A parent claimed the Hawaii Department of Education (“Department”) violated the Individuals with Disabilities Education Act (“IDEA”) when it held a student’s annual individualized education program (“IEP”) meeting without participation of a parent. The United States Court of Appeals for the Ninth Circuit held the Department denied the student a free appropriate education (“FAPE”). The parent did not affirmatively refuse to attend the meeting but actively sought to reschedule so he could participate. (Doug C. v. State of Hawaii Department of Education (--- F.3d ----, C.A.9 (Hawaii), June 13, 2013).
Spencer C. was diagnosed with autism when he was two-years old. Beginning in fifth grade, his IEP placed him at Horizons Academy, a private special education facility. Kaleo Waiau, a special education coordinator at Maui High School, testified that Spencer’s father, Doug C., and the education team agreed at a meeting held in September of 2010 that Spencer’s annual IEP meeting would be held on October 28, 2010. Doug C. testified that the education team only tentatively agreed to meet sometime in late October. When Waiau called Doug C. to confirm the October 28 meeting, Doug C. said he was not available on that date. Doug C. told Waiau he was also not available on November 4 or 5, so they settled firmly on November 9.
Doug C. e-mailed Waiau at 7:27 a.m. on November 9 and informed Waiau that he was sick and unable to attend the IEP meeting. Doug C. asked to reschedule the meeting for either November 16 or 17. The annual review deadline for Spencer’s IEP was November 13. Waiau claimed some of the IEP team would not be available on Friday, November 12, so Waiau offered to reschedule the meeting for either November 10 or November 11. Doug C. told Waiau “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 suggested Doug C. participate by phone or the internet. Doug C. declined because he wanted to be physically present at the meeting. Waiau went forward with the meeting because “he had already asked ‘13 people on three separate occasions to change their schedules and cancel other commitments.’” Waiau refused to reschedule without a firm commitment from Doug C. for one of the proposed dates.
The IEP team changed Spencer’s placement to the Workplace Readiness Academy at Maui High School. Doug C. attended a follow-up meeting on December 7, but no changes were made to the IEP. Doug C. requested a due process hearing asserting the lack of parental participation at the meeting denied Spencer a FAPE. The administrative hearing officer found the Department did not deny Spencer a FAPE, a decision which the district court affirmed.
The court of appeals reversed the decision of the district court and held the Department denied Spencer a FAPE when it held the IEP meeting without Doug C. Doug C. did not affirmatively refuse to attend but instead actively sought to reschedule the meeting so he could participate.
The IDEA guarantees a FAPE to children with disabilities. “Parental participation in the IEP and educational placement process is critical to the organization of the IDEA.” Safeguards that ensure parental participation are among the most important in the IDEA. The IDEA’s regulatory framework “places an affirmative duty on agencies to include parents in the IEP process.” An agency must take steps to ensure that one or both parents are present at an IEP meeting or that the parents are afforded an opportunity to participate. The agency must provide ample notice and schedule the meeting at a mutually agreed upon time and place. If a parent cannot attend, the agency must offer participation through other means such as video or teleconferencing.
“[A] meeting may only be conducted without a parent if “the public agency is unable to convince the parents that they should attend.” In such a case, the agency is required to keep a detailed record of the attempts it made to include the parent. The court of appeals previously “clarified the limited circumstances under which a public agency can hold an IEP meeting without parental participation.” The court held “parental involvement in the ‘creation process’ requires the [agency] to include the [parents in an IEP meeting] unless they affirmatively refused to attend.”
Doug C. did not affirmatively refuse to attend the IEP meeting but instead vigorously objected to the meeting being held without him and he asked to reschedule the meeting. Although the Department stated it could reschedule before the deadline, Doug C. could not commit to a meeting while he was sick. The Department argued that it could not accommodate Doug C.’s request to reschedule because the deadline for holding the annual meeting was November 13. The court rejected this argument finding that, even if the deadline trumped parental participation, Doug C. told Waiau he could likely attend on either of two dates before the deadline. Waiau, however, did not want to disrupt IEP team members’ schedules without a firm commitment from Doug C.
Under the IDEA, the attendance of a parent must take priority over the attendance of team members. By refusing to reschedule the meeting before the deadline, “Waiau improperly prioritized the schedules of the other members of the team over the attendance of Doug C.”
The court rejected the Department’s argument “that if the annual deadline passed without a new IEP, services would ‘lapse.’” When an agency is confronted with the situation where it must comply with one of the IDEA’s procedural requirements or another, “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.” The Department’s decision “to prioritize strict deadlines compliance over parental participation was clearly not reasonable.” There may be times when accommodating the schedule of a parent would be more harmful than proceeding without the presence of the parent at the meeting. However, “such circumstances will be rare given the central role parents have in helping to develop IEPs.”
Also, Doug C.’s presence at the follow-up meeting was not enough to overcome the violation because by the time the meeting was held, the new IEP had been completed and adopted. Doug C.’s opportunity to participate was seriously infringed by holding the meeting without him and this procedural violation denied Spencer a FAPE. The appellate court remanded the matter back to the trial court to determine whether Doug C. is entitled to be reimbursed for tuition he paid so that Spencer could continue at Horizons Academy.
What This Means To You
The near absolute right of parental participation in IEP meetings creates a special challenge for school districts who struggle to schedule IEP meetings with uncooperative or difficult parents. Unfortunately, some parents will make repeated requests for alternative IEP dates, and may regularly request that IEP meetings be rescheduled for a myriad of reasons. This is particularly problematic when a critical deadline is approaching, such as the due date for an annual IEP, or the due date for holding an initial IEP meeting to determine eligibility. For this reason, we advise that IEP case managers attempt to schedule annual IEP meetings a month in advance whenever possible, so as to avoid the situation where parent scheduling conflicts prevent the school district from meeting a compliance deadline. In this case, because the school district’s starting point for scheduling the IEP meeting was October 22, and the schedules of 13 team members had to be coordinated along with father’s schedule, the District was unable to meet the annual review date of November 13 when father was ill for the November 9 IEP meeting.
Another problem for school districts is determining when a parent’s request for alternative meeting dates rises to the level of “an affirmative refusal to attend.” There is not a “one size fits all” approach to this dilemma, and repeated parent requests to delay or reschedule IEP meetings must be addressed on a case-by-case basis. In the Doug C. case, the special education coordinator was understandably frustrated with father’s unavailability for the several dates offered for the IEP meeting. However, father’s request to reschedule the IEP meetings was not so persistently difficult or repetitive that the public agency could show it was “unable to convince” father that he should attend the IEP meeting. If the special education coordinator had agreed to father’s request to schedule the meeting on November 16 or 17, and father had again cancelled the meeting, a stronger case would have existed to establish that father’s conduct constituted “an affirmative refusal” to attend the IEP meeting. We advise that if you are having difficulty with parental attendance at an IEP meeting, consult with your special education legal counsel first before holding the IEP meeting without the parent.