On August 18, 2003, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Madison Metropolitan School District. This is the department's decision regarding that complaint. The issues are whether the district:

• Had an individualized education program (IEP) in effect for a child between October 31, 2001, and January 18, 2002, and between January 18, 2003, and June 2, 2003;
• Included a district representative able to commit district resources on IEP teams which met March 31 and April 4, 2003;
• Properly notified the parents of IEP team meetings conducted between January and May 2003 and conducted the meetings at times mutually agreed upon;
• Properly considered whether the child required extended school year services for the summer of 2003;
• For the 2003-2004 school year; properly documented IEP team determinations regarding a goal related to sensory overload, inclusion of a behavior intervention plan and placement; properly responded to the parents' request regarding a case manager and inclusion of a reading teacher on the IEP team; ensured that an IEP team properly considered the child's need for assistive technology and occupational therapy services and developed a proper statement of annual goals for reading and occupational therapy;
• Protects the confidentiality of student records and properly responded to the parents' request in July 2003 for access to their child's education records; and
• Whether the district, between January 18, 2002, and January 17, 2003:
  • Developed proper statements of the child's present levels of educational performance and how the child's disability affects her involvement and progress in the general curriculum;
  • Provided the amount of speech and language services described in the IEP;
  • Reviewed the child's IEP to determine whether the annual goals for the child were being achieved and revised the IEP as appropriate to address any lack of expected progress;
  • Implemented the child's IEP regarding the provision of supplementary aids and services in history class;
  • Properly reported to the parents the child's progress toward achieving her annual goals;
  • Properly responded to the parents' request in May 2002 for a reevaluation of their child and completed the reevaluation within the permitted time period;
  • In conducting the reevaluation, utilized appropriate assessment instruments which were administered by trained and knowledgeable personnel; and
  • Included an individual on the IEP team who can interpret the instructional implications of evaluation results.

The parents contend that the district did not have an IEP in effect for their child from October 31, 2001, to January 18, 2002. A district must conduct IEP team meetings at least annually to review and, if appropriate, revise each child's IEP. An IEP developed in October 2000 projects an ending date of October 31, 2001. An IEP team meeting was held on January 18, 2002, to review and revise the student's IEP. The district acknowledges that the IEP was not reviewed at least annually. The parents also contend that the district did not have an IEP in effect for their child from January 18, 2003, to June 2, 2003. The district acknowledges that there was not a current IEP in place from January 17, 2003, to February 4, 2003. The January 18, 2002, IEP expired on January 17, 2003. An IEP team meeting to review and revise the IEP took place on January 9, 2003, and continued on February 3, 2003, when placement was determined. However, despite the fact that other documents provided by the district refer to this IEP, the district did not provide the department with a completed copy of the IEP or the placement notice. From February 4, 2003, to June 3, 2003, at least nine meetings involving district staff and the parents were held. Only the February 4 and June 3, 2003, meetings were IEP team meetings. The parents believe that the February 3, 2003, IEP was never completed, and each meeting was an attempt to complete the process. The June 3, 2003, IEP includes a notice of placement indicating that the placement had been determined February 4, 2003.

The district acknowledges that these meetings were in response to disagreements the parents had regarding the content of the IEP. If the IEP team cannot reach consensus regarding the provision of special education services, the district must determine the services to be provided and give a notice of placement to the parents. The parents may request mediation or request a due process hearing if they disagree with the district's program and placement. Once an IEP is completed and the parents are provided a notice of placement, IEP team meetings may be held to address continuing parent concerns. Because an IEP team meeting was held on June 3, 2003, an IEP was completed and the parents were provided notice of placement, no child specific corrective action is required for this issue.

The parents believe the district failed to include a district representative able to commit district resources on IEP teams in March and April 2003. The parents also claim that the district failed to properly respond to their request regarding a case manager and inclusion of a reading specialist on these IEP teams and did not properly notify them of IEP team meetings. These issues result from a misunderstanding regarding whether these were IEP team meetings. The meetings held in March and April 2003 were not IEP team meetings. The only people who attended the March 2003 meeting were the special education teacher, the parents, and their advocate. During a review of the student's files at the district, department staff could find no documentation, such as meeting invitations or cover pages, indicating the March and April 2003 meetings were IEP team meetings.

