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Special Educationin the Modern Age

Ensuring Parent Participation in the IEP

Process

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What We’ll Cover Today Who Is (and Who Is Not) a Parent

Participation by Divorced Parents IEP Meeting Issues

Right to Request and Attend Meetings Conducting Meetings Without Parents Other Parent Rights (Interpreter, Recording

Meeting, Representation) IEP Development

Predetermination Other Parent Rights, Including Duty to Consider

IEEs Obtaining Consent for IEP

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Introduction . . . One of the cornerstones of special education

law is maximum practical participation by Parents in the development of each student's IEP

Many protections built into the IDEA and California law to facilitate this participation

Due process filings alleging Parents were excluded from IEP process have skyrocketed (e.g., predetermination claims)

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I. Who Is a Parent?

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Definition of “Parent” Biological or adoptive parent Foster parent (if authority of biological

or adoptive parent limited by court order)

Guardian authorized to act as parent or make educational decisions

Individual acting in place of parent, including relative with whom child lives or other individual responsible for child’s welfare

Surrogate parent

(Ed. Code §56028)

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Who Can Not Qualify as a Parent? The state or any of its subdivisions Nonpublic school or agency under

contract with district for provision of special education

(Ed. Code §56028)

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Divorced Parents

IDEA rights, including right to attend IEP meetings and participate in IEP development, apply to both parents, unless court order specifies otherwise

(34 C.F.R. §300.30; 71 Fed. Reg. 46568 (Aug. 14, 2006))

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Divorced Parents Case Example: Failure to Include Both

Parents Can Deny Meaningful Participation Parents divorced and shared joint custody Only Father attended IEP meeting at which

Student was found eligible for special ed Mother not allowed to participate in IEP meeting

before services began (Father misled District about his authority to make educational decisions)

ALJ: District failed to afford Mother meaningful participation; ordered all assessments expunged and that Student be removed from special ed

(Student v. Oxnard Union High School Dist. (OAH 2008) N2007040834, 108 LRP 23943)

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Divorced Parents at IEP Meetings

Practice Pointer

Obtain copy of court decrees that might affect Parent’s right to participate/make educational decisions

Speak with each Parent prior to meeting to answer any questions and determine if issues other than those related to IEP might arise

Keep all parties on task and focused on Student

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II. Conducting the IEP Meeting

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What Is (and What Is Not) an IEP Meeting? Meeting that addresses

Identification;Evaluation;Placement; or Provision of FAPE

is likely to be deemed an IEP meeting requiring parental participation, even if not officially designated as such

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What Is (and What Is Not) an IEP Meeting? Three situations that do not require

parental participation: Informal, unscheduled conversations among staff Staff discussions on issues such as teaching

methodology, lesson plans, or coordination of services

Preparatory activities to develop a proposal or response to a parent proposal that will be discussed at a later meeting

(34 C.F.R. §300.501(b)(3))

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Parent’s Right to Request IEP Meeting

District must convene meeting when Parents request to develop, review or revise IEP

Must be held within 30 days of receipt of written request, not counting breaks in excess of five school days

If Parent makes verbal request, District must notify of need to put it in writing and provide procedures for filing written request

(Ed. Code,§56343.5)

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IEP Meeting Notice

ContentPurpose, time and place of

meetingWho will be attending Inform Parents of right to bring

individuals with knowledge orspecial expertise about Student

Note: Special rules apply for notice of meetings to discuss transition services

(34 C.F.R.§300.322; Ed. Code,§56341.5)

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IEP Meeting Notice (cont’d)

TimingEarly enough to ensure Parents will have

opportunity to attendOSEP suggests 10-day advance notice, but

no formal requirementBut one-day notice clearly is insufficient

Twin Rivers USD v. Student (OAH 2011): Email to Parent stating that IEP meeting would be held “tomorrow” denied meaningful opportunity to participate

(34 C.F.R.§300.322; Letter to Constantian (OSEP 1990) 17 IDELR 118)

