DocuSign Envelope ID: DD706402-7854-42AA-85F7-E1B3B9F6659F

North Carolina Department of Public Instruction

Exceptional Children Division

Complaint Investigation Final Report

Case No. 20-056
December 18, 2020

The Exceptional Children (EC) Division, Department of Public Instruction (DPI), has completed the
investigation of the complaint filed on October 19, 2020, against the Wake County Public School
System (WCPSS). Based upon statements in the complaint, the EC Division identified the following
issue to be investigated:

 Whether WCPSS has a policy, practice, or procedure that delays Child Find.

The findings that follow are drawn from the information in the complaint letter, the school system’s
letter of response, and supporting documentation provided by both parties. The conclusions of law
are drawn from the Individuals with Disabilities Education Improvement Act (IDEA) Amendments
of 2004 (20 U.S.C. 1400 et seq.), the IDEA regulations (34 CFR §300), the North Carolina Policies
Governing Services for Children with Disabilities (Policies), and Article 9 Chapter 115C of the NC
General Statutes. The following report conveys the issues, findings of fact, and conclusions of our
investigation of the complaint.

Background

The systemic complaint was filed on behalf of the students attending Wake County Public Schools.

Description of the Complaint

According to the complainant, the district has failed to effectively supervise and monitor the
implementation of a Multi-Tiered System of Support (MTSS) for struggling students. Specifically,
the complainant states the following areas of MTSS implementation as problematic:
 District websites indicate that all tiers of MTSS must be completed prior to referral for special
education;
 District websites indicate that a child must meet entry requirements to enter Tier 3 and before a
disability may be suspected by an LEA;
 District websites do not notify teachers that parents have a right to request a special education
evaluation at any time; and
 District websites do not fully explain a parent’s right to request a special education evaluation at
any time.

Issue: Whether WCPSS has a policy, practice, or procedure that delays Child Find.

Findings of Fact

1. Cedar Fork Elementary School in the district includes the following information on their website
under the heading Academics and Programs -> Multi-Tiered System of Support (MTSS):
 Tab #4 of 4, Special Education Services (IEP) - Special education services (an IEP) might be
considered for students who continue to struggle and show a slow rate of response to Tier 3
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interventions and strategies, as this might indicate the presence of an educational disability.
However, students who are referred for consideration of special education are required to
meet additional criteria in order to qualify for this level of service. Parents sometimes request
for their student to be “tested” for suspected learning or behavioral disabilities. The school
will always formally respond to these requests by scheduling a referral meeting with the
Individualized Education Program (IEP) team. However, a referral for special education
testing requires the team to determine the appropriateness of the request in consideration of
previous intervention support, present performance, and learning history. It is our
experience that sometimes parent requests for testing are made in an effort to solicit help for
a struggling student. All parents are strongly encouraged to first communicate their concerns
to their child’s teacher and to discuss the appropriateness of a referral for additional support
at Tier 2 or 3 of the MTSS process.

2. Durant Middle School in the district includes the following information on their website under
the search term MTSS, which then leads to a WCPSS resource:
 As you can see in the image above, your core instruction should be sufficient for the majority
of students. We then identify students for whom this is not true and move them onto Tier II
where we add an extra layer of interventions to give them a chance to succeed. This is what
we're doing with your remediation groups during Gear Up. This should then be sufficient for
the majority of these Tier II students. As the year goes on, we then identify the select students
for whom these interventions are still not enough to allow them to remain on grade level and
move them to Tier III, which is individualized interventions. If these interventions are
insufficient, then students are referred to Special Education so that they can receive the
support they require. By following MTSS, we are able to provide each student with the
interventions they need to be successful. Send any MTSS questions or comments to the
"DurantRdMs MTSS" email group.

