IDEA Complaint Decision 03-016

On March 17, 2003, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Stoughton Area School District. This is the department's decision regarding that complaint. The issues are whether the district, during the 2002-2003 school year:

  • Completed a reevaluation of a child with a disability in a timely manner;
  • Included the parents in the review of existing data to determine the need for testing and received written parent consent prior to administering tests;
  • Provided the parents with required procedural safeguards notices;
  • Properly responded to the parents' request to amend their child's education records;
  • Properly notified the parents of the purpose of an IEP team meeting in January 2003;
  • Ensured that the IEP team determined whether the child needs special education and related services by reason of autism and determined whether the child requires support from an education aide; and
  • Implemented the child's individualized education program (IEP) regarding assistive technology services and education aide support.

By written notice dated November 15, 2002, the district informed the parents that it was initiating a reevaluation of their child in response to the parents' November 12 request during an IEP team meeting. On February 6, 2003, the district sent the parents a notice of placement, a copy of the evaluation report, and the IEP completed at an IEP team meeting held the same day. The district completed the reevaluation process within 90 days of initiating the reevaluation. However, the parents submitted an earlier written request to the district on October 15, 2002, "formally requesting a re-evaluation" to determine whether their son needs special education by reason of autism. The district was required to complete a reevaluation of the child within 90 days after receiving this request. The February 6 completion date was longer than 90 days from the date of request. Because the reevaluation was completed in February, no child-specific corrective action is required. Within 30 days of receiving this decision, the district must submit proposed corrective action to the department to ensure that evaluations are completed within required time limits following receipt of a written request from a parent.

In conducting a reevaluation of a child with a disability, a district must conduct a review of existing data to determine what additional data are needed to complete the evaluation. In Wisconsin the IEP team conducts this review, although a meeting is not required. The parents must be afforded the opportunity to participate in the review. The IEP team, including the parents, met on November 12 and conducted this review and determined which additional assessments would be completed during the evaluation. However, the parents were not provided with notice of the reevaluation until November 15. Notice of reevaluation, which includes important procedural safeguards information, must be given to the parents before the district conducts the review of existing data. The district did include the parents in the review of existing data but did not give proper notice to them first.

The parents also maintain that the district did not provide them with the required procedural safeguards notice. Under current law a copy of the procedural safeguards available to the parents of a child with a disability must be given to the parents, at a minimum, upon initial referral for evaluation, upon each notification of an IEP team meeting, upon reevaluation of the child, and upon receipt of a request for a due process hearing. In response to the complaint, the district indicated that that the parents received a procedural safeguards notice in April 2002 and in March 2003. Although the district's forms include a space to indicate that the safeguards notice was sent with the notice of reevaluation, the space was not filled in on the November 15 notice of reevaluation for this child. Within 30 days of receiving this decision, the district must submit proposed corrective action to ensure that parents are provided notice of evaluation prior to conducting the review of existing data and that the district provides required procedural safeguards notices with the notice.

The district did receive written consent from one of the parents for the testing proposed in the November 15 notice of reevaluation and consent for additional tests. However, the district sought and received the parents' verbal consent on September 10, 2002, for intelligence and academic diagnostic testing. The test was administered the next morning. Shortly after the test was administered, the parents notified the district that they wished to withdraw consent. Administering a test that is administered to all children in the district does not require written consent unless it is required of the parents of all children. The testing conducted September 11 was not testing administered to all students in the district. In order for the district to properly receive consent for this testing, it was required to initiate a reevaluation and seek written parental consent to administer specified tests or other evaluation materials, which it did not do regarding this test. Within 30 days of receiving this decision, the district must submit proposed corrective action to ensure that the district properly initiates a reevaluation and receives written consent from the parent prior to administering tests or other evaluation materials.

