IDEA Complaint Decision 99-029

On April 23, 1999 (letter dated April 22, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against Milwaukee Public Schools. This complaint alleges a violation of special education law regarding the implementation of programs for children with disabilities.

Pursuant to 34 CFR 300.660-662 of the regulations implementing the Individuals with Disabilities Education Act (IDEA) and ss. 115.762(3)(g) and 115.90(1), Wis. Stats., the Department of Public Instruction investigated this complaint. In investigating a complaint, the department reviews a district's compliance with state and federal requirements. In reviewing this complaint, department staff reviewed relevant pupil records and a written statement from the school district's acting superintendent of schools. Department staff interviewed the complainant, the child's parents, a district special education supervisor, and a district speech pathologist.

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ISSUE #1:

Did the district fail to provide the parents proper notice of their child's individualized education program (IEP) team evaluation during the 1998-99 school year?

ISSUE #2:

Did the district fail to evaluate a child in a timely manner, when the child's parents requested additional assessment to determine if the child was a child with a disability due to other health impairments (OHI) during the 1998-99 school year?

APPLICABLE STATUTES AND RULES:

Wisconsin Statutes, Section 115.78
Individualized education program team; timeline.

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(lm) APPOINTMENT OF TEAM. The local educational agency shall appoint an individualized education program team for each child referred to it under s. 115.777.

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(2) DUTIES OF TEAM. The individualized education program team shall do all of the following:
(a) Evaluate the child under s. 115.782 to determine the child's eligibility or continued eligibility for special education and related services and the educational needs of the child.
(b) Develop an individualized education program for the child under s. 115.787.
(c) Determine the special education placement for the child under s. 115.79.
(3) TIMELINE. (a) The local educational agency shall notify the parents of the educational placement of their child within 90 days after the local educational agency receives a special education referral for the child under s. 115.777 or initiates a reevaluation of the child under s.115.782 (4).
(b) Before the expiration of the 90-day period, if a local educational agency needs an extension, it shall inform the child's parent of the need and reasons for an extension and request the child's parent to agree in writing to a specific extension of time beyond the 90-day period.
(c) If the parent does not agree to an extension, the local educational agency may request an extension from the division. The local educational agency shall inform the division of the reasons for the request. The division may grant a specific extension of time beyond the 90-day period if the local educational agency shows that it has acted in good faith and that there is good cause to grant the extension. If the division grants an extension, it shall notify the parent of the extension and the reasons for granting it.
(d) Subject to pars. (a) to (c), if the parents of the child or the local educational agency staff determines at any point during the process of the evaluation, development of the individualized education program or placement of the child that additional time is needed to permit meaningful parental participation, the local educational agency shall provide it.

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Wisconsin Statutes, Section 115.782
Evaluations.

(1) NOTICE; CONSENT. (a) The local educational agency shall notify the parents of the child, in accordance with s. 115.792, of any evaluation procedures the agency proposes to conduct, the qualifications of the individuals who will conduct the evaluation and their names, if known.

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(2) CONDUCT OF EVALUATION. * * * The individualized education program team shall do all of the following:

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3. Ensure all of the following:

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c. That the child is assessed in all areas of suspected disability.

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(b) As part of an initial evaluation of a child and as part of any reevaluation of a child under sub. (4), the individualized education program team and other qualified professionals, as determined by the local educational agency, shall do all of the following:
1. Review existing evaluation data on the child, including evaluations and information provided by the child's parents, previous interventions and the effects of those interventions, current classroom-based assessments and observations, and observations by teachers and related services providers.
2. On the basis of that review and information provided by the child's parents, identify the additional data, if any, that are needed, and the qualifications of the evaluators that are needed, to determine all of the following:
a. Whether the child has a particular category of disability or, in case of a reevaluation of a child, whether the child continues to have such a disability.
b. The present levels of performance and educational needs of the child.
c. Whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services.
d. Whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable, annual goals specified in the child's individualized education program and to participate, as appropriate, in the general curriculum.
(c) The local educational agency shall administer such tests and other evaluation materials as may be needed to produce the data identified under par. (b) 2.

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Wisconsin Statutes, Section 115.792
Procedural Safeguards.

(1) SAFEGUARDS ENSURED.

