H. R. 4188 The IDEA Fairness Restoration Act: Allowing Parents to Recover Expert Witness Fees under the IDEA

       In 2006 the U.S. Supreme Court ruled in Arlington Central School District Board of Education v. Murphy that parents who prevail in an IDEA case cannot recover the costs of expert witnesses as part of recovering their attorneys’ fees. The IDEA provides that parents who prevail in any action or proceeding under the IDEA may be awarded their attorney’s fees as part of the costs of litigating their case.  In the Arlington Central case the parents prevailed in getting the school board to pay for their son’s private school tuition. As the prevailing party, the parents asked to be reimbursed the costs of an educational consultant they used in the litigation as part of recovering their costs and attorneys’ fees. The Supreme Court, however, ruled that since the IDEA didn’t specifically include expert costs as part of recovering attorneys’ fees, parents were not entitled to recover those non-attorney expert witness costs. Fortunately, the IDEA Fairness Restoration Act (H.R. 4188) has been introduced in Congress to amend the IDEA to include expert witness fees and other expenses as attorneys fees.

 

If this bill becomes law, parents who prevail in IDEA cases will be able to recover their expert witness fees as attorneys’ fees. Moreover, parents will also be able to recover “the reasonable costs of any test or evaluation necessary for the preparation of the parent or guardian’s case …”.

 

 In most cases  families need to pay educational consultants and other expert witnesses in order to prevail in a due process hearing and subsequent proceedings. This is true, because the school district can rely on its staff to provide expert testimony to support the district’s view. Without their own experts to contradict the school district’s witnesses,  parents are unlikely to prevail. Few families can afford the costs of an attorney to enforce the IDEA and even fewer still are able pay the costs of the witnesses and evaluations needed to prove their side of the case. Thus, this legislation will help level the playing field for families of children with disabilities. For more information on this important legislation see the brochure produced by the Council of Parent Attorneys and Advocates, Inc. (COPAA). COPAA has also produced this brochure in Spanish.

 

Finally, COPAA has designated May 6^th as a day for concerned individuals to call their Congressional Representatives to ask them to co sponsor H. R. 4188 The IDEA Fairness Restoration Act. If you don’t know your Congressional Representative go to http://www.house.gov/.

Using the State Education Agency Complaint Process to Enforce the IDEA

      In a recent series of articles I covered resolving disputes under the IDEA through mediation, the resolution process, and due process hearings. Still, another way to resolve disputes under the IDEA is by filing a complaint with the State Education Agency (SEA). The IDEA regulations require that State Education Agency’s have a process to resolve complaints regarding implementing the IDEA. Under this process individuals or organizations may file a complaint for violations of the IDEA with their State Education Agency. Upon receiving a complaint asserting a violation of the IDEA, the State Education Agency may carry out an independent investigation and, if necessary, conduct that investigation at the school or program where the violation may have occurred.

 

             A complaint under the State Education Agency Complaint Process is not the same as the Due Process Complaint Notice that parents are required to file to request a due process hearing. The complaint procedure being discussed here involves an investigation by the State Education Agency rather than a hearing with an independent hearing officer. In the course of an investigation the State Education Agency may review documents and interview individuals, but there is usually not a formal hearing.

 

            If, after its investigation, the State Education Agency determines the IDEA was violated and a child was denied appropriate services, it can require the school district to remedy or correct the violation. In order to correct the violation, the State Education Agency can require the school district to provide compensatory services, monetary reimbursement, and/or provide appropriate services in the future.

 

Compensatory Services

 

            Compensatory services are services that are provided to make up for, or compensate the child for, services that legally should have been provided but were not. For example, consider a situation in which a student’s IEP clearly stated that the student was to receive physical therapy three times a week. The physical therapy, however, was never actually provided. To resolve a complaint about the school district’s failure to provide the required physical therapy, the State Education Agency could require the school district to provide additional therapy services beyond those required by the IEP. These additional services would be “compensatory” because they are intended to compensate or make up for the services that were not provided.

