027-12 IEP Team Composition: Manifestation Determination Review Meetings & Resolution Sessions

Does a parent have an "equal right" in the determination of the IEP team composition when the purpose of the meeting is for manifestation determination review (MDR) or Resolution Session in a due process proceeding?

No. Both the federal and state regulations governing special education mandate the composition of the IEP team when the team meets for the purpose of MDR or Resolution Session. The team must be comprised of the "…local educational agency, the parent(s), and relevant members of the child’s IEP team, as determined by the parent and the local educational agency…". (emphasis added) (MDR: 34 CFR §300.530(e)(1); corresponding Virginia Regulations at 8 VAC 20-81-160D.2; Resolution Meetings: 34 CFR §300.510(a)(4); corresponding Virginia Regulations at 8 VAC 20-81-210Q.1.d).

During the public comment period on the revision of the IDEA federal regulations, this question was raised to the U.S. Department of Education’s Office of Special Education Programs (OSEP). OSEP only advised LEAs and parents to "…act cooperatively in determining who will attend the resolution meeting." (Analysis, Federal Register 46701, regarding resolution sessions in due process proceedings).

We are guided, however, by a Virginia Federal District Court decision on this subject. (Fitzgerald v. Fairfax County School Board, U.S. District Court, 50 IDELR 165, 2008). In this case, the parents asserted that they had an "equal right" (their words) to determine the individuals who attend MDR meetings. As the Virginia Hearing Officer determined and the federal court upheld, the parents misread the law and regulation in this regard. The court especially noted that the law does not mean that the parents and LEA must agree on identity in all team members, or that parents have a veto on members. The court emphasized that like any IEP team meeting, "…the LEA determines the school system’s MDR members and the parents may determine whom they wish to invite in addition to those designated by the school and the LEA."

Additionally and significantly emphasized by the hearing officer and court, neither the IDEA nor its implementing regulations give parents veto power over which specific LEA or school personnel serve on the IEP team. This application of the law is consistent for IEP teams no matter whether the purpose of the meeting is MDR, Resolution Session in due process proceedings, or any other IEP team meeting. Thus, the parents’ participation in determining the composition of the IEP team is limited to inviting individuals who, in their opinion, "have knowledge or special expertise regarding the child." (34 CFR § 300.321(c); corresponding Virginia Regulations at 8 VAC 20-81-110 C.1.f.) (see Fitzgerald).

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