Failing to Include a Parent at the IEP Meeting Violates IDEA
On June 13, 2013, the U.S. Court of Appeals for the Ninth Circuit issued an important decision about parental participation at IEP meetings. As a part of that ruling, the Court answered several issues and clarified the approach that must be used to determine the proper response when procedural rules appear to conflict with each other.
In Doug C. v. Hawaii, the U.S. Court of Appeals for the Ninth Circuit answered several critical questions pertaining to IEP meetings.
Must the school hold an IEP meeting before the “annual review deadline?” If the meeting is not held, do the child’s services “lapse” until a new IEP is agreed on?
If there are logistical scheduling conflicts for an IEP meeting, is priority given to the schedules of the school staff or the parent?
Can the school cure the failure to include a parent at an IEP meeting by convening a second IEP meeting with the parent within 30 days?
If a school district violates the first prong of providing FAPE (compliance with legal procedures), must the reviewing Court still determine if the district violated the second prong of FAPE (whether the IEP is “reasonably calculated to enable the child to receive educational benefits”)?
If a Due Process Hearing Officer and a U. S. District Court Judge make a finding that the parent’s failure to participate in an IEP meeting did not deprive the child of FAPE, what is the standard of review for a U. S. Court of Appeals? Does it require a “de novo” review of the legal conclusions or a “review of the district court’s findings of fact for clear error?”
On December 6, 2009, Spencer C.’s father, Doug C., requested a special education due process hearing against the State of Hawaii Department of Education because Spencer’s November 9, 2009 IEP meeting was held in his absence.
Doug C. lost at the special education due process hearing and appealed to the U. S. District Court. The District Court upheld the Hearing Officer. Doug C. appealed to the U. S. Court of Appeals for the Ninth Circuit, which reversed.
The key fact in this case is that on November 9, 2009, Kaleo Waiau, the special education coordinator at Maui High School, held an IEP meeting without the parent, child, or a representative from Horizons Academy. The new IEP changed Spencer’s placement to Maui High School.
Spencer was fifteen years old at that time.
Since the “fifth grade, Spencer’s IEP placed him at a private special education facility, Horizons Academy, at the expense of the Department of Education.” Horizons Academy is a “private, non-profit, applied behavior analytic special education school in Maui County.” (www.horizonsacademy.org)
The date of the IEP meeting had been scheduled and re-scheduled several times. The Department of Education repeatedly suggested that it was “difficult to work with Doug C.” and “frustrating to schedule meetings with” him. (Page 12)
The facts of this case are on page 5 and 6 of the decision located at www.wrightslaw.com/law/caselaw/2013/9th.doug.c.v.hawaii.pdf.
The Court explained:
On the morning of November 9, Doug C. e-mailed Waiau at 7:27 a.m. He explained that he was sick and therefore unable to attend the IEP meeting. He suggested rescheduling the meeting for the following week, on either November 16 or 17. The annual review deadline for Spencer’s IEP was Saturday, November 13. According to Waiau, some of the members of the IEP team were not available on Friday, November 12. Therefore, Waiau offered to reschedule for either Wednesday, November 10, or Thursday, November 11, accommodating the other members’ schedules while still holding the meeting before the deadline. Doug C. responded that he could possibly participate on either of those days, but could not definitively commit to either day since he was ill and could not guarantee that he would recover in time. Waiau also suggested that Doug C. participate by phone or the Internet. But Doug C. explained that (1) he wanted to be physically present at his son’s IEP meeting and (2) he did not feel physically well enough to participate meaningfully through any means that day.
Waiau decided to go forward with the meeting on November 9 as scheduled. He testified that he had already asked “13 people on three separate occasions to change their schedules and cancel other commitments” to schedule the meeting. Therefore, without a firm commitment from Doug C. for one of the two dates he proposed, Waiau refused to reschedule the meeting. Waiau and the IEP team held the meeting without the participation of Doug C. The only Horizons Academy staff member on Spencer’s IEP team also did not attend.
(Wrightslaw Note: Emphasis in bold added by Wrightslaw.)
