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Can a School Attorney Attend an IEP Team Meeting?

Can a School Attorney Attend an IEP Team Meeting? Yes, But It May Make the Meeting More Adversarial.(October 25, 2011): Many times, the presence of a school attorney in an IEP meeting creates an adversarial atmosphere. This can increase the feeling that the special education “deck is stacked” against parents since school representatives already outnumber the parents—not uncommonly by three or four to one. The Individuals with Disabilities Act does not expressly forbid school district attorneys for the school from attending IEP Team meetings. Yet, the Code does exclude school district attorneys from Resolution Meetings unless the parents have an attorney present.

 

I.  Can a School Attorney Attend an IEP Team Meeting?

While school attorneys are not expressly forbidden from attending IEP meetings, they are strongly discouraged. Question 29 in Appendix A to the IDEA 1997 regulations at 34 C.F.R. Part 300 states:

“The presence of the agency’s attorney could contribute to a potentially adversarial atmosphere at the meeting . . . Even if the attorney possessed knowledge or special expertise regarding the child (Sec. 300.344(a)(6)), an attorney’s presence would have the potential for creating an adversarial atmosphere that would not necessarily be in the best interests of the child. Therefore, the attendance of attorneys at IEP meetings should be strongly discouraged.”

34 C.F.R. Part 300, Appendix A, Question 29 (emphasis added); see also Letter from Patricia J. Guard, Acting Director of the Office of Special Education Programs, to Hillary Rodham Clinton, U.S. Senate (July 21, 2001).

II.  Who Does the School Attorney Represent in an IEP Team Meeting?

Let’s be clear, a school attorney is the attorney county, representing the school on behalf of the county.  He / she is not the parent’s attorney. This may be an acknowledgment of the typical imbalance of power that exists in most IEP Team meetings between the school and parents. Second, the answer relies upon the “best interest of the child” standard. This standard is often interpreted to mean that the “best interest of the child” can supersede others’ rights.  Therefore, even if the school district has a right to invite their attorney to attend an IEP Team meeting, the best interest of the child may trump this right. Finally, the participation of a school attorney may be discouraged “even if” the school attorney meets the threshold of possessing “knowledge or special expertise regarding the child.” 34 C.F.R. Part 300, Appendix A, Question 29. The implication is that if the district attorney does not meet the threshold of child knowledge or expertise the attorney cannot attend.

Ashley Morgan Healthcare AttorneyAshley Morgan represents students (and their families) in IEP Team meetings.  Ensure that your child’s rights are protected.  For a free consultation on IEPs, give us a call.  1 (800) 475-1906.

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