It’s IEP Season once again and many parents are starting to get their IEP meeting notices. While perusing this notice for the individuals that will be attending your child’s IEP you notice a name that scares you!! For some reason the School District’s attorney has been listed as an attendee for the meeting and you are not sure what to do. Your first reaction is to tell the District that their attorney isn’t allowed to attend an IEP but unfortunately this is not necessarily the case. The IEP Team members consist of:
- the parents of a child with a disability
- not less than 1 regular education teacher of such child (if the child is, or may be, participating in the regular education environment);
- not less than 1 special education teacher, or where appropriate, not less than 1 special education provider of such child;
- a representative of the local educational agency who –
- is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;
- is knowledgeable about the general education curriculum; and
- is knowledgeable about the availability of resources of the local educational agency;
- an individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in clauses (2) through (6);
- at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and
- whenever appropriate, the child with a disability.
If you look closely at Number 6, “at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate” this would allow attorneys to attend if they meet the threshold of having knowledge or special expertise regarding the child. You would think that a School District attorney might not meet this threshold but unfortunately according to IDEA, “The determination of the knowledge or special expertise of any individual described in paragraph (a)(6) of this section shall be made by the party (parents or public agency) who invited the individual to be a member of the IEP.” This clause works both ways and allows the parents to determine if their invited IEP members meet this threshold as well.
Now you might be thinking that it seems like there is nothing you can do but you would be wrong. Wrightslaw has a wonderful memorandum on the subject written by a law school student. As part of this memorandum he shares a letter to Clinton that was written by the Department of Education in response to this exact question dated July 23, 2011:
Dear Senator Clinton:
This letter is in response to an inquiry from your constituent, x, who contacted you regarding the attendees at the individualized education program (IEP) meetings held to determine special education and related services. Specifically, x believes that the local school district is inappropriately inviting the district's attorney to the IEP meetings, which in New York are called Committee on Preschool Special Education (CPSE) meetings. He has requested your assistance regarding his rights under the Individuals with Disabilities Education Act (IDEA).
The regulations implementing the Individuals with Disabilities Education Act (IDEA) are found at 34 CFR Part 300 (March 12, 1999). Section 300.344 addresses the membership of the IEP team. X has highlighted §300.344(a)(6) which allows attendance at the IEP meeting, "at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate."
The language at §300.344(a)(6) adopts verbatim the statutory language at section 614(d)(1)(B)(vi) of the IDEA. Under this section, parents and public agencies have the discretion to bring to IEP meetings as IEP team members other individuals who have knowledge or special expertise regarding the child. Under this statutory provision, the parent's and public agency's right to bring other individuals to the IEP meeting at their discretion must be exercised in a manner that ensures that all members of the IEP team have the knowledge or special expertise regarding the child to contribute meaningfully to the IEP. Paragraph (c) of §300.344 provides that the determination of the knowledge or special expertise of any individual described in paragraph (a)(6) shall be made by the party (parents or public agency) who invited the individual to be a member of the IEP team. The Federal rules pertaining to this situation do not disallow the school district from inviting the district's attorney to the IEP meeting.
However, as the answer to question 29 to Attachment A to the IDEA ’97 regulations at 34 C.F.R.
Part 300 explains:
The presence of an attorney could contribute to a potentially adversarial atmosphere at the meeting. The same is true with regard to the presence of an attorney accompanying the parents at the IEP meeting. Even if the attorney possessed knowledge or special expertise regarding the child (§ 300.344(a)(6)), an attorney’s presence would have the potential for creating an adversarial atmosphere that would not necessarily be in the best interests of the child. Therefore, the attendance of attorneys at IEP meetings should be strongly discouraged.
64 Fed. Reg. 12478.
The full and original letter to Clinton can be found on the U.S. Department of Education’s website here. As you can see from the letter, although School Attorneys are allowed to attend, it is strongly discouraged. I highly recommend downloading a copy of this letter and forwarding it to your School if they have invited the School Attorney. Make sure to include a cover letter requesting the attorney be removed from the IEP Team and cite the letter to Clinton as the basis for your request. I would also state that you are hopeful that the IEP meeting can be a collaboration between all involved and that the attorneys presence will make this hard to accomplish.
If you are unsuccessful getting the School to remove their attorney from the invite list I would suggest you consult an attorney prior to attending the meeting. If you do not have, or know of any Special Education attorneys try finding one using the find an attorney tool on www.COPAA.org