The parents maintain that the district did not properly consider whether their child required extended school year services for the summer of 2003. The parents sent an e-mail to the district on May 1, 2003, requesting a discussion of ESY at a May 2, 2003, meeting. The May 2, 2003, meeting was not an IEP team meeting. The June 3, 2003, IEP includes the determination that the student qualified for, and the district would provide, 2.5 hours of ESY services two times a week from June 6, 2003, to August 8, 2003. The district properly responded to the parents' May request for ESY services for their child.

The parents maintain that during the 2003-2004 school year, the district did not properly document the IEP team determination regarding a goal related to sensory overload. The district responded to the department that the issue of sensory overload was discussed with the parent during a telephone call with the occupational therapist and in a May 2, 2003, e-mail. In that e-mail the therapist informed the parents that part of her consultation with district staff included overload strategies and that those strategies were taught in a social skills group. The June 3, 2003, IEP team meeting included a statement regarding consultation for concerns with sensory related overload as part of the program modifications or supports for school personnel.

The copy of the June 3, 2003, IEP the parents received included a behavior intervention plan (BIP). The parents maintain that during the June 3, 2003, IEP team meeting they requested the BIP be removed from the IEP. The district responded that they could find no documentation of the IEP team deciding to remove the BIP. The BIP is not included in a December 5, 2003, IEP. Since the BIP has been removed, and the department cannot substantiate the complainant's claim, no corrective action is required for this issue.

The parents indicate the June 3, 2003, IEP states that the student does not need assistive technology services or devices when it should have indicated a need. The district acknowledges that in answer to the question, "Does the student need assistive technology services or devices?" the IEP incorrectly indicates "no." This clerical error has been corrected in the student's current IEP.

The parents contend that the IEP team did not properly consider the child's need for occupational therapy. They contend the occupational therapist e-mailed them suggesting that she does not need to be the one to provide the service. Documentation reviewed by the department does not indicate a denial of service, but rather the conclusion that the services are within the knowledge base of the special education teachers and can be provided as described in the June 3, 2003, IEP goals. Occupational therapy has been added as a related service in an IEP developed on December 5, 2003. The district properly considered the child's need for occupational therapy.

The parents indicate that the February 3, 2003, IEP contained draft reading goals to improve skills to the 5th grade level while the January 18, 2002, IEP goals stated the student will increase skills to the 6th grade level. A progress report dated January 18, 2002, indicates the anticipation that the goal to improve reading fluency and comprehension to the 4-5th grade level will be exceeded by the end of the IEP time frame. The parents also maintain that the objectives in the February 3, 2003, IEP were the same as in the previous IEP. The parents note that the goals and objectives presented at the February 3, 2003, IEP team meeting were draft goals and objectives. A progress report dated June 2, 2003, states the reading goal is to increase fluency and comprehension one full grade level as measured by the Stanford Diagnostic Reading Test. Present levels indicate that in the fall of 2002, the student was at the 7-4 grade level in comprehension and the 4-6 grade level in vocabulary. The June 2 report indicated the expectation the student would meet the goal by the end of the IEP time frame. This report provides evidence that the IEP team developed a reading goal in 2003 with higher expectations than the previous IEP.

The parents allege the district failed to protect the confidentiality of student records when they discovered records from three other students in their child's file. The parents also contend that pupil records waiting to be converted to microfiche are kept in the open and not in a confidential file. In a letter to the parents dated November 14, 2003, the district acknowledged that part of another child's records were inadvertently taken from the records waiting to be placed on microfiche with the records of the parents' child. The district also acknowledged that a few pages from other students' IEPs were misfiled into the parents' child's file. The district rectified this error and has taken steps to ensure confidentiality of pupil records district wide.

