We had a case that began last school year and carried forward into this school year in which a legally interesting, but damnably frustrating, situation arose that exposed a legal loophole in the special education process. There’s no way to give a short and easy descriptive name, so I just going to describe the circumstances to you and discuss the implications.
The situation involved a school district that has made a practice, thanks to the micro-managerial style of the district’s special education director, to fail to provide a finished copy of an IEP to the parents at the end of each IEP meeting. This is a district-wide policy issue, not something that only happened to our client. As a policy, the director of special education attends the IEP meetings and brings his secretary who takes the IEP meeting notes (which he refers to as “minutes”) on an AlphaSmart.
For those of you not in the know, an AlphaSmart is a portable keyboard/word processor that can be connected to a computer to print out what has been typed on it. They are often used in special education to give to students who keyboard better than they hand write to take notes in class, produce written work, etc. They’re small and portable but they don’t have all the functionality of a laptop computer. While they were cutting edge back in the day, these days, there’s nothing that says “I’m in special ed!” like taking an AlphaSmart to class, so most kids won’t have anything to do with them, leaving a surplus in the special ed department in those districts that bought them.
This school district I’m talking about – let’s call it L District – has the secretary type the IEP meeting notes as the IEP meeting is taking place, which is actually more efficient than having someone who has to also participate in the meeting doing double duty by taking the notes as well (participating and taking notes at the same time is very, very challenging and usually the quality of the person’s participation and the notes are sacrificed to a certain extent) using an AlphaSmart. The problem is that L District does not provide the means to print out the meeting notes at the end of the IEP meeting from the AlphaSmart.
Instead, the AlphaSmart is taken back to the district offices where the notes are eventually printed out days, weeks, or even months later. And, before the notes are provided to the parents, they are “reviewed” by the district’s director of special education. More to the point, they are edited by the district’s director of special education, as is the rest of the IEP. Because the notes aren’t available at the end of the IEP meeting, the whole IEP document is held up. Or, at least that’s the excuse that is given by the district. The reality is that the director of special education takes it upon himself to go through every IEP document and edit it after the IEP team has already determined what it will say. The edited document is what the parents ultimately receive days, weeks, or months later.
To make matters worse, the parents have often already signed consent to the IEPs on the signature pages that were presented to them during their IEP meetings based on what was discussed, which the special education director subsequently changes when he edits the IEPs. Because the parents were never given a copy of what they thought they were consenting to immediately following the IEP meeting, they have nothing to compare against the special ed director’s edits. On top of that, half the time, what they get is the IEP less the meeting notes, which are provided some time later. Even if they were in agreement with the parts of the IEP they got, the meeting notes are provided after they sign and their signatures are construed by the district to apply to the meeting notes, even though the notes were not available at the time they were asked to sign their consent and thus, were not actually consented to.
This isn’t clear from the record. If you request student records from this school district, what you’ll get are the whole IEPs put together well after the fact and there is no documentation to reflect that they were done piecemeal and that consent was sought to only portions of the documents though applied to the entire document once the outstanding components were actually produced. In reality, portions of the documents may not be consented-to, but you have no way of knowing that just by looking at them. Unless you have dated written correspondence from the parents that say, “Hey! When are you going to give me the IEP” and “Hey! You only gave me part of the document!” you have no way to prove the procedural violations.
More important than just the violations of the proper procedure is the impediment these procedural violations create with respect to meaningful parent participation in the IEP process, which is a right guaranteed to parents under federal law and part of the definition of what amounts to a FAPE. That’s the bigger concern for me.
There are no federal regulations that spell out how long a school district has after an IEP meeting has been held to produce the IEP document for the parents to consider and to which they can give consent. The law only requires that the IEP be implemented as soon as possible once the parents have consented to it.
Some parents know enough to not sign agreement to anything the day of the meeting and to only sign that they were in attendance. They then take a copy of the IEP home so they can go over it and think about it before signing their consent. I advise that parents do this pretty much all the time unless we’ve been through several IEP meetings and the current one is the last in a series that finally results in a clean document worth signing. At that point, the document isn’t new to us; it’s been through several revisions and we’ve finally gotten all the bugs worked out. If it is a new IEP, I definitely advise parents not to sign right then or to only indicate agreement to the no-brainer parts with which they have no problems (like eligibility, for example).
