IDEA Complaint Decision 03-046

On November 3, 2003, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the New Berlin Public Schools. This is the department's decision regarding that complaint. The issue is whether the district, during the 2002-2003 school year, properly determined whether a student needs special education by reason of other health impairment.


The complainant is a special education teacher employed by the district. On December 2, 2002, the special education teacher was part of an individualized education program (IEP) team that met to determine whether a student was eligible for special education. The parent of the child, the principal, the school psychologist, and a regular education teacher were the other participants at the meeting. During the meeting, written summaries of evaluation findings conducted by both the psychologist and the special education teacher were made available. The psychologist and special education teacher also provided an oral report and went through the student's tests and cumulative folder.


Based on her evaluation, the psychologist noted that the student had previously been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and that he struggled both academically and socially. She stated that he had significant attention problems, was disorganized, made frequent mistakes, and seemed unable to understand instructions. The psychologist believed that the student met the criteria and was in need of special education.


The special education teacher disagreed with the psychologist's conclusion that the student met the criteria. She stated that based on her observations she did not believe that the student had attention difficulties. Rather, he appeared attentive, participated in group activities, and was observed helping another student. The special education teacher also reported that when compared to others at his age level, the student's academic skills and his ability to apply those skills were within the average range. She noted that the student had "poor organizational skills and [did] not take responsibility for his learning and meeting class requirements."


The regular education teacher agreed with the psychologist that the student had difficulty paying attention and was easily distracted. She noted that he seemed unable to understand and follow directions or rubrics, and that he had difficulty producing written work that was on task. She had also spoken with the student's teachers in all of the other core academic areas and they were in agreement that these problems existed.


The team also discussed how previous interventions such as tutoring and check lists were ineffective. With the exception of the special education teacher, the rest of the participants agreed that the student qualified for special education. The meeting lasted for approximately an hour. The principal left the meeting about fifteen minutes before other participants because the team had completed its determination regarding eligibility.


The psychologist completed the "Determination of Eligibility for Special Education" form after the meeting ended indicating that the student met the criteria for other health impairment (OHI). On January 7, 2003, the team met again to develop the student's IEP.


The special education teacher maintains that the December 2, 2002, meeting was procedurally incorrect. She states that the evaluation report was not completed at the meeting and there was no draft available. 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, and these materials were provided at the December 2, 2002, meeting. The psychologist acknowledges that she completed the report regarding eligibility after the meeting, but there is no requirement that this report be completed at the meeting, or that a draft copy be provided.


It was also permissible, under these circumstances, for the principal to leave before the other participants. The IEP team must include a local educational agency (LEA) representative who has the authority to commit agency resources and be able to ensure services which are set out in the IEP actually will be provided. In order to do this it is necessary for the LEA representative to be present at the IEP team meeting when those decisions are made. The principal, acting as the LEA representative, was at the meeting when information about the student was provided and participated in the decision regarding whether the student is eligible for special education.


Finally, the district was not obligated to grant the special education teacher's request to reconvene an IEP meeting to further discuss the issue of eligibility. A determination had been made regarding eligibility at the December 2, 2002, meeting, and therefore another meeting was not required. The district was also not obligated to grant additional time to develop a draft IEP as requested by the special education teacher. A LEA is only obligated to provide for additional time if it is needed to permit meaningful parental participation. The teacher did not request more time to permit meaningful parental participation and the parent agreed with all of the other team participants.


In addition to the above procedural concerns that were raised, the special education teacher also alleges that the student was inappropriately identified as qualifying for special education. She maintains that the determination of eligibility was based solely on the ADHD diagnosis, and that the only factors considered in determining the adverse affect of the ADHD were the student's grades. She also maintains that the other participants failed to consider whether there was a causal relationship between the student's ADHD and poor classroom performance, and whether there was a need for special education.


There was a sufficient basis for the determination that the student qualified for special education under OHI. In addition to consideration of the student's grades, the psychologist and the regular education teacher reported that the student has significant attention problems and was easily distracted. They also noted that he had problems with following instructions, and while he may sometimes appear to be working on a task, the work produced was not in accordance with instructions given. The psychologist's report also included information about social problems experienced by the student. The IEP team believed that these problems adversely affected his academic performance. Team participants also discussed how previous strategies such as tutoring were unsuccessful and that the student needed services that could not be provided in the context of regular education.


The explanation for why the student met the criteria of OHI was also sufficient. The evaluation report states that the student's ADHD causes him to have decreased alertness to academic information as well as heightened alertness to distractions, which adversely affects his education performance. The report further states that the student needed to be taught strategies to cope with his difficulty focusing, strategies to distinguish between information of primary and secondary importance, and behavior techniques to help him learn to stop and think. These statements taken together provide sufficient information to show how the student met the OHI criteria and why he needed special education.


The special education teacher also maintains that the team did not reach consensus and she should have been given the opportunity to submit a "minority report" to be included as part of the student's educational record. The IEP team should work toward consensus, but consensus is not always possible. If the team cannot reach consensus, the school district has the ultimate responsibility to ensure that the child receives a free appropriate public education, that a decision is made regarding the child's appropriate education program, and that the parents receive notice of the decision. In this case, although the decision was not unanimous, the team reviewed the relevant information, discussed the issue, and all but one of the participants ultimately agreed that the student qualified for special education services. There is no requirement under either state or federal law permitting or requiring filing a minority report that is to be included as part of the student record. However, nothing precludes a team participant, as was done in this case, from bringing their concerns to administrators such as the special education director.


This concludes our review of this complaint, which we are closing.


//signed 12/19/03
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy



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