|
Question:
Last week my child’s
IEP Team met to create a new IEP. I disagree
with the IEP, what are my options?
Answer:
Once the Superintendent (or his or
her representative) signs the IEP, the school district must implement
it within 15 days of the date of the signature. The commitment
signature on a copy of the IEP provided to the parent also serves as
written notice of the district’s intent to implement the IEP in its
present form.
Some parents think that their
signature is also required before the school district can implement a
proposed IEP. Except for the student’s initial IEP (the one where
eligibility is first determined) that is just not true. Rule 22a
of the Michigan Administrative Rules for
Special Education – MARSE) states:
(2) The parent, upon receipt of
notification from the superintendent, shall have the right, at any
time, to appeal the decision under R 340.1724. If the parent does not
appeal, then the superintendent shall initiate the individualized
education program as soon as possible, but not later than 15 school
days after the parent has been notified.
In turn, currently R 340.1724 refers only
to hearings and nothing else. It may be that the new regulations
implementing IDEA-2004 will allow a request for voluntary mediation
(remember – both sides have to agree to mediate) to also prevent the
implementation of a proposed IEP. However, until such a regulation is
adopted, it is my opinion that the only proceeding that actually stops
the implementation of a proposed IEP is a hearing request. That does
not mean that a parent cannot seek mediation either before or after
they request a hearing, just that current law does not provide that a
request for mediation (without a request for a hearing) stops the
implementation of a proposed IEP. I recognize that some school
districts, in an effort to delay or avoid a hearing, may
voluntarily agree to delay the implementation of the contested IEP
when mediation (without a hearing request) is requested and the
district agrees to mediate. If this happen, I would suggest that if a
parent is informed that this is how the proposed IEP will be treated
that they ask for a written confirmation of that policy.
Parents frequently ask me why it is
important to request a hearing when they do not agree with an IEP. It
is only to do so immediately upon receiving the signed IEP IF the
parent does not want the IEP to be their child’s IEP for the time it
takes to resolve their dispute. If mediation is successful, that
could be a few days. However if they end up in a hearing, it could be
a long time. This is because once a hearing is requested the concept
of “stay put” takes over. Stay Put is shorthand for the automatic
injunction (sometimes called the “pendency placement”) that goes in
effect when a parent requests a hearing. It is designed to protect
children from having changes their parents do not feel are appropriate
applied to their education. Here in the 6th Circuit is
clear that the “stay put” placement is determined by the IEP and
educational services that are actually in place when the hearing was
requested. Therefore, if a hearing is requested before the
proposed IEP the parent disagrees with is implemented, then it is the
“old” (e.g. previous) IEP. If the hearing is requested after
the proposed IEP the parent disagrees with is implemented, then it is
defined by the “new” IEP.
It is also important to note that “stay
put” may last for the entire hearing process, including an appeal to a
federal district court. Until July 1, 2006, when Michigan goes to a
one-tier ALJ system, the time involved for a local hearing, state
review and possible appeal to a federal district court can take an
entire school year or even longer. While the “stay put” placement can
be changed at anytime if the parents and District agree, or by
operation of law under limited conditions, it is fair to say that a
parent needs to think carefully about which IEP they want to define
their child’s education for at least the next few months, if not
longer.
Parents have also asked me about the
various boxes that appear on the signature page of the typical IEP
form. Unfortunately, not all school districts and ISDs follow the MDE
recommended form. As stated earlier, except for the initial IEP, from
that point forward the law does not require any signature from the
parents giving “permission” to implement. Therefore, in my opinion
the only required box on non-initial IEPs would be: Disagree and
Request a Hearing. Another box indicating the parent’s
willingness to attempt to mediate the dispute before or after
commencing the hearing process would also be appropriate. Note:
Under IDEA-2004, there is also an automatic requirement for a
resolution session to be held before the parent can proceed to a
hearing. The parties can waive the hearing and proceed to mediation
or a hearing.
As far as the box - Disagree but will
allow to implement that appears on some IEP forms, I agree that
checking that box does show disagreement with the proposed IEP. So
does filing a parent’s Dissenting Report, which by law must be
attached to the IEP. In practical terms both indicate that the parent
did not agree with the IEP, but rather than requesting a hearing at
the time they signed it or submitted the report and have decided to
allow the IEP to be implemented. As is noted above, by not requesting
a hearing at that time the parent has decided that if they request a
hearing at some later date, it will be the IEP they initially
disagreed with that will become the “stay put” setting.
More significantly, if a hearing is
requested at some later date the school district may argue that the
parent waived all claims prior to the date the district signed the IEP
where the parent may claim that their child was denied a FAPE. This
may or may not be an important issue, depending on the facts of the
case as all hearings do not involve “prior claims”. Prior claims are
those claims that usually involve a past failure to properly implement
a prior IEP or a past failure to properly evaluate a student. Under
IDEA-2004’s Statute of Limitations, it would appear that parents have
two years to file a claim regarding a prior denial of a FAPE and to
claim their child is due an award of some type of compensatory
educational services. However, in Michigan, some school attorneys
are pointing to a decision of a State Review Officer claiming that
there is precedence that parents waive their right to raise any prior
claims if they fail to request a hearing at the first opportunity
after they became aware of the claim. While to my knowledge no court
has upheld a denial of a prior claim based on this theory, it is an
argument a parent may face by not asking for a hearing at the first
opportunity to do so.
I hope my understanding of this area of
special education law, which other may or may not agree with, helps
your understanding of the subject.
John F. Brower, JD – Managing Partner
c/o Law Office of John F. Brower,
Brighton, MI
(information@michedlawcenter.com)
Education Law Center, PLLC · 810-227-9850
·
www.michedlawcenter.com
Copyrighted Material - All Rights
Reserved - May Not Be Reproduced Without Written Permission |
