LEAs Need Not Transplant an Entire IEP to a New Placement

GirardEdwards_image05Author: Eric Stevens, Attorney at Law 

Summary:  The U.S. Ninth Circuit Court of Appeals affirmed a lower court’s ruling that a school district did not deny a student a FAPE by not implementing location-specific elements of the student’s IEP while the student was temporarily receiving home instruction.  C.L. v. Lucia Mar Unified School District (March 25, 2016) 116 LRP 11498.

Facts:  Student was a nine-year old eligible for special education as a child with autistic-like behaviors, a specific learning disability, and speech and language impairment.  Student’s behaviors included noncompliance, outbursts such as pushing things off of his desk, as well as verbal and physical aggression.  Student had a behavioral intervention plan (“BIP”) to address these behaviors.

At the beginning of the 2011-2012 school year, Student had a full-time instructional aide to implement Student’s BIP.  Over the first month of the 2011-2012 school year, Student’s behavior deteriorated with increasing incidents of noncompliance, verbal and physical aggression towards other students and staff, and other disruptive behavior. In September 2012, the District proposed transferring Student to a different campus where Student would spend most of his day in a special day class that would focus on behavioral problems.  Parent agreed to observe this special day class and consider the move, and in the meantime Student had received about a month of home instruction with an appropriately credentialed teacher.

In October 2012, during his second day at the new placement, Student had a serious behavioral incident.  An additional IEP meeting was convened to discuss modifications to Student’s IEP, and in the meantime Student once again received home instruction.  Subsequent meetings were scheduled, but Parent cancelled the meetings or refused to respond to the meeting notice.

Parent ultimately filed a due process complaint alleging among other things that Student was denied a FAPE because Student’s IEP was not implemented while Student was receiving home instruction.  Student did not have access to an instructional aide, speech therapy, or occupational therapy while receiving home instruction, but in arguments before OAH, Parent only took issue with the lack of an instructional aide.

Outcome:   The United States District Court concluded, and the Court of Appeals agreed, that Student’s IEP was properly implemented while Student was receiving home instruction.  Student’s IEP did not require the District to provide behavioral services in the home setting, and no evidence was introduced to establish that the District had an obligation to provide such services.

Discussion:  Under the IDEA, an IEP must include the “anticipated frequency, location, and duration of . . . services.”  20 U.S.C. § 1414(d)(1)(A)(i)(VII).  Special education provided in the home is limited to students for whom an IEP team recommends home instruction.  5 Cal. Code Regs. § 3051.4.

Student’s operative IEP was designed around the assumption that Student would receive instruction at a school located in the District.  Home instruction was only provided to Student while Parent was observing the new placement, and again when the District was attempting to convene IEP meetings with Parent to determine whether to modify Student’s IEP.

The District Court and Court of Appeals agreed that they were aware of no legal authority that would require the District “to transplant the entirety of the services offered in [Student’s] IEP, which contemplated in-school instruction, to [Student’s] home environment during the interim periods when [Parent] and the IEP team were considering changes to [Student’s] educational placement.”  For that reason, the District did not fail to implement the IEP while Student received home instruction even though Student did not have an instructional aide.

Additionally, the courts agreed that even if it could be said that the IEP was not implemented while Student received home instruction, the failure was not material and did not violate the IDEA.

Reasonable delays incurred in implementing an IEP while a school district conducts assessments and negotiates with parents are not material.  J.S. v. Shoreline Sch. Dist., (W.D. Wash. 2002) 220 F.Supp.2d 1175, 1189 (implementation delay at the request of parents is reasonable); Tracy N. v. Haw. Dep’t of Educ. (D. Haw. 2010) 715 F.Supp.2d 1093, 1112 (delay in determining placement was reasonable due to ongoing reassessment and discussions with parent about placement).  In total, Student received home instruction for about a month while Parent considered the new placement and for another month between the October 2012 incident and Parent’s filing of a due process complaint.  Student continued to receive home instruction after the complaint was filed, and the District continued to try and get Parent to participate in the IEP process.

In these circumstances, any delay in providing Student with an instructional aide was reasonable and not material because the IEP specified that the instructional aide would be provided at a District campus, Student was receiving home instruction as an interim measure while Student was being reassessed, and the District continued to work in good faith to obtain Parent’s involvement in reassessing Student and updating Student’s IEP.

Practice Tips:  In this case the parent consented to temporary home instruction, but the legal opinions do not address whether a new IEP or an IEP addendum was signed.  Whenever a student’s placement is changed, even if the move is considered temporary, it is always a good practice to get a parent’s written consent to a new IEP or IEP addendum.  It is beneficial if the IEP team has an opportunity to discuss what a FAPE will look like in the new “temporary” setting compared to the existing placement, and address those issues with a written IEP agreement.

For example, the outcome in this case could have been different if Parent had raised arguments with OAH about the failure to provide occupational and speech therapy while Student was receiving home instruction.  Since these arguments were not first raised with OAH, the District Court and Court of Appeals refused to consider them.  However, if the District did not have a clear written agreement from Parent that these services did not need to be provided during home instruction, the courts could have found that the failure to continue these services was a material violation of the IDEA.  The instructional aide was intended to assist with Student’s interactions with other students and staff, but there was no obvious need for that assistance when the Student was receiving one-on-one instruction from a teacher in the home.  On the other hand, a change in placement to the home arguably would have little to no impact on Student’s need for occupational or speech therapy.


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