No Denial of FAPE When School District Refuses to Prepare New IEP For Privately Placed Student Despite Invalid Reason for Discontinuing the IEP Process

10.08.2024

The Ninth Circuit Court of Appeals recently affirmed that a school district did not violate the Individuals with Disabilities Education Act (IDEA) when it refused to prepare a new Individualized Education Program (IEP) for a parentally-placed private school student despite erroneously notifying the student’s parent it refused to hold further IEP team meetings because the student was no longer enrolled in the district. Parent’s rejection of the school district’s offer of a free appropriate public education (FAPE), refusal to consent to evaluations, failure to request a new offer of FAPE, and actions that evidenced an intent to maintain the child’s private placement, relieved the district from responsibility to provide a FAPE to the student and reimburse the parent for the cost of the private placement. (J.B. v. Kyrene Elementary School District No. 28 (9^th Cir., Aug. 20, 2024, No. 22-16816) 2024 WL 3869454.)

Student, J.B., presented with behavioral and learning challenges stemming from reactive attachment disorder, fetal alcohol syndrome, intellectual disability, Klinefelter’s syndrome, attention deficit hyperactivity disorder, dyslexia, and dysgraphia. At the beginning of the 2013-14 school year, Student’s behavior resulted in multiple physical restraints. After a month, Parent stopped sending J.B. to school. Shortly after the District convened an IEP team meeting to address Student’s behavioral concerns, J.B.’s Parent notified the Kyrene Elementary School District of the family’s intent to place J.B. in a private school.

The District offered to pay for J.B.’s attendance at the private school initially through the remainder of the academic quarter while it planned for Student’s transition back to public school. Thereafter the District offered to fund another month of Student’s attendance at the private school, along with an agreement that Parent consent to assessments followed by an IEP team meeting to develop a program for J.B. to reenroll in the District. Parent did not consent to the proposal to evaluate J.B. and instead demanded one-sided conditions for testing, evaluations, and observations. Parent also requested an independent educational evaluation (IEE) for Student.

The District responded by sending two Prior Written Notices. The first denied Parent’s request for an IEE since J.B. was not currently attending a school in the District. The second informed Parent that no further IEP team meetings would be scheduled for Student for the same reason. Six months later, Parent filed a due process complaint alleging that the District violated the IDEA by failing to provide a FAPE to J.B. and seeking reimbursement for the cost of tuition and related expenses related to the private placement.

The Ninth Circuit clarified that Student’s enrollment status was not a valid reason under the IDEA to discontinue further IEP team meanings, or to decline an IEE. However, Parent’s refusal to consent to evaluations and the finding of Parent’s clear intent to keep J.B. enrolled outside the District, established other lawful reasons for ending negotiations with Parent rendering the procedural error harmless. Student’s requests for relief were denied.

This opinion is the second of the Court’s this year to address the rights of parentally placed private school students and their parents. It reiterates the general requirement that school districts have an IEP in effect for each child with a disability in the agency’s jurisdiction. And for students enrolled in private schools who are eligible for special education and related services, the local educational agency where the child resides is responsible for making FAPE available to the child. But as this case, and the Court’s recent opinion in Newport-Mesa Unified School District v. D.A. and D.A., on behalf of their minor child, M.A. ((9^th Cir. 2024) No. 23-55351) make clear, the right to the development of an IEP is not absolute. The obligation of a school district to provide an IEP to privately placed students within their boundaries can be limited by a parent’s actions.

Federal law requires parental consent for reevaluations and if a parent refuses to consent to a reevaluation, the public agency may, but is not required to pursue the reevaluation. (34 CFR 300.300(c).) The law further clarifies that if the parent of a child who is privately placed in a private school does not provide consent to a reevaluation, the public agency is not required to consider the child as eligible for services. (34 CFR 300.300(d)(4).)

Further, a parentally-placed private school student's district of residence is not obligated to continue offering FAPE if the parent’s actions establish an intent to keep the child enrolled in an out-of-district private school. In Kyrene, when Parent rejected the District’s offer of FAPE, unilaterally removed J.B. from public school, placed conditions on the District’s assessments, and never requested a new FAPE offer, Parent became responsible for financing Student’s education.

While the District prevailed, this case provides an important reminder about parentally placed private school students. When considering responses to parent requests, ensure staff do not assume your local educational agency does not owe procedural and substantive obligations to the student simply because they are not actively enrolled in your system. When deciding whether the provision of a FAPE is required through the development of an IEP, always consider the totality of circumstances, including the explicit actions of parents that can impact your obligations to the students and parents involved.

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.

ALERT 07.02.24 | LEAs Only Need to Prepare IEPs for Parentally-Placed Private School Students When Parents Ask