FAQ 022-12 Enrollment as a Pre-Requisite to an IEP Meeting
The parents of a child with a disability, who placed their child for educational reasons in a private school, contemplate returning their child to the public schools. The parents request the school division of their home residence to develop an IEP for the child. May the LEA make enrollment a pre-requisite to developing an IEP for this child?
No. Because an LEA has an ongoing, affirmative obligation to locate children with disabilities residing within the school division and to provide them with a free appropriate public education (FAPE), a child’s school enrollment status is not a condition precedent to developing an IEP for the child at the parent’s request.
School divisions implement enrollment procedures for all students residing within their jurisdiction in accordance with the Code of Virginia requirements on such matters as immunization records. (§ 22.1-271.2). At the same time, school divisions are obligated to provide FAPE to every FAPE-eligible child residing within the division. (§ 22.1-214; 8 VAC 20-81-30 B).
School divisions may question the use of administrative time and resources to develop a prospective IEP if the parents are not enrolling, or have not yet enrolled, their child in the division. A review of case law, however, supports that the school division’s FAPE responsibility for a child with a disability not enrolled extends to when the parent who privately placed the child requests the LEA to develop an IEP for the child. While the LEA cannot implement a proposed IEP while the child remains in the private school, several courts reason that when the parents request an IEP, "…refusing to do an IEP pre-enrollment constitutes a violation" of IDEA and emphasize that "…residency, not enrollment, triggers an educational agency’s obligation to provide FAPE." (James v. Upper Arlington City Sch. Dist., 228 F.3d 764, 2000; District of Columbia v. West, US District Court, 54 IDELR 117, March 30, 2010).
Certain facts, however, may modify the obligation. For instance, a federal district court in our 4th Circuit applied the same reasoning in James but distinguished that if the parent does not request an IEP, the school division is not obligated to develop one. (C.M. v. Henderson County Schools, 184 F.Supp.2d 466, W.D.N.C. 2002). As further application, in a recent decision, one of Virginia’s hearing officers ruled that the school division was not obligated to revise a current IEP at the request of the parent of a parentally placed student because the division had previously developed IEPs for the student that did not call for private placement and the parents systematically refused consent. (see VDOE’s Web site, Hearing Officer Decisions, #11-048 under the category of IEP.) If the parent presents new information, however, or if the proposed IEP implementation dates have expired, the IEP team should meet.
- As we have seen, enrollment may not be a pre-requisite for or a barrier to the provision of FAPE for a child with a disability. For this same reason, Virginia’s regulations governing special education also include the provision that if a child with a disability is living with the parent in the residence of the local school division, the division is responsible for ensuring the child receive FAPE even if enrollment requirements for the child are not completed within a reasonable period of the parent’s request to enroll the child. (8 VAC 20-81-30 D).
- Recall that Virginia regulations governing special education include homeschoolers and pre-schoolers in the definition of "private school" populations addressed in parentally placed provisions.
Practice Tip: Provide prior written notice to document the LEA’s response and the justification for the response. For example, if the LEA refuses to develop a revised IEP to an IEP which is current, the PWN should state that the division stands by its current proposed IEP and that if the parent provides new information which may affect the decisions of the IEP team, the LEA will consider convening a meeting to review the new information.