L.B. v. Kyrene Elementary Dist. No. 28, No. CV-17-03316-PHX-SMB, 2019 WL 4187515, 75 IDELR 44 (D. Ariz. Sept. 4, 2019), appeal filed, No. 19-16971 (9th Cir. Oct. 4, 2019), takes up issues about due process complaint pleading, as well as the duty to evaluate students with disabilities and to offer them free, appropriate public education when parents have unilaterally removed them from the district and enrolled them in a private school. These issues are ones impartial hearing officers confront routinely, so the case may be of significant interest to IHOs.

The student in the case, J.B., had behavior disabilities; according to the complaint he had reactive attachment disorder, fetal alcohol syndrome, Klinefelter’s syndrome, intellectual disability, attention deficit hyperactivity disorder, dyslexia, and dysgraphia. J.B.’s mother gave a 10-day notice of intent to enroll him in a private placement on Sept. 19, 2013. The district offered to pay for the placement for the second quarter of the school year as part of a plan to return J.B. to the district by Jan. 6, 2014. The mother withdrew the student from the district and enrolled him in the private placement on Oct. 15, 2013. Discussions about transition back to public school continued; at the mother’s request, the district provided J.B. speech and occupational therapy services at a public school as of Nov. 4, 2013. District personnel visited J.B. at the private placement, which the mother said inflicted trauma on the student, who had been restrained 16 times in 22 days while enrolled in the district.

The district held a multidisciplinary evaluation team meeting with the mother on December 19, 2013 and issued a notice stating that the student was no longer enrolled in the district and that the mother rejected a plan to have him make a transition back to a district school. The notice further stated that the mother rejected the district’s efforts to evaluate the student at the private placement because of her concerns about traumatizing the student; the district rejected other means of evaluation suggested by the mother. The notice concluded by saying, “As [J.B.] is not currently a student enrolled in Kyrene School District, no further [Multidisciplinary Evaluation Team/Individual Education Plan] meetings will take place. Should [L.B.] choose to enroll [J.B.] as a student in Kyrene, we are ready[,] willing[,] and able to implement his [Individual Education Plan] as written and proceed with the evaluation process.” Id. at *3.

The mother kept the student at a private placement and ultimately filed for a due process hearing, which took place over nine days. The ALJ issued a 130-page decision, ruling in favor of the district. The mother appealed to district court, which affirmed the decision on all issues except the mother’s objection to the ALJ’s ruling that the parties did not properly raise whether the district had the obligation to evaluate J.B. and offer him FAPE after Dec. 13, 2013. That issue was remanded to the ALJ.

The mother contended that the ALJ erred in finding that the district had no IDEA obligations to J.B. after the Oct. 14, 2013 withdrawal from the district and that the mother had not pled that the district had to reevaluate the student and offer him FAPE after Dec. 19, 2013. The court noted that the speech and occupational services were provided in November, the district and the mother met in December to review a speech-language evaluation, and there were many emails back and forth. According to the ALJ, the parent did not consent to any evaluations after Dec. 19, though the mother said she would have allowed evaluations at a slower pace than proposed.

The mother said that she raised the issue of the district’s IDEA obligations after Dec. 19 in her amended due process complaint. The ALJ restated one of the complaint’s claims, without any objection, as a contention that the district violated the IDEA by refusing to pay for the private placement and “subsequently violated the IDEA by refusing to hold IEP or multidisciplinary evaluation team (MET) meetings or provide any IEP services to Student.” Id. at *3 (emphasis in original). The ALJ’s restatement of another claim included that “Respondent denied FAPE to Student by unilaterally withdrawing Student from the District on October 14, 2013 and thereafter, refusing to provide any IDEA special education services unless and until Student re-enrolled in District.” Id. at *4. Nevertheless, the ALJ found that the issue of failure to develop an IEP and offer services was not raised in the complaint and that there was no obligation to provide services after the Oct. 14, 2013 withdrawal from the district. The court ruled that the issue was adequately pled.

The court further ruled that the district had IDEA obligations to the student even after withdrawal from the district. Summarizing U.S. Department of Education guidance and relevant court decisions, the court declared:

To state the applicable law . . . succinctly, the District is required to provide FAPE to students that reside in its district, but it is not required to provide FAPE “if the parent makes clear his or her intention to keep the child enrolled” in an out-of-district private school. It also does not have to provide special education if Parent refuses to allow testing. The District is, however, required to offer FAPE to a student upon request of Parent.

Id. at *6. The court said the record lacked enough information to determine whether the mother made clear she had no intention to reenroll J.B. in the district, whether the district’s attempts to evaluate the student or the mother’s rejection of the offer of services in December, 2013 relieved it of its obligations under the IDEA, and whether the mother made any attempts after Dec. 19, 2013 to request FAPE for J.B.

The mother also contended that the district’s decision in October 2013 not to change the student’s IEP denied FAPE. Here the court deferred to the ALJ, who discussed the data about the child’s behavior in what the court described as a thorough decision. Errors in the data were minor, and narratives reinforced the district’s position. The mother also said the district denied FAPE by failing to conduct needed evaluations. The court agreed with the ALJ that the amended complaint did not adequately plead the refusal of the mother’s request for a neuropsychological evaluation, even if it raised the general issue of inadequate academic and cognitive testing. The court did not disturb the finding that a functional behavioral assessment was not needed despite the frequent use of restraint on J.B., saying that there was extensive information about J.B.’s behavior and there was a behavior support plan. The court also upheld the denial of a new speech-language assessment and an occupational therapy assessment, given the information the district already had. On an issue regarding failure to turn over a video of a bus incident, the court agreed with the ALJ that the recording in possession of the bus company was not an education record. The requests for tuition reimbursement and attorneys’ fees were denied without prejudice in light of the remand.

This case stresses just how critical the continuing duty is to evaluate the student and offer FAPE after the student has been unilaterally placed in a private school unless the parent clearly waives the obligations under the IDEA. But, it also points out the importance of hearing officers adequately preparing for the hearing by, first, making sure the issues are clearly identified as early as the prehearing conference.  This will require the hearing officer to carefully review the complaint prior to the prehearing conference to identify the alleged claims and to come up with a list of questions to ask of the complainant where there is ambiguity.  Second, once the hearing officer specifically identifies the issues to be determined during the prehearing conference, s/he should affirmatively ask the parties whether the issues as stated are agreed upon. Taking these steps will likely avoid the reversal and remand that occurred in the case.