 

Monetary Reimbursement

 

            Or, perhaps the child’s parents had privately purchased physical therapy services for their child during the time the school district was not providing the physical therapy services as required by the IEP. In that circumstance the State Education Agency might require the school district to reimburse the parents the money they paid for the private physical therapy. Thus, the parents are provided with monetary reimbursement for the costs of the therapy the parents purchased.

 

Future Compliance and Services

 

            Finally, consider a scenario in which a student’s IEP included access to a piece of assistive technology such as a  tape recorder to record lectures, but the tape recorder has not been provided. The State Education Agency might order the school district to provide the tape recorder in the future.

 

When to Use the State Education Agency Complaint Process

 

            The State Education Agency Complaint Process is  best used for cases in which the school district has very clearly not complied with the IDEA. For example:

 

            (1) Services have not been provided as required by an IEP.

 

            (2) The parent has requested that their child be assessed to determine eligibility for special education, and school personnel have not followed through on the assessments.

 

            (3) The school district hasn’t responded to a request for an independent evaluation regarding assistive technology issues and hasn’t scheduled a hearing to resolve the dispute.

 

            (4) The school district hasn’t notified parents of due process procedures.

 

            (5) School personnel have assessed a student without getting the parent’s consent.

 

            If the issue involves very clear violations of the IDEA, then the Complaint Process can be useful in getting the school district to comply with the law. On the other hand, if the issue concerns a disagreement over whether a student needs a particular service and the school district refuses to include that service on the IEP, it is difficult for the State Education Agency to resolve that dispute through the complaint process. Determining a student’s educational needs requires evidence and the testimony of witnesses. That determination is more appropriate for an impartial hearing officer, who will be able to hear that kind of testimony. The State Education Agency’s investigation is mainly limited to reviewing documents and interviewing individuals such as the parents and school staff to determine the facts.

 

Filing a Complaint with the State Education Agency

 

            A complaint may be filed by an individual or an organization. The complaint must be written and signed and contain the following information:

 

(1)  A statement that the public agency has violated the IDEA. Public agencies include school districts, charter schools, the State Education Agency, and other agencies responsible fro providing education to children with disabilities;

(2)  The facts that support the above statement that the public agency violated the IDEA;

(3)  The signature and contact information of the person making the complaint; If the complaint is regarding a specific child then the complaint must include:

1.      The child’s name and address;

2.      The name of the school the child attends;

3.      If the child is homeless the available contact information for the child and the name of the school the child attends;

4.      A description of the problem including facts describing the problem; and

5.      A proposed resolution of the problem to the extent the person filing the complaint knows of a possible resolution of the problem.

           

Complaint Timelines

 

            Complaints must assert or allege a violation of the IDEA that has occurred within a year of when the complaint is received by the State Education Agency. Moreover, a copy of the complaint must be sent to the school district or other public agency serving the child at the time the complaint is filed with the State Education Agency. Generally, the IDEA requires that complaints to the State Education Agency be investigated and resolved with 60 days. But that time limit can be extended in exceptional circumstances.

 

            Finally, the IDEA provides that the State Education Agency may allow complaints to be the filed first with the local school district and the school district’s decision reviewed by the State Education Agency.  In that event, the local school district, rather than the State Education Agency, would conduct the initial investigation. The State Education Agency would then review the school district’s decision regarding the complaint. So, parents and other professionals should check with their State Education Agency to determine how the complaint process works in their state. 

 

Special Education Services in the Summer: The IDEA and Extended School Year

     Summer is rapidly approaching. For most children summer means time off from school. But for some students with disabilities, interrupting their school program during the summer break, jeopardizes the benefit they receive from that program during the regular school year. These students need services during the summer to receive a free appropriate public education. Services provided in the summer are called extended school year services or ESY services. Extended school year services are special education and related services that are provided to a child with a disability beyond the normal school year of the school district.  

     The first court cases requiring ESY services involved students with disabilities who, during the summer, lost skills they had learned during the previous school year. As a result of this loss of skills during the summer, the students were unable to benefit from their school program. These cases established a regression/recoupment standard for establishing the need for ESY. The student lost skills during the summer, or regressed, so significantly that the student could not reasonably make up, or recoup, that loss the following school year.           

