Five Tips To Avoid IEP Legal Troubles Julie J. Weatherly, Esq. Even with the best of intentions, members of special education teams may make legal mistakes when developing and implementing an individualized education program (IEP). School-based speech-language pathologists—and other service providers—should be trained to participate appropriately in decision making and to do their best to avoid ... Make It Work
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Make It Work  |   August 01, 2012
Five Tips To Avoid IEP Legal Troubles
Author Notes
  • Julie Weatherly, Esq., the owner of Resolutions in Special Education, Inc. (RISE), in Mobile, Alabama, has been working with school agencies in the area of special education for more than 26 years. Contact her at jjwesq@aol.com..
    Julie Weatherly, Esq., the owner of Resolutions in Special Education, Inc. (RISE), in Mobile, Alabama, has been working with school agencies in the area of special education for more than 26 years. Contact her at jjwesq@aol.com..×
Article Information
School-Based Settings / Make It Work
Make It Work   |   August 01, 2012
Five Tips To Avoid IEP Legal Troubles
The ASHA Leader, August 2012, Vol. 17, online only. doi:10.1044/leader.MIW.17102012.np
The ASHA Leader, August 2012, Vol. 17, online only. doi:10.1044/leader.MIW.17102012.np
Julie J. Weatherly, Esq.
Even with the best of intentions, members of special education teams may make legal mistakes when developing and implementing an individualized education program (IEP). School-based speech-language pathologists—and other service providers—should be trained to participate appropriately in decision making and to do their best to avoid stumbling into mistakes, particularly those legally fatal to the school district’s position that it has provided a free appropriate public education (FAPE). The following five tips may help SLPs avoid potential legal action.
Tip #1: Avoid “Predetermination of Placement”
Providing parents sufficient opportunity to participate in educational decision making is vital under the Individuals With Disabilities Education Act (IDEA). A “predetermination of placement”—defined as a district’s presentation to parents of one placement option and its unwillingness to consider other alternatives (such as other placements in the district or private agencies/schools)—will not only cause a parent to lose trust in school personnel, but may also lead to a court finding of a denial of FAPE.
“Predetermination of placement” could include actions such as fully developing and finalizing an IEP prior to meeting with the parents, or asking them to sign an IEP without discussing its contents fully. A specific scenario to avoid includes having a school staff meeting prior to the IEP meeting, completing the IEP, and leaving it with the SLP or special education teacher to present at a later time to the parents. Similarly, it may appear to be a predetermination if school personnel arrive at the annual IEP meeting with the IEP completed in full and ready to be signed by the parents. Although preparing drafts of IEP documentation is not prohibited, these drafts should be clearly presented to parents as drafts for discussion purposes only. School personnel should keep documentation about how parent input was considered and what, if any, changes were made to a draft as a result.
Tip #2: Make Recommendations Based Only On Student Needs
Sometimes, IEP recommendations are made based on factors other than a student’s individual educational needs—such as the availability of staff or services—that are not pertinent under IDEA. Avoid statements like, “I wish we could offer five sessions per week of speech-language services, but I’ve been told that two sessions is all I can offer.” If the student needs five sessions of speech per week to receive meaningful educational benefit, then the school district must offer and provide it. Similarly, avoid statements such as, “We always do it that way for our students with autism,” or “We’ve never done that before,” or “ASHA guidelines tell us that he no longer needs speech-language services.” Under IDEA, all team discussions must focus on what services are necessary for the individual student to receive meaningful educational benefit.
Tip #3: Cost Is Not the Sole Consideration
There is no dispute that providing special education and related services can be costly. However, cost is generally not a defense for a school district’s failure to provide services required to meet a student’s individual educational needs and to provide educational benefit. Don’t use cost limitations to respond to parental inquiries or requests to provide services. Saying, “I am sorry, but that would just be too expensive,” or, “Do you know how much it would cost if we did that for all our speech-language students?” is simply not helpful.
Tip #4: Be as Clear as Possible
Sometimes, vaguely stated service recommendations can lead to an argument that a parent was not provided sufficient information to make a decision about appropriateness of services. For instance, saying “services will be provided as needed” could lead to a parent’s misunderstanding of what “as needed” actually means. Similarly, offering “three to five speech-language sessions per week” is not sufficient to establish the district’s level of commitment for services. Be as clear as possible when recommending and describing proposed services to avoid future misunderstandings. If there are going to be variations in scheduling of services on the caseload, make that clear to the parents, so that they know what to expect in terms of service provision.
Tip #5: Properly Address the Issue of Extended School Year Services
IDEA regulations provide that each student with a disability be considered annually for extended school year (ESY) services—typically provided during the summer break. Under the regulations, each public agency must ensure that ESY is available and provided if a student’s IEP team determines, on an individual basis, the services are necessary to provide a FAPE to the student.
When considering and implementing ESY requirements, school personnel cannot limit ESY services to particular categories of disability or unilaterally limit the type, amount, or duration of those services. As a result, all school personnel must be aware of the school agency’s ESY policies and procedures and be trained to develop and maintain appropriate data to support ESY eligibility recommendations. Avoid statements like, “Speech-language services are not provided over the summer,” “Only students with autism get speech-language services during the summer,” or “Our ESY program runs from June 16 until July 19 for everyone,” as they reflect a lack of understanding of the proper standards for determining a student’s ESY eligibility. As with other recommendations for services, ESY recommendations must be based on the individual needs of each student.
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August 2012
Volume 17, Issue 10