IDEA Complaint Decision 00-048

On June 23, 2000 (letter dated May 31, 2000), a complaint was filed with the Department of Public Instruction by XXXXX against the Merrill Area 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. In investigating this complaint, department staff reviewed correspondence from the school district and relevant pupil records from the school district. Department staff also had discussions with the parents, director of special education, school psychologist, early childhood teacher, speech and language therapist, and representatives from the birth-to-three program.

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ISSUE:

Did the district fail, as part of an initial evaluation of a child during the 1999-2000 school year, to use a variety of assessment tools and strategies and to consider information provided by the child's parents?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

In this subchapter:

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(5) (a) "Child with a disability" means a child who, by reason of any of the following, needs special education and related services:

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3. Speech or language impairments.

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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.

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

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(lm) 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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Section 115.782, Wisconsin Statutes
Evaluations.

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(2) CONDUCT OF EVALUATION. (a) In conducting the evaluation, the individualized education program team shall not use any single procedure as the sole criterion for determining whether a child is a child with a disability or for determining an appropriate educational program for the child. The individualized education program team shall do all of the following:
1. Use a variety of assessment tools and strategies to gather relevant functional and developmental information, including information provided by the child's parent, that may assist in determining whether the child is a child with a disability and the content of the child's individualized education program,

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(b) As part of an initial evaluation of a child and as part of any reevaluation of a child under sub. (4), the individualized education program team and other qualified professionals, as determined by the local educational agency, shall do all of the following:
1. Review existing evaluation data on the child, including evaluations and information provided by the child's parents, previous interventions and the effects of those interventions, current classroom-based assessments and observations, and observations by teachers and related services providers.
2. On the basis of that review and information provided by the child's parents, identify the additional data, if any, that are needed, and the qualifications of the evaluators that are needed, to determine all of the following:
a. Whether the child has a particular category of disability or, in case of a reevaluation of a child, whether the child continues to have such a disability.

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c. Whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services.

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(3) DETERMINATION OF ELIGIBILITY FOR SPECIAL EDUCATION. (a) Upon the completion of the administration of tests and other evaluation materials, the individualized education program team shall determine whether the child is a child with a disability.

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(b) If the individualized education program team determines that a child is a child with a disability, the team shall prepare an evaluation report that includes documentation of determination of eligibility.

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(c) If the individualized education program team determines that a child is not a child with a disability, the team shall prepare an evaluation report.

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34 CFR 300.535 Procedures for determining eligibility and placement.

(a) In interpreting evaluation data for the purpose of determining if a child is a child with a disability under 300.7, and the educational needs of the child, each public agency shall--
(1) Draw upon information from a variety of sources, including aptitude and achievement tests, parent input, teacher recommendations, physical condition, social or cultural background, and adaptive behavior; and
(2) Ensure that information obtained from all of these sources is documented and carefully considered.

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Wisconsin Administrative Code, Section 11.35
Eligibility Criteria.

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(2) HANDICAPPING CONDITION.

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(e) Speech and language handicaps. 1. Speech and language handicaps are characterized by a delay or deviance in the acquisition of prelinguistic skills, or receptive skills or expressive skills or both of oral communication. The handicapping condition does not include speech and language problems resulting from differences in paucity of or isolation from appropriate models.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

Learning Support/Equity and Advocacy Information Update Bulletin No. 99.01, Participation of Children with Disabilities in the Full-time Open Enrollment Program, s. 118.51, Wis. Stats.

1. What criteria may a nonresident school district use to determine whether to accept a child with a disability under the full-time open enrollment statute?

The nonresident school district may consider the criteria applied to all children and the following additional criteria when accepting and rejecting applications for children with disabilities:

  • whether the special education and related services in the child's individualized education program (IEP) are available in the nonresident district;
  • whether there is space available in the special education program identified in the child's IEP (including class size limits, pupil-teacher ratios or enrollment projections of the nonresident district); and
  • whether the child has been referred to the resident district for an IEP team evaluation but not yet evaluated.

FINDINGS OF FACT:

The child whose education is the subject of this complaint was referred for an initial speech and language evaluation by the Birth to 3 program to the Merrill Area Public Schools on January 19, 2000, for concerns in the areas of auditory processing, expressive language, use of language with peers, and initiating speech in play. The child had been receiving speech therapy from the Birth to 3 program. On January 19, 2000, the parents and Birth to 3 representatives provided input for determining whether additional tests or evaluation materials were needed. On January 21, 2000, the district sent the parents a notice of an initial evaluation and consent for conducting additional tests in the areas of speech/language and social development. On January 25, 2000, the parents gave the district permission to administer additional tests or other evaluation materials.

On February 17, 2000, the parents filed an application for public school open enrollment for the 2000-2001 school year with the Wausau Public Schools. On the application form, the parents checked the box that their child had been referred for a special education evaluation that had not been completed. The parent raised a concern that the non-resident school district had rejected their son for public school open enrollment at the end of March, before the resident school district had completed his evaluation. The department's "Update Bulletin," number 99.01, lists additional criteria for accepting or rejecting open enrollment applications for children with disabilities. One of the criteria is whether the child has been referred to the resident district for an IEP team evaluation but not yet evaluated. On February 29, 2000, the parent sent a letter to the director of special education for the Wausau Public Schools. The letter explains the parent's hope of enrolling her child into the Wausau early childhood program, since she works in Wausau and her son attends a child care facility in Wausau, although the parent resides in the Merrill School District. The parent's letter further mentions that if her son is not accepted in the Wausau early childhood program, he will not be able to attend the Merrill School District's early childhood program, as the Merrill School District will not bus him to the parent's child care facility in Wausau.

On March 16, 2000, the district sent the parents an invitation to an IEP team meeting scheduled for April 5, 2000. On April 5, 2000, an IEP team meeting was held to determine the child's initial eligibility for the impairment of speech and language and the need for special education. The child's parent participated in the IEP team meeting, along with representatives of the Birth to 3 program. The IEP team's evaluation report, under the heading "Information from Review of Existing Data," documents that the district considered information from the Birth to 3 service providers and the parents. Under the sub-heading "Summary of previous evaluations," the Birth to 3 input regarding the complainants' child is documented as follows:

0-3 Progress notes: Increased expressive language noted with MLU (mean length of utterance) of 2.12 with increased intelligibility. (Child's name) was noted to initiate conversation with peer for first time while clinician present in Jan. 2000. Using 3-4 word phrases consistently. 0-3 Speech Re-evaluation 3-28-00: Delays in the areas of expressive and receptive language and play skills. Rossetti Infant-Toddler Language Scale: Language Comprehension: 24-27 month age level with emerging skills to 33-36 month level. Language Expression: 21-24 month level with skills emerging into the 33-36 month level. Play skills: 18-21 month level with skills emerging into the 27-30 month level.

Under the sub-heading "Information provided by parents", it is documented that:

History of chronic ear infections with tubes in both ears at one time. Hearing evaluation prior to Christmas fell within normal limits. Mother is hoping to have (child's name) served in the Wausau District if needs continue in order to maintain current child care. Report from Dr. LaMont indicated a request that an IEP for (child's name) be developed due to speech delay. (Child's name) will undergo testing for possible auditory processing deficit when he turns age four.

Under the sub-heading "Current classroom-based assessments and observations" regarding the complainants' child, it is documented that:

¿He often used speech to describe what he was doing such as "I washing the circle." Speech was generally imitative of something expressed by someone else or descriptive of what was happening. He displayed some misarticulations, but was understood by the observers. No interactive speech was initiated by (child) with peers. He followed simple directions in the classroom and followed routines with verbal commands and visual cues by the other children.

The IEP team's evaluation report under the heading "Information from Additional Tests and Other Evaluation Materials" documents the results from the district's formal assessments and other evaluation materials for the child. The district's formal assessments included the Preschool Language Scale and the Peabody Picture Vocabulary Test. The results show the following:

Auditory Comprehension and Expressive Communication fell within the average range and suggested that (child) has adequate ability to understand the concepts in the language (child) hears around him, and to use language to express his own wants, needs and relate personal experiences. Receptive vocabulary also fell within normal limits. These scores indicate that (child's) understanding of a variety of words falls within the average range when compared with other children of his same age. It was noted that in informal observation, (child) imitated or varied the language he heard adults use, but did not often use spontaneous language.

These formal tests and other evaluation materials, including observations, addressed the concerns raised in the child's special education referral regarding auditory processing, expressive language, use of language with peers, and initiating speech in play.

The IEP team's evaluation report under the heading "Determination of Eligibility for Special Education" documents that the complainants' child does not meet the criteria for speech and language impairment. In documenting the reasons for not meeting the eligibility criteria for speech and language impairment, the IEP team evaluation report reads:

Speech/language impairment was considered, but rejected, as (child's name) language skills appear to be typically developing and functional for everyday language use. (Child's) testing results fell within normal limits at this time.

On April 5, 2000, the district sent the parents a notice of IEP team findings that the complainants' child is not a child with a disability.

CONCLUSION:

A school district must appoint an IEP team when a child is referred for an initial special education evaluation. The parent is a participant on the IEP team. The IEP team is required to evaluate or reevaluate the child to determine the child's eligibility for special education and related services and the special education needs of the child. A child may be identified with a speech and language impairment when the impairments are characterized by a delay or deviance in the acquisition of prelinguistic skills, or receptive skills or expressive skills or both of oral communication. In conducting the evaluation, the IEP team must use a variety of assessments and strategies to gather relevant functional and developmental information, including information provided by the child's parent.

The complaint deals with the allegation that the district failed as part of the child's initial evaluation to use a variety of assessment tools and strategies and to consider information provided by the child's parents during an April 5, 2000, IEP team evaluation of the complainants' child. The IEP team evaluation report documents that the district used a variety of assessments and strategies and considered information provided by the child's parents. The complaint is not substantiated.

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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 MJT
12/4/00
_________________________________________
Mike J. Thompson, Assistant Superintendent
Division for Learning Support: Equity and Advocacy

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