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Note: This case was designated "not for publication" by the Ninth Circuit Court of Appeals.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