CALIFORNIA EDUCATION CODE SECTION 56346(f) COMPELS A SCHOOL DISTRICT TO INITIATE A DUE PROCESS HEARING WHEN THE SCHOOL DISTRICT AND THE PARENTS REACH AN IMPASSE

In a decision by the Ninth Circuit Court of Appeals, the panel concluded that a school district did not initiate a due process hearing within a reasonable time after a child's parents failed to consent to the provision of services necessary to provide a free, appropriate public education (“FAPE”). The panel found that a period of a year and a half was too long for the school district to wait to initiate the hearing, and cited California Education Code section 56346(f) which requires a school district to initiate a due process hearing if it determines that a portion of an IEP to which the parents did not consent is necessary to provide the child with a FAPE under the IDEA. In this case, the Court found that the district's failure to initiate a due process hearing directly resulted in a clear injury, namely the student remaining in an inappropriate program for a much longer period of time than should have been the case.

All IEPs developed for the student from November 2010 until February 2012 recommended placement in a special education environment. The parent consented to portions of the IEPs but never consented to the IEPs' proposed placement outside of the general education classroom. The district implemented only those components to which the parent consented and, as a result, the student remained in a general education class with a special education aide. In affirming that the student would remain in the general education placement, the principal noted that the IEP members believed that the student required a smaller classroom setting with individualized instruction, which was not available in the general education classroom.

In May 2012, a request for a due process hearing was filed on behalf of the student. Among the issues was whether the district had denied the student a FAPE by failing to provide an appropriate placement. The AU concluded that the program proposed by the district was appropriate for the student and that the district had thus offered her a FAPE. However, the AU found that the district failed to provide a FAPE because the general education classroom placement was inappropriate, as acknowledged by the district. The AU did not hold the district liable for failing to request a due process hearing, concluding that the district offered an appropriate placement, but the parent's refusal to consent prevented the district from implementing and providing a FAPE.

The student appealed the ALJ's decision to the district court, focusing on the failure of the district to request a due process hearing. The court affirmed the ALJ's decision, holding that the district could not initiate a hearing or take action to override the parent's failure to consent, nor could the district be held liable for its failure to provide a FAPE. The case was appealed to the Ninth Circuit Court of Appeals and the Ninth Circuit disagreed with the lower court's findings.

The Ninth Circuit found that the lower court relied on 20 U.S.C. § 1414(a)(1)(D)(ii)(II), which states that if the parent refuses to consent to services, the school district shall not provide special education and related services to the child by initiating a due process hearing. However, 20 U.S.C. § 1414(a)(1)(D)(ii)(II) and its implementing regulations foreclose a school district from initiating a due process hearing only where a parent has refused consent before the initial provision of special education and related services. The statute relied upon by the district court does not apply where, as in this case, a parent consented to special education and related services, but did not consent to a specific component of the IEP. The Ninth Circuit further noted that 20 U.S.C. § 1415(b)(6)(A) provides an “opportunity for any party” to file a request for a due process hearing with respect to a child's placement.

The California Education Code sets forth the steps that must be taken after an IEP is prepared and presented to the parent if the parent consents in writing to the receipt of special education and related services but does not consent to all components of the IEP. The school district must first determine whether the proposed special education program component to which the parent does not consent is necessary to provide a FAPE. If the disputed component is determined to be necessary, the school district must initiate a due process hearing expeditiously. The court noted that the school district may not “artificially prolong the process” by opting to hold additional IEP meetings or continue to the IEP process in lieu of initiating a due process hearing. Cal. Educ. Code § 56346(f) The school district's failure to comply with the procedural requirement in Cal. Educ. Code § 56346(f) denied the child a FAPE because the student remained in a placement that was acknowledged as inappropriate. The district's failure to act promptly to adjudicate the dispute with the parents resulted in the loss of educational opportunity and caused a deprivation of educational benefits. The district can therefore be held responsible for denying the student a FAPE for an unreasonably prolonged period of time. This office will keep you updated regarding further developments in this case.

This update is provided for informational purposes only. It is not intended as legal advice, nor does it create an attorney-client relationship between Parker & Covert LLP and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. © PARKER & COVERT LLP 2015

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