PARENTAL PARTICIPATION IN IEP PROCESS IS A CRITICAL FEATURE UNDER IDEA- DURING IEP MEETINGS AND IMPLEMENTATION OF SERVICES

One of the complaints I often hear from parents is that the school is not allowing them to be a part of the decision-making process. They are allowed to speak at the IEP meetings only to have their opinions and ideas shot down by the school district. At the end of the IEP meeting they are presented an offer of FAPE in a take it or leave it manner. Lawmakers designed the IEP process to be collaborative and, as such, nobody should leave an IEP meeting feeling like they were not an important part of the process.

According to the IDEA, the IEP team shall include parents of the child with a disability. (20 USC Section 1414(1)(B)) Parents are listed first in order as IEP team members. Often times, parents are not represented by an advocate or attorney at the IEP meeting. Therefore, lawmakers devoted an entire section of the IDEA to procedural safeguards. (20 USC 1415) Some of those safeguards are:

  • Notice of meeting (time, purpose, location, and who will be in attendance);
  • Right to bring others with knowledge/expertise regarding the child;
  • Meeting scheduled at a mutually agreed upon time and place;
  • Alternative means of participation;
  • Right to a copy of the evaluation reports and any other documents considered in making decisions by the IEP team;
  • Right to an Independent Educational Evaluation (if parents disagree with a district’s evaluation); and
  • Right to due process.

When formulating an IEP, a school district “must comply both procedurally and substantively with the IDEA,” M.L. v. Fed. Way Sch. Dist. 394 F.3d 634,664 (9th Cir. 2005) (citing Rowley v. Hendrick Hudson Sch. Dist. 458 U.S. 176 (1982), so that the process will be informed not only by the expertise of school officials, but also by the input of the child’s parents or guardians,” Endrew F. v. Douglas City Sch. Dist. 580 U.S. (March 22, 2017). (M.C. v. Antelope Valley Union High Sch. Dist. No. 14-56344 (9th Cir., March 27, 2017)) The courts recognize the parents have a unique perspective on their child and observe their child in a multitude of situations.

Parental participation shall be meaningful. Meaningful participation is more than attendance at the IEP meeting. (Amanda J. v. Clark County Sch. Dist. 260 F.3d 1106 (9th Cir. 2001) District representatives are allowed to meet before an IEP meeting to develop a proposal or response that will be discussed at a later meeting. (34 C.F.R. 300.501(b)(3)) School districts should never say “we don’t do that here” or “we won’t consider that.” It prevents the parties from collaborating and builds mistrust.

The court frowns upon school districts lack of transparency during the IEP process, as well as during the implementation of the IEP. Congress is just as concerned with parental participation in the enforcement of the IEP as it is in the formation.  (Rowley 458 at 205) Parents must be able to monitor and enforce the services that their child is to receive. When a parent is unaware of the services offered to the student—and, therefore, can’t monitor how these services are provided—a FAPE has been denied, whether or not the parent had ample opportunity to participate in the formulation of the IEP.  (M.C. at 14)

If you have a question about whether your legal rights to participate in the IEP process has been less than meaningful, give me a call at 925-551-1041. Each case is unique to a specific set of facts and must be analyzed separately.

 

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)

DOES ANYTHING HAPPEN IN SPECIAL EDUCATION, OUTSIDE OF ESY, OVER SUMMER

School is out and site staff is off for the summer. It may seem as though the special education process is on hold. While it’s true that some timelines are tolled during school breaks in excess of 5 days, including summer, that doesn’t mean everything is on hold. If you are concerned that the IEP last offered to your child is incomplete, or if your child’s needs have changed significantly over the summer, you are entitled to request an IEP team meeting. Additionally, if you believe your child has been denied FAPE then you may start or continue due process. Summer may be a good time to review your child’s IEP and work to resolve any major issues before school begins.

REQUESTING AN IEP OVER THE SUMMER

In certain circumstances, summer vacation is not a legitimate excuse to delay having an IEP meeting. The IDEA requires that an appropriate IEP be in place by the beginning of the school year. (34 CFR 300.323) Therefore, if the IEP last developed before the end of the school year was not complete, or did not include necessary supports for the student to receive a free and appropriate public education at the start of the coming school year, it may be necessary to reconvene and IEP meeting over the summer to finalize the IEP.

Your local school district may refer to CA ED Code Section 56343.5 which states,

A meeting of an individualized education program team requested by a parent to review an individualized education program pursuant to subdivision (c) of Section 56343 shall be held within 30 days, not counting days between the pupil’s regular school sessions, terms, or days of school vacation in excess of five schooldays, from the date of receipt of the parent’s written request.

It may seem that the school has a valid argument. However, federal law trumps state law. If a child’s IEP needs to be modified during the summer to ensure that an appropriate IEP is in place at the beginning of the school year, a meeting must be held.

School districts face difficulties during the summer months. Many school staff contracts do not require them to attend IEP meetings over the summer. That leaves district administrative personnel to resolve the issues without the assistance of the staff members who are regularly a part of the student’s IEP team. District staff is often hesitant to make substantial changes without the other team members.

If your child’s IEP needs to be updated and can’t wait for school to begin, don’t let the above-mentioned issues deter you from calling an IEP meeting. Put all your requests in writing to the superintendent of special education for your district. If the school refuses to hold an IEP meeting and make necessary changes to your child’s IEP, you may be able to go back to the school and request compensatory services lost from the beginning of the school year until the time when an IEP meeting is held. If the issue is critical enough, contact an attorney to discuss your concerns and determine if your request is reasonable.

DUE PROCESS OVER THE SUMMER

While your site school staff may have the summer off, special education administrative staff members are still working. This allows due process matters to be filed, negotiated, and heard during summer breaks. If you believe your child has been denied a free and appropriate public education you can file a complaint with the Office of Administrative Hearings. The timeline for due process hearings is not tolled over the summer. Due process proceedings are typically completed within 75 days of filing.  That means it is possible to file a due process complaint at the beginning of summer and have it heard before school resumes.

While it is possible to file for due process and have your case heard over the summer, there can be advantages and disadvantages to doing this. An attorney who is knowledgeable regarding special education law can help weigh these considerations.

 CONCLUSION

Summer break be a reason a student starts a new school year without an IEP, or with an inappropriate IEP. District administrative staff work over the summer and provide an opportunity to work through major issues. If you are receiving push-back from the district it may be worthwhile to have an attorney review your file and write a letter on your behalf.

 

 

(Note: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The website has been designed to be a resource for information on matters that might be of interest to current or potential clients but does not establish that relationship. For further information visit my Disclaimer page- https://specialedlegaljourney.com/about/disclaimer/)