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Rochelle’s Special Education Tips

The 5-Day Rule and the Death of Common Sense
You Can See the Forest Because the Trees Were All Cut Down to Comply with the 5-Day Rule

One of the more poorly thought-out laws enacted by the State of Maryland is the 5-Day rule for providing copies of documents to the parents that the school-based members of the IEP team intend to discuss. Some examples:

Assume that last year you reviewed assessment reports at an IEP team meeting. Copies of the reports were timely provided to the parents last year. If for some reason you need to review the same reports again one year later, you are supposed to send the parents new copies of the same reports.

There has been at least one MSDE opinion letter issued that states it is a violation of the law to review a report at the meeting that was not provided 5 days ahead of time, even if the parent consents to the review.

The parents do not have to meet the 5-day deadline. Why not? Isn’t everyone at the meeting a team member? Remember that if you are presented by the parents with a document at the meeting you have choices: You can stop the meeting to read the document and then consider it at the same meeting or you can schedule a follow-up meeting to review the document. When the document is provided to the IEP team, write the date of receipt at the top. The Prior Written Notice should state that the document was given to you at the meeting and then state how the team intends to deal with the review of the document. Be sure to review the document at the next IEP team meeting if you do not review it at the meeting at which you received it from the parent. Before the next meeting, you should send the parent a copy of the document the parent handed you at the meeting in order to comply with the 5-day rule. After all, it is only another tree.

Rochelle’s Special Education Tips (“Tips”) are designed to be helpful and thought provoking, but should not be considered legal advice as they may not be accurate for use in all situations. Tips are based on my opinions and positions in accordance with federal and Maryland law and my over 35 years of experience in the special education legal field. – Rochelle S. Eisenberg, Esquire
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