IDEA Complaint Decision 99-007

On February 5, 1999 (letter dated February 5, 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. During this investigation, department staff reviewed written statements from the complainant and the district.

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ISSUE:

During the 1997-98 school year, did the district fail to properly evaluate the child for attention deficit disorder?

APPLICABLE STATUTES AND RULES:

Wisconsin Administrative Code, Section PI 11.01 (Repealed October 1, 1998)
Purpose.

(1) LEGISLATIVE INTENT. The legislature recognized that many children and youth, 3 to 21 years of age, have not experienced appropriate educational opportunities because comprehensive services were not available through all public schools which were commensurate with their EEN. Subchapter V, ch. 115, Stats., was enacted to ensure the identification of such needs and the development of services for children to appropriately serve these needs. School districts shall provide children with EEN who have attained the age of 3 with a free appropriate public education in accordance with this chapter.
(2) BASIC TENETS. (a) All children and youth in the public and private sectors, who are in need of special education services, shall be identified. The legislature has specified that the identification process shall include screening, referral and M-team procedures.

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Wisconsin Administrative Code, Section PI 11.02 (Repealed October 1, 1998)
Definitions.

In this chapter:

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(7) "Child" means any person under the age of 21 years and, for the duration of a school term, any person who becomes 21 years old during that school term, except as otherwise provided.

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(10) "Child with exceptional educational needs" or "child with EEN" means a child who has a handicapping condition and who because of the handicapping condition needs special education.

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(17) "EEN" means exceptional educational needs as defined in s. 115.76(3), Stats.
(18) "Exceptional educational needs referral" or "EEN referral" means a written statement submitted to a board under s. PI 11.03(2)(a).

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(20) "Free appropriate public education" or "FAPE" means special education and related services which:
(a) are provided at public expense, under public supervision and direction, and without charge;
(b) Meet the statutes and rules enforced by the department; and
(c) Are provided in conformity with a child's IEP.

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(49) "Special education screening" is a process used to determine whether there is reasonable cause to believe that a child is a child with EEN.

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Wisconsin Administrative Code, Section PI 11.03 (Repealed October 1, 1998)
Special education screening and EEN referrals.

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(2) EEN REFERRALS. (a) Any person who has reasonable cause to believe that a child is a child with EEN may submit an EEN referral to a school board. An EEN referral shall be in writing and it shall include the reasons why the person believes that the child is a child with EEN.

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Wisconsin Administrative Code, Section PI 11.04 (Repealed October 1, 1998)
Multidisciplinary teams.

(1) CONSENT AND NOTICE FOR THE M-TEAM EVALUATION PROCESS.
(a) 1. Except as provided in subd. 3, a board may not conduct an M-team evaluation of a child without the parent's written consent.

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(2) APPOINTMENT AND COMPOSITION. (a) Whenever a board receives an EEN referral for a child who is a resident of the district and who has not graduated from high school, the board shall appoint an M-team to conduct an M-team evaluation of the child to determine whether the child is a child with EEN. The board shall select the members of an M-team for their expertise in the handicapping condition the child is suspected to have.

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(3) M-TEAM EVALUATION. (a) The M-team shall examine all relevant available data concerning the child including the following:
1. Records concerning the child's previous and current educational performance, health and social behavior.

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(c) The parent shall be involved and consulted throughout the entire M-team process.
(d) The M-team shall use evaluation materials and procedures as needed to assess the child in all areas related to the suspected handicapping condition.

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(e) Any member of the M-team may request additional information or conduct additional tests at any time during the evaluation process.

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(4) MEETING. * * * (d) At the meeting the M-team shall discuss and consider all of the information received under sub. (3) and it shall discuss and compare the evaluations and findings of each of the members. Based upon its evaluations and findings the M-team shall, using the criteria established in s. PI 11.35, determine if the child has a handicapping condition. An M-team may not find that a child has a handicapping condition based upon a single evaluation procedure. If the child is found to have a handicapping condition, the M-team shall determine whether as a result of the handicapping condition the child needs special education. The M-team shall reach a conclusion regarding whether the child is a child with EEN. If the M-team concludes that a child is a child with EEN, the M-team shall consider and make recommendations regarding what related services the child may need.

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(6) REEVALUATION. (a) A board shall initiate a reevaluation for each child who is receiving special education as follows:
1. No later than 3 years from the date the last M-team report completed on the child was approved under sub. (5)(d).

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4. Whenever the board has reason to believe that the child has a handicapping condition that has not been identified; and

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(b) Any board and M-team that is conducting a reevaluation shall comply with the requirements under this section.

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Wisconsin Administrative Code, Section PI 11.35
Eligibility criteria.

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(1) STANDARDS. Children shall be determined to have a handicapping condition who have been identified, evaluated and classified as handicapped pursuant to s. PI 11.04 and this section. The minimum criteria for the determination of handicapping condition and eligibility for special education shall be consistent throughout the state.

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(2) HANDICAPPING CONDITION. Educational needs resulting primarily from poverty, neglect, delinquency, social maladjustment, cultural or linguistic isolation or inappropriate instruction are not included under subch. V, ch. 115, Stats.