   The courts noted that all students regress some during extended absences from school. Most students can make up that loss, in a reasonable amount of time, when they return to school. If it takes a student with a disability significantly longer to make up the loss, that student may be entitled to extended school year services. Thus, students who regressed that significantly were entitled to services during the summer as part of receiving a free appropriate education.    

       Later court decisions  allowed students to receive ESY services without first being out of school during the summer months. If the IEP team could predict that the student was likely to regress, ESY services could be included on the IEP. Planning teams could look at how the student performed after being out of school during holidays or illnesses. Based on how the student performed upon returning to school, the IEP team could predict whether the student would be eligible for ESY.  

     More recent court cases include factors, other than just regression/recoupment, in determining ESY eligibility. The Tenth Circuit Court of Appeals, in Johnson v. Independent School District No. 4, included factors such as:

·        the degree of the student’s impairment and the ability of the student’s parents to provide educational structure at home,

·        the student’s rate of progress, the student’s behavioral and physical problems,

·        the availability of alternative resources,

 ·        the ability of the student to interact with students without disabilities,

·        the areas of the student’s curriculum which need continuous attention,

·        the student’s vocational needs.            

  The Court in Johnson also looked at whether the service being requested for extended school year was extraordinary to this particular student or was an integral part of a program for students with this disability. If the service was an integral part of the program for students with this disability, it could be required to be provided during the summer.  

      Under the IDEA 2004 extended school year services must be provided only if a student’s IEP team determines, on an individual basis, that extended school year services are needed for the student to receive an appropriate education. The school district may not: (1) limit extended school year services to students with particular categories of disability; or (2) unilaterally limit the type, amount, or duration of the extended school year services. Additionally, since extended school year services are part of providing a free appropriate public education, the services must be provided according to an IEP and at no cost to the student’s parents.   

    Extended school year services are not intended to continue the progress the student made during the normal school year through the summer. Rather, extended school year services are required to prevent jeopardizing progress the student has already made during the normal school year. Parents who believe their child may need ESY services should make sure this topic is discussed at the IEP meeting. If the student has not already been out of school for a summer, parents should make sure the student’s teachers are tracking the student’s performance after school holidays and absences. This information will be needed to predict future regression.

Protection from Retaliation

       Sometimes individuals are intimidated or harassed because they are trying to enforce or help others to enforce the right to be free from disability based discrimination under Section 504 and  the Americans with Disabilities Act (ADA). Both of these laws protect individuals with disabilities from discrimination. Additionally, these laws prohibit retaliation against a person with a disability (or persons who are acting on behalf of a person with a disability) for trying to enforce their rights under these civil rights laws. Individuals with disabilities and their families are often dependant on service providers such as schools and others for their services. Individuals are often reluctant to question how services are delivered because they fear they will face a reduction or termination of services as payback.

     The anti-retaliation provisions of section 504 and the ADA help allay that fear of payback so that individuals are not as afraid to enforce their rights or the rights of their family members and associates with disabilities.  The anti-retaliation provisions of Section 504 (note Section 504 applies the retaliation protections in Section 102 of Title I of the Civil Rights Act of 2004) and the ADA is very broad. It is a violation of Section 504 and the ADA to intimidate, threaten, coerce, or discriminate against an individual who has engaged in a protected activity. Protected activities include filing a complaint, testifying, assisting in, or participating in an investigation or hearing under Section 504 or the ADA. The key elements in a complaint for retaliation are:

1.     The person making the retaliation claim engaged in a protected activity (they asserted a right, filed a complaint, testified, assisted or participated in an investigation or hearing under Section 504 or the ADA);

2.     The entity that it is alleged to have retaliated knew the person engaged in a protected activity;

3.     That entity took some action against the individual making the complaint and that action was at the same time that individual engaged in the protected activity; and

4.     A causal connection can be reasonably inferred between the retaliatory action taken by the entity and the person engaging in the protected activity. 

