Avoiding Procedural Errors in Individualized ...

Common Core State Standards

Avoiding Procedural Errors in Individualized Education Program Development Mitchell Yell, Antonis Katsiyannis, Robin P. Ennis, and Mickey Losinski

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Jeremy was a fourth-grade student with mild intellectual disability. On the morning of his scheduled individualized education program (IEP) meeting, Jeremy's mother brought him to school. When Mrs. Malaney, Jeremy's special education teacher, commented that his IEP meeting would begin in a few minutes his mother was surprised; she said she did not know that there was a meeting scheduled. Mrs. Malaney responded that she had given Jeremy a note to bring home, but that he had probably forgotten it in his backpack. After rearranging her morning schedule, Jeremy's mother said she could stay for the meeting.

Jeremy's mother had wanted her son's fourih-grade teacher to be at the meeting so they could talk about having Jeremy's tests read to him. Mr. Cleveland said that because Jeremy's teacher was currently in class she could not attend the meeting, and not to worry about the tests because Jeremy spent S hours a day in Mrs. Malaney's resource room. School policy did not allow for test modifications for students with intellectual disability, only for students with learning disabilities. Mr. Cleveland had another meeting in 15 minutes and said they needed to discuss Jeremy's goals and finish the IEP meeting so he would not be late.

made in the IEP process can be avoided when IEP teams understand the importance of the IEP, are familiar with the essence of serious procedural errors, and follow good practices.

When Jeremy's mother sat down to meet with Mrs. Malaney and Principal Cleveland, she asked if the meeting could be postponed because she wanted Jeremy's father and his fourth-grade general education teacher to attend as well. The principal told her that they could not reschedule the meeting; they needed to finish and sign the IEP that morning. Mr. Cleveland also explained that because he and Jeremy's teachers had already discussed and written most of the IEP, Jeremy's father did not need to be there.

We hope that this scenario does not sound familiar. The school-based personnel made a number of serious procedural errors in planning and conducting Jeremy's IEP meeting, errors so serious that it is likely that a hearing officer or court would rule that the mistakes led to a denial of providing a free appropriate public education (FAPE) to a student with disabilities, violating the Individuals With Disabilities Education Act (IDEA, 2006). However, common procedural errors

The IEP is the cornerstone of IDEA. Its purpose is to provide a comprehensive statement of a student's educational needs, state measurable goals, and identify specially designed instruction and related services that will be provided to meet those needs (Bateman, 2011). In fact, the IEP is so important that it is at the center of most special education disputes in hearings or courts; thus, its importance cannot be overestimated (Bateman, 2011).

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Common procedural errors made in the IEP process can be avoided when IEP teams understand the importance of the IEP, are familiar with the essence of serious procedural errors, and follow good practices.

Since 1975, when the use of IEPs was mandated, the process of creating them has been plagued with errors (Bateman, 2011; Yell, 2012). When those errors deny a student FAPE, they can result in school district losses in due process hearings and court cases. It is important for special education teachers and administrators to understand the nature of these errors and how they can be avoided.

Types of Procedurai Errors Two major types of IEP errors are most common, procedural and substantive. Procedural obligations compel school personnel to follow the specific requirements of the law when developing an IEP. Those requirements include (a) providing prior written notice of IEP meetings to parents, (b) adhering to state-mandated timelines, (c) involving a student's parents in education decision making, (d) conducting complete

and individualized evaluations, (e) ensuring that all the necessary team members attend IEP meetings, (f) including appropriate content in the IEP, and (g) ensuring that the IEP is implemented as written (Bateman, 2011; Yell, 2012). The substantive obligations of IDEA require IEP teams to develop and implement a plan that is designed to provide educational benefit for the student. To ensure that these requirements are met, the IEP team must (a) assess the student's academic and functional needs; (b) develop annual goals based on those needs; (c) write goals that are complete, appropriate, and measurable; (d) provide special education and related services that are effective and based on peer-reviewed research; and (e) monitor the student's progress toward his or her goals and make instructional changes when necessary (Yell, 2012). Even though districts are required to comply with IDEA'S procedural require-

ments, mistakes in this area do not automatically lead to finding of a denial of FAPE, When IDEA was amended and reauthorized in 2004, Congress clarified that, when confronted with issues regarding FAPE, hearing offlcers are to make their decisions based on substantive grounds (i.e., was an IEP reasonably calculated to confer educational benefit?). Further, there are only three types of procedural errors that are so serious that if they are committed by school personnel they may result in a ruling that FAPE was denied: those that •

Impede the child's right to FAPE.

