By Jennifer Searcy
Founder/Director of Public Policy and Affairs
The Coalition for Positive Behavioral Interventions & Supports
Published on: March 27, 2009
Some NC parents recently contacted us to notify us that their school district notified them in writing that the district intended to hold an IEP meeting "as previously scheduled," with or without the parents - even after the parents notified the district in advance in writing that the date/time wasn't convenient and asked if the district could please reschedule the meeting.
The parents wanted to know, can the district legally do this?
The easy answer should be a resounding "NO! They can't" in this case, but...well, we've seen stranger things happen (and even stranger decisions from state Departments of Education/Public Instruction).
So, let’s take a look at the facts:
The parents claim that:
1. The district sent a written request to the parents requesting parental participation at an IEP meeting.
2. The parents notified the district in advance and in writing that the date/time of said IEP meeting was not convenient, and therefore, not mutually agreed upon.
3. The parents asked the district in advance and in writing to reschedule the meeting for a date/time that is mutually agreed upon so that the parents can participate in the IEP process.
4. The district denied the parents’ request to reschedule the IEP meeting, did not offer or explain what alternative means of participation may be available to the parents, and have indicated in writing that the IEP meeting will occur as scheduled, with our without the child’s parents.
Now, according to the Department of Education’s website at (http://www.ed.gov/parents/needs/speced/iepguide/index.html#team), “[b]y law, certain individuals must be involved in writing a child's Individualized Education Program” and that
“…Parents are key members of the IEP team. They know their child very well and can talk about their child's strengths and needs as well as their ideas for enhancing their child's education. They can offer insight into how their child learns, what his or her interests are, and other aspects of the child that only a parent can know. They can listen to what the other team members think their child needs to work on at school and share their suggestions. They can also report on whether the skills the child is learning at school are being used at home.”
But what laws support the parents’ (and our) contention that the district’s intent to deliberately and willfully exclude the parents may be, well, less than “legal”?
34 CFR 300.345 of IDEA outlines Parent Participation in depth, and the full text can be found here: http://cfr.vlex.com/vid/300-parent-participation-19761947
The portions relevant to the above-referenced scenario are as follows:
(a) Public agency responsibility--general. Each public agency shall take steps to ensure that one or both of the parents of a child with a disability are present at each IEP meeting or are afforded the opportunity to participate, including--
(2) Scheduling the meeting at a mutually agreed on time and place. (Fact: the parents notified the district in advance & in writing that this meeting is NOT mutually agreed upon and have asked for the meeting to be rescheduled. We have a copy of the email.)
(c) Other methods to ensure parent participation. If neither parent can attend, the public agency shall use other methods to ensure parent participation, including individual or conference telephone calls. (Fact: The letter from district staff did NOT include a statement about what alternative means of participation may be available to the parents so that they may be able to participate in the meeting as scheduled. We have a copy of this email.)
(d) Conducting an IEP meeting without a parent in attendance. A meeting may be conducted without a parent in attendance if the public agency is unable to convince the parents that they should attend. (FACT: Parents have notified the district in advance & in writing that they cannot attend the meeting on the date/time as scheduled and requested that the meeting be rescheduled. Therefore, the parents have not expressed to the district a unwillingness to attend an IEP meeting, and in fact, have participated in other IEP meetings with said district. We have emails and other documents attesting to these facts, and have even personally attended an IEP meeting with one of the parents. Parents want to be included in these meetings; it's the district who doesn't want them there because the parents disagree with many things included in the district's draft IEP and it would be so much easier to simply "go around" the parents and their wishes than deal with them directly)
In this case the public agency must have a record of its attempts to arrange a mutually agreed on time and place, such as--
(1) Detailed records of telephone calls made or attempted and the results of those calls;
(2) Copies of correspondence sent to the parents and any responses received (FACT: The district has acknowledged receipt of the parents' request to reschedule this IEP meeting. Parents have indicated in writing of their desire to participate in said meeting. We have copies...); and
(3) Detailed records of visits made to the parent's home or place of employment and the results of those visits.
Also 34 CFR 300.501 Opportunity to examine records; parent participation in meetings.
(a) General. The parents of a child with a disability must be afforded, in accordance with the procedures of §§ 300.562-300.569, an opportunity to—
(2) Participate in meetings with respect to--(i) The identification, evaluation, and educational placement of the child; and
(ii)The provision of FAPE to the child.
(b) Parent participation in meetings.
(1) Each public agency shall provide notice consistent with § 300.345(a)(1) and (b)(1) to ensure that parents of children with disabilities have the opportunity to participate in meetings described in paragraph (a)(2) of this section.
North Carolina’s statutes echo the federal regulations. The full NC statute can be found here: http://www.dpi.state.nc.us/docs/ec/policy/policies/2007policies.pdf
Further, NC 1503-4.2 identifies members of the IEP team here: (http://www.dpi.state.nc.us/docs/ec/policy/policies/2007policies.pdf, pg 90 of pdf)
(a) General. The LEA must ensure that the IEP Team for each child with a disability includes--
(1) The parent(s) of the child; (NOTE: Parents are listed as the NUMBER ONE participants. Think that means anything?)
NC 1503-4.3 identifies Parent participation here: (http://www.dpi.state.nc.us/docs/ec/policy/policies/2007policies.pdf, pg 91 of pdf)
(a) Public agency responsibility--general. Each LEA must take steps to ensure that one or both of the parents of a child with a disability are present at each IEP Team meeting or are afforded the opportunity to participate, including--
(1) Notifying the parent(s) of the meeting early enough to ensure that they will have an opportunity to attend; and
(2) Scheduling the meeting at a mutually agreed on time and place. (NOTE: And here's that pesky clause again about the meeting needs to occur at a mutually agreed upon time and place. Remember, parents can't make the next meeting on the "as scheduled date." Here's an idea: Reschedule the meeting!)
(c) Other methods to ensure parent participation. If neither parent can attend an IEP Team meeting, the public agency must use other methods to ensure parent participation, including individual or conference telephone calls, consistent with NC 1503-5.4 (related to alternative means of meeting participation). (NOTE: There's this clause again too. Keep in mind the written notice - via email - the district provided to the parents did not include an explanation of what other means the district may be willing to offer - if the parents could be available on this date, which they can't, so this point is rather moot but... - so that the parents might participate in this meeting on the scheduled date.)
(d) Conducting an IEP meeting without a parent in attendance. A meeting may be conducted without a parent in attendance if the public agency is unable to convince the parent(s) that they should attend. (NOTE: In this case, it is the parents who have repeatedly indicated their willingness to attend IEP meetings, in writing no less, but for some reason the district appears to remain unconvinced, and as such, appears to believe that future IEP meetings don't need to include any parents).
In this case, the LEA must keep a record of its attempts to arrange a mutually agreed on time and place, such as-
(1) Detailed records of telephone calls made or attempted and the results of those calls;
(2) Copies of correspondence sent to the parent(s) and any responses received (Email/fax sent indicating parental willingness to participate in IEP meeting, but please reschedule, CHECK!); and
(3) Detailed records of visits made to the parent’s home or place of employment, if appropriate, and the results of those visits.
So, it would appear that if the district does proceed with the IEP meeting “as scheduled” without the parents in attendance, the district would be doing so in flagrant disregard of the law.
But...these are crazy times we live in.
However, it's our opinion that the district is "misinforming parents"of their parental rights, is informing parents in writing of the district's intention to flout federal and state laws, and we’re sticking to it, but will the N.C. Department of Public Instruction, with whom we’ve contacted for their opinion, side with us, or side with the district? Only time will tell….
As we've said, stranger things have happened.
We’ll keep you informed…