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Last Updated: 11/20/2017
 

Ask the Attorney with John Brower, J.D.   [Back to Ask the Attorney]

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 

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