Failure to Accommodate Parent Availability In Scheduling IEP Meetings Can Result In A Denial Of Procedural Protections Under The IDEA

Summary:

It can be frustrating trying to schedule IEP meetings. Juggling the availability of your own staff, any third party providers, as well as that of the parents’ and any of their invitees is no small task. But rest assured, your efforts are not in vain: making an effort to accommodate parents’ availability can protect your LEAs from liability.

Case in point: on January 11, 2024, in Etiwanda School District v. D.P. (2024) WL 126956, the U.S. District Court in the Central District of California rejected the District’s argument that a parent consistently demonstrated an unwillingness to attend an IEP meeting, which resulted in a six month delay in holding the meeting. The District had rejected parent’s two proposed dates, but then continued to propose dates based on the schedules of its own staff. This is despite the parents’ lack of responsiveness in general, which was acknowledged by both the ALJ and the District Court judge. The Court upheld the administrative law judge’s finding that the District denied the parent meaningful participation in the development of Student’s IEP.

Facts:

Student was a 12-year-old resident within the geographic boundaries of the District and eligible for special education and related services based on a primary eligibility of Multiple Disabilities including Intellectual Disability, Other Health Impairment, and Speech or Language Impairment.

In April 2021, District reached out to try and schedule Student’s IEP meeting. A notice was sent on April 16th, and again on April 20th, and via email on April 23rd. District did not receive a response. Then, District sent no fewer than five prior written notices (“PWNs”) with proposed dates before the school year ended on May 18th.

The District started trying again to schedule an IEP meeting for Student as the 21-22 school year approached. It sent notices to the parent and their advocate three times through July and August 2021 before parents’ counsel finally responded. The parties finally agreed on August 16th, but unfortunately the meeting was canceled by parents’ advocate on the day it was set to take place. District continued its efforts to schedule a meeting, with the District sending another PWN on August 19th and District’s counsel sending parent’s advocate an email on August 20th. The District attempted additional contact attempts on August 23rd, August 26th, August 27th, August 30th, September 7th, and September 14th. Even Student’s teacher tried to reach the parent, sending home three meeting notices in Student’s backpack and receiving no response. Another PWN was sent on September 20 offering to hold a meeting on September 24. On that day, parent’s advocate responded that parent had an injury which prevented them from participating that day.

On September 27th, the District finally requested parents to provide suitable dates for an IEP meeting. Parents did not respond. District sent another PWN on October 1st, 2021. On October 14th, parents’ advocate told the District that parents were available on October 21 or 22. This was the very first time parents or their advocate had suggested a date. Unfortunately, the District rejected the proposed dates because the 12 team members required to participate could not attend. The District responded with alternative dates but the parents did not respond.

On October 20th, District finally sent a PWN informing parents that the District would hold the meeting without them if they did not respond. They, in fact, did not respond. The District sent one last PWN on November 3rd. Parents replied to an email containing a Zoom link for the meeting saying they would check in with their advocate, but no further response was received. The District finally held an IEP meeting without parents on December 8th.

The District filed a due process complaint with OAH seeking to implement the IEP developed on December 8th without parents’ consent. Parents filed for due process alleging a denial of FAPE and a denial of meaningful participation in the development of the IEP.

Discussion:

The administrative law judge held that Parent was prevented from meaningfully participating in the development of Student’s IEP when the December 8th meeting was held without parents present, and the Court agreed.

The District argued that, under California Education Code section 56341.5(h), the District was entitled to hold an IEP meeting without parents and file for due process to seek permission to implement its proposed IEP without parents’ consent. Incredibly, the District cited an OAH case where the administrative law judge held the IEP meeting could be held without parents that involved the very same parents and advocate.

Unfortunately for the District, the Court noted some differences between the previous OAH case and the one at hand. First, unlike in the previous case, the parents here did not affirmatively refuse to attend an IEP meeting. Citing Doug C. v. Hawaii Dept of Educ. (9th Cir. 2013) 720 F.3d 1038, the court noted that frustration in scheduling a meeting does not excuse failing to include a parent in an IEP meeting when they express willingness to participate. The court stated unequivocally that the attendance of parents “must take priority over other members’ attendance.”

In the present case, despite its persistence in reaching out to the parents and their advocate, the District could not proceed without parents for a number of reasons. First, the parents expressed a willingness to participate in an IEP meeting, making three attempts to reschedule the meeting. Second, the District only unilaterally proposed dates, rejecting two of the three dates proposed by the parents and failing to solicit parents’ input in finding dates that work for all parties involved. Lastly, the Court noted that a parent responded to the Zoom link for the December 8 meeting, but the District made no effort to follow up when parents did not show up at the meeting.

Conclusion:

There are circumstances where it is reasonable for an LEA to proceed with an IEP meeting without the parents if  the LEA is unable to convince the parents to attend and has documented its attempts to do so. But it cannot hold a meeting without the parents where, as here, parents had expressed interest in participating, offered dates for a potential meeting, and the District only ended up presenting an ultimatum and proceeded. The Court noted that had the District been similarly persistent, but did more than just unilaterally propose dates, or if they had waited to hear from the parents regarding the December 8th meeting date, the result could have been different. The takeaway here is that LEAs are under an obligation to work with parents in a way that respects their schedules just as much as it accommodates the schedules of their staff, if not more so. LEAs should actively ask parents about their availability and demonstrate that they value parents’ time and input for the meeting. Only upon an affirmative refusal of parents to attend a meeting or failure to respond in the face of persistent, diligent and documented efforts should the LEA consider moving forward without parents at an IEP meeting.

For further assistance, please contact Omer Khan at khan@estattorneys.com.