3. Mills Park Elementary School in the district includes the following information on their website
under the heading Academics and Programs -> Academic Support-> Multi-Tiered System of
Supports:
 What is Multi-Tiered System of Supports? Multi-Tiered System of Supports is an
approach used to increase the opportunity for all students to meet academic achievement
standards through early identification of students whose academic and/or behavioral needs
place them at risk. Multi-Tiered System of Supports ensures that resources and interventions
are appropriately targeted to serve all struggling learners as early as possible through high-
quality instruction.
 What Does MTSS Look Like? The MTSS process has tiers that build upon one another.
Each tier provides more intensive levels of support:
o Tier 1 Core Instruction. The school provides all students with access to high quality
curriculum, instruction, and behavior supports in the general education classroom.
o Tier II includes supplemental small group strategic instruction/intervention in
addition to Core Instruction. The school provides interventions to small groups of
students who need more support than they are receiving through Tier I.
o Tier III includes intensive instruction/intervention and ongoing assessments. The
MTSS Team engages in a problem-solving process and by continually monitoring and
modifying (as needed) each student’s plan, the team is able to design an effective,
individualized instructional program. Your child’s progress in monitored and results are
used to make decisions about additional instruction and prevention.
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 How Can Parents Make the Difference? Communicate with your child’s teacher(s),
Encourage your child to do well in school, Collaborate with your child’s school, Ensure that
your child attends school regularly, Understand assessments your child takes, Ask how you
can help your child at home.
 What Do Parents Do If They Believe Their Child Is Struggling? Parents play a critical
role in supporting what their children are learning in school. The more parents are involved in
student learning, the higher the student achievement. Ask questions to learn more about this
process:
o Talk with your child’s teacher. Ask questions about teacher expectations and how you
can help at home with your student.
o Review and assist with homework assignments. Does my child need a tutor?
o Celebrate your child’s successes!
o Ask for regular progress monitoring reports.
o Learn more about the curriculum (courses the school offers), assessments
(documentation), and interventions (strategies for success), being used in your child’s
school.
o Participate in conferences and other meetings about your child.
o Make a list of specific questions to ask during conferences (e.g., what is working or
what additional supports may be needed?).
 For further information contact your School’s Principal or your Central Office Staff. Contact
information can be found at www.wcpss.net.

4. Leesville Road Elementary School in the district includes the following information on their
website under the heading Our School -> LES Family Handbook 2019-2020:
 SPECIAL EDUCATION SERVICES: A referral to the Special Education Program (SpEd)
may be initiated by a parent or staff member through the Multi-Tiered System of Support
(MTSS) process. The MTSS committee provides a team framework for evaluating data and
strategies used for recommending the most appropriate next steps. If the team feels that a
SpEd referral is the most appropriate next step, then a review will be requested. The SpEd
team is responsible for receiving referrals, obtaining parental permission for assessment,
initiating evaluation procedures, evaluating information, and seeing that an individualized
education plan (IEP) is developed and reevaluated annually, if a placement is made.

5. In a written response to the complaint, WCPSS included information regarding where the
following resources are found on the district website:
 Under the Services -> Special Education heading, a section regarding Parent’s Rights,
includes the North Carolina Department of Public Instruction publications entitled
Procedural Safeguards: Parent’s Rights Handbook (July 2016) and NC Policies Governing
Services for Children with Disabilities (March 2018), which articulate Child Find and referral
process obligations for districts.
 Under the Parents -> Student/Parent Handbook heading, the 2020-21 Parent-Student
Handbook, information regarding Child Find obligations on page 3 states:
o Child Find for Students with Disabilities: We are required to identify, locate and
evaluate young people with disabilities who may be in need of special education and
related services. Parents of children aged two years old or younger who may be in need
of such services should contact the Children’s Development Services Agency at 919-662-
4600. Parents of children aged three or older who are not yet eligible to enter
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kindergarten should call the WCPSS Child Find Office at 919-431-7700. Parents of
children in kindergarten through 12th grade should contact their child’s school.

6. Cedar Folk Elementary School, Durant Middle School, and Mills Park Elementary School
websites have links to the WCPSS Parent-Student Handbook documented in Fact 5.