    

A good example of retaliation is the Ninth Circuit Court of Appeals case of Settlegood v. Portland Public Schools . In that case, Pamela Settlegood was hired by the Portland Public Schools as an adapted P.E. teacher, on a probationary basis, to teach students with disabilities in various schools in the school district. She soon became concerned about how her students were treated. As an itinerant teacher, she had trouble finding a place to teach her students, she often lacked material and equipment, and the equipment she did find was often inadequate and unsafe. After she complained in writing to her supervisors that her students were not getting services they were entitled to under the IDEA and Section 504, her evaluations became more negative and her probationary contract was not renewed. 

      Ms Settlegood then successfully sued the school district for retaliating against her for trying to protect the rights of her students with disabilities. She was able to show that (1) she engaged in a protected activity (aggressively complaining about the lack of appropriate services and equipment for her students with disabilities); (2) the school district knew she had engaged in that activity; (3) the school district took action against her by school personnel giving her poor evaluations and not renewing her contract; and (4) it can be reasonably be inferred that her poor evaluations and the non renewal of her contract was caused by her efforts to enforce the rights of her students with disabilities. 

     As noted, individuals with disabilities and their family members who depend on others for services, are often reluctant to enforce their rights because they fear their services might be terminated or reduced.  Anti- retaliation legislation deters agencies from retaliating against individuals who try to enforce their civil right and helps assure individuals that they may safely pursue their rights without risking losing their services. For more information about the ADA, Section 504, protection from retaliation and how to file complaints see the Office for Civil Rights (OCR) within the Department of Education, OCR within the Department of Health and Human Services, and the Equal Employment Opportunity Commission. Some states also have laws protecting individuals with disabilities from retaliation, so it might be important to check your state statutes.

What if we don’t work it out? Due Process Hearings Under the IDEA 2004

     Sometimes mediation, the resolution session, or other efforts do not resolve the dispute and parents or the school district still wish to have a due process hearing. In order to have a hearing, the side requesting the hearing  must have filed a due process complaint notice with the other side in the hearing.  

Timeline for requesting a hearing 

     The IDEA 2004 established a two year timeline for requesting a hearing. Generally, the parent or the school district must request a hearing within two years of the date the parent or district “knew or should have known” about the violation that is the basis for the hearing request.  This timeline, however, will not apply to a parent if the parent was prevented from requesting a hearing because (1) the school district specifically misrepresented that it had resolved the problem, or (2) the school district withheld information from the parent that the district was required to give the parent.

     Finally, the IDEA’s two year timeline will apply unless the state has its own explicit timeline for requesting a hearing. Thus, parents, advocates, and attorneys should always check to their state’s laws and regulations.  

Qualifications of the hearing officer 

     The hearing will be heard and the dispute decided by an impartial hearing officer.  The hearing officer must be qualified and impartial. In order to be considered impartial, the hearing officer cannot have a personal or professional interest that conflicts with their objectivity at the hearing. Thus, the hearing officer cannot be an employee of the State Education Agency or the local education agency (school district) that is involved in the care or education of the student or have other interests that would affect their objectivity. 

      To be qualified, the hearing officer must know and understand the IDEA, its regulations, and legal interpretations of the law and regulations by the courts. The hearing officer must also know how to conduct hearings and be able to make and write decisions according to standard legal practice. 

Rights in the Hearing Process 

     Both sides to a hearing, parent and school district, have the following rights in the hearing:

• the right to be accompanied and advised by a lawyer and by individuals with special knowledge or training with respect to the problems of children with disabilities;

• the right to present evidence and confront, cross examine, and compel the attendance of witnesses;

• the right to prohibit the introduction of any evidence that has not been disclosed at least five business days before the hearing;

• the right to a written, or at the option of the parents, electronic verbatim record of the hearing;

• the right to written, or at the option of the parents, electronic findings of fact and decisions.     

Additionally, parents have the right to have the child present at the hearing, have the hearing open to the public, and have the record of the hearing, the findings of fact, and the decision at no cost to the parents. So, parents can obtain a transcript of the hearing at no cost. This is important because if the result of the hearing is appealed, it is likely that the entity hearing the appeal will want a copy of the hearing transcript.

 Timeline for the decision 

     Generally, there is a 45 day timeline for the hearing officer to make a decision. But the school district has 30 days from the time it receives the parents request for a hearing to try to resolve the dispute. Thus the 45 day timeline for the hearing to be conducted and a decision issued may not begin until after that 30 day time period expires. But if the parents and the school district agree in writing to waive the resolution session or agree in writing that it isn’t possible to reach an agreement through mediation or the resolution session, the 45 day hearing timeline will begin the day after that written agreement is reached. 

