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.