January/February 2010

Drobnicki v. Poway Unified School District, 109 LRP 73255 (9th Cir., November 17, 2009 (unpublished)

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The story: Of course, there are always two sides to every story. The student here, Daniel, was found eligible for special education in middle school due to a diagnosis of ADD/ADHD. At the beginning of his sophomore year in high school, the parent met with the special education case manager to review a draft IEP. A general education ceramics teacher was present for a short time during this meeting, and no decisions were made.

The district sent the parent a notice of a second IEP meeting a few weeks later. The parent emailed the special education case manager the next day to say she was "not sure" they could attend because of a scheduled due process hearing (unrelated to the current IEP). In fact, the due process hearing was not scheduled on the day of the proposed meeting, but was scheduled on the days before and after the proposed meeting. Just before the IEP meeting, the IEP case manager phoned the parent and learned the parent would not be attending. While on the phone, the parent sent the IEP case manager an email saying that she had just returned from outpatient surgery and could not come to the meeting. Staff phoned the parent again and offered that she participate by speaker phone. The parent declined - she stated she thought is was inappropriate to hold the IEP meeting in the middle of the due process hearing.

The district proceeded with the IEP meeting without the parent, and forwarded a copy of the completed IEP to the parents. The parents objected to the IEP and the district filed a due process hearing to show that the IEP offered FAPE to the student. The ALJ found the IEP provided FAPE and found no procedural violation related to holding the meeting without the parent. The US District Court agreed, finding that the district took sufficient steps to ensure that one or both parents had the opportunity to participate in the IEP meeting - the father was available, having cleared his calendar for the hearing, and the mother chose not to participate by speaker phone. And, the court said, even if it was a procedural error, it did not result in a loss of educational opportunity or seriously infringe on the parents' opportunity to participate because the district held another IEP meeting about six weeks later with the parents to address the parents' concerns.

The 9th Circuit disagreed, finding that the district violated it's "affirmative duty" to schedule the IEP meeting at "mutually agreed on time and place." "Before it can hold an IEP meeting without a child's parents, the school district must document phone calls, correspondence, and visits to the parents demonstrating attempts to reach a mutually agreed upon time and place", citing Shapiro v. Paradise Valley Unified School District (9th Cir. 2003). The district did not contact the parents first to find an agreed upon date, and when the parent indicated that the proposed meeting date didn't look good, the district did not offer any alternative dates, and did not engage in any correspondence, phone calls or visits to establish a meeting date. Whether the parents had an actual conflict or not didn't matter, as a school district "cannot abdicate its affirmative duties under the IDEA." (citing N.B. v. Hellgate Elementary School (9th Cir., 2008).

Implications for schools:

-If possible, contact parents first before sending out a meeting notice.

- If not possible or feasible to contact parents first, confirm with the parents that the proposed meeting time is acceptable.

-Document all phone calls, emails, correspondence, and hallway conversations with the parents related to scheduling the IEP meeting.

-If the school does not have sufficient documentation of efforts to schedule a "mutually agreed on time and place", don't hold the IEP meeting without the parents.