Any dispute related to the provision of FAPE can in theory be resolved through effective advocacy during the IEP development process, which largely takes place during IEP team meetings. Because the IEP governs all aspects of a student’s education,1  the IEP team has broad authority to modify a student’s educational program in order to provide FAPE. With some clients, an annual IEP meeting or an IEP amendment meeting to discuss some specific aspect of the IEP may already be scheduled when the attorney becomes engaged in the representation. For others, the attorney may need to request an IEP meeting proactively to discuss adding, removing, or changing a specific aspect of the IEP or to overhaul the plan entirely. In all of these scenarios, intensive preparation and the use of well-honed negotiation skills are key to engaging in creative and successful IEP advocacy.

• 1See 34 C.F.R. § 300.320; La. Bulletin 1706 § 320.

The first step is an in-depth review of all available educational, medical, and mental health records for the student. Looking back at IEPs for the past several years and evaluations going all the way back to the initial evaluation can provide valuable insight into the areas in which the student is struggling to make progress and the kind of additional support the student might need to succeed at school. It can also reveal patterns as to what has and hasn’t worked well for the student in the past. The attorney should catalogue the records in a manner that makes internal sense and create charts or other visual and organizational aids that will allow the attorney to access documents, remember key facts, and easily find information that will support the parent’s position or refute the LEA’s contentions during a fast-paced IEP meeting.  

After reviewing the records, the attorney should meet again with the client to discuss specific aspects of the IEP that could be modified to better meet the student’s needs. Armed with a deeper understanding of the student’s educational history and records, the attorney will be in a better position than during the initial interview to engage in client-centered counseling about strategies and solutions that could produce outcomes consistent with the client’s goals. Many parents already have an idea of specific changes they would like to see to their child’s educational program. Frequently, the main goal of representation will be to change the student’s educational placement to a particular classroom or to add or increase a related service like speech therapy or occupational therapy. Other times it might be to add a particular support or accommodation such as the services of a one-on-one paraprofessional or the use of assistive technology like an Augmentative and Alternative Communication (“AAC”) device. For all of these types of changes, an attorney must be able to point to supporting data and other information to help persuade the rest of the IEP team that the particular support or service being requested is needed to provide FAPE.

In most cases, however, the IEP can be improved beyond the more easily identified discrete changes that tend to be the initial focus of the representation. After all, the student is a complex person with many needs and strengths, and the attorney should help the parent to consider how each of the components of an IEP can be creatively shaped to meet the student’s individual needs. For example, a parent may not have known it was possible to request a parental communication plan as an accommodation.1   Another common area of deficiency in many IEPs is the lack of appropriate, measurable goals and learning objectives in each area of need. Some students may keep the same goals and objectives over several years, indicating a lack of progress. Other students may have goals that change annually to reflect the grade-level standards for the student’s new grade, but the data monitoring relating to the goals or short-term objectives show that the student is not making progress. For other students the goals might be so vague and poorly written that data monitoring is impossible and the student’s progress cannot be tracked. A number of online resources exist that can help an attorney learn how to assist in the development of “S.M.A.R.T.” goals that are specific, measurable, attainable, results-oriented, and time-bound.2

• 1In a parental communication plan, a teacher or paraprofessional provides detailed weekly updates on a student’s struggles or progress with particular goals, skills, or materials to allow the parent to better support the student’s educational needs at home.
• 2A number of online resources exist to help parents, advocates, and educators learn how to write more effective goals using the S.M.A.R.T. model. See Sue Watson, How to Write IEP Goals, ThoughtCo.; Tips for Writing and Understanding Smart IEP Goals, NY2; Setting Smart IEP Goals, TACA; Goals and Objectives, Impact of Special Needs.

When one is ready to request an IEP meeting, one can do so by sending a letter via email to the principal or special education coordinator at the school the student attends.1  The letter can broadly request a meeting to review, revise, and discuss the IEP, or it can request changes to particular components of the IEP. A benefit of including specific requests regarding modifications to the IEP is that doing so triggers the parent’s right to receive prior written notice of any refusals or counter-proposals.