7. WCPSS provided a sample yearly memo, dated October 23, 2020, addressed to elementary and
secondary principals regarding prominent display of provided Child Find informational posters
and brochures.

8. The WCPSS Special Education Services Process Guide includes the following information for
WCPSS teachers and Administrators:
 Initial Referral Process, Page 77:
o Please remember that referrals for special education may come from multiple
sources including parents/guardians, school staff, Tier III teams, and 504 teams.
A referral made by any of those sources starts the DEC 1 process immediately.
o Upon Tier III decision, the Tier III Team must immediately notify the IEP team with the
written referral. This starts the 90 day timeline.
o Upon referral from the 504 team, a special education case manager will receive an email
notice of a message in EasyIEP regarding the 504 referral. The date of this message
is the considered the date of the referral. The 90 day timeline begins upon receipt of this
message.
o If a parent makes a request for an initial evaluation in writing, the 90 day timeline begins
upon receipt of the written request.
o If a parent(s) makes a request for an initial evaluation verbally, the school is responsible
for immediately providing assistance to the parent(s) to put the request for evaluation in
writing. The 90 day timeline begins upon receipt of the written request.
 Notification Made by a Person Other Than Parent or LEA, Page 110: Within 30 days of
written notification of concerns regarding a child by a person other than the parent or
someone from the LEA, the school shall issue a response letter to the child’s parent. (If
the person provides a notification verbally, the school must ask the person to put their
concerns in writing.).
 Private Evaluations Submitted by Parent for Students NOT Currently Identified, Page 83: If
a parent provides a private evaluation report with the intent for initial referral for special
education services, the school is responsible for immediately providing assistance to the
parents to put the request for a referral for special education services in writing. The 90 day
timeline begins upon receipt of the written request.

9. Within “recent training modules” according to the written response to the complaint, materials
from the 2017-2018 training materials for WCPSS teachers and administrators titled The Special
Education Evaluation/Reevaluation Process include the following information:
 Referral for evaluation: When a person in the LEA or a parent suspects that a child may be a
child with a disability, he/she must provide in writing the reasons for the referral, addressing
the specific concerns and the child’s current strengths and needs. NC 1503-2.1. This begins
the 90-day timeline for Referral to Placement.
 Who can make a referral?: A parent, LEA personnel, MTSS Team, Persons other than parent
or LEA may provide written notification.
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 Procedures for Out of State Transfer

 Procedures for receipt of outside evaluation

10. Within “recent training modules” according to the written response to the complaint, materials
from the 2018-2019 training materials titled AMP Up Your Compliance Knowledge include the
following information:
 Child Find: Each year schools receive Child Find posters and brochures that MUST be
posted and displayed prominently in the school building.
 Child Find is: Used to identify students suspected of a disability and in need of specially
designed instruction, Includes children advancing from grade to grade/highly mobile
(migrant) children, Meets requirement to determine whether or not to refer the student to
special education.

11. Materials from the 2020-2021 training materials titled The Audit Process include the following
information:
 Key Points in Child Find Process: Used to identify students suspected of a disability and in
need of specially designed instruction, Includes children advancing from grade
to grade/highly mobile (migrant) children, Meets requirement to determine whether or not to
refer the student to special education.

12. Materials from the training materials titled LEA Child Find Obligations include the following
information:
 IEP teams or special education teachers may be made aware that a student is suspected of
having a disability from various sources: Intervention Team, Parents, Day Care Providers,
Doctors, Social Workers, Teachers, Individuals who work with or are knowledgeable of the
student. Notification may be made without going through the Intervention Team.
 A response to notification is required within 30 days.
 This process is used to identify students suspected of having a disability and are in need of
special education and related services.
 This includes children advancing from grade to grade/highly mobile (migrant) children.
 The Child Find process meets requirements to determine whether or not to refer the student
to special education.
 Caution: Do not allow the absence of interventions be the determining factor for whether
evaluations are requested. The IEP team can put interventions in place while evaluations are
being conducted.
 Caution: If the team doesn’t have enough information to make a decision, the team will
likely want to request evaluations to gather more data.