The November 9 IEP was sent to Doug and Horizons with a follow-up IEP meeting scheduled for December 7. The day before that meeting, on December 6, Doug requested a special education due process hearing and alleged that his lack of participation at the November 9 IEP meeting denied his child, Spencer, with FAPE. The father, while present at the December 7 IEP meeting, did not participate. No changes were made to the November 9 IEP.
The Ninth Circuit stated that “The central issue in this case is whether the Department’s efforts to include Doug C. in the November IEP meeting are sufficient to meet the requirements of the IDEA. A close review of the events leading up to the IEP meeting is therefore critical.” “The facts, drawn from the testimony and other evidence presented at a due process administrative hearing before a state hearing officer, are mostly undisputed.” (Pages 4-5)
Department of Education’s Argument, Court’s Response
The Court explained that “The Department’s central argument is that it could not accommodate Doug C.’s request to reschedule because of the impending annual IEP deadline on November 13.” (Page 13)
Department’s counsel represented at oral argument, that if the annual deadline passed without a new IEP, services would “lapse.” The district court took a similar position. We reject this argument because it is premised on the erroneous assumption that the Department is authorized (let alone required) to cease providing services to a student if his annual IEP review is overdue. The IDEA mandates annual review of a student’s IEP. . . However, the Department cites no authority, nor could it, for the proposition that it cannot provide any services to a student whose annual review is overdue. (Page 14)
The Court discussed the balancing of two options, i.e., including the parent versus meeting the procedural timeline. There are two primary purposes of IDEA. The first is to prepare the child for “further education, employment and independent living.” [See 20 USC § 1400(d)(1)(A) and Wrightslaw: Special Education Law, 2nd Ed., page 48]. The second purpose of the law is “to ensure that the rights of children with disabilities and parents of such children are protected.” [See 20 USC § 1400(d)(1)(B) and Wrightslaw: Special Education Law, 2nd Ed., page 48]
In balancing the two options, one must keep the purpose of the law in mind.
The Court explained – “When confronted with the situation of complying with one procedural requirement of the IDEA or another, we hold that the agency must make a reasonable determination of which course of action promotes the purposes of the IDEA and is least likely to result in the denial of a FAPE.” (Page 15)
“Under the circumstances of this case, the Department’s decision to prioritize strict deadline compliance over parental participation was clearly not reasonable.”
The Department also argued that scheduling conflicts of their staff mandated that the meeting be held on November 9. The Court held that the attendance of the parent “must take priority over other members’ attendance . . . [and] Waiau improperly prioritized the schedules of the other members of the team over the attendance of Doug C.” (Pages 13-14)
Did Second IEP Cure Defect of First IEP?
Hawaii argued that the follow-up IEP meeting cured the defects of parental absence at the first IEP meeting. The Court ruled otherwise while quoting the 2003 Ninth Circuit Shapiro case – “ ‘[a]fter-the-fact parental involvement is not enough’ because the IDEA contemplates parental involvement in the ‘creation process’ . . . It is uncontested that, at the time of the December 7 meeting, the new IEP was already completed and adopted. Therefore, the after-the-fact meeting is not enough to remedy the Department’s decision to hold the initial IEP meeting, in which they created the IEP and changed Spencer’s placement, without Doug C.” (Page 16)
In the Court’s opening analysis of this case, the Court explained that in determining if a student is provided FAPE, the Court must “conduct a two-part inquiry.” The first prong is to determine whether the “state complied with the procedures set forth in the Act.” Second, “whether the IEP is ‘reasonably calculated to enable the child to receive educational benefits.’” (Page 8) The Court explained that procedural violations that “infringe the parents’ opportunity to participate in the IEP formulation process, clearly result in the denial of FAPE” and in that instance “the court need not address the second prong.” (Pages 8-9)
Standard of Review for Factual and Legal Conclusions
As a general rule, when a case is appealed from a special education due process hearing to a U. S. District Court, the District Court reviews the administrative record and looks at the factual conclusions of the Hearing Officer / Administrative Law Judge and the legal conclusions rendered by that person. On appeal, there are two factors, findings of fact and conclusions of law.
