From the PAGE Legal Team: An IEP FAQ

In today’s fast-changing education environment, it is critical that educators follow current legal requirements for IEPs and IEP meetings. Federal law, including the Individuals with Disabilities Education Improvement Act of 2004 (IDEA), requires public schools to develop an Individualized Education Program (IEP) for every eligible student with a disability. The PAGE legal department frequently receives questions about how these rules apply in practice, and IEPs often raise unique legal issues for educators. This article addresses some of the most frequently asked questions about IEP meetings and their current legal requirements.

Who should be on a student’s IEP team?

IDEA defines the individuals who should be a part of an identified students IEP team. The IEP team includes the student, the student's parent(s) or legal guardian(s), a special education teacher, at least one general-education teacher, a representative of the school or of the school district who is knowledgeable about the availability of school resources, and an individual who can interpret the instructional implications of the results of the student's evaluation (such as the school psychologist).

IDEA stipulates that one person may be sufficient to satisfy two requirements. For example, in some counties a school psychologist counts as an individual who can interpret the instructional implications of the results of the student's evaluation and the representative of the school or of the school district who is knowledgeable about the availability of school resources. In those cases, an educator should consult with their building administrators for further guidance.

Does the whole IEP team have to attend every meeting?

According to IDEA, IEP team members can ask the IEP team to excuse them from all or some part of a scheduled IEP meeting. However, they must have written consent from the parent to be absent. If the parent does not give permission, the IEP team member must attend, or the IEP team must reschedule the meeting. Prior to the meeting, input into the development of the IEP must be submitted by the excused team member, in writing, to the parent and the IEP team.

Can the parent/guardian bring an advocate or attorney to the IEP meeting?

IDEA allows for a parent or guardian to bring an outside professional to an IEP meeting. The parent or guardian must be able to show how that person has knowledge and/or special expertise regarding the child. This could include the professional’s credentials and a description of how/she knows the child in question. Often these outside professionals already have this prepared. It is up to the parent/guardian inviting the outside professional to determine that the invitee has the requisite knowledge regarding the child.

IDEA is silent as to if the parent/guardian has to give advanced notice to the IEP team that he/she is bringing an outside professional with them.

Can the parent/guardian demand the student be present for the IEP meeting?

IDEA states that “only the parent has the authority to make educational decisions for the child…including whether the child should attend an IEP team meeting.” IEP team members may be able to argue that the child’s presence is not appropriate because of their age and maturity. Ultimately the school cannot deny the child from attending if it is the parent’s wish.

Additionally, if the purpose of the IEP meeting is to discuss the child’s IEP transition plan for work/college, the school must invite the child. This planning starts at 16 years of age, at the latest.

What is proper notice for an upcoming IEP meeting?

IDEA states, in order to ensure one or both parents of a child are present at each IEP team meeting, a school must (1) notify parents of the meeting early enough to ensure that they will have an opportunity to attend and (2) schedule the meeting at a mutually agreed on time and place.

The notification to the parent/guardian must include (1) the purpose, time and location of the meeting, (2) who will be at the meeting, and (3) explains the parent’s right to invite an outside professional who in their opinion has knowledge or special expertise regarding their child.

For a child beginning ninth grade or by the age of 16, the invitation must include that the purpose of the meeting will be consideration of postsecondary plans and transition services for the student.

Do you have to reschedule the IEP meeting if the parent is unavailable?

Federal law states that schools “must ensure that the IEP team…includes…the parents of the child.” This may mean rescheduling if the parent prefers to meet in person. The law also states that the school is “required to use other methods to ensure parent participation, including conference telephone calls” and other alternative means like video conferences. Therefore, if the parent and school agree to use alternative methods, such as a video or phone conference call, it is permitted by IDEA.

The school may hold an IEP meeting without a parent if the school can show it could not persuade the parent to attend. In this case, teachers should have diligent documentation that demonstrated their attempt to contact and persuade the parent. This documentation should include detailed records of telephone calls made or attempted and their results, copies of correspondences sent to the parents, and detailed records of visits made to the parent’s home or place of employment.

Can someone record the IEP meeting?

