Federal appellate court rules Alaska district violated IDEA by failing to update student’s IEP annually, despite alleged lack of parental cooperation
Anchorage Sch. Dist. v. M.P., No. 09-189 (9th Cir. July 19, 2012)
Abstract: A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit (AK, AZ, CA, GU, HI, ID, MP, MT, NV, OR, WA) has ruled that a school district failed to provide a special education student with a free appropriate public education (FAPE) as required by the Individuals with Disabilities Education Act (IDEA), when the district failed to update the student’s individualized educational plan (IEP) annually, concluding that the Parents’ alleged lack of cooperation did not excuse the district from its procedural duty to do so.
Concluding that the district deprived the student of FAPE, the panel determined that the Parents were entitled to reimbursement for tutoring services for the 2008 calender year, and a review of whether they are also entitled to reimbursement for those services for January 2009 to May 2009. However, the panel declined to rule on the question of attorneys’ fees because the parties had entered into a global settlement agreement, resolving that issue.
Facts/Issues: M.P., a student diagnosed with high-functioning autism, pervasive development delay, and sensory integration dysfunction, is eligible for special education and related services under the IDEA. The panel noted that “M.P.’s parents have been actively involved in their son’s education,” “[t]heir actions, however, have contributed to an increasingly strained relationship” with ASD.
In 2006, ASD adopted an IEP (“2006 IEP”) for M.P. with the consent of M.P.’s parents. The IEP established academic, occupational therapy, speech and language, and behavioral goals for M.P. during his second grade year at ASD’s Denali Montessori School. M.P. completed the second grade curriculum and moved to the third grade for the 2007-08 school year. Attempts were made to revise the 2006 IEP, but the Parents and ASD were unable to develop an updated IEP before it expired in August 2007. Halfway through M.P.’s third grade year, ASD prepared a revised IEP for M.P. Although the Parents did not attend the meeting during which ASD formulated the draft IEP, they provided written comments and suggestions as to items they wanted included in the proposed IEP.
In accordance with a stipulation between the Parents and ASD in the then-pending administrative proceeding, the Parents also identified those portions of the proposed IEP that should remain in “stay put.” Pursuant to the parties’ stipulation, the Hearing Officer (HO) ordered ASD to maintain M.P.’s writing instruction placement for the remainder of the 2006-07 school year. Relying on the “stay put” order, the Parents sought to maintain M.P.’s then-current educational placement for writing instruction in the draft February 2008 IEP. However, after receiving the Parents’ response, ASD unilaterally postponed any further efforts to develop an updated IEP until after a final decision had been rendered in the state court appeal of the HO’s split decision in the administrative proceeding.
For the 2008-2009 school year, the Parents enrolled M.P. in ASD’s Kincaid Elementary School, and at the request of the Parents, M.P. repeated the third grade that year. The Parents also declined to meet with staff from Denali and Kincaid to discuss M.P.’s transition to the new school. Due to the continuing impasse over the February 2008 draft IEP, the Kincaid staff relied on the 2006 IEP but provided M.P. with third grade lessons and materials.
In September 2008, the Parents filed a due process complaint regarding whether M.P. received educational benefits under the 2006 IEP for the 2008 calendar year. The HO concluded that ASD failed to provide M.P. with FAPE because he had regressed in two core subject areas, math and reading, and in several of his behavioral goals. The HO awarded full reimbursement for the math and reading tutoring expenses the Parents incurred from January 1, 2008 to December 2008. The HO also authorized the Parents to submit their bills from January 1, 2009 through May 2009 for review by the IEP team and ASD to determine whether that tutoring assisted M.P. in progressing toward his 2006 IEP goals. The HO also ordered the IEP team to convene an IEP meeting, that M.P. be tested, and the parties to engage in mediation.
