function is to assist students in achieving academic success and reducing school failure by determining students' needs and responses to them.

After consulting with the CARE Team coordinator, the guidance counselor believed that the behaviors exhibited by the youth were "exclusionary factors" that needed to be addressed before the district would conduct a special education evaluation of the child. In an interview with department staff, the guidance counselor stated that she believed the district required documentation of previous interventions by school staff before evaluating a child for special education. She was not aware of her individual duty under the statutes to refer a child she reasonably believes to be a child with a disability. She did not know the district's criteria for her to initiate a special education referral. She believed the CARE Team had to initiate a special education referral.

Generally, a student's problems are considered by the CARE Team prior to a special education evaluation. The district's written procedures for accepting and processing referrals do not refer to the CARE Team. The procedures state "The district solicits and receives referrals of students with suspected exceptional educational needs from all persons who have reasonable cause to believe that such needs exist." In an interview with department staff, the district's director of pupil services acknowledged that there is some confusion among licensed staff with regard to special education referral procedures. The school district was unable to provide evidence of when it most recently provided information and in-service opportunities to familiarize staff with its special education referral procedures. Such information and in-service opportunities have not been made available for at least the last three years. During the investigation of this complaint, the district conferred with the department about clarifying its referral procedures and informing staff.

In February 2000, the parent obtained a chemical dependency assessment for the youth through a drug treatment program. After being advised to do so by a counselor at the treatment program, the complainant submitted a letter to the district referring her son for a special education evaluation on February 7, 2000. This letter states "While continuing with the semester we ask that (youth) be professionally evaluated for other learning disabilities he might have in addition to Attention Deficit Disorder." On February 9, the parent, the youth, the school psychologist, and the guidance counselor met to discuss the parent's request. In a written statement to the department, the school psychologist states:

¿the plan was that (guidance counselor) collect some information verifying that "exclusionary factors" would not invalidate the accuracy of the test results, or disqualify (youth) from receiving LD (learning disability) services. Once that proof was in hand, pupil services staff would hold a building team (CARE Team) meeting, and complete a special education evaluation in the spring of 2000.

In his written statement to the department, the school psychologist states that the CARE Team coordinator advised them to postpone the CARE Team meeting "¿until (parent) could provide written documentation that `exclusionary factors,' including (1) absence from school, (2) self-medication using marijuana, and (3) avoidance of prescribed medication would not introduce error into the test results." The school psychologist states that this action was taken to improve the youth's chances of qualifying for special education services. District staff apparently believed that the parent agreed with the plan, and they expected to receive the requested information within a relatively short time.

The school staff did not receive the information from the parent. No CARE Team meeting was conducted to consider the youth's needs. On March 14, 2000, the assistant principal contacted the parent about home instruction for the youth. At that time, the parent inquired about the status of the youth's evaluation. The assistant principal was unaware of the evaluation request, but offered to pursue the issue. According to the assistant principal, the parent declined to have the assistant principal to become involved.

On March 28, 2000, the parent and an advocate met with the school principal. In a written statement to the department, the principal states that he decided to proceed with a special education evaluation without a CARE Team meeting. The school psychologist completed the district's referral form, which indicates that he notified the parent by telephone on March 30, 2000. The referral form does not include the date that the school psychologist completed it. The referral form states that the district received the special education referral for the youth on February 7, 2000, the date the district received the parent's request for a special education evaluation.

In a notice dated April 14, 2000, the district notified the parent of the February 7, 2000, special education referral and the appointment of an IEP team to evaluate the youth. At an April 25, 2000, meeting, the IEP team determined that the youth is eligible for special education services because of a learning disability and an emotional disturbance. The team developed an IEP, and the parent was provided with a notice of a proposed placement on April 30, 2000.

 

CONCLUSION:

A local educational agency (LEA) is required to provide a free appropriate public education to a child with a disability. An LEA meets its obligation, in part, by identifying all children in the district who need special education services. Any person who reasonably believes that a child is a child with disability, including the child's parent, may submit a referral to a school board. Those with an individual duty to refer a child believed to have a disability include a person required to be certified or licensed under 115.28(7), Wis. Stats, who is employed by the public school district that the child attends. A school guidance counselor is required to be licensed under the statute. In order to enable school personnel to carry out their statutory duty to refer, a local educational agency must ensure its staff are aware of that duty and referral procedures, including behavioral characteristics that may indicate a child is a child with a disability. Therefore, state law requires an LEA to provide information and in-service opportunities to all of its licensed staff to familiarize them with the agency's referral procedures.

The school guidance counselor did not believe the youth to be a child with a disability. Therefore, she did not initiate the district's process that would lead to a special education evaluation of the youth. The school guidance counselor was not aware of her individual duty to refer a child who she reasonably believed to be a child with a disability for a special education evaluation. She did not know the district's criteria for initiating a special education referral. She believed the CARE Team had to initiate a special education referral. She believed that certain "exclusionary factors" had to be resolved before such a referral could be made. The school district acknowledges some confusion among licensed staff regarding CARE Team and special education referral procedures. The school district could not provide evidence of when it most recently provided information and in-service opportunities to familiarize staff with these procedures. Such information and in-service opportunities have not been provided for at least three years. In this respect, there is a violation with regard to issue #1. The district has already conferred with the department about clarifying its referral procedures and informing staff.

When an LEA receives a referral for a child, it must appoint an IEP team to evaluate the child. The IEP team must complete its evaluation, develop an IEP for the child, and notify the parent of the child's placement within 90 days of receipt of the referral, unless the parent agrees to an extension or the department grants one. A referral must be in writing and state the reasons why the person believes the child is a child with a disability. A referral does not have to be made on an LEA's referral form.

On February 7, 2000, the youth's parent submitted a letter referring the youth for a special education evaluation. Upon receiving the referral, school staff met with the parent and requested the parent to provide the school with information prior to the CARE Team. The school did not receive the requested information and did not conduct a CARE Team meeting. At the end of March, the school principal intervened at the request of the parent to direct the CARE Team coordinator and the school psychologist to proceed with a special education evaluation without a CARE Team meeting. The school district acknowledged the parent's February 7 referral, appointed an IEP team to conduct an evaluation, and completed the IEP team process within the 90 days prescribed by state law. Therefore, there is no violation with regard to issue #2. Because the district did not refuse to conduct an evaluation in response to the parent's referral, the district was not required to notify the parent of its refusal. There is no violation with regard to issue #3.

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DIRECTIVE:

The Sun Prairie School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that it provides information and in-service opportunities to all of its licensed staff to familiarize them with the agency's special education referral procedures.

The CAP shall include the activities the district will undertake to implement the directives, the personnel responsible for each activity, the date by which each activity will be completed, and the type of documentation that will be submitted to the department as evidence of completion of each activity. If a CAP requires the district to develop one or more products, the district may submit the product(s) as part of the corrective action plan. The CAP will be reviewed and the district will be informed if any revisions are required. The district will implement the CAP after it has been approved by the department.

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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/SJP
7/3/00
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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