‘Predetermination’ in a nutshell and how to avoid it

When school IEP team members decide prior to a meeting what they're going to put in the IEP, it opens up school districts to legal disputes.
By: | November 16, 2020
Getty Images, South_agencyGetty Images, South_agency

The right of parents to participate in developing their child’s IEP is a cornerstone of the IDEA. See 34 CFR 300.501(b); 34 CFR 300.321(a)(1); and 34 CFR 300.503(a). For that reason, it’s critical for the school-based IEP team members to discuss and genuinely consider the parent’s input at IEP meetings. School team members cannot truly do that if they decide what they’re going to put in the IEP before the meeting begins. This is known as “predetermination” and often leads to legal disputes with parents.

To avoid predetermination, the IDEA effectively requires that school-based team members enter an IEP meeting with an open mind. It’s OK for team members to have opinions. But they need to be ready and willing to listen to and consider what the parent has to say about the child’s needs.

While no hearing officer or court can get inside an educator’s mind to see if they entered the room (or virtual meeting space) with an open or closed mind, hearing officers and courts can—and often do—make decisions about predetermination based on team members’ words and actions. The following points can help team members avoid such a result.

Refrain from demonstrating a closed mind

Educators should avoid doing or saying things either prior to or at the meeting that indicate a decision about a student’s IEP content or placement was set in concrete before the meeting started.

For example: An IEP team leader or other school-based team member may engage in predetermination by emailing another team member prior to the meeting that the district won’t provide more than 30 minutes of speech services and sticking to that limit regardless of the parent’s statements that the child requires more minutes to make progress.

Bringing a draft IEP that is not clearly marked “draft” and failing to explain that the document is just a starting point for discussion can give the parent the impression that her input doesn’t matter. In the mind of a hearing officer or judge, it can also raise a red flag that the district may have made up its mind before it entered the room.

Actively show you are willing to consider parental input

To avoid predetermination, or the appearance of predetermination, school-based team members should do more than refrain from speaking or acting in a way that suggests their minds were closed when they sat down at the table. They should also proactively do and say things designed to help parents participate and remain involved (this is even more important in virtual meetings, where it’s easier for a parent to disengage).

For example, to get the parent involved in an active, meaningful way, school team members, and in particular the team leader, should, at a minimum:

  • Ask the parent questions.
  • Respond to the parent’s input.
  • Have someone take notes when the parent speaks.
  • When appropriate, incorporate the parent’s input into the IEP.

Seemingly small actions such as placing the parent in a position where he can easily see and hear the other team members, especially the team leader, can also help show the school was going out of its way to include the parent.

Participation doesn’t mean you have to agree, though. School team members are not required to agree with the parent or change the IEP merely because the parent desires the change. The right to meaningful participation merely means that the team must listen to and consider parental input and, if appropriate, revise the IEP based on that information.

Joseph L. Pfrommer, Esq., covers special education legal issues for Special Ed Connection, a DA sister publication.