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A November 2015 9th Circuit Court of Appeals Opinion Makes it Clear that Districts in California Must Not Only Offer a Student with Special Needs a Free and Appropriate Public Education (FAPE), They Must Also Ensure a FAPE is Provided, Even if it Means Fi

When parents and school districts disagree about whether the placement and services offered in a Student's Individualized Education Program (IEP) are appropriate, a number of different things can occur. In order to resolve the dispute(s), the parties can hold additional IEP meetings to try to eventually come to an agreement; the district can file a due process complaint against the parents; or the parents can file a due process complaint against the district. If a party files a complaint requesting a due process hearing, and the parties are unable to come to an agreement prior to hearing, ultimately a judge will decide whether the placement and services offered provide a FAPE.

So, what happens when neither party files a complaint? Time goes by...tick tock...There is no agreement as to what placement and services are appropriate for a child. In this scenario, it is the child who suffers. The law accounts for that. The law basically states that if the parents do not file, the district must file within a reasonable time. Parents should be aware of this.

Under the Individuals with Disabilities Education Act (IDEA), as well as California Law, a school district may not implement what is offered in an IEP without parental consent. The law is very clear that parents are extremely an important part of the IEP team, however, parents cannot call all the shots and override the district IEP team if there is a dispute.

California Education Code ยง 56346(f) requires school districts to initiate a due process hearing if the school district determines that a portion of the IEP to which a parent does not consent is necessary to provide a child with a FAPE under the IDEA. Alternatively, the IDEA at 20 U.S.C. 1414(a)(1)(D)(ii)(II), does not allow school districts to file for due process against a parent if a parent has refused to consent before the initial provision of special education and related services. That is, the district shall not file a due process complaint against a parent when the parent has never accepted any special education and related services. Thus, a district is relieved of its duty to provide a FAPE only if a parent has never allowed their child to receive any services.

In the underlying case up on appeal (I.R. v. Los Angeles Unified School District), the parent disagreed with LAUSD's offer of FAPE and enrolled the child in private school. The parent did not agree that her child required a special education classroom, which the district insisted was the only way the student could receive a FAPE. From November 2010 to March 2011, several IEP meetings were held, but the district and the parent continued to disagree. The district insisted that the student required a special education class and the parent insisted that she did not. A lot of time passed...The student is the one who suffered.

The 9th Circuit reversed the district court's ruling in favor of the district. The appellate court ruled that the District should have long before filed for due process and resolved the dispute. All the while the student was not receiving a FAPE, and the court said it was the district's fault. Even though LAUSD's IEP offered the student a FAPE, the district failed to actually provide it, by failing to file a due process complaint against the family. -Elizabeth Curtis, March 17, 2017

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