On July 17, 2003, the parents requested to review all of their child's educational records including files from all district locations. The parents reviewed their child's file on September 9, 2003, and discovered records from the middle school, a physician's report, and test protocol/answer sheets were missing. The department reviewed letters between the parents and the district dated August 6, October 26, November 14, and December 30, 2003. The letters substantiate the parents' claim that all records were not made available for review as required following the first request. The student's middle school file and the physician's report were located and added to her records. Regarding the availability of test protocols, the district listed 19 test protocols/answer sheets currently in the student's file. Protocols/answer sheets from February 2003 are believed to have been destroyed after an evaluation report was written summarizing the results. Schools must provide access to all pupil records no later that 45 days after a parent's request. After the parents' initial request on July 17, 2003, to review their child's file and upon discovering the file was not complete, the parents made another request on August 10, 2003, to review all of their child's records. The district did not follow proper procedures in allowing the parents access to their child's records within the 45-day timeline. The department cannot determine whether the protocol/answer sheets thought to be destroyed were a student record. In some cases protocols and answer sheets are destroyed after the test is scored and a report is written. If the student's name is not written on the protocol or answer sheet, it never becomes a student record. In this case, the parents objected to the destruction of the protocols/answer sheets because it prohibited them from challenging the results. A new IEP team was assigned and a reevaluation was conducted during the 2003-2004 school year using testing instruments where the protocols/answer sheets are part of the student's record and available for parent review.

The parents contend the January 18, 2002, IEP failed to contain proper statements of the student's present level of educational performance and how the child's disability affects involvement and progress in the general curriculum. Specifically, they claim the present level of educational performance does not provide measurable baseline information for reading and comprehension skills, does not include the concerns of the parents, and that goals and objectives are not based upon the student's present levels. The present level of educational performance in the January 18, 2002, IEP indicates the student is enrolled in the regular education 7th grade curriculum with special education supports. A present level of performance for reading indicates the student will continue to increase her reading and comprehension skills to grade level. The corresponding reading goal states the student will increase skills to a 6th grade level. The IEP does not include baseline information setting a starting point from which to measure progress on annual goals. The present level of educational performance does not contain statements of parent concerns about their child's education. The present level of educational performance must include the child's strengths, concerns of the parents about the student's education, how the child is currently performing, and how the student's disability affects the student's involvement in the general curriculum. The district did not develop a proper statement of the child's present level of educational performance. Subsequent IEPs for this student include proper statements of present levels of educational performance for this student. No child-specific corrective action is required.

The parents maintain that the district did not provide the required amount of speech and language services in May 2002. A review of the speech and language therapist's log of services indicates speech and language services were provided for 52.5 minutes during each of five sessions in May 2002. The student's January 18, 2002, IEP requires speech and language services for two 30-minutes session a week or one hour a week for three weeks a month. The district provided the required amount of speech and language services.

The parents contend that progress reports toward annual goals during the January 18, 2002, IEP period fail to report the extent to which the student's progress is sufficient to enable the child to achieve the goals by the end of the effective period of the IEP. The progress reports reviewed indicate varying progress, including minimal (anticipating that the goal will not be met by the end of the time frame); proficient (anticipating that the goal will be met by the end of the time frame); and advanced (anticipating that the goal will be exceeded by the end of the time frame). In addition, the progress reports include descriptive comments by the service providers. The district provided proper progress reports.

The parents claim that the progress reports indicate advanced progress on several goals during the IEP time frame. In one case, reporting indicates advanced progress with the comment that the child has successfully completed all objectives on January 18, 2002, again on April 9, 2002, and on June 3, 2002. Had the child's special education service provider or the child's parents requested an IEP team meeting to consider whether the goals should be revised, the district would have been obligated to convene an IEP team meeting. The department found no evidence that such a meeting was requested. Absent such a request, an IEP team must review the child's IEP periodically, but at least annually, to determine whether the annual goals for the child are being achieved.