Typically, a due process hearing has numerous exhibits, and extensive testimony and with differing opinions, conclusions, and recollections from the witnesses. The reviewing judge does not usually determine whether his view of the facts differs from the person who heard live testimony from the witnesses. The reviewing judge is simply looking for clear error by the fact finder, but gives “deference” to that person. If there is error, is it sufficient to justify a different outcome? If clear error does not exist, the reviewing judge generally will not reverse the earlier decision based on the facts of the case.
After the determination of no clear error, then the reviewing judge looks at the legal conclusions rendered by the original judge. In that instance, the reviewing judge does not “give deference” to the legal conclusions of the earlier judge. The HO / ALJ may have misinterpreted a statute, a regulation, or the impact of a legal decision that has precedence. It is the responsibility of the higher court to ensure that the legal concept is not misunderstood or applied incorrectly.
In the review of the earlier legal conclusions, as explained in Doug C., the Court reviews “de novo questions of law, including the question of whether an IEP provides a free appropriate public education (FAPE) . . . We review the district court’s findings of fact for clear error, even when they are based on an administrative record.” (Page 7)
The Doug C. Court found, as a matter of law, that the failure to include the parent at the IEP meeting violated the procedural requirement of IDEA and invalidated the IEP. In quoting a 2003 Ninth Circuit case, this Court explained that “We held that parental “involvement in the ‘creation process’ requires the [agency] to include the [parents in an IEP meeting] unless they affirmatively refused to attend.” (Emphasis added by the Court.)
Question – Must the school hold an IEP meeting before the “annual review deadline?” If the meeting is not held, do the child’s services “lapse” until a new IEP is agreed on?
Answer – “We have further held that delays in meeting IEP deadlines do not deny a student a FAPE where they do not deprive a student of any educational benefit.” (Page 15)
In Doug C., the Court explained that “the Department cites no authority, nor could it, for the proposition that it cannot provide any services to a student whose annual review is overdue.” (Page 14)
(Wrightslaw note – Services do not lapse because of the lack of a new IEP. To terminate services, a school district must first comply with 20 USC § 1414(c)(5)(A))
Question – If there are logistical scheduling conflicts for an IEP meeting, is priority given to the schedules of the school staff or the parent?
Answer – Priority is given to the parent. “The attendance of [the]. . . parent, must take priority over other members’ attendance . . . an agency cannot exclude a parent from an IEP meeting in order to prioritize its representatives’ schedules.” (Page 13)
Question – Can the school cure the failure to include the parent at an IEP meeting by convening a second IEP meeting with the parent within 30 days?
Answer – No. Parental involvement, after-the-fact is “not enough because the IDEA contemplates parental involvement in the creation process.” (Page 1)
Question – If a school district violates the first prong of providing FAPE (compliance with legal procedures), must the reviewing Court still determine if the district violated the second prong of FAPE (whether the IEP is “reasonably calculated to enable the child to receive educational benefits”)?
Answer – No. The court does not need to determine whether there was a violation of the second prong, i.e. the IEP and educational benefit. “Where a court identifies a procedural violation that denied a student a FAPE, the court need not address the second prong.” (Pages 8-9)
Question – If a Due Process Hearing Officer and a U. S. District Court Judge make a finding that the parent’s failure to participate in an IEP meeting did not deprive the child with FAPE, what is the standard of review for a U. S. Court of Appeals? Does it require a “de novo” review of the legal conclusions or a “review of the district court’s findings of fact for clear error?”
Answer – The standard of review for findings of fact is whether there is clear error. The standard of review for legal conclusions is de novo, without deference given to the lower court. The factual finding by the Due Process Hearing Officer and the U. S. District Court Judge that the child was still provided with FAPE, even though the parent did not attend the IEP meeting, was reversed. The Doug C. Court found that it was truly a question of law, which trumped the factual finding. As a matter of law, a school district is to include the parents in an IEP meeting “unless they affirmatively refused to attend. (The Court added emphasis to this portion of the decision on page 11.)
One of the most important lessons from this case is that if a school district is confronted with a legal and or procedural issue about the proper course of action, it is necessary to look at the mission statement of the law, the purpose of the law, 20 USC § 1400(d). The school should apply a standard of reasonableness, and not “prioritize strict deadline compliance over parental participation,” (page 15) nor prioritize staff schedules over the parents’ schedules.