NASET Q & A Corner
Questions and Answers on Updates from the U.S. Department of Education on IEP Team Membership and IEP Meetings
Introduction
Regulations for Part B of the Individuals with Disabilities Education Act (IDEA) were published in the Federal Register on August 14, 2006, and became effective on Oct. 13, 2006. In addition, supplemental Part B regulations were published on Dec. 1, 2008, and became effective on Dec. 31, 2008. Since publication of the regulations, the Office of Special Education and Rehabilitative Services (OSERS) in the U.S. Department of Education (Department) has received requests for clarification of some of these regulations. This question and answer (Q&A) document prepared by OSERS in June of 2010 addresses some of the most important issues raised by requests for clarification on IEP Team Membership and IEP Meetings.
Question: May the representative of the public agency be excused from attending an IEP Team meeting?
Answer: Yes.
The members who can be excused from attending an IEP Team meeting in whole or in part, subject to the conditions described in 34 CFR §300.321(e)(1) and (e)(2), include a public agency representative described in 34 CFR §300.321(a)(4). Under 34 CFR §300.321(e)(1), a public agency representative is not required to attend an IEP Team meeting in whole or in part, if the parent of the child with a disability and the public agency agree, in writing, that the attendance of the member is not necessary because the member’s area of the curriculum or related services is not being modified or discussed in the meeting. When the meeting does involve a modification to, or discussion of, the member’s area of the curriculum or related services, 34 CFR §300.321(e)(2) provides that a representative of the public agency may be excused from attending an IEP Team meeting, in whole or in part, if (i) the parent, in writing, and the public agency consent to the excusal; and (ii) the member submits, in writing to the parent and the IEP Team, input into the development of the IEP prior to the meeting.
Allowing the IEP Team members described in 34 CFR §300.321(a)(2) through (a)(5) to be excused from attending an IEP Team meeting is intended to provide additional flexibility to parents in scheduling IEP Team meetings and to avoid delays in holding an IEP Team meeting when an IEP Team member cannot attend due to a scheduling conflict. 71 FR 46673. However, because the public agency remains responsible for conducting IEP Team meetings that are consistent with the IEP requirements of the IDEA and its implementing regulations, it may not be reasonable for the public agency to agree or consent to the excusal of the public agency representative. For example, the public agency cannot consent to the excusal of the public agency representative from an IEP Team meeting if that individual is needed to ensure that decisions can be made at the meeting about commitment of agency resources that are necessary to implement the IEP being developed, reviewed, or revised. If a public agency representative is excused from attending an IEP Team meeting, consistent with 34 CFR 300.321(e), the public agency remains responsible for implementing the child’s IEP and may not use the excusal as a reason for delaying the implementation of the child’s IEP.
Question: May more than one member of an IEP Team be excused from attending the same IEP Team meeting?
Answer: Yes.
There is nothing in the IDEA or its implementing regulations that would limit the number of IEP Team members who may be excused from attending an IEP Team meeting, so long as the public agency meets the requirements of 34 CFR §300.321(e) that govern when IEP Team members can be excused from attending IEP Team meetings in whole or in part. 71 FR 46675. The excusal provisions in 34 CFR §300.321(e) apply to the following IEP Team members described in 34 CFR §300.321(a)(2) through (5):
- The regular education teacher(s) of the child (if the child is, or may be, participating in the regular education environment).
- The special education teacher(s) of the child, or where appropriate, the special education provider(s) of the child.
- A representative of the public agency who is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities; is knowledgeable about the general education curriculum; and is knowledgeable about the availability of resources of the public agency.
- An individual who can interpret the instructional implications of evaluation results, who may be another member of the IEP Team.
Question: Must the public agency receive consent from a parent to excuse multiple regular education teachers if at least one regular education teacher will attend an IEP Team meeting?
Answer: No.
As provided in 34 CFR §300.321(a)(2), the public agency must ensure that the IEP Team includes “[n]ot less than one regular education teacher of the child (if the child is, or may be, participating in the regular education environment) . . .” Neither the IDEA nor its implementing regulations require that an IEP Team include more than one regular education teacher. Therefore, if an IEP Team includes more than one regular education teacher of the child, the excusal provisions of 34 CFR §300.321(e)(2) would not apply if at least one regular education teacher will be in attendance at the IEP Team meeting.
Question: If the designated regular education teacher is excused from attending the IEP Team meeting, would an alternate regular education teacher be required to attend?
Answer: No
If the public agency designates a particular regular education teacher as the person who will participate in the IEP Team meeting pursuant to 34 CFR §300.321(a)(2), and that individual is excused from attending the meeting, consistent with the requirements in 34 CFR §300.321(e)(1) and (e)(2), the public agency would not be required to include a different regular education teacher in the IEP Team meeting.
Question: Is there a specific timeline in the IDEA for public agencies to notify parents of a request to excuse an IEP Team member from attending an IEP Team meeting? May a State establish a timeline for this purpose?
