IDEA Complaint Decision 10-048

On June 18, 2010, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Lake Holcombe School District. This is the department’s decision regarding that complaint. The issues, which relate to the 2009-2010 school year, are addressed below.

  • Whether the district properly responded to a referral for special education and properly informed the parent about the school district’s referral and evaluation procedures

The student’s parent expressed concern about the student’s behavior and academic achievement to district staff and requested assistance for the student’s previously diagnosed attention deficit hyperactivity disorder (ADHD). While the parent did not specifically request a special education evaluation, this option was discussed with the parent, as was a Section 504 accommodation plan (504 plan). At the time, the parent was arranging to have the student evaluated by an outside specialist. It is unclear if the parent understood the outside evaluation was not the same as a special education evaluation under state and federal special education law. District staff did not explain how to make a special education referral because staff believed the parent was not interested in making a referral at that time. Staff also did not believe a special education referral was required. A 504 plan was implemented on September 29, 2009, which included academic accommodations and supports, counseling, and a behavior intervention plan.

Following implementation of the plan, there was a reduction in behavior referrals and some improvement in the student’s grades until January 18 when the student engaged in behavior that violated the district’s code of conduct. The student was expelled on February 3, 2010, as a result of the incident. The parent did not request a special education evaluation be conducted prior to the student’s expulsion. After the student’s expulsion, the parent provided additional outside evaluation information to the district and submitted a special education referral on March 5, 2010. When the referral was received, the district properly initiated and completed a special education evaluation of the student. The individualized education program (IEP) team, which included the parent, met on April 29, 2010, and determined the student was eligible for special education services. On May 13, 2010, the IEP team met and determined the behavior that led to the student’s expulsion was a manifestation of the student’s disability, and the decision to expel the student was reversed. Another IEP team meeting was held on May 20. The parent signed consent for initial placement on May 24, and the IEP was implemented the following day.

A school district must identify, locate, and evaluate all resident students with disabilities who are in need of special education and related services. As part of this requirement, a district must establish written procedures for accepting and processing referrals for special education evaluations from parents and other individuals. In addition, a district must annually inform parents and persons required to make referrals about the district’s special education referral procedures. All referrals must be in writing and include the name of the student and the reasons why the person believes the student is a child with a disability.

The district annually publishes the required Child Find notice in the local newspaper and has written procedures for accepting and processing special education referrals. District staff have been provided information and inservice opportunities regarding their Child Find obligations and the district’s referral procedures. On October 2, 2009, teachers working with the student were reminded of their right to make a special education referral if they believed the student’s 504 plan was insufficient and the student needed special education services. A special education referral was not initiated by district staff because staff believed the student’s needs could be met with 504 accommodations and did not require special education services.

Although the district informed the parent of her right to a special education evaluation when the parent requested assistance for the student, the district did not explain the process for making a special education referral and did not clarify that the outside evaluation the parent had arranged was not the same as an evaluation to determine the student’s eligibility as a child with a disability under state and federal special education law. The district should have informed the parent of how to make a special education referral when the option of conducting a special education evaluation was first discussed and the parent was informed of her right to such an evaluation for her child. The parent submitted a special education referral on March 5, 2010. Upon receipt of the referral, the district properly initiated and completed a special education evaluation of the student.

  • Whether the district improperly disclosed confidential student information from a student record

The complainant asserts the district inappropriately shared confidential information about the student. The district acknowledges confidential information was shared without parental consent. The district has reminded the staff involved in the case of the obligation to maintain student confidentiality. At the start of the 2010-2011 school year, the district has agreed to remind all district staff of the state and federal requirements regarding the disclosure of confidential student information.

  • Whether the district properly considered positive behavioral interventions, strategies, and supports to address behavior which impedes learning

In the case of a student whose behavior impedes the student’s learning or that of others, an IEP team must consider the use of positive behavioral interventions, strategies, and supports to address the behavior. During the May 13 and May 20 IEP team meetings, the IEP team reviewed the results of a functional behavior assessment and considered information provided by the parent and student. The IEP team determined the student’s behavior impeded his learning and that of others. The IEP developed during the May meetings included positive behavioral interventions, strategies, and supports to address behavior, including the development of a behavior intervention plan (BIP). The IEP also included supplementary aids and services to be implemented in the school setting to address the student’s behavior and learning needs. The IEP team began working on the student’s behavior intervention plan which was to be implemented at the start of the 2010-2011 school year. The IEP team did not complete the BIP during the May IEP team meetings. The student’s initial special education placement in a day treatment program for the remainder of the 2009-2010 school year did not require implementation of the BIP. Prior to the end of the May 20 meeting, the IEP team agreed to reconvene in August to complete the BIP and address other areas of disagreement about portions of the IEP to be implemented in the fall. On May 24, the parent gave consent for initial placement and informed the district in writing she did not agree with portions of the IEP, including the positive behavioral interventions, strategies and supports, and reminded the district of its assurance that the IEP team would convene prior to the start of the fall semester to make revisions to the IEP.

