Draft IEPs

SES Spring 2010
Solving Problems Early,
Inexpensively, And Without Attorneys
A Stitch In Time
Saves Nine
1. Before the Meeting: Front-loading the IEP
2. During the Meeting: Wash, Rinse & Spin
3. After the Meeting: Ironing out the Problems
Rule of Thumb
All communication (verbal and written) must be child-centered
Rule of Thumb
• Child-centered communication takes the emphasis away
from the personalities of the participants and places it
where it should be – on the child.
• Child-centered communication can deescalate tense
situations, placing the focus on what the parties have in
• Child-centered communication shows judges and
compliance investigators that despite the pressure, the
District’s concern is serving the needs of the student.
Before the Meeting
Front-loading the IEP
Before the IEP
• Train staff in IEP procedures
– Judges are lawyers, not educators:
procedural compliance is often more
important to FAPE than substantive
– Procedural compliance prevents advocates
and attorneys from gaining the leverage to
widen disputes
• Districts may hold meetings without
parents for the purpose of preparing for an
IEP team meeting
• These meetings are usually considered to
be “preparatory activities … to develop a
proposal or response … that will be
discussed at a later meeting" (34 C.F.R.
• Discuss data, review recommendations
and solutions to potential problems
• Coach nervous staff members
• Develop an agenda
• Fix any deficiencies in draft IEP
• Gather evidence of progress
– Ensure that there is adequate data
– Understand strengths and weaknesses
– Make sure IEP team members can explain
data to parent
• Data focuses conversation on facts, not
• Progress = educational benefit
Assessment reports
Test scores
Portfolios and work samples
Classroom assessments and anecdotal
Review development of the IEP
over time, especially goals
 Present levels of performance
 Goals – baseline expectations
 Placement – increasing independence?
Less restrictive?
 Teacher reports
Draft IEPs
• Districts may prepare a draft IEP and
present the draft to the parents at the IEP
team meeting
• However, exercise caution when using
draft IEPs
• Consider drafting only time-consuming
parts of IEP (e.g., goals and objectives)
• Do not make any final decisions during
your pre-meeting!!
Draft IEPs
OCR Example
• District prepared a draft IEP and distributed at
the IEP team meeting
• District informed the team that the draft was a
starting point for discussion and subject to
• Parent participated and provided input regarding
the IEP
• The draft IEP was modified to reflect Parent’s
input and suggestions
(New Hanover County (NC) Schools (OCR 2007).)
Draft IEPs
OCR Example
• District did not predetermine Student's
services or placement
• All members of the team, including Parent,
actively participated in the discussions and
development of Student’s IEP
• There was no evidence that the draft IEP
curtailed Parent’s participation in
developing Student’s IEP
(New Hanover County (NC) Schools (OCR 2007).)
Practice Pointer
• Write “DRAFT” on each page of the draft IEP
• Consider sharing your draft IEP with parents before the
• At the IEP team meeting, announce that the document is
a draft subject to change
• Review each page and solicit parent input and/or
• Frequently check for parent understanding and
document those checks
• Document each parent change to and/or disagreement
with the draft IEP, team response and changes to draft
IEP Team Notice
• Be clear as to purpose of meeting:
– Parents can prepare for the discussions
– Alleviate parent anxiety
– Encourage the team to focus
– Assist in expediting the meeting
IEP Notice Requirements
The IEP notice must:
• Indicate the purpose, time, and location of
the meeting and who will be in attendance
• Inform the parents that they may invite
other individuals to attend the meeting
who have knowledge or special expertise
regarding the student
(34 C.F.R. § 300.322(b)(1).)
Practice Pointer
• If the district plans to have an attorney
attend the IEP team meeting, include the
attorney on the IEP team meeting notice
• Failing to include the attorney on the
notice can result in a request that the
meeting be postponed
During the Meeting
& Spin
Assign an IEP team member solely
in charge of establishing
the human connection
Fix Personality Conflicts
Sometimes particular folks just don’t get along!
IEP Team Member Excusal
• IEP team members can be excused, or not
required to attend, if the parents and the
district agree, in writing, that the
attendance of the member is not
• The excused member must submit written
input if the meeting involves the member’s
Which Teachers to Include
Case Example
• Student was eligible for services from the District
• Student attended a private preschool
• Student’s private preschool teacher attended the
Student’s triennial IEP, and acted as the general
education teacher
• A general education teacher from District did not
participate in this IEP team meeting
(Yucaipa-Calimesa USD v. Student (OAH 2008).)
Which Teachers to Include
Case Example
• Failure to include a credentialed general
education teacher with knowledge of the
district’s general education program was a
procedural violation of the IDEA
• The private school teacher could not provide
useful input regarding the possibility or extent of
Student's contact with general education peers
at a district school
(Yucaipa-Calimesa USD v. Student (OAH 2008).)
