U.S. Department of Education Weighs In On When LEAs Must Communicate With Parent's Attorney

GirardEdwards_image05Author: Eric Stevens, Attorney at Law 

In response to a request from a parent’s attorney, the U.S. Department of Education’s Office of Special Education Programs (“OSEP”) states that the Individuals with Disabilities Education Act (“IDEA”) does not have a general requirement that local educational agencies (“LEAs”) communicate with a parent’s attorney.  (Letter to Marcus, 117 LRP 2469 (OSEP,, Dec. 27, 2016.)

The IDEA allows parents to use an attorney in specific circumstances.  A parent (and LEA) has a right to legal representation at a due process hearing.  34 CFR § 300.512(a)(1).  A parent may also be represented by one or more individuals of his or her choice at an individualized education program (“IEP”) team meeting.  This representative may be an attorney as long as the representative has “knowledge or special expertise regarding the child.”  34 CFR § 300.321(a)(6).

In these situations, OSEP believes that the IDEA requires LEAs to communicate with a parent’s attorney as the parent’s designated representative.  However, as OSEP explains, the IDEA has no general requirement that LEAs communicate with a parent’s attorney in situations where the IDEA does not affirmatively give parents the right to representation.  While OSEP implies that an LEA can insist on communicating directly with a parent in other circumstances, OSEP reminds us that its opinion is only “informal guidance” and not legally binding.

When a parent retains an attorney, we recommend that you confer with your own legal counsel and give careful thought to any direct communication with the parent’s attorney.  In some situations you may be able to bypass the parent’s attorney and communicate directly with the parent.  In fact, parent participation in the special education decision making process is vitally important. State and federal law establish various procedural safeguards that guarantee parents an opportunity for meaningful input into all decisions affecting their child’s education. Generally speaking, direct communication with the parent is critical to ensure meaningful participation in the IEP process and to ensure that the child’s needs are met.

Keep in mind that different rules apply to attorneys.  An attorney cannot communicate directly with a parent or an LEA if the attorney knows that the other party is also represented by an attorney.

 

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