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Deficient Notice as Denial of FAPE

If faulty (or tardy) notice deprives Parent of ability to participate in IEP process, it can be basis for finding of denial of FAPEBut when Parents are still able to

participate despite faulty notice, procedural violation generally will not be sufficient to deny FAPE

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Notice of IEP Meeting Case Example: Deficient Notice Leads

to Multiple Violations But No Denial of FAPE District mailed notice on Thursday for meeting the

following Wednesday; Parents received notice after business hours on Friday

Parents informed District on Tuesday that they could not attend; District proceeded without them

ALJ: Failure to give Parents notice far enough in advance resulted in four IDEA violations!

Insufficient meeting notice Holding meeting without Parents present Failure to ensure all members of IEP team were present Failure to ensure Parents had opportunity to present

information

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Notice of IEP Meeting Case Example: (cont’d)

And, a fifth violation occurred when school year started and District failed to have valid IEP in place

However, no breach of FAPE obligation occurred Why?

ALJ found Parents would not have participated in the IEP meeting regardless of how much notice they had

They were adamant in their position concerning Student’s placement and had refused to cooperate with District in determining appropriate placement

(Student v. Dry Creek Joint Elem. School Dist. (OAH 2010) 2009060940, 110 LRP 15980)

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IEP Meeting Notices

Practice Pointer

Case decisions on improper notice have focused on the following issues

Providing sufficient time in advance of meetingListing individuals being invited to attendStating the purpose of the meetingAccurately identifying time, date and location

Document and make copies of all notices sent; paper trail may be important

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Scheduling the IEP Meeting

“Mutually agreed time and place” Standard of reasonableness

should apply Not unreasonable to schedule team

meetings during regular business hoursBut there might be circumstances where

Parents’ employment situation restricts availability; Districts should be flexible in those instances

(34 C.F.R.§300.322(a)(2); Letter to Thomas (OSEP 2008) 51 IDELR 224)

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Scheduling the IEP Meeting Case Example: Multiple Rescheduling

Efforts Meet Legal Obligation District attempted to schedule meeting with

several alternate dates to discuss Student’s triennial assessments

Parent’s attorney insisted on another date, but Parent cancelled on the day of the meeting

District offered three more alternate dates Parent filed for due process claiming District failed

to cooperate with mutually convenient scheduling ALJ: No violation; District gave timely notice of

each meeting, identifying time and place

(Student v. Panama-Buena Vista Unified School Dist. (OAH 2011) 2011050739, 111 LRP 67814)

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Alternative Means of Participation

Parents and District may agree to use alternative means of participation forIEP meetings, including video conferencing and conference calls

Both parties must consent If additional costs result,

District is responsible

(34 C.F.R.§300.328; 71 Fed. Reg. 46687 (Aug. 14, 2006))

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Scheduling the IEP Meeting Case Example: Telephone Is Not an

Option If Parents Wants to Attend In Person District scheduled IEP meeting without inquiring

about Parents availability Parents said they were not sure if they could

attend and asked for meeting to be rescheduled District offered to allow Parents to participate by

phone Court: Denial of FAPE; phone offer was of no

consequence because it can only be used if neither parent can attend

Parents did not refuse to attend; they asked to reschedule meeting

(Drobnicki v. Poway Unified School Dist. (9th Cir. 2009) 53 IDELR 210)

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Conducting IEP Meetings Without Parents Parents have absolute right to attend

all IEP meetingsEven when Districts are certain they will

reject proposed course of action District must make every effort to

secure the presence of the Parents

(Shapiro v. Paradise Valley Unified School Dist. (9th Cir. 2003) 38 IDELR 91)

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Conducting IEP Meetings Without Parents Meetings may be conducted without

Parents only if District “is unable to convince Parents that they should attend”

Must keep records of attempt to arrange meetingLog of phone callsCopies of correspondence Document visits to home/work

(34 C.F.R. §300.322(d); Ed. Code, §56341.5, subd. (h))

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Conducting IEP Meetings Without ParentsCircumstances where districts may hold meetings without parents are decided on case-by-case basis, taking into account actions by both parties before (and sometimes after) the meeting

Consider the following case examples from the 9th Circuit and from OAH . . .

