The viability of any organization is dependent upon properly documenting procedures so as to minimize risk and improve productivity and performance.  In the special education world, procedures are an important component of a school district’s compliance with IDEA. A primary example is the extensive procedural requirements related to the process and development of IEPs.  Hearing Officers and courts have found violations of IDEA where a break-down in these important procedures have occurred amounting to a denial of FAPE.  However, not all breakdowns in process will constitute a denial of FAPE.  To impose liability, procedural insufficiencies must: impede the student’s right to FAPE; significantly impede the parents’ participation; or cause a deprivation of an educational benefit.  See, 34 C.F.R. 300.513.

Ruinous actions of school districts have been found in the following areas:  predetermination of placement; failure to consider parental input; denying parent participation; failing to have the proper members present for IEP team or Manifestation Determinations-just to name a few.

How can you minimize the risk?  Use the following bona fide mistakes to offer your staff real world understanding of the importance of IDEA procedures.

Denying Parents’ Participation

Is it okay for a planning meeting for transition to be transformed into an IEP meeting without the procedural step of issuing an invite?

 No1 An Anchorage Alaska district found itself in violation of the IDEA when a meeting held at parents’ request for a purpose other than an IEP discussed IEP programming.  The parents’ requested a meeting to discuss the student’s transition to a new school. The special education department chair set up the planning meeting.   The participants at the meeting reviewed the student’s current IEP goals and objectives with respect to transition needs.  Following that discussion, the director raised the issue of extended school year services.  The parent objected.  And filed a complaint with the Alaska Education Department which found the District’s actions interfered with the parents’ ability to participate in the ESY discussion and was a denial of FAPE.

IDEA regulations specify that a parent of a child with a disability must be given a chance to participate in meetings regarding the identification, evaluation and placement of their child.

This District could have saved itself by either issuing an Invite to an IEP or keeping to the parents’ requested agenda for the meeting.

Failing To Properly Compose Manifestation Review Team

Is it permissible to rely upon the opinions of professionals who do not work directly with the student?

No1 A Colorado school district held a manifestation determination review meeting to review whether or not a child’s autism was related to his statements about shooting people and referencing Columbine.  The student was alleged to have told other students that he wanted to hold the world record for killing in a school shooting. The police were called and the student was admitted for 72 hours.  The hospital concluded he wasn’t homicidal.  The school district’s MDR team was comprised of parents, the student, an autism specialist, the special education coordinator, a school psychologist, the case manager and the principal.  At first glance, this team has professionals qualified to review the circumstances of the student’s misconduct.  What went wrong?  The case manager had never directly worked with the student.  Members must be familiar with the student’s unique needs.

Remember that individuals making a decision on whether or not the student’s misconduct is a manifestation of the disability, must be knowledgeable of the student’s individual needs.

Predetermination of Placement

If a school district is aware of a student’s needs is it permissible upon enrollment to identify the placement for student?

No1   A Pennsylvania school district found itself owing compensatory education to a student when its initial placement recommendation was made prior to the development of an IEP for student.  IDEA requires students to be educated in the “least restrictive environment” which permits them to receive meaningful educational benefit.  Based on the timing of the discussions regarding initial placement, the Hearing Officer found the District to have given limited consideration to the least restrictive environment consideration of FAPE.  Importantly, the placement decision is based on the child’s IEP.

The proper sequence for discussion of placement must occur after the IEP team has developed the educational program for the student.  The last thing for the IEP team to consider is where the program can be implemented.

If you have questions about the requirements for substantively compliant IEPs or desire tailored training and consultation to your professionals on compliance with the IDEA, please contact the Education Law Team at MBM at 412-242-4400.

*This article is the second in a series of ten providing guidance to schools on the provision of FAPE.

Christina L. Lane

Christina Lane is an accomplished school, municipal, labor and employment attorney representing public sector employers. She has extensive knowledge and experience with Title IX and often serves as a third-party investigator.