13. In the WCPSS Special Education Services newsletter The Exceptional Educator, dated December
2017, the following information is included:
 Initial Referral Process Reminder: Please remember that referrals for special education may
come from multiple sources including parents/guardians, school staff, Tier III teams, and 504
teams. A referral made by any of those sources starts the Referral for Exceptional Children
(DEC 1) process. Upon Tier III decision, the Tier III Team must immediately notify the IEP
team of the written referral. The date of this notification is considered the date of the referral.
This starts the 90 day timeline. Upon referral from the 504 Team, a special education case
manager will receive an email notice of a message in EasyIEP regarding the 504
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referral. The date of this message is the referral date. This starts the 90 day timeline. If a
parent makes a request for an initial evaluation in writing, the 90 day timeline begins upon
receipt or date of the written request. If a parent makes a request for an initial evaluation
verbally, the school is responsible for immediately providing assistance to the parent to put
the request for evaluation in writing. The 90 Day timeline begins upon receipt or date of the
written referral.
 Request for Initial Referrals without Documentation of Interventions: A school team may
receive a written request for an initial referral for a student who does not have any
interventions documented. When this happens, the team is required to hold an Initial Referral
Meeting (DEC 1). At this meeting, the team will determine whether or not evaluations will be
conducted. Lack of documented intervention(s) should not be the determining factor
for deciding whether or not to evaluate. Interventions and evaluations can be done
concurrently if there is a suspicion of a disability. Lack of intervention(s) should not impede
the referral process. Regardless of the team decision, if there has been a request for an Initial
Referral, the IEP team MUST always meet to address the request. The IEP team should not
ask the parent to withdraw their referral just because no interventions have been put in place
and to avoid holding a meeting. Any time a request for referral to special education is made,
an Initial Referral (DEC 1) must be conducted. The decision to evaluate or not is up to the
IEP team.

Relevant Federal Regulations and Guidance (excerpts)

34 CFR §300.111  Child find (a) General. (1) The State must have in effect policies and procedures
to ensure that— (i) All children with disabilities residing in the State, including children with
disabilities who are homeless children or are wards of the State, and children with disabilities
attending private schools, regardless of the severity of their disability, and who are in need of special
education and related services, are identified, located, and evaluated; and (ii) A practical method is
developed and implemented to determine which children are currently receiving needed special
education and related services. (c) Other children in child find. Child find also must include— (1)
Children who are suspected of being a child with a disability under §300.8 and in need of special
education, even though they are advancing from grade to grade; and (2) Highly mobile children,
including migrant children.

34 CFR §300.309 Determining the existence of a specific learning disability (c) The public
agency must promptly request parental consent to evaluate the child to determine if the child needs
special education and related services… (1) If, prior to a referral, a child has not made adequate
progress after an appropriate period of time when provided instruction; and (2) Whenever a child is
referred for an evaluation.

34 CFR §300.311   Specific documentation for the eligibility determination (a) For a child
suspected of having a specific learning disability, the documentation of the determination of
eligibility, as required in §300.306(a)(2), must contain… (7) If the child has participated in a process
that assesses the child’s response to scientific, research-based intervention- (i) The instructional
strategies used and the student-centered data collected; and (ii) The documentation that the child’s
parents were notified about – (A) The State’s policies regarding the amount and nature of student
performance data that would be collected and the general education services that would be
provided; (B) Strategies for increasing the child’s rate of learning; and (C) The parents’ right to
request an evaluation.
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OSEP memo titled A Response to Intervention (RTI) Process Cannot Be Used to Delay-Deny and
Evaluation for Eligibility under the Individuals with Disabilities Education Act (IDEA), dated
January 21, 2011. (https://sites.ed.gov/idea/files/idea/policy/speced/guid/idea/memosdcltrs/osep11-
07rtimemo.pdf)

Relevant NC Policies for the Issue (excerpts)

NC 1501-2.9 Child Find (a) General. (1) The LEA must have in effect policies and procedures that
ensure that-- (i) All children with disabilities three through 21 residing in the LEA, including
children who are homeless children or are wards of the State, regardless of the severity of their
disability, and who are in need of special education and related services, are identified, located, and
evaluated; (c) Other children in child find. Child find must also include-- (1) Children who are
suspected of being a child with a disability and in need of special education, even though they are
advancing from grade to grade; and (2) Highly mobile children, including migrant children.