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(b) The local educational agency shall establish and maintain procedures to ensure that a child's parents are provided prior written notice whenever the local educational agency proposes to initiate or change, or refuses to initiate or change, the identification, evaluation or educational placement of the child, or the provision of a free appropriate public education to the child. * * *
(2) NOTICE. The notice required under sub. (1) (b) shall be in the native language of the child's parents unless the local educational agency determines that it clearly is not feasible to do so and shall include all of the following:
(a) A description of the action proposed or refused by the local educational agency.
(b) An explanation of why the local educational agency proposes or refuses to take the action.
(c) A description of any other options that the local educational agency considered and the reasons why it rejected those options.
(d) A description of each evaluative procedure, test, record or report that the local educational agency used as a basis for the proposed or refused action.
(e) If the notice proposes to evaluate or reevaluate the child, the qualifications of the evaluators and their names, if known.
(f) A description of any other factors that are relevant to the local educational agency's proposal or refusal.
(g) A statement that the parents of a child with a disability have procedural safeguards under this section and, if this notice is not an initial referral for evaluation, or reevaluation, or a notice of an individualized education program meeting, the way in which the parents may obtain a description of the procedural safeguards under sub. (3).
(h) Sources for parents to contact to obtain assistance in understanding this subchapter.
(i) The rights specified in s. 115.78 (4).

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34 CFR 300.500 Definitions of "consent," "evaluation," and "personally identifiable."

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(b) "Evaluation" means procedures used in accordance with ss. 300.530--300.534 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

Department of Public Instruction, IDEA Complaint Decision 96-006, 6/11/96.

If the district plans to give a particular test to a child, then the parents must be fully informed about that test. In cases where what actual tests to be given to a child are not known in advance of the testing situation, the district must give parents a description of the general kinds of tests or evaluation procedures that will be used, e.g., an individually administered test of general intelligence, such as the Wechsler Intelligence Scale for Children or the Stanford-Binet Intelligence Scale, which are designed to measure different types of abilities, such as being able to remember numbers and knowing the meanings of different words. At a minimum, the district must include in the notice a description of the kinds of tests or other procedures that will be administered, and the type of professional who will administer each of the tests or procedures.

FINDINGS OF FACT:

The child who is the subject of this complaint was five years old, bilingual, and in kindergarten during the 1998-99 school year. The child was referred for an IEP team evaluation due to speech and language problems. On January 14, 1999, the district gave the child's parents a notice of receipt of a referral for an IEP team evaluation and requested the parent's consent for the evaluation. These notices meet the requirements in the law. On January 14, 1999, at a conference attended by the child's parent and kindergarten teacher, the IEP team reviewed the child's existing evaluation data, including standardized tests, observation, and interview information. The team determined that the following tests and other evaluation materials would be administered: Expressive One Word Test; Preschool Language Scale; Receptive One Word Vocabulary Test; interviews and observations. By notice dated January 15, 1999, the district informed the parent of the need to conduct additional tests, including the titles of the specific tests to be administered and the name and qualifications of the individual who will administer the tests. The notice does not include a description of each evaluation procedure or test. Included with the notice is a statement of the procedural safeguards available to parents. The parents gave their consent to the evaluation.

On March 11, 1999, the district conducted an IEP team meeting, which the child's parents attended. During the meeting, the parents requested that the meeting be stopped and a different interpreter be added to the IEP team. The parents requested an interpreter who spoke "Puerto Rican Spanish" be added to evaluate their son. The parent agreed in writing to extend the 90-day evaluation time limit to April 29, 1999, in order to include the new interpreter. A bilingual speech pathologist who speaks "Puerto Rican Spanish" was added to the team and evaluated the child.

On April 22, 1999, the district convened another IEP team meeting. The child's parents and their advocate attended. Also participating in the IEP team meeting were a district special education supervisor as the local educational agency representative, the child's teacher, two speech and language pathologists, a school psychologist, and a social worker. At the beginning of the meeting, the parents and their advocate stated the child's educational problems were primarily related to attention deficit hyperactivity disorder (ADHD). District staff were aware that the child has ADHD and asthma. Based on the parents' concerns, district IEP team participants suggested adjourning the meeting and assessing the child to obtain additional data to determine whether the child has disability in the area of other health impairments (OHI). The parents and their advocate did not agree with the suggestion. They requested that the IEP team meeting continue. The IEP team meeting continued, and the team determined that the child does not have a disability in the area of speech and language impairment. The team did not address whether the child has an OHI.

