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Last Updated: 10/31/2017
 

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

Question: I understand that my school district is in the process of amending its IEP form. As part of that process it has decided to remove the box from the form that says: Disagree with IEP and Request a Due Process Hearing”. When I asked about this, I was told that the decision was made as a result of the 2004 amendments to IDEA. Can the school do this? What about my rights to “stay put”?
   

Answer:  First, while the Michigan Department of Education has a sample IEP form, many Intermediate School Districts and some local school districts have designed and use their own forms.  While a school can provide its own forms,  the form must comply with the section of IDEA that provides parents with significant procedural protections, including the right to take disputes before an impartial hearing officer.  (See 20 U.S.C § 1415 and supporting regulations) .  So, while a school district can make this change, are they violating IDEA when they do so? 

Is it is my understanding that the Michigan Department of Education and/or the courts have not addressed this exact issue, the answer is unclear. However, the following may help you have a better understanding of the issues involved and why your school district may have acted as it did.

First, a request for a hearing has two aspects.  First, under the new Michigan hearing system, MDE provides the parent with an impartial Administrative Law Judge (ALJ) from the State Office of Administrative Hearings and Rules (SOAHR) to hear their case regarding matters relating to the identification, evaluation, educational placement of their child, or the provision of a free appropriate public education (FAPE) to their child.  The second aspect, “stay put” may in some situations may be just as important as the right to the hearing itself.  “Stay put” acts as an automatic injunction that prevents a school district from implementing a disputed IEP.  To be clear, I believe it is well settled law that only a request for due process triggers "stay put"; not a request for mediation or informal discussions.  

Once the student’s IEP Team makes its recommendation and the district’s superintendent (or designee) approves and the parent is given notice of the approval (generally via a signed IEP form) then the school district has up to 15 days to implement the IEP, but the IEP Team can implement its recommendation as soon as the day after the IEP Team meeting.  At the same time, in the 6th Circuit the “stay put” placement and program is based upon the last placement/program where the child was receiving educational services at the time an IDEA hearing was requested.  Put these together, a parent can lose the benefit of “stay put” to stop a proposed IEP that the parents sees an inappropriate if they do not act before the disagreed with IEP is implemented. 

In the past, when a parent wished to prevent an IEP they disagreed with from being implemented, they just checked the box – Disagree and Request a Hearing as soon as they were handed the signed IEP form.  The, after having time to review in detail the IEP form, they wrote their Notice of Hearing Issues required by IDEA since the 1997 amendments.  Now there are arguments being made by some school attorneys that just checking a box requesting a hearing is no longer a valid way to make a hearing request and invoke stay put. 

That brings us to the next issue. What is a valid due process hearing request?  Some school district attorneys have interpreted IDEA-2004 to take the position that a due process hearing request is not valid until and unless the parent provides, in writing, "sufficient" details as to their hearing issues.  Of course, it is the school district that initially decides the sufficiency of a hearing request.  Additionally, once a request s made in writing it may not be possible to amend or change the issues upon further reflection or consultation with an experienced special education attorney.  In the end, the parent may be stuck with a set of issues that are incomplete or do not address prior denials of a FAPE.  The latter is important as in Michigan if you let even one IEP cycle go by without raising claims of a prior denial of a FAPE, by operation of law and despite IDEA’s 2-year statute of limitations, you may be forever barred from making such a claim.

As to the need for a detailed notice to "trigger" a hearing request and stay put, I disagree that one is needed.  Not surprisingly, unlike some school district attorneys, I am of the position that a simple request for due process (checking a box or otherwise doing so in writing) invokes the automatic injunction that is stay put and starts the hearing process.  The "sufficiency" of the parent’s notice is in my opinion, a separate issue that is decided by the IDEA Hearing Officer after one is appointed and only after the school district claims the notice is insufficient. 

Unfortunately, I am aware of conflicting opinions from MDE as to what exactly will trigger a hearing request and “stay put”.  Therefore, my recommendation is for a parent to carefully read the Notice of Procedural Safeguards they are provided.  Next, to not act hastily in requesting a hearing, but to not delay and to do so in writing immediately after receiving a signed IEP they disagree with; particularly if they wish to prevent it from being implemented.  I also would suggest that any Michigan parent who sees an IEP form without details as how to request a hearing on the form itself file a Part 8 complaint with MDE so that the Department of Education can formally address this issue. 

I hope my understanding of this area of education law, which other may or may not agree with, helps your understanding of the subject.  

John F. Brower, JD – Managing Partner
Education Law Center, PLLC
c/o Law Office of John F. Brower, Brighton, MI

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