Approving and Denying Transfers of Students with IDEA Disabilities and IEPs

By Andrea Kunkel, CCOSA General Counsel & ODSS Executive Director

For most students, the Oklahoma Education Open Transfer Act (“Open Transfer Act”) provides that receiving school districts approve and deny transfer requests for the following reasons as set out in their local board policy:

■ Lack of capacity based on grade level for each school site within the school district, as defined in local policy;

■ Excessive absences; and

■ The acts and reasons described in 70 O.S. § 24-101.3.

However, the Open Transfer Act doesn’t apply to the approval or denial of transfers sought for students identified with disabilities under the Individuals with Disabilities Education Act (IDEA) who have IEPs.

Rule 210:10-1-18, one of two transfer rules adopted by the State Board of Education, provides that “Open Transfers” are governed by the Open Transfer Act. The rule then lists types of transfers governed by other provisions of Oklahoma law, including:

Students with disabilities. Transfers made for the purpose of providing FAPE to special education students shall be governed by 70 O.S. § 18-110 and 70 O.S. § 13-101, et seq. Such transfers shall not be considered Open Transfers subject to the part of the Rule that discusses capacity and other issues.

So, receiving school districts don’t approve or deny transfers of students with IDEA disabilities and IEPs based on lack of capacity, excessive absences, or for disciplinary reasons – the reasons that apply to most students. Instead, they must use a different process to determine whether to grant or deny these transfer requests.

Title 70, Section 13-103 of the Oklahoma Statutes, along with SBE-approved Rule 210:10-1- 19(b) establish the following process for receiving districts to use: “Before approving the transfer, the receiving district shall establish availability of the appropriate program, staff and services.” Essentially, before approving the transfer of a student with an IDEA disability and IEP, the receiving district must determine that it can provide the student a Free Appropriate Public Education in the Least Restrictive Environment as required by the IDEA. That is why a joint IEP conference is required between the district of residence and the receiving district before the receiving district approves the transfer. In the joint IEP conference, which can be a simple phone call between district representatives, the receiving district has the opportunity to ask clarifying questions and ensure that it understands the student’s educational needs.

There is one other important difference between transfers for most students and transfers of students with IDEA disabilities and IEPs. Parents can appeal the denial of most transfers. However, state law does not include an appeal for denial of the transfers of students with IDEA disabilities and IEPs. Therefore, school districts should make sure they are using the appropriate notice of transfer denial that accurately advises parents whether they have a right to appeal.