Surprise! New Guidance from OSEP on How to Address When Parents Unexpectedly Bring An Attorney to Their Child’s IEP Meeting
In a recent guidance letter, the federal Office of Special Education Programs (“OSEP”) explained that a local educational agency (“LEA”) may not condition holding an IEP meeting on a parent’s attorney not participating or on the parent providing prior notice of its intent to invite the attorney. Letter to Andel, 116 LRP 8548 (February 17, 2016).
In Letter to Andel, OSEP reiterated its longstanding position that the attendance of attorneys at IEP meetings “should be strongly discouraged” due to the potential for creating an adversarial atmosphere. Despite this position, OSEP pointed out that IDEA’s implementing regulations permit a parent or an LEA to invite to the IEP meeting individuals with special expertise regarding the child. However, while the regulations require the LEA to notify the parent in advance regarding who will attend an IEP meeting, there is no corresponding obligation on the part of the parent. OSEP stated that in the “spirit of cooperation,” the parent should inform the LEA ahead of time if he/she intends to bring an attorney. Often times, attorneys, as a matter of professional courtesy, will notify the LEA or its attorney if they intend on participating in an IEP meeting. However, there is nothing in the IDEA or its implementing regulations that would permit an LEA to conduct an IEP meeting on the condition that the parent’s attorney not participate. Therefore, when a parent unexpectedly brings his/her attorney to an IEP meeting, OSEP explained that it would be permissible for an LEA to reschedule the meeting to another date and time so that it could include its own attorney under the following circumstances: (1) the parent agrees to reschedule, and (2) the postponement does not result in a delay or denial of FAPE to the child.
Even if every effort is made to resolve a special education due process dispute, parties may still find themselves in mediation. Being prepared for mediation will often increase a party’s opportunity for success. A successful mediation can help control litigation and legal costs. Below, please find 5 tips to help prepare for mediation.
1. Analyze the Case.
Often times parties entering mediation will have an idea of the issues in dispute. Perhaps the parents prefer a different placement or believe additional services should be added. Not only is it important to understand these issues, but it is also important to analyze the facts of each case headed to mediation under the applicable law. It is important to understand what legal obligations exist within the case’s context. Arriving at mediation with this understanding can help the parties craft settlement proposals tailored to the individual issues in dispute.
2. Prepare and Organize the File.
Frequently, administrators, teachers and other specialists, will have access to a student’s records (e.g., IEPs, assessment reports, progress reports, report cards, disciplinary records, service logs, correspondence). This can create challenges as important documents may not be collected in one location. Often parties will reference a certain document that the party may feel is essential to their interest. If that document is missing or not readily available, the responding party’s response will be limited. Confirming that all the relevant information is organized and available will help ensure a successful mediation.
3. Identify Interests.
Parties in mediation often focus on the bottom line purpose for the mediation. Most likely, both parties are focused on the mediation’s potential desired outcome. Although it is important to have an ideal goal in mind, maintaining cemented desired outcomes can limit mediation’s effectiveness. Instead, focusing on interests can open parties up to potential resolutions that they would not have considered by simply focusing on a narrow goal. A party’s interest may be addressed through a method not previously considered. Identifying each party’s interests instead of focusing on the desired outcome can open both parties to considering viable alternatives.
4. Embrace Curiosity as a Problem Solving Method.
It can be easy to assume that a party’s position is clear cut and that the only way to resolve the dispute is to give the party what they have been demanding since the disagreement first surfaced. However, dogmatic adherence to such assumptions can limit the universe of potential settlement. Instead, curiosity can help both parties open up creative approaches to problem solving. Asking that a party clarify their interest can show that there is an interest in understanding and resolving the conflict.
5. Keep Talking.
Settlement conversations should continue even if the parties have been unable to reach a resolution in mediation. Frequently, parties unsuccessful at mediation will continue to discuss settlement. Roughly 98% of all due process filings resolve short of a hearing. (OAH 2014-15 Fourth Quarter Report). Therefore, almost all cases settle short of litigation. Continuing the settlement dialog even after mediation can greatly increase the opportunity for a settlement without a hearing.