October 22, 2015 IEP Facilitation PILOT Program
KEEPING YOU INFORMED…
The New York State Education Department has announced that, effective immediately, it is initiating a three year “Individualized Education Program (IEP) Facilitation Pilot Program” in school districts on Long Island and in New York City schools in Queens and the Bronx.[1] The Program allows districts and parents to appoint a neutral third party “IEP Facilitator” to assist them with communication and problem solving during committee on special education (“CSE”) or committee on preschool special education (“CPSE”) meetings. While the Program may be used for any CSE/CPSE meeting, it is primarily intended to be used when communication between the parties is breaking down and an agreement on an IEP is unlikely. The goal of the Program “is to develop and sustain collaborative, productive relationships between CSE/CPSE members, keep meetings student-focused and reduce adversarial disputes during the IEP development process.”
The Program is a “voluntary early dispute resolution option” that requires the mutual agreement of both the District and the student’s parent(s) to initiate. To start the process, a District and a student’s parent(s) must jointly sign NYSED’s IEP Facilitation Request Form.[2] Upon the District’s submission of the form, NYSED will provide the District with a list of selected IEP Facilitators who have been trained in IEP facilitation by nationally-recognized trainers. The District and the parent(s) then confer with regard to the list in an effort to mutually agree upon a Facilitator who can timely participate in the student’s IEP meetings.
Although NYSED’s request form provides that the District “will appoint an IEP Facilitator upon receipt of the names and consideration of parent input,” NYSED has confirmed to us that, if the parent(s) does not agree with the Facilitator appointed by the District, he/she/they may withdraw from the IEP Facilitation process.
Following the selection process, the Facilitator, the District and the parent(s) are required to enter into an “Agreement to Participate in IEP Facilitation” that, among other things: (1) authorizes the Facilitator to receive personal information about the student; (2) provides that the Facilitator cannot act as a legal representative, counselor, advocate, judge or arbitrator for any party; (3) confirms that the Facilitator cannot make IEP recommendations; (4) provides that the Facilitator will not be asked to be a party or be called as a witness or consultant in any later proceedings; and (5) states that no records, notes or other work product of the Facilitator will be called for or subpoenaed in the future by any party.[3] The agreement further limits liability among the parties for any actions or omissions that occur in connection with the IEP Facilitation process and provides that IEP Facilitation will not deny or delay a parent(s)’ right to a hearing or a due process complaint, or the parent(s)’ and District’s use of mediation to settle disagreements.
Once IEP Facilitation is invoked, the IEP meeting is conducted in the same manner as any other IEP meeting except, that the neutral IEP Facilitator joins the meeting. The IEP Facilitator is not a decision-maker and instead is there only to help all sides engage in the “collaborative and productive construction or revision of a quality IEP.”[4] Following completion of IEP Facilitation, each CSE/CPSE member involved in the meeting(s) will be asked to complete a voluntary evaluation form for NYSED describing the process and how well the Facilitator performed in meeting his/her role in helping the committee to develop a mutually agreeable IEP.[5]
During the Pilot Program, NYSED will pay the full cost of all IEP Facilitators. NYSED will soon be publishing its list of certified IEP Facilitators.
If you have any questions regarding the IEP Facilitation Pilot Program, please contact us.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2015
[1] See NYSED’s Special Education Field Advisory, “Individualized Education Program (IEP) Facilitation Pilot Program,” available at http://www.p12.nysed.gov/specialed/dueprocess/iep-facilitation/documents/IEPFacilitationFieldAdvisory.pdf .
[2] See NYSED’s “IEP Facilitation Request” Form, available at http://www.p12.nysed.gov/specialed/dueprocess/documents/RequestForm.pdf.
[3] See NYSED’s “Agreement to Engage in IEP Facilitation,” available at http://www.p12.nysed.gov/specialed/dueprocess/documents/AgreementForm.pdf.
[4] See NYSED’s Guidance regarding “Role of the IEP Facilitator,” available at http://www.p12.nysed.gov/specialed/dueprocess/documents/RoleofIEPfacilitator.pdf; see also NYSED’s Guidance regarding “The IEP Facilitation Process,” available at http://www.p12.nysed.gov/specialed/dueprocess/documents/Process.pdf.
[5] See NYSED’s “Evaluation” Form, available at http://www.p12.nysed.gov/specialed/dueprocess/documents/EvaluationForm.pdf.