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(k) Other health impairment. Other health impairment means having limited strength, vitality or alertness, due to chronic or acute health problems. The term includes but is not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, or acquired injuries to the brain caused by internal occurrences or degenerative conditions, which adversely affects a child's educational performance.

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Note: With respect to the eligibility criteria under s. PI 11.35, in September 1991 the U.S. department of education issued a memorandum clarifying state and local responsibilities for addressing the educational needs of children with attention deficit disorder (ADD). (See 18 IDELR 116). As a condition of receipt of federal funds under the Individuals with Disabilities Act (IDEA), the state and local school districts are bound to comply with the federal policy outlined in that memo. (See e.g. Metropolitan School District of Wayne Township, Marion County, Indiana v. Davila, 969 F.2d 485 (7th Cir. 1992)).

Pursuant to that federal policy memo, a child with ADD is neither automatically eligible nor ineligible for special education and related services under ch. 115, Stats. In considering eligibility, a multidisciplinary team (M-team) must determine whether the child diagnosed with ADD has one or more handicapping conditions under ch. 115, Stats., and a need for special education. For example, pursuant to the federal policy memo, a child with ADD may be eligible for special education and "other health impaired" or any other condition enumerated in ch. 115, Stats. * * *

34 CFR 300.532 Evaluation procedures.

State educational agencies and LEAs shall ensure, at a minimum, that:

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(e) The evaluation is made by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of suspected disability.
(f) The child is assessed in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

U.S. Department of Education, Joint Policy Memorandum, September 16, 1991 (18 IDELR 116)

The list of chronic or acute health problems included within the definition of "other health impaired" in the Part B regulations is not exhaustive. The term "other health impaired" includes chronic or acute impairments that result in limited alertness, which adversely affects educational performance. Thus, children with ADD should be classified as eligible for services under the "other health impaired" category in instances where the ADD is a chronic or acute health problem that results in limited alertness, which adversely affects educational performance. In other words, children with ADD, where the ADD is a chronic or acute health problem resulting in limited alertness, may be considered disabled under Part B solely on the basis of this disorder within the "other health impaired" category in situations where special education and related services are needed because of the ADD.

FINDINGS OF FACT:

The youth whose education is the subject of this investigation was identified with an emotional disturbance (ED) disability in April 1989. The district most recently reevaluated the child for the handicapping condition in the area of Emotional Disturbance (ED) on February 11, 1998, at an M-Team meeting. Neither before nor during this triennial reevaluation did the district receive a request to evaluate the child for any additional handicapping conditions. The team found that the youth continued to have an emotional disturbance and be eligible for special education and related services. A social worker, ED teacher, psychologist, and staffing chairperson attended the meeting.

Through his many years of private practice and public service as a licensed psychologist, the school psychologist who was a member of the child's evaluation team often worked with children and youth diagnosed with ADD. He understands indicators of ADD, and he frequently tested children and youth for indicators of ADD.

The psychologist worked with the child regularly at Vincent High School. The psychologist had been identified as the person with whom the youth could consult during emotionally trying situations. The psychologist regularly observed the youth when the youth was agitated and at no time did he feel the child indicated any characteristics of ADD.

Team members were aware that ADD could trigger a consideration of "other health impaired" as a category of disability. The team members had no reason or evidence to consider assessing the youth for possible ADD as an "other health impairment" (OHI) prior to or at the time of the triennial evaluation.

CONCLUSION:

A school district has a responsibility to provide a free appropriate public education (FAPE) to each child with a disability. In order to provide FAPE, a district must, in part, reevaluate children receiving special education and related services every three years. A school district must appoint an M-team when a child requires reevaluation.

The district is required to reevaluate the child to determine the child's continued eligibility for special education and related services in regard to the identified handicapping condition. If services are determined to be necessary, the team determines the special education needs of the child. In the reevaluation of the youth, the district evaluation team focussed on determining continuing eligibility as a youth with an impairment in the area of ED, not OHI. There is no violation in this regard.

Under state rules in effect during the period of this complaint, a district had a duty to reevaluate a child with a disability to determine whether the child had handicapping conditions not previously identified. A child with ADD may be eligible as a child with a disability under the OHI disability category solely by reason of ADD if the child meets the eligibility criteria for OHI and requires special education.

Team members were aware that ADD could trigger a consideration of OHI as a category of disability. The team members had no reason or evidence to consider assessing the youth for possible ADD and/or other health impairment prior to or at the time of the triennial evaluation. There is no violation in this regard.

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This concludes our investigation of this complaint, and we are closing this complaint investigation. 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.

Please be advised that under 34 CFR 300.661(d) either the school district or the complainant may request a review of these findings by the Secretary of the United States Department of Education. Requests for secretarial review should be submitted to:

Judith Heumann, Assistant Secretary
Office of Special Education and Rehabilitative Services
U. S. Department of Education
Switzer Building
330 C Street, S.W.
Washington, DC 20202

signed JSP
4/27/99
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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