Audio Recording IEP Meetings – Is It Allowed?

Having an audio recording of what happens in an IEP meeting is powerful evidence, especially when school districts deny what was said or fail to put a service in writing into the IEP.   For example, an audio recording can prove or disprove what was actually discussed during the meeting, whether the parents were given proper opportunity to participate, and what decisions or objections were made.   For those reasons, parents often wonder if they are permitted to record an IEP meeting.

So, can you do it?

Federal Law

There is no federal law prohibiting a parent or school official from recording IEP meetings.  IDEA and the other special education laws are silent on that specific issue.

However, IDEA does say a few things that are relevant to the discussion:

  • Parents are critical members of the IEP team
  • Parental participation in IEP meetings is vital and if a school blocks such participation, it is a denial of FAPE
  • Parents have the legal right to understand the IEP and, if necessary, have it explained to them

Audio recording an IEP Meeting, when the IEP Team is aware and consents to it, is not a violation of federal privacy law.

So that means you can do it, right? Not so fast.

The U.S. Department of Education (USDOE) Office of Special Education Programs (OSEP) has issued a letter opinion and Policy Memorandum on this subject in June 4, 2003 (PDF file).  The bottom line of the analysis is that it is a local policy issue and depends on several factors.

When a federal law is silent on an issue, the individual states can decide or legislate on the issue.

State Privacy Laws

The next hurdle to overcome is what state law says on privacy and audio recordings.  Each state has its own laws regarding the consent required to audio record events, even if they are ‘public’ events.

Some states are known as ‘dual consent’, which means both parties must know about and agree to the recording.  Some states are ‘single consent’ which means that only one of the interested parties (usually the parent who wishes to record the IEP meeting) has to agree to it.

While not exhaustive of every state’s law, the Digital Media Law Project collected links to some state’s laws on this issue.  This site is not being kept up to date, so make sure you check your own state’s law on recording or consult with a local attorney.

School District Policies

It is therefore left to the State Educational Agency (SEA) or Local Educational Agency (LEA) to determine the policy on audio recording these sessions.

The SEA or LEA (local school district) may issue a policy requiring, prohibiting, limiting or in any other way regulating audio recording of IEP Meetings.  If the public agency has a policy that prohibits or limits the use of recording devices at IEP meetings, the policy must have exceptions necessary to protect parental rights, such as the ability to understand the IEP or the IEP process. Any such policy on tape recording IEP meetings must be uniformly applied.

Protecting Access to Recordings

Any recording of an IEP meeting maintained by a public agency is an “education record,” within the meaning of the Family Educational Rights and Privacy Act (FERPA)[1] and would be obtainable by the parents through a written request.  It would also be subject to the protections of FERPA prohibiting its release to anyone not authorized under that law.

So what do you do?

Parents wishing to use audio or video recording devices at IEP meetings should consult state laws or local school policies for further guidance or consult with a local education attorney.

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[1] 20 USC §§1232g and 1232h; Regulations 34 CFR §99.1 et seq.

What documents should be in your child’s special education binder?

If you are a parent of a special education student or advocating for one, do yourself a favor and . . .

PRINT OUT THIS ARTICLE (or at least the plan below).

Not only will this article save you time and lots of money, it will help you understand how best to help your child with a disability.

When clients contact me, most are armed with a box (or seven) of documents about their child’s special education.  It is wonderful that they are documenting their child’s path and what the school district is doing (or not doing) for their child.  It should be the mantra of every parent of a child with a disability: DOCUMENT EVERYTHING!

But . . .

Usually, the documents clients provide me are overkill and disorganized.  Inside the box(es) is a pile of papers, often not in order. I doubt highly that a client wants me to bill them at $375.00/hour to go through those papers to organize them and figure out what I need.  Thus, before you meet with a lawyer or advocate, you should organize your child’s special education documents first.  You should do this even if you are advocating for your own child.

Here is a plan to explain which documents you need, which documents you don’t need, and how to organize them.

THE PLAN

1. Get a 2″ 3-ring binder with dividers.  Label the dividers as follows: MEDICAL, FAMILY BACKGROUND, EVALUATIONS, IEPs / 504 PLANS, and SCHOOL DOCS.