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Conducting IEP Meetings Without Parents Case Example: Parent Participation

Trumps Deadline Compliance School wanted to hold IEP meeting before annual

review deadline; Parent could not be present, so meeting proceeded without him

Failure to include Parent infringed on ability to participate, denied FAPE

Prioritizing deadline compliance over parental participation was “unreasonable”

(Doug C. v. State of Hawaii Dep’t of Educ. (9th Cir. 2013) 61 IDELR 91)

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Conducting IEP Meetings Without Parents Case Example: Failure to Prove

Permission to Hold Meeting Results in Denial of FAPE District held annual IEP meeting without Parent IEP document indicated that Parent gave

permission to hold meeting in his absence because he was ill

Parent denied giving such permission ALJ upheld Parent’s claim, citing history of

participation and requests to reschedule when he couldn’t attend

District provided no proof of sending meeting notice

Holding meeting without Parent denied FAPE

(Student v. Compton Unified School Dist. (OAH 2011) 2010020005, 110 LRP 37614)

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Conducting IEP Meetings Without Parents Case Example: OK to Hold Meeting

Without Parents After Four Attempts to Reschedule District scheduled Student’s IEP meeting three

times but Parents requested postponement on each occasion

District finally let Parents choose date for meeting, but again Parents asked for postponement

District ultimately met without Parents after Student had been without a current IEP for almost a year

ALJ: No violation; “. . . There comes a point where a district must hold a meeting without the Parents in order to meet its duty to the child”

(Corona-Norco Unified School Dist. v. Student (OAH 2010) 2009061130, 110 LRP 15982)

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Conducting IEP Meetings Without Parents Case Example: Meeting Without Parents Was Harmless Error After Subsequent Participation When Parents refused to meet on one of several

dates suggested by District, District chose a date and sent notice

Day before meeting, Parents notified District that they would not attend; District proceeded with meeting

Had process stopped there, violation would have occurred

But District convened another meeting with Parents and proceeded as if it had not held prior meeting

Intent to re-involve Parents excused any FAPE violation

(Vista Unified School Dist. v. Student (OAH 2013) 2013070169, 114 LRP 130)

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Conducting IEP Meetings Without Parents

Practice Pointer

Comply with legal requirements to document efforts to get Parents to attend:

Copies of all written communication (emails and letters)

Phone logs of calls and voice mailsDate and time of visits to home/work

Send copy of any IEP developed without Parents

Offer to reconvene the IEP team when Parents are available

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Right to Interpreter at IEP Meetings

Districts must take whatever steps are necessary to ensure Parents understand proceedings of meeting Includes arranging for

interpreter for Parents with deafness or whose native language is other than English

OCR: Failure to provide interpreter and written translation during IEP process may violate Section 504

(34 C.F.R. §300.322(e); Ed. Code, §56341.5, subd. (i); Victor Valley (CA) Unified School Dist. (OCR 2007) 50 IDELR 141)

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Interpreters at IEP Meetings

Practice Pointer

Obligation to provide interpretation is on District

Even if Parents offer to bring interpreter, consider inviting member of staff who can interpret

Be careful about using outside sources to obtain interpreter or translator if unfamiliar with special ed language

Make time to allow not just for translation, but also for Parents’ questions and comments

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Right to Record IEP Meetings

Both Districts and Parents have right to audio record meeting 24 hour notice required District may not record if Parent objects Recording becomes education record

subject to FERPA

Parents may: Inspect and review recording Request amendment if they believe recording is

inaccurate or misleading(Ed. Code, §56341.1, subd. (g))

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III. Formulating and Implementing the IEP

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Predetermination

Occurs when districts decide on IEP content/issues prior to IEP meeting precluding meaningful parental participation

