IDEA Complaint Decision 99-042

On June 25, 1999 (letter dated June 24, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Kimberly Area School District. 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. During this investigation, department staff reviewed relevant education records of the child and written materials submitted by the complainants and the district. Department staff spoke by telephone with one of the complainants and the director of pupil services.

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ISSUE:

Did the district reevaluate the complainants' child in December 1998 without obtaining prior written consent from the complainants?

APPLICABLE STATUTES AND RULES:

Section 115.782, Wisconsin Statutes
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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(4) REEVALUATIONS.

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(b) The local educational agency shall obtain informed consent from the child's parent before reevaluating a child with a disability, except that such consent need not be obtained if the local educational agency has taken reasonable measures to obtain such consent and the child's parents have failed to respond.

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Section 115.792, Wisconsin Statutes
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.

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(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."

(a) As used in this part: "Consent" means that--
(1) The parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or other mode of communication;
(2) The parent understands and agrees in writing to the carrying out of the activity for which his or her consent is sought, and the consent describes that activity and lists the records (if any) that will be released and to whom; and
(3) The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time.

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FINDINGS OF FACT:

This complaint concerns a child who has a speech and language disability. On December 1, 1998, the district sent the complainants written notice of its intent to reevaluate the child. The notice states that the parents and the child are IEP team participants; that the IEP team is responsible for the reevaluation; and that the IEP team will first review existing information about the child to determine whether further evaluation or testing is necessary to assist in identifying the child's educational needs and in making a determination of whether the child continues to have a disability. The notice informs the parents that they would be notified of any determination that further tests are necessary and that the district would request their written consent for such testing. Included with the notice is a statement of the procedural safeguards available to parents. The complainants maintain that they never received the December 1 notice.

On December 4, 1998, the child's speech and language pathologist contacted the complainants by telephone to discuss the child's reevaluation. The parents and the speech and language pathologist agreed that additional testing would be conducted on December 10, 1998. On December 7, 1998, the district sent the complainants a form entitled "Notice and Consent for Additional Tests." The notice identifies the areas to be evaluated, the specific tests to be used, the name of the evaluator, and her qualifications. The form also requests the parent's written consent for additional testing.

The district's speech and language pathologist reevaluated the child on December 10, 1998. The complainants state that they did not receive the December 7 notice and consent form until December 11, 1998. The complainants never signed and returned the form to the district to provide written consent for reevaluation of the child. District staff administered tests to the child prior to obtaining written parental consent.

CONCLUSION:

A school district must provide written notice to the parents of a child with a disability a reasonable time before it proposes or refuses to reevaluate a child. Reevaluations are conducted by the IEP team to determine whether the child continues to have a particular category of disability or a different disability; the present levels of performance and educational needs of the child; whether the child continues to need special education and related services, and whether any additions or modifications to the special education and related services are needed.

In conducting a reevaluation for a child, the district must first conduct a review of the existing evaluation data available for a child to determine whether additional tests and other evaluation materials are needed. A school district must obtain informed, written parental consent before administering tests or other evaluation materials to a child with a disability as part of a reevaluation, except that such consent need not be obtained if the district has taken reasonable measures to obtain such consent and the child's parents have failed to respond.

On December 1, 1998, the district sent the complainants written notice of its intent to reevaluate the child. On December 4, 1998, the district and the complainants verbally agreed that additional testing of the child would be conducted.

The district sent the complainants proper written notice, dated December 7, 1998, of its intent to conduct additional tests and requested written parental consent for the testing. The district reevaluated the child on December 10, 1998. The complainants assert that they did not receive the December 7 notice and consent for reevaluation until December 11, 1998, and they never provided written consent to the district for reevaluation. The district did not obtain written consent from the parents prior to the child's reevaluation. The complaint is substantiated.

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DIRECTIVE:

The Kimberly School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that the district obtains written, informed consent from the complainants prior to the child's reevaluation and from the parents of each child with a disability prior to each child's reevaluation, except that such consent need not be obtained if the district has taken reasonable measures to obtain such consent and the child's parents have failed to respond.

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 the department has approved it.

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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
8/23/99
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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