• Impede the parents' opportunity to participate in the decision-making process. •

Deprive a student of educational benefits (20 U.S.C. § 1415[f][3]

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Error: Not Including Students' Parents in the lEP Process

According to the U.S. Supreme Court, the IEP is the central vehicle for ensuring collaboration and cooperation between a child's parents or guardian and school-based personnel {Schaffer V. Weast, 2005). Central to the IEP, therefore, is the concept that decisions concerning educational programming and placement will be made by the IEP team, which includes the student's parents. Language in the IDEA regulations note that the effectiveness of educating children with disabilities depends on "strengthening the role and responsibility of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children at school and at home" (34 C.F.R. § 1400[c][5][B]). Consequently, school personnel must take steps to ensure that one or both parents are present in the meeting or are given the opportunity to participate in the IEP process. In fact, none of IDEA'S procedural rights is more vigorously protected by the courts (Bateman, 2011). The Ninth Circuit Court of Appeals in Amanda J. v. Clark County School District (2001) wrote that interference with parental participation in the IEP development undermines the very essence of IDEA because an IEP which truly addresses the unique needs of the child can be developed only if the people who know the child the best are fully involved and informed. Thus, when school offlcials either intentionally or unintentionally leave a student's parents out of the IEP development process, it is very likely that they have seriously violated IDEA'S primary procedural mandate. Such a violation almost automatically results in rulings that a school district has denied a student FAPE. Clearly, school district personnel must make good-faith efforts to ensure that parents are involved in all aspects of IEP development. School offlcials may hold the IEP meeting if they are unable to convince parents to attend; in such cases, schools must document efforts to secure parental participation by keeping 58


(1) Detailed records of telephone calls made or attempted and the results of those calls; (2) Copies of correspondence sent to the parents and any responses received; and (3) Detailed records of visits made to the parent's home or place of employment and the results of those visits.(34 C.F.R. § 300.322 [d]). This is not to suggest that parents have the flnal word on educational decisions, only that they are integral members of the IEP team. When a student's parents choose not to be involved in the IEP process, and there is evidence that school offlcials made efforts to involve them in the development of the IEP, hearing offlcers and courts have tended to hold that the parents have waived their rights under the IDEA (Bateman, 2011) Court Cases and Parental Involvement. In Drobnicki by Drobnicki v. Poway Unified School District (2009), the U.S. Circuit Court of Appeals for the Ninth Circuit ruled that the school district violated IDEA when school personnel failed to schedule the IEP meeting at a mutually agreed upon time and place. Speciflcally, district personnel did not ascertain the availability of parents before scheduling the child's IEP meeting. When the parents informed the district that they could not attend the scheduled date, the district made no attempt to contact the parents to change the date. Instead, the district notifled the parents they could participate at the scheduled date via speakerphone. Although the use of a speakerphone is acceptable if neither parent can attend in person, it should be used as a last resort and only after attempts to reschedule to a mutually agreed upon time and place. On the other hand, the court for the D.C. Circuit in Paolella v. District of

