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Tool 38: “We Don’t Offer that Here” Is Not a Legal Answer - the Reply that Proves It

THE RULE

Two sentences of federal regulation dispose of this excuse.

First: each public agency must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services (34 C.F.R. § 300.115(a)). Available. Not “available if we happen to run one.” The continuum must include instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions (34 C.F.R. §§ 300.115(b)(1), 300.39), plus supplementary services such as resource room or itinerant instruction alongside a regular class placement (34 C.F.R. § 300.115(b)(2)).

Second: the child’s placement is based on the child’s IEP (34 C.F.R. § 300.116(b)(2)). Not based on the staffing chart. Not based on the master schedule. Not based on what exists in the building.

Put together, the rule runs one direction only. The team writes the IEP from the child’s individual needs, whether or not those needs are commonly linked to the child’s disability category (34 C.F.R. § 300.304(c)(6)). Then the district arranges the setting that delivers it. A district with no suitable setting has a procurement problem. Your child does not.

Related services follow the same rule. If the IEP calls for it, the district provides it, and it is provided at no cost to you (34 C.F.R. §§ 300.17, 300.34; Tool 35). “We don’t have a speech therapist” is a district staffing fact, not a legal answer to a child’s need. One real limit worth knowing before you argue it: related services include medical services only for diagnostic or evaluation purposes (34 C.F.R. § 300.34(a), (c)(5)). School health and nursing services are related services; ongoing physician services generally are not. When a district says “that’s medical, not educational,” that is sometimes a real argument and sometimes a label. Ask which it is, and ask for the answer in writing.

When the district refuses to provide or change a service or placement you proposed, it must give you prior written notice (34 C.F.R. § 300.503(a)(2)). That notice must contain a description of the action refused, an explanation of why, a description of each evaluation procedure, assessment, record, or report the agency used as a basis, and a description of other options the IEP Team considered and the reason each was rejected (34 C.F.R. § 300.503(b)).

WHY IT MATTERS

“We don’t offer that here” is effective because it sounds like a fact instead of a decision. Facts feel unarguable. Decisions have to be justified, and the person who made one can be asked why.

It is a decision. Someone chose not to hire, not to contract, not to place out of district. The IDEA does not care which. If the IEP requires a service or a setting, the obligation belongs to the district, and it has to solve the problem - by hiring, by contracting with a provider, or by placing your child where the service exists.

Here is the practical stake. As long as the sentence stays spoken, it costs the district nothing. Written down in prior written notice, it becomes a stated reason for a refusal, on district letterhead, in your folder. That page is the exhibit in a state complaint (Tool 90) or a due process hearing (Tool 92). It is also, quite often, the page that makes the sentence disappear. Districts say things at a table that they will not put in writing.