Team Input
• Specific stories
work best
• Humanize your
Parent Participation
• School districts must ensure that parents
have the opportunity to “meaningfully”
participate in developing the student’s IEP
• This means parents must have an
opportunity to discuss a proposed IEP and
have their concerns considered by the IEP
Parent Participation
Case Example
• District attempted to schedule an IEP meeting
and Parent did not respond
• Later, Parent rescheduled the meeting twice
• After third request to reschedule, District held
the IEP team meeting without Parent
• District sent IEP home and offered to review;
however, Parent rejected the offer
• The following year, Parent did attend but
stormed out before the meeting was completed
(Winkelman v. Parma School Dist. BOE (N.D. Ohio 2009).)
Parent Participation
Case Example
• The court found that District made a good
faith effort to engage Parent in the IEP
• While noting that District did commit some
errors, Parent’s withdrawal from the IEP
process in essence prevented Parent from
collecting the reimbursement requested
(Winkelman v. Parma School Dist. BOE (N.D. Ohio 2009).)
Avoid Predetermination
• Participating in IEP team meetings with an open
mind and a willingness to listen to parents
fosters communication and parent trust
• When you avoid saying “we don’t do that here”
or “we will not consider anything other than [x],”
you are working collaboratively and amicably
with parents
• This collaboration helps to build a rapport that
can be essential in avoiding disputes
Questions to Consider
Regarding Predetermination
• Did the district come to an IEP meeting
with an open mind and several options to
offer for discussion with all team
• Did the district suggest different potential
• Did the district discuss and consider any
parent suggestions and/or concerns
regarding the child's program?
Case Example
• At the first IEP meeting, team discussed placing
Student in a NPS once he demonstrated certain
• Team did not offer NPS
• At later IEP meetings, Parent believed District
would offer their preferred NPS placement
• The team offered a public school placement
(Student v. Murrieta Valley USD (OAH 2007).)
Case Example
• Parent and their advocate had a
meaningful opportunity to participate in all
placement discussions
• The mere fact that District did not offer the
Parent’s preferred placement was not
evidence of predetermination
(Student v. Murrieta Valley USD (OAH 2007).)
Responding to Dispute
• Preempt (identify disputes before they
arise, but don’t predetermine)
• Acknowledge (use “I” statements)
• Deescalate (operate in your comfort zone)
• Respond (again, based on the needs of
Don’t be afraid to punt:
• Forced decisions
can be wrong decisions
• Typically harder to fix
items than it is to get
them right the first time
Practice Pointer
• Always follow-through!
– Unanswered requests or unkept promises
frustrate parents to the point where they
search for a louder voice
After the IEP
Ironing out the Problems
Issue Spot: Run the IEP
Through the Connect-the-Dots
Present levels
Areas of Educational Need
Related services
• Consider whether IEP is substantively
– Designed to meet unique needs
– Reasonably calculated to provide educational
benefit (not maximize, but more than trivial)
– Services comport with IEP
– Least restrictive environment
Target Range
(now IDEA 2004)
• Consider whether IEP had procedural
missteps that:
– Impeded right to FAPE
– Significantly impeded parents’ right to
meaningfully participate in the decisionmaking process
– Caused educational deprivation
Fix Mistakes by:
Reconvening IEP team
Sending clarifying letter
Sending prior written notice
Convening informal meeting
Informal Dispute Resolution
Roadblocks To Resolution
• Parent’s dislike, or distrust, of district staff
• Members’ misunderstanding of each
other’s positions
• Clash between parent’s representative
and district staff
• Parent’s request that an IEP include
certain information
Resolve Disputes by:
• Convening an informal meeting with select
members of the student’s IEP team
• Asking a trusted staff member to call the
• Having a district expert contact the parents
outside of an IEP team meeting
Practice Pointer
• Include only a few trusted staff members
• Obtain parent agreement that meeting is not
an IEP meeting
• Have specific proposals ready to discuss
• Keep an open mind and actively listen to
• Document recommendations and
Procedures for
Early Dispute Resolution
• Consider developing procedures for early
dispute resolution
• The goal of early dispute resolution is to
resolve a dispute quickly, efficiently,
cheaply, and with the best interests of the
student as the top priority
Terms Considered During
Early Dispute Resolution
Student placement and/or related services
Status of the IEP in dispute
Stay put
Attorney fees
Next steps
Settlement Agreements
• A settlement agreement is a binding
• Provides protection for both the district
and the parents
• By including a waiver, a district can avoid
later litigation on the same issues
The Last Word …
• Empower staff to resolve issues early
• It’s good for
– students,
– parent relations, and
– the district’s bottom line!
Communicate in a manner that your
grandmother would understand!
Enjoy your lunch!
Presentations will resume at 1:00
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