Columbia (2006) found that a school district had offered a student's parents a meaningful opportunity to participate in the development of the student's IEP, even though the flnal decision of the team was contrary to the parents' wishes. In this case, the school district personnel had presented the testimony

of a placement specialist and a school psychologist that a student did not need placement in a private school. After visiting the school, the parents disagreed with the IEP team's decision and flled a due process complaint that eventually went to a district and then circuit court. The court noted that the school district had decided that the private placement was not necessary but they had allowed the parents to be meaningfully involved because district personnel had considered the parent's request. In an important ruling issued on June 13, 2013, the United States Court of Appeals for the 9th Circuit ruled that the Hawaii Department of Education had violated FAPE by holding the student's IEP meeting without the participation of a parent. In the case, Doi^ C. V. State of Hawaii Depariment of Education (2013), Doug C. the father of Spencer, an 18-year student with autism, had requested that he be present at his son's IEP meeting. District officials, however, were concerned because Spencer's annual review was overdue. They went ahead and held the IEP meeting without the father's participation, and they also refused to reschedule the meeting. Doug C. flled for a due process hearing and contended that the district had denied FAPE because parents had not been allowed to participate in the IEP meeting. The hearing offlcer, and on appeal a judge for the U.S. District Court, held that the school district had not denied Spencer a FAPE. The Appeals Court, however, overturned the decisions of the hearing offlcer and the U.S. District Court and ruled that the school district had denied FAPE. The court noted that parental involvement is the very essence of the IDEA and that the school district had held the IEP meeting over the father's repeated objections. The Appeals Court also noted that the district's argument that the meeting had to be held because of the expiration of the IEP was without merit because parental participation trumps the annual deadline and because the district's obligation to provide services does not end just because an annual IEP review is overdue. Holding the IEP

Figure 1 . ¡EP Meeting Woricsheet Student:

by the team members. Keeping meeting notes shows that parents were actively encouraged to contribute to the IEP meeting and that their thoughts and opinions were considered and discussed in a thoughtful manner.

Date:

Parents: IEP Case Manager:

Error: Predetermining a Student's lEP Services or Placement

Procedural Safeguard Notice sent:

Predetermination occurs when the school-based personnel on an IEP team essentially decide on a student's special education services, a student's placement, or both services and placement prior to the actual IEP meeting, thus failing to involve a student's parents in making these important decisions. Predetermination is a serious error that can lead to a denial of FAPE, and thus a violation of IDEA (Bateman, 2011; Yell, 2012). When school personnel engage in predetermination they essentially exclude a student's parents from the decision-making process; again, violating the primary procedural protection of the IDEA.

Parents notified about evaluation: Method(s) of contact: Mutually agreed on time and place for IEP meeting: IEP meeting date: 1st notice sent:

2nd notice sent:

IEP Team Members: LEA Representative: Parents: Special Education Teacher: General Education Teacher: Person who can interpret instructional implications of the evaluation results:

Others: IEP to take effect on: Noie. IEP = Individualized education program; LEA = local education agency. meeting without the father's participation was a procedural violation which seriously infringed on the parent's right to participate and denied the student educational opportunity. Tips for Ensuring Parental Participation in the IEP Process. It is essential that every effort be made to coordinate with parents and guardians when scheduling the IEP meeting and developing a student's IEP. This includes making efforts to ensure that IEP meetings are scheduled at a mutually agreeable time and place, which can include holding meetings by conference calls or

via the Internet. The IEP Meeting Worksheet (Figure 1) functions as a tracking system that documents attempts to coordinate with parents and when required notices were sent to parents. Another method for documenting parental involvement is to assign a person (other than the person running the meeting) to keep written notes at the IEP meeting; these notes should include parental contributions and the IEP team's discussion of these contributions. At the end of the IEP meeting, these notes should be read and signed

This does not mean that the schoolbased personnel on an IEP team cannot prepare a draft IEP. It can be helpful to present a draft IEP at the meeting in the interest of efficiency and as a starting point for the IEP team's discussion; however, the document should he clearly labeled as a draft and all team members must understand that the IEP will be finalized only after the IEP has been edited over the course of the meeting to reflect the input and feedback of all team members. Preparatory activities held before the IEP meetings are permissible as long as school-based team members come to the IEP table ready to fully discuss a student's services and placement. As the judge in Doyle V. Arlington (1992) wrote, "school officials must come to the IEP table with an open mind. But this does not mean they should come to the IEP table with a blank mind" (p. 2). Court Cases and Predetermination. Deal V. Hamilton County Board of Education (2004) is perhaps the most widely known case regarding predetermination. In this case, the Sixth Circuit Court of Appeals ruled that a school district had denied a student FAPE because the school's IEP team had