An IEP team meeting has been scheduled for August 25, 2010, to review and revise, as appropriate, the student’s IEP and placement. As part of this meeting, the IEP team will discuss amendments and revisions to the positive behavioral interventions, strategies and supports, and complete the student’s behavior intervention plan for the 2010-2011 school year. The district properly considered positive behavior interventions, strategies, and supports to address the student’s behavior.

  • Whether the district properly determined the student’s placement

Within 30 days of determining a student needs special education and related services, the IEP team must meet to develop an IEP and determine the student’s special education placement. The IEP team met on May 13 and May 20, 2010, to develop the student’s initial IEP, consider whether the student was eligible for extended school year services (ESY), and determine special education placement. The parent and student participated in the meetings. A number of placement options were discussed, including a return to full time placement at the student’s attendance area school, day treatment, and alternative education programs. The parent requested the student be placed in a charter or alternative school in another district, instead of the student’s attendance area school, because she felt the student’s needs could not be met in the school district. IEP documentation from the May 13, 2010, meeting indicates the IEP team considered this option and rejected it because district staff felt the student’s needs could be met with a combination of day treatment and programming in the student’s attendance area school.

On May 20, the IEP team determined the student’s placement would be in a half-day, day treatment program for the remaining seven days of the 2009-2010 school year. At the start of the 2010-2011 school year, the student’s special education placement would continue to be the day-treatment program for a half-day and the student would return to his attendance area school for the other half-day. The student’s placement at school would be full-time in a special education resource room so the student could receive individualized instruction in alternate credit recovery courses. The district properly determined the student’s placement.

The parent signed consent for initial placement on May 24, 2010, and the IEP was implemented as written for the remainder of the 2009-2010 school year. On May 24, the parent also informed the district, in writing, she did not agree with portions of the IEP, including the student’s placement for the 2010-2011 school year. An IEP team meeting has been scheduled for August 25, 2010, to review and revise, as appropriate, the student’s IEP and placement for the 2010-2011 school year.

  • Whether the district properly considered whether the student required extended school year (ESY) services during the summer of 2010

On May 11, 2010, the parent inquired whether the district would pay for services during the summer. The IEP team met on May 13 and May 20, 2010, to develop the student’s initial IEP. The student’s eligibility for ESY services was discussed during these meetings, and the student was not found eligible for ESY services. The parent disagreed with the IEP team decision.

ESY services are required special education and related services provided beyond the limits of the school term if the services are needed in order for a child to receive a free appropriate public education (FAPE). ESY services are intended to minimize the effects of regression and recoupment problems. Individualized determinations about each student’s need for ESY services are made by the student’s IEP team. In making the decision, the IEP team should consider all appropriate factors when determining whether the benefits accrued to a child during the regular school year will be significantly jeopardized if the child is not provided ESY services.

In making the decision about ESY services, the district considered information from a number of sources, including the parent, student, district, and outside agency professionals. During the meeting, the IEP team reviewed written recommendations made by an outside service provider who also participated in the meeting. This individual suggested the student needed services without interruption so problematic behaviors could be reduced and progress could be made toward having the student’s needs met in a less restrictive environment. The parent believed services should be provided during the summer in the hope the student would not need special education services in the fall. The district determined there was insufficient actual or predictive evidence the student would experience significant regression or recoupment problems should special education services not be provided during the summer, and the district was not required to provide ESY services so the student could develop new skills or make significant growth over the summer. The IEP team determined the student did not require ESY services and documented its decision in the student’s IEP. The district properly considered whether the student required ESY services.

Within 30 days from the date of this decision, the district must submit to the department a corrective action plan to ensure that parents are properly informed of how to make a special education referral when district staff inform parents of their right to special education evaluation of their child. The district will also provide documentation upon completion of corrective action activities to ensure all staff are aware of the state and federal requirements regarding the disclosure of confidential student information.

All noncompliance identified above must be corrected as soon as possible, but in no case more than one year from the date of this decision. This concludes our review of this complaint.

//signed CST 8/11/10
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

Dec/pfv

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