IDEA Violated by Change in Student Placement without Parental Input

When I first glanced at the ruling in this case, issued by the Ninth Circuit Court of Appeals two weeks ago, I thought it was a no-brainer. The IDEA is very clear that parental input in the development and modification of a student’s IEP is critical. The facts of this case, though, is what makes it interesting.

The student in question, Spencer, who was fifteen years old at the time, had been diagnosed with autism at the age of two and received special education services from the Maui District of the Hawaii Department of Education. Beginning with the fifth grade, Spencer was placed in a private special education facility pursuant to his IEP at the expense of the Department of Education. On November 9, 2010, the Department of Education held Spencer’s IEP ┬áreview meeting, despite his father’s inability to attend the meeting on that day. As a result, the Department changed Spencer’s educational placement, placing him in a workplace-readiness program at the local public high school.

The central issue in this case, as the court pointed out, was whether the Department of Education’s efforts to include Spencer’s father, Doug, in the November IEP meeting, though unsuccessful, were sufficient to meet the requirements of the IDEA. According to members of Spencer’s IEP team, the IEP meeting was originally scheduled for October 28. Doug testified, however, that he thought the October date was only tentative, and when he was contacted by a member of the IEP team to confirm the date, he stated he was unavailable that day, and they rescheduled for November 4 or 5. Doug, again believing this date was only tentative, contacted the IEP team to again let them know he was unavailable on that day, and they rescheduled firmly for November 9. On the morning of the 9th, Doug emailed a member of the team to explain that he was sick and unavailable to attend the meeting that day. Though both the IEP team and Doug offered several different days to reschedule, they could not firmly agree on a particular day. The IEP team suggested that he participate by phone or the internet, but Doug explaned that he wanted to be physically present at his son’s meeting, and he did not feel physically well enough to participate meaningfully through any means that day.

The IEP decided to go through with the IEP meeting on November 9 despite Doug’s absence. When presented with the new IEP that changed Spencer’s placement from a private academy to the local public high school, Doug explained to the IEP that he rejected the IEP entirely because he was excluded from the meeting. Doug sought a due process hearing, and both the administrative hearing officer and the district court found that the Department of Education did not deny Spencer a Free Appropriate Public Education (FAPE). Doug appealed.

In reiterating the importance of parental participation in the IEP process, the Ninth Circuit Court of Appeals described the parental participation safeguards as “among the most important procedural safeguards” in the IDEA and explained that “procedural violations that interfere with parental participation in the IEP formulation process undermine the very essence of the IDEA.” The court explained that “a meeting may only be conducted without a parent if the public agency is unable to convince the parents that they should attend.” In this case, Doug did not affirmatively refuse to attend, but rather, objected to the IEP team meeting without him. The court found that though it may have been difficult and frustrating to schedule a meeting with Doug, the Department of Education was not excused from doing so.

The Department’s main argument in the case was that it could not accommodate Doug’s schedule because the annual IEP meeting deadline for Spencer was November 13. Because Doug could not firmly commit to attending the meeting on either November 10 or 11, the special education coordinator did not want to disrupt the schedules of other members of the IEP team without a firm commitment. However, the court explained that under the IDEA, the attendance of a parent must take priority over the attendance of other team members. The court further explained that it was unreasonable for the Department to assume that it could not reschedule for some date after the November 13 deadline, as the court rejected the argument that the Department was authorized, let alone required, to cease providing services to a student simply because his annual IEP review is overdue.

Finally, the court answered the question of what a public agency should do when confronted with the situation of being unable to meet the two distinct IDEA procedural requirements of parental participation and timely annual review of a student’s IEP. The court held that in this situation, the agency must make a reasonable determination of which course of action promotes the purpose of the IDEA and is lease likely to result in the denial of a FAPE. The court explained that delays in meeting IEP deadlines do not deny a student a FAPE when the student is denied no educational benefit. However, the lack of parental participation does deny a FAPE. In this case, the Department’s decision to prioritize strict deadline compliance over parental participation was unreasonable.

Though Ninth Circuit Court of Appeals decisions do not affirmatively apply in Arkansas, this is a good reminder for Arkansas schools of the importance of accommodating parents, regardless of how frustrating that might be. You can find a copy of the full opinion here.

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