Federal law does not prohibit a parent or school official from recording IEP meetings. State departments of education or school districts can require, prohibit, limit, or regulate the use of recording devices at IEP meetings. The Georgia Department of Education has been silent on this matter as well.

Educators in Georgia will need to see if their board policies prohibit the use of recording devices in the IEP meeting. If the school records the IEP meeting, the recording becomes part of the child’s “educational records” under the Family Educational Rights and Privacy Act (FERPA). This means that the parent/guardian would have a right to listen to the recording and request a copy of the recording.

How often must a student’s IEP be reviewed?

By law, an IEP must be reviewed at least once a year. However, the team does not have to wait a full year to meet. An IEP meeting can be held sooner if concerns or new needs arise.

An educator should always consult local policies to ensure that they are adhering to school district expectations for the number of IEP reviews during the school year.

How often is a student re-evaluated for special education services?

A re-evaluation for a student receiving special education services must occur at least once every three years. A re-evaluation can occur more often if the school or the parent/guardian believes the student’s needs have changed and additional assessment is necessary.

An educator should always consult local policies to ensure that they are adhering to county deadlines for re-evaluations.

What are the differences between manifestation determination reviews (MDRs) and regular IEP meetings?

Unlike a routine IEP meeting, an MDR follows an IEP student’s recent behavior and addresses certain questions like:(1) whether the student’s behavior was caused by, or directly related to, the student’s disability, and (2) whether the student’s behavior was the direct result of the school’s failure to implement the IEP.

An MDR is also legally required when the school is considering a disciplinary change of placement for a student. The outcome of the meeting determines what discipline is allowed and what changes are needed to the IEP, behavior plan, or placement.

What happens with falsified IEP documents?

The Georgia Professional Standards Commission (PSC) outlines 10 ethical standards for educators. Standard 4 (Honesty) states “Unethical conduct includes but is not limited to, falsifying, misrepresenting, or omitting… (2) Information submitted to federal, state, local school districts and other governmental agencies; (3) information regarding the evaluation of students and/or personnel…”

An educator can be sanctioned for falsifying IEP documents and submitting them to their school system. In a case where an educator fabricated her IEP paperwork by cutting signatures from other documents, pasting them on the required paperwork, and photocopying the paperwork to conceal the cut and paste, the educator received a 90-day suspension of her certificate from the PSC. General/regular education teachers who sign IEP’s as if they were in an IEP meeting but were not can also expect a sanction from the PSC.

What happens when a parent claims you are not following the IEP?

If the school district has violated a legal rule, such as failing to hold an IEP meeting, conduct an evaluation, meet a time limit or implement the IEP, a parent/guardian can file a complaint. Each school district has its own complaint procedure. IDEA requires the party to formally file for IEP due process within two years after you know of the dispute. Parents/guardians also have a right to file a state complaint stating that the school has broken a law. Both the due process hearing and the state proceedings can happen simultaneously.

Overwhelmingly, these cases are not brought against individual educators but against school districts as a whole. Educators accused of violating a legal rule, like failing to follow an IEP, may face adverse action from their employer, a possible report to the PSC, and possible criminal charges.

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¹ 20 U.S.C. § 1400 (2004).

² 20 U.S.C. §1414(d)(1)(B)(2004).

³ 20 U.S.C. 1414(d)(1)(C) (2004).

⁴ 20 U.S.C. §1414(d)(1)(B)(2004).

⁵ 34 C.F.R 300.321.

⁶ 20 U.S.C. 1400(c)(14).

⁷ 34 C.F.R §300.322(a) (1), (2).

⁸ 34 C.F.R §300.22(b)(1)(i)-(ii).

⁹ 34 C.F.R §300.22(b)(2)(i)-(ii).

¹⁰ 34 C.F.R §300.322(a).

¹¹ 34 C.F.R §300.322(c); §300.328.

¹² 34 C.F.R §300.322(d).

¹³ 20 U.S.C. §1414 (a)(2)(B)(i); 20 U.S.C. §1414 (a)(2)(B)(ii)

¹⁴ 20 U.S.C. §1414 (a)(2)(A).

¹⁵ 34 C.F.R § 300.530 (e).

¹⁶ O.C.G.A. §20-2-984.2; PSC rule 505-6-.01 (3)(d).