In Doug C. v. State of Hawaii Department of Education, the IEP team had placed a student with autism in a private day school for the past 6 years. With the annual review deadline approaching and the parent making scheduling difficult, the district went ahead with the student’s IEP meeting and changed the student’s placement without the parent’s participation. The Ninth Circuit found a denial of FAPE.
The school initially scheduled the IEP meeting for October 28. But when the coordinator called the parent to confirm on October 22, the parent indicated that he thought the meeting was tentatively going to be at the end of October, but that no date was set. The parent was not available on October 28. The parent and coordinator then tentatively set November 4 or 5 for the IEP meeting. But the parent called back the next day to say that neither date would work. They instead confirmed the meeting for November 9. On the morning of the meeting, the parent called to cancel because he was sick. The school offered for the parent to participate by phone or video conference, but he did not feel well enough to do so. The school offered to reschedule for November 10 or 11, but the parent could not commit due to his health. Some school members of the IEP team were not available on November 12, and the IEP was due on November 13, a Saturday.
The school went ahead with the IEP meeting without the parent on November 9. Also missing from the meeting were any representatives from the student’s private school. Despite the lack of attendance by anyone who knew or worked with the student, the team changed the student’s placement to the public high school. The team reconvened with the parent on December 7 to review the changes made to the IEP.
The court found that the IDEA requires parental participation unless the district is “unable to convince the parents that they should attend.” In this case, the parent certainly wanted to attend, so scheduling difficulties did not excuse the district from complying with this important procedural requirement. Holding a later meeting with the parent did not cure the initial violation as the decisions had already been made without the parent.
Further, the approach of the annual review deadline did not allow the district to proceed without the parent. When faced with two seemingly conflicting procedural obligations, the court instructed that a district should consider which is more likely to cause a denial of FAPE. “[P]rocedural inadequacies that result in the loss of educational opportunity or seriously infringe on the parents’ opportunity to participate in the IEP formulation process, clearly result in the denial of FAPE.” According to the court, holding an IEP meeting a few days after the annual review date while continuing to provide the student the services from the last IEP would not result in a denial of FAPE. Conversely, holding a meeting without the parent would deprive the parent of his or her right to participate in the IEP process.
The court also found that changing the student’s placement without the input of the parent or private school caused a loss of educational opportunity to the student. The parent was not required to prove that the IEP team would have reached a different conclusion if the required team members had been present. That the team would have further considered keeping the student at the private school had the parent and private school representatives been present was sufficient.
The Ninth Circuit remanded the case for the district court to determine whether the parent was entitled to reimbursement for the continued private placement, noting that based on the denial of FAPE and that the private school had previously been found appropriate by the IEP team, reimbursement was likely proper.
This case serves a reminder of the importance of parental participation in IEP meetings; indeed this procedural requirement can trump other procedural requirements. Even where parents are difficult to schedule with, the district has an obligation to include the parent unless the district has documented that it cannot convince the parent to attend.