Watch Out for Waivers!

Watch Out for Waivers!

You May be Signing Away Your Child’s Rights and Benefits

Jean Murrell Adams, Esq.

School is back in session (well, sort of) and we’ve been getting lots of questions regarding whether or not school districts and charter schools have to comply with IEPs.  The short answer is—yes!  Parents and schools should remain reasonable and flexible in ensuring that children with special education needs are timely receiving all testing, teaching and other services consistent with their IEPs.  Unfortunately, some school districts are forcing parents to waive important educational safeguards in order to receive IEP services and supports already guaranteed by law.  Here are a few things to consider before you sign away your child’s rights.

1. How can I tell if I am waiving my, or my child’s, legal rights?

When you sign a waiver, you are voluntarily agreeing to give up a legal right.  The terms “waiver” and “release” basically amount to the same thing but you’ll often see them used together.  There are two general types of waivers, express and implied.  An express waiver might include words or phrases such as “waiver and release”, “release of claims”, “full and final”, “general release”, “waive any claim” or “parent waives all rights, benefits and remedies”.  Express waivers are typically very easy to spot. 

Implied waivers are harder to detect.  During shelter-in-place, they will probably show up in the form of a Prior Written Notice (PWN) detailing what the school district or charter school will or will not do in terms of IEP compliance.  If you do not respond to the PWN within a reasonable time frame, a judge may later assume–or imply–that you approved the school district’s decision.  Even without signing the PWN, you may have passively waived your child’s right to a FAPE.

2. Can you give me some examples of waivers?

At least one large school district requires parents to “waive any claim under the [IDEA] or related laws” in order to have their child tested via video.  This waiver doesn’t explain what “related laws” means, which makes this potentially a very broad release.  Although the waiver claims to be limited to assessments, parents are likely jeopardizing important benefits–such as the right to independent educational evaluations (IEEs), or the right to challenge educational programming–in exchange for superficial testing.

Another big school district goes even further.  In exchange for limited in-home services, the district requires parents to sign a 7-page “Release Agreement” filled with all kinds of legal jargon.  In addition to giving up all special educational claims (including future claims) parents must agree to “assume full responsibility” for any actions of the service provider, “assume all risk” of personal injury or death in any way connected with the service provider and pay all of the school district’s attorney’s fees, expenses or damages related to the in-home services—even if the district was at fault.  This broad waiver, assumption of risk and indemnity agreement is, in our opinion, overreaching.  It takes advantage of parents who are desperate for help and children who arguably need services the most.

3. Are all waivers bad?

No.  Special education settlement agreements commonly include an understanding that parents will give up or waive past claims in order to resolve current disputes.  Of course, school districts want a waiver of past claims so that, once resolved, parents will not repeatedly raise them.  For example, a school district may request a waiver in exchange for an agreement to pay for private school.  Both sides benefit as the child receives tuition and the school district receives a final resolution of the claim.  Waivers are negotiated on both sides to ensure that the parties are not giving up more than they are receiving and that the risks do not outweigh the benefits of releasing certain claims.

4.What should I do if my school district asks me to sign a waiver?

Parents must be informed as to what potential claims they are letting go.  [Pro tip:  review your most recent Notice of Procedural Rights and Safeguards for a summary of your rights and the rights of your child with special needs and download our IEP Cheat Sheet.] Insist on a complete, clear explanation of what rights you are waiving and why it’s required. Double-check to ensure that you are only waiving past—not future—claims.  Request a mutual waiver so the school district or charter is releasing any claims it might have against you as well.  In the case of implied waivers like PWNs, consider responding with a written note that you expressly reserve all rights.  It’s probably a good idea to include this express reservation of rights in all IEP-related amendments, updates, addendums or releases during this time period.

Finally, keep in mind that long, fancy waivers were probably written by crafty lawyers with years of experience in special education law.  It may be extremely difficult for you to understand or decide whether or not you should sign away your rights and those of your child.  Call the lawyers at ADAMS ESQ or contact other knowledgeable parent attorneys for a free review before you give up important rights.

Please continue to stay in touch.  We’d love to hear your stories on how you have been managing with providing supports and services for your child as schools open with distance learning.  Contact us at: Together@adamsesq.com with your feedback and stories.  Your experiences can guide us in identifying topics to address in future articles and webinars.  You also may want to read and repost our past COVID19-related blogs: “Forget About the Toilet Paper—Grab that IEP!”, “IEP Alerts for Parents” , “Special Education Teaching is Really Hard!,  “The ‘FREE’ in FAPE” and Doubling-Down on Special Education.

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