018-11 Hearing Officer Determination of Services During Disciplinary Removal
FAQ 004-10 states that if a student is removed for disciplinary reasons to an interim alternative education setting, and the parent refuses to agree to a change in services, the school division is obligated to provide services set forth in the last agreed upon IEP until the dispute is resolved. What happens if the school division pursues a due process hearing on the matter? Is the school division’s proffered IEP in the alternative setting considered FAPE for the student even though the parent refuses consent to any change in services?
FAQ 004-10 references Virginia-specific requirements for written parental consent to any change in a student’s IEP services. The specific challenge arises when the parent refuses to consent to a revision of the student’s IEP services in the alternative educational setting. If the parent does not consent to the IEP team’s proffered addendum of services, the school division obviously cannot implement those proffered services. If the school division chooses to file due process to resolve this dispute, the Virginia Regulations provide that the student stays in the interim alternative educational setting pending the hearing officer’s decision. See 8 VAC 20-81-160.G. Ultimately in such a dispute, determination of the appropriateness of the services and placement properly belongs to the hearing officer.
In short, a hearing officer may decide that in a particular disciplinary dispute, a school division has offered FAPE, and that the full range of services in the last agreed upon IEP was, accordingly, not required. A school division, having clearly determined that the proffered IEP addendum is reasonably calculated to provide a FAPE in this instance, may elect to stand by that offer and allow applicable dispute resolution options to resolve the matter. If the matter proceeds to a due process hearing, the hearing officer has the opportunity to determine whether the offer of FAPE is sufficient. To the extent that the parent has not consented to the offer, the hearing officer could override the lack of parental consent. Once the hearing officer rules that the school division’s offer provides FAPE, then the school division may implement the IEP where the lack of parental consent is overridden.
A Note to Keep in Mind: Because timely resolution of issues involving disciplinary actions is critical, the federal and state regulations governing special education apply a shorter time period for the due process hearing. The expedited due process hearing must occur within 20 school days of the date the due process request is received; the hearing officer’s decision must be made within 10 school days after the hearing. (8 VAC 20-81-210 R.1; 34 CFR § 300.532(c)). While the parties may agree to a nonexpedited hearing and follow the rules governing the 45-day timeline period, the expedited process supports a more timely resolution of the student’s placement and services, including the school division’s offer of FAPE in the alternative educational setting.