Oops! How costly can an innocent mistake be?

School just started and you already found a mistake in a student’s IEP.  The kid is supposed to get PT once a week, but the IEP says “once a month.”  You know that this was just a mistake, innocently made. Everyone at the ARD meeting understood that the student would be getting PT once a week. But there is that document….What should you do?

Fixing the error without notifying the parent could be costly.  This is essentially what happened in the Antelope Valley School District in California in a case that ended up before the 9th Circuit. In that case the IEP called for 240 minutes of services from a VI teacher. But the IEP said 240 minutes per month, when it was supposed to say 240 per week. The district changed the IEP without formally amending the IEP.  Both the hearing officer and the district court were OK with this, but not the 9th Circuit:

An IEP is a contract…..The school district is not entitled to make unilateral changes to an IEP document any more than any other party to a contract.  If the District discovered that the IEP did not reflect its understanding of the parties’ agreement, it was required to notify [the parent] and seek her consent for any amendment.

The court thus held that the district denied FAPE to the student. Some of you are probably thinking: “But wait—the district changed the document to provide MORE services, not less! How can that be harmful to the parent?”

Good question. The court found that the district‘s unilateral change to the document kept the parent in the dark, and thus infringed on the parent’s right of meaningful participation in the process. This is an excellent example of the legalistic, lawyer-driven system IDEA has created. I’m sure that not all judges would have ruled this way, but these three judges on the 9th Circuit did. So take note and be careful.

If you find an unintentional error like this in an IEP document do not simply correct the error. Contact the parent.  Tell the parent what you found and how you’d like to fix it.  Obtain the parent’s approval.  Then do a simple IEP Amendment and put it in the file.

This case is M.C. v. Antelope Valley Union High School District, decided by the 9th Circuit in May, 2017.


Tomorrow: why you should always do your own evaluation of the student.