A Year And A Half Is An Unreasonable Time For a School District To Wait to Initiate A Due Process Hearing

david photoAuthor: David Girard, Attorney at Law 

  • California Education Code Section 56346(f) requires school districts to initiate a due process hearing if the school district determines that a portion of an Individualized Education Program (IEP) to which a parent does not consent is necessary to provide a child with a Free Appropriate Public Education (FAPE).
  • Districts have a responsibility to initiate a due process hearing within a reasonable time after a child’s parents fail to consent.
  • A year and a half is too long for a school district to wait to initiate a due process hearing pursuant to California Education Code Section 56346(f).
  • The California Education Code requires that “as soon as possible following development” of the IEP, “special education and related services shall be made available…”. (emphasis added).
  • School districts are required to implement those portions of the IEP to which the parent has consented. California Education Code Section 56346(f) requires that if a school district “determines that the proposed special education program component to which the parent does not consent is necessary to provide” a FAPE, “a due process hearing shall be initiated.”
  • Once the school district determines that the component is necessary, and that the parents will not agree to it, the district cannot opt to hold additional IEP meetings or continue the IEP process in lieu of initiating a due process hearing.
  • School districts must have some flexibility to allow for due consideration of the parents’ reasons for withholding consent to an IEP component.
  • Continuing to try to work with parents through the IEP process for a year and one half is not justification for delaying or initiating a due process hearing.
  • School districts must act with reasonable promptness.
  • A vague hope that maybe an agreement with the child’s parents will be reached someday is not enough to justify putting off initiating a due process hearing.
  • An offer of a FAPE is not enough to immunize a district from liability.
  • A school district’s ability to file a due process complaint is foreclosed and it is relieved of its duty to provide a FAPE only “[i]f the parent of a child fails to respond to a request for, or refuses to consent to, an initial provision of special education and related services.

I.R. v. Los Angeles Unified School District, U.S. Court of Appeals, Ninth Circuit, 13-56211 (November 17, 2015)

 

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