9th Circuit Faults District’s Failure to File for Special Education Due Process Hearing

November 2015

A district’s decision to wait a year and a half without filing for a special education due process hearing following parent’s failure to consent to the provision of services necessary to provide a free appropriate public education (“FAPE”) amounted to an unreasonable delay, the 9th Circuit Court of Appeals ruled. (I.R. by E.N. v. Los Angeles Unified School Dist. (11/17/15, No. 13-56211).)

 By way of background, Education Code section 56346(f) requires a school district to initiate a due process hearing if the district determines that any portion of an individualized education program (“IEP”) to which a parent does not consent is necessary to provide a student with FAPE under the Individuals with Disabilities Education Act.  While a district has some flexibility to allow for consideration of the parents’ reasons for withholding consent,  it must file within a “reasonable” amount of time.

In this case, the parent of a student with autism agreed to portions of various IEPs developed for her daughter, but never consented to the IEPs’ proposals to place the student outside of the general education classroom.  From November 2010 until February 2012, all of the proposed IEPs recommended placing the student in a special education environment.  The Los Angeles Unified School District (“LAUSD”) implemented components of the services offered in the IEPs to which parent gave her consent, but not the portions to which she did not consent.  As a result, the student remained in a general education class with a special education aide.

The 9th Circuit rejected LAUSD’s argument that while it might have eventually had to initiate due process hearing proceedings pursuant to Education Code section 56346(f), it was still attempting to use the IEP team meeting process prior to doing so.  The court pointed out that “it was finally [the parent] who requested a due process hearing. LAUSD never did.”

The court observed that “if, in the school district's judgment, the child is not receiving a FAPE, the district must act with reasonable promptness to correct that problem by adjudicating the differences with the parents.  The reason for this urgency is that it is the child who suffers in the meantime.”  It noted that LAUSD had concluded the student was not receiving a FAPE in her current placement and that “the obvious point of section 56346(f) is to minimize the duration of the denial of a FAPE by requiring the school district, if it cannot reach agreement with the child's parents, to initiate due process to adjudicate the dispute.”

“In other circumstances, determining within what time period the school district must act might require factual findings by the trier of fact, an [administrative law judge], or a district court,” the 9th Circuit added.  “In this case, though, it is plain that the delay of LAUSD of more than a year in requesting a due process hearing was unreasonable. A vague hope that maybe an agreement with the child's parents will be reached someday is not enough to justify putting off the obligation imposed by section 56346(f).”

Finding that LAUSD’s failure to comply with the procedural requirement of section 56346(f) resulted in a loss of educational opportunity and deprived the student of educational benefits for an unreasonably prolonged period, the 9th Circuit returned the case to the U.S. District Court for a determination of an appropriate remedy.

 If you have any questions regarding this case or any other special education matter, please call one of our six offices.

F3 NewsFlash prepared by Jan E. Tomsky and John W. Norlin.
Jan is a Partner in the F3 Oakland office.
John is Special Counsel in the F3 San Diego office.

This F3 NewsFlash is a summary only and not legal advice.  We recommend that you consult with legal counsel to determine how this legal development may apply to your specific facts and circumstances.  Information on a free NewsFlash subscription can be found at www.f3law.com.

Keep up to the minute on the latest updates, NewsFlashes, and legal news by following F3 on Twitter:@F3Law.

© 2015 Fagen Friedman & Fulfrost, LLP

 All rights reserved, except that the Managing Partner of Fagen Friedman & Fulfrost, LLP hereby grants permission to any client of Fagen Friedman & Fulfrost, LLP to use, reproduce and distribute this NewsFlash intact and solely for the internal, noncommercial purposes of such client.