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Figure 2 . Parent ¡EP Planning Woricsheet Student:

Date:

Parents: IEP Case Manager:

To develop the best possible plan for your child, we need your assistance and knowledge of your child. Please take a few minutes to answer the questions below and return to the case manager. All information will be kept confldential. Thank you very much. 1) What do you believe are the strengths of your child (personally and academically)? ..

2) How do you think your child learns best? What kind of situation makes learning easiest?

3) What are your child's favorite activities? 4) Does your child have any behaviors that are of concern to you or your family members? (If so, please describe.)

5) How does your child usually react when upset and how do you respond to this behavior?

6) What does your child plan to do after high school? What do you anticipate he or she will do?

Note. IEP = Individualized education program. predetermined his placement by adhering to the district's unofficial policy of refusing to consider requests for applied behavior analysis home services. Because the procedural violation of predetermination effectively deprived the parents of meaningful participation, the violation amounted to a denial of FAPE. Tips for Avoiding Predetermining IEP Services and Placement One way to avoid predetermination is to solicit input from all team members prior to the IEP meeting. For example, the IEP team can send parents a planning worksheet (see Figure 2) or questionnaire with the IEP meeting notice to 60


solicit feedback that can be incorporated in the draft IEP. If the parents return the form in advance, this will allow the team to receive input on parents' perceptions that can be incorporated into the draft IEP. In addition, this also helps them gauge whether the family is satisfled with the current placement and provision of services. If parents list anything unexpected on the form, the special education teacher can follow up with them prior to the meeting so that IEP team members are prepared to address the parents' concerns in the meeting (Weishaar, 2011). Even if parents don't return the documents until the meeting, completing the form

in advance will encourage them to think about their perspective on their student's education before the meeting. This will help parents understand they have equal partnership in the planning of their student's IEP. Another method that can be used to avoid predetermination is to assign someone from the school to contact a student's parents before the IEP meeting to let them know what will occur during the meeting and what kinds of information they can provide to help the IEP team craft a meaningful IEP. Keeping written notes of the meeting, as suggested in the previous section, also ensures that the record will include parental contributions regarding special education services and placement and the team's discussion of these contributions. Error: Determining Placement Before Programming

The law is clear that placement decisions must be made after the team has developed the student's goals and services in the IEP. Determining a student's placement prior to programming can amount to a denial of FAPE. A student's placement "must be based on the child's IEP" (34 C.F.R. § 300.116[b][2006]), because only after the program has been determined will a team have a basis for determining where the student's needs can best be met (Bateman, 2011; Yell, 2012). When an IEP team decides placement before programming the team is engaging in a practice that has been referred to as "shoehorning" (Slater, 2010), because the IEP team is shoehorning the program to flt the placement rather then developing an individualized program. Court Cases and Placement. In Spielberg v. Henrico County Public Schools (1988), the Henrico County School District had been paying the tuition of Jonathan Spielberg, a student with severe intellectual disability, to attend a private residential school in Pennsylvania where he received yearround schooling as well as after-school care. The school district conducted a réévaluation of Jonathan and developed an IEP that called for his educational services to be delivered in a