Appeal Process 

     Either side may appeal the hearing officer’s decision. If the hearing was conducted locally by the school district or by an agency other than the State Education Agency, then the decision can be appealed to the State Education Agency. In that event the State Education Agency must conduct an impartial review of the hearing officer’s decision and then make its own independent decision. This is considered a two tiered hearing process. The first tier hearing is conducted by the school district and the State Education Agency review is the second tier. The second tier decision will be the final agency decision but can be appealed to state or federal district court.

     Some states have a one tiered process with the State Education Agency, not the local school district, conducting the hearing. In that case the state is not required to have an additional state level review and the State Education Agency decision will be the final agency decision.

     Once the state has made its final decision (whether the state conducts the hearing or reviews an appeal of a hearing conducted by the school district) that decision can be appealed by either the parents or the school district filing  a civil action (lawsuit) in state or federal district court. 

 Concluding Thoughts Regarding Due Process Hearings 

     Generally, due process hearings are contentious, adversarial, costly, and unpleasant for all involved. The hearing itself is often like a trial. Attorneys for both sides present evidence, examine their witnesses, cross examine the other side’s witnesses, and make oral and written legal arguments. The hearing officer presides over the hearing like a judge presides over a trial. Because the hearing is costly and unpleasant, everyone involved is usually very interested in resolving the disagreement so that a hearing can be avoided. Thus, in most cases in which a due process complaint notice is filed, the issue is settled before the hearing occurs. That is good.

    But, having said that hearings are generally costly, contentious, adversarial, and unpleasant, they are sometimes very necessary. There are times in which the issues are significant and do not get resolved. In those circumstances, a due process hearing may be necessary to ensure that a student receives a free appropriate public education.      

We Can Work it Out Part III: Using the Resolution Process to Resolve Disputes Under The IDEA 2004

    As yet another way to resolve disputes before a due process hearing, the IDEA 2004 added a resolution process. Once a due process complaint notice is filed, the school district is required to convene a resolution meeting between the parents and the relevant members of the IEP team. The purpose of the resolution meeting is for the parents to discuss the due process complaint and give the school district an opportunity to resolve the dispute.

     The relevant members of the IEP team are those members of the team who have specific knowledge about the facts identified in the due process complaint. The parents and the school district will mutually determine which members of the IEP team are relevant. Additionally, the meeting must include a representative of the school district who has the authority to make decisions on behalf of the school district.  

      The meeting, however, may not include an attorney representing the school district unless the parents bring an attorney to the meeting. So, the parents have an opportunity to meet with school staff without the school district’s attorney being present. If parents choose to bring an attorney to the resolution meeting, then the school district may also bring its attorney.  

     Moreover, should parents choose to be represented by an attorney at the resolution meeting, the parents may not be awarded attorneys’ fees for their lawyer’s time  attending the meeting. The resolution meeting is required unless the school district and the parents agree in writing to waive it or the two sides agree to use mediation instead. If the dispute is resolved through the resolution meeting, the parents and the school district will develop and sign a written settlement agreement. Similar to the mediation agreement, the resolution settlement agreement is enforceable in State court or United States district court. But, either the parents or the school district have three business days after the agreement is signed to void, or get out of, the agreement.  

     Finally, from the parent’s perspective, the resolution session is essentially another IEP meeting but, perhaps, without the school district’s attorney. On the other hand, the mediation process involves an outside person, the mediator, who can help facilitate resolving the dispute. For that reason, parents and the school district might choose to use the mediation process instead of the resolution process. Using either process will be beneficial if disputes are resolved without the need for a due process hearing.

We Can Work it Out Part II: Using Mediation to Resolve Disputes Under The IDEA 2004

 The last post began a short series of articles on dispute resolution under the IDEA 2004. That article ended with the requirements for filing a due process complaint notice. This post covers mediation and next week’s post will cover the new resolution process.

