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.