pubiic facility instead of the private school. Jonathan's parents appealed the school district's decision. A federal district court ruled that the school district had followed the requirements of the law. The parents appealed the decision. The Court of Appeals for the Fourth Circuit held that school officials had violated the law's procedures, thereby denying Jonathan FAPE, when they decided to change his placement and tben develop an IEP to carry out their decision. The circuit court noted that making a placement decision before developing an IEP on which to base a student's placement violates the law's regulations (34 C.F.R. § 300.552) and the spirit and intent of the law. Tips for Avoiding Placing a Student Before Programming. Members of the IEP team need to discuss the goals and services a student needs before discussing placement. If parents request that placement be addressed prior to programming, an IEP team member (perhaps the representative of the local education agency or special education teacher) can explain the sequence of decisions that must be followed in the IEP meeting and why this order needs to be followed. One way to ensure that goals and services are addressed before placement is to begin the meeting with a brief discussion of the topics to be covered during the IEP meeting, the order in which these topics will be addressed, and the rationale for addressing topics in the particular order in which they will be discussed. It can be helpful to provide parents with an outline of the meeting. Again, taking notes during the meeting and having all IEP team members sign them at the conclusion records the decision-making sequence, as well as efforts to involve a student's parents in the discussion of goals and services and their input, or lack thereof. Error: Not Fielding an Appropriate IEP Team IDEA requires that an IEP team include (1) The parents of the child; (2) Not less than one regular education teacher of the child (if the child is, or may be, partici-

pating in the regular education environment) ; (3) Not less than one special education teacher of the child, or where appropriate, not less then one special education provider of the child; (4) A representative of the public agency who— (i) Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities; (ii) Is knowledgeable about the general education curriculum; and (iii) Is knowledgeable about the availability of resources of the public agency. (5) An individual who can interpret the instructional implications of evaluation results...; (6) [Other] individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and (7) Whenever appropriate, the child with a disability. (34 C.F.R. § 300.321 [a])

the meeting and the district personnel and the student's parents agree in writing (34 C.F.R. § 300.321 [e][l] and [2]). However, best practice suggests a complete team is usually preferable (Bateman, 2011), and IEP teams should not overuse this excusai provision in situations wben a team member's area is being discussed. Couri Cases and the IEP Team. A number of cases have addressed the importance of fielding the required team members to develop a student's IEP. For example, the U.S. Court of Appeals for the Sixth Circuit heard a case where a school district failed to include a general education teacher at an IEP meeting for a 4-year-old child with autism. The school district personnel in this case stated that it was unnecessary to have a general education teacher at the meeting because they did not believe that the teacher would make a meaningful contribution to the meeting—even though one of the reasons for the meetings was to discuss the child's inclusion in the general education setting [Deal v. Hamilton County Board of Education, 2004). In finding for the parents on this issue.

Teachers can provide valuable information on a student's present levels of performance that may be unique to the content area or setting in which they provide services. IEPs must be accessible to "each regular education teacher, special education teacher, related services provider, and any other service provider who is responsible for its implementation" (34 C.F.R. §300.323[d]). Any of these participants do not need to attend the IEP meeting if their area of curriculum or related services is not to be modified or discussed. In such cases, however, it is important that the parent and district have agreed to the excusai in writing. In situations in which the team member's area of contribution will be discussed at the meeting, excusai may still be granted if that team member submits written input to the parent and district prior to

the circuit court judge held that input provided by a general education teacher is vitally important in considering the extent to which a student with disabilities may be integrated into the general education classroom and how the student's individual needs might be met within that classroom [Deal v. Hamilton County Board of Education, 2004). Tips for Ensuring a Complete IEP Team. In addition to ensuring full participation of parents, the person who runs the IEP team meeting (often the case manager) must ensure that the necessary team members are at the IEP meeting. If there is a legitimate reason that a team member cannot attend, the


