OCR on Closure of Special Education Programs

As the school year comes to a close, many school officials must unfortunately consider program clo­sures for the 2014-2015 school year.  You are reminded that great care must be taken before eliminating a special education program, no matter how costly.

The U.S. Department of Education’s Office for Civil Rights (“OCR”) recently investigated allegations that a Michigan school district’s closure of its pro­gram for students with emotional impairments vio­lated Section 504 of the Rehabilitation Act. The com­plaint alleged that the district’s budgetary considerations, instead of the needs of the individual students, drove the decision to close the program. The com­plaint also alleged that some students who were dis­placed by the program’s closure were not appropriately placed in comparable programs because those pro­grams were at capacity.

The district entered into a voluntary resolution agreement with OCR and agreed to: (1) review stu­dent files for every student with a disability to deter­mine whether the student’s past and present place­ments were appropriate; (2) hold new IEP team meetings and to reevaluate students who may not be appropriately placed; and (3) review and revise its policies and conduct staff training.

Although the voluntary resolution is not an ad­mission of liability and is not binding on other dis­tricts, a review of its terms offers insight into what OCR considers when investigating complaints related to program closures. Section 504’s implementing reg­ulations require that districts provide a free appropri­ate public education (FAPE) to each qualified student with a disability. The Individuals with Disabilities Education Act has similar requirements. Both Section 504 and the IDEA require that districts determine a FAPE based on the individual needs of each student. “Budgetary considerations” and “administrative con­venience” typically are not viewed by OCR as ac­ceptable reasons to reduce or eliminate services for students with disabilities.

Before closing a program for students with disa­bilities, school officials first must determine whether each student in the program can still receive a FAPE in another program. It is unlikely that a “one size fits all” approach would be acceptable to OCR. Rather, districts should reconvene each student’s IEP team so that the team can make a determination whether an­other program would provide a FAPE.

A similar analysis is required when districts re­duce or eliminate services or service providers for students with disabilities. For example, if a district decides to eliminate an occupational therapist posi­tion, the district must consider the impact on all stu­dents currently receiving OT services and whether each student will still receive a FAPE if a position is eliminated. If a district has students who will not re­ceive a FAPE without that OT position, eliminating the position could expose the school to liability.

Districts considering reducing or eliminating programs or services for students with disabilities must ensure that students currently receiving the benefits of those programs or services can still receive a FAPE in another program or placement. Failure to make individualized determinations may result in liability and require corrective action. Convening IEP team meetings for all affected students before reduc­tion or elimination of programs or services will greatly reduce the district’s exposure to liability.