A Case We Are Watching at SPEDLAWBLOG
Z. B. v. DC Board of Education
As a service, we at SPEDLAWBLOG will follow all appeals to the US Supreme Court and work to keep our loyal readers up to date on cases that may have major input into special education law and practices. Just a reminder, that even though cases are appealed to the Supreme Court, does not necessarily mean they will be heard. Additionally, not all appeals (even if not heard) are good. Sometimes bad facts make bad cases. We just want to make sure you are aware of the cases, the implications, and then how this might effect your work with students with disabilities. Check back regularly to SPEDLAWBLOG for further updates.
When the Supreme Court does decide on whether to grant certiorari we will keep you informed as well.
Please let us know of any questions you might have about this case.
Z. B. v. DC Board of Education
This case is an appeal of a decision by the District Court for the District of Columbia. The decision in that case can be found at 382 F.Supp.3d32 (2019).
The important questions are:
1) What is meant by meaningful participation by a parent in an IEP meeting?
2) What is a placement?
Is the IEP agreed to the placement?
Is the physical location of the programming the placement?
3) If an LEA does not implement the initial agree upon IEP to the letter of what was written, high much is enough?
Z. B. is a student with a disability, eligible for special education and related services as a student with autism.
This is essentially a case about placement, but it is also a case about parent participation in IEP meetings.
Much of the description below is from the petition for writ of certiorari. If and when the school district responds and the facts or comments are substantially different, SPEDLAWBLOG will update to keep you informed.
The question presented to the Supreme Court is a two-part one:
1) As school placement is an essential element of the Individuals with Disabilities Act, 20 USC 1400 §§ et. seq., and to the provision of a Free and Appropriate Education, the statute fails to define school placement, the Circuits have a variety of fundamentally different formulas for determining placement, and school districts are more commonly changing a student’s location of services without first making a team decision to change the students placement where those districts have distinguished location of services from placement, Petitioner requests this Court define what a school placement is and, accordingly, when a change in placement occurs.
2) Whether, in the event that there was a change in placement in this matter, Respondent denied Z.B. a FAPE by committing the procedural violation of preventing Petitioner from meaningfully participating in Z.B.’s IEP meeting by predetermining his new placement and accordingly unilaterally reducing the hours of individualized instruction in the IEP to accommodate the new placement.
STATEMENT OF THE CASE
This case arises from a civil action filed on January 15, 2018 by the Appellant in this matter appealing the determination of an Independent Hearing Officer’s determination of October 25, 2017. In this matter, Z.B. is a student with multiple disabilities including Autism and a specific learning disability in Math. At the beginning of the 2016-2017 school year Ms. Sylvia Sanchez requested that Z.B. be placed in a less restrictive environment. Appellee had previously placed Z.B. at the Kingsbury Day School, a program for students with disabilities that is designed to serve students with both a diagnosis of Autism and Specific learning disabilities. After a series of deliberations, Appellee came to the conclusion that Z.B. required a new location of services and identified Kennedy Krieger of Montgomery County, a school that is able to accommodate students with Autism, Intellectual Disabilities, and Multiple Disabilities. Appellee does not classify this as a program that can treat students with a specific learning disability. Appellee specifically excluded Ms. Sanchez from the process of determining the appropriate location of services after she made it clear that she believed Kennedy Krieger was an inappropriate placement and was too far away from her home for Z.B. to travel. At a meeting to determine the new location of services Ms. Sanchez was informed that the placement would be changed to the Kennedy Krieger school of Montgomery County and the hours in the IEP were unilaterally changed to adjust to the different bell schedule at the new school, reducing Z.B’s specialized instruction hours by 2 hours per week, or 7.7 percent of his total academic instruction. Additionally, Ms. Sanchez was also informed during the meeting that in spite of the fact that Kennedy Krieger of Montgomery County does provide its students a ten month calendar just as Kingsbury Day School, that Z.B. would be required to attend the 11-month program although his IE does not require Extended School Year services (“ESY”) After Ms. Sanchez filed a Due Process Complaint, a Hearing Officer determined that the change was not a change in placement but only a change in location of services not requiring parental participation. Ms. Sanchez filed a civil action challenging the Hearing Officer’s determination and seeking tuition reimbursement. The District Court affirmed that ruling on April 25, 2019. Appellant appeals that determination to the Lower Court.
However, the D.C. Circuit Court appears to present that proposition that where we assume that there was a change in placement, knowing that the decision to change the placement was made prior to the IEP meeting and the hours in the IEP were reduced outside of the IEP meeting without discussion by any of the team members or the parent, that the parent was offered ample opportunity to participate in the meeting because they were communicated with and invited. This result would fly in the face of this Court’s previous decisions and render the requirement of parent participation feckless where simply inviting the parent to a meeting, or a series of meetings, counts as parent participation regardless of the fact that the decisions were all made outside of those meetings.