Do I Have to Tell If I Tape-Record the IEP Meeting?

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tape recorderCan I tape record the IEP meeting without telling the CSE committee?  Is it legal?

Without regard to any particular state or federal law, except for law enforcement personnel, in general if someone records a meeting or a telephone call without knowledge of the other person, frequently it is not admissible evidence in any litigation. It may be a crime committed by you.

The question then is… what would you be able to do with it? Quite possibly nothing!

A Better Way

What I always told my clients, NEVER tape record someone without their knowledge, whether over the phone or face to face.

Once people know that you’ve taped without knowledge, even those on your side of the fence will always wonder if you are taping their conversation with you.

They will always be cautious and distrustful of you.

For a meeting, a better approach is:

  • take detailed notes
  • when concepts/conclusions/agreements are discussed or reached, repeat it back to be sure you understand it clearly
  • as you repeat it, write it out as best you can, word for word (or bring someone who can serve as your notetaker)
  • after the meeting, write a nice thank you letter

Stucture your letter like our “letter to the stranger” at:

http://www.wrightslaw.com/advoc/articles/Letter_to_Stranger.html

  • Address your letter to the meeting chair.
  • Repeat your understanding, agreements reached, not reached, etc., in the letter.

Find more information, letter writing strategies and tips, and resources on our Paper Trails, Letter Writing & Documentation page.

http://www.wrightslaw.com/info/ltrs.index.htm

Tape Recording Telephone Calls

For a telephone call, on occasion, I had my clients tape record just their side of the conversation.

Ensure all that can be heard on the recording are your own words, such as:

BEGIN

Let me be sure I understand, you just said you would arrange for a comprehensive evaluation and determination of eligibility of my child within 60 days.

(Silence as we cannot hear the answer.) Okay, I just looked at the calendar and 60 days from today would be by Monday, August 3. It was my understanding that the evaluation and determination of eligibility was 60 calendar days from your receipt of my written consent to evaluate, and I hand delivered that two weeks ago. Don’t you think we can complete this before the end of July?

(Silence as other person responds.) That’s great, so now we are looking at an eligibility meeting no later than the week of July 20 Many thanks. Is there anything further you need from me?

(Silence as other person is responding.) You have my email address, home and cell numbers, and I can also receive text on my cell, so I will wait to hear from Ms. Jones who I understand may be able to start the initial testing next week. I will keep our schedules clear, thanks again, bye.

END

Document Your Call

You now have a recording of your side of the conversation.

After the telephone call, follow up with a nice thank you letter for their moving the date forward.  Re-assert that you will keep your schedule and that of your child as clear as possible next week.

My rule, that I preach in my day long training programs is that “If it is not in writing, it was not said!”

So, because it was not in writing, the rule is that…

the agreement to evaluate and determine eligibility no later than the week of July 20 was never said … was never agreed to.

It was only said, verbally.

Lock it up, in writing!

Your letter then locks it up, because it is now in writing, even if that writing is a nice thank you from you.

That letter becomes much more powerful evidence if they drop the ball and do not do the evaluation and determination of eligibility.

If there is a subsequent due process hearing, then an additional exhibit would be your transcript of your side of the recording of the telephone call.

However, this may all be a non-issue. Why?

If the case is based solely on a delay in the evaluation and determination of eligibility process, that would be a procedural issue.

Typically, if the procedural defect / error by the school district did not result in a loss of an educational opportunity and the child was not harmed, then it is a non-issue.

See 20 USC Section 1415(f)(3)(E)(ii) and also footnote 141 at page 115 in our Wrightslaw: Special Education Law, 2nd Ed. book.

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