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Sp Ed Attorney Offers Advice for Avoiding IEP Pitfalls Part I

Nationally Recognized Sp Ed Attorney Julie Weatherly, addressed some of the most common pitfalls in drafting and preparing IEPs at the 28th Annual Pacific Northwest Institute on Special Education and the Law.

In the years since the Supreme Court issued Board of Educ. v. Rowley, 458 U.S. 176 (1982), many judges and hearing officers have struck down IEPs based on only "process" or procedural errors.

Under Rowley, the standard used by courts to assess provision of a free appropriate public education (FAPE) requires consideration for both "process" or procedures and "substantive" components.

In 2004, Congress changed the IDEA, based in part on the realization that courts were finding a denial of FAPE, solely on process.

"But since courts seem to dwell on the procedural questions, we have to attend to them," said Ms. Weatherly. Under the 2004 IDEA Amendments, a judge cannot find a procedural violation unless one of three specific harms is found.

For a court or hearing officer to find an IDEA procedural violation amounted to a denial of FAPE, it must have: 1) impeded a child's right to a FAPE: 2) significantly impeded the parent's opportunity to participate in the decision-making process regarding FAPE; or 3) deprived a child of educational benefits (see 34 C.F.R. part 300.153 and 20 U.S.C. 1415(f)(3)(E)(ii)).

I call this a 'no-harm, no foul' or 'harmless error' standard," said Ms. Weatherly. "Not every process violation is not going to be considered a denial of FAPE," she explained.

Of the common procedural violations Ms. Weatherly observes, she noted most involve parental rights. This type of complaint is "a school attorney's nightmare."

Process Pitfalls to Avoid

The first "process pitfall" noted by Ms. Weatherly is a school's failure to ensure that parents are properly invited to an IEP meeting. "This ties into meaningful participation," she explained. "I get questions like, 'How far do we go to notify parents?'" An IDEA regulation requires notice of the IEP meeting to go to out early enough to give parents an opportunity to attend.

A second aspect of 34 C.F.R. Part 300.322(a) requires the scheduling of a meeting at a mutually agreed time and place. "The typical notice is 7 to 10 days," noted Ms. Weatherly. But she cautioned that circumstances may determine what is reasonable.

"Reasonable notice might be only three days if there is a dangerous student that we need to consider for a manifestation determination review," she said.

"Keep a log of notices to parents," urged Ms. Weatherly. She suggested considering a notice to ascertain the dates a parent might be available to meet. Typically, the school sends out the notice with the meeting time and place.

"But the problem with this from a PR perspective is that if you are the parent, it seems like it is not 'your meeting,'" said Ms. Weatherly. "What if instead, you send a notice to the parent that allows them to suggest a date for the IEP meeting? I think that provides a reasonable chance of participation."

Ms. Weatherly suggested that schools document the ways they have tried to reach parents. "Documentation is very important and it's good to think outside the box on this. If parents don't show up and you reschedule a meeting, invite them to suggest a date. Across the country, I have seen a 'three-strikes' type of notice."

Districts might take a different approach, but they should document all their notice efforts. "In some cases, parents have requested IEP meetings after school hours. In one case, the parents wanted to hold an IEP meeting at their own home in the evening," said Ms. Weatherly. A court found there was no parental right to do this.

"Offer alternative ways of participation, like a conference call," said Ms. Weatherly.

In one case, a parent who asked to participate in an IEP meeting via a Skype feed raised an unforeseen data privacy issue, "When the district agreed to the Skype feed, the team members noted another voice at the parent's end," said Ms. Weatherly. "It happened to be a very vocal advocate. We have to be reasonably certain that the person on the other side [of a Skype feed or similar transition] is entitled to receive the information." she said.

"We are required to provide a notice of IDEA procedural safeguards atleast once per year," reminded Ms. Weatherly. "I advise schools to physically provide them to the parent at the beginning of the meeting and document that this was done. I pick up a lot of files and find no evidence that the procedural safeguards were actually provided,' she said.

"Check for parental understanding that you are handing them their rights," said Ms. Weatherly. "Parents are entitled to have their rights explained to them. I've had numerous advocates demand an explanation of rights before a meeting. We use a DVD explaining these rights, so that each parent hears the same thing," she said.

Julie Weatherly is a Mobile, Alabama, special education attorney and consultant who established Resolutions in Special Education, Inc. in 2000. The foregoing is based on Ms. Weatherly's pre-conference mini-course titled "Writing and Presenting Appropriate IEP's" presented at the 28th Annual Pacific Northwest Institute on Special Education and the Law, Portland, Oregon, on September 26, 2011. From the Special Education Law Update, December, 2011.



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