Federal regulations permit parents and schools to modify a student’s IEP without the formality of an ARDC meeting, if there is a “written document” to that effect. 34 CFR 300.324(a)(4). In its recent decision, the 5th Circuit cites one modification that was properly done, and one that was not.
On May 5, 2015, the school called in the cops to deal with a student who had “repeatedly struck his teacher with a closed fist and then charged at her.” The next day, the school and the mother “without consultation with [the student’s] ARDC, agreed in writing that [the student’s] school day should begin at 9 a.m. instead of the normal 7:30 a.m.”
This shortened the student’s school day by 90 minutes, but the court was OK with it because the “formal written document” that the school and mother signed satisfied the requirements of the law.
Twelve days later the parties agreed that the school day for the remaining 11 days of the school year would be shortened to a mere three hours. Note: the court’s decision says that the mother “agreed” to this. However, there was no “formal written document” in place. The only “written” documentation the school could cite was an email from one staff member to another which noted that they had discussed this with the mother, and that a “brief ARD” would be necessary. That ARD was never held. There was no written confirmation of the mother’s agreement. The court held that this was an “actionable violation” of the IEP.
That email said that this shortened day was needed in order to “survive the last 11 days of school.” Reading this court decision, even years after these events, the weariness and frustration of school staff is evident. It’s also understandable. This was a challenging student, the year was almost over and everyone was exhausted. In fact, at the suggestion of an outside counselor the boy was pulled out of school altogether for the final three days. So they did not “survive” the last 11 days.
Of course emotional exhaustion is not going to factor into a court’s decision. The regulations require a formal written document. There wasn’t one.
The case is Spring Branch ISD v. O.W., decided by the 5th Circuit on September 16, 2019. We found it at 2019 WL 4401142.
DAWG BONE: CHANGES TO AN IEP REQUIRE AN ARDC MEETING, OR A WRITTEN AGREEMENT BETWEEN SCHOOL AND PARENTS. NO EXCEPTIONS IN HARD CASES.
Tomorrow: Some opinions.