Doug C. v Hawaii Appellate Court Case re: IEP

[Macabre]

Wow.  This will be important case precedent. I don't know how it will impact 504, but for school districts who intentionally or unintentionally have a lot of crossover in handling IEPs and 504s, it may be significant. And of course it could be for those of us with IEPs.




On June 13, 2013, the U.S. Court of Appeals for the Ninth Circuit issued an important decision about parental participation at IEP meetings. As a part of that ruling, the Court answered several issues and clarified the approach that must be used to determine the proper response when procedural rules appear to conflict with each other.
In Doug C. v. Hawaii, the U.S. Court of Appeals for the Ninth Circuit answered several critical questions pertaining to IEP meetings.

-Must the school hold an IEP meeting before the "annual review deadline?" If the meeting is not held, do the child's services "lapse" until a new IEP is agreed on?

-If there are logistical scheduling conflicts for an IEP meeting, is priority given to the schedules of the school staff or the parent?

-Can the school cure the failure to include a parent at an IEP meeting by convening a second IEP meeting with the parent within 30 days?

-If a school district violates the first prong of providing FAPE (compliance with legal procedures), must the reviewing Court still determine if the district violated the second prong of FAPE (whether the IEP is "reasonably calculated to enable the child to receive educational benefits")?

-If a Due Process Hearing Officer and a U. S. District Court Judge make a finding that the parent's failure to participate in an IEP meeting did not deprive the child of FAPE, what is the standard of review for a U. S. Court of Appeals? Does it require a "de novo" review of the legal conclusions or a "review of the district court's findings of fact for clear error?"

Link to the case itself:
http://www.wrightslaw.com/law/caselaw/2013/9th.doug.c.v.hawaii.pdf


The Wrights' analysis:
http://www.wrightslaw.com/law/art/dougc.hawaii.pwanalysis.htm

[Macabre]

Quote from the Wrights' analysis, linked to above.


Conclusion

The Doug C. Court found, as a matter of law, that the failure to include the parent at the IEP meeting violated the procedural requirement of IDEA and invalidated the IEP. In quoting a 2003 Ninth Circuit case, this Court explained that "We held that parental "involvement in the 'creation process' requires the [agency] to include the [parents in an IEP meeting] unless they affirmatively refused to attend." (Emphasis added by the Court.)

[ajasfolks2]

oh wow!!!

have skimmed the wrightslaw analysis

need a LOVE button!!

[CMdeux]

GREAT stuff here!!  Hurray!!!

[ajasfolks2]

Quote from Wrightslaw at end of their analysis:

One of the most important lessons from this case is that if a school district is confronted with a legal and or procedural issue about the proper course of action, it is necessary to look at the mission statement of the law, the purpose of the law, 20 USC § 1400(d). The school should apply a standard of reasonableness, and not "prioritize strict deadline compliance over parental participation," (page 15) nor prioritize staff schedules over the parents' schedules.

THIS is SO huge!!  How many times have we had members here dealing with schools who attempt to use "deadlines" and "school personnel availability" as a means of squeezing out the parents of the qualifying child -- or as a way of making the meeting happen BEFORE the parent has had adequate time to get with medical provider for necessary information and support?

[CMdeux]

I love that this decision is misson/spirit-of-the-law based.  LOVE that.   

This is something that I have always found really perplexing, even when I've been able to leverage it to my advantage as an advocate-- why on earth does procedure take precedence over what everyone in the room knows is what OUGHT to be done in common-sense terms??

[Macabre]

I did not see a space under the Wright's Law analysis for comments. I was hoping to ask about 504 applicability. Has anyone seen them address that?   Basically I'm thinking of the implications of having "knowledgeable persons" and the importance of parents to be among that group.

[ajasfolks2]

Yeah, boy howdy to CM's comment.

And Mac, I did not see a comment space either.

Wondering if they would address applicability to 504 in a link if we asked the question(s)?

[twinturbo]

While I'm generally pleased because we deal with IEPs for multiple kids for multiple years now, either I'm containing my enthusiasm quite well or I'm needing a more concrete sense of how applicable this is to the 504 process because the function of the two are quite different in the specific sense of (1) measurement of progress at regular intervals (2) parental reporting is a LARGE element in evaluation and measurement of progress (3) language cited in decision (mainly IDEA IIRC) is precise in giving parents tools to maximize educational outcomes.

Accommodations through OHI under an IEP seems to be a completely different animal in our experience with our county services. The thought of going back and forth between 504 and IEP OHI, while in many instances seems to go swimmingly, has not proved to be the case for us.

I'd also be very interested in Wright's law opinion or interpretation of this.