Answer: Neither the IDEA nor its implementing regulations specify a time period in which a public agency must notify parents of a request for an excusal. In public comments on the proposed Part B regulations, the Department was asked to specify a timeline, through regulations, in which a public agency must notify parents of requests for excusing IEP Team members from attending IEP Team meetings. In declining the commenter’s request to regulate, the Department noted that Part B of the IDEA does not specify how far in advance of an IEP Team meeting a public agency must notify a parent of the public agency’s request to excuse an IEP Team member from attending the IEP Team meeting. Further, Part B of the IDEA does not specify, when the parent and public agency must sign a written agreement that the IEP Team member’s attendance is not necessary, consistent with 34 CFR §300.321(e)(1), or when the parent and agency must provide written consent regarding the IEP Team member’s excusal consistent with 34 CFR §300.321(e)(2). 71 FR 46676. The Department also explained that requiring the request for excusal or the written agreement or written consent to occur at a particular time prior to an IEP Team meeting would not account for situations where it would be impossible to meet the timeline (e.g., when an IEP Team member has an emergency). Thus, requiring specific timelines could impede Congressional intent to provide additional in section 614(d)(1)(C) of the IDEA.
Moreover, we believe that it would be inconsistent with 34 CFR §300.321(e) to permit States to impose timelines for parents and public agencies to agree or consent to the excusal of an IEP Team member. A State may not restrict, or otherwise determine, when an IEP Team member can be excused from attending an IEP Team meeting, or prohibit the excusal of an IEP Team member, provided the conditions in 34 CFR §300.321(e)(1) and (e)(2) are satisfied.
Question: May State law or regulations regarding IEP Team membership and IEP Team meeting attendance requirements exceed those of the IDEA?
Answer: Yes, but with certain caveats. A State may establish laws or regulations for IEP Team membership and IEP Team meeting attendance, but must ensure that in doing so it does not establish provisions that reduce parent rights or are otherwise in conflict with the requirements of Part B of the IDEA and the Federal regulations. Examples of State regulations that could exceed Federal requirements regarding IEP Team membership but would not conflict with the IDEA in this regard would be for a State to require that a regular education teacher attend an IEP Team meeting regardless of whether the child is or may be participating in the regular education environment, that the IEP Team include additional members beyond those required by 34 CFR §300.321(a), or that a parent has the right to bring their child to any or all IEP Team meetings at any age.
If a State were to adopt laws or regulations that exceed the requirements of Part B of the IDEA, note that 34 CFR §300.199(a) requires each State that receives funds under Part B of the IDEA to do the following: (1) ensure that any State rules, regulations, and policies conform to the purposes of 34 CFR Part 300; (2) identify in writing to LEAs located in the State and the Secretary any such rule, regulation, or policy as a State-imposed requirement that is not required by Part B of the IDEA and Federal regulations; and (3) minimize the number of rules, regulations, and policies to which the LEAs and schools located in the State are subject under Part B of the IDEA.
Question: Must an IEP Team document in writing that it considered all of the requirements of 34 CFR §300.324, regarding the development, review, and revision of IEPs?
Answer: States and public agencies are required to maintain records to show compliance with program requirements, pursuant to 34 CFR §76.731 of the Education Department General Administrative Regulations (EDGAR). Neither the IDEA nor its implementing regulations specify what documentation must be maintained to demonstrate this compliance with the requirements of 34 CFR §300.324.
The program requirements are found in the IDEA and its implementing regulations. Therefore, IEP Teams must document consideration of the requirements of 34 CFR §300.324 with sufficient detail to show compliance with this regulation in the development, review, and revision of IEPs.
Question: How must a public agency document that IEP Team members have been informed of changes to the IEP?
Answer: The regulations in 34 CFR §300.324(a)(4)(i) provide that, in making changes to a child’s IEP after the annual IEP Team meeting for a school year, the parent of a child with a disability and the public agency may agree not to convene an IEP Team meeting for the purposes of making those changes, and instead may develop a written document to amend or modify the child’s current IEP. The regulations require, in 34 CFR §300.324(a)(4)(ii), that if changes are made to the child’s IEP in accordance with 34 CFR §300.324(a)(4)(i), the public agency must ensure that the child’s IEP Team is informed of those changes. While neither the IDEA nor its implementing regulations specify the manner in which public agencies must document that they have ensured that the child’s IEP Team is informed of changes, they must maintain records to show compliance with this program requirement, in accordance with 34 CFR §76.731 of EDGAR.
Question: Who must participate in making changes to the IEP when an IEP is amended without convening an IEP Team meeting pursuant to 34 CFR §300.324(a)(4)(i)?
Answer: The regulations provide, in 34 CFR §300.324(a)(4)(i), that in making changes to a child’s IEP after the annual IEP Team meeting for a school year, the parent of a child with a disability and the public agency may agree not to convene an IEP Team meeting for the purpose of making those changes, and instead may develop a written document to amend or modify the child’s current IEP. The IDEA and its regulations are silent as to which individuals must participate in making changes to the IEP where there is agreement between the parent and the public agency not to convene an IEP Team meeting for the purpose of making the changes.
Question: Must a public agency provide a parent with prior written notice if an IEP is amended without convening a meeting of the IEP Team?
Answer: Yes.
The regulations in 34 CFR §300.503(a) require that written notice that meets the requirements of 34 CFR §300.503(b) must be given to the parents of a child with a disability a reasonable time before the public agency (1) proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child; or (2) refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child. This provision applies, even if the IEP is revised without convening an IEP Team meeting, pursuant to 34 CFR §300.324(a)(4).
