The Individuals with Disabilities Education Act (IDEA) provides that impartial hearing officer decisions are to be made on “substantive grounds based on a determination of whether the child received a free[,] appropriate public education.” 20 U.S.C. § 1415(f)(3)(E). A finding that a child was denied a FAPE may nonetheless be made on the basis of a procedural violation, but “only if the procedural inadequacies – (I) impeded the child’s right to a free appropriate public education; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parents’ child; or (III) caused a deprivation of educational benefits.” Id. § 1415(f)(3)(E)(ii). Nothing in that requirement prevents the IHO from ordering the school district to comply with procedural requirements in the future, however. Id. § 1415(f)(3)(E)(iii).

Greenhill v. Loudoun County School Board, No. 1:19-cv-868, 2020 WL 855962, 120 LRP 6875 (E.D. Va. Feb. 20, 2020), involved a nine-year-old boy whose parents, concerned with his lack of focus and attention, asked that he be evaluated for special education and furnished with an Individualized Education Program (IEP). The district denied the request for an IEP and ultimately offered a Section 504 plan. The parents requested a due process hearing challenging, among other things, the IEP team’s determination of ineligibility and its failure to consider the parents’ expert’s report.  The parents also alleged that their opportunity to participate in the IEP meeting was significantly impeded. Six of seven witnesses at the hearing were school employees, two of whom were qualified as experts. The parents did not submit expert testimony and did not offer the report of a neuropsychologist and psychopharmacologist who diagnosed the student with, among other things,  ADHD and a specific learning disorder, with mild impairment in reading comprehension and written expression. The parents had put forward that report at the IEP meeting at which the district decided that the child was not eligible for IDEA services. The hearing officer ruled in favor of the school district, holding that the child was not eligible under IDEA. After denying a request for submission of evidence outside the hearing record, including the expert’s testimony, the court affirmed the hearing officer’s decision.

The court said it was obliged to focus on the process by which the hearing officer reached the decision. The court noted that the hearing officer allowed opening statements, heard witness testimony, allowed admission of exhibits, heard objections to evidence, and permitted filing of post-hearing briefs with proposed findings of fact and conclusions of law. The court deemed the decision thorough, saying it included credibility determinations and explicit reasoning with specific references to the record. The court rejected specific challenges to the hearing officer decision: It said the hearing officer was correct in finding that the eligibility team considered the parents’ expert report, that the hearing officer’s credibility determinations were consistent with the evidence and entitled to deference, and that the hearing officer was right in ruling that the parents had the opportunity to participate meaningfully in the eligibility meeting.

On the meaningfully participate claim, the court made two important points. First, the parents contended they were not permitted to meaningfully participate because “they did not understand [their expert’s] report or the entirety of the IDEA process.” The court noted that, while IDEA contains procedural safeguards that provide  parents “the opportunity for meaningful input into all decisions affecting their child’s education,” courts have sensibly rejected an interpretation of IDEA that would “guarantee that parents must fully comprehend and appreciate to their satisfaction all of the pedagogical purposes in the IEP.” Thus the court stated courts have not required “perfect comprehension by the parents” and construe the IDEA to require “serious deprivation” before parents’ participation rights are impacted. Second, the court noted, the parents had an advocate at the meeting and could have obtained access to their expert at any time to explain any aspect of his report they did not understand. The parents failed to use these resources available to them and instead attempt to place the burden on the district to educate the parents to their satisfaction, a burden far beyond the requirement of meaningful participation. Also, the parents had the opportunity to speak at the meeting but declined to say much. “Thus, when given the opportunity to participate meaningfully in the Eligibility Meeting, plaintiffs declined to do so.” Id. at *9

This case provides several lessons for IHOs. The first is, with regard to the application of the “significantly impeded the parents’ opportunity to participate in the decision-making process regarding” the FAPE standard, the facts in each case must be closely analyzed in attempting to arrive at the appropriate balance between the parents’ asserted needs and the extent of the obligations IDEA places on districts in safeguarding the parents’ right of the “opportunity to participate.”  Second, the case exemplifies that when a hearing officer conducts a hearing “in accordance with appropriate, standard legal practice” per 34 C.F.R. §300.511(c)(iii), allowing parties to present evidence and argument appropriately and without unlawful impediments, then writes a well-reasoned decision, the decision is likely to be upheld. Further, it reminds us that credibility findings will be given great deference, when the bases are explained with references to the record.  Finally, parties should not expect to be rescued on appeal from strategic decisions not to introduce an expert report or available testimony at the time of the hearing.