Have you heard from some parent advocates that “there is no IEP” for a special education student unless the parent has agreed to the plan proposed by the school district? A recent ruling by the United States Court of Appeals for the Second Circuit reaffirms that an IEP does, in fact, “exist” as a legally recognizable document at the time that it is proposed by the school-based members of the IEP team, and the right of the parents at that point is to exercise their procedural safeguards and request a due process hearing if they disagree with the IEP proposed by the school.
The decision, entitled A.E. by Mr. and Mrs. E. v. Westport Board of Education, 2007 WL 3037346 (2d Cir. 10/18/07) is a summary opinion affirming the decision of the United States District Court for the District of Connecticut in A.E. ex rel. E. v. Westport Board of Education, 463 F.Supp.2d 208 (D.Conn. 2006). The Second Circuit clearly rejected the argument made by many parent advocates in Connecticut that “there is no IEP” until the parent agrees to the school district’s proposal, stating that “[t]here is no requirement in the IDEA that the parties must reach consensus on all aspects of an IEP before it is valid”…”[r]ather, the proper recourse for parents who disagree with their child’s IEP is to request a due process hearing, as did the parents here.”
Although the opinion of the Second Circuit is a summary opinion not published in the official case reporters, the decision of the District Court is published and may be cited as binding precedent in this district, and it now carries the added weight of having been affirmed after review by the highest court in this Circuit.
Incidentally, the program proposed by the Westport Board of Education for a middle school student diagnosed with bi-polar disorder at Cooperative Educational Services (CES) in Trumbull was also found to be appropriate, and this decision was also affirmed on appeal by both reviewing courts. Kudos to Westport and CES for providing good programming to kids and being able to prove it in the face of fierce opposition!