Memorandum on Procedures Lite
|To:||Administrators of Special Education and Other Interested Parties|
|From:||Marcia Mittnacht, State Director of Special Education|
|Date:||December 16, 2011|
It has come to our attention that a small number of school districts have implemented a practice, generally referred to as "Procedures Lite" (PL). Although there is some variation among the districts, PL is a process through which parents usually agree to waive procedural rights guaranteed under federal and state special education laws, for one year (or longer, if agreed to in subsequent years). Under PL, the Individualized Education Program (IEP), which is the cornerstone of the federal Individuals with Disabilities Education Act (IDEA) and state special education law, G.L. c. 71B, is replaced by a Student Learning Plan. Additional waived rights may include IEP Team meetings and the right to appeal all issues that arise while the PL Agreement is in effect. This broad waiver of rights takes place in the ordinary course of the provision of special education to students, not as a result of individual disagreements that are settled through dispute resolution mechanisms such as Bureau of Special Education Appeals (BSEA) mediations and hearings.
For legal and policy reasons, we have directed districts that have implemented the practice to discontinue it.
A district practice that institutionalizes discussion of a broad waiver of procedural rights with groups of parents, or all parents, is inconsistent with the district's responsibilities under the IDEA. The federal special education law states that a "local educational agency - shall establish and maintain procedures in accordance with [20 USC §1415] to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education by such agenc[y]." (Emphasis added.) 20 USC §1415. Instead of establishing and maintaining procedures to ensure that parents and students are guaranteed procedural safeguards, PL has the opposite objective, namely, waiver of those rights.
It is important to note that the IDEA explicitly provides flexibility in the implementation of some procedural safeguards in individual student situations. For example:
- Certain members of the IEP Team may not be required to attend meetings under certain circumstances if the districts and the parent agree, and the parent consents in writing. If the meeting involves a modification to, or discussion of, the member's area of the curriculum or related services, the member in advance must submit written input. 20 USC §1414(d)(C).
- The district and parent may agree that convening of an IEP Team meeting is not needed to amend or modify a student's IEP. 20 USC §1414(d)(D) and (d)(F).
- To the extent possible, districts shall encourage the consolidation of reevaluation meetings and other IEP Team meetings for the student. 20 USC §1414(d)(E).
- Districts and parents may agree to waive resolution meetings, 20 USC §1415(f)(1)(B)(i), and agree on interim placements during the pendency of dispute proceedings. 20 USC § 1415(j).
- Parents may elect to receive required communication and notices by electronic mail if the district offers the option. 20 USC §1415(n).
We encourage parents and districts that have not used these provisions to consider doing so if they believe one or more of the provisions will improve their process.
As alluded to at the beginning of this advisory, we distinguish a district's systematic request for a waiver of procedural rights by a group of individuals from a waiver of certain rights that may be included in a settlement agreement following a BSEA mediation or hearing request. Such agreements, which may include waivers of certain claims or processes, are contemplated by the IDEA, see 34 CFR §300.506(b)(6); §300.510(d), and are a routine practice at the BSEA.
If you have any questions about this memorandum, please email Marcia Mittnacht, State Director of Special Education, at firstname.lastname@example.org.