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Requirement That Transfer District Must Provide Services Comparable To A Previously Approved Individualized Education Program Refers To Last Individualized Education Program That Was Actually Implemented
March 4, 2011 | Bulletin No. 962063.2
In A.M. v. Monrovia Unified School District, (--- F.3d ----, C.A.9 (Cal.), December 15, 2010), the United States Court of Appeals for the Ninth Circuit considered whether a school district into which a student transferred was required to implement an individualized education program (“IEP”) that had been agreed to by the previous school district and the student’s parents-- but never implemented-- or the student’s previously implemented IEP. The court of appeals held that the new school district was required to provide services in accordance with the previously implemented IEP not the IEP that had never been implemented.
A.M. had cerebral palsy, seizure disorder, and global developmental delays. A.M. was non-ambulatory, had cortical blindness, and "did not always understand, retain, or make associations with what he saw." A.M. could only communicate by responding to yes or no questions. A.M.'s parents enrolled him in the California Virtual Academy ("CAVA"). CAVA is a network of charter schools that offer independent study in a student's home. A teacher went to A.M.'s home for three one and one-half hour sessions per week and instructed him with a modified curriculum that used yes or no questions. In 2002, CAVA created a valid IEP after A.M.'s parents and CAVA agreed "to an independent study/home schooling placement with support from a resource specialist five times a week for one-hour sessions, occupational therapy once a week for a one-hour session, adapted physical education once a week for a one-hour session, and speech and language once a week for a one-hour session."
The parents and CAVA held IEP meetings again in 2003 and 2004 but they were unable to agree on goals and objectives. A.M.'s parents refused to sign the IEP documents and therefore, A.M.'s placement continued as independent study through homeschooling. In December 2005, A.M.'s parents and CAVA agreed on a new IEP that would place A.M. in a third-grade general education classroom with appropriate support. A.M.'s IEP team found he had made "marked improvement academically, socially, and physically." However, the IEP was "was not based on any formal assessment of A.M.'s academic or cognitive abilities." CAVA does not have any general education classrooms so CAVA could not implement the 2005 IEP.
On December 12, 2005, A.M.'s parents presented the IEP and proof of residency to the Monrovia Unified School District ("District") to determine an interim placement for A.M. Gail Crotty reviewed A.M.'s IEP and became concerned that District "was being asked to implement an IEP that was never previously implemented and required a change in placement." Crotty scheduled an intake meeting for December 20, 2005, which was two days before the winter vacation. District wanted to continue the independent study/home school placement for a 30 day period so that District could assess A.M. A.M.'s parents wanted to place A.M. in a classroom and therefore they did not agree to District's independent study/home schooling placement.
District scheduled an IEP meeting for February 9, 2006, and A.M.'s parents initially agreed to the meeting date but then cancelled three days before the meeting. A.M.'s parents requested an IEP meeting date in mid-March or April, but District would not agree because of a statutory thirty-day requirement to take action on the IEP. A.M.'s parents refused an offer to participate by telephone so District held the meeting without them. The IEP team determined that A.M. should be in a fourth-grade special day class on a general-education campus. District did not have an appropriate class so it recommended a referral to the Los Angeles County of Education. District offered an IEP that consisted of an assessment, weekly physical and occupational therapy, speech and language instruction, placement in a special day class with a teacher who has a credential for moderate-to-severe special education, referrals to California Children's Services and Los Angeles County Office of Education, and a one-to-one aide at the school site. A.M.'s parents did not consent to the IEP.
District held a second IEP meeting on May 1, 2006, and the IEP team offered A.M. placement in a special class at Encinitas School. District and A.M.'s parents each requested a due process hearing. A ruling was made in favor of District. A.M.'s parents filed a complaint in federal district court against District asserting violations of the Individuals with Disabilities Education Act ("IDEA") and Section 504 of the Rehabilitation Act. However, A.M. died while the action was pending. The district court granted summary judgment in favor of District. The court also awarded District attorney fees "on the ground that A.M.'s death mooted the case and [his parents] should not have continued it after it became moot."
