Special Education Update

IEP Meeting Statements that Can Land a School District in Legal “Hot Water”

Julie J. Weatherly, Esq., Attorney & Founder Resolutions in Special Education, Inc.

Alabama’s Spring IEP season is almost here, which makes it time to re-visit some avoidable procedural mistakes that can land a school district in special education legal “hot water.” Some of these procedural IEP statements, in and of themselves, can constitute a denial of free appropriate public education (FAPE) notwithstanding how appropriate the IEP’s content may be. School leaders should remind their staff to avoid the following kinds of statements in developing IEPs.

“Good afternoon, Mr. and Mrs. Smith. To save time, we have already completed the IEP, so all we really need for you to do is read over and sign it.”

While it is acceptable to prepare draft IEPs and other documents prior to an IEP meeting, a draft IEP cannot be presented at the beginning of a meeting to the parents as a final document. As IDEA clearly sets out, parents are to be provided the opportunity to jointly and fully participate in the development of the IEP and in all educational decisionmaking. To present a document that has been completed prior to the IEP meeting as a final document can be procedurally dangerous and may be considered, under the law, to be a “predetermination of placement,” which is considered to be “FAPE fatal.”

“We have already met and decided that Mary will be in the separate special education class next year.”

Although school personnel can meet and engage in preparatory activities before IEP meetings, no final educational or placement decisions should be made during preparation. Certainly, meetings may be held to prepare for IEP meetings or to discuss possible options for consideration at the upcoming IEP meeting. However, school personnel should be clear during preparation that no final placement determinations are to be made.

“We’d like to be able to offer two hours of special education services per day, but our Special Education Coordinator has already told us that we can only offer one hour per day.”

As stated before, a final IEP or placement decision cannot be made before the meeting and cannot be made by someone who is not part of the IEP Team. Only the IEP Team can make final placement decisions based upon the needs of the student, regardless of what the Special Education Coordinator may have predetermined.

“Oh, how I wish we could offer 30 minutes per day of Occupational Therapy to Anna because she really needs it, but we can’t provide that much. We are short on staff because of COVID and we’re lucky to be able to offer 30 minutes per week.”

Even in time of crisis and personnel shortages due to COVID circumstances, IEP recommendations must be based upon the individual educational needs of a student rather than what services are or are not available within the school district. If an IEP cannot be implemented because of lack of staff, the IEP Team will need to discuss the fact that compensatory services may need to be determined for any educational benefit lost due to personnel shortages.

“Our preschool program is a half-day program provided four days per week for everyone.”

IEP recommendations for services must be individualized for each student with a disability. “Cookie-cutter” recommendations should be avoided.

“Now that we have identified needs and established IEP goals and services, let’s address where the services will be provided. Does everyone agree that Stewart should be in the special education class full time next year?”

There is a presumption under the law that all students with disabilities will be served in the regular classroom. For that reason, IEP Teams must first consider regular classroom placement with supplementary aids and services before considering more restrictive placements. Courts expect IEPs and/or other relevant documentation to clearly and specifically reflect the options considered on the continuum of alternative placements and why less restrictive options are rejected.

“Of course we have Extended School Year services. All students can participate in our summer school program.”

IDEA regulations specifically require IEP Teams to consider the provision of Extended School Year (ESY) services to all students with disabilities. However, ESY is not the same as summer school and in implementing ESY programs, a school district cannot limit ESY services to particular categories of disability or unilaterally limit the type, amount, or duration of the services. Rather, individualized decisions must be made as to ESY eligibility and services in accordance with school district procedures and Alabama’s special education rules.

“Sorry I’m an hour late, but the principal just told me that I needed to be here because I’m the only regular education teacher left in the building. Can I sign and go now?”

The IDEA is clear that not less than one regular education teacher of the student must be present at all IEP meetings (and for the entire meeting) if the student is or may be participating in the regular education environment. As a member of the IEP Team, it is expected that the regular education teacher will participate in, among other things, consideration of what supports the student may need for appropriate regular education participation, unless the teacher has been formally excused in accordance with an allowable process.