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Part II: An Attorney's Advice on Avoiding IEP Pitfalls

Special Education attorney Julie Weatherly continues a discussion of some of the most common pitfalls in drafting and preparing IEPs, from Special Education Law Update Newsletter, January, 2012.

In addition to ensuring that the parents attend an IEP meeting, a school Must Ensure that mandatory district team members are present. 

"Many court cases involve the 'wrong people' attending an IEP meeting, or necessary people missing a meeting," said Ms. Weatherly.

"If one mandatory member is not present, we technically have a procedural violation to watch out for," she said. "From the school's perspective, four IEP team members are mandatory." IDEA regulation 34 C.F.R. Part 300.321 specifies the composition of a proper IEP team.

Mandatory IEP team members include the parents, "not less than one regular education teacher of the child" (unless the student does not participate in the general curriculum) and "not less than one special education teacher of the child."

IEP teams must include a school district representative qualified to provide (or supervise provision of) special education who knows about the general education curriculum and about the availability of the public agency's resources. Finally, there must be a team member who can interpret the instructional implications of evaluation results.

School agency representatives need to be sure they know why they are at the IEP meeting. "LRE doesn't mean 'least experienced administrator,' " said Ms. Weatherly. Instead, the role of the school district representative "is essential to affirm what is in the IEP."

Offer Training to General Education Teachers

Ms. Weatherly raised the issue of training for regular education teachers who are mandatory IEP team members. "We owe it to the general education teachers to train them," she asserted. She said general education teachers sometimes step into meetings without knowing the relevant background.

An IEP provision permits any individual with special education expertise or knowledge of the student to attend IEP meetings at the discretion of the school or the parents. But, this provision is not to be confused with provision on mandatory IEP team members. It is not a device for the parents or the school to "outvote" the other party. "It's not a voting procedure," said Ms. Weatherly.

"A consensus-building approach is what we are supposed to be doing and we are not 'taking it to a vote.' " Along the same lines, Ms. Weatherly noted that a school has a right to have an attorney at the IEP meeting if the parent does. "It should be incumbent upon the parents' attorney to alert the school that they will be attending. If there is an attorney there, something's up."

A predetermined placement deprives parents of a meaningful opportunity to participate in the development of an IEP. To avoid accusations of predetermination, Ms. Weatherly suggested seeking parental input prior to a meeting to show the school is interested in parents views.

Draft IEPs can be used Constructively

"Have a form that asks the parents questions," she said. "This can demonstrate that the IEP was not 'predetermined' by showing an attempt to incorporating parental views,' she added. Draft IEPs can be dangerous, depending on how they are prepared and presented, said Ms. Weatherly. A draft IEP is not in and of itself a procedural violation, but it cannot be presented as a "take it or leave it" IEP offer. "It's a good idea to prepare a draft IEP to think things through ahead of time."

Preparatory meetings in anticipation of an IEP meeting are permitted, but Ms. Weatherly stressed that staff members be advised that 'we are to make no final placement decisions today." She also issued a warning about computerized IEP options that suggest that an IEP was predetermined by virtue of the program used.

A draft IEP can signal to parents that the staff has put some time into crating an appropriate program. Ms. Weatherly urged schools to simply consider keeping drafts of a student's IEPs to document the staff's efforts.

Failing to consider the recommendations of private evaluators has led to a number of court cases in which parents have asserted IDEA procedural violations. But Ms. Weatherly noted that sometimes the school districts in these cases were not aware that private evaluations existed. "So ask the parents if there is any additional information,' she urged. " 'Consider' means only 'consider,' it does not mean 'adopt the recommendation.' "

Avoid Discussion of Cost or Availability

Making educational recommendations based on cost or the availability of services is a procedural violation that Ms. Weatherly identified as having led to at least five federal court cases. "We must make decisions on what the student needs to make educational benefits."

Ms. Weatherly warned that "We can't say, 'Sorry, we don't do that here,' or: 'We don't offer more than 30 minutes of OT,' " she said. "We must respond that 'we don't think that's educationally appropriate.' Always focus on the Need of the Student rather than 'what we always do' or 'what we never do' or 'what we don't have here.' Avoid a one-size-fits all program,' she urged.

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