Author: Heather M. Edwards, Attorney at Law
The Individuals with Disabilities Education Act and state law include specific requirements for IEPs for children who transfer local educational agencies (“LEAs”) within the same school year. Specifically, when a student eligible for special education transfers to a new LEA in the same SELPA in the same academic year, the new LEA must adopt an interim program that approximates the student’s old IEP as closely as possible until the old IEP is adopted or a new IEP is developed. (20 U.S.C. § 1414(d)(2)(C)(i)(1); 34 C.F.R. § 300.323(e); Ed. Code § 56325(a)(2).) Furthermore, when a student eligible for special education transfers to a new LEA in a different SELPA, the new LEA must provide the student with FAPE, including services comparable to those descripted in the previously approved IEP, in consultation with the parents, for a period not to exceed 30 days, by which time the new LEA is required to adopt the previously approved IEP or develop, adopt, and implement a new IEP. (Ed. Code § 56325(a)(1).)
However, these transfer provisions do not specifically address situations where a child with a disability transfers to a new LEA over the summer. (See e.g., Student v. Desert Sands Unified School District (OAH No. 2010100854); Student v. Acalanes Union High School District (OAH No. 2007100455).) Instead, IDEA requires a local educational agency to have an IEP in effect at the beginning of each school year for children who transferred between LEAs during the summer. (71 Fed. Reg. 46682 (August 14, 2006).)
On February 21, 2019, the U.S. Office of Special Education Programs (“OSEP”) issued Letter to Siegel, 119 LRP 6129, which provides that an LEA has discretion to decide whether it is necessary under the circumstances to convene an IEP team meeting before the first day of school for a student who transferred LEAs during the summer. In addition, if a parent requests that the new LEA convene an IEP meeting prior to the start of the school year and the new LEA refuses to do so, the new LEA is required to provide prior written notice to the parent of the refusal. OSEP explained that the prior written notice must include, among other required content, an explanation of why the LEA determined that conducting the meeting is not necessary to ensure the provision of services to the student.
As a result, LEAs need to ensure adherence to the state and federal provisions for transfer students which depends upon a variety of factors including whether the student is transferring from within the same SELPA, from outside the SELPA, or from another state, and whether the transfer occurs during the school year or over summer break. Adherence to these provisions is critical to avoid undue interruption of the provision of special education and related services to students with disabilities who transfer LEAs.