The Ninth Circuit Reiterates Procedural Requirements, Warns Against ALJ’s Reframing of Hearing Issues, and Identifies Consequences for a School District’s Failure to Timely Respond to Due Process Complaints
On March 27, 2017, the Ninth Circuit Court of Appeals issued a decision in M.C. v. Antelope Valley Union High School District that touches on several issues significant to special education practice and procedures.
The Student at issue in Antelope Valley was eligible for special education under the Individuals with Disabilities Education Improvement Act ("IDEA") as a result of a genetic disorder that rendered him blind. He was provided services on an Individualized Education Program ("IEP") with parent consent, although parents did not agree the IEP provided him a free appropriate public education ("FAPE"). Student’s parents challenged the IEP for, among other reasons, failing to adequately document the services provided by a teacher of the visually impaired ("TVI") and failing to specify the Assistive Technology ("AT") devices provided. The IEP signed by the parents included an offer of 240 minutes per month, but, according to the District, this was a mistake and the offer was in fact 240 minutes per week. Although the District realized the mistake a week later, it did not notify the parents for more than a month and "unilaterally amended the IEP by changing the offer of TVI services to 240 minutes per week." Parents were not notified of this change or provided a copy of the IEP Amendment. Similarly the AT devices that were to be provided to Student were not specified.
In finding that these actions amounted to a procedural violation of the IDEA, at least one of which resulted in a denial of a FAPE to the Student, the Ninth Circuit reiterated the parents’ right to meaningfully participate in the IEP process and the need for school districts to provide clear, accurate written offers of placement. In so ruling, the court rejected the district court’s conclusion that the parents had waived their right to raise the issue of TVI services because the due process complaint filed by the parents was superseded by the Administrative Law Judge’s ("ALJ’s") restatement of the issues, which omitted the adequacy of the TVI services.
Rather, the Ninth Circuit noted that the parents were not aware that the District had unilaterally changed the IEP until after the ALJ had restated the issues, and, therefore, could not have raised this procedural violation. Further, not even the IEP Amendment provided an accurate statement of the services, which were intended to be offered as 300 minutes of TVI services per week. Finally, the court found that the parties had presented evidence on the issue at hearing, such that the issue had not been waived and should have been treated as raised. Significantly, the court questioned the wisdom of ALJ’s restating or reorganizing issues presented by parents, especially when they are represented by counsel and the issues are stated intelligibly in the complaint, as parties bringing a due process complaint are entitled to frame their own issues.
Finally, the court chided the school district for not having responded to the parents’ due process complaint. Had the district done so, the Ninth Circuit believed it was possible the conflict and litigation that followed could have been avoided. Here, the court noted that the school district did not just miss the 10-day response deadline, it failed to ever respond at all to the complaint. After explaining the value of responses to complaints, the Ninth Circuit stated: "When a school district fails to file a timely answer, the ALJ must not go forward with the hearing. Rather, it must order a response and shift the cost of the delay to the school district, regardless of who is ultimately the prevailing party." The court then remanded the case back to the district court to determine both the prejudice the Student suffered as a result of the District’s failure to respond and the award of appropriate compensation as a result.
Significance/Impact on School Districts and County Offices of Education
The Ninth Circuit’s decision serves as a strong reminder of the need to accurately capture the offer of FAPE in the IEP document so that parents understand the services and placement offer to which they are consenting. Language in the court’s decision concerning the importance of parental participation in the IEP process is consistent with a long line of cases that have highlighted the significance of this procedural right. School districts and other local educational agencies ("LEAs") responsible for offering/providing a FAPE must be careful to accurately document the placement and services offered in the IEP and, if mistakes are identified, must notify parents of the error right away, reconvene the IEP team and amend the IEP to correct the mistake. If parents are comfortable with correcting the IEP via an IEP Amendment without convening the IEP team, the school district may do so with parent consent.
Given the consequences outlined by the court for a district’s failure to timely respond to a parent's due process complaint, LEAs must be vigilant about staying on top of the 10-day response timeline and not allow due process complaints to go without response. To do otherwise will result in costs being assessed against the district as a result of the delay and any harm the student experienced as a result.
If you have any questions regarding the issues discussed above please contact an attorney in our special education department.