Special Education TIP – 5-Day Rule: MSDE Provides a New Interpretation – 49-2017

Section 8-405 of the Education Article provides that except when there are extenuating circumstances, at least 5 business days before an IEP team meeting, the school system shall provide the parents with an accessible copy of each assessment, report, data chart, draft IEP or other document it plans to discuss at the IEP team meeting. In a recent MSDE letter involving the review of a document that was not timely provided, MSDE opined, “(W)e have no problem with the school staff requesting that a parent agree to proceed with the review of a document that they are provided with at the IEP team meeting.” The document at issue was an assessment report. Based on prior information from MSDE, the school based members of the IEP team asked for a signed waiver in order to review the report at the meeting and said otherwise, the meeting would need to be rescheduled. MSDE objected to the request that the parent sign the waiver and called the team’s behavior “concerning” and inferred the team was unprofessional.

The purpose of this Tip is not to criticize MSDE for its unwarranted criticism of a team trying to follow the rules. The purpose is to advise that the interpretation of the rule is now this: If you fail to comply with the 5-day rule, you may ask the parent if the parent is willing to proceed with a review of the document at the meeting. You may not require a waiver. You should note the request and response in the PWN. Further, you should take a break in the meeting, prior to the review of the document, to give the parent an opportunity to review the document. Of course, the preferred method of handling the review of documents is to be sure the parent receives the documents at least 5 business days before the IEP team meeting.