[Keith Peck]

I would say that the Wrightslaw analysis is missing the point. My own analysis is searchable under "Ninth Circuit Court of Appeals Rules That Schools Can't Pass-the-Buck." The applicability to section 504 is dependent. If your state has elected to implement the procedures applicable under the IDEA for Section 504 matters, this case may be important with regard to the notion that procedure safeguards are 90% of the rights that are provided to parents and that violation of these procedures can't be excused by blaming parents. Also, to prove lost educational opportunity, you do not need to demonstrate that the outcome would have been different.  my email address:

Keith H. S. Peck, Lead appellate attorney in Doug C. v. SOH

[CMdeux]

Thanks!


That's how I read that, too.  It's good to know that I was on the right track. 

[Macabre]

http://www.hawaiifreepress.com/ArticlesMain/tabid/56/ID/9910/Ninth-Circuit-Court-of-Appeals-Rules-Hawaii-Schools-Canrsquot-Pass-the-Buck.aspx

[ajasfolks2]

Somewhat related:

Father falsely accused harrassment

[guess]

Had to register to post in Schools.

I've had the opportunity to speak to both attorneys live, one giving greater context on strategy involving this one case.

With respect to *504 and food allergies*, this isn't a slam dunk for use in parental safeguards because it has everything to do with the IDEA, specifically outcomes and placement as a direct function of parental involvement for special education. For FA specifically there's no element of placement and outcome based on services, it's all equal access to general education.

The notion that Wrightslaw misses the point, as Mr. Peck states above, I would respectfully disagree with on qualification that they come at it with fundamental differences in methodology. Pete Wright has a completely different approach for parental advocacy than Keith Peck does. I'm not sure they could be more different in approach.

Because this case happened in Hawaii which seemingly has a much greater amount of private schools that can handle special education placement a 'stay put' for a child receiving special education services is possible while legal wrangling can go on for years. For FA, there's no such thing because the public system is unlikely to be any sort of situation under any circumstances to pay for a private placement based on 504 alone for equal access in a private school. We also have the danger of having to wait around for violations to be resolved due to life-threat.

Apples and oranges when we're talking therapies and special education programs for developmental or intellectual disabilities vs. food allergies need for access to existing general education equal to non-disabled peers.

Not an attorney but upon getting to know each attorney more in their own words and approach I think they come at parental advocacy very differently, and ultimately a parental advocate for 504 does need to understand the key differences in law pertaining to the IDEA vs. 504 beyond eligibility. It can not be assumed that any application of special education law automatically has influence or regulation upon equal access, although certainly a disabled individual qualifying for the IDEA is also protected by 504/ADA.

The school would have to be pretty brazen to not use parental input but I would not advocate anyone use a decision made specifically about the IDEA to pertain by default to 504. Further, if OCR gets even a whiff of the IDEA the chances of them touching it go down. For anyone dealing with developmental disabilities such as myself who also deals with anaphylaxis as a physical disability, hence IDEA and 504/ADA, as long as you're careful about your communication making the issues clear documenting violations of each or both is not only possible but necessary to show to keep the complaints straight whether it's OCR, grievance, DP, take a pick, maybe more than one.

What I do want to add to the FA advocacy toolbox are two things. I'll let Links use her filing system here.

1. For those that get the food free accommodation or any sort of food specific accommodation and the surprise snacks start making it through the door, or whatever the source of breakdown, use the phrase "504 accommodations implemented with fidelity" to speak of the allergen free room, food free room, no surprise snacks. And that "failure to implement 504 accommodations with fidelity is a compliance violation." The (no food rule) is the student's 504 accommodation and it is to be implemented with *fidelity* failure to do so is a compliance violation.

2. The Gebser Letter. LOU's older, bigger, meaner big brother on steroids. It's an escalation, posturing, shot off the bow use it for when the crap has already hit the fan and the typical LOU semi-civil is being ignored. There's a good background on Cornell Law page, but the real jackpot of templates are from some sped attorney websites with a few credited to nichcy.org will will not exist in its current form for much longer.

Not every Gebser notice gets a good response but it's without a doubt throwing down the gauntlet because you're telling them in no uncertain terms that you are putting them on notice concretely about a clear and pressing issue that the school must resolve and that if they choose to take no action it is at the least deliberate indifference.

Parents can write their own Gebser but pick a really good template. I recommend Gebser on bullying template tweaked for food allergies OR bullying if that's the case. Nail it from start to finish, nail that jello to the wall but if you're not already on the one-way street to incivility this will start that ball rolling because its purpose is really right before filing a complaint, a suit.

I'll post some later after I review some templates. Got to run.

[ajasfolks2]

1. For those that get the food free accommodation or any sort of food specific accommodation and the surprise snacks start making it through the door, or whatever the source of breakdown, use the phrase "504 accommodations implemented with fidelity" to speak of the allergen free room, food free room, no surprise snacks. And that "failure to implement 504 accommodations with fidelity is a compliance violation." The (no food rule) is the student's 504 accommodation and it is to be implemented with *fidelity* failure to do so is a compliance violation.

Oh, just a million