On January 3 the parents requested that the district remove from their child's records the results of the testing conducted in early September. They maintain that the district did not inform them of their right to request a hearing regarding removal of this record. Federal law permits parents to request a district to amend their child's record. If the district refuses the request, it must inform the parents of its decision and advise them of their right to a hearing. The district must respond to the parents' request within a reasonable time. The district maintains that discussions of the parents' concerns occurred during several meetings and that the parents agreed to include some of the information about which they were concerned in the student's file. The parents do not believe they agreed to retention of this record. The parents' January 3 letter to the district questions the general utility of the testing but appears to permit some use of the information from the testing. The district also maintains that it has been prepared, and remains prepared, to remove the report from the student's records. The parents are not aware that this has been the district's position. Because the district did not refuse the parents' request, the district was not required to notify the parents of their right to a hearing on the issue. In light of the parents' apparent continuing concerns, the district must resolve this issue by seeking written direction from the parents, respond accordingly, and provide the department with documentation that it has resolved this matter within 30 days of receiving this decision.

An IEP team meeting was scheduled for January 21, 2003, but was rescheduled to, and held on, January 27. The notice for the January 27 meeting does not indicate that a purpose of the meeting is to determine continuing eligibility, review and revise the IEP, and determine placement. The purpose for this meeting is noted to be "review agenda and responses from specialists." The agenda relates to the reevaluation which was being conducted. The parents maintain that they were not prepared to discuss all matters related to the reevaluation because the notice did not indicate the meeting would be for that purpose. Another IEP team meeting was held on February 6. The notice for that meeting notes the purpose to be determining continuing eligibility, reviewing and revising the IEP, and determining placement; but the parents did not receive it until the day of the meeting. The parents did attend the February 6 meeting and acknowledge that they understand that they can request to have meetings reconvened to another date.

The cover sheet of the IEP and the district's response to the complaint indicate that the purpose of the January 27 and February 6 meetings was to determine continuing eligibility, review and revise the IEP, and determine placement. Districts are required to notify parents of the purpose of an IEP team meeting. Generally, the purpose noted on the cover sheet of the IEP and the written notices for the meeting should be the same. The district did not clearly state the purpose of the January 27 meeting. However, an IEP team, including the parents, continued this meeting several days later and the district notified the parents of the purpose of the second meeting and who would attend. No corrective action is required.

The final two issues are closely related. During the summer of 2002, the parents received a medical diagnosis indicating that their son has Asperger's Syndrome. In the fall they began advocating with the district that a reevaluation should be conducted to determine whether he qualifies for special education by reason of autism. Also in the fall, the student transitioned from kindergarten to first grade. The parents maintain that at the beginning of the year he did not receive the special education support he needed and that he experienced significant difficulty as a consequence of what they believe was reduced support compared with what was available in kindergarten. However, the parents also report that they are satisfied with the programming he began receiving following the February 6 IEP team meeting and believe currently he is making significant progress. Although the issues in this complaint are stated as the IEP team did not determine aide support and that the IEP provisions related to aide support were not implemented, discussions with the parents during the investigation clarified that they actually were concerned that needed support was not available prior to February 6.

The parents maintain that during the January 27 and February 6 meetings the IEP team did not discuss either the determination that the child needs special education by reason of autism or whether he requires additional support. The parents maintain that while the evaluation report indicates that he needs special education by reason of autism, the IEP team did not discuss or reach this decision. They agree that in her report the autism consultant who evaluated their child clearly determined that he has autism. However, they assert that the team did not address the autism criteria in state law during a team meeting. Prior to the January 27 and February 6 meetings, district staff met with the consultant without the parents. Parents are to be afforded the opportunity to participate in IEP team meetings. A meeting does not include preparatory activities that public agency personnel engage in to develop a proposal or response to a parent proposal that will be discussed at a later meeting.

The evaluation report completed at the February 6 IEP team meeting includes the detailed six-page report completed by the district's autism consultant. The evaluator states that the child "clearly meets all the criteria for an educational label of autism" and goes on to note the factors leading to this conclusion. The evaluation report also includes a psychological evaluation from a school psychologist and a sensory profile jointly completed by the occupational and physical therapists. The IEP team evaluation report is extensive and addresses the criteria for determining whether a child requires special education by reason of autism. As was noted above, the parents' October 15 letter requests reevaluation to determine whether their son requires special education by reason of autism and they strongly advocated with the district that he does. An IEP team meeting held December 12, 2002, which the parents attended, included discussion of preliminary test results and areas of impairments which the child might have. The parents submitted a written response to the district on January 3 reacting to the information reviewed at the December 12 meeting. District staff acknowledge that the team may not have discussed state autism criteria by specific reference to each element of the criteria. However, the district maintains that during the course of the meeting the IEP team did discuss the required elements and established that the student meets eligibility criteria. The department determines that the IEP team did determine that the child is eligible for special education by reason of autism during an IEP team meeting which included the parents.

