Understanding the Differences Between IEPs, ISPs, and FAPE Rights: A Critical Examination of Recent Trends in Special Education

By Woodsmall Law Group on September 10, 2024

Warning: The Risks of Agreeing to an ISP

Agreeing to an ISP can potentially eclipse a parent’s right to pursue reimbursement for a unilateral private placement. By accepting an ISP, parents may inadvertently waive their right to assert that the school district failed to provide FAPE. This is because, in the past, courts have often viewed the acceptance of an ISP as evidence that the parent agreed to the services provided, thereby undermining any claim for reimbursement based on a denial of FAPE. This legal risk underscores the importance of parents understanding their rights and the full implications of accepting an ISP in place of an IEP.

Purpose of the Individuals with Disabilities Education Act (IDEA)

The Individuals with Disabilities Education Act (IDEA) guarantees that children with disabilities are entitled to a Free Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE). The cornerstone of this entitlement is the Individualized Education Plan (IEP), a legally enforceable document tailored to meet the unique needs of each eligible student. However, there is a growing trend where school districts are increasingly presenting Individualized Services Plans (ISPs) as the only option for special education-eligible children, particularly those placed in private schools by their parents. This trend raises significant legal concerns for parents and professionals, especially regarding the potential forfeiture of rights to reimbursement for unilateral private school placements. This article will compare and contrast IEPs and ISPs, analyze the legal implications of recent trends, and provide guidance on safeguarding rights under IDEA.

IEPs and the Right to FAPE

An Individualized Education Plan (IEP) is a detailed and legally binding document developed for each child with a disability who is eligible for special education services under IDEA. The IEP is designed to ensure that the child receives FAPE by tailoring the educational program to meet their specific needs. Key components of an IEP include:

• Present Levels of Academic Achievement and Functional Performance (PLAAFP): A comprehensive statement of the child’s current abilities and challenges.
• Measurable Annual Goals: Goals that are both challenging and achievable, based on the child’s PLAAFP.
• Special Education and Related Services: Specific services, such as speech or occupational therapy, should be provided.
• Accommodations and Modifications: Adjustments to the learning environment or teaching methods.
• Progress Monitoring: Regular assessments to measure progress toward the annual goals.

Under IDEA, the school district is obligated to provide services outlined in the IEP at no cost to the parents, ensuring the child receives an education that is reasonably calculated to provide meaningful educational benefit in light of the child’s circumstances (Endrew F. v. Douglas County School District, 2017).

ISPs and Their Limitations

An Individualized Services Plan (ISP) is distinct from an IEP. ISPs are created for children with disabilities who are unilaterally placed in private schools by their parents. While IDEA requires public school districts to allocate a proportionate share of federal funds to provide special education services to students in private schools, the level of services provided through an ISP is significantly limited compared to an IEP. Key differences include:

• Scope and Entitlement: Unlike an IEP, an ISP does not confer an entitlement to FAPE. The services provided under an ISP are determined based on the district’s policy and available resources, not the child’s individualized needs.
• Development and Implementation: ISPs are not developed through the same collaborative process required for IEPs. There is no mandate for specific goals, progress monitoring, or regular reviews.
• Rights and Safeguards: Parents do not have the same procedural safeguards under an ISP as they do with an IEP. For example, there is no right to an independent educational evaluation at public expense or a due process hearing regarding the content or implementation of the ISP.

The Trend Toward Offering ISPs as the Sole Option

Recently, some school districts have begun presenting ISPs as the only option available to parents of special education-eligible children, particularly when a child is placed in a private school. This trend is troubling because it can obscure a child’s right to an IEP and FAPE, potentially misleading parents into believing an ISP is equivalent to an IEP. School Districts must provide parents with a full understanding of their rights under IDEA and the significant differences between IEPs and ISPs.

Unilateral Placement and Reimbursement Under the IDEA

Under IDEA, parents may place their child in a private school unilaterally if they believe the public school is not providing FAPE. However, to be eligible for reimbursement of tuition and related costs, several criteria must be met:

• Notice Requirement: Parents must notify the public school district of their intent to place the child in a private school and seek reimbursement, typically 10 business days before removing the child from the public school.
• Appropriateness of Private Placement: The private placement must be appropriate for the child’s needs, even if it does not meet all the state standards.
• Equitable Considerations: Courts may reduce or deny reimbursement if parents do not provide the requisite notice or if the public school has not been given an opportunity to correct the issues.

Several landmark cases, such as Florence County School District Four v. Carter (1993) and Forest Grove School District v. T.A. (2009), establish that reimbursement is permissible when a public school fails to provide FAPE, and the private placement is appropriate.

Practical Guidance for Parents and Professionals

Parents and legal professionals must carefully consider their options when facing an ISP proposal. Key recommendations include:

• Seek Legal Advice: Before agreeing to an ISP, consult with a knowledgeable special education attorney to understand the potential impact on your child’s rights.
• Request a Full IEP Meeting: If your child is eligible for special education services, insist on developing an IEP that fully complies with IDEA’s requirements.
• Understand the Consequences: Be aware that agreeing to an ISP can limit your ability to seek reimbursement for unilateral placements if you later determine that the public school has failed to provide FAPE.

Get Answer Your Questions By Contacting Our Special Education Lawyers in Los Angeles

The distinction between IEPs and ISPs is critical for parents and professionals involved in special education matters. While ISPs may offer limited services, they do not provide the same rights, entitlements, or procedural protections as an IEP. Parents must be fully informed about their rights under IDEA and the potential consequences of accepting an ISP, particularly regarding their ability to pursue reimbursement for unilateral placements. Don’t be misled into forfeiting your child’s essential special education protections.

If you have any questions or concerns about your child’s special education placement or the services they are receiving, schedule a free initial consultation with our Los Angeles area special education lawyers. Woodsmall Law Group is a Southern California law firm serving Los Angeles. Our attorneys have been practicing law for over 20 years and are eager to thoroughly discuss your concerns.

Call our firm today at (626) 440-0028—we speak English and Spanish.