004-10 Discipline Services During Long-term Removal
The LEA initiates a long-term removal of a student for disciplinary reasons, places the student in an alternative setting, and proposes changes to the student’s IEP. If the parent does not consent to a revision of a student’s IEP services, must the LEA implement the services in the last-agreed upon IEP until the consent issue is otherwise resolved?
Yes, because of Virginia’s specific parental consent requirements.
The federal regulations anticipate that it may not be possible for a student removed for disciplinary reasons to an alternative placement to receive exactly the same services as those called for in the student’s IEP and in so doing, not have FAPE adversely impacted. 34 CFR §300.530 requires that a student must continue to receive educational services so as to enable the student to continue to participate in the general educational curriculum, "although in another setting", and to progress toward meeting his or her IEP goals. The U.S. Department of Education’s Office of Special Education Programs (OSEP) notes in its Commentary to the IDEA federal regulations:
We caution that we do not interpret "participate" to mean that a school or district must replicate every aspect of the services that a child would receive if in his or her normal classroom. For example, it would not generally be feasible for a child removed for disciplinary reasons to receive every aspect of the services that a child would receive if in his or her chemistry or auto mechanics classroom as these classes generally are taught using a hands-on component or specialized equipment or facilities.
….while children with disabilities removed for more than 10 school days in a school year for disciplinary reasons must continue to receive FAPE, we believe the Act [IDEA] modifies the concept of FAPE in these circumstances to encompass those services necessary to enable the child to continue to participate in the general curriculum, and to progress toward meeting the goals set out in the child’s IEP. An LEA is not required to provide children suspended for more than 10 school days in a school year for disciplinary reasons, exactly the same services in exactly the same settings as they were receiving prior to the imposition of the discipline.
[Federal Register, 2006, pp. 46716-7]
A Virginia federal district court ruled consistently with this commentary, holding that the IDEA did not require the school division to "duplicate at the alternative setting every single special club, athletics, arts, Japanese emersion" that was provided to the student prior to his disciplinary removal in order for the student to receive FAPE. Reiser v. Fairfax County School Board, 44 IDELR 187, 2005.
While OSEP and the court have interpreted IDEA and the federal regulations to not require provision in the alternative setting of all services in a student’s IEP for the purposes of FAPE, Virginia’s parent consent provisions require the school division to implement the child’s current IEP services, as consented to by the parent, even during a disciplinary removal. While the federal regulations and OSEP’s commentary provide the LEAs with flexibility in providing FAPE to a student in an alternate setting for disciplinary purposes, Virginia-specific parental consent provisions require parental consent before a school division may implement revised IEP services. (8 VAC 20-81-170 E.1).
The parental consent requirement is specific to Virginia and is permitted under the IDEA (34 CFR §300.300 (d)(2)). It does not make an exception in the event of a revision to the IEP proposed due to a disciplinary removal to an alternative placement. If the parent refuses consent to the proposed IEP, the dispute resolution options of mediation and/or due process are available to resolve the matter. Until the dispute is resolved, the LEA is obligated to provide the services in accordance with the student’s last agreed on IEP.