A parent recently appealed a lawsuit against the Hawaii Department of Education (the HDOE) to the United States Court of Appeals, Ninth Circuit for depriving a child of free appropriate public education (FAPE) which violated Individuals with Disabilities Education Act (IDEA). The HDOE held an annual individualized education program (IEP) meeting without the parent’s participation. The District Court sided with the HDOE, and the parent appealed.
Spencer was an 18–year–old student in the Maui District of the HDOE with autism. As a result of his condition, Spencer was eligible to receive special education and other related services, and his educational rights were protected by the IDEA. Starting in fifth grade, Spencer’s IEP placed him at a private special education facility (Horizons) at the HDOE’s expense. In 2010, the HDOE held Spencer’s annual IEP meeting 2010 despite Doug C.’s inability to attend the meeting. At the meeting, the HDOE changed Spencer’s educational placement, moving him to a program at Maui High School (MHS), his local public school.
The issue in this case was whether the HDOE’s efforts to include Spencer’s father, Doug C., in the 2010 IEP meeting were enough to meet the requirements of the IDEA. Kaleo Waiau, a special education coordinator at MHS, testified that Doug C. and members of the education team all agreed that the IEP meeting would be held on October 28. After back and forth with scheduling conflicts, they settled firmly on November 9 for the IEP meeting. On the morning of the meeting, Doug C. e-mailed Waiau to say he was sick and unable to attend. He suggested rescheduling the meeting for the following week [The annual review deadline for Spencer’s IEP was November 13]. According to Waiau, some of the members of the IEP team were not available on the suggested dates, and he countered with November 10 or 11, in order to accommodate the other members’ schedules and still conduct the meeting before the deadline. Doug C. said he couldn’t definitively commit to either day because he was ill and couldn’t guarantee that he would recover in time. Waiau also suggested that he participate by phone or the Internet, but Doug C. wanted to be physically present at his son’s IEP meeting, and he did not feel physically well enough to participate meaningfully through any means that day.
The special education coordinator Waiau decided to move ahead with the meeting on November 9 as scheduled because he had already asked 13 people on three separate occasions to change their schedules and cancel other commitments to schedule the meeting. The IEP team held the meeting without Doug C, and the only Horizons staff member on the IEP team also did not attend.
The IEP team changed Spencer’s placement. After the meeting, Waiau sent Doug C. the new, completed IEP for his review and held a follow-up IEP meeting on December 7 with Doug C. and a staff member from Horizons. Waiau testified that Doug C. didn’t give any real input, but rejected the IEP in its entirety because he was excluded from the development process. No changes were made to the IEP during that meeting.
A day before the follow-up IEP meeting, Doug C. filed a request for a due process hearing under the IDEA. He argued, among other things, that the lack of parental participation in the IEP meeting denied Spencer a FAPE. The administrative hearing officer decided that HDOE did not deny Spencer a FAPE and dismissed the claims for relief. The district court said the same thing, and Doug C. appealed.
The Court of Appeals, with Circuit Judge Richard Paez writing the court’s opinion, explained that when analyzing whether an agency provided a student a FAPE, there was a two-part inquiry: 1) whether the State complied with the procedures set forth in the Act; and 2) whether the IEP was reasonably calculated to enable the child to receive educational benefits. A state must meet both requirements to comply with the obligations of the IDEA.
Parental Participation in IEP is Key
Judge Paez stated that parental participation in the IEP and educational placement process was critical to the IDEA. The U.S. Supreme Court stressed that the IDEA’s structure relied upon parental participation to ensure the success of the IDEA in providing quality education to disabled students. Likewise, the Ninth Circuit held that parental participation is among the most important procedural safeguards in the IDEA and that procedural violations that interfere with parental participation in the IEP formulation process undermine the goals of the Act. The Court of Appeals explained that parental participation is key to the operation of the IDEA for two reasons: “Parents not only represent the best interests of their child in the IEP development process, they also provide information about the child critical to developing a comprehensive IEP and which only they are in a position to know.”