A.M.'s parents asserted District denied A.M. a procedurally valid IEP when District (1) failed to implement A.M.'s IEP or develop and implement a new valid IEP within thirty days from the day A.M. transferred into the school district, (2) failed to develop an adequate IEP, and (3) did not allow the parents to meaningfully participate in the IEP process. The parents also asserted the IEP was substantively deficient.
California Education Code section 56325(a)(1) provides that "[w]hen an exceptional-needs student transfers from one California school district to another during the school year, the local school district shall provide 'services comparable to those described in the previously approved [IEP ] . . . for a period not to exceed 30 days, by which time the local educational agency shall adopt the previously approved [IEP] or shall develop, adopt, and implement a new [IEP].'" A.M.'s parents asserted that pursuant to section 56325(a)(1), District was required to provide services comparable to the 2005 IEP during the initial thirty day period because it was a "previously approved IEP." The parents asserted that even though the 2005 IEP was never implemented, CAVA and the parents agreed to it. The court rejected this argument and instead followed the reasoning of the Office of Administrative Hearings ("OAH") that this Education Code provision was modeled after IDEA (20 U.S.C. 1414(d)(2)(C)(i)(I), which provides that when an exceptional needs student who "had an IEP that was in effect in the same State" transfers to the new school, the school shall provide "services comparable to the previously held IEP". Therefore section 56325(a)(1) refers to the last IEP that was actually implemented. The court also agreed with the finding of OAH that "providing services in accordance with the previously implemented IEP effectuates the statute's purpose of minimizing disruption to the student while the parents and the receiving school resolve disagreements about proper placement. "
The court also rejected the parent's argument that a procedural violation occurred because District did not hold an IEP meeting within thirty days from the date A.M. enrolled at District. The court did not explicitly hold that the winter break from December 22, 2005, through January 9, 2006, tolled the requirement in section 56325(a)(1) that a new IEP must be developed and implemented within thirty days. The court instead found that whether or not District had actually "exceeded the thirty-day limit, A.M. suffered no deprivation of educational benefit and therefore has no claim." The court held that the administrative hearing officer correctly found that A.M.'s service providers could not have adequately assessed his needs within thirty days of enrollment. Even though District had thirty days to evaluate A.M., his parents and District could not agree upon an appropriate IEP for A.M. and had to schedule a further meeting in May. The court stated, "That the brief delay during winter vacation caused no educational deprivation to A.M. is further evidenced by the fact that A.M.'s placement continued as independent study/home schooling in May."
The court further found that District allowed A.M.'s parents to meaningfully participate in the IEP process. The parents canceled the first meeting and District offered to reschedule but the parents would only agree to a meeting date which was far beyond the thirty-day limit set out in 56325(a)(1). District then offered to let A.M.'s parents participate by phone, but the parents refused. The court found District took steps to obtain the parent's presence at the IEP meeting and did not commit a procedural violation.
The court found the IEP team considered the unique needs of A.M. and developed an IEP that was calculated to provide him an educational benefit and that District placed A.M. in the least restrictive environment. Therefore, the IEP was not substantively deficient. The court further found that neither the section 504 claim nor the IDEA claim "was mooted by A.M.'s death because the parents sought reimbursement and damages."
What This Means To You
When a student with a an IEP in effect transfers to a new district in the same state during a school year, pursuant to the California Education Code, the district must provide services comparable to those described in the previously approved IEP until a new IEP is adopted and implemented in a timely manner. Under the 9th Circuit interpretation of this requirement, the services must be comparable to those in the last implemented IEP. Under this reasoning, a district does not have an obligation to provide services comparable to those in a recently adopted IEP unless the prior district had actually provided such services.
If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.
Marsha A. Bedwell | 916.321.4500
Shauna N. Cunningham | 805.786.4302