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case manager must ensure that the excusai procedures of the IDEA are followed. In addition, the case manager should take steps to include people who are not on the IEP team but who may have useful information that the team should consider when developing the IEP. For example, the case manager could obtain input from the student as well as teachers and other service providers prior to the meeting (see Yell, 2012, for other mandates regarding each participating member). Figure 3 provides an example of a planning worksheet that can be completed by students prior to their IEP meeting. Students can complete this independently, with parents, or with teachers depending on the student's strengths, abilities, or preferences. Obtaining feedback from students is especially important if the student will not be participating in all or part of the IEP meeting. It's especially important to solicit feedback from teachers and service providers prior to the IEP meeting (in person or via e-mail) if the student receives services from numerous subject area or elective teachers, because usually only one general education teacher will be present at the meeting. Teachers can provide valuable information on a student's present level of performance that may be unique to the content area or setting in which they provide services. For example, the demands of physical education may change and intensify as a student with other health or orthopedic impairments progresses through school. If feedback from the physical education teacher is not solicited, the case manager may not be aware of all the supplementary aids and services or modifications that should be included in the IEP. In cases in which feedback is solicited before the meeting, this feedback should be used for discussion purposes only. That is, the team should use the information as a resource when developing the 1ER Such notes or feedback could appear to a hearing officer or a court to be attempts to bypass parental involve62


Figure 3 . Student IEP Planning Worksheet

Name:

Date:

Your teachers and parents will be meeting with you soon to discuss a plan that will help you do well in school. Please fill out the information below. Your input, ideas, and concerns are important in your plan. 1) In what areas of school have you had the most success this year? 2) In what areas of school have you had problems this year? 3) With what school activities do you need help? 4) What could your teachers do for you that might help you do better in your classes or with any problems you are having? 5) How much time do you spend on homework? How much time do you spend studying for tests? Do you work alone or with help? 6) What do you want to do after high school? Is there a particular career you are interested in right now?

Note. IEP = Individualized education program. ment or final decisions, which could lead to a ruling that the IEP was predetermined. Coordinating the schedules of multiple IEP team members can be a daunting task. For this reason, starting well in advance of the IEP annual review date will lessen the stress of confirming participation by all. In addition, using an organization system similar to the one presented in Figure 1 can aid teachers in keeping track of when members confirm that they'll be able to attend. Error: Failing to Implement the IEP as Written A frequent area of procedural special education disputes occurs when educators fail to implement the IEP as written. A student's IEP can be impeccably developed but if it is not actually implemented it may comprise a denial of FAPE, and thus violate IDEA. An IEP is a legally binding document, not a list of suggestions (Jacobs, 2013). Every service listed in the IEP must be

delivered in the way and manner it is described in the IEP, including frequency, duration, and location. This includes not only the special education services outlined in the document but also the related services. There have been instances in which deliberate decisions made by teachers not to deliver the services in the IEP have led to lawsuits for monetary damages (Bateman, 2011). This procedural violation is so serious that Melinda Jacobs, an attorney who represents school districts in special education litigation, listed it as the first of her "Seven Deadly Sins" that lead to litigation (Jacobs, 2013). Court Cases and Failure to Implement an IEP. Jacobs (2013) noted that in due process hearings in which parents have participated in the development of their child's IEP, the school district will usually win or lose based on the faithfulness of its implementation of the IEP. One of the most recent cases to address such a problem was Woods V. Norihport Public School

Table 1. Procedural Do's and Don'ts in IEP Development

H E H K ^ DON'T . . . Involve a student's parents or guardians in ail aspects of IEP development, from evaluation to implementation.

Hold a formal IEP meeting without a student's parents or guardians.

Encourage and consider parent (and student, as appropriate) input in all aspects of IEP development.

Present a completed IEP to a student's parents at the IEP meeting (a draft document is OK as long as it is understood by all team members to be a draft).

Include parents in evaluation, service, and placement decisions.

Exclude parents from evaluation, service, or placement decisions.

Ensure that all required team members are present in the IEP meeting, unless a member is excused by parents' written consent.

Overuse IDEA'S excusai provision.

Specify and clearly describe the services to be provided in a child's special education program.

Determine placement before services (i.e., shoehorning).

Assign a team member to take notes during the meeting.

Discount parental thoughts and opinions during an IEP meeting.

Read the notes and have all team members sign them following the meeting.

Assume the parents understood all aspects of the IEP process.

Ensure that all staff members responsible for any element of an IEP understand their responsibilities as written.

Assume that all teachers and staff members understand their responsibilities as written in a student's IEP.

