Decisions, Decisions…And Why An IEP Team Must Be Able to Make Them!

Published on June 7, 2009 by Jennifer Laviano

How many times have you attended an IEP Team Meeting for your child with special education needs, and requested a service or evaluation, only to be told “well, we’ll have to check with the special education director and get back to you” or “that’s not a decision that I can make” or “I don’t know if the school district can pay for that, let’s reconvene after we find out”?  In my special education law practice in Connecticut, I often hear from parents that they have been told this type of thing, and sometimes, it even appears in the Minutes of the meeting.  Such statements usually violate the IDEA.

Your school district is legally required to have someone at your child’s IEP Team Meeting who has the ability to discuss and commit the resources of the district.

The IDEA defines which individuals MUST be present at an IEP Team Meeting in order for it to be duly constituted (properly staffed) to design a child’s special education program.  Included in the list of people who must attend is a representative from the Local Educational Agency (your school system) who “is knowledgeable about the availability of resources of the local educational agency.”  Therefore, in order for an IEP Team to even be defined as an IEP Team, such representative needs to be there.

Despite this clear requirement, very often IEP Team meetings are chaired by individuals who have no knowledge or authority about what is available in the district.

An IEP Team is supposed to be a decision-making body.  However, if a parent requests something that is above-and-beyond what is typically offered, they often are told that the IEP Team can not make that decision.  Why?  Because somebody has to check with their boss before agreeing to it.  Usually it is a request for an outside evaluation, or a additional services, or placement in a different program than the child’s “neighborhood school” that results in this kind of response.  Often the person chairing the meeting tells the parents that the IEP Team will have to reconvene once the administration’s decision is obtained.

Weeks, and sometimes months, of appropriate services are lost while your school is trying to get information they should have been able to provide at the IEP Team Meeting to begin with!

So, how do you handle it when you are given the “we can’t decide that here today” response to a request?  To start with, calmly ask whether there is a person at the IEP Meeting who is a position to decide whether or not this request will be approved.  If they say “no,” then request that this fact be noted in the minutes or elsewhere in the IEP document.  If they say “yes,” ask which person that is.  You will probably get a lot of flustered replies at this point, but if a person is identified, ask them point blank whether your request is being denied or approved.

Regardless of how they answer, follow up in writing and document what happened.

Good opportunities to do this are either when you get the IEP, and it doesn’t reflect what happened (this is a good thing to do as a regular habit), or if you get the Notice for the reconvened IEP Meeting and any other purpose is written for the meeting.  Send a note saying “I received the IEP Notice and I just want to be clear that it was my understanding that the purpose was to review the request I made at the last IEP Meeting which nobody was able to approve or deny.”

If, however, you have read this post BEFORE you are heading into an IEP Meeting where you’ll be requesting something that you believe might require additional authority, then be proactive instead.

While my ability to prove a violation of the IDEA can bolster my client’s case, that doesn’t mean I want kids out there getting delayed services just to prove the point.  Moreover, the goal is to avoid having to hire a special education attorney in the first place!  Therefore, if you think you’re going to be put in the situation I’ve described, as a practical matter, you might want to consider asking ahead of time to have a higher level administrator attend the meeting so that your requests can be properly considered.

Just be careful not to specify any requests in advance of the IEP Meeting that make it appear you have prejudged the IEP that they are going to offer.

If you ask to have someone with authority in attendance and they refuse, then you will have two violations to argue down the road if it becomes necessary:  1) failure to have a duly constituted IEP Team Meeting; and 2) violation of the Parents’ right to invite persons of their choosing to the IEP Team Meeting.

Plus, they won’t be able to say you didn’t warn them.

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