Aug 21, 2008
In L.M. v Capistrano Unified School District, the Ninth Circuit Court of Appeals determined that limiting the parents’ classroom observational opportunities to twenty minute sessions, while the school district was allowed to observe the student in his private placement for up to three hours, did not significantly restrict the parents’ right to participate in their son’s IEP. Does this mean school districts are allowed to significantly restrict parents’ experts classroom observational time? Not necessarily. As with most judicial decisions, this decision had unique facts.
This case out of California, involves, L.M., a three old boy with autism and his initial placement in public school. Before his third birthday L.M. received fairly intensive early intervention services. These services included speech-language therapy, occupational therapy (OT), and a one-to-one in home behavioral program. (For more information on early intervention services please see my post: Taking Giant Baby Steps: Early Intervention Services Under Part C).
Later, the parents paid privately for additional hours of one-to-one services. Eventually, his one to one time was increased to twenty five hours a week. In planning for his transition to public school at age three, the school district offered a program in an elementary school. The public school program in the elementary school offered individual intensive behavior instruction for four hours per week, speech language therapy for two thirty minute sessions per week, OT for thirty minutes per week, and extended school year services. The parents attended the IEP meeting but did not accept the proposed program.
When L.M. turned three years old, his parents continued to privately pay for services while they met with the school district to develop an IEP for placement in the public schools. After the initial IEP meeting the parents visited the proposed elementary school twice, including once with a licensed psychologist who was the parents’ expert. The expert asked to observe the proposed program for a continuous ninety-minute period. The school, however, limited her observations to twenty minute increments based on a district wide policy intended to limit classroom disruption. The expert was allowed additional twenty minute observation sessions, but she did not do so because of the time and expense involved in commuting to the school.
Eventually, the parents rejected the school district’s program and requested a due process hearing. The hearing officer generally ruled for the parents, ordering the school district to reimburse the parents for the cost of providing the in-home program from January 22, 2005 to April 7, 2005.
The parents, however, were also seeking reimbursement after April 7th and relying on the fact the school district had violated a California law requiring it to provide the parents an equivalent opportunity for classroom observation when conducting an independent educational evaluation (IEE). This California law is similar to the requirements in the IDEA regulations and for more information regarding independent evaluations and the evaluators access to the classroom please see From the Outside Looking In: Independent Educational Evaluations).
The hearing officer determined that the school district violated the California statute, but the parents still had the opportunity to participate in the hearing with an expert witness prepared to provide a “knowledgeable opinion about the proposed placement.” Thus, limiting the expert’s observations to twenty minute sessions was harmless. Importantly, the hearing officer noted that the expert testified that she was still able to develop opinions about the proposed elementary school program.
The parents appealed the hearing officer’s decision to federal district court. The district court overturned the hearing officer’s decision, concluding that limiting the parents’ classroom access deprived them of the right to meaningfully participate in the IEP process. The school district appealed and the Ninth Circuit Court of Appeals reversed the district court, determining that limiting the expert’s classroom observation time did not significantly affect the parents’ participation in the IEP process.
It is important to note that in making this decision, the Ninth Circuit noted the specific facts in this scenario. The parents’ expert could have gone back for additional twenty minute observation sessions, but decide not to. Moreover, the expert conceded that she was able to provide the parents with an informed and independent opinion and she didn’t testify about specific additional information she might have obtained with the extended time. If the parents’ expert had been able to: (1) point to specific information that she could have obtained through extended classroom observation; and (2) that without that extended observation time she could not provide the parents with an informed and independent opinion, the outcome might have been different.
So, I think this decision does not mean parents’ experts aren’t entitled to an equal time when observing a child in the classroom. It means parents’ attorneys should make sure that time is necessary for the expert to provide an informed and independent opinion. Moreover, it is very helpful if the expert can point to specific helpful information that might be able to obtain with that additional time. Finally, this decision, though instructive, is only binding on courts in states and territories within the Ninth Circuit. These states are Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Marian Islands Oregon, and Washington.
