A child’s individualized educational program (IEP) must be reviewed annually. It is good that the IDEA requires at least an annual review of the IEP, but I hear that parents are frequently told by school district staff the IEP must, without exception, be completed within a year of the previous review. Parents are sometimes told that the IEP will expire if not reviewed within exactly one year of the last review date. Individualized educational programs are not like canned goods or medicine with an expiration date. They do not automatically expire. School districts can extend the time for the review if it is necessary to ensure the parent’s participation in the IEP meeting.
In Doug C. v. State of Hawaii Department of Education (9th Cir. June 13, 2013), the 9th Circuit Court of Appeals ruled that the parent’s right to participate in the IEP meeting was more important than the Hawaii Department of Education’s (Hawaii ED) need to meet the IEP annual review deadline. In this case, the parent had e mailed the special education coordinator the morning of the IEP meeting that he could not attend the meeting because he was sick and offered to re-schedule the meeting for either Wednesday or Thursday of the following week. Unfortunately, the special education coordinator believed those dates were three and four days past the annual review date. He tried to convince the parent to participate in the IEP meeting that morning by phone, but the parent said he was too sick and wanted to participate in person. Not wanting to disrupt the schedules of the other IEP participants, the coordinator decided to go forward with the meeting without the parent. The IEP changed the child’s placement from a private special education facility to a public high school workplace readiness program. The parent rejected that IEP because it was created without his participation and requested a due process hearing. The hearing officer and the district court ruled in favor of the district and the parent appealed to the 9th Circuit Court of Appeals.
The Court of Appeals ruled for the parent. The court rejected the argument that the IEP meeting had to be held by the annual review deadline. Because the parent was willing to meet the following week, the court said, the Hawaii ED should have accommodated the parent, rather than deciding it could not disrupt other team member’s schedules. The court acknowledged that there were competing requirements under the IDEA to hold the IEP meeting by the annual review date and to ensure parent participation. But, the Hawaii ED should have considered which of the two courses of action was less likely to result in a denial of a free appropriate public education for the student. Moreover, the court pointed out that the Hawaii ED could have continued the student’s services after the review date had passed. Given the importance of parent participation in the IEP process, the Hawaii ED’s decision to proceed without the parent was clearly not reasonable under the circumstances. The 9th Circuit sent the case back to the district court to consider the parents right to tuition reimbursement for the placement in the private program.