District staff and the parents agree that the student encountered significant difficulty in the fall of the current school year. The parents attribute these difficulties in significant part to a failure on the district's part to implement the assistive technology provisions of the IEP in effect at the beginning of the year and to not having adequate support for their son. District staff believe that several factors may have contributed to the problems in the fall, but that the student's difficulty in transitioning, which had been noted in the past, was an important one.

The child's April 2002 IEP includes an assistive technology implementation plan which requires the use of Intellitools, Intellikeys and Intellitalk. The IEP specifically indicates that the plan is to be implemented starting at the beginning of the new school year and that Intellitools software and hardware are to be provided in the regular education classroom. The district ordered the required items for use in the student's classroom, but they did not arrive until the fourth day of school. During the first three days of school, the student's special education teacher worked with him in her classroom, where Intellitools was available, to familiarize him with the technology. The student took all spelling tests using Intellitools starting at the beginning of the year. While the student did not begin using the program in his classroom at the very beginning of school, his teacher did work with him each day to prepare him to use the technology once it arrived. The district implemented this portion of the IEP.

Finally, the parents maintain that their child's difficulties in the fall result from reduced support as compared with what was available to him the prior year. The IEP developed in April 2002 requires daily support in regular and special education environments from learning disabilities staff with support or consultation from cognitive disabilities staff totaling a minimum of 300 minutes per week. The IEP also requires special education small group or individual instruction for tracking and computer skills for a minimum of 20 minutes daily. The district provided at least the minimum amount of special education required in the IEP.

School started September 2, 2002. On September 10 several district staff, including the child's special education teacher, met with the parents to discuss several topics, including what staff were observing about the child's programming early in the year. Another meeting was scheduled for October 10, but was rescheduled at parent request to October 21 and held then. A follow up meeting was held October 29. As was previously noted, the IEP team met November 12 to review existing data as part of the reevaluation and again on December 12 to review progress of the reevaluation. These meetings included discussions of the student's programming needs. District staff and administration made adjustments to the amount of support the student received but did not modify the IEP. In light of the student's new medical diagnosis in the summer of 2002 and the parents' reevaluation request, the district preferred awaiting the reevaluation results before modifying the child's IEP.

The amount of service to be provided to a child must be stated in the IEP so that the level of the agency's commitment of resources will be clear to parents, other IEP team participants, and all who are involved in implementation of the IEP. The amount of a special education or related service to be provided to a child may be stated in the IEP as a range only if the IEP team determines that stating the amount of services as a range is necessary to meet the unique needs of the child. For example, it would be appropriate for the IEP to specify, based upon the IEP team's determination of the student's unique needs, that particular services are needed only under specific circumstances, such as the occurrence of a seizure or of a particular behavior. By setting a minimum level of service only, the April 2002 IEP did not properly state the amount of service to be provided to the child. While the district attempted to address the student's difficulties in the fall by providing more than the minimum amount of service required in the IEP, the IEP continued to include an improper statement of the amount of service.

The IEP completed at the February 6, 2003, meeting did set a range of special education service: one to three hours daily pull out/individual or small group instruction "as needed." The IEP also included a sensory diet to be provided daily for a total of six hours per week. The IEP includes a daily schedule for the sensory diet. The February IEP specifies the amount of service to be provided to implement the sensory diet, but does not properly describe the amount of pull-out, individual and small group instruction to be provided daily. The circumstances for determining the point along the range for the amount of daily service is not described in the IEP. Within 30 days of receiving this decision the district must hold an IEP team meeting for this student to satisfy this requirement and submit proposed corrective action to the department to ensure that district staff who develop IEPs understand the requirement.

This concludes our review of this complaint.

//signed CST 5/16/03
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