Implement the IEP as written.

Allow excuses for failing to properly implement a student's IEP.

Note. IEP = individualized education program; IDEA = Individuals With Disabilities Education Act.

Delaying implementation of an IEP can also be denial of FAPE; in D.D. v. New York City Board of Education (2nd Cir. 2006), the school district had put three preschool children on a waiting list for several months after developing their lEPs. According to the court, this delay amounted to a denial of FAPE. Tips for Ensuring That an IEP Is Implemented as Written. Failing to implement an IEP as written is one of the most serious procedural errors that a school district can make. Unfortunately, this has been and continues to be the grist of many due process hearings and court cases. Yet, avoiding this problem appears to be quite simple: Implement the IEP with fldehty. According to Jacobs (2013), there are no acceptable excuses for failing to implement every aspect of the IEP (e.g., "I don't have time," "He's just lazy," "It's not fair to other students"). All district staff who will be implementing a student's IEP should be informed of their speciflc responsibilities regarding special education services, related services, supplementary services, and program modiflcations. In middle schools and high schools where students may have multiple teachers, the IEP team must ensure that all teachers understand their responsibilities as deflned by a student's IEP, even though the teacher may have not been part of the team. Requiring all teachers to read the IEP may not be as successful as developing and having them read a simple form that summarizes and informs teachers of their specific responsibilities.

Avoiding Procedural Errors (2012). In this case, a school district in Michigan failed to implement an IEP because the district did not provide the resource room services nor did they provide educators with the services of an autism consultant as listed in the IEP. The court ordered the school district to provide a signiflcant amount of compensatory services to the child. Similarly, in District of Columbia Public Schools (2012), a child with a learning disability who attended a charter school did not receive 5 hours per week of writing instruction as spec-

ified in his IEP. The school district's failure to fully implement the IEP was found to be a material violation of IDEA and constituted a denial of FAPE. The school district was ordered to provide private tutoring services to the child as compensatory education services. In addition to being a violation of IDEA, when school districts fail to implement a student's IEP, this could also be a violation of Section 504 of the Rehabilitation Act [Eastern Lebanon County, PA, School District, 2010).

A student's IEP is the heart and soul of IDEA and the means of providing FAPE to students with disabilities (Bateman, 2011; Yell, 2012). Because of its importance, special educators need to understand how to properly develop and implement an IEP, including following both procedural and substantive requirements. Violations of either type of requirement can be a denial of FAPE and a violation of IDEA. Table 1 provides a list of do's and don'ts regarding the procedural obligations of IEP team members. There are also actions that

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school district personnel can take before, during, and after the IEP meeting to ensure that procedural errors are avoided. Before the IEP Meeting One of the most serious errors that school-based IEP team members can make is to predetermine the services or placement to be offered in an IEP. It is permissible to discuss the IEP in an informal manner and even to develop a draft IEP. However, formal meetings should not be held prior to the IEP meeting, unless the student's parents are also at the meeting. Parents must understand and believe that their knowledge and opinions are an important part of deliberations during the IEP meeting. To ensure that parents are included in a meaningful way, school officials may want to consider having a school-based team member or other school official contact the parents prior to the meeting to talk with them about the upcoming IEP meeting and their important role in it. Clear, focused, and positive communication is key in an IEP meeting, and it begins prior to the meeting (Bateman, 2011). During the IEP Meeting All final decisions regarding a student's special education program are to be made at the IEP meeting. It is critical to ensure that a student's parents are encouraged to offer their thoughts and opinions during the meeting. If a draft IEP is brought to the meeting, parents and school-based personnel must understand that it is only a working document that can and should be altered during the deliberations. The meeting should follow an agenda and all school-based personnel must stay focused on the topic being discussed. Discussions should be conducted in a focused, thoughtful, and polite manner. A school-based IEP team member (other than the person running the IEP meeting) should be assigned to take notes, which should be read and signed by all at the conclusion of the meeting. Again, it is important to note that not all the parents' opinions and suggestions must be accepted; howev64


er, they must be discussed and given careful consideration. Following the IEP Meeting Following the meeting, a student's parents should be given a copy of the IEP, and the person who conducted the meeting should contact them to ensure that they understood the process. All of a student's teachers and involved school staff (e.g., counselors, school nurse) must understand their responsibilities as outlined in the IEP, because all aspects of a student's special education must he implemented as written. If school-based team members believe that procedural errors were made in the IEP process, someone should immediately contact the student's parents and discuss the possible problem. If necessary, another meeting should be held to address these problems. Conclusion

