Author: Michael Tucker, Attorney at Law
On May 15, 2020, the Office of Administrative Hearings (OAH) ruled that failure to include a nonpublic agency aide in a student’s IEP meeting did not significantly impede the parent’s participation. OAH also ruled that setting reasonable restrictions on communication with the aide, while still providing meaningful contact, did not significantly impede the parent’s participation in decision making. (Parent on Behalf of Student v. Mountain View Unified School District, Case No. 2019100681.)
Student qualified for special education under the categories of autism and speech and language impairment. Student’s IEP included a behavior technician aide provided by a nonpublic agency. Student’s parent requested that the aide be present at an IEP meeting. While the aide did not attend the meeting in question, the aide’s two clinical supervisors were in attendance.
The Local Educational Agency (LEA) also directed all communication related to the aide through the Student’s special education teacher. Instead, Student’s parent sought raw data from daily behavior logs, contemporaneous communication with the aide and other detailed information.
Student filed a Due Process Complaint alleging that the LEA’s decision to deny parent’s request that the Student’s aide be present at an IEP meeting denied Student a Free Appropriate Public Education (FAPE). Specifically, Student claimed that he was denied meaningful participation in the IEP meeting because the aide’s attendance was essential to Student’s participation in the meeting.
Student also alleged that the LEA denied Student FAPE by preventing free communication between Student’s parent and the nonpublic agency aide. Particularly, Student claimed that the LEA’s restrictions on communication received from the aide prevented the parent from meaningfully participating in the decision making process.
After a hearing, OAH ruled in favor of the LEA on both issues.
A student is denied a FAPE if procedural inadequacies significantly impede the parent’s opportunity to participate in the decision making process. (20 U.S.C. § 1415(f)(3)(E)(ii)(I)-(III).) The parents of a child with a disability must be afforded an opportunity to participate in IEP meetings. (34 C.F.R. § 300.501(b).) “A parent has meaningfully participated in the development of an IEP when he or she is informed of the child’s problems, attends the IEP team meeting, expresses disagreement regarding the IEP team’s conclusions, and requests revisions in the IEP.” (N.L. v. Knox County Schools (6th Cir. 2003) 315 F.3d 688, 693-5.) In this case, Student alleged that he was denied meaningful participation because the LEA failed to include the aide as an essential IEP team member. Essential IEP members are often considered to include the following:
- the student’s parents;
- a general education teacher;
- the student’s special education teacher;
- LEA representative;
- an individual qualified to interpret evaluations; and
- at the discretion of the parent or the LEA, other individuals that have knowledge or special expertise regarding the child, including related services personnel as appropriate.
(20 U.S.C. § 1414(d)(1)(B)(i)(vi); 34 C.F.R. § 300.321.)
While Student argued that the aide possessed “knowledge or special expertise regarding the child”, OAH found that “a person with knowledge or special experience…is not an essential member of the IEP team, unless they are also qualified to interpret evaluations, under 34 Code of Federal Regulations part 300.321(a)(5).” Therefore, OAH found that the aide was nonessential because the aide was not qualified to interpret evaluations and exclusion from the IEP meeting was not a violation of FAPE.
OAH also found that the LEA’s restrictions on parent’s communication with the aide were reasonable. LEAs are generally permitted to place reasonable restrictions between providers and a parent to minimize “unproductive communication.” (L.F. v. Lake Washington School District #414 (2020) 947 F.3d 621.) Here, OAH found that reasonably restricting communication while still providing detailed “daily, weekly, and monthly communications” with the parent did not amount to a FAPE violation.
While LEAs should carefully consider parent’s requests, parents are not entitled to unfettered access to school staff. Here, OAH agreed with the reasonable restrictions placed on the parent’s requests by the LEA. Specifically, OAH pointed out that not every parent request to invite certain school staff to an IEP is a required attendee as an essential IEP member. While OAH did not make much of the fact that the aide’s supervisors were at the IEP meeting, it’s worth noting that their presence may have made the aide’s input redundant. OAH also found, through a recording of the IEP meeting, that the parent was able to fully participate despite the aide’s absence.
Moreover, restrictions can be placed on a parent’s request for communication so long as the LEA’s restrictions are reasonable considering the amount of communication offered to the parent. Specifically, OAH agreed that contemporaneous communication as requested by the parents was not required considering the LEA’s already robust communication offerings.
LEAs are encouraged to carefully consider a parent’s request with this guidance in mind.