Another consideration is whether to invite other individuals to participate as members of the IEP team. Having a lay advocate, social worker, counselor, or other outside provider with specialized training or who has worked with the student and family for a long time can provide valuable insight and serve as an important ally during the IEP meeting. The attorney should also consider requesting that specific employees of the LEA be present if their presence would be helpful. For example, having a school psychologist or autism specialist from the district’s central office present if the IEP meeting will involve the development or review of a Behavior Intervention Plan (“BIP”) can lead to better results than relying on a teacher or school-level administrator to lead the drafting of the BIP. If someone whose presence would be helpful is unable to attend in person or for the entire meeting, the attorney should attempt to arrange for remote attendance via phone or videoconference or attendance for only part of the meeting. Of course, the attorney should also request an interpreter for the parent if needed.

Whether the student should be present for all or part of the IEP meeting is another factor to consider. The parent has the right to make the decision regarding the student’s presence if the student is under the age of majority, but it is generally advisable to have an older student present for at least part of the meeting to provide input and become invested in the educational program being designed. For example, it would be difficult to create a transition services plan without the student present since the plan must be based on the student’s preferences and interests.2  If the parent or student are concerned about the student’s ability to sit through the meeting because of the sensitive nature of the topics being discussed, boredom, or some other reason, the attorney should consider working out a signal so that the student can quietly be excused.

Prior to the IEP meeting, the attorney should work with the parent to draft a parental concern statement that thoroughly and accurately reflects and prioritizes the parent’s concerns with the student’s educational program and describes the desired changes to the IEP. The parental concern statement is the only part of the IEP that is meant to express the will of the parent alone rather than that of the IEP team as a whole. The statement can be read out loud or provided in hard or electronic copy so that it can be added verbatim to the IEP. Because it appears on the first page of the IEP form and so is usually discussed early, a thoughtful parental concern statement can set the tone of the meeting, although nothing expressed in the statement is binding on the LEA.

• 1A template letter requesting an IEP meeting is provided in Section 9.
• 234 C.F.R. § 300.43(a)(2); La. Bulletin 1706 § 905 (defining Transition Services).

At the IEP meeting, the attorney should endeavor to work collaboratively with the school-based members of the IEP team and keep the focus on the student’s needs.1  In many cases, emotions may run high due to a long history of acrimonious interactions between the parent and the school that preceded the attorney’s involvement. While an attorney must firmly defend the client’s interests, modeling professionalism and directing the focus of the conversation towards finding forward-looking solutions to the issues rather than assigning blame for past failures can be critical to obtaining the desired outcome. Additionally, the attorney and parent should avoid talking about the student’s “best interests” or what is “best” for the student because the legal basis for evaluating special education is whether a student’s program provides an appropriate education.

Although every member of the IEP team, including and especially the parent, has a voice and is able to provide input at IEP meetings, the IEP team is not a democracy. Ideally, the IEP team will arrive at decisions related to the IEP through consensus, but in Louisiana it is the LEA’s Officially Designated Representative (“ODR”) who ultimately determines what goes into an IEP. While a parent’s consent in the form of a signature on the consent page on the initial IEP is needed in order for special education services to begin, no such consent is needed for subsequent annual IEPs.2  As a result, a parent’s refusal to sign an IEP has no legal effect for the annual IEP, which becomes the official IEP when submitted through the state’s Special Education Reporting (“SER”) System.3

Despite the concentration of power being decidedly one-sided when it comes to IEP teams, the mere presence of an attorney can be helpful to the chances of reaching agreement and attaining desired outcomes for the parent at an IEP meeting. School officials understand that the involvement of an attorney increases the chances of having to deal with costly and time-consuming formal dispute resolution if no agreement is reached. Even more importantly, the involvement of an attorney often leads to the involvement of school officials with greater training and expertise and results in a more formal IEP meeting where more care is taken to consider parent input. A parent who is used to IEP meetings being brief encounters with a special education teacher and possibly one other school administrator at which the parent’s concerns are quickly dismissed may marvel that the first IEP meeting with an attorney may last for several hours, have in attendance nearly a dozen school-level and central-office level officials, and involve everyone at the table taking time to listen to and understand the parent’s concerns. Providing a platform for a parent’s voice to be heard is sometimes all that is needed for effective IEP advocacy.

• 1For tips on how to advocate effectively at IEP meetings, see Erin Han, et al., Special Education Advocacy at School Meetings, Am. Bar Ass’n (Jan. 9, 2012); Advocacy Tips for IEP Meetings, Disability Rts. S.C.; 17 Special Education Advocacy Tips, Disability Rts. Cal. (June 1, 2020).
• 2See La. Dep’t of Educ., Individualized Education Program Form 14.
• 3See La. Dep’t of Educ., Special Education Reporting IEP Forms User Guide (Feb. 2021).