 ***

       Mediation is a process in which an objective and impartial third party (the mediator) works with both sides of a dispute to help them reach an agreement to resolve the dispute. Unlike a hearing officer, the mediator does not weigh evidence and resolve legal issues. Under the IDEA, the mediator’s job is to help the parents and school district reach an agreement. In that process the mediator will meet with each side to the dispute, separately or together (depending on the style of the mediator) and try to resolve disagreement.

       For the mediation process to work, the participants need to be able to speak freely. Thus, the discussions that occur in mediation under the IDEA are confidential.  Prior to the IDEA 2004, mediation agreements resolving special education disputes were not legally binding. The agreements were voluntary and each side relied on the other’s good will to comply with the agreement. Congress, however, received comments that since mediation agreements could not be legally enforced, parents and school districts were sometimes reluctant to use the process. Thus, in the IDEA 2004, Congress required that if an agreement is reached in mediation, it can be enforced in State court or a United States district court.  

Mediation can be used to resolve any special education issue, including issues that occur before a due process complaint notice is filed. So, mediation can be used to resolve disagreements without requesting a due process hearing or it can be used to settle disputes after a hearing has been requested. Moreover, to encourage mediation, the IDEA requires that the state education agency  maintain a list of qualified mediators and bear the cost of the mediation process.

So, mediation does not cost the parents or the school districts other than their time in the mediation. Mediation is voluntary and both parents and the school district must agree for the mediation to occur. Additionally, the state education agency must assure that mediation is not used to deny or delay a parent’s right to a due process hearing. Thus, by agreeing to mediation neither the parents nor the school district give up the right to pursue a due process hearing if the mediation is unsuccessful.

      Finally, while this article focuses on resolving disputes regarding children with disabilities under Part B of the IDEA (services for children aged three to twenty-on), mediation can also be used to resolve disagreements under Part C (services for infants and toddlers from birth through age two).  

We Can Work it Out: Using the IDEA 2004 to Resolve Disputes Before They Get to Hearing

My posts this week and next week will cover the IDEA 2004 formal procedures for resolving disputes prior to a due process hearing. This week I’ll cover the due process complaint notice and next week discuss mediation and the resolution process. A subsequent post will cover the due process hearing.   

Since 1975 the Education for All Handicapped Children Act (now the Individuals with Disabilities Education Act or IDEA) has provided parents the right to a due process hearing to resolve disagreements over special education services to children with disabilities. A due process hearing is a very formal procedure to resolve disputes. In a due process hearing an impartial hearing officer (IHO) makes a decision in favor of the parents or the school district after each side has presented evidence at the hearing. Parents and school districts have very specific rights or safeguards in due process hearings including the right to present evidence and to be advised by an attorney. 

      Thus, due process hearings, similar to a trial, are formal, can be costly, adversarial, and time intensive. To avoid the cost, time, and stress of due process hearings, parents and school districts resolve most special education disputes before they go to a hearing. In fact, in 2003 the General Accounting Office (GAO) issued a report stating that because most due process hearing requests are withdrawn or the parties settle the dispute before the hearing, the number of special education hearings nationally was low. For example, in the year 2000 the GAO found that there were only about 5 hearings per 10,000 special education students. In 2004, to further encourage resolving special education disputes, Congress amended the IDEA by adding to the dispute resolution process a due process complaint notice, a resolution process, and made mediation agreements legally binding.  

 Due Process Complaint Notice

      The IDEA requires that whenever a party, either a parent or a school district, wishes to request a due process hearing to resolve a special education dispute, they first must provide the other side with a due process complaint notice. The due process complaint notice tells the school district (or the parent if the school district requests the hearing) who the student is, the school the student attends, what the issues are, and suggests ways to resolve the dispute. As the IDEA 2004 was being drafted, some school administrators commented to Congress that districts frequently received requests from parents for a due process hearing when the districts were unaware that a dispute even existed.     

Thus, the due process complaint notice gives the school district information about the dispute and a chance to resolve the disagreement. While parents may feel it is burdensome to have to draft this notice in order to have a hearing, putting the problem and possible resolution in writing can help focus the issues and might lead to a resolution.

