On April 26, 2023, the U.S. District Court in the Eastern District of California held a District liable for denying a student a Free and Appropriate Public Education (“FAPE”) as the student’s Individualized Education Program (“IEP”) was inadequate because it was, among other reasons, “fatally ambiguous.” (E.E. v. Norris School District (2023) 123 LRP 13907.) The District had used a shorthand phrase to explain the location and frequency of services it would provide.
Student had been diagnosed with Autism Spectrum Disorder and qualified for special education services under the Individuals with Disabilities in Education Act (“IDEA”). Student’s district of residence met with Student’s parents on five occasions, from March through November 2019, before the district presented an IEP in a January 2020 offering to place Student in a special day class with a trained behavior aide. Parents did not agree to the IEP, instead filing for Due Process with the Office of Administrative Hearings. The District filed its own Due Process Complaint to implement the proposed IEP over the parents’ objection.
The parents’ primary contention was that the IEP did not offer FAPE in the least restrictive environment because it failed to offer appropriate goals, appropriate related services in the areas of communication, one-to-one aide support and a behavior plan, or occupational therapy goals and services. Specifically, the parents argued that the IEP did not specify the location where occupational therapy (“OT”) services would be provided to Student, such as whether the services would be provided as a pull-out service in a therapy room or as a push-in service within the main classroom, and therefore was useless as a blueprint for enforcement. The IEP instead stated that the OT services provided as “Service prov. Location,” an ambiguous statement that had no meaning for a parent. The IEP did not provide any more information whether the services would be provided in a group or individual setting.
The Court cited the IDEA requirement that an IEP should include “the anticipated frequency, location, and duration of those services and modifications.” (20 U.S.C. § 1414(d)(1)(A)(i)(VII).) The written safeguards of a formal, written offer creates a clear record that eliminates factual disputes. (Union Sch. Dist. v. Smith, 15 F.3d 1519, 1526 (9th Cir. 1994) (quoting 20 U.S.C. $ 1415(b)(1)(E).) The Court also noted that the IDEA contained procedural safeguards that protect both students and parents.
As a result, without knowing the location and timing of services, the Court explained that parents would be prevented from monitoring the situation to determine if the IEP was being implemented correctly. The Court cited precedent stating that “a discussion does not amount to an offer…. Only those services and devices listed in the IEP, not those discussed at the IEP but left out of the IEP document, are enforceable.” (M.C. v. Antelope Valley Union High Sch. Dist., 858 F.3d 1189, 1199 (9th Cir. 2017).) The Court held these deficiencies amounted to a procedural violation that caused a substantive violation, denying Student a FAPE.
This case is an important reminder that IEPs should be carefully drafted with an eye for how parents will view the document. In this case, the district used its own shorthand in the IEP document to specify the location and frequency of the services. Whether this was an typographical oversight or if the term had been explained to the parents in the meeting, the Court’s ruling held that IEP language would be interpreted without the benefit of specialized context, and the document should stand on its own. LEAs should carefully draft IEPs so that they are understandable for parents who have no prior knowledge of its practices and procedures.
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