Many years ago I was involved in an effort to get our state administrative regulations amended so as to require special education hearing officers to dismiss any issue at a due process hearing unless the issue had first been brought up in an ARD Committee meeting.  The Agency declined to adopt such a regulation, believing that it might run afoul of federal law.  So we have no such regulation, either in state or federal law. But judges do take it into account sometimes. 

Consider Banwart v. Cedar Falls Community School District, in which the parents’ request for reimbursement for tuition and other expenses at a private, residential school was rejected.  The court repeatedly pointed out that the parents decided to place their child in this residential school without first asking the school to amend the current IEP.  Key Quotes:

School districts must be notified “of disagreements and given an opportunity to make a voluntary decision to change or alter the educational placement,” and only when “it is likely that no change would be made which would benefit [the student] (if the school district had made it clear that no change in placement would occur), would there be a denial of a [FAPE].”

However, the Banwarts did not notify Bremwood [the school the student attended] of any concerns or dissatisfaction with C.B.’s IEP, did not request changes to the IEP and did not give Bremwood the opportunity to make substantial changes.

Remember: there are only two parties at an ARD meeting—the school and the parents.  One party makes a request or a proposal and the other responds.  Both parties have the right to make requests and proposals.  As this case illustrates, the parents should make their requests for changes to the IEP before doing something drastic, such as moving the student to a private school and asking the public school to pay for it.

The case is Banwart v. Cedar Falls Community School District decided by the federal court for the Northern District of Iowa on September 24, 2020.  We found it on Special Ed Connection at 77 IDELR 126.

DAWG BONE: AS WE HAVE SAID BEFORE: BE REASONABLE!