On December 30, 2021, the Ninth Circuit Court of Appeals held that a school district does not need to prepare an individualized education program (“IEP”) for a student whose parents withdraw the student from public school and place in a private school, even if parents request reimbursement for the private school placement from the school district.

Background

B.W. is a student eligible for special education under the category of autism. A few months into her first grade year, B.W.’s parents filed a due process complaint against the school district, challenging B.W.’s kindergarten and first grade IEPs. That winter, Parents withdrew B.W. from the school district and placed her in a private school. Parents told the school district that they planned to have B.W. attend the private school for both first and second grade and requested reimbursement of tuition for both school years. The school district denied the request for reimbursement. Parents later withdrew their due process complaint, but refiled at the start of B.W.’s second grade year. The school district then filed its own due process complaint to obtain access to B.W. for updated evaluations. Parents consented to the evaluations and the District withdrew its complaint, but Parents did not make Student available for evaluations.

The parties participated in a due process hearing regarding Parents’ second due process complaint, which alleged that the school district failed to 1) develop appropriate goals for first grade, 2) make an appropriate offer of placement and services for first grade, 3) file for due process to defend the first grade IEP, and 4) have a current IEP in place at the beginning of second grade. The administrative law judge (“ALJ”) decided in favor of Parents on each of these issues. In an appeal to the district court, the judge found the school district failed to offer B.W. appropriate placement and services, but decided in favor of the school district on the remaining issues. Parents appealed those issues to the Ninth Circuit.

Decision

On appeal, the Ninth Circuit found in favor of the school district on each issue. First, the Ninth Circuit determined that the school district developed goals that targeted B.W.’s unique needs. The Ninth Circuit noted that an IEP does not have to include every single goal that might benefit the student nor must goals incorporate quantitative data or a parent’s preferred form of data collection. In addition, considering parental input in the development of goals does not require automatic deference to parents or their experts’ concerns.

With respect to the school district’s obligation to file a request for due process, the Ninth Circuit disagreed that this obligation applies to any time the school district and parents reach an impasse. Instead, a school district’s obligation to file to defend its offer of a free appropriate public education (“FAPE”) is triggered only when the school district believes it cannot provide a FAPE because parents won’t provide consent to a component of the IEP. This distinction applies even where the “parent is the one seeking a different program than what the school district considers sufficient to provide a FAPE.”

Finally, the Ninth Circuit held that a school district is not required to develop an IEP for a student whose parents enroll the student in a private school, even if parents request reimbursement from the school district, unless and until the parents request the school district develop an IEP for the child. “There is no freestanding requirement that IEPs be conducted when there is a claim for reimbursement” of private school tuition for a unilaterally placed private school student.

Impact

If parents withdraw a student from the school district and place that student in private school, the school district is not required to continue to develop future IEPs for that student, even if reimbursement is requested from the district, unless and until the parent affirmatively requests the school district develop an IEP for the student. Bear in mind, however, that if parents seek reimbursement for a unilateral placement, school districts must demonstrate that they made FAPE available to the child. So, we recommend school districts continue to ensure the last IEP developed is complete with an appropriate offer of FAPE for the student and, if not, complete that process as soon as possible. This consideration may include offering assessments if circumstances warrant.

School districts may also anticipate increased requests for IEP team meetings for unilaterally placed private school students and consider developing procedures to process these requests and ensure the development of timely, appropriate IEPs for these students. If a parent does not request that the school district develop an IEP for the student, the school district does not have to seek out these students to develop future IEPs and convene IEP team meetings.

When developing goals, school districts should continue to consider, and as appropriate, incorporate, input from parents and private providers. School districts do not have to adopt any outside recommendations though unless the IEP Team agrees they are appropriate for the student. Similarly, an IEP goal does not necessarily have to include quantitative data measurement to be measurable and appropriate as long as the goal can be clearly measured, although objective measurement criteria is best practice. Correspondingly, we recommend school districts ensure the person responsible for reporting progress on the goal be able to articulate how it is measured through objective means.

Finally, when determining if a school district has an obligation to file a request for due process to defend an offer of FAPE, the school district should consider whether parent’s lack of consent is preventing the school district from providing the student with a FAPE. For example, if there is a special education service that has been offered and that the student requires to receive a FAPE, but for which the District has not been able to obtain the parent’s consent. The school district is not required to file for due process based solely on an impasse between the school team and family or for another reason unrelated to the school district’s ability to implement the IEP and provide a FAPE to the student.