In September 2009, ASD appealed the HO’s decision to federal district court, and both parties filed cross-motions for summary judgment. The district court granted ASD’s summary judgment motion in part, and reversed the HO’s decision because it concluded that ASD did not deny M.P. a FAPE. The district court concluded that, although the 2006 IEP was obsolete and outdated, the failure to develop an updated IEP was mostly attributable to the Parents’ litigious approach. The district court also determined that the Parents were not entitled to reimbursement for the tutoring expenses they incurred on M.P.’s behalf. The district court did affirm the part of the HO’s decision regarding convening an IEP meeting, testing M.P., and engaging in mediation.
The Parents appealed the district court’s ruling that ASD did not deny M.P. a FAPE because the failure to develop an updated IEP was mostly attributable to the “parents’ litigious approach.”
Ruling/Rationale: The Ninth Circuit panel reversed the district court’s decision in part, and remanded the case for further proceedings. Specifically, the panel concluded that ASD deprived M.P. of a substantively adequate FAPE by relying on an outdated IEP to measure M.P.’s academic and functional performance and provide educational benefits. The panel further concluded that M.P.’s parents were entitled to reimbursement for private tutoring expenses they incurred from January 1, 2008 to December 2008, and review of the propriety of private tutoring expenses incurred from January 1, 2009 through May 2009.
The panel agreed with the Parents’ contention that the district court erred by declining to consider whether M.P. received FAPE because the Parents were equally or more at fault for the absence of an updated IEP. The panel found that the district court improperly shifted the burden for substantive compliance with the IDEA from ASD to the Parents. The panel stated that the IDEA puts an affirmative duty on ASD to review and to revise an eligible child’s IEP at least annually. The panel found nothing in the IDEA that makes that duty contingent on “parental cooperation with, or acquiescence in,” ASD’s preferred course of action. The panel also noted that the Ninth Circuit has previously “held that participating educational agencies cannot excuse their failure to satisfy the IDEA’s procedural requirements by blaming the parents.” The panel concluded that ASD’s “take it or leave it” approach contravened the purposes of the IDEA.
The panel acknowledged that the HO’s “stay put” order regarding the writing placement for the 2006-07 school year necessarily constrained ASD’s ability to revise the 2006 IEP, but stated that the “stay put” order “meant only that the ASD could not change M.P.’s ‘educational placement.’” The panel, therefore, held ”that updating an eligible student’s present level of academic achievement and functional performance and establishing corresponding goals and objectives does not qualify as a change to a student’s educational placement, so long as such revisions do not involve changes to the academic setting in which instruction is provided or constitute significant changes in the student’s educational program.”
The panel also agreed with the Parents’ contention that ASD denied M.P. a FAPE during the 2008 calendar year. The panel stated that M.P.’s third grade teachers and special education staff at both Denali and Kincaid had relied on the outdated 2006 IEP which was developed and implemented for M.P. second grade year. As a result, the panel concluded that M.P.’s 2006 IEP was inadequate because it was ”developed for a second grader” and was “not reasonably calculated to ensure educational benefits to that student in his third grade year.”
The Parents also challenged the district court’s denial of reimbursement for private tutoring expenses from January 2008 to May 2009 on the grounds that M.P. was not denied FAPE. However, the panel determined that the district court abused its discretion by summarily concluding that the Parents were not entitled to reimbursement even if ASD had denied FAPE to M.P. Ultimately, the panel affirmed the HO’s decision, finding that the parents had satisfied two criteria for reimbursement, (1) ASD had violated the IDEA by denying M.P. FAPE, and (2) the private tutoring services were proper under the IDEA, but only from January 1, 2008 to December 2008. Lastly, the panel deferred to the HO’s determination that the Parents are entitled to submit for review by the IEP team and ASD the expenses incurred for tutoring services from January 2009 to May 2009 that were appropriate.
Anchorage Sch. Dist. v. M.P., No. 09-189 (9th Cir. July 19, 2012)
[Editor's Note: While IDEA encourages collaboration between parents and the school district, it also recognizes that the parents are acting as their child's advocate, which may involve dissenting from the district's proposed plans and/or placement. In July 2012, Legal Clips summarized a decision by a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit in Woods v. Northport Pub. Sch., which held that the school district denied a student FAPE, and his parents meaningful participation in the development of their student’s IEP, as required by the IDEA.]
