Last Updated on July 26, 2022 by Michelle Ball
By Michelle Ball, Sacramento California Expulsion, Special Education, sports/CIF, College, Education and School Attorney/Lawyer for Students since 1995
In the Ninth Circuit Court of Appeals decision Anchorage School District v. M.P. (July 19, 2012, No. 10-36065), the Court ruled that the lack of an updated annual IEP (Individualized Education Program) plan resulted in M.P. (student) not receiving a Free and Appropriate Education (FAPE). The Court also ruled that the parents were to receive reimbursement for private tutoring and attorneys fees.
In Anchorage, Judge Paez stated that a school district has only two options if the annual IEP remains unsigned (e.g. a parent wants more changes, rejects it, etc.). The District must then either:
1) Continue working with the parents to develop an IEP which is accepted by all, OR
2) Revise the IEP on their own and file a due process hearing to seek administrative approval of the proposed IEP.
This is significant. There are many times that parents have a signed IEP, e.g. from 2 years ago, but no signed IEP since that time due to disputes. However, as explained in Anchorage, this would evidence a lack of FAPE. A district cannot just continue relying on the old outdated IEP while the child “advances” from grade to grade. Rather, as the Court explained, they have “an affirmative duty to review and to revise, at least annually, an eligible child”s IEP.” If they do not, the district can be attacked for a lack of FAPE and may have to pay for services (compensatory education) provided by the parents during the time there was no FAPE.
The Court also was not deterred by the argument that the parents were too litigious and somehow stopped the annual IEP from being finalized. Instead, Judge Paez opined that regardless of the parents exercise of their right to object, the district must update the annual IEP to ensure a student receives appropriate services.
This is a wonderful opinion for parents which should ensure that students don’t get stuck with outdated IEP documents with pointless goals from many years before. If there is an impasse, the school district must work with the parents to finalize the IEP or go to hearing.
This is not a long decision and is a good read. I encourage all parents of special education students to review it!
