WHAT DO THE CASES SAY ABOUT ARD PROCEDURES?

By Jim Walsh

Walsh, Anderson, Brown, Schulze & Aldridge, P.C.

Texas hearing officers are more concerned about "meaningful participation" by parents in the ARD process than they are with technical compliance with some of the fine points of federal regulations. Substance rather than form appears to be the primary concern. We came to this conclusion after a review of Texas hearing officer decisions over the past two years dealing with ARD procedures.

Notice of the Meeting

For example, several cases dealt with allegations that the school district had not provided proper notice of the meeting. Federal regulations require that school districts give parents prior notice of ARD meetings. The notice must be "early enough to ensure that they will have an opportunity to attend."1 The notice must also "indicate the purpose, time, and location of the meeting and who will be in attendance."2 Texas regulations interpret "prior notice" to mean at least five school days in advance of the meeting.3

In Christina A. v. Denison ISD, the hearing officer pointed out that Christina’s parents did not receive five days notice of the meeting, and did not waive the right to notice.4 While there was no written "waiver of notice" form signed by the parents, the hearing officer concluded that the parents effectively waived the right to advance notice by attending and participating in the meeting:

The evidence clearly indicates, however, that Christina’s parents did attend and participate in the ARD meeting held on October 8, 1997. Further, there is ample evidence that Christina’s parents were on notice of the discipline matter to be discussed at the ARD meeting, having been notified of the discipline matter....on October 1, 1997.

Any failure on the part of the DISD to provide written notice of the ARD meeting and resulting harm were de minimis, and do not rise to the level of a violation of IDEA.

Much the same result occurred in Texas City ISD v. Ashely G.5 Notice of ARD was sent on September 10. The meeting was held on September 15. Thus the parent did not receive the notice a full five days in advance of the meeting. But the parent did attend the meeting, and participate in it. Moreover, the notice failed to tell the parent that a school counselor would be attending the meeting. But as the meeting began the counselor was introduced and the parent "agreed to allow her to stay," according to the hearing officer. The hearing officer concluded that the parent had waived any right to complain of procedural violations by the school.

A parent in Northside ISD complained that two teachers did not return her phone calls. The hearing officer noted that the parent had "been actively engaged with Jeremy’s educational process.....has communicated with teachers, participated in ARD Committee meetings, and requested ARD Committee meetings and conferences." The failure to return a couple of phone calls did not "rise to the level of a violation of IDEA’s procedural safeguards." Jeremy L. v. Northside ISD.6

In general, the hearing officers appear to be looking at what the parent actually knew and actually did, more so than what the forms indicated. For example, in James G. v. Alief ISD7 the parents complained that the "Notice of ARD" did not inform them that a manifestation determination would be made at the meeting. The hearing officer easily disposed of this argument by pointing out that the ARD in question came about as a result of a pre-hearing conference at which the parents were "ably represented by counsel." The hearing officer concluded that the parents knew very well what the meeting was about, and that they actively and knowledgeably participated in it.

Hearing officers appear to look at the entire record and history between the parties in deciding whether or not an alleged procedural violation amounts to anything. If the school district can establish the well known "Call the Chiropractor Defense" (i.e., "we have bent over backwards for this parent!!), it will not go unnoticed. For example, in Mina E. v. Houston ISD,8 the parents complained that the district did not convene an ARD meeting within 30 days of the receipt of a new evaluation. First of all, we should point out that there is no specific regulation requiring an ARD meeting within such a time frame. But the hearing officer held that even if this were a violation, it wouldn’t amount to anything in light of the overall relationship between the parties:

While the record does disclose some instances in which the ARD Committees were not convened immediately upon receipt of an evaluation and that the parents were not always provided with advanced copies of evaluations and draft IEPs, evidence of harm is not manifested. Indeed, between April 1997 and February 1999, [the student’s] ARD Committee met eleven (11) times. During this time there were at least fifteen (15) different evaluations conducted. Contact with the parents was ongoing and intense. ARD Committee meetings were tabled at times to allow the parents to review the proposed IEPs......Thus, if there were any procedural violation related to what documents were received and when they were received, it was de minimis. (Emphasis added).

