The Individualized Education Program, or IEP, is often regarded as the “cornerstone” of special education. It is the written document that describes a student’s educational needs and details the special education and related services the school district will provide to address those needs. The Individuals with Disabilities Education Act (IDEA) has always laid out specific requirements about what a student’s IEP must contain and who must be involved in the development of the IEP. However, IDEA 2004 – the latest version of the law – made some significant changes regarding the involvement of IEP team members. Now, the law allows a parent of a child with a disability and the school district to agree that the attendance of an IEP Team member at an IEP meeting is not necessary under certain conditions. This article addresses important aspects of these changes.

WHY: Congress made these changes in response to concerns expressed during the time of IDEA’s reauthorization. In issuing its report accompanying the bill to reauthorize IDEA in 2004, the U.S. Senate noted that “(T)the committee has heard from many individuals that the amount of time spent preparing for and attending IEP meetings, and the number of individuals required to attend such meetings, reduces the amount of time that personnel spend with students. Scheduling IEP meetings involves coordinating the schedules of a number of individuals, including parents, who are balancing work and family demands. At the same time, a certain member of the IEP team may not be needed at an IEP meeting if the topics of discussion do not involve that member.   Or, an IEP meeting may be scheduled, but an IEP member later learns that they have an unavoidable scheduling conflict, which could force the cancellation of the IEP meeting…To address these concerns, the bill provides parents and schools with greater flexibility regarding the personnel attending IEP meetings.”    

In issuing the final federal regulations for IDEA in 2006, the U.S. Department of Education offered this regarding changes to IEP Team member attendance: “allowing IEP Team members to be excused from attending an IEP Team meeting is intended to provide additional flexibility to parents in scheduling IEP Team meetings and avoid delays in holding an IEP Team meeting when an IEP Team member cannot attend due to a scheduling conflict.”  

WHEN: IDEA 2004 law and regulations spell out exactly who and under what circumstances members of the IEP Team can be excused. Specifically, there are two situations when IEP team members can be excused from attending the IEP meeting, in whole or in part:

• If the member's area of the curriculum or related services is not being modified or discussed in the meeting.
• If, when the member's area of curriculum or related services is being discussed, the member submits written input to the parents and the team prior to the meeting.

WHO: IDEA 2004 did not change the required membership of IEP Teams. However, IDEA 2004 federal regulations made it clear which members of the IEP Team can be excused from attending. The required members are listed below. Those who can be excused appear in bold.

• The student's parents;
• Not less than one regular education teacher of the student (if the student is, or may be, participating in the regular education classroom);
• Not less than one special education teacher or, where appropriate, not less than one special education provider ;
• A representative of the school district who is: qualified to provide, or supervise the provision of, specially designed instruction; is knowledgeable about the general education curriculum; and is knowledgeable about the availability of the school district's resources ;
• An individual who can interpret the instructional implications of evaluation results (this may be a school psychologist or may be one of the teachers or the district representative listed above);
• 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;  
• Whenever appropriate, the child with a disability.

It is the responsibility of the school district to determine the specific personnel to fill the roles for the required participants listed above; however, the U.S. Department of Education had stated that the regular education teacher who serves as a member of a child’s IEP Team should be a teacher who is, or may be, responsible for implementing a portion of the IEP so that the teacher can participate in discussions about how best to instruct the student. If a child has more than one regular education teacher responsible for carrying out the IEP, the school district can designate which teacher or teachers should serve on the IEP Team. A district might also decide that each teacher attend only the part of the meeting that involves discussion of the teacher’s area of the curriculum.

HOW: IDEA 2004 law and regulations spell out how the allowable IEP Team member excusals must work.

·          To excuse a member because the member's area of the curriculum or related services is not being modified or discussed in the meeting, parents must provide written agreement.

IDEA does not define the term “agreement,” and school districts have wide latitude about the content of such agreements. However, parents should expect to get such requests to excuse a member or members well in advance of the meeting, providing ample time to express disagreement if they so choose. It might be difficult to predict just what areas or related services might be discussed during the course of an IEP meeting. Parents have the right to refuse to agree with any request for excusal. In addition, while there is no requirement in IDEA law or regulations that the excused IEP Team member agree to be excused from the meeting, parents would be wise to ask for evidence of such an agreement.

·          To excuse a member when the member's area of curriculum or related services is being discussed, the member must submit written input to the parents and the team prior to the meeting and the parents must provide informed written consent.

“Consent” means that the parent has been fully informed in his or her native language, or other mode of communication, and understands that the granting of consent is voluntary and may be revoked at any time. Therefore, for this type of excusal, the school district must ensure that the parent fully understands that the parent is consenting to excuse an IEP Team members from attending even though the member’s area of the curriculum or related services is being changed or discussed and that if the parent does not consent the IEP Team meeting must be held with that member in attendance.

There is no requirement regarding how far in advance of the meeting parents must be provided with the written input under this excusal provision – only that it must be provided in advance. There is also no requirement regarding the specific format or content to be included in the written input. Therefore, parents agreeing to such excusals might want to request the written input far enough in advance of the meeting to allow for careful review and, if necessary, to revoke the consent for excusal if the input is insufficient or if, after reviewing the input, the parents feel that the member should, in fact, attend the IEP Team meeting.

These excusal provisions apply whether the school wishes to excuse an IEP team member from attending either the entire meeting or part of the meeting. Parents should expect IEP Team members to be present for the entire meeting unless an excusal has been requested and agreed upon prior to the meeting.

It is up to the school district to determine the individual in the district with the authority to make the agreement (or provide consent) with the parent to excuse an IEP member from attending. The designated individual must have the authority to bind the district to the agreement with the parent or provide consent on behalf of the district.

Tips for Parents

1.        Read the meeting notice required to be provided in advance of each IEP Team meeting to carefully review who is scheduled to attend and communicate any concerns prior to the meeting;

2.        Ask that any requests for excusals be provided at the same time as the meeting notice;

3.        Request that written input from excused members be provided well in advance of the meeting date;

4.        Be prepared to cancel or adjourn an IEP Team meeting if the school fails to give adequate notice of a required team member’s absence;

5.        Don’t feel pressured to excuse a member.   Remember, parents always have the right not to agree or consent to the excusal of IEP Team members.

Endnote

Whether these provisions will provide the flexibility intended by Congress while preserving the integrity of the IEP Team meeting process remains to be seen. Recent reports from the two main teacher unions — the National Education Association and the American Federation of Teachers — have voiced concern that some districts are abusing the provision that allows an LEA and parent to consent to the excusal of an IEP team member. And, in issuing final IDEA regulations, the U.S. Department of Education cautioned that school districts may not routinely or unilaterally excuse IEP team members from attending IEP team meetings and to remember that parent agreement or consent is required in each instance. These provisions were designed to provide flexibility, but should not be overused.

Candace Cortiella is Director of The Advocacy Institute (www.AdvocacyInstitute.org), a nonprofit organization dedicated to the development of products, projects and services that work to improve the lives of people with disabilities. The mother of a young adult with learning disabilities and a disability rights advocate for over 17 years, she lives in the Washington, D.C. area.