L.B. v. Kyrene Elementary School District, No. CV-17-03316-PHX-SMB, 2022 WL 14389900, 122 LRP 42574 (D. Ariz. Oct. 25, 2022), appeal filed, No. 22-16816 (9th Cir. Nov. 25, 2022), presents issues of consent to evaluation, public school enrollment, and ongoing school district obligations for a child enrolled by parents in a private school. In the remand of an appeal of a negative due process hearing decision, the parties were asked to address whether the parent made clear that she did not want to re-enroll the student in the district, whether the parent’s rejection of the district’s attempts to evaluate the student relieved the district of obligations under the IDEA, whether the parent’s rejection of a final offer of services relieved the district of its obligations, and whether the parent made any attempts after December 19, 2013, to request special education from the district. L.B. v. Kyrene Elementary Dist. No. 28, No. CV-17-03316-PHX-SMB, 2019 WL 4187515, at *6 (D. Ariz. Sept. 4, 2019). The ALJ ruled for the school district on these issues in the remand decision.
Taking the issues in different order, the court first ruled that the parent effectively refused the efforts of the district to evaluate the student, reasoning that the parent’s representative consistently injected conditions for the district to observe or test the student. According to the ALJ decision, which the court said was well supported, the representative insisted on observation of the student by video only, the parent made a non-committal response to a request for consent to a language assessment, then after making a counter-offer to an offer of services from the district that had included partial tuition reimbursement, the parent refused to generally consent to additional tests and said only that additional evaluations would be considered. The court further concluded that the parent refused consent to in-person observations without the approval and participation of the student’s therapist.
The court next affirmed the ALJ finding that the parent did not intend to re-enroll the student in a district school. The court said that the parent withdrew the student from the school district in October 2013 and placed him in a private school. The district offered to pay for 22 days of the placement, and then to have the student make the transition back to public school. The parent rejected that plan and prohibited the district from communicating with or visiting the private school. There was a meeting on December 19, 2013, at which the parent made a counteroffer to the district’s plan, but there was no further effort by the parent to enroll or reenroll the student after that, according to the court. The court concluded that lack of communication and rejection of the evaluations showed that the parent had no intention to enroll or reenroll the student in the district.
Finally, the court rejected an effort by the parent to have it reexamine an earlier ruling in which it held that the parent rejected the school district’s final offer of services on December 19, 2013, ending the district’s ongoing obligation to offer free, appropriate public education to the student. The court stated:
When a child has an IEP, school districts are required to review that IEP annually. See 20 U.S.C. § 1414(d)(4)(A)(i). However, if a parent refuses to consent to an initial offering of special education and related services, then the district “[w]ill not be considered to be in violation of the requirement to make FAPE available.” 34 C.F.R. § 300.300(b)(3)(ii). And when parents fail to maintain contact, school districts are under no obligation to create a new IEP on an ongoing basis. See Hack v. Deer Valley Unified Sch. Dist., No. CV-15-02255-PHX-JJT, 2017 WL 2991970, at *5 (D. Ariz. July 14, 2017).
L.B. v. Kyrene Elementary Sch. Dist., 2022 WL 14389900, at *3.
The decision shows a strong inclination on the part of the court to defer to the decision of the ALJ with regard to whether the parent obstructed evaluation of the student or merely attempted to negotiate a mutually agreeable set of conditions for the evaluation. The court applied further deference to the decision of the ALJ as to the subjective intention of the parent on the topic of re-enrollment of the student after the student’s withdrawal from public school. Finally, both ALJ and court placed an obligation on the parent to seek out continuing services after rejection of an offer of services that the district said would provide FAPE to the student, relying on precedent from an Arizona federal district court that conforms the view of several other courts as to the correct interpretation of 34 C.F.R. § 300.300(b)(3)(ii).