In this article we have discussed the major procedural errors that, when committed, will almost certainly lead to a ruling that a school district has denied a student FAPE, a violation of IDEA. Errors such as failure to involve families, predetermining placement, or failing to implement the IEP fully result in a student's parents not meaningfully participating in the development of their child's IEP. It is extremely important that school districts provide professional development for all administrators, teachers, and staff in the importance of avoiding these and other errors in IEP development. When IEPs are carefully crafted and faithfully implemented it is much more likely that students will receive meaningful educational benefit, and schools will meet both the spirit and intent of IDEA. References Amanda J. v. Clark County School District, 260F.3d 1106 (9th Cir. 2001). Bateman, B. D., (2011) Individualized education programs for children with disabilities. In J. M. Kauffman & D. P. Hallahan, Handbook of special education (pp. 77-90). Philadelphia, PA: Taylor & Francis/Routledge. D.D. V. New York City Board of Education, 465 F.3d 503 (2nd Cir. 2006).

Deal V. Hamilton County Board of Education, 392 F. 3d 840 (6th Cir. 2004). District of Columbia Public Schools, 112 LRP 30864 (SEA DC 2012). Doug C. V. State of Hawaii Department of Education (2013), No. l:ll-cv-00441-KSC, United States Court of Appeals for the Ninth Circuit (Slip opinion available at http://cdn.ca9.uscourts.gov/datastore /opinions/2013/06/13/12-15079 .pdf) Doyle V. Arlington County School Board, 806 F. Supp. 1253 (E.D. VA 1992). Drobnicki by Drobnicki v. Poway Unified School District, 109 LRP 73255 (4th Cir. 2009). Eastern Lebanon County (PA) School District, 55 IDELR 236 (OCR 2010). IDEA Regulations, 34 C.F.R. § 300 (2012). Individuals With Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (2006 & Supp. V. 2011). Jacobs, M. (2013, March). The new seven deadly sins: Common legal errors that lead to litigation. Paper presented at the Spring Administrators Conference, Columbia, SC. Paolella v. District of Columbia, 46 IDELR 271 (D.C. Cir. 2006). Schaffer v. Weast, 546 U.S. 49 (2005). Slater, A. E. (2010). Placement Under the IDEA: Avoiding Predetermination and Other Legal Pitfalls. Horsham, PA: LRP. Spielberg v. Henrico County Public Schools, 853 F.2d256 (4th Cir. 1988). Weishaar, P. M. (2011). Twelve ways to incorporate strengths-based planning into the IEP process. The Clearing House. 83, 207-210. Woods V. Northport Public School, 59 IDELR 64 (6th Cir. 2012) Yell, M. L. (2012). The law and special education (3rd ed.). Upper Saddle River, NJ: Pearson/Merrill Education. Mitchell Yell (South Carolina CEC), Professor, Department of Educational Studies, University of South Carolina, Columbia. Antonis Katsiyannis (South Carolina CEC), Professor: and Robin P. Ennis (South Carolina CEC), Assistant Professor, School of Education, Clemson University, South Carolina. Mickey Losinski (Kansas CEC), Assistant Professor, Kansas State University, Manhattan. Address correspondence concerning this article to Mitchell Yell, 235-G Wardlaw College, University of South Carolina, Columbia, SC 29208 (e-mail: [email protected]). TEACHINC Exceptional Children, Vol. 46, No. 1, pp. 56-64. Copyright 2013 CEC.

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