OLG LEGAL COMMENTARY:

1. Give Consent Only for Evaluations or Portions of the IEP to Which You Agree.

Schools must obtain parental consent before conduction an initial evaluation to determine if a child has a disability. There would be little reason for a parent to deny consent for the first evaluation, unless the parent specifically prefers to obtain evaluations from private specialists. In such a case, the parent may still consent to the school performing some evaluations. For example, the parent may want an independent psychologist to conduct the psychological evaluation, but will allow the school to conduct educational evaluations. While IDEA 2004 requires IEP team to review the evaluations provided by the parent, the IEP team is not required to accept the recommendations and findings based on private evaluations. Also, private evaluations can be harmful if performed improperly or if individual conducting the evaluation does not meet state requirements. (Section 1414(b)(3))

If a parent is interested in scheduling an evaluation with an expert in the private sector, they should carefully examine the individual’s credentials and records. Before making a choice, consider the following questions:

• Does the evaluator meet state requirements to conduct the evaluation (for example, in most states a psychologist must be licensed to conduct psychological evaluations)?
• Does the school district generally accept evaluations from this evaluator?
• Is the evaluator willing to attend the eligibility or IEP meeting to explain his findings, educate the IEP team about the reasons for the recommendations and what is likely to happen if the recommendations are ignored?

If the parent refuses to consent to an initial evaluation by the school, the school may use mediation, resolution, or a due process hearing to obtain the evaluation. (Section 1414(a)(1)(D)(ii))

Parents are also required to provide consent for special education and related services. If the parent refuses to provide consent for services, the public school “shall not provide special education and related services to the child…” (Section 1414(a)(1)(D)(ii)(II)) This language is a notable change from IDEA 1997, which required schools to seek mediation or due process to obtain parental consent for services.

The change in language may create problems for parents who are seeking special education and related services for their child, but disagree with aspects of the IEP and/or the school’s plan to implement IEP services. Fortunately, the law does not prevent parents from consenting to parts of the IEP, while refusing consent for the sections of the IEP which they disagree with. Under the “stay put” provision, the child can remain in the then-current educational placement and continue to receive the same services during proceedings to challenge the IEP, unless the parents and school agree otherwise. (Section 1415(j)) While there is not a “then-current educational placement” in the case of a dispute between parents and school over an initial IEP, the school is obligated to implement the sections of the IEP that the parent provided consent for. If you want to consent to part of the IEP, here are some suggestions:

• Initial each part of the IEP to which you agree.
• Next to the signature line, write that you do not consent to any part of the IEP that you did not initial.

2. Insist that the Child’s Regular Education Teacher(s) Participate in IEP Meetings.

IDEA 2004 lists the individuals who are required members of the IEP team:

• The parents
• Not less than one regular education teacher
• Not less than one special education teacher
• An individual who can interpret the instructional implications of evaluations
• A representative of the school district who has supervisory responsibilities and is knowledgeable about the general education curriculum and agency resources. Section 1414(d)(1)(B))

Congress changed IDEA 2004 to allow members of the IEP team to be excused from attending IEP meetings, even when their area of the curriculum or related service will be discussed. As a parent, you do not have to consent to this. Before a team member can be excused, the individual must submit a written report to the IEP team and the parent must consent in writing. (Section 1414(d)(1)(C))

Some individuals may wish to be excused, but the law requires that at least one regular education teacher attends the IEP meeting. While teachers have demanding schedules, it’s essential to note that the time spent developing an IEP suited for the child’s particular needs will save time in the long term. More importantly, the input from each of the child’s teachers will fundamentally benefit the child. Each individual will be able to provide valuable information to the entire group, which would likely be missed without their attendance. The best results can be achieved when each individual providing education services to the child attends the IEP. Unless there are exceptional circumstances, parents are not recommended to consent to a team member’s absence.

In the event that you are having difficulties assembling the required members of their child’s team for the IEP meeting, write a letter to request each of your child’s regular education teachers and related service providers attend the IEP meeting.

