Most of my professional decisions start with asking myself, “how can we get sued” from this action. We live in a litigious society as evident from the numerous case law regarding special education. A third of the Supreme Court cases surrounding special education are about attorney fees and liability. It is easy to get caught up in thinking that due process is an inevitable experience as a special education director. Here are some tips to avoid due process:
1. Communication
George Bernard Shaw said, “The single biggest problem in communication is the illusion that it has taken place” (Bernard Shaw, 2021). In my experience 9 out 10 problems arise from poor communication and could have been avoided entirely. As a special education director, one of my roles and responsibilities was to act as the Local Education Agency (LEA) representative in IEP meetings. When talking with the school team prior to a meeting to get a sense as to what the concerns are, teams would often tell me they were not sure. Baffled, I would press, questioning “what did the family say?”, and they were still not sure. In our tech heavy world we can over-rely on emails and text messages when a simple phone call is what is needed. School teams and families all want the same thing – whatever is best for the student. To ensure this, make sure the entire communication cycle takes place. Follow-up is key in effective communication. Was the message received? How was it perceived? Circle back to the family for discussion, and do not assume the message was received and understood. These tips take extra steps and time but will save you countless hours in the future.
2. Ensure a trained LEA representative attends the meeting
My biggest tip here is to have one person per role. There are five mandatory members to an IEP team: parent(s), special education teacher, general education teacher, individual to interpret evaluation results, and LEA representative. Due to staffing or convenience many schools have individuals act in multiple roles. For example the special education teacher might also be the individual to interpret evaluation results and the LEA representative. This “on the surface” time and staff saving idea can lead to more problems and possibly due process.
Individual with Disabilities Education Act defines an LEA as, “a representative of the local educational agency who—
(I) is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;
(II) is knowledgeable about the general education curriculum; and
(III) is knowledgeable about the availability of resources of the local educational agency;” IDEA (2019).
Subsection III is the downfall everytime in my experience. Imagine a special education teacher is fulfilling three roles including the LEA representative. How can we expect a teacher to know all the available resources and then be able to allocate those resources. It is a recipe for disaster and unfair to the special education teacher.
Invest in training your LEA representatives in the facilitated IEP process. “This workshop trains educators on the best way to conduct an IEP meeting. Participants learn and practice skills that allow them to facilitate IEP meetings, recognize and prevent conflict, and focus on constructive outcomes that promote student achievement” (Key2Ed, 2021). There are numerous opportunities during an IEP meeting to misspeak and put the school and district in a disadvantageous position. I was recently in an IEP meeting working on accommodations for a student and a school team member said, “I’m not sure we do that here.” Had this team member attended the workshop she would know that is not something to say at an IEP meeting and focused the accommodations on the student’s needs, not what is currently available at the school. The facilitated IEP training was designed to support not only facilitating an IEP meeting but also to prepare LEA representatives for potential pitfalls. Several professional organizations like CEC and CASE offer this workshop, as well as some state education departments.
3. Prior Written Notice
My mentor always said the first place a lawyer looks to are the PWNs. In my experience working as a director of special education compliance, the PWN was often completed as part of a checklist and as an afterthought. A PWN is a, “Written notice that meets the requirements of paragraph (b) of this section must be given to the parents of a child with a disability a reasonable time before the public agency—
(1) Proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child; or
(2) Refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child (IDEA, 2017).
Think of the PWN as a summary of anything considered, decisions made, and requests denied; plus a description and explanation as to why those decisions were made. Avoid pre-populated PWNs and canned statements that are generic. During the meeting take notes of the discussion and highlight items the team considered and agreed to implement and considered but did not agree to implement. Use the blank PWN as a guideline for taking notes. The PWN must be sent to the parents and reviewed prior to any changes in the IEP. Do not miss your deadlines!
4. Send home a draft IEP and agenda
Co-create the agenda with the family. Call the parent before the meeting to find out what they would like to see included and considered. If you are the LEA representative, review any concerns the school team may have. This way you are fully prepared to facilitate the IEP meeting. Remember you are only seeking information to support the IEP meeting. No decisions can or should be made outside of the IEP meeting, this would be predetermination and a fast track to due process.
The second part of this tip is to send home a draft IEP. You can only send home a draft IEP for the annual IEP review meeting, not initial IEP meetings (again predetermination). Parents have to have the opportunity to fully participate in the IEP meeting. Often families find it difficult to participate meaningfully when they are just presented with the information for the first time. As professionals we are used to seeing and reviewing data and making decisions based on the data. Some of our families do not have the same experience and also have an emotional reaction because we are talking about their child. I know when my son was evaluated I found it difficult to keep up because of my emotions and I was a special education director at the time! Give the family the gift of time to review the draft IEP, develop questions, and a safe place to share concerns.
5. Decision matrix-keeps emotion out of it
As mentioned above parents are taking in information from a multi-lens perspective. First from an emotional stance and second how to support their child. Parents also do not typically have a background in special education law. Navigating the special education process as a parent can be confusing, frustrating, and emotional. All parents want the best for their child and come to IEPs meetings advocating for this. However, IDEA does not provide the “Cadillac” version of education, but an education designed to make progress with challenging goals. This can lead to a disconnect between families and the school teams.
Create a decision matrix that includes all required components of the IEP to show the connection between the Present Levels of Academic Achievement and Functional Performance (PLAAFP), goals, services, and accommodations/modifications. This tool will help you as the IEP meeting facilitator keep the meeting on track and focus on the student’s current needs. I’ve used this tool many times and have found it to be beneficial.
Final Thoughts
Communication is at the heart of our work and can prevent misunderstandings that lead to conflict. There are no shortcuts in communication but the return on investment is priceless. Tighten up the communication cycle and lead with an open mind to avoid due process.
References:
G. Bernard Shaw. 40 team communication quotes to inspire your team. (2021). https://www.tameday.com/team-communication-quotes/
IDEA. Section 1414(d). (2019). https://sites.ed.gov/idea/statute-chapter-33/subchapter-ii/1414/d
IDEA. Sec. 300.503 Prior notice by the public agency; content of notice. (2017). https://sites.ed.gov/idea/regs/b/e/300.503
Key2Ed. Facilitated IEP Workshop. (2021). https://www.key2ed.com/index.php/services/facilitated-iep-workshop