Parent of a Student with Asperger Syndrome and ADD Revocates Consent for IDEA Services

In Jefferson County Board of Education, 110 LRP 2743 (SEA AL 9/29/09), an Independent Hearing Officer (IHO) ruled a local education agency did not violate IDEA when a parent asked the district to find her child eligible for special eduation services a second time around. The parent withdrew her child from school after several disciplinary infractions then reenrolled her child 6 months later and signed a document revoking consent for special education services. Following an incident involving a smoke bomb, a hearing officer ordered the student to attend boot camp for 30 days. The parent then sought placement back into the special education program due to health concerns of her child. When the district correctly treated the referral as an initial evaluation for IDEA services and scheduled a meeting, the parent initiated due process alleging a denial of FAPE as services were not reinitiated automatically. The IHO wrote, "While it appears that the [IDEA amendments on revocation] do not clarify such an issue,... it appears cross-purpose to anticipate that the parent can turn on and off the services like a water faucet."

Revoking Consent for Special Education Services

According to 34 CFR 300.300(b)(4), parents may revoke consent for special education services in entirety. However, they not are able to unilaterally revoke consent for specific, individual services unless state law permits such (South Carolina does not). If parents request to remove a particular service from the IEP, the case manager needs to convene the IEP team to allow the parents to share their concerns and to review whether the service is still needed. The team may determine there is a way to meet the student's need differently (other than by direct services) if the child continutes to need the service in the area for which the parent desires to revoke consent. For example, rather than removing speech therapy services in entirety, the team may agree that consultative services with the regular education teacher may be appropriate. If the team strongly believes the services the parents want removed are necessary, make sure the parents are given a copy of the procedural safeguards in the event they want to dispute the provision of a service. Finally, if the team agrees the service is no longer needed based on documentation of progress, provide the parents with Prior Written Notice before ending the service then hold a special review meeting to make the the change in the IEP.

Does a District Owe Compensatory Speech-Language Due to Shortage of SLPs?

In M.L. ex rel. A.L. v. El Paso Independent School District, 52 IDELR 159 (W.D. Texas 2009), a 12-year-old with a speech-language impairment had an IEP calling for 60 minutes of speech-language services a week. Unfortunately, the districts experienced a shortage of Speech-Language Pathologists (SLPs) and since they were unable to fulfill the IEP the district contacted the parents to inform them compensatory services would be considered. Although the student missed at least 19 hours of therapy, the IEP team determined the student was no longer eligible for speech-language services. The parents filed a due process complaint requesting compensatory services but their request was denied since their child was no longer a child with a speech-language impairment. U.S. District Judge Kathleen Cardone wrote, "Ultimately, providing additional compensatory speech therapy services for [the student] when [he] has no speech disability would only serve as a form of damages, a remedy that is not appropriate under the IDEA."

Revocation of Consent for Special Education and Section 504

To date, the Department of Education's Office of Civil Rights and and OSEP have not provided much guidance on how to handle the situation whereby parents have revoked consent for special education but are seeking accommodations through a Section 504 Plan. Under IDEA, when a parent revokes consent for special education the student no longer has a safety net when it comes to disciplinary procedures. A question then comes into play when they ask for the same disciplinary protections under Section 504. Since this is an unresolved legal issue, the School District of Oconee County will consider 504 eligibility on a case-by-case basis. It is expected that in most situations the 504 Plan would look very similar to the IDEA accommodations the parents declined.

What if a Child Who Has Exited From Special Education Services is Referred Again?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, an initial evaluation would be conducted to reestablish whether the child is a child with a disability who has a need for special education and related services, thus making the child eligible once again for special education services. The school would provide Prior Written Notice and request consent from the parents or adult student before beginning the evaluation. The evaluation must include a review of existing data. If the team determines the current available data are adequate for the purposes of eligibility determination, there do not need to be any further assessments conducted.

May a Student Participate in Graduation Exercises With His or Her Classmates, if She or He is Not Actually Graduating?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, the answer is "yes". The student may participate in graduation exercises unless a local policy would not allow it. However, if there is such a policy, it must apply to all students and not just students receiving special education services. This would apply even if a student has met all of the requirements for graduation, but the IEP team determines that additional services are needed. Some students may require services until age 21 to meet IEP goals, which should be addressed within the student's transition plan. In either ase, the student could participate in graduation exerceses with his or her class, but not actually receive a diploma at that time.

What is Required When a Student with a Disability Graduates from High School?

According to South Carolina's Office of Exeptional Children Policies and Procedures released April 6, 2009, the LEA must provide the student, if age 18 or older, and the parents with a Prior Written Notice that clearly states that the student will no longer be entitled to receive special education services from the LEA after graduation. Informed parent consent is not required. Additionally, the school must provide the student with a Summary of Performance.

What if the Student No Longer Requires Special Education?

According to South Carolina's Office of Exceptional Children Policies and Procedures released April 6, 2009, th IEP team must determine whether the student no longer requires special education services based on data from a reevaluation. If, after a reevaluation, the team determines that the student is no longer eligible for special education services it must give parents Prior Written Notice of that determination and that the team is proposing to end services. If the parent disagrees with the decision, the parent may access medication or due process. The IEP team may also determine that the student qualifies as a student with a disability under Section 504 and refer the student to the Section 504 team, which would write a 504 plan for him or her.