IDEA Complaint Decision 12-033

On June 11, 2012, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against the Madison Metropolitan School District. This is the department’s decision regarding that complaint. The issues are whether the district, during the 2011-12 school year, properly conducted a special education evaluation and properly provided the parent a copy of the student’s individualized education program (IEP) and evaluation report before requesting consent for placement.

The complaint involves divorced parents, both of whom have legal authority to make educational decisions for the student. The complainant maintains the district violated special education requirements by conducting a speech and language screening outside a special education evaluation process, by referring and evaluating the student for special education without following proper timelines, and by failing to provide parental notice and request consent during the evaluation and IEP process.

Public school districts must locate, identify, and evaluate all resident students with disabilities who need special education and related services. Anyone may make a written referral for a special education evaluation. Licensed educators are required to refer a student for an evaluation if the educator suspects the student may have a disability and need special education. Within 15 business days of receiving a special education evaluation referral, an IEP team, which includes the student’s parents, must conduct a review of existing data and, if additional data is needed, the district must send to the parents a request for consent for additional testing. An IEP team meeting is not required to conduct the review of existing data, but if one is held, it must be scheduled at a mutually agreeable time, and the parents must be notified in writing of the meeting and of the other IEP team participants who will attend. Within 60 days of receiving parental consent for evaluation, the IEP team must meet and make an eligibility decision. If the student is found eligible for special education, an IEP must be developed within 30 days. Parental consent is required before initial special education placement.

On February 10, 2012, a parent teacher conference was held with the student’s father. During the conference, the student’s teacher raised concerns about the student’s reading fluency, comprehension, and language. The father agreed to allow a speech and language therapist (SLP) to assess the student’s language skills. The district considered the assessment to be a screening, not a special education evaluation. The speech and language screening was carried out over three sessions in February by a licensed speech and language therapist. There is no evidence the district informed the student’s mother of the screening.

Federal regulations provide that screening to determine appropriate instructional strategies is not considered an evaluation of eligibility for special education services. Screening activities generally include all children in a school, grade, or class, such as kindergarten screening. A special education staff conducting an observation or administering an assessment to an individual student to explore or verify the possibility of a disability is not screening. A formal referral for evaluation for special education services, including parental consent, must be in place prior to special education personnel performing activities that relate to eligibility determination.

While the district notified the student’s father and received the father’s consent to conduct an individual screening, the tests administered by an SLP were for determining whether the student had a speech and language impairment and did not meet the definition of screening. The district should have informed both parents of the intent to refer the student and initiated a special education referral in February, when staff first suspected the student might have a speech and language impairment requiring assessment by an SLP.

A conference was held on March 9, 2012, to discuss the results of the speech and language screening. The student’s father was invited and notified the student’s mother the day before the meeting. There is no evidence the district contacted the mother about the meeting. The conference was not considered an IEP team meeting; however, all required IEP team participants, including both parents attended. During the meeting, the decision was made to refer the student for a special education evaluation because of speech and language concerns. Existing data was reviewed and it was determined additional assessment was needed. A written special education referral was submitted on March 12. Documentation developed after the meeting was addressed to both parents and indicated the parents were informed of the intent to refer during the March 9, 2012, conference and a written referral was submitted on March 12, 2012. A notice of the results of the review of existing data and request for consent dated March 26, 2012, was sent to both parents on March 23. The district indicates the date of the review of existing data on this form (March 26) was in error and the review of existing data and decision that additional data was needed was actually made on March 9, during the conference. Parental consent was obtained on March 26, 2012.

In the case of divorced parents with joint custody, either parent may grant consent for evaluation and placement. Consent of each parent is not required to proceed with an evaluation or initial placement. A district must proceed with a special education evaluation when it has consent from one parent, even in situations where the other parent has refused or withdrawn consent. In this case, the student’s father granted consent for a special education evaluation on March 26, 2012. The student’s mother notified the district on April 17, 2012, she did not give consent and wanted testing stopped. The district properly proceeded to conduct an initial evaluation of the student with one parent’s consent.

The IEP team met on June 1, 2012, to conduct an evaluation, and if found eligible, develop the student’s IEP and placement. This was more than 60 days after the district received parental consent for evaluation. Both parents were invited and attended the meeting. The IEP team found the student eligible for special education, and developed an IEP to be implemented for the 2012-13 school year. The complainant indicates the local educational agency requested the parents sign consent for placement at the end of the IEP team meeting, before a copy of the placement and IEP was provided.

Following an IEP team meeting to develop an initial IEP and placement for a student, the district must provide a notice of placement and copy of the IEP before requesting informed parental consent. In addition, following an eligibility decision, the IEP team must develop an evaluation report and provide a copy to the parent. The district indicated the student’s father was anxious to sign consent for placement at the end of the meeting and was allowed to do so. The student’s mother signed that she did not give consent. A copy of the evaluation report, IEP, and placement notice was mailed to each parent the following week. The district acknowledged it did not properly notify the parents when it gave a placement consent form for the parents to sign before providing a copy of the IEP team and placement notice. No additional corrective action related to this issue is required, since both parents received proper and timely notice soon after the meeting and before the IEP was to be implemented.

The district failed to properly conduct a special education evaluation when it held an IEP team meeting to review existing data before a written referral had been made and without providing the parent with proper notice; when it conducted a speech and language assessment without following proper procedural safeguards, thus delaying the evaluation process; and by not following the required timelines. The district must consider compensatory services because of the failure to timely refer and evaluate the student by holding an IEP team meeting or, with the agreement of the student’s parent, develop a written document to amend the IEP to reflect compensatory services or document the agreement that no compensatory services are necessary. By September 30, 2012, the district will provide documentation of the consideration and decision regarding compensatory services.

In addition, within 30 days of this decision, the district will develop a corrective action plan to ensure:

  • parents receive timely notice of a special education referral prior to conducting a review of existing data,
  • parents are properly invited to IEP team meetings to review existing data following the receipt of a special education referral, and
  • individual assessments of children by special education personnel must adhere to special education procedural safeguards, referral, and evaluation requirements.

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. You may contact Paula Volpiansky, Special Education Team, at (608) 267-3725 if you have any questions about this decision or for technical assistance.

//signed CST 8/8/2012
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support

Dec/pfv

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