3. Be Mindful of IEP Timings.

The three-year IEP was another change included in the reauthorized IDEA 2004. This pilot program is available in more than 15 states, but has received significant criticism. There are already difficulties defining specific plans for measuring goals and recording progress for a child’s unique developmental, academic, and functional needs with once a year meetings. A three-year plan may be unable to account for a child’s development and may fall short compared to yearly IEPS. Therefore, it is strongly recommended that parents do not grant consent for a three-year IEP. If your state has approval for the three-year IEP, carefully review the beginning and ending dates for any proposed IEP for your child. Before singing your consent to implement your child’s IEP, be sure that the proposed IEP does not extend more than twelve months after the IEP was developed.

Even with yearly IEPs, parents can request more than one meeting a year. Teachers and parents may request additional IEP meetings to review and revise a child’s IEP. IDEA 2004 provides that the IEP team shall revise the IEP to address:

• Any lack of expected progress toward the IEP goals or in the general education curriculum
• The results of any reevaluation
• Information provided to or by the parents
• The child’s anticipated needs and
• Other matters. (Section 1414(d)(4))

4. How to Handle Disputes.

In a study conducted by Melanie Archer, Ph.D. in December 2002, there were 276 cases in which a decision was made and attorney representation for both parties was known. Attorney representation significantly increased the chances of a parent prevailing. 50.4% of parents with attorney representation won due process hearings, compared to only 16.9% of those without attorney representation.

As a parent, you need to understand that the school is under no obligation to seek resolution of the dispute and is actually prohibited from doing so under IDEA 2004. (Section 1414(a)(1)(D)(ii)(II)) Bearing that in mind, there are a number of ways to resolve disputes.

Seek alternative dispute resolution methods, such as mediation or “resolution sessions”. Mediation is a confidential process, which can help parents and schools resolve disputes, while avoiding litigation. The neutral third party acts a facilitator for communication, so that the parties can better understand the views and positions of the other. Before entering into mediation, understand your rights (bring the law). Goals for mediation should be preserving amicable relationships between parties and finding resolutions to problems. If the dispute is resolved in mediation, IDEA 2004 requires the parties to execute a legally binding agreement that sets forth the terms of the resolution. (Section 1415(e)(2)(F))

Another dispute resolution tool is a mandatory “resolution session”, which was added by IDEA 2004. The school district must send “the relevant member or members of the IEP team” who have knowledge about the facts in the parents’ complaint and a school district representative who has decision-making authority. The school board attorney may not attend the Resolution Session unless an attorney accompanies the parent. The parents and school district may waive the Resolution Session or use the mediation process. If the school district has not resolved the complaint to the parents’ satisfaction within 30 days of receiving the complaint, the due process hearing can be held. (Section 1415(f)(1)(B)(ii))

If mediation and resolution sessions were unsuccessful, then due process hearings can be utilized, as the last resort. Due process hearings are often costly, in terms of time, resources, and relationships. Further, the adversarial nature of due process hearings often leads to hostilities between the school personal and the families, which never fully resolve. If you feel you need to utilize due process hearings, it is strongly advised you seek an attorney.

Jennifer Englert is the managing partner and founder of The Orlando Law Group, PL. For over 15 years, she has focused on business disputes, business law, general civil litigation, special needs & education law, family law, personal injury, and real estate. She has represented entities and individuals in both federal and state trial and appellate courts.

Founded in 2009, The Orlando Law Group, has been named one of the fastest-growing law firms in Central Florida and through America [ranked No. 105 among the top 500 fastest-growing law firms in the United States, per the 2017 Law Firm 500]. It has earned a reputation as the Orlando-area law firm that cares about its clients and the communities it serves. Offices located in Altamonte Springs, Dr. Phillips, Lake Nona, and Waterford Lakes. To contact Englert, or for more information about The Orlando Law Group, please visit www.TheOrlandoLawGroup.com or phone 407-512-4394.