Allegations of predetermination frequently arise with respect to: Preparatory meetings Draft IEPs (Lack of) meaningful discussion at IEP meeting

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Predetermination – Preparatory Meetings Districts may engage in preparatory

activities to develop a proposal or response to Parent proposal that will be discussed at a later meeting Example: Staff may review assessment

recommendations or placement options in advance of meeting, but must discuss those options with Parents and make decisions at the IEP meeting

Difference between preparation and predetermination is sometimes hazy(34 C.F.R. §300.501(b))

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Predetermination – Preparatory Meetings Case Example: Pre-Meeting Discussion With Behavior Consultant Was Not Predetermination District retained behavior consultant who (possibly)

discussed recommendations with IEP chairperson before meeting

Parents claimed consultant’s notes set limits of ABA services District would provide

2d Cir: Parents failed to show team did not have open mind

Pre-meeting consideration was allowed; no decided-upon arrangement; Parents meaningfully participated in program development

(T.P. and S.P. v. Mamaroneck Union Free School Dist. (2d Cir. 2009) 51 IDELR 176)

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Predetermination – Preparatory Meetings Case Example: Team Members’ Emails Were in Preparation for Meeting District team members exchanged several emails in

advance of IEP meeting concerning recommendations for services and placement

ALJ found no predetermination Emails reflected only preparation Staff came to meeting “with an open mind” and

considered several options Parents able to ask questions and state objections

(Anne Arundel County Public Schools (SEA MD 2011) 111 LRP 54907)

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Predetermination – Draft IEPs Permissible to develop draft IEP

Share with Parents before or during meeting Must be used for discussion purposes only Cannot be presented as completed document

U.S. Dep’t of Education: If draft IEP is developed, District should: Make clear to Parents at outset of meeting that it

is preliminary recommendation for review and discussion

Provide Parents with copy

(Letter to Helmuth (OSEP 1990) 16 IDELR 503; 71 Fed. Reg. 46678 (Aug. 14, 2006))

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Predetermination – Draft IEPs Case Example: Changes In Draft

Document Refute Predetermination Claim District staff brought to meeting a draft IEP

developed by special ed teacher with proposed goals suggested by other team members

Parents claimed predetermination ALJ disagreed, noting that draft underwent significant

changes during meeting based on input from Parents, service providers and IEEs shared by Parents

Draft goals for home-based program not used

(Temecula Valley Unified School Dist. v. Student (OAH 2009) 2009050048, 109 LRP 74851)

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Predetermination – Draft IEPs

Practice Pointer

Consider the following to avoid any appearance of predetermination when using a draft IEP:

Stamp or write “DRAFT” on each page Ask for Parent feedback throughout the meetingKeep detailed notes and handwrite changes on

draft Do not complete the FAPE offer portion of the

draft IEP prior to the meeting

Consider saving the draft with handwritten notations to allow comparisons with final IEP

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Predetermination – Meaningful Discussion Parents’ presence at meeting is not

enough Must have opportunity to voice concerns Must have their input considered by the team Must have opportunity to ask questions and be

provided with meaningful answers

“Take it or leave it approach” evidences predetermination Frequent topic of litigation as the following case

examples illustrate . . .

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Predetermination – Meaningful Discussion Case Example: Parent’s Disagreement Does Not Mean “Take It Or Leave It” Proposal District cancelled contract with private services

provider and proposed using one of its own; Parent disagreed

Court rejected Parent’s predetermination claim Although District chose not to renew contract, it

continued to pay provider through date of IEP meeting

Parent was told offer would not go into effect without her consent

Meaningful participation does not equate to veto power

(S.A. v. Exeter Union School Dist. (E.D. Cal. 2010) 110 LRP 69145)

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Predetermination – Meaningful Discussion Case Example: District Did Not Come to Meeting with “Open Mind” District offered SDC placement at a considerable

distance from Student’s home No other placement option was discussed at meeting Individual most knowledgeable about Student

refused to express an opinion Although Parent voiced concern about distance, no

evidence District was willing to reconsider its offer ALJ found predetermination and denial of FAPE

