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.

CT DOE Circulates Draft Revised Special Education Regulations

In June 2007, the CT DOE started the process of revising the state special education regulations, and circulated its proposals for public comment.  Based on the responses, the Department decided to revise its proposal and restart the review process.  A new draft has emerged, dated February 3, 2010.  According to the accompanying memorandum from Commissioner McQuillan, a new public comment period will follow.  So, what's in the new draft that might be of interest to LEA's in Connecticut?  For the most part, the new draft more closely tracks the IDEA requirements and narrows the differences between state and federal regulatory requirements.  But there are some significant differences and changes from the earlier draft.

 

  • Pregnancy is no longer a condition granting automatic eligibility for special education services.
  • The statutes making seclusion and restraint restrictions applicable to LEA's have been translated into regulatory requirements under the auspices of the CT DOE, with specifics not contained in the broader statutory scheme.
  • The proposed regulations now state that each child with a disability shall be entitled to participate in graduation exercises even if not graduating with a regular high school diploma, and the child must be able to participate at least once.
  • The proposed regs require that if a child with a disability is placed in a non-degree-awarding private placement and meets the requirements for a high school diploma from the LEA's high school, the LEA is required to award a diploma to the student.
  • The regs codify the "interpretation" provided by CT DOE that a school year starts July 1 and runs until June 30, and that if a child with a disability turns 21 during that school year, the entitlement for services runs to the end of the school year in which the student turns 21.
  • The regs provide that personnel may be required to attend Professional Development activities ordered by CT DOE through compliance efforts.
  • ESY: Consideration of eligibility for and content of extended school year services must be accomplished early enough in the school year to allow the parent "sufficient time" to challenge the determination before the start of the ESY program.
  • The date of a referral to special education is not the date the referral form is filled out by the LEA, but rather, the date when the referral is made by parent, teacher, or outside professional. 
  • An initial PPT must be held within 15 days of the receipt of the initial referral.
  • The initial evaluation must be conducted within 60 days of receiving consent for the evaluation.  60-day timeline not applicable if parent fails to make child available or enrolls child in another district.
  • If the child is eligible for services, PPT "may" develop IEP at the eligibility PPT and must implement it within 15 days of "this meeting", exclusive of time needed to obtain parental consent.
  • If IEP is not written at eligibility meeting, PPT to develop IEP must be held and IEP must be implemented within 15 days of eligibility determination, exclusive of time needed to obtain parental consent.
  • Prior Written Notice (PWN) of the actions of the PPT must be provided at least 10 days before the change in identification, services, evaluation or placement proposed by the PPT.
  • A full copy of the IEP must be sent to the parents within 10 school days after the PPT meeting.
  • If the LEA proposes an evaluation and the parent fails to respond, after 10 days the failure to respond is to be interpreted as a refusal of the request to evaluate.
  • Up to 10 percent of the population of the LEA may be identified as gifted.
  • IEP Goals must include short-term objectives with "objective criteria" evaluation procedures and schedules for determining mastery.
  • Although the rights of the parent transfer to the child at the age of 18, the student is permitted to make a written notification to the LEA that the parent continues to have the right to make educational decisions on behalf of the student despite attaining the age of majority.
  • Diagnostic placement timeline is changes to 40 school days maximum, and it is explicit that it is considered an evaluation of the child.  If conducted as part of the initial evaluation, the 60-day timeline is extended to accommodate the diagnostic placement.  Meetings with "designated personnel" must take place every 10 school days.  Final IEP must be written 5 school days before the end of the diagnostic placement.
  • Homebound instruction must be provided after receipt of a certification on a form supplied by the LEA that the treating physician has consulted with the school health supervisory personnel and determined that the child cannot attend school due to a valid medical reason, the child will be absent for at least 10 school days, and the expected date of return to school.  PPT may also provide homebound for a medically complex child with a serious illness or chronic condition who is absent from school sporadically, beginning no later than the 3rd day of absence if the child is able to receive instruction.  In case of dispute, the parent must provide consent for consultation between the treating physician and school health personnel; homebound will be provided during the dispute if and only if consent is provided for consultation.  Instruction may be provided in other locations such as a public library.
  • If an LEA requests that a parent transport a special education student and the parent agrees, the parent must be provided with mileage reimbursement.  Mileage reimbursement is not required if the LEA offers and the parent rejects transportation, unless a hearing officer finds that the transportation offered by the LEA was not appropriate.

Forest Grove Case Drops Other Shoe

In a decision filed December 8, 2009, the United States District Court for the District of Oregon issued a ruling in the case that went all the way to the United States Supreme Court and back on the issue of whether a school district could be liable for tuition reimbursement to a private school in a case where the student had never before received special education services from the public school district.  In Forest Grove School District v. T.A., 129 S.Ct. 2484 (2009), the Supreme Court held that the IDEA does not pose a categorical bar to such reimbursement. On remand for a determination of whether the hearing officer's reimbursement order should stand, the United States District court reversed, denying reimbursement to the parents on equitable grounds.

So, what equitable factors should be considered in determining whether reimbursement is appropriate and if so, how much?  According to the Forest Grove court (citing others), notice to the school district provided by the parents of the need for private placement, existence of other more suitable placements, the efforts expended by the parents in securing alternative placements, the general cooperative or uncooperative position of the school district, and whether the student was placed for reasons unrelated to his/her disability are all permissible considerations.

In this case, the parents did not provide notice to the district until after the placement had already been made on March 24th, and then requested a hearing to require evaluation on April 18th.  The district agreed to evaluate when asked and determined eligibility did not apply under either IDEA or Section 504 as of August 26th.  On the theory that the district could not be held liable for reimbursement until after the "wrong" eligibility determination was made, this excluded liability for reimbursement during the period March 24th to August 26th.

The court found no helpful evidence in the record regarding the existence of other more suitable placements for the child, but found that the parents expended little effort in securing the placement at Mt. Bachelor Academy, doing so immediately after obtaining a recommendation from a professional, without even visiting the school.  The court did find that the district failed to follow up on possible ADHD/OHI eligibility in an earlier referral, so the district's lack of cooperation in the referral process weighed in favor of reimbursement.  However, the "decisive factor" in the court's decision was cited as the parents' decision to enroll the student in private school not because of the ADHD that resulted in eligibility for special education, but because of drug use and abuse of marijuana so severe that he was occasionally so drugged he could not get out of bed or speak, made thousands of dollars worth of calls to phone sex lines, scanned Internet pornography sites, and ran away from home.  The school enrollment application therefore listed "inappropriate behavior, depression, opposition, drug use, runaway" as reasons for the placement.

Finally, although not citing this as an equitable factor in the court's decision, the court noted that the cost of the Mt. Bachelor Academy placement exceeded $5,000 per month, which, if provided for every student diagnosed with ADHD, could result in expenditures for tuition just for this subgroup of students somewhere between $12M and $26M per year, assuming a 9-month school year.  Judge Mosman stated in his decision that he included this fact in his decision to demonstrate that "decisions, such as the one in this case, can have potentially devastating real world implications".

Second Circuit Decision: Failure to Name Specific School Not a Procedural Violation for IEP

In a new decision issued October 9, 2009, T.Y. v. New York City Dept. of Education, 109 LRP 63646 (2d Cir. 2009), the Second Circuit Court of Appeals has ruled that it is not a procedural violation of the Individuals with Disabilities Education Act (IDEA) for the IEP not to name a specific school that is recommended for a child with special education needs.  Departing from the 4th Circuit view on this issue in a case decided in 2007, the 2nd Circuit ruled that the IDEA provision requiring IEP's to include the anticipated location of a child's services does not mean that the IEP must name a specific school, just a general type of educational program.

According to the decision, the child in this case, T.Y., is a child with autism with resulting developmental and language delays.  He received special education services in a preschool program during the 2005-2006 school year, and at the annual review in the spring of 2006, a program was proposed for the 2006-2007 school year including a classroom with a 6:1:1 ratio of students, teachers, and paraprofessional staff.  Related services and a paraprofessional for "crisis management" were also proposed.  The IEP specified that the placement would be in "District 75", the city's special education district, but did not name a school.  A month after the IEP was prepared, the parents received a placement notice from the districts central placement office.  The parents visited the program and rejected it as unsuitable.  The district proposed an alternative location, but the parents rejected that school as well and unilaterally placed the child in a private special education program.  The parents claimed both that the program was substantively inappropriate and that it was procedurally inadequate because it failed to name a school or classroom in the IEP.

Citing US Department of Education commentary on their IDEA regulations that "the location of services in the context of an IEP generally refers to the type of environment that is the appropriate place for provision of the service", the court concluded that the IDEA reference to a "location" of service does not mean a specific school, but the "general environment of the overall program".

The court emphasized that the holding should not be read to mean that school districts may assign a child to a school that is not able to implement the IEP, but the failure to name a school in the IEP will not be a per se violation of IDEA.  The court also noted that it appeared the parents were seeking "veto power" over the placement decision rather than input, which the IDEA "clearly does not grant them".

SDOE Memo Denies Excess Cost Grant Reimbursements

The October 31, 2008 memorandum issued by Anne Louise Thompson, Bureau Chief for Special Education, bears a second reading this time of year as districts prepare to submit excess cost grant applications for the spring of 2009.  The memo, issued in the fall, caused shock waves in the special education community initially, as directors absorbed the news that they would no longer be able to obtain excess cost grant funding related to costs incurred through settlement agreements with parents who reject the IEP offered by the district make unilateral placements for their children in private schools.  Unless the district "accepts programmatic responsibility for the child's education" through the development of the IEP, and pays the entire cost of the placement, the district will not be eligible for excess cost grant funding for these agreements.  On the other hand, if the district makes the placement through the PPT (at an approved school), or goes to due process and loses and the hearing officer orders reimbursement of the costs of tuition, the district is eligible to apply for excess costs.

Here is a brief summary of the memo, in bullet form:

  • District makes placement in approved facility > eligible for excess costs.
  • District makes placement in non-approved facility > not eligible for excess costs.
  • District makes placement in private preschool > maybe eligible for excess costs if certain conditions met.
  • District places student in transition services program approved by another state agency > eligible for excess costs if student not working toward regular high school diploma.
  • District places student in transition services program not approved by another state agency > not eligible for excess costs.
  • Parent makes unilateral placement at approved school > eligible for excess costs if district "adopts" responsibility for placement and pays all costs.
  • Parent makes unilateral placement at approved or non-approved school for "other than educational reasons > eligible for excess costs if district agrees to pay the educational costs, parent and district enter into agreement providing the placement is appropriate and no other state facility is available to meet child's needs, district writes an IEP and is responsible for ensuring that the facility implements the IEP, and district states that it is ready and willing to offer an appropriate program to the student.
  • Parent makes unilateral placement at non-approved school and district loses due process hearing > eligible for excess costs if hearing officer finds district failed to offer FAPE, private placement is providing FAPE, and district is ordered to fund placement.
  • Parent makes unilateral placement in approved or non-approved school and parties enter into settlement agreement providing for district taking no responsibility for programming > not eligible for excess costs.
  • State agency makes placement in approved or non-approved residential school and district must assume responsibility for educational costs > eligible for state agency placement grant.
  • State agency makes placement in approved or non-approved day school > state agency placement grant not available.

Is this memo impacting your budget this year?