Author: Eric Stevens
In the case of M.C. v. Antelope Valley Union High Sch. Dist. (2017) 858 F.3d 1189, the Ninth Circuit Court of Appeals considered parents’ complaint that their student was denied a FAPE when a school district unilaterally changed the provision of vision services in an IEP from 240 minutes per month to 240 minutes per week. The school district claimed that the district and parents had verbally agreed to 240 minutes per week at the IEP meeting, but the signed IEP agreement contained a typo.
While providing more minutes of vision services did not substantively harm student, the Ninth Circuit Court of Appeals agreed with parents, ruling that the school district’s unilateral revision to student’s IEP was a procedural violation of the IDEA that denied student a FAPE.
A procedural violation of the IDEA can deny a student a FAPE when it seriously infringes on a parent or legal guardian’s opportunity to participate in the IEP formation process. Here, the Ninth Circuit found that parents were denied this opportunity and student was denied a FAPE.
An IEP is like any other written contract and cannot be unilaterally changed. If any party believes that the IEP needs to be changed, it must notify the other party and seek consent to an amendment. It does not matter if a local educational agency (LEA) believes that it is merely correcting a typo to reflect what was agreed upon at a meeting or to provide more services to a student. As a practical matter, the parents may disagree that the issue is a typo and seeking consent to the “correction” can help protect the LEA from a later due process complaint. As a legal matter, any unilateral change to an IEP is a procedural violation of the IDEA that may be the basis for a denial of FAPE claim as it was in this case.
The Ninth Circuit also observed that an IEP provides notice to both sides of what services will be provided to a student during the term of the IEP. The IDEA is just as concerned with parental participation in the formation of an IEP as it is in the enforcement of an IEP. When an LEA provides services that are different from what is in a signed IEP, it undermines parents’ ability to enforce the IEP. As the Ninth Circuit found in this case, it can lead to the necessity for parents to retain an attorney to clarify what services (or the amount of services) that are being provided.