(although also found SDC placement to be appropriate)

(Student v. Reed Union School Dist. (OAH 2009) 2008080580, 52 IDELR 240)

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Predetermination – Meaningful Discussion Case Example: Limitation on Discussion Leads to Successful Predetermination Claim Near end of meeting, District introduced

representative from preschool where it wished to place Student

Parent was not notified that representative would attend

Representative was knowledgeable about placement, but not about Student’s needs or appropriateness of placement

Parent could not ask questions until presentation was over

ALJ found predetermination: One placement option, no time for discussion and no alternatives

(Student v. San Francisco Unified School Dist. (OAH 2011) 2010110455, 111 LRP 33561)

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Predetermination – Meaningful Discussion Practice Pointer

Tips to Ensure Meaningful Parent Participation:

Explain purpose and reason behind preparatory meetings

Be careful of statements at IEP meeting suggesting “Here’s what we decided”

When option is proposed, seek Parents’ input/response

Give Parents enough information about all possible placement so that they can take part in discussions

Ensure enough time for questions

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Other Parent Rights Re: IEP Development Documenting Parent Concerns and

Objections IDEA requires team to consider concerns for

enhancing education of Student Team should specifically ask Parent about concerns

and indicate on the IEP document that it has done so

Right to Copy of IEP Document IDEA requires District to provide IEP copy at no cost California requires free copy in Parents’ primary

language

(34 C.F.R. §300.324(a)(2); 34 C.F.R. §300.322(f); 5 C.C.R. §3040(b))

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Other Parent Rights Re: IEP Development Right to Be Informed of Student’s

Progress Each IEP must include a

description of how and when Parents will be informed of progress Studentis making toward meeting annual goals (such as throughuse of quarterly or other periodic reports, concurrent with the issuance of report cards)

(34 C.F.R. §300.320(a)(3); Ed. Code, §56345, subd. (a)(3))

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Other Parent Rights Re: IEP Development Right to Have IEP Team Consider IEE

IEP team has duty to consider any IEE shared by Parents, if IEE meets Districtcriteria

Duty to consider does not equate to dutyto accept recommendations

No IDEA or state law provision setting parameters for what it means to “consider”

(34 C.F.R. §300.502(c); Ed. Code, §56329, subd. (c))

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Obtaining Parent’s Consent to IEP

Consent means that Parent: Has been fully informed of relevant

information Understands and agrees in writing

to the carrying out of the activity for which consent is sought

Understands that granting consent is voluntary and may be revoked at any time

(34 C.F.R. §300.9; Ed. Code, §56021.1)

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Obtaining Parent’s Consent to IEP

Consent to Initial Services District must obtain informed consent before initial

provision of services outlined in IEP If Parent refuses to consent or fails to respond,

District should not provide services Cannot attempt to override lack of consent to

services by filing for due process District does not violate FAPE obligation and is not

required to develop IEP if no consent obtained

(34 C.F.R. §300.300(b)(2); Ed. Code, §56346, subd. (a)-(c))

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Obtaining Parent’s Consent to IEP

Revocation of Consent District must cease providing services May not seek due process to override revocation No longer has obligation to develop IEP No limit on number of times Parent may revoke

consent and then request reinstatement Revocation by one Parent is sufficient, even if other

Parent disagrees

(34 C.F.R. §300.300(b)(4); Ed. Code, §56346, subd. (d))

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Obtaining Parent’s Consent to IEP

Consent Withheld to Some Services If Parent consents to some IEP services, but not to

all components of program, District must implement those components to which Parent has consented

If District determines proposed components to which Parent has not consented is essential to providing FAPE,then it must initiate due process

(Ed. Code, §56346, subd. (e)-(f))

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Take Aways . . . Understand the broad range of

responsibilities to ensure Parentparticipation in IEP process

Attempt to develop ongoing and collaborative relationshipwith parents

Emphasize meaningful participation as the standard for IEP team meetings and entire IEP development process

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .