On June 30, 2003, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Mukwonago Area School District. This is the department's decision regarding that complaint. The issues are whether the district, during the 2002-2003 school year:

• Made available at an individualized education program (IEP) team meeting required participant written summaries of findings related to tests and other evaluation materials;
• Ensured that the IEP team, including the parent, determined whether the child needs special education and related services by reason of other health impairment;
• Used proper criteria when determining whether the student is a child with a disability by reason of other health impairment (OHI); and
• Gave the parent a proper evaluation report upon request or with the notice of placement.

On June 12, 2003, an IEP team meeting was held to determine whether the student is a child with a disability. The IEP team members, with the exception of the child's parent, determined that the child was not a child with a disability. The parent maintains that the district did not provide IEP team members with all of the information required to make an eligibility determination for OHI. Specifically, the parent claims that all IEP team members did not have a copy of the document "Other Health Impaired: District Identification Guideline." This document included a background of OHI and the state and federal eligibility requirements. This information was shared, though not specifically from this document, at the IEP team meeting. The document also included a reference to determining whether a child's health impairment adversely affects the child's educational performance and differs significantly from peers. An IEP team member from the district read this section of the document to the rest of the IEP team members. A district is required to make available to all team participants a written summary of findings completed by IEP team participants who administered tests, assessments or other evaluation materials. The document "Other Health Impaired: District Identification Guideline" was not part of the summary of findings. The district met its obligation by providing each IEP team member a copy of the written summaries of findings.

The parent claims the district did not ensure that the IEP team, including the parent, determined whether the child is eligible for special education services by holding a pre-IEP team meeting which she was not invited to. The parent indicated that during the June 12, 2003, IEP team meeting references were made by the child's regular education teacher regarding accommodations that she could use that were discussed prior to the IEP team meeting. In response, the district pointed out that the student has a Section 504 plan which requires discussion of activities necessary to implement the plan. There was no discussion by IEP team members from the district regarding eligibility determination. The district included the required IEP team members in making its determination that the child was not a child with a disability under IDEA.

The eligibility criteria for OHI was shared at the June 12, 2003, IEP team meeting. OHI means that a child has limited strength, vitality or alertness due to chronic or acute health problems which adversely affects a child's educational performance. An IEP team must, based on the evaluation reports, make the determination whether this criteria is met or not. In making its determination that the child was not a child with a disability, the district interpreted "adversely affects a child's educational performance" as, "differing significantly from peers in academic, performance or social skills, even with accommodations." The section of the "Other Health Impaired: District Identification Guideline" that was read at the IEP team meeting stated that "differing significantly from peers" includes a variety of individual factors specific to each student evaluated. The guideline adds, "In addition, another factor to consider would be academic, performance, or social skills approximately at or below two standard deviations from the norm, or about 2% of the school population, using the standard bell curve." Applying this guideline adds a criteria not included in the law. The district is directed to submit, within 30 days of receiving this decision, a plan of correction to ensure staff apply the proper eligibility criteria when determining whether a child has a disability under OHI. The district is directed to make child specific corrections by reconvening an IEP team meeting for this student to determine OHI eligibility without applying the statements that refer to student performance at or below two standard deviations from the norm on academic or social skill performance.

The parent maintains that not all participant written summaries of findings related to the evaluation of her child were included in the final IEP report she received in the mail. Specifically, the parent states that the IEP included the statement, "See attached teacher reports" in reference to current classroom-based teacher reports and observations and observations by teachers and related service providers, yet no such reports were attached. The district responded to the department that the reports in question were given to the parent on June 11, 2003, and again at the June 12, 2003, IEP team meeting. Three pages of the IEP were not included at this time, but were mailed to the parent on June 13, 2003. The district followed proper procedures in providing the parent with copies of the evaluation reports.

This concludes our review of this complaint.

//signed CST/SJP 8/29/03
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

Dec/kbh