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.