The IDEA requires agencies to include parents in the IEP process, Judge Paez said. The public agency “responsible for providing education to children with disabilities,” is required to “take steps to ensure that one or both of the parents of a child with a disability are present at each IEP meeting or are afforded an opportunity to participate” including providing ample notice and “scheduling the meeting at a mutually agreed on time and place.”
If a parent is unable to attend, the appellate judge explained, the agency must offer other ways to participate like video or teleconferencing. Most importantly, a meeting may only be conducted without a parent if the agency is unable to convince the parents to attend. In that situation, the agency must keep a detailed record of its attempts to include the parent. In an earlier decision (Shapiro), the Court of Appeals clarified this to say that a public agency can hold an IEP meeting without parental participation—only if the parents “affirmatively refused to attend.” That wasn’t the case here. Despite Doug C.’s strong objections, HDOE went forward with the IEP meeting without him, and decided to change Spencer’s educational placement for the first time in six years. HDOE’s actions, Judge Paez held, did not meet the standard set out in the earlier court decision on this issue.
Just because HDOE was frustrated in trying to schedule meetings with Doug C. did not excuse the HDOE’s failure to include him in Spencer’s IEP meeting when he expressed a willingness to participate. An agency can’t blame a parent for its failure to ensure meaningful procedural compliance with the IDEA, Judge Paez said, because the IDEA’s protections are designed to benefit the student, not the parent.
Priority of Parent Participation
The HDOE claimed that it could not accommodate Doug C.’s request to reschedule because of the impending annual IEP deadline on November 13. The coordinator of the IEP meeting testified that he refused to reschedule the meeting for the Wednesday or Thursday before the deadline because Doug C. couldn’t commit to either of those dates because of his illness, even though Doug C. testified that he likely could attend. The coordinator explained that he didn’t want to disrupt the other IEP’s members’ schedules without a firm commitment.
Judge Paez explained that under the IDEA, the attendance of Spencer’s parent, took priority over other members’ attendance. The HDOE improperly prioritized its own representatives’ schedules and attendance over the attendance of the parent. The coordinator Waiau’s testified that if the annual deadline passed without a new IEP, Spencer’s services would lapse. The Court of Appeals rejected this argument because it was based on an assumption that the HDOE was authorized to stop providing services to a student if his annual IEP review was overdue. The IDEA calls for the annual review of a student’s IEP, but there no is nothing in the law that says that it cannot provide any services to a student whose annual review is overdue.
Which Requirement is More Important?
The more difficult question, Judge Paez asked, was what an agency is to do when it is unable to meet two procedural requirements of the IDEA. In this case, it was parental participation and timely annual review of the IEP. The judge said that in considering this question, one should keep in mind the purposes of the IDEA, which are to provide disabled students a free appropriate public education and to protect the educational rights of those students.
When confronted with the situation of complying with one procedural requirement of the IDEA or another, the Court of Appeals said 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 . Under the circumstances of this case, the HDOE’s decision to prioritize strict deadline compliance over parental participation was clearly not reasonable. Also, the after-the-fact meeting was not enough to remedy the HDOE’s decision to hold the initial IEP meeting without Doug C. Failure to include Doug C. in the IEP meeting clearly infringed on his ability to participate in the IEP formulation process. Judge Paez said that reason alone was cause to conclude that Spencer was denied a FAPE.
Judge Paez said that Doug C.’s opportunity to participate was seriously infringed, and this procedural violation denied Spencer an educational opportunity by causing the merits of his placement at Horizon to receive insufficient consideration. As a result, the HDOE denied Spencer a FAPE. The Court of Appeals reversed the district court’s judgment. Doug C. v. Hawaii Dept. of Educ., — F.3d —-, 2013 WL 2631518 (C.A.9 (Hawai’i) June 13, 2013).
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