NC 1503-3.3 Determining the Existence of a Specific Learning Disability Following a referral

from school personnel or a parent, if additional data is sought for determining a child’s eligibility,
parental consent must be obtained and the public agency must adhere to the timeframes described in
NC 1503-2.1 and NC 1503-2.3 unless extended by mutual written agreement of the child’s parents
and a group of qualified professionals, as described in NC 1503- 2.6(a)(1) – (1) If, prior to a referral,
the child has not made adequate progress after an appropriate period of time, when provided
instruction as described in paragraphs (b)(1) and (b)(2) of this section; and (2) Whenever a child is
referred for evaluation.

Analysis and Conclusion

The complainant alleges that, “more likely than not”, various written MTSS information posted
on the WCPSS website and school websites within WCPSS create barriers to the timely
identification of students, specifically students with learning disabilities, in need of special
education and related services. Upon review of WCPSS policies, procedures and practices, there
is evidence to support that Child Find procedures are reviewed often across the district and
information regarding Child Find is made available to parents and caregivers through a variety of
methods.

There is no WCPSS policy that requires all tiers of intervention to be implemented prior to a
referral to special education and local training material indicates that interventions may occur
concurrently with an initial evaluation when a disability is suspected. However, in the examples
of special education referral sources, listed in the WCPSS Special Education Services Process Guide,
Tier III Teams are listed as an example. While true, and other Child Find materials support that
WCPSS does not limit referrals to just Tier III teams, there is a potential risk that stating it as such
may inadvertentently contribute to inconsistent application of the initial referral process.

Public information available to parents on some Wake County individual school websites contains
language that is inconsistent with Federal regulations and North Carolina Policies. Specifically,
MTSS information available on some WCPSS individual school websites contains inconsistent
messaging about when a student can or should be referred for evaluation. Information on one
website indicates that special education might be considered after a child does not make progress in
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Tier 3 of MTSS interventions, and that the appropriateness of a referral must be discussed. Another
school website also indicates that a referral for special education will occur after Tier 3 interventions
strategies prove unsuccessful. This information indicates the presence of a practice or procedure that
could potentially delay a referral and does not make clear to parents that they may make a referral at
any time, nor that the school has an obligation to make a referral if the child does not make
appropriate progress after an appropriate period of time.

The MTSS information posted on the district and school website do not include information that
the LEA may initiate a request for an initial evaluation or the parent’s right to request an
evaluation at any time. While the LEA must have Child Find procedures in place to identify and
locate children suspected with a disability, the absence of this information in the local MTSS
information does not mean that there was or is a failure of WCPSS to conduct its Child Find
obligations. There is evidence to support that WCPSS provided training regarding its obligation
for school personnel to refer students suspected of having a disability.

While the MTSS procedures are not required to include information regarding the parent’s right
to request an evaluation or that the public agency may initiate a request for an initial evaluation,
the SEA has determined in its own systemic complaint (20-043) that there are potential risks for
not including this information in these materials. Therefore, statewide technical assistance
activities and professional development have been initiated. WCPSS’s participation in the
upcoming statewide technical assistance activities is sufficient to address this concern; therefore,
no further corrective action is warranted for this area.

In conclusion, the examples of referral sources in the WCPSS Special Education Process Guide
and inconsistency of posted information across WCPSS individual school websites of when a
referral can be made for students participating in a MTSS and suspected of a specific learning
disability have been identified as areas of risk for WCPSS and its implementation of Child Find
requirements across its district. For these reasons only, WCPSS has a finding of noncompliance
with its Child Find procedures.