The parents contend that the district failed to implement the child's January 18, 2002, IEP regarding the provision of supplementary aids and services in history class. The supplementary aids and services related to history class in the January 18, 2002, IEP were to be provided "as necessary" to facilitate the student's involvement in the regular education classroom activities and assignments. The amount and frequency of services in an IEP, including supplementary aids and services, must be stated in a manner that is clear to all who are involved in both the development and implementation of the IEP. In cases where a particular service may only be required under specific circumstances, the circumstances must be described. In this case, the supplementary aids and services were to be provided "as necessary" with no clarification of the circumstances where the services would be necessary. The student's December 6, 2003, IEP includes clear circumstances for the frequency and amount of supplemental aids and services provided to or on behalf of the student in regular education classes.

The parents contend they did not receive progress reports at least four times a year regarding their child's January 18, 2002, IEP goals. Parents must be regularly informed of their child's progress toward the annual goals, including the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year. These reports must be made at least as often as parents are informed of their nondisabled children's progress. The reports do not have to be written reports. The progress reports reviewed by the department include the dates each report was made. For several goals, progress was reported at least four times during the time frame of the IEP. In addition to the written progress reports, the district and parents met frequently and had other contacts during this time period. The student's progress was discussed at some of those meetings and in e-mail communications.

The parents allege that the district failed to develop an IEP and placement within 90 days of receiving their request for a reevaluation of their child. Evaluation referrals must be in writing. When a district receives a request from a parent for a reevaluation, the district must inform parents of the proper referral procedures. The parents claim they made a verbal request for a reevaluation on May 3, 2002, but the department was not able to confirm that the request was made. A referral form reviewed by the department indicates the parent notified the district of the intent to refer on October 15, 2002, and listed the end of 90-day timeline as January 13, 2003. A notice of reevaluation reviewed by the department was dated September 10, 2002, and also listed the 90-day timeline of January 13, 2002. On November 5, 2002, the parents provided the district with a written request for a full reevaluation due to a new diagnosis. The district notes that it did not receive parent consent for additional testing until January 9, 2003. The IEP team did not complete the evaluation, develop an IEP, and provide parents with a notice of placement until June 3, 2003. While the district did present the parents with a request for an extension of the timeline, this was after the timeline had already expired.

Districts must complete an evaluation for special education, develop an IEP, and provide parents with a notice of placement within 90 days of receiving a special education referral. The 90-day timeline can be extended with parent consent, or by the department following parent refusal of an extension request. The district acknowledges it did not comply with requirements for completing a reevaluation within the required time limit.

During the reevaluation process the parents also contend that the district failed to use appropriate assessment instruments that were administered by trained and knowledgeable personnel and failed to include an individual on the IEP team who could interpret the instructional implications of the evaluation results. One of the tests used as part of the reevaluation was the Woodcock Johnson III (WJIII). The parents do not believe the WJIII is a sound instrument to assess complex comprehension that involves higher-level thinking such as inference skills and predicting cause and effect. The parents indicate that the WJIII scores were used to develop the present levels of educational performance, but that no present levels could be developed for inference skills and predicting cause and effect. The parents' concern regarding the qualifications of the person administering the tests, and whether that person was qualified to interpret the instructional implications of the evaluation results, is based on a letter the test administrator sent the parents indicating that she would study the WJIII over the weekend to become familiar with the updated version. The parents made repeated requests of the district to have a district reading specialist join the IEP team to interpret the test results. These requests are outlined in an e-mail from the parent to the district and also include five dates IEP team meetings were supposed to take place to review the test results but the reading specialist failed to attend.

An IEP team must assure that any standardized tests that are given have been validated for the specific purpose for which they are used, are administered by trained and knowledgeable personnel and are administered in accordance with any instructions provided by the producer of such tests. The department finds no evidence that these requirements were not met. In addition, on September 2, 2003, the district agreed to assign a new IEP team and begin the reevaluation process over. The student was starting the year in a new building and the new IEP team included personnel from that building. IEP team meetings were held on November 7, November 12, November 20, and December 5, 2003, to review evaluation data, review/revise the IEP, and determine placement. The district shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that the district conducts proper evaluations and reevaluations within the 90-day time frame, or receive consent for an extension from the parents prior to the 90-day expiration date, or receive permission from the department to extend the timeline.

This concludes our review of this complaint.

//signed CST 6/2/04
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

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