IDEA Complaint Decision 99-035

On April 30 and May 10, 1999 (letters dated April 29 and May 7, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Rio Community 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, documents submitted by the complainant, and the district's response to the complaint. Department staff spoke with the complainant, the child's former foster parent, the director of special education at CESA #5, and a special education teacher from CESA #5.

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ISSUE:

Did the district improperly assess the complainant's child in April 1999 without providing the complainant prior notice or obtaining the complainant's consent?

APPLICABLE STATUTES AND RULES:

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

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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.

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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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(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.

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(e) Each individualized education program team participant who administers tests, assessments or other evaluation materials as part of an evaluation or reevaluation of a child under this section shall prepare and make available to all team participants at a team meeting a written summary of the participant's findings that will assist with program planning.

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(4) REEVALUATIONS. (a) A local educational agency shall ensure that the individualized education program team does all of the following:

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2. Reevaluates a child with a disability in accordance with this section if the local educational agency determines that conditions warrant a reevaluation or if the child's parent or teacher requests a reevaluation, but at least once every 3 years.
(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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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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FINDINGS OF FACT:

This complaint concerns the education of a 10-year-old child with severe cognitive disabilities. In December 1998, while attending school in the Portage School District (Portage SD), the child became a resident of the Rio School District. On behalf of the complainant and child's foster parent, the Columbia County Social Services Department requested that the child be allowed to complete the 1998-99 school year in the Portage SD. The Rio School District adopted the child's current IEP and evaluation, offered the child placement in the Portage SD for the remainder of the school year, and paid tuition to the Portage SD.

The Rio School District contracts with Cooperative Educational Service Agency (CESA) #5 for certain special education services, including cognitive disabilities - severe (CDS). The CDS program operated by CESA #5 is located in the Randolph School District. Therefore, children in the Rio School District who require CDS program services may be placed in the Randolph School District.

The Portage SD scheduled an IEP team meeting for May 4, 1999, to conduct an annual review of the child's IEP and to determine placement for the next school year. The Portage SD sent the complainant prior written notice of the meeting. The notice listed the IEP team participants, including, on behalf of the Rio School District, a CESA #5 administrator and a CESA #5 special education teacher from the CDS program at the Randolph School District.

To familiarize herself with the child prior to the IEP team meeting, the CESA #5 special education teacher visited the child's classroom on April 20, 1999. The Rio School District did not notify or seek consent from the child's parent before the teacher's visit.

During her visit, the CESA #5 teacher saw the child in his classroom. She also spoke to the Portage SD special education teacher about the child's education program and goals. The CESA #5 teacher did not review the child's special education records and did not speak to or interact with the child. She did not conduct any tests or assessments of the child and did not prepare a written summary of findings. The Rio School District did not initiate a reevaluation of the child before or after the CESA #5 teacher's visit to the child's classroom.

CONCLUSION:

A school district must reevaluate a child with a disability when it determines that conditions warrant a reevaluation or if the child's parents or teacher requests a reevaluation, but at least once every three years. 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.

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. In addition, a district must obtain informed, written consent from a child's parents before administering tests or other evaluation materials 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.

In this case, the Rio School District did not initiate a reevaluation of the child. A CESA #5 special education teacher was appointed to the child's IEP team on behalf of the Rio School District. Prior to the IEP team meeting, the special education teacher visited the child's class in order to personally familiarize herself with the child. She spoke to the child's current special education teacher about the child's education program, but she did not speak to or interact with the child. She did not review the child's special education records as part of a reevaluation, conduct any tests or assessments, and did not prepare a written summary of findings. The district was not required to provide prior notice to and obtain informed consent from the child's parent for these activities. The complaint is not substantiated.

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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.

signed JSP
8/31/99
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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