LEAs Only Need to Prepare IEPs for Parentally-Placed Private School Students When Parents Ask

07.02.2024

The United States Court of Appeals for the Ninth Circuit issued an unpublished decision in Newport-Mesa Unified School District v. D.A. and D.A., on behalf of their minor child, M.A. (9th Cir. 2024) No. 23-55351, upholding a favorable judgment for the District on all of Parents’ claims. The Court affirmed that Newport-Mesa had made appropriate IEP offers to Student, and neither the District’s failure to develop an annual IEP following his unilateral private placement nor its delay in conducting Student’s triennial reevaluation amounted to a denial of a free appropriate public education (FAPE).

Parents had alleged that the District denied Student a FAPE through several procedural violations of the Individuals with Disabilities Education Act (IDEA), none of which were found to have merit by the Court. Regardless of whether FAPE was being disputed, when the child was enrolled in private school, the District only needed to prepare an individualized education program (IEP) if Parents asked for one, which they had not. Reevaluation conducted by the District’s staff did not need to include self-rating scales, a narrow writing assessment or a conversation sample; nor did it need to include observations by all staff to be considered sufficiently comprehensive. Further, the Court clarified a school district's obligation to defend its IEP via a due process proceeding applies only where the school district determines that part or all of the proposed special education program or IEP to which the parents do not consent is necessary to provide a FAPE.

At the time of the original dispute, M.A. was a sixth-grader who was eligible for special education as a student with autism and a specific learning disability. Student also presented with diagnoses of Attention Deficit Hyperactivity Disorder, Central Auditory Processing Disorder, depression, and deficits in pragmatic speech and language. Newport-Mesa made an offer of a FAPE in a December 2017 IEP. Parents disagreed, contending that the District’s offer to place Student in a general education setting 95% of the time was insufficient to meet his academic, pragmatic and social-emotional needs, and further would subject M.A. to continued bullying. Parents also disagreed with the services, accommodations and goals offered in the IEP. Parents declined to consent to this IEP and subsequently notified the District of Student’s unilateral placement at Fusion Academy, a private educational center, effective January 2018.

In response to the unilateral placement, Newport-Mesa sent Parents a “Parent Certification of Intent” form that offered them the option to indicate they were seeking to enroll their child in the District and wished to schedule an IEP team meeting. Prior to the expiration of Student’s annual IEP, the District sent M.A.’s Parents this form three times, with no response. The District did not convene an annual IEP team meeting by the due date because Parents had not requested an IEP and because M.A. had been privately placed at Fusion Academy for approximately four months.

Student’s triennial reevaluation was due by April 21, 2019. Newport-Mesa completed a reevaluation, convened an IEP meeting, and made a new offer of FAPE on May 29, 2019. The IEP team increased special education services and updated Student’s goals. Parents again did not consent to the District’s offer and sent another notice of unilateral placement, all the while maintaining Student’s placement at Fusion Academy for the 2018-19 school year.

Parents filed an administrative hearing complaint in December of 2019 challenging the sufficiency of the 2017 and 2019 IEPs, the timeliness of the District’s triennial reevaluation, the District’s failure to file for due process hearing when Parents did not consent to the May 29, 2019, IEP, and the District’s failure to send prior written notice in response to school closures related to the COVID-19 pandemic. Parents sought reimbursement for their costs associated with Student’s private placement at Fusion Academy since 2018. Thereafter, the District filed its own complaint regarding the appropriateness of its May 2019 triennial reevaluation.

The Office of Administrative Hearings (OAH) first ruled in favor of the District as to all issues, with one exception. The administrative law judge (ALJ) found the District was procedurally required to hold an annual IEP meeting for M.A. notwithstanding the fact that he had been enrolled at Fusion Academy since 2018 with no indication that Parents sought an IEP meeting or an offer of FAPE from Newport-Mesa. The ALJ concluded that re-enrollment in a public school was not required to receive an IEP offer. Unless parents revoke consent for a district’s continued provision of special education services under the IDEA, a student’s residency - not enrollment - triggered a district’s IDEA obligations, regardless of parental cooperation. Given that M.A. was a student with an IEP for whom Parents had not revoked consent, in writing, for the provision of special education, the ALJ determined M.A. was entitled to the periodic reconsideration of his educational needs and the development of an IEP. As a result, the ALJ concluded that the District's failure to hold an annual IEP meeting for M.A. in April 2018 was a procedural violation that substantively denied him a FAPE for the 2018-19 school year given that the violation led to a loss of educational opportunity. The District was ordered to reimburse Parents for M.A.’s enrollment at Fusion Academy in the amount of $45,387.97 for registration and tuition costs, as well as other minor costs for associated private services.