The parent advocate requested that OHI be added to the IEP evaluation report after some members of the IEP team had left the room. The district informed the advocate that a new referral for an IEP team evaluation would need to be completed for the district to evaluate the child for an OHI. The district did not request a specific extension of time beyond the 90-day time limit from the parents or from DPI to assess the child for OHI. The child's parents met with the school building coordinator and completed another referral for evaluation of their son.

On April 22, 1999, the district provided the child's parents a notice of receipt of a referral and a notice regarding need to conduct additional tests. The April 22 notice includes the titles of the specific tests to be administered and the name and qualifications of the individual who will administer each test. The notice does not include a description of each test. Included with the notice is a statement of the procedural safeguards available to parents. The district requested and the parents gave their consent to the testing. At a June 3, 1999, IEP team meeting, the child was found to have an OHI and to be a child with a disability.

CONCLUSION:

In conducting an evaluation for a child, first a local educational agency must conduct a review of the existing evaluation data to determine whether additional tests and other evaluation materials are needed. Prior to administering tests and other evaluation materials as part of an evaluation, the district must provide the parent written notice that meets the requirements in the law. The notice must include a description of the evaluation that sufficiently informs the parents. If a district proposes to give a particular test to a child, then the parents must be fully informed about the test.

On January 15, 1999, and April 22, 1999, the district provided the child's parents evaluation notices regarding the need to administer tests and evaluation procedures. The notices include the titles of the specific tests to be administered and the name and qualifications of the individual who will administer each test or procedure. However, the notices do not include descriptions of the evaluation procedures and tests. There is a violation for this element in issue #1.

A local educational agency must appoint an IEP team for each child referred to it. The IEP team must evaluate the child, within the time period required by state law, in all areas of suspected disability. The local educational agency must notify the parents of the educational placement of their child within 90 days after the local educational agency receives a special education referral. Before the expiration of the 90-day time limit, if the local educational agency needs an extension, it must inform the child's parent of the need and reasons for an extension and request the child's parent to agree in writing to a specific extension of the time limit. If the parent does not agree, the local educational agency may request an extension from the department.

At an April 22, 1999, IEP team meeting, the child's parents and their advocate requested the IEP team determine that the child has a disability in the area of OHI. District staff were aware of the child's ADHD and asthma, and on April 22 the district proposed administering additional tests to determine whether the child has an OHI. In proposing additional testing to determine whether the child has an OHI, the district acknowledged OHI as a suspected disability. The district had a duty either to complete this evaluation, including evaluating the suspected OHI, by the April 29 deadline or to seek another extension.

The district did not complete the child's evaluation by April 29, 1999, and did not request another specific extension of the time limit from the parents or from DPI. Instead, the district required a new referral. A new referral is not appropriate because the district has a duty to evaluate the child in all areas of suspected disability within a 90-day time period, unless extended pursuant to state law. A district may not require a new referral when, during the course of an evaluation, another area of disability is suspected. The district failed to ensure that the child was assessed timely in all areas of suspected disability. There is a violation for issue #2.

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DIRECTIVE:

The Milwaukee Public Schools shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that:

  1. parents are provided proper notice of their child's IEP team evaluation, including a sufficient description of each evaluation procedure or test (Issue #1), and
  2. the LEA evaluates children in all areas of suspected disability in a timely manner (Issue #2).

Because the district has conducted a subsequent IEP team meeting and assessed the child in all areas of suspected disability, the department is not requiring child-specific corrective actions. The CAP shall include the activities the district will undertake to implement the directives, the personnel responsible for each activity, the date by which each activity will be completed, and the type of documentation that will be submitted to the department as evidence of completion of each activity. If a CAP requires the district to develop one or more products, the district may submit the product(s) as part of the corrective action plan. The CAP will be reviewed and the district will be informed if any revisions are required. The district will implement the CAP after it has been approved by the department.

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This concludes our investigation of this complaint. This letter is not intended, and should not be construed, to cover any other issues regarding compliance with the IDEA or Chapter 115, Wisconsin Statutes, which may exist and which are not specifically discussed herein. Under the Wisconsin public records law, ss. 19.31-19.39, Wisconsin Statutes, it may be necessary to release this document and related correspondence and records upon request.

signed JSP
6/21/99
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Juanita S. Pawlisch, Ph.D., Assistant Superintendent
Division for Learning Support: Equity and Advocacy

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