May an IEP Team "Disallow" a Student's Participation in a Nonacademic or Extracurricular Activity?

Occasionally I have cases in which an IEP team has refused to provide an accommodation or service for a student participating in a nonacademic activity on the basis that the IEP Team either believes the activity is not "educationally necessary," and/or, it has concerns about whether the student should be constrained from participating in the activity due to health, fatigue, and safety factors.

Let’s take, for example, "Abby," a student who qualified to be on her school’s mock trial team. She has nonprogressive muscular dystrophy, uses a wheelchair, and needs the same assistance for team practices and events as the assistance provided to her between 8:30 a.m.-3:45 p.m. each school day (e.g., assistance with the bathroom, carrying her backpack, laptop computer, books and papers, and getting things in and out of it, etc.  When Abby makes the team, instead of arranging for and scheduling the services she needs, the IEP calls a meeting and hands her parents an IEP amendment stating:

"Abby will be allowed to participate in nonacademic and extracurricular activities only to the extent that it is educationally necessary for her and the IEP team has determined that it is medically appropriate.  Abby will not participate in any nonacademic activities until she has been evaluated by an orthopedist, and the orthopedist has completed and returned to the IEP Team a report of the evaluation findings and responses to the team’s questionnaire.  After the orthopedist has submitted this information to the IEP team, it will meet and determine the nonacademic school activities in which Abby will be allowed to participate and the conditions of that participation."

When I read an amendment like this, I tend to conclude: (1) the school district is trying to avoid supplying and paying for the services that the student needs in order to participate in an activity for which he or she is qualified; (2) the school district is acting contrary to the federal statutes that protect the rights of students with disabilities to be educated to the maximum extent appropriate with nondisabled students, including participation in extracurricular and nonacademic activities. See, 34 C.F.R. §§ 300.320(a)(4)(ii), 300.107, and 300.117; and (3) that the school district has chosen to be part of the problem that Congress intended to cure when it enacted the Rehabilitation Act of 1973 (Rehabilitation Act), the Americans with Disabilities Act (ADA) of 1990, and the Individuals with Disabilities Education Act (IDEA). More specifically:
The plain language of IDEA regulations 34 C.F.R. §§ 300.320(a)(4)(ii), 300.107, and 300.117 establish that the extracurricular and nonacademic activities in which a student may participate are not limited to those activities that are "educationally necessary."

Neither the IDEA nor its implementing regulations confer any power on an IEP Team to "disallow" the participation of a student covered by the Act in an extra-curricular or nonacademic activities.
 
Neither the IDEA nor its implementing regulations confer any power on an IEP Team to make a determination of "medical appropriateness."

Section 504 of the Rehabilitation Act of 1973 provides: "No otherwise qualified individual with a disability . . . shall, solely by reason of his disability, be excluded from the participation in, or denied the benefits of, or be subjected to discrimination under any program or activity receiving federal assistance." 29 U.S.C 794(a).
 
Title II of the Americans with Disabilities Act of 1990 provides: "No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, program, or activities of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. 12132.

The School District made no offer to pay for the medically-unnecessary evaluation although when a School District requires such an evaluation for a student served under the IDEA, the evaluation must be provided at no cost to the parent (Raymond S. v. Ramirez, 918 F. Supp. 1280, 1293-1294 (N.D. Iowa 1996)), and the child’s parents may not be required to use their medical insurance to pay for the evaluation, or the co-pay amount. Id.

Should You Excuse an AEA Consultant from an IEP Meeting?

I frequently receive questions from parents asking about whether specific teachers or consultants “must” attend IEP meetings.   Here are a few questions and responses:

Question 1:  I went to my son’s IEP meeting which had called to discuss changing his speech therapy services.  The speech and language pathologist (SLP) who has been doing his therapy was on the list of people who were supposed to be at the meeting.  When I arrived, the area education agency facilitator (a former AEA social worker) asked me to sign a form excusing the SLP’s attendance because he had excused the SLP from the meeting.  I responded that I should have been asked to excuse the SLP before he held the meeting, and that I would have said no and asked that it be scheduled when she was available.  The facilitator said it didn’t matter whether the SLP could come because he had received an email report from her.  I didn’t sign the excuse form, the emailed report wasn’t helpful, and the meeting was a waste of time (and used up two hours of my vacation time).   Can I keep this from happening again? 

Answer:   To keep this from happening again, you may want to try sending a copy of the following answer to the members of your son’s IEP team. 

The AEA facilitator had no business excusing the SLP and convening the meeting without her.  As soon as he knew of the SLP’s unavailability, he should have asked you if you were willing to excuse her, and if you said no, the meeting should have been re-scheduled for a time the SLP could attend. 

Parents have no obligation to excuse a specified teacher or area education agency consultant from an IEP meeting.  They should not do so if there any chance that the person’s expertise and knowledge apply to IEP topic that may be discussed or modified at the meeting. 

Congress felt so strongly about this that the IDEA and its implementing regulations require that if the IEP Team will discuss or modify any part of a child’s IEP related to the area of expertise of the Team member seeking to be excused, that before the parent makes written consent to excusing that member, the school district must first:

(a)          fully inform the parent of all information relevant the excusing the specific type of person, and must do this in the parent’s native language, or other mode of communication.  

(b)          make sure that the parent consents in writing to the excusing the required person, and the consent writing describes the specific meeting for which the excuse applies.

(c)           make sure the parent understands that his or her granting of consent is voluntary and may be revoked at any time.

A member of an IEP may be excused from attending an IEP meeting, in whole or in part, if the meeting involves a modification to or discussion of the member’s area of the curriculum or related services, if: 

(1)  the parent, in writing, and the public agency consent to the excusal; and

(2)  the member submits, in writing to the parent and the IEP team, input into the development of the IEP prior to the meeting.