Both parties appealed to the District Court, which reversed the ALJ’s award of reimbursement to Parents and found in favor of the District on all issues. The Ninth Circuit affirmed.

Central to the Ninth Circuit’s holding that the District had no obligation to convene an annual review for M.A. was its prior analysis in Capistrano Unified School District v. S.W. (9th Cir. 2021) 21 F.4th 1125, 1129, which had not yet been decided when M.A.’s due process hearing commenced. The Capistrano court directly addressed whether a student with an IEP who was unilaterally placed in a private school by his or her parents (as a result of a dispute with a school district’s offer of FAPE) is entitled to an annual IEP review and a FAPE offer. The Capistrano court held that the applicable federal law that governs the provision of services for children in private schools, 20 U.S.C. § 1412(a)(10)(A)-(C), only recognizes two categories of private school students: “children who are placed unilaterally in private schools by their parents” and “children placed in private schools by a public agency.” In so concluding, the Ninth Circuit considered the plain language of the statute and determined that identifying a third category of privately placed students, such as the student in Capistrano, based on parental claims for reimbursement of a private placement associated with an alleged denial of FAPE, went beyond the reach of the statute. Thus, based on the Capistrano holding, if parents enroll their child in private school as a result of a dispute, the responsible local educational agency does not have to develop an IEP unless parents ask for one. Of note, the student in Capistrano sought review of the decision by the United States Supreme Court, arguing that should the Ninth Circuit’s ruling stand, school districts would be excused from their affirmative duty under the IDEA to prepare an annual IEP for children whose parents dispute an offer of FAPE and exercise their right to unilaterally remove their child from the district. Student’s Petition for Writ of Certiorari to the Supreme Court was denied, leaving the Ninth Circuit’s ruling in Capistrano as controlling law in California.

Applying the analysis in Capistrano, the Ninth Circuit concluded that Newport-Mesa only needed to develop an IEP for M.A. if Parents asked for one, which they did not do prior to April 2018, when M.A.’s annual IEP review was due. Thus, there was no procedural violation for failing to convene an IEP meeting, and without a procedural violation, the District’s failure to convene an IEP team meeting could not have led to a loss of educational opportunity, a denial of FAPE, or a serious infringement of Parents’ right to participate.

The Ninth Circuit further affirmed the ALJ and District Court’s determinations that the District should have offered an assessment plan earlier in order to timely complete Student’s triennial reevaluation of M.A. However, the five-week delay in completing and reviewing the reassessment report did not rise to the level of denying M.A. a FAPE.

Furthermore, the Ninth Circuit concluded the District was not required to initiate a due process hearing after Parents rejected the May 2019 offer of FAPE in its entirety. Because Parents did not consent to any part of the proposed IEP, and instead sought a different program/placement than what the District offered as a FAPE, the District was not required to file for a due process hearing to defend its offer in the face of a unilateral, private placement by Parents. (Ed. Code, § 56346, subd. (f).)

While Parents here were ultimately precluded from recovering the costs associated with their unilateral placement, a different outcome could have resulted in a different set of circumstances. School districts should keep the following takeaways from Newport-Mesa in mind when applying the Ninth Circuit’s analysis to a particular scenario:

Failure to diligently evaluate the circumstances of students with disabilities who are unilaterally removed from public schools and placed by their parents in private schools could be costly.
School districts should, at a minimum, still timely offer to reevaluate all students with disabilities, including parentally placed private school students, at least once every three years, unless parents unequivocally revoke consent, in writing, to the provision of all special education services. Accurately tracking, documenting and timely communicating offers to reassess will help prevent legal challenges.
School districts must also ensure they make a FAPE available to all parentally placed private school students who express interest in reenrollment and seek a FAPE/IEP from the school district. A school district may still need to file a due process hearing complaint and seek an order to implement its offer of a FAPE if a parent/guardian partially consents to an IEP and the district determines the proposed program component to which parents have not consented is necessary to provide a FAPE to the child, pursuant to Education Code, section 56346, subd. (f).
While neither raised as an issue nor addressed by the Ninth Circuit in Newport-Mesa, districts should be mindful that parents may still be entitled to reimbursement for private program/private school costs when they challenge an offer of FAPE and prevail in an administrative trial or in court. Nothing in this decision suggests school districts should not convene an IEP team meeting to discuss a parent's concerns upon receipt of a written notice of a unilateral placement. Convening such an IEP team meeting - and when applicable, following up with prior written notice denying tuition reimbursement and clarifying the offer of a FAPE - may continue to be in the district’s best interest.

Should you have any questions concerning the topic of this alert, please do not hesitate to contact the authors or your usual counsel at AALRR for clarification and guidance.