Parents Refuse Consent for IEP? Still No Obligation to Write 504 Plan

If you are responsible for the implementation of either IEP's or Section 504 plans in your school district, at some point, you have probably encountered a situation where a parent refuses to provide consent (or revokes consent) for an IEP, and insists that the district instead implement a Section 504 Accommodation Plan.  If so, you have probably wondered whether the district was obligated to do this, and you may have read the 1996 letter of guidance issued by OCR called Letter to McKethan, 25 IDELR 295 (OCR 1996).  Well, it looks like McKethan just got another "shot in the arm" from a U.S. District Court judge in the Western District of Missouri.

In a decision filed March 1, 2012, Lamkin v. Lone Jack C-6 School District, 4:11-cv-01072-DW, the district had written an IEP for the child placing her in a special school for children with significant disabilities.  The parents disagreed with the placment designation, but instead of filing for a due process hearing and challenging the placement under IDEA, they decided to revoke consent for special education services and enroll their child in the neighborhood school as a regular education student.  When they did so and demanded that the school implement Section 504 accommodations, the school refused, and placed multiple calls to the state department for child welfare, alleging educational neglect of the child.

Not only did the court confirm that the parents had an obligation to exhaust the available administrative remedies under IDEA before proceeding to federal district court, but the judge also upheld the reasoning of the McKethan letter, stating that once the district has developed an IEP for the child and the parents have rejected that IEP, the district has no obligation to implement a plan of Section 504 accommodations for the student.  To require otherwise would essentially require the school to implement an IEP under the guise of a Section 504 plan, when that IEP has already been refused by the parents.  If the IEP is refused, then the child is considered a general education student and receives no services or accommodations. McKethan lives.

It should be noted that this is a lower federal court decision that may be appealed to the 8th Circuit Court of Appeals.

OCR: No Special Education Notation on School Transcripts

OCR's guidance letter issued October 17, 2008 In Re: Report Cards and Transcripts for Students with Disabilities, 108 LRP 60114 (OCR 2008) clarifies that references to special education services received by a student are acceptable on report cards intended for parent use in measuring student progress, but not acceptable on transcripts that may be disclosed to employers and post-secondary institutions.

The letter from OCR notes that local education agencies (LEA's) frequently make distinctions on report cards between general education classes, Advanced Placement, honors, and remedial levels, and special education classes may be similarly noted on report cards.  For example, OCR uses the case of a modified 10th grade literature curriculum noted by using an asterisk or other symbol meant to reference the modified curriculum "as long as the statements on the report card, including the asterisks, symbols or other coding, provide an explanation of the student's progress that is as informative and effective as the explanation provided for students without disabilities".

Special notations, such as asterisks or symbols, are also permissible on report cards for students with disabilities receiving accommodations under Section 504 not affecting course content or curriculum, such as sign language interpreters, alternative materials, or extra time on tests.  Further, in response to the question as to whether a report card for a student with a disability may simply refer to another document that more fully describes the student's progress, OCR responded "yes".

On the other hand, a transcript of student grades may not inform the reader that the student has a disability, has been enrolled in a special education program, or has received special education and related services.  Why? "A student's transcript generally is intended to inform postsecondary institutions or prospective employers of a student's academic credentials and achievements.  Information that a student has a disability, or has received special education or related services due to having a disability, does not constitute information about the student's academic credentials and achievements."

However, it is still permissible, according to OCR, for the transcript of a student with a disability to indicate, through notations or asterisks or other symbols, that the student took classes with a modified curriculum or alternate education curriculum.  This is consistent with the ability of the transcript to reflect other levels of classes, such as Advanced Placement, honors, basic, and remedial instruction. 

The transcript may not contain notations that a general education student received accommodations in general education under Section 504 such as use of Braille materials, because such a notation is irrelevant to the question of whether the student mastered the curriculum of the class and would only be for the purpose of identifying the student as a student with a visual impairment.

The transcript may indicate that the student received a certificate of attendance or other similar document, if such a notation does not disclose whether the student has a disability.