Where do you draw the line between pre-IEP-meeting preparation, which the law allows, and “predetermination” prior to the meeting, which can get schools into hot water? This was one topic discussed during our recent Franczek webinar, IEP Season is Coming . . . Are You Ready?, which included a “top 10” list of issues to keep in mind heading into the IEP season. We encourage you to watch the 30-minute webinar, which is available on demand on our website, but want to dig in on one issue raised in it: A major mistake that can turn permissive pre-IEP-meeting planning into prohibited predetermination. What is it? How do you avoid the risk? Read on!
As our webinar explained, teams can and should pre-meet to plan for IEP meetings. It is very important to be prepared for each IEP meeting, and coming together without the parents before the IEP meeting can be a key part of that preparation. IDEA regulations explicitly allow “preparatory activities . . . to develop a proposal or response to a parent proposal that will be discussed at a later meeting.” Examples of permissible topics of discussion at a pre-meeting might include sharing information about present levels of performance and the student’s current progress, identifying potential problems that should or may be raised at the meeting, brainstorming possible solutions to those problems, and creating an agenda to help keep the team on track at the meeting.
The law requires parents to be involved in decisions about their students, however, including for identification, evaluation, and placement. Parents can become concerned and file complaints when they feel that decisions about their child’s special education have been made without their input. Although there are many red flags that can lead to a predetermination claim, one of the biggest arises when draft materials are prepared during pre-meetings and then presented to the parents and student at the IEP meeting.
As our webinar explained, schools can and in many cases should draft certain materials, including goals, accommodations, and behavior intervention plans, before an IEP meeting. But how do you avoid the risk of a predetermination challenge after all is said and done? Here are some key tips:
- Take steps to notify the parents and the team that drafts are drafts and are just meant as a jumping off point for discussion with the parents, not final documents. Consider writing “DRAFT” conspicuously on each page of the draft document. Providing a copy of the draft beforehand can allow the parents to prepare and have the opportunity to respond at the meeting.
- Leave room for negotiations at the IEP meeting and actively engage in those negotiations. Solicit and listen to parent input at the meeting, and make changes to the draft documents that are warranted. OCR has relied on the fact that a team accepting a draft without changes as the final version to find that school districts improperly predetermined outcomes prior to IEP meetings, so this should typically be avoided.
- One exception to that rule is if a parent does not make any suggestions for changes. Document that fact as well as that the parent received a copy of and understood the draft document.
- Placement decisions and eligibility determinations typically should be made at the IEP table and are generally not appropriate to prepare in draft form before a meeting.
Taking these steps will not necessarily prevent a predetermination complaint, but they will make such a complaint harder to sustain.