      The content of the due process complaint notice is very important because issues cannot be raised at the due process hearing if they were not identified in the due process complaint notice. This is true unless the other side in the hearing agrees to let the new issues be addressed at the hearing. There is a process for amending the due process complaint notice to add new facts and issues. Moreover, if a parent wanted to add issues that were not in the due process complaint notice and the school district did not agree to let those new issues into the hearing, the parent could request a separate hearing on the new issues.  In that event, the school district might agree to let the issues be heard in the original hearing rather than having two hearings. 

     Finally, State education agencies are required to develop model forms to help parents and school districts file due process complaint notices, but using those model forms is not required so long as the notice contains the information required by the IDEA.  

       In summary, the due process complaint notice requirment was added to the IDEA to avoid school districts being surprized when they recive a request for a hearing from a parent. It is hoped that by letting the school district know the nature of the disagreement and a possible resolution, the dispute can be resolved and a hearing avoided. Thus, the due process notice must be sent or a hearing cannot occur.  

Avoiding Stormy IEP Meetings:Tips for Chairing an IEP Meeting

  Principal Fife was the captain of the good ship HMS Middle School. He knew his mission, keep the school ship shape, hatches battened down, and sailing straight. Through twenty years serving in her majesty’s local education agency he’d successfully weathered the storms sent his way. Why then had the IEP meeting he just chaired been such a disaster? He was assigned to act as the designee for the Director of Special Education and, though he had attended many IEP meetings, this was the first time he scheduled, planned, and chaired an IEP meeting for a student with a disability.

 He thought he’d run a tight meeting. He invited only the essential professionals. To keep the meeting on time as well as non adversarial, he kept discussion to a minimum and discouraged the questioning of the professionals. After all, each professional was an expert in their area of service provision and their recommendations shouldn’t be second guessed by others.  Thanks to him the meeting was completed in ninety minutes (thirty minutes past the one hour he had announced at the outset as the time allotted for the meeting). So, what was the deal? Why did the parents leave angry and threatening to see a lawyer? 

  In the above scenario Principal Fife wanted to have a productive Individualized Educational Program (IEP) meeting. He wanted to develop to a good program for the student, but his emphasis on efficiency sacrificed quality and unnecessarily angered the student’s parents. Sure, there are going to be disagreements in IEP meetings. Educational programming is not an exact science. You should expect that, at times, parents will disagree with the recommendations of the educational professionals and educational professionals will disagree with one another. But proactively seeking parent input in the IEP process can help you avoid unnecessary disagreements and help make those disagreements that may be necessary less disagreeable. 

Eight Tips for Planning and Chairing an IEP Meeting 

1.      Schedule the meeting at a time reasonably convenient for the parents. The IDEA requires this and it makes good sense. Let the parents know in writing when the meeting is scheduled and make sure they know they can reschedule for another time and who to contact if they wish to reschedule. Then, if they ask, reschedule. You do not want parents to call the wrong person and be told the date is set, etched in stone, and cannot be changed. 

2.  Tell the parents, in writing, who the school district is inviting to the IEP meeting and what their role is. The parent may not know what role each professional plays in their child’s life. You don’t need to provide a biography of each IEP team member, but include their title and be sure the parents know they can find out more information if they wish. 

 3.  Make sure all of the right people are invited to the IEP meeting. For example, if the student will be transitioning from elementary school to middle school next year, it might be wise for you to include some of the middle school teachers in this year’s IEP. Or, if you expect a discussion regarding placing the student in a private or non district program, make sure appropriate staff from that program attend the meeting to describe the program and answer questions. Parents and other professionals cannot make a decision about a placement in a vacuum.  

4.  Ask the parents if they would like other individuals invited to the meeting. The IDEA requires that “not less than one of the student’s regular education teachers” attend the meeting, but students in middle school and high school often have more than one regular education teacher. The parent may want to have more than one regular education teacher. The IDEA also allows parents or school personnel to include on the IEP team other individuals who have knowledge or expertise about the child’s special needs. For example, the child may be seeing a therapist privately and the parent may want that individual invited to the meeting.. When it comes to IEP meetings more is not necessarily merrier, but too few is clearly not be enough. 

