IDEA Complaint Decision 01-080

On November 5 and 26, and December 4, 2001, the Department of Public Instruction acknowledged receipt of a special education complaint filed by XXXXX against the Appleton Area School District. This is the department's decision regarding that complaint. The issues are identified separately and addressed below.

  • During the period October 25, 1998, to October 24, 2001, the district failed to include in the individualized education program (IEP) of a child with a disability proper statements of the child's present levels of performance, annual goals, and short-term objectives, and the amount of special education and related services, supplementary aids and services and program modification and supports for school personnel to be provided to the child.

Based on its self-assessment of these issues, the district, in its response to the complaint, acknowledges that IEPs developed during this period prior to October 2001 did not meet applicable requirements for these IEP elements in all instances. The district will be addressing several of these requirements in conjunction with corrective actions associated with the department's onsite compliance review conducted in May 2002 and has agreed to address the remaining items at the same time to ensure that corrections are made on a district-wide basis. On October 4, 23, and 30, 2001, IEP teams met to review the child's IEP. These meetings were held in response to parent concerns raised in letters to the district dated May 20 and August 28, 2001. The district maintains that the IEP developed during these meetings meets requirements related to this issue of the complaint. The department has reviewed the October 2001 IEP for each element of this issue. As noted more fully below, the present levels, annual goals and short-term objectives in this IEP meet the requirements of the law. Further, the amount of special education and related services, supplementary aids and services and program modifications and supports for school personnel are stated in a manner consistent with legal requirements. The district is not required to take additional child-specific corrective action for this issue.

The present levels of educational performance in the October 2001 IEP describe how the child's disability affects his involvement and progress in the general curriculum. The present levels clearly set a starting point from which to measure the child's progress toward meeting his annual goals. Areas of need identified are reading, writing, attending to tasks at hand, and speech and language, including intelligibility. Baseline information and information describing current functioning related to each annual goal appears in the present levels. The present levels describe behavior which impedes the student's learning which is addressed on the special factors page. The present levels also clearly indicate the child's strengths and the parent's concern for enhancing his education. The district maintains that the parent's concerns were considered by the team. The district also maintains that the recommendations of an educational advocate who attended these three meetings with the parent were considered. Each of the three meetings lasted approximately one and one-half hours. The present levels specifically identify parent concerns, and the IEP reflects changes made in response to those concerns. Attached to the IEP is a notice of response to an activity requested by a parent notifying the parent of the district's decision to refuse requests in eight areas. The district met procedural requirements for considering parent concerns and requests. The October 2001 IEP includes four annual goals related to meeting the child's needs resulting from his disability to enable him to be involved in and progress in the general curriculum, each of which has short-term objectives or benchmarks. The annual goals are in the areas of reading, writing, expressive language, and speech. They are measurable and include a level of attainment which the child reasonably could be expected to attain by the end of the IEP term. The goals relate to educational needs described in the present levels. The IEP indicates that the student will participate in a replacement curriculum in the areas of reading, writing, and spelling because he is functioning significantly below grade level in those areas and modifying or adapting the curriculum in these areas would not meet his needs. The district met procedural requirements related to annual goals.

The October 2001 IEP includes the services which the district proposes to provide to the student. Special education is to be provided in the learning disabilities (LD) classroom while speech and language special education services are to be provided in the speech and language room or other school environments. The IEP indicates that the team considered the need for related services, but concluded none were needed. Five kinds of supplementary aids and services to be provided in the regular education setting are described in the IEP, including an appropriate description of the frequency and amount of each. The IEP indicates that three of these services will be provided in the special education classroom, as well. The IEP indicates that the LD and classroom teachers will meet weekly to discuss curriculum modifications. Finally, the services pages include an explanation of why the student will not be educated in the regular education environment with students who do not have disabilities during noted portions of the school day. The district met procedural requirements related to describing the amounts and kinds of services to be provided to the student.

In letters to the district in May and August of 2001 and in her letter of complaint to the department, the parent expresses her concerns that her child has not progressed educationally during the previous three years and her belief that the annuals goals have remained essentially unchanged during that time. In her letter of complaint, she expresses satisfaction with the speech and language special education services her son has received. In its response to the department, the district recognizes that the student has made limited progress over this time in reading and writing, the areas most affected by his disability, and that the goals across years have remained similar. The present levels of performance developed in October 2001, during the student's fifth grade year, indicate that he is reading at a late first grade instructional level and that his writing also is at the same level. However, the district maintains that the student has progressed, noting, for example, his scores on the statewide fourth grade standardized state test administered during the winter of 2001; he scored proficient in math, science and social studies, while scoring at the basic level for language and the minimal performance level for reading. His disability significantly affects these last two areas. The district also notes that short-term objectives and benchmarks have changed over time, as have supplemental aids and services, and that progress on objectives and benchmarks has been documented through reports and IEP reviews. The report prepared by his special education teacher during the reevaluation conducted in April 2000 indicates that the student had made some progress in each area and that he had grown "tremendously" in the social/emotional area over the previous three years. Another team participant report submitted for the April 2000 reevaluation continues to describe behavior concerns requiring programming. The IEP, dated May 2001, indicates that the student has "matured a great deal" behaviorally, but that he will continue to need support to stay on task. The teacher who had been his special education teacher between late in the 1997-1998 and the 2000-2001 school years submitted a written response to the complaint which, in part, describes behavior gains during the time she has worked with him.

In its response to the complaint, the district maintains that the student's health-related absences from school and the parent's decision not to utilize medication to address diagnosed attention deficit hyperactivity disorder have had a negative impact on his school progress. The district also notes that it has provided the student with extended school year services during the summers of 1998, 1999, and 2000 and that the district offered similar services during the summer of 2001 which the parent chose not to access.

The parent maintains that her son's success should be attributed to long hours of extra work for her and her son each evening. Additionally, during the summer of 2001, she arranged for private tutoring for her son at a private clinic serving students with disabilities. The parent has requested that the department direct the district to pay for the services provided to her child last summer as a form of compensatory education for the limited progress she maintains her son has made in the previous three years. The department concludes, however, that the district followed required procedures, applied required standards and reached determinations reasonably supported by student-specific data. The department will not direct the district to pay for the private services.

  • During the period October 25, 1998, to October 24, 2001, the district failed to properly inform the child's parent of the child's progress toward his annual goals.

Reporting progress to parents is a relatively new requirement, having been included in the Individuals with Disabilities Education Act Amendments of 1997, but having an effective date of July 1, 1998. Information Update Bulletin 98.03 issued by the department in February 1998 notified districts of this new requirement and that all of the IEP components described in the bulletin must be in every IEP that extends beyond June 30, 1998. Bulletin 97.10, issued in December 1997, offered districts an interim sample IEP form to use in order to implement the new federal requirements, including language addressing this requirement. Further, state law which was amended effective May 1998 included the same requirement. Consequently, this requirement went into effect several months before the beginning of the time period covered by this issue.

The IEP for this student developed in May 1998 does not include language addressing this requirement. The department concludes that the district did not meet this requirement for the 1998-1999 IEP. The IEPs developed beginning in May 1999 do include information regarding how parents will be informed of their child's progress toward goals and whether or not progress is anticipated to be sufficient. The district's response to the complaint includes a written statement submitted by the student's special education teacher for all of the years covered by this complaint with the exception of the 2001-2002 school year. The statement indicates how and on what dates the teacher provided the parent with progress reports for the 1999-2000 and 2000-2001 school years. Five contacts were made the first year and six the second year, including IEP team meetings each year. The parent also received two written progress reports each year which document progress sufficiency. During a telephone interview, the child's special education teacher indicated that during the parent contacts she did report the child's progress toward reaching the goals in the IEPs so that the parent was informed at least as often as parents of students who do not have disabilities receive reports. In its response to the complaint, the district assured the department that reporting on progress during the 2001-2002 school year would be accomplished as described in the IEP. The written report completed in October 2001 clearly meets the requirement and the three IEP team meetings in October 2001 appear to have, as well. The department concludes that while the district did not meet this procedural requirement during 1998-1999, it corrected its procedures and reported progress to the parent in subsequent years. No additional corrective action is required.

  • During the period October 25, 1998, to October 24, 2001, the district failed to implement behavioral interventions, strategies and supports included in the child's IEP.

As discussed above, the student's behavior improved during these three years. The response to the complaint submitted by the student's special education teacher reports that the behavior-related portions of each of the IEPs were implemented and describes some of the approaches utilized by staff in addressing the behavior. In her complaint, the parent asserts that behavior strategies were not implemented during the 2000-2001 school year, maintaining that the child's special education teacher told her it was not being implemented. The special education teacher specifically refutes this assertion, maintaining that the behavior-related goals, objectives and strategies in the IEP were implemented. Her response goes on to indicate that at the same time the student's classroom teacher utilized behavior techniques for the class as a whole and for individuals in the class. She also confirmed during a telephone interview that the behavior plan was implemented during the 2000-2001 school year. While it is clear from the present levels statements in the IEPs developed during this time period that the student's behavior continues to be an area of concern, the department concludes that the district did implement the behavior portions of the IEP during this time period, including during the year specifically questioned by the complaint.

  • During the period October 25, 1998, to October 24, 2001, the district failed periodically to convene an IEP team meeting to review the child's IEP to determine whether the child's annual goals are being achieved.

  • During the period April 2001 to October 24, 2001, the district failed to respond properly to parent requests for IEP team meetings to review and, if necessary, revise her son's IEP.

Federal regulations require that a district ensure that an IEP team reviews a student's IEP periodically, but not less than annually, to determine whether annual goals are being achieved. Federal law also permits parents to request IEP team meetings. Comments to the regulations suggest that as a general matter, when a child is not making meaningful progress toward attaining goals and standards applicable to all children, it would be appropriate to reconvene the IEP team to review the progress in response to a parent request for a meeting. The parent's letter of complaint maintains that the district should have held IEP team meetings more often than annually beginning with the 1999-2000 school year when the district began reporting that the child's progress was not sufficient to enable him to achieve the goals by the end of the IEP term. The district did hold meetings at least annually between May 28, 1998, and April 20, 2000, when the student was reevaluated and a new IEP was developed. The district did not refuse the parent's request for a meeting during these years. However, the next IEP team meeting was held April 26, 2001, resulting in the district not reviewing the previous IEP at least annually. With the exception of missing the annual IEP review date by several days in April 2001, the district met the specific requirements of federal law related to the first of these issues. Because the district did review the student's IEP soon after the annual review date in April 2001, no child-specific corrective action is required. Whether district-wide corrective action is needed will be determined through the May 2002 district onsite compliance activity which included review of whether placements are determined at least annually.

The second issue relates to the alleged failure of the district to respond to a letter the parent sent to the district on May 20, 2001, indicating her belief that her son had made no educational progress in four years. The district responded on June 21 indicating, in part, that staff would contact the parent in the near future to schedule an IEP team meeting. Several days later a staff member contacted the parent by phone. The caller and parent agreed to delay an IEP team meeting until after the student's school of attendance was settled since the parent was considering a move. During the latter part of August the parent sent two letters to the district, one relating to a request for an independent educational evaluation and the other indicating concerns regarding her child's education. The district responded to these letters on September 13. An IEP team did not meet until October 4. Although this issue was stated as a failure by the district to respond to a parent request for an IEP team meeting, information gathered through the investigation does not indicate that the parent requested an IEP team meeting. Instead, the issue is whether the district ensured that an IEP team reviewed the student's IEP periodically to determine whether the annual goals are being achieved once it learned that the parent had concerns about her son's progress. Given the specific facts of this case, the department concludes that the district scheduled an IEP team meeting in a timely manner following receipt of letters from the parent expressing concerns about the education being provided to her son.

  • During the period April 2001 to October 24, 2001, the district failed to provide notice to the parent a reasonable time before the district proposed to change her son's IEP and failed to respond properly to the parent's request to review and receive copies of her son's education records.

In her letter of complaint, the parent maintains that she did not receive a copy of her son's IEP following the May 9, 2001, IEP team meeting and that she still had not received a copy prior to the beginning of the 2001-2002 school year. In its response to the complaint, the district submitted a copy of the May 9 IEP, including a placement notice. The notice indicates that a copy of the IEP developed at that meeting was provided to the parent on May 9 and that the IEP would be implemented on May 10. In its response to the complaint, the district maintains its practice is to send copies of placement notices and IEPs to parent following IEP team meetings. The child's teacher, who acted as case manager at the meeting, indicated during a telephone interview that the IEP and notice were not provided to the parent at the meeting. She prepared the final copy of the IEP after the meeting and submitted it to the district office to be forwarded to the parent.

A district must provide a child's parents prior written notice of a change in the provision of a free appropriate public education to the child or of a change in educational placement. The notice must be sent so that the parents receive it a reasonable time before the district starts to implement a revised IEP or begins a new placement for the child. The district began implementing the IEP on May 10 before providing a copy of the final IEP and placement notice to the parent. Information Update Bulletin 01.03 notes that the department's review of districts' implementation of procedural requirements frequently results in determinations that districts are not complying with this requirement. The parent has received a copy of the IEP and placement decision and the district plans to undertake district-wide training on this issue as a consequence of the department's recent onsite compliance review. The department, through its compliance verification process, will determine whether the training is effective.

On August 28, 2001, the parent wrote to the director of special education for the district regarding three concerns, one of which was that she had not received a copy of her son's May 9 IEP prior to the beginning of school. The principal of the new school the child had just begun attending personally supervised copying of the child's records and personally delivered them to the child's grandfather at the child's home on September 4. The department concludes that the district responded promptly to the parent's request for a copy of her son's IEP once it learned that she had not received the copy provided in the spring. No additional child-specific corrective action is required.

The August 28 letter also requests that the parent be provided with copies of all of her son's past evaluation reports, IEPs, and all IEP progress reports. In her letter, the parent maintains that earlier in the year she had requested the district to forward copies of all of her son's IEPs and evaluations to a specific private clinic, but that only recent documents had been provided. The letter also indicates that she had renewed her request in mid August, but hadn't received the requested documents. Among the materials submitted with the letter of complaint is a permission for release of records form signed by the parent on January 21, 2001. Check boxes next to records categories indicate which records are requested. The form, apparently developed by the private clinic, does not specify that all of the student's records of each type are to be provided. A handwritten note from the child's teacher dated January 31, 2001, is attached to the request indicating that only recent records are being forwarded. Federal records law requires that a district respond to a request for records without unnecessary delay, and before an IEP team meeting but no later than 45 days from the request. Here, the district did provide records consistent with the January request without unnecessary delay. As acknowledged by the letter of complaint, the district provided copies of additional records in response to the August 28 request. The records were provided without unnecessary delay following parent request.

The letter of complaint alleges that on October 12, 2001, the parent went to her child's school and requested to review her son's records in preparation for an IEP team meeting scheduled for October 23. The principal was not available until the end of the month for medical reasons and the person responsible in her absence did not make the records available. Federal records law requires that in response to a request parents are to be provided access to their child's records prior to IEP team meetings. The IEP was not completed at the October 23 meeting and the team met again on October 30. On October 29, the district did make the child's record available to the parent. Consequently, the district is not required to take corrective action.

  • During the period April 2001 to October 24, 2001, the district failed to respond appropriately to a request for an independent educational evaluation (IEE) at public expense submitted by the parent in August 2001.

By letter dated August 23, 2001, the parent forwarded to the district a statement of professional services in the amount of $1,626.75 billed to the parent by a private provider of educational services and an assignment agreement permitting the district to pay the provider directly funds which otherwise might have been provided to the parent. In part, the letter reads "I have assigned any monetary benefits, in regard to the payment for the independent educational evaluation to [name of agency]any check rendered for payment of the independent educational evaluation." By letter dated September 13, the district acknowledged receiving this letter and clearly appears to recognize that it is a request for payment of an independent educational evaluation. The letter includes several subheadings, one of which is "Independent Education Evaluation (IEE)." Further, the letter indicates that a copy of the district's IEE policy is enclosed. Finally, one portion of the letter reads "the district was unaware of your intent to obtain an IEE." The department concludes that the district recognized the parent's letter was a request for an IEE.

Federal regulations provide that a parent has a right to an IEE at public expense if the parent disagrees with an evaluation obtained by a school district. If a parent requests an IEE at public expense, the district either must ensure that the IEE is provided at public expense or initiate a due process hearing to show its evaluation is appropriate. In its response to this issue of the complaint, the district takes the position that this was not, in fact, a request for an IEE because the parent did not disagree with an evaluation conducted by the district. This position also was expressed in a letter to the parent dated October 29, 2001. The most recent reevaluation of this child conducted by the district occurred at an IEP team meeting held April 20, 2000. The department concludes that the district recognized that the parent had made a request for an IEE, and it was obligated by federal regulation either to pay for the IEE or initiate a due process hearing to obtain a decision regarding the parent's request. The department appreciates the district's dilemma in this regard. However, the comments and analysis to the current federal regulations and recent written clarification from the United States Department of Education appear to give districts minimal unilateral authority to refuse a request for an IEE. Because the district's response appears to attach considerable importance to this issue of the complaint, the department will set out the basis for its conclusion in detail.

The federal government in October 1997 issued proposed regulations implementing the 1997 amendments to the Individuals with Disabilities Education Act. The proposed regulation relating to IEEs included an explanatory note which reads:

If a parent requests an independent educational evaluation at public expense, there is no requirement under Part B of the Act that the parent specify areas of disagreement with the public agency's evaluation as a prior condition to obtaining the independent educational evaluation. Thus, unless a public agency chooses to initiate a due process hearing in accordance with paragraph (b) of this section, the agency must respond to the parent's request by insuring an independent educational evaluation is provided at public expense in a timely manner. A public agency may not impose conditions on obtaining an independent educational evaluation, other than the agency criteria.

When the final regulations were issued in March 1999 the Department of Education indicated that all explanatory notes had been deleted. Information included in the draft notes either was incorporated into the final regulation language or removed. The final regulation includes the following:

If a parent requests an independent educational evaluation, the public agency may ask for the parent's reason why he or she objects to the public evaluation. However, the explanation by the parent may not be required and the public agency may not unreasonably delay either providing the independent educational evaluation at public expense or initiating a due process hearing to defend the public evaluation.

The comments and analysis which explains this change reads:

With respect to Note 1, while it would be helpful for parents to explain their disagreement over a public evaluation, there is nothing in the statute which prevents parents from obtaining an IEE if they did not express their concerns first. Therefore, Note 1 would be deleted and the regulation changed to state that the public agency may request an explanation from the parents regarding their concerns when the parent files a request for an IEE at public expense. However, such an explanation may not be required of the parents and the provision of an IEE, or initiation of a due process hearing to defend the public evaluation, may not be delayed unreasonably regardless of whether or not the parent explains his or her concerns to the public agency.

The district appears to take the position that the parent never has stated that she disagrees with the district's evaluation of her child. The district also notes that while the IEE was conducted in March 2001, it was not until August that the parent requested payment from the district for the IEE. The department agrees that the parent has not directly and specifically stated that she disagrees with a district evaluation. However, in May and August 2001 the parent did specifically express in writing her concerns that for four years her child had not made educational progress in the areas addressed in his IEP. The May letter mentions that she plans for him to receive private assistance over the summer and expresses her belief that the district should pay for the service. These letters clearly express dissatisfaction regarding the nature and extent of the special education services that the child had been receiving. Federal regulation defines "evaluation" to mean procedures used to determine whether a child has a disability and the nature and extent of the special education and related services the child needs. The federal regulations direct the district either to pay for the IEE or to initiate a hearing. The arguments made by the district regarding the sufficiency of its evaluation are properly directed to a hearing officer, not to the department in the context of an IDEA complaint The district is directed to respond within 10 days of receiving this decision to the parent's August 2001 request for an IEE either by paying for it or by initiating a due process hearing regarding the request. Further, the district is directed to submit to the department, within 30 days of the date of this decision, an assurance that if a parent requests an IEE at public expense, without unnecessary delay it either will initiate a hearing to show its evaluation is appropriate or ensure that an evaluation is provided at public expense.

This concludes our review of this complaint.

//signed CST 6/12/02
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

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