IDEA Complaint Decision 07-054

On July 24, 2007, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Ripon Area School District. This is the department’s decision regarding that complaint. The issue is whether the district properly responded to a parent’s April and July 2007 requests for portions of her child’s education records.

On April 26, 2007, the mother of a child with a disability gave consent for her daughter to be given an intelligence test. On April 27 the child’s mother requested that she be allowed to see the actual test after the testing and scoring was completed. On May 25 the child’s mother requested to see the student’s test protocols. On April 27, May 29, and June 1, the district director of student services informed the child’s mother that due to copyright laws she would not be able to review the actual test forms, the psychologist’s scoring and notes are shredded without being shared with anyone, and the test scores are summarized in a psychological report. On May 29, an individualized education program (IEP) team meeting was held and team members, including the parent, were given a copy of the psychological report with explanation. Between May 31 and June 4 there was a series of e-mail exchanges between the child’s mother and the director. On June 11 the director sent the parent a Notice of Response to an Activity Requested by a Parent refusing to show the parent the actual tests administered and the child’s test protocols. On June 6 the director and school psychologist met with the child’s mother to review the test that had been given to the child, as well as the child’s written language responses. However, the June 6 meeting discussion covered other issues. On June 13 the director and school psychologist met with the child’s mother and reviewed the test that had been given to the child as well as the child’s written language responses, areas the child was having difficulty with, and activities the child’s mother could work on with the child. On July 18 the school psychologist met with the child’s mother and reviewed the test that had been given to the child, as well as the child’s written language responses.

On July 19, 2007, the parent requested copies of all subtests, assessments, and test protocols that were used for her daughter’s evaluation. On July 28 the child’s mother requested to view and inspect all education records in the school districts possession, no matter where they were located. On July 30 the district responded to the parent’s request with dates, August 1 and the week of August 13, to view the records. The district director also sent an e-mail to the Harcourt Assessment Corporation, the publisher of the psychological assessments, to confirm the policy on giving parents copies of test protocols. The corporation referred him to their website. Harcourt’s website states that it does not allow dissemination of copies of test record forms or protocols. “Harcourt encourages professionals to review test results with parents, including, if the psychologist deems appropriate, review of responses to individual items. This may involve showing a test protocol or answer contained in test booklets to parents in order to facilitate discussion.” On August 24 and September 11 the child’s mother came to school and reviewed the child’s cumulative file, special education file, an e-mail log, and the child’s student study team file from a previous grade.

A district is required to provide parents, on request, access to their child's education records maintained by the district without unnecessary delay and before any meeting regarding an IEP and in no case more than 45 days after the request was made. After the child’s mother requested on April 27 that she be allowed to see the actual test after the testing and scoring was completed and on May 25 the child’s mother requested to see the student’s test protocols, the district should have reviewed the test results with the mother including test protocols or answers contained in test booklets, if the psychologist deemed it appropriate, before the May 29 IEP team meeting. However, this type of review did not occur until June 13 and July 18.

On July 19, 2007, the parent requested copies of all subtests, assessments, and test protocols that were used for her daughter’s evaluation. The subtests, assessments, and test protocols were copyright-protected and the district could not provide copies to the parent. The parent’s July 28 request to view and inspect all education records in the school districts possession, no matter where they were located, was responded to within 45 days of the request. Test protocols or student response booklets which contain personally identifiable information, such as the child's name, are pupil records. Districts are required by state law to maintain progress records for five years after a student no longer is enrolled in the district. Test protocols are behavioral records under state law and are not subject to a specific retention period. The district was not required by state law to retain these records. While state law does not include a specific retention period for test protocols, retention may be required under Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990. (See Mequon-Thiensville School District; Office for Civil Rights, Midwestern Division, Chicago; 05-03-1079; May 14, 2003.)

Since this complaint was filed the district has reviewed and revised its district bylaws and policies. The district is in the process of reviewing and developing administrative guidelines consistent with the educational goals of the district and applicable federal and state laws. By October 26, 2007, the district must provide the department a corrective action plan describing district-wide staff training to ensure parents are provided on request, access to their child's education records maintained by the district without unnecessary delay and before any meeting regarding an IEP and in no case more than 45 days after the request was made.

This concludes our review of this complaint.

//signed CST 9/21/07
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

Dec/jfd

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