FAPE Waiver: When Should a Parent Sign Away FAPE for their Child?

As an advocate who has served hundreds of families since 2010, it might seem crazy to be talking about waiving FAPE. I mean, we spend soooo much time just trying to get FAPE for our kids, why would you ever want to waive it?

Well, there are scenarios where signing a waiver of FAPE makes sense.

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I find some parents who are really put off at the thought of waiving FAPE for their child, so I hope to clear some of that up and help you make the right decision for your family.

What is FAPE?

The short answer is that FAPE is Free and Appropriate Education. FAPE is everything.

FAPE stands for Free and Appropriate Education. That is a term that was used in a Supreme Court case that helped better define what our kids’ rights are. It’s just what it says it is.

What FAPE means is this: Every child has a right to a free and appropriate education. It’s that word “appropriate” that we’ve been arguing over ever since, but I digress.

From Wikipedia:

Free Appropriate Public Education (FAPE) is an educational right of all children in the United States that is guaranteed by the Rehabilitation Act of 1973^[1] and the Individuals with Disabilities Education Act (IDEA).

Under Section 504, FAPE is defined as, “…the provision of regular or special education and related aids and services that are designed to meet individual needs of handicapped persons as adequately as the needs of non-handicapped persons are met and are based on adherence to procedures that satisfy the requirements of” the section.

IEP Waiver or FAPE Waiver

Now that I’ve discussed FAPE and its origins, sometimes a situation erupts where a parent is asked to waive FAPE.

“My district wants me to sign away FAPE! Why would I do that?!?!”

I often get emails and messages with this question and quite often the moms are in a panic. I get it–I mean, after all, you fought so long and hard for your child to receive FAPE, why in the world would we sign away our rights and relinquish FAPE?

First, deep breaths. This is actually pretty common, let me explain. There are a few scenarios in which a parent would sign away their child’s rights to FAPE.

Offer of FAPE

There are a few reasons why you would sign away your child’s right to FAPE. First, understand that you are not agreeing that your child is not going to receive an appropriate education.

But you are in a circumstance where the public district no longer is involved in your child’s IEP process, therefore they do not want to be held responsible for something over which they have no control.

School District Settlement Agreements: A school district settlement agreement usually occurs as a result of Due Process. One party filed for Due Process, but you came to “settle” it outside of actually going to Due Process.

Around here, it usually is a result of a parent wanting a child to be placed in a private school that is not an APS and it usually is the district agreeing to pay a sum of money, rather than as a team placement decision.

Settlement agreements also almost always come with a gag order, so the only info I can base this on is cases I have had or that my close friends have had.

But, the family gets the tuition money that they desire, so usually, they take it. Now, you are agreeing to take this sum of money and “walk away” so to speak from the district and attend this private school.

What you are agreeing to is that you are confident that your child will receive the needed education at this private school and that your public school will no longer play a role in their education.

Thus, you cannot come back in X number of years and sue them for compensatory education or claim that they did not receive FAPE.

Vouchers/Tuition Programs: Some states offer state-specific programs where a family can receive a check or a voucher for a child with an IEP. This check is to cover or help cover the costs of a private school tuition. Again, if the district has no say in the IEP or the child’s education, they do not want to be held responsible for FAPE.

Homeschooling: Homeschooling is much more popular now than ever before. And, sure, many kids who are homeschooled would likely qualify for an IEP. Or they had an IEP before the parent pulled them out to homeschool them. Reasons are the same as above–school has no say, the school wants no responsibility.

Before you Waive FAPE

So as you can see, it’s not as shocking as it seems. It’s why these decisions we make about our kids are so serious. Any IEP placement decision must be weighed and viewed from all angles.

But when you receive a contract like this, there is no need to be shocked if it’s an appropriate situation for signing away FAPE.

Keep in mind though, yes, you are signing away FAPE. Before you enter into a settlement agreement or accept any type of voucher program, double and triple check every detail.

There will not be any recourse for you a few years down the road. No going to Due Process and asking for compensatory education if your child’s needs are not met.

You are acknowledging and agreeing that your school district is no longer responsible for your child’s FAPE, and that is a big deal. Yes, there are circumstances when it’s done, but it’s still a big deal. Proceed carefully.

Your child’s educational rights include the Right to FAPE.

I strongly recommend that if you did not use an attorney for your Due Process, that you pay one to read your School District Settlement Agreement.

**This is not intended as legal advice. Please seek legal counsel before signing any contracts with your school district.