But, what happens when the district doesn’t make a copy of the IEP immediately available? Sometimes, the IEP meeting doesn’t get done until 5pm (or later) and all the printer and copier equipment has been shut down for the day and the school personnel need to get home. Sometimes a piece of equipment is broken and the document is going to have to be printed and copied at another location. These things happen. I have no problem with a district faxing or scanning/emailing me the IEP the next day or even the day after that.
What I have a problem with is waiting for over a month for the IEP document to be forthcoming while the child fails to receive the services the IEP describes and to which the parents would have consented had they been provided with the IEP more timely, particularly when those services are desperately needed and the child is suffering harm in the absence of them. Or, when the staff work off of “verbal agreement” to what they remember the IEP team discussing but without a document that explains exactly what they’re supposed to be doing such that they’re all doing what they think the IEP probably says rather than what it actually says, undermining everything with their own individual subjective interpretations of what is supposed to be going on.
There is no such thing as “verbal agreement” in special education. Nothing can be implemented without the parents’ written consent. Consent cannot be given if the parents have no IEP to sign. A FAPE is denied when the education rendered fails to comport with the IEP. If what the staff is doing is what they think is on the IEP that hasn’t been signed by the parents yet, and it isn’t identically described in the student’s previous IEP (which is the one still in force until the new one is signed), then the staff is rendering an education that fails to comport with the student’s current, in-force IEP.
A FAPE is denied on the basis of a failure to allow meaningful parent participation in the IEP process, as well, because the parents cannot meaningfully participate if they are prevented from giving consent to the new IEP. And, what if they don’t agree with the new IEP or at least parts of it. How can they express that disagreement and work with the district to see the dispute resolved if they have no document to work from.
Parents have a right to a copy of their child’s IEP. The regulations are clear on that. However, this usually is taken to mean a copy of the signed IEP after consent has been given. It doesn’t specifically state that, so that leaves some leeway to file a compliance complaint on the basis that the parents have been denied a copy of the IEP, but there is no timeline by which it has to be provided other than the general rules that apply to the general provision of copies of student records to parents upon written request. That’s usually the regulations you turn to when you want a copy of a kid’s entire file. You shouldn’t have to file a records request as a parent just to get a copy of the most recent IEP offer for your consideration and consent.
The district has an obligation to offer and render a FAPE. It can’t do that without parental consent to an appropriate IEP offer. Parental consent can’t be obtained without giving the parents the IEP to sign. It seems so logical to me, yet, procedurally, L District continues to sit on IEPs for weeks to months and provide them to parents piecemeal, construing consent to parts of the document to apply to other parts provided to the parents well after they have already signed.
Ideally, districts would have no more than two or three business days after the IEP meeting to get an IEP copy to parents for their consideration. But, we don’t have any laws that require that – at least not at the federal level. Some states may have regulations to that effect, but I’m in California – one of, if not the most regulated states on the planet – and we don’t have anything like that. Generally speaking, the other states have less stringent requirements than California, so it wouldn’t surprise me at all to learn that none of the other states have timelines specific to providing IEPs to parents for their consideration and signature following the IEP meeting. Please comment if there are such regulations that you’re aware of in your state.
I can’t fathom why a school district would want to exploit a legal loophole like this. There’s no good faith reason to take so long to get full, intact IEP copies as they were written during the IEP meetings to parents following the IEP meetings. I’m pressed to come up with a bad faith reason that makes any sense. In the instance of L District, it’s the inadvertent outcome of a controlling administrator and his deliberate use of a tool for taking the notes that prevents the immediate production of intact IEP copies at the end of the meetings to buy himself time to edit the IEP documents after the meetings have already been held without the input of the rest of the IEP team.
As it stands, the only real way to contend with this is due process, which we pursued on our client’s behalf in this district. But, the outcome we achieved only impacts this student. It’s still business as usual for every other special ed student in the district and that bothers me a lot. Were there regulations that specified a timeline for this situation, a simple compliance compliant would take care of it. Unfortunately, under the circumstances, all we have left in our tool bag for this type of situation is litigation.
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