 5.  Do not set a time limit for the meeting. Try to schedule sufficient time, but if the IEP is not completed in that time, schedule another meeting to complete the IEP.  Be sure that the parents and other professionals know that this IEP will not be rushed to completion.   

6.  Facilitate open discussion among all members of the IEP team. Encourage parents to ask questions of the professionals and the professionals to ask questions of the parents and each other. 

 7.  Translate professional mumbo jumbo. Break down education speak so that all team members understand what is being said. 

 8.  Remember whose child it is. Listen to the parents and treat them as you wish to be treated: as a professional. Parents are members of the team. Remember, that while school professionals want what’s best for the child, they are not the parents. The professionals know the child as their student while at school and during the child’s school career. But the parents will be the child’s parents for life. 

  Using these tips will tell parents that you and the other educators in the IEP meeting really want what is best for their child and value the parents’ input. If parents think that you are not open to their ideas, they can become frustrated and angry. Refusing to reschedule meetings or to invite individuals that the parents would like at the meeting sends a message that you don’t really care. Since you do care, don’t send that message. Also, listening to the parents, having the right people at the meeting, and facilitating open discussion will help ensure that a good plan is developed. There will be disagreements in IEP meetings. That’s’ OK. There are times when IEP meetings may become rancorous and adversarial. That’s OK too. But you don’t want the meeting to become needlessly adversarial because you didn’t seek parent input into putting the IEP team together and  you didn’t respectfully listen to the parents concerns .       

Protecting Infants and Toddlers with Disabilities from Abuse: Connecting CAPTA with the IDEA

      Congress originally passed the Child Abuse Prevention and Treatment Act (CAPTA) in 1974 to provide federal funding to states to support Child Protective Service Agencies to help prevent child abuse. Over the years, CAPTA has been amended several times, most recently in 2003 by the Keeping Families and Children Safe Act. Additionally, research has found that children who are abused or neglected often have physical, mental, or emotional problems requiring specialized intervention. Thus, the 2003 CAPTA amendments require that states that receive CAPTA funds develop procedures to refer children who are under the age of three and are involved in a substantiated case of abuse or neglect to Early Intervention Services under Part C of the IDEA. The IDEA’s Part C requires that states have a coordinated interagency program of early intervention services for children with disabilities from birth through age two. Moreover, when the IDEA was amended in 2004, Congress also required ,through Part C, that states have procedures for referring a child who is under the age of three and who is involved in a substantiated case of abuse or neglect for early intervention services under Part C.    

Historically, child welfare workers and early intervention providers have done their good work from within their respective systems, often unaware of how the other system worked. There are differences in the two systems. Child welfare services’ mission is generally keeping children safe. To that end, child welfare workers may work to strengthen families, but their primary focus is protecting the child. Unlike early intervention services, child welfare services may require court involvement, termination of parental rights, and many abused or neglected children are placed out of the home in foster care. Again, while child welfare workers may try to support the family, their mission is to keep the child safe, not to ensure family input and choice in the child protection process.

   On the other hand, under the IDEA Part C early intervention services focus on working cooperatively with families to ensure that infants and toddlers with disabilities receive the early intervention services they need. Under Part C, early intervention services are designed with family involvement and provided through an Individualized Family Service Plan (IFSP). Part C emphasizes family choice and input. Moreover, Part C contains specific procedural safeguards for families including the right to informed consent to evaluation and services, appeal rights, and provides for surrogate parents for children without parents. Connecting infants and toddlers who have been abused or neglected to Part C early intervention services requires that the two systems, child welfare and early intervention providers, work together. It is important, therefore, that child welfare workers and early intervention service providers understand how both systems work. 

   To that end, many states have developed interagency agreements between the state child welfare agency and lead agency for Part C early intervention services to ensure cooperation between the two systems. Moreover, many state and local representatives of the two systems have provided conferences, regularly scheduled meetings, and cross trainings to help their colleagues understand how the systems can work together on behalf of children. For information on what is happening in your state you can contact your state child welfare agency through the Child Information Gateway website and/or your state’s Part C lead agency which you can find at the National Early Childhood Technical Assistance Center (NECTAC) website.