Parents and Their Rights Under the IDEA and Related State ...

1 Pacific Northwest Institute on Special Education and the Law October 5-7, 2009 Seattle, Washington Workshop 14 Parents and Their Rights Under the IDEA and Related State Law: What Does "Parent Participation" Really Mean? By: Charlotte Cassady Attorney at Law Seattle, Washington 1 PARENTAL Rights TO PARTICIPATE IN IDEIA'S EDUCATIONAL PROCESS I. IDEIA's Criteria For Denial of FAPE 20 USC 1415(f)(3)(e)(ii) states that a hearing officer may find a denial of a free and appropriate public education only if procedural inadequacies (a) impeded the child's right to a free appropriate public education; (b) significantly impeded the Parents ' opportunity to participate in the decision making process regarding the provision of a free appropriate public education; or (c) caused a deprivation of educational benefit.

2 (emphasis added) II. Holding An IEP Meeting Without The Parents 34 CFR The school district is required to "take steps to ensure that one or both Parents " are present at each IEP team meeting or are afforded the opportunity to participate" including (1) notifying Parents of the meeting early enough to ensure that they will have an opportunity to attend; and (2) scheduling the meeting at a mutually agreed on time and place. 34 CFR A meeting may be conducted without a parent in attendance if the public agency is unable to convince the Parents that they should attend.

3 In this case, the public agency must keep a record of its attempts to arrange a mutually agreed on time and place, such as (1) Detailed records of telephone calls made or attempted and the results of those calls; (2) Copies of correspondence sent to the Parents and any responses received; and (3) Detailed records of visits made to the parent's home or place of employment and the results of those visits. Standard of "reasonableness" determines the amount of advance notice Parents must receive. Rejecting a set time requirement of ten days advance notice, OSEP articulates a standard of reasonableness determines whether notice of an IEP meeting is timely.

4 Letter to Anonymous, 25 IDELR 1208 (OSEP 1996); Letter to Constantian, 17 IDELR 118 (OSEP 1990). IEP meetings held without reasonable notice. Board of Educ. of the Nyack Union Free Sch. Dist., 42 IDELR 78 (SEA NY 2004) (violation when meeting held with only five days written notice); Salem-Leizer Sch. Dist., 52 IDELR 149 (SEA Or. 2009) (denial of FAPE when written notice given at start of IEP meeting). IEP meetings held without Parents when Parents asked to reschedule. Letter to Thomas, 51 IDELR 224 (OSEP 2008); Shapiro by Shapiro v. Paradise Valley Unified Sch.

5 Dist. No. 69, 38 IDELR 91, 317 1072 (9th Cir. 2003)(denial of FAPE where IEP meeting held despite Parents request to reschedule even though IEP generated based on previous meetings with Parents ; district "simply prioritized its representatives scheduled over that of [the] Parents ."). 2 v. Federal Way Sch. Dist., 341 1052 (9th Cir. 2003) (no procedural violation where school district "went to great lengths" to include ML's Parents in the IEP meeting, they refused to come at 4:00 pm when the record showed they could do so, and instead insisted that the meeting be scheduled at times such as 415 am or on the weekend).

6 Mr and Mrs. M ex. rel. v Ridgefield Board of Educa., 47 IDELR 258, 47 IDELR 258 (D. Conn. 2007) (Denial of FAPE where Parents emailed District eight days in advance of scheduled IEP meeting requesting it be rescheduled because attorney could not attend; fact that district emailed Parents three days in advance to ask if they could proceed with the meeting as scheduled did not relieve the district of the obligation to follow up when it did not hear back from the Parents , particularly when this was not a case of Parents ' repeated veto of proposed meeting times.)

7 V. Ramon Valley Unified Sch. Dist., 48 IDELR 66 (ND Cal. 2007); (where a District had to choose between violating IDEA by holding an IEP meeting without Parents or violating IDEA by failing to hold an IEP meeting in a timely fashion, no denial of FAPE provided the district discussed several possible meeting times with the Parents but the Parents ' attorney rejected all offers, insisting the Parents could not meet before the beginning of the school year to design the IEP) III. Content of Invitation To IEP Meeting 34 CFR (b). The school district must (1) indicate the purpose, time, and location of the meeting and who will be in attendance; and (2) inform the Parents of the provisions in Section (a)(6).

8 34 CFR (b). This notification may be written or oral but the agency must keep a record of its efforts to contact the Parents . " 34 CFR Sec. , Note. Letter to Livingston, 23 IDELR 564 (OSEP 1995)(quoting Appendix C to 34 CFR Part 300, Question 28)(if possible, the agency should give the name and position of each person who will attend an IEP meeting, but sufficient to State only the positions, and not the names; "position" means the position held within the school district, not within the IEP team) Anchorage Sch. Dist. v. Parents of , 45 IDELR 253 Alaska Sup.

9 Ct. 2006), the Court found a denial of FAPE where the school district did not give the parent prior written notice that it intended to include the student's kindergarten teacher as a special education provider. Prejudice from inadequate meeting notice required for denial of FAPE Scituate Sch. Comm. v. Robert B, 620 F. Supp 1224, 128-29 (DCRI 1985)(notice of meeting that did not specify attendees and failed to indicate the purpose of the meeting not prejudicial because Parents knew the purpose of the meeting and the attendees were the same individuals who had attended previous IEP meetings, thus not a surprise).

10 But see Amanda S. by Susan S. v. Webster City Community Sch. Dist., 27 IDELR 698 (NDI 31998) (prejudice found in failure to list IEP participants and titles because staffing meetings had occurred for many different reasons over time, and Parents were deprived of the ability to participate in the meeting by the lack of notice) Notice of attendance of school district's attorney. Letter to Anonymous, 50 IDELR 259 (OSEP 2008) (school district may invite its attorney to an IEP meeting at its discretion as an individual with special expertise even if the Parents ' attorney does not attend; but meeting must be rescheduled at Parents ' request if school district doesn't include attorney in notice of meeting participants).