By Michael Gehring, McAndrews Law Offices
Synopsis: After a school district had offered continuing special education services, both during the upcoming summer and following school year, to a disabled student enrolled in the 12th grade of a private school, the District thereafter withdrew its offer of services because it found that the student had ostensibly “graduated” from the private school because he had earned enough “credits” to graduate, even though he never received a diploma. Following a special education due process hearing where the family was represented by McAndrews law Offices, the presiding Hearing Officer found for the family and rejected the school district’s position as “indefensible,” and awarded the school district to provide the student with compensatory education and an appropriate program. This case is significant to disabled students enrolled in private high schools who, due to their disabilities, require further special education services from their local school district past their 12th grade year.
In a special education matter entitled Joseph M./Council Rock School District, ODR No. 14266-1314 AS, a special education Hearing Officer examined the issue whether a disabled student who was attending a private school at his parents’ expense could be denied further necessary special education services by his local school district because he ostensibly “graduated” from the private school even where he never was granted a diploma by the private school, and where the district’s own personnel determined months before the supposed graduation that the student required further services and even offered him a program for the summer and the following school year. The Hearing Officer granted relief to the student, finding that, under the circumstances of the case, he could not validly be denied necessary services due to his supposed “graduation.”
For the past several years prior to the hearing, Joseph’s parents paid for him to attend a private school where he was provided an educational program tailored to his specific needs. While his tuition was previously paid by the school district for several years, that funding, for his last two years at the private school, ended. The student’s parents, because the school was a very good fit for Joseph, because it provided Joseph a highly individualized program tailored to his disabilities, and because he was making progress there, continued to pay for the private school on their own. During his 12th grade year, the school district evaluated Joseph and offered him extended school year (“ESY”) services for the Summer following his 12th grade year, and continuing transition (vocational) services for the following school year. Joseph and his mother, along with a school district official, visited several vocational programs offered through the local Intermediate Unit, and Joseph was enthusiastic about the available programs. However, after the school district was informed that Joseph had participated in graduation activities, but had not received a diploma, the school district informed Joseph and his family that it was withdrawing its offer of services, and that Joseph would not be provided ESY or transition services because Joseph had “graduated.” The school district told the family that its decision to deny Joseph services was based on “advice” that the school district had received from the Bureau of Special Education (“BSE”) of the Pennsylvania Department of Education that it could not provide special education services to a student who had “earned” a diploma, even if one had never been received. The family thereafter filed a special education due process complaint challenging the school district’s decision. Following a multi-day evidentiary hearing at which the family was represented by McAndrews Law Offices, the presiding Hearing Officer issued a decision granting relief to the family, and entirely rejecting the school district’s position.
In Pennsylvania and most states, school districts are obligated to provide special education services through age 21 for resident disabled students who require them. However, under the applicable federal regulation, school districts need not provide required services to disabled students who have “graduated from high school with a regular high school diploma.” In this case, even though he never received a diploma from the private school, the school district argued that Joseph had been awarded a “regular” high school diploma by earning enough credits to be considered a graduate of his private high school. The Hearing Officer rejected this argument, finding that Joseph’s program was highly individualized to his intellectual ability; that the private school used no objective criteria to determine whether Joseph had met graduation requirements; and that, as the school district admitted, he was far below the academic level of a non-disabled 12th grade student. Thus, Joseph could not be considered to have completed a “regular” education program even if he earned sufficient credits to do so through “faithful attendance at the private school for four years.”
The Hearing Officer also faulted the school district for not raising and discussing in advance with the family and the private school the question of Joseph’s graduation status and whether he was “on track” to graduate from the private school, and for not providing by the family with advance notice through a Notice of Recommended Educational Placement (“NOREP”) that it was going to terminate Joseph’s services at the end of his 12th grade year. The Hearing Officer found that these actions deprived the family a chance to contest the District’s proposed action, and deprived the private school of the ability to decide based on Joseph’s individual situation whether to withhold a diploma to ensure Joseph’s continued right to services from the school district.
The Hearing Officer also rejected the school district’s position that it was entitled to rely on alleged “advice” from the BSE in refusing services to Joseph based on his ostensible “graduation.” This “advice” was in the form of email exchanges between school district officials and BSE employees that failed to provide any specific information regarding Joseph. The Hearing Officer found that the school district sought, and therefore received, only general information from BSE that was not specific to Joseph and “omitted essential details” about his situation. The Hearing Officer found that if BSE had been provided with the full facts of the case, it likely would have provided very different “advice” regarding whether the school district could continue to provide Joseph services.
The Hearing Officer thus awarded Joseph with compensatory education for the entire period that Joseph had not been provided services, and further ordered the school district to provide Joseph an appropriate program and placement for the following school year.
This decision should make clear to school districts that they may not deny offered or requested special education services to disabled students who have been attending a private school through 12th grade without making in advance an informed determination (including by consulting with the private school) whether completion of the student’s program will result in the student being awarded a “regular high school diploma.” If the district thereafter determines to deny services for that reason, it must issue a NOREP on that basis to allow the family to contest the school district’s decision well in advance of the purported “graduation.” In short, the denial of services to a private school student on the basis of “graduation” should never come as a surprise to either the student and his family, or even the private school itself.