2. Under MEDICAL, include any papers from the original diagnosis of your child.  Also include any changes to that diagnosis (e.g. ADHD -> Autism Spectrum Disorder).  Also include a list of any major medical events, such as surgeries, hospital in-patient stays, broken bones, major or chronic illnesses, and allergies (don’t forget dental events, such as tonsillectomies, baby teeth extractions, etc.)  As best you can, document the dates and locations of these medical events, as well as treatments received.  Finally, if there are any related medical or psychological disorders in the immediate family, note those here as well (e.g. grandfather diagnosed with Alzheimer’s, uncle diagnosed with ADHD, etc.)  Finally, in the front of this section, place a list of all current physicians and medical providers seen by your child – primary care physician, occupational therapist, physical therapist, psychiatrist, psychologist, speech therapist, etc.  Make sure you have their name, the service they provide, and contact information (phone number, email address, website).

3. In the FAMILY BACKGROUND section, include notes of milestones in your child’s development (e.g. date first crawled, date first walked, date first spoke, first spoken words, etc.), especially any noted delays in such development.  Also provide a narrative of your family makeup and any major changes, such as number of living grandparents, parents, child’s siblings, aunts, uncles, etc.  It is critical to be honest about family events, such as divorces or separations, geographic relocations, domestic violence, financial or other stress, etc.  Place in this section other matters of importance in your family culture, such as religious beliefs, school history including any changes in school, ethnic celebrations, etc.  If you are in a divorced family, you should include anything that changes the name of the child and also any court order regarding physical custody, visitation, and especially legal custody or who has the right to make educational decisions for the child.

4. Do not include every evaluation of the child ever performed.  In EVALUATIONS, place only the most recent evaluations of the child.  These evaluations should be no more than 3 years old.  If the evaluations occurred more than 3 years ago, do not include them.  Thus, if this section is empty, one of the things you will be requesting is a new comprehensive educational evaluation of your child.

5. Like EVALUATIONS, within the IEPs/504 PLANS section do not include every IEP or 504 Plan since your child’s birth.  (That’s supposed to be humorous.)  My recommendation is to only include the current approved IEP or 504 Plan and all approved ones going back two school years.  You should only include a draft IEP or 504 Plan if it is related to the current approved IEP or 504 Plan (to show how the school changed or omitted certain information) or it is a current proposed IEP or 504 Plan with which you disagree.  Old drafts should be discarded because approved IEPs and 504 Plans overrule those drafts. Thus, this section should be at a maximum, 3-5 documents, especially since these are typically very long documents (you may consider only including pages from prior plans or drafts that conflict with the one currently at issue.)

6. The SCHOOL DOCS section is the trickiest of all.  My rule of thumb is when in doubt, include it.  First, if you haven’t done so already, send a FERPA request to the school for your child’s records.  (Click on the link to the left to read more about FERPA requests.)  At the beginning of this section, provide a list of all contact points at the school with names, phone numbers and email addresses of the superintendent, principal, assistant principal, all teachers that see your child, all service providers that see your child, all persons involved in lunch and/or playground monitoring, and any other person that your child may encounter in school.  Also include anyone on the IEP Team (Child Study Team) that is not included in the prior list, such as school psychologist.  [Why do this? First, it will assist your attorney or advocate into knowing who the players are.  Second, it will show the IEP Team that you are more than prepared when you show up at an IEP Team meeting with the list.  Can you imagine the fear on the faces of the IEP Team members when they see their names and contact information on a list in your notebook? Make sure you turn to that page in your binder when you first sit down.]  You should include here results from your child’s standardized tests, report cards, any disciplinary reports, absent/tardy reports, progress reports (triggered by the current IEP or otherwise), and any other key documents that discuss your child’s current levels of academic achievement and functioning in the school environment (sometimes emails from teachers or among teachers and administrators provide the true story).

Your binder may be huge, but volume is not the problem.  Disorganization is the problem which the binder resolves.  You, your attorney, or your advocate will appreciate this effort.  And, as stated previously, it will help zero in on the real issues your child with a disability is facing in the school environment.

