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Draft IEPs: Are Schools Required to Provide a Copy to Parents
Before the IEP Meeting?

I have a question about the recent poll results about draft IEPs.

You wrote: "Fifty-two percent of you chose the answer 'Yes, but the IEP team needs to provide the parent with a copy before the IEP meeting' - the correct answer."

Can you cite any federal statute or regulation to this effect? While I wish this were so, I believe the correct answer is "Yes, because it's just a draft for discussion and -- [possibly] efficiency."

I'm not aware of any legal source that states that the parent has a right to a copy of the draft IEP ahead of time. Can you provide your authority?

Answers to Questions in the Commentary

When the Education Department published the federal special education regulations in August 2006, they also published the Analysis of Comments and Changes ("Commentary") and Model Forms. (Federal Register, Volume 71, pages 46540-46845, published on August 14, 2006).

The Commentary provides definitions and discussions of legal terms in IDEA 2004 and the special education regulations. In the Commentary, the Department explains why a regulation was changed or not changed, what the Department intends, and clarifies the "plain meaning" of terms.

Judges often cite the Commentary in their decisions. For example in K.L. v. Mercer Island School District (W.D. WA 2006), the Judge cited the Commentary to the IDEA 97 regulations to support the position that methodology is an issue that needs to be addressed in the IEP.

We published the Commentary to the IDEA 2004 regulations in one large file and as several smaller files at:
https://www.wrightslaw.com/idea/commentary.htm

Commentary about IEPs / Regs 320-328 (pages 46661 through 46688)
https://www.wrightslaw.com/idea/comment/46661-46688.reg.320-328.ieps.pdf

Here is what the Commentary says about draft IEPs:

"With respect to a draft IEP, we encourage public agency staff to come to an IEP Team meeting prepared to discuss evaluation findings and preliminary recommendations. Likewise, parents have the right to bring questions, concerns, and preliminary recommendations to the IEP Team meeting as part of a full discussion of the child’s needs and the services to be provided to meet those needs.

"We do not encourage public agencies to prepare a draft IEP prior to the IEP Team meeting, particularly if doing so would inhibit a full discussion of the child’s needs.

"However, if a public agency develops a draft IEP prior to the IEP Team meeting, the agency should make it clear to the parents at the outset of the meeting that the services proposed by the agency are preliminary recommendations for review and discussion with the parents.

"The public agency also should provide the parents with a copy of its draft proposals, if the agency has developed them, prior to the IEP Team meeting so as to give the parents an opportunity to review the recommendations of the public agency prior to the IEP Team meeting, and be better able to engage in a full discussion of the proposals for the IEP. It is not permissible for an agency to have the final IEP completed before an IEP Team meeting begins. (FR 46678)"

You can read this text in page 46678 of the Federal Register which you can download from:
https://www.wrightslaw.com/idea/comment/46661-46688.reg.320-328.ieps.pdf

We hope this is helpful and answers your questions.

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