WCPSS is found to have a policy, practice, or procedure that delays Child Find. Given said
violation, Corrective Action is warranted.
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CORRECTIVE ACTIONS

The investigation is concluded. When allegations of noncompliance are substantiated by an

investigation, corrective action is required. The LEA is directed to take the following corrective
action to remedy the violation identified.

 On or before, January 15, 2021, the WCPSS MTSS website page, located here, shall be revised
to include the following footnote with hyperlinks as appropriate:

“* Please note: If at any time, a parent, caregiver or school staff member suspects that your
child may have a disability, a referral to special education will be made. The IEP Team, which
includes the parent, will determine if an evaluation will be conducted. This process is generally
referred to as Child Find. For more information, please review the Special Education Process
located under WCPSS Services > Special Education.” (WCPSS may provide a hyperlink to the
Special Education information rather than describing the location.)

 On or before, January 30, 2021, WCPSS shall direct its schools, through a written
memorandum, to remove MTSS procedures from its school website and replace the information
with a link to the district’s webpage regarding a MTSS (as revised above).

Upon email notification from the EC Director documenting that the website revision(s) have been
completed, the Corrective Action Coordinator will review the amended posting from the WCPSS
website and conduct a random sampling of school websites within the district and verify that this
corrective action has been completed.

WCPSS shall forward a copy of the district-wide email to the Corrective Action Coordinator that
provides the memorandum to its staff and a written assurance that all WCPSS school websites
have been revised as evidence of completed corrective action.

Please note: The SEA is required to provide all LEAs a statewide communication regarding the
findings of SEA Complaint Number 20-043 on or before January 15, 2021. Therefore, WCPSS
may elect to incorporate information from this statewide communication in its local
communication for this corrective action item.

 On or before January 30, 2021, WCPSS will revise its Special Education Process Guide, as
indicated below, and notify all EC personnel, via email, of this revision. (Strikethroughs indicate
information that shall be removed and underlines indicate new information that shall be used as
replacement language.)

Initial Referral Process, Page 77:

o Please remember that referrals for special education may come from multiple
sources including parents/guardians, school staff, problem-solving teams
(Intervention/MTSS/Behavior) Tier III teams, and 504 teams. A referral made by any
of those sources starts the DEC 1 process immediately.
o Upon a problem-solving team (Intervention/MTSS/Behavior) decision, Tier III
decision, the Tier III Team must immediately notify the IEP team must be notified
with the written referral. This starts the 90 day timeline.
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WCPSS shall forward a copy of the revised process guidance and the district-wide email
notifying EC Staff of the revision to the Corrective Action Coordinator as evidence of completed
corrective action.

(Please note: At this time, this requirement is limited to the electronic version of the Special
Education Process Guide. WCPSS is not required to re-print and re-distribute hard copies of this
guide as a result of this revision; however, it is required to ensure all staff are made aware of
and have an amended electronic copy and any public-facing electronic copy is updated. Further,
a delay in the distribution of hard copies is recommended until WCPSS participates in the
statewide MTSS technical assistance activities in order to make a local determination if further
revisions are necessary.)

 On or before July 1, 2021, WCPSS shall provide the written assurance that affirms its
completion of the required technical assistance activities specific to the SEA State Complaint
20-043.

Evidence of completion shall be determined according to the due dates established. Any request to
deviate from the required due dates shall be communicated, by either the LEA or the parent, via
email to the Corrective Action Coordinator with a courtesy copy to the other party.

All documentation must be submitted to:

Teresa King, Dispute Resolution Consultant/Corrective Action Coordinator

NC DPI, Exceptional Children Division,
6356 Mail Service Center
Raleigh, NC 27699-6356
Fax Number: (984) 236-2693
Email: [email protected]

This complaint shall remain open pending the submission and approval of all elements of the
corrective action plan. Failure to implement the corrective action will result in sanctions in
accordance with General Statute §115C-107.4.

Sherry H. Thomas, Director

Exceptional Children Division