[This article and other helpful tips for your child’s IEP are in our FREE report 5 Easy Steps for a Successful IEP MeetingDownload your copy here.]

For more on this and related topics, consider purchasing the book SchoolKidsLawyer’s Step-By-Step Guide to Special Education Law: Workbook for Parents, Advocates and Lawyers available now from Amazon.com or direct from SchoolKidsLawyer.com.

 

 

Aggravation in trying to access student records

As you may know if you have been reading my 2 Things: Special Education Law Tips Newsletter, there are laws which grant access rights to parents of their student’s educational records.  This is especially true when the student is a child with a disability.  Such rights are granted by the Family Educational Rights and Privacy Act (FERPA) and its regulations (20 U.S.C. §§1232g and 1232h and 34 C.F.R. §99.1 et seq.), by the Individuals with Disabilities Education Act (IDEA) and its regulations (20 U.S.C. §1415(b)(1)), and usually also by state laws and regulations (for example, in New Jersey it is the Special Education Code N.J.A.C. 6A:14-2.9).

But schools and their lawyers put up roadblocks to parents trying to review their child’s file.  First, often they do not even inform the parents that they have the right to review those records, even though the law says they must tell the parents of such right.  See 34 C.F.R. §99.7(a).  Second, schools and/or their attorneys play games with the definition of “education records” so as to block parents from seeing ALL of their child’s file, even though “education records” is clearly defined by the laws.  See 34 C.F.R. §99.3 Education Records.  That definition has very few exceptions, so essentially everything “maintained by an educational agency or institution or by a party acting for the agency or institution” that is “directly related to a student” must be produced to the parent.  34 C.F.R. §99.3 Education Records.

There are some other delay tactics that schools will play, but from my perspective the most aggravating one is that the schools and/or their counsel take the position that I, as the attorney for the parent(s), may not review the records; that it must be done by the parents themselves.  This is an inaccurate statement of the law and purely meant to obstruct this right.  Most state laws permit the access and review of the records by a “designated representative” of the parent, e.g. the parent’s attorney.  See e.g. N.J.A.C. 6A:14-2.9(b).  I can understand the precaution if a neighbor wants to review the records, in which case a school should make sure that such neighbor has the consent of the parent.  But when an attorney has already represented in writing that he/she is counsel for the parent, he/she is, by the nature of being an attorney-at-law, the legal designated representative of the parent.

This is the type of nonsense that needs to STOP in special education cases.  This is a source of my anger at the legal profession because it reeks of a lawyer trying to rack up fees instead of having his/her client obey the law.  It is no wonder that parents are so frustrated and annoyed by schools anymore, because it just seems like schools would prefer to play a litigation game rather than do the right thing for a child’s education.  IMHO, of course.

Top Ten Special Ed Law Tips

Sometimes you just need some quick tips to help you through the maze that is special education law.  Fair enough.  Here are my Top Ten tips for parents and advocates:

1.  Put everything in writing!  Document every single thing you do as it will only help your child and help if you find yourself in a dispute with the school.  Email is best because it has a date, time, and recipients noted.

2.  Make them put everything in writing!  Not only should you document everything, make the school do the same.  If they say something during an IEP meeting or agree to a service, make them put that in the IEP or in writing to you.  An old saying goes “If it isn’t in writing, it didn’t happen.”

3.  Do not sign anything until you are 100% sure about it.  If you need to consult with an attorney or expert in special education, do so.  If there is any doubt in your mind, don’t sign a document.  Make sure your child is getting the services you believe are necessary.

4.  Keep your expectations reasonable.  This does not mean that you shouldn’t demand the moon for your child; you should.  But also realize that schools have lots of kids – sometimes lots of other disabled kids – and they have limited budgets.  Talk to someone to make sure you are not being unrealistic in what you ask for.

5.  Consult a special education expert about what your child needs.  You need to be able to translate your child’s needs into concrete things a school can do for your child, whether that is different curriculum, access to the classroom, therapies, services, etc.  A good education advocate or education psychologist can often help you know what your child needs.  And don’t jump onto bandwagons, such as the 1-on-1 aide bandwagon; such aides are helpful, but only when your child actually needs that.  For example, if your child is dyslexic, an aide won’t do much for your child unless that aide is a dyslexia specialist.

