December 2007 - Transfer students Termine v. William S. Hart Union High School District (9th Circuit, September 28, 2007).

Case of the Month: Termine v. William S. Hart Union High School District

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The Ninth Circuit recently gave a clue about how it will interpret the new transfer student provisions under the IDEA. Here, the student moved into the district in October with an IEP calling for no time in general education. First, the District delayed providing services for a two week period. Then, the district made a placement offer that called for 32 percent participation in general education, which the court concluded was a material failure to implement the move-in IEP (citing Van Duyn v. Baker School District). Third, the district did not hold a required IEP meeting ("whether or not [the] mother chose to participate"). For all these reasons, the court found a denial of FAPE for an entire school year.

Although the parent's unilateral private placement was appropriate, the court upheld the district court's order that the district reimburse the parents for half (rather than all) of the cost of the private placement because the parent was "uncooperative to the point where she contributed to the delay in [ ] assessment and the delay and ultimate failure to hold an IEP meeting . . . "

Note: This case was designated "not for publication" by the Ninth Circuit Court of Appeals.

Termine v. William S. Hart Union High School District (9th Circuit, September 28, 2007).

Lesson learned: Although this case was decided under California law which predated the IDEA 2004 amendments, the IDEA 2004 language provides similar protections for students with disabilities transferring from one district to another. State and federal regulations require the new district "in consultation with the child's parents" to "provide a free appropriate public education to the child (including services comparable to those described in the child's IEP from the previous district)" until the new district either adopts the previous IEP or develops a new one. This case indicates that the courts will look at the extent of nonparticipation as one factor in determining whether the IEP has been implemented.

November 2007 - Parent participation

Case of the Month: E.P. v. San Ramon Valley Unified School District

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When can a district proceed with an IEP meeting without the parents present? Here, the district provided a first grade student with autism with a general education classroom for 80% of his school day, a special classroom for the rest of the school day, a one-to-one assistant, and in home services (ten hours per week). When a dispute arose towards the end of first grade, the district held three IEP meetings in June and August with the parents and their attorney. At the third meeting, the IEP team was unable to complete the student's IEP, and the district attempted to schedule a fourth meeting for August 30, the day before school started. After a period of argument, the parent's attorney said she wouldn't be available and the parents would not be available either. The district held the meeting anyway, and hand-delivered the resulting IEP to the parents that evening. The final IEP, based on all of the meetings, did not include the in home services.

Distinguishing this situation from Shapiro v. Paradise Valley USD (a 2003 9^th Cir case),the court found the district did not deny the parents an opportunity to participate in the formulation of the IEP. Here, "at least one parent chose not to attend a critical IEP meeting on the last possible day" to complete the IEP before school started and the district had a statutory obligation to have an IEP in effect at the beginning of the school year. The district offered an alternative (a "stay put" placement from a previous settlement) which the parents rejected. Therefore, the district was not simply "prioritizing its representatives' schedules over that of [the] parents, as in Shapiro." E.P. v. San Ramon Valley Unified School District, 48 IDELR 66 (N.D. Cal., June 21, 2007).

Lesson learned: Here, the district had a record of its substantial efforts to schedule a meeting time before school started, and also offered an alternative (the "stay put" placement), which the parents rejected. Also, the parents' reasons for not being available appeared flimsy to the court. This case still sets a high threshold for accommodating parents' scheduling needs, but draws the line when parents' refusal to attend an IEP meeting appears to be a manipulation of the process.

Note: This case may be instructive but is not direct precedent in Oregon.

October 2007- IEP implementation:

Case of the Month: Baker School District v. Van Duyn

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IEP implementation issues are more often the subject of complaints than due process hearings. Here, the parent went the due process hearing route, arguing that the district violated the IDEA and denied the student a free appropriate public education (FAPE) by not implementing various aspects of the student's IEP.

On review, the Ninth Circuit held that "a material failure to implement an IEP violates the IDEA. A material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled child and the services required by the child's IEP." This does not require that a child "suffer demonstrable educational harm", but "educational progress, or lack of it, may be probative of whether there has been more than a minor shortfall in the services provided."

In each instance, the court found the implementation discrepancies were not material. For example, although the middle school implemented the student's behavior plan differently than the elementary school, the IEP did not require the same implementation and the student's behavior actually improved. While the IEP did require that the student be instructed at his level, the evidence was conflicting and the court found no evidence that the student's educational progress was hindered based on any exposure to more advanced material. Also, although the middle school did not have a designated "self-contained" classroom, the district's adaptations met the "self-contained classroom" placement description based on class size, ratio and individual educational assistant support.

Note: The court is not giving districts permission to deviate from IEPs. "IEPs are clearly binding under the IDEA, and the proper course for a school that wishes to make material changes to an IEP is to reconvene the IEP team pursuant to the statute--not to decide on its own no longer to implement part or all of the IEP."

Baker School District v. Van Duyn, No. 05-35181, (9th Cir., September 6, 2007), amended opinion.

Lesson learned: Although the district ultimately prevailed on most of the issues, the case involves an IEP from the 2001-02 school year, when the student transitioned from elementary to middle school. This transition is difficult for many families, particularly those with students with disabilities. Making IEP revisions up front to address the student's needs in the middle school environment may prevent disputes down the road.