Timely Meetings

Let us use the case of Mina E. v. Houston ISD to segue into a discussion of the timeliness of ARD meetings. There are a few cases where hearing officers found the delay between evaluation and ARD meeting to be significant. A good example is Chase Ryan v. Austin ISD.9 In the spring of 1996, Chase’s teacher referred him for testing as possibly autistic. Chase was already in special ed, and was due for a three-year reevaluation on April 22, 1996. However, the new reevaluation was not completed until August, 1996. The ARD did not meet to discuss the new information until April 16, 1997, just six days short of a full year from the date when the reevaluation was supposed to be completed. The hearing officer ruled that his lengthy delay did violate "a central purpose of IDEA, which is to ensure prompt and thorough assessment and identification of all disabilities and prompt consideration of any new assessment data." The hearing officer discounted the school district’s argument that the meetings were delayed because the parent would not attend:

In summary, if districts cease having ARD committee meetings when parents refuse to attend, they risk committing serious procedural errors. The legal requirements for timely assessments and timely ARD committee meetings do not make exceptions based on failure of the parent to attend.

Along the same lines, a hearing officer found a delay which ran from May 26, 1997 to December 18, 1997 to be unreasonable in Michael v. Houston ISD.10 In this particular case, the hearing officer concluded that the delay caused no harm, but he still noted that such a long delay between the completion of an assessment and the consideration of that assessment "is unreasonable."

The Parent Who Won’t Attend

Federal law gives parents the "opportunity" to participate in ARD meetings. Hearing officers in Texas appear to have little patience with parents who fail to take advantage of that opportunity, and then complain of a lack of "meaningful participation." For example, in Zakhary v. Houston ISD11 the hearing officer scolded the mother for the "abdication of her moral, legal, and parental duty to get her son to school during these critical, formative years." The mother had complained of the fact that the school held an ARD meeting without her. But the evidence showed that the district had 1) telephoned her three weeks in advance; 2) sent notice by certified mail two weeks in advance; 3) telephoned the mother’s attorney; and 4) had the teacher talk to the mother about proposed dates for ARD.

Likewise, in Isaiah v. Cypress-Fairbanks ISD,12 the mother complained of a particular ARD meeting which was held without her. But the hearing officer noted that school personnel had offered to meet at various times of the day on six different dates in the spring. All these proposals were rejected by the mother. The final notice from the district listed three dates and told the mother that if agreement was not reached, the meeting would proceed on a certain date at a certain time. The hearing officer concluded that the mother had made a conscious decision not to participate in the ARD.

Language Issues

Though none of the cases reported here deal with language barriers, we would particularly point out the importance of that issue. Federal regulations require schools to "take whatever action is necessary to ensure that the parent understands the proceedings at the IEP meeting, including arranging for an interpreter for parents with deafness or whose native language is other than English."13 Texas law has added to this by requiring the school to provide a "written or audiotaped copy of the child’s IEP translated into Spanish if Spanish is the parent’s native language" and to "make a good faith effort" to do the same if the language is something other than Spanish.14

The Practical Effect.....

This article should not be taken to mean that we can just forget about our i-dotting and t-crossing. Keep in mind that in all of the cases reported here, the district had to expend time, energy and money defending what at least appeared to be a procedural error. But the good news is that hearing officers are pretty good at telling the difference between errors that result in harm to the student or parent, and silly games of "Gotcha!" The concept of "meaningful participation" in the ARD process means that districts must make every effort to make sure that the parents understand what is happening at the meeting, and feel comfortable participating.

ENDNOTES

  1. 34 CFR 300.345(a)(1).
  2. 34 CFR 300.345(b)(1)(i).
  3. 19 TAC 89.1015.
  4. Dkt. No. 045-SE-1097 (Spec. Ed. Hearing Officer Evelyn Hicks, March, 1998).
  5. Dkt. No. 118-SE-1297 (Spec. Ed. Hearing Officer Deborah McElvaney, May, 1998).
  6. Dkt. No. 073-SE-1098 (Spec. Ed. Hearing Officer Jim Hollis, March, 1999).
  7. Dkt. No. 214-SE-399 (Spec. Ed. Hearing Officer Kevin O’Hanlon, May, 1999).
  8. Dkt. No. 197-SE-399 (Spec. Ed. Hearing Officer Deborah McElvaney, August 1999).
  9. Dkt. No. 005-SE-798 (Spec. Ed. Hearing Officer Janis Herd, March, 1998).
  10. Dkt. No. 364-SE-798 (Spec. Ed. Hearing Officer James Holtz, November, 1998).
  11. Dkt. No. 018-SE-997 (Spec. Ed. Hearing Officer Deborah McElvaney, January, 1998).
  12. Dkt. No. 048-SE-1098 (Spec. Ed. Hearing Officer James Holtz, April, 1999).
  13. 34 CFR 300.345(e).
  14. Tex. Educ. Code Section 29.005(d).