6.  Be prepared!  I know I sound like the Boy Scouts, but it is a good motto for special education.  Read as much as you can about your child’s disability; make sure you understand your child’s challenges (reading? writing? math? social? behavior?).  Go into an IEP meeting or any other interaction with the school armed with tons of information – more is better.

7.  Know your rights.  Most parents don’t know their and their child’s rights under the law for special education.  First, the school should give you “procedural safeguards” that list your rights.  Read that carefully or consult with a special education lawyer who can tell you your rights.

8.  Keep your emotions in check.  I know this is easier said than done when it comes to your child, but yelling matches never accomplish anything.  This is why advocates are sometimes helpful because they can remain calm and objective.  Remember what our mothers always told us: “You catch more flies with honey than with vinegar.”  If you follow Tip #6 above, it will help you follow this Tip.

9.  Take copious notes.  Write down everything, especially at an IEP meeting.  Again, this may be when an advocate comes in handy.  Parents are often overwhelmed at these meetings and intimidated by the sheer number of people around the table “on the other side”.  You will need notes to confirm what you heard and make sure everything is in the IEP that should be.  These notes also come in handy if you end up in a dispute with the school.  Keep a journal or diary or let your advocate do that.

10.  Don’t back down.  This is an easy thing to do when you think “it’s me against an entire school district.”  But if you have followed all of the Tips above and you still feel strongly that you are asking for the right things for your child, do not let them convince you otherwise.  They are obligated by LAW to provide a Free Appropriate Public Education (FAPE) to your child with a disability.  And if you have to fight them and you win, you can be reimbursed for your attorney’s fees.  So don’t be afraid to do battle.

I hope these are helpful.  If you need more tips beyond these 10, consider getting our book “Schoolkidslawyer’s Step-By-Step Guide to Special Education Law” which also includes forms and an explanation of the entire special education process for you.

And always, you can contact me for a consultation at 856-335-5291 or info@schoolkidslawyer.com.

 

Tales from the Front – Actual (Illegal) Statements Made by School Personnel

I did a seminar recently. My seminar was on what to expect at an IEP/504 meeting. Here are some of the comments I heard from parents spoken to them by school districts:

“We are at our quota of eligible disabled students already. We can’t have more.”

“Evaluations must be done in the summer time.”

“Your child (with muscular dystrophy) is not allowed to use a wheelchair in school.”

“[A disciplinary action against a child with a disability and IEP] is completely an internal school matter. You don’t need to worry about it.”

[From a case manager] “I’m not sure what to do. What do you want me to do?”

“You want a person assigned to your child (in a manual wheelchair) to ensure they get out of the school during an emergency? We don’t do that.”

“[A child with MD but not in a wheelchair] is not entitled to use the elevator. She must use the stairs.” (Child falls a lot).

“Your child is depressed.” (No, exhausted from fatigue by the middle of the school day.) “She needs to be on anti-depression medication so that her grades improve.”

[Child has received 50s and 60s on math tests, yet child got a “B” on her report card].
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I heard these statements with great dismay. They are not only false, hurtful, and deceitful, they are illegal. The law protects against all of these things, but too often parents don’t know that the schools are wrong.

If you think the school is telling you incorrect things concerning services or accommodations for your disabled child, please contact a special education lawyer or advocate and ask questions.


What’s a FERPA letter?

For those of you who are new to education law or are in a battle with your school district to make sure your disabled student is getting a “Free Appropriate Public Education”, you may have heard the term “FERPA” or been told to send a “FERPA letter“.  And you’re probably wondering “What the heck is a FERPA letter?” but are too proud / afraid / embarrassed to ask.  Well, now you’ll know!

FERPA is an acronym standing for the “Family Educational Rights and Privacy Act” [a U.S. federal law located at 20 U.S.C. §§1232g and 1232h and with regulations located at 34 C.F.R. §99.1 et seq.]

Now, that doesn’t tell you much, but it is a VERY powerful law.  The most important part of this law is that you, as a parent of a minor student (regardless of whether the child is disabled or not; the law applies to EVERY student), are entitled to see and make copies of EVERY document that is in your child’s educational records file.  This means, any document that is generated about your child as a student in your school district MUST be made available to you to review and copy.

  • If a teacher writes a note about your child, you get to see it.
  • If they test your child, you get to see the test, the results of the test, and the testing methodology.
  • If they evaluate your child, you get to see the evaluation, the credentials of the person who did the evaluation, the results, and the methodology.
  • If a disciplinary report is made about your child, you get to see the report, the investigation (if any), and any notes made (including those by witnesses, etc.)

In other words, every scrap of paper that has something on it about your child, you get to see it.  There are some limitations, but not many.

As a lawyer, I have sample FERPA letters that I use in nearly every case.  Because it is critical to know what is in your child’s file.  Here are some tips if you do this on your own (but I do recommend that you at least consult with an attorney who knows this law and its limitations and, more importantly, how the school’s try to circumvent the law or misinterpret the law):

  • Do NOT write on the original documents or your copy of the document.  Why? If you need this document later in a legal battle, you need to preserve it exactly as how they have it (otherwise, they can say you altered the document to your benefit)
  • Make sure you ask for EVERYTHING.  You may not know what “everything” is (another reason to consult a lawyer), but when in doubt, ask for it anyway.  The worst they can do is say no (and they may be flat out wrong, which gives you a reason to contest them later).
  • They can charge you for copies, but the charge must be reasonable.  And they can’t block you because it is too expensive or takes too much time to copy.  If you need more than one visit to review or copy everything, make as many visits as possible.

Download your very own FREE form FERPA letter from our website here.

(This is federal law, so it doesn’t matter where you are located to discuss this with me).

There is a lot more to know about FERPA letters and other documentation of your child’s school experience in our book SchoolKidsLawyer’s Step-By-Step Guide to Special Education Law.

Pass the IEP, please!

You remember at the dinner table (perhaps most notably the Thanksgiving Dinner table) when you would ask someone to pass something along?  Maybe it was the stuffing bowl; maybe it was the cranberry sauce; maybe it was the dinner rolls; or maybe it was the fruit cake (OK, I know it wasn’t the fruit cake because no one asked to have that passed, unless it was to pass it along to the waste basket).

The point is, you wanted to make sure everyone at the table had equal and full access to every part of the meal.  Wouldn’t you have felt left out if you didn’t get any mashed potatoes? or Pumpkin Pie?  or [insert your favorite part of the meal here]?  Of course you would.

The same principle applies to your child’s IEP.  You want to make sure each and every teacher and school staff member that may encounter your child has equal and full access to your child’s IEP.

Failure to do so might result in one teacher violating the IEP unknowingly or not knowing how to respond to a certain situation.  For example, if the gym teacher doesn’t know that Tina isn’t supposed to be required to participate in group sports and the gym teacher makes her the pitcher in softball, Tina may have a complete meltdown or other reaction that triggers her disability.  Then Tina may have to miss her remaining classes for the day, all because the gym teacher didn’t even know Tina had an IEP and wouldn’t have assigned her to that task had she known.

As a parent, do not assume the school has circulated your child’s IEP to all of the contact points.  You need to handle this yourself.  Whether that means sending an electronic copy to each contact person by email or even walking a hard copy in to every person, you need to assure that this is done.  You need to consider every potential aspect of your child’s day: special education teachers; general education teachers; “specials” teachers (art, music, gym, computer lab, etc.); school nurse; school guidance counselor; director of special education; vice principal; principal; even the janitor, if that person interacts with your child.  So what if they’ve already received it?  A duplicate is not going to harm them (and an electronic duplicate doesn’t harm the environment).

This is not a silly concept.  If your child is experiencing some aspect of his/her disability, let’s say it is epileptic attacks, and a teacher encounters your child not knowing what is going on, they may make an incorrect and potentially dangerous decision.  A simple thing like providing these personnel with the IEP at least will clue that person into the fact that someone in special education or the medical staff need to be alerted to the situation.

So, much like the salt and pepper on the dinner table, make sure you pass the IEP to everyone at your child’s school to avoid any misunderstandings and help your child succeed in the system – even if they never have need of the IEP (like the salt).