Opinion
CV-17-03316-PHX-SMB
10-25-2022
L.B., Plaintiff, v. Kyrene Elementary School District, Defendant.
ORDER
HONORABLE SUSAN M. BRNOVICH, DISTRICT JUDGE
This is L.B.'s (“Parent”) second appeal for judicial review of a final administrative decision of the Arizona Office of Administrative Hearings (“OAH”) under the Individuals with Disabilities Education Act (“IDEA”). Parent has at all times asserted Defendant Kyrene Elementary School District (“District”) failed to provide her child, J.B., a Free Appropriate Public Education (“FAPE”) as required by the IDEA. Parent filed an Opening Brief (Doc. 75), and the District filed a Response (Doc. 80). Parent also filed a Reply. (Doc. 83.) Having considered the parties' briefing and arguments, as well as the relevant law, the Court will affirm the ALJ's decision for the following reasons.
The Court will address only the facts relevant to this appeal.
I. BACKGROUND
In its September 2019 Order, the Court affirmed all but one issue in the Administrative Law Judge's (“ALJ”) decision and remanded for reconsideration as to:
(1) whether Parent made clear she had no intention of re-enrolling J.B. at the District; (2) whether her rejection of District's attempted evaluations relieved the District of its IDEA obligations; (3) whether Parent's rejections of the final FAPE offer, in December 2013, relieved the District of further obligations under IDEA; and (4) whether she made any attempts after December 19, 2013, to request FAPE.
L.B. v. Kyrene Elementary Dist. No. 28, No. CV-17-03316-PHX-SMB, 2019 WL 4187515, at *6 (D. Ariz. Sept. 4, 2019). ALJ Kay A. Abramsohn held a remand hearing at the OAH on December 8, 2020. (Doc. 57-1 at 1.) The ALJ then issued a decision on March 26, 2021, in the District's favor (id. at 15), and this appeal followed.
II. LEGAL STANDARDS
In judicial proceedings under IDEA, courts employ a modified de novo review. M.L. v. Fed. Way Sch. Dist., 341 F.3d 1052, 1061 (9th Cir. 2003). The Court reviews de novo whether the District's proposed individualized education program (“IEP”) provided a FAPE under IDEA. Timothy O. v. Paso Robles Unified Sch. Dist., No. 14-55800, 2016 WL 2957215, at *9 (9th Cir. May 23, 2016). Mixed questions of law and fact are reviewed de novo unless the question is primarily factual. Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1310 (9th Cir. 1987). Courts must not “substitute their own notions of sound educational policy for those of the school authorities which they review.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982). However, it is a matter of district court discretion to decide the degree of deference to give to the ALJ's determination. Ojai UnifiedSch. Dist. v. Jackson, 4 F.3d 1467, 1473-74 (9th Cir. 1993). In reviewing the administrative decision, courts may accept the conclusions of the ALJ that are supported by the record and reject those that are not. Fed. Way, 341 F.3d at 106162.
III. ANALYSIS
The ALJ's sixteen-page Decision sets forth the witnesses, evidence, and issues presented at the remand hearing. The ALJ stated she considered the entire record, including all testimony and every exhibit. (Doc. 57-1 at 5 n.15.) Because the Court finds the ALJ was thorough and careful in articulating detailed findings of fact, those findings are entitled to significant weight. See J.G. v. Douglas Cnty. Sch. Dist., 552 F.3d 786, 793 (9th Cir. 2008). The Court will address the issues on appeal in the same order as Parent's Opening Brief. (See generally Doc. 75 at 2.)
A. Consent to Evaluations
School districts must obtain informed parental consent to conduct reevaluations. 34 C.F.R. § 300.300(c). If a parent refuses to consent to reevaluations, school districts need not persist. See id. at § 300.300(c)(1)(ii). The ALJ found that “[a]s to an evaluation process, . . . [Parent] refused to give consent, or set one-sided conditions, for testing, evaluations, or observations.” (Doc. 57-1 at 12.) The ALJ also found Parent's December 3, 2013 letter “specifically revoked consent for observations and communications with/at Brightmont.” (Id. at 14.) The Court notes that in its January 2020 Clarifying Order, it reiterated that “Parent rejected [District's] ‘attempted evaluations' that had already been offered prior to December 19, 2013.” L.B. v. Kyrene Elementary Dist. No. 28, No. CV-17-03316-PHX-SMB, 2020 WL 3026286, at *1 (D. Ariz. Jan. 31, 2020).
Parent argues the ALJ erred by finding Parent “effectively refused to provide consent to evaluations” on December 19, 2013, because the District “never actually sought consent.” (Doc. 57-1 at 27.) This Court explained the significance of this fact in its first Order. See L.B., 2019 WL 4187515, at *5-6 (the District “is not required to provide FAPE ‘if the parent makes clear his or her intention to keep the child enrolled' in an out-ofdistrict private school”) (quoting Assistance to States for the Educ. Of Child. with Disabilities & Preschool Grants for Child. with Disabilities, 71 Fed.Reg. 46540-01, 46593, 2006 WL 2332118 (Aug. 14, 2006)). Parent asserts she never refused consent, but rather the District failed to seek and obtain it. See 20 U.S.C. § 1414(a)(1)(D)(I) (“The agency . . . shall obtain informed consent from the parent.”). Without citation to legal authority, Parent further asserts the District needed to “lay out its plan . . . and provide a consent form.” (Doc. 75 at 29.)
The Court concludes the ALJ's findings are supported by the record. During the Review of Existing Data Meeting (“RED meeting”), the District's speech pathologist, Ann Gilan, stated she wanted to observe J.B. in an educational setting in part to collect a language sample and conduct a spoken language assessment. (IR 115 at 32-33.) Parent's representative, David Jefferson, reiterated that J.B. could be observed by audio and video. (Id. at 33.) Jefferson then stated Parent would discuss the language assessment with her private speech therapist and suggested that Parent may not consent to that assessment. (See id. at 33-34.) Following the RED meeting, the District offered reimbursement for J.B.'s January 2014 Brightmont Academy tuition subject to certain conditions, which included Parent providing written consent and J.B.'s availability for additional testing and permitting at least two observations at Brightmont. (IR 112 at 8.) Parent counteroffered. (See id. at 9.) Parent stated she could not “agree to allow testing” because none had been proposed. (Id.) Parent also stated she would provide five-days' notice as to whether she would consent to any proposed evaluations. (Id.) Parent refused observations before the next scheduled IEP meeting and conditioned any in-person observations on J.B.'s therapist's, Deborah Pettitt's, recommendation. (Id.) Pettitt was to determine when and how in-person observations occurred. (Id. at 9-10.)
The Court agrees with the ALJ's characterization that Parent effectively refused the District's efforts to reevaluate J.B. Parent expressly rejected the District's attempted evaluations preceded the RED meeting. Parent also implicitly rejected attempts during the RED meeting when District employees discussed the need for new observations and testing for J.B. During the meeting, Parent's representative, David Jefferson, consistently injected conditions on the District's ability to observe or test J.B. Parent's insistence on allowing observations by video only, coupled with Parent's non-committal response to the language assessment, represent implicit rejections of the District's attempted evaluations. Following the RED meeting, Parent responded to the District's FAPE offer, which included some reimbursement for Brightmont tuition, with an explicit counteroffer. Parent then refused to generally consent to the District's performing additional tests, and instead informed the District that she would “consider” any proposed evaluations. Parent also refused consent for in-person observations without J.B.'s therapist's approval and participation. At no point did Parent consent to the District's attempted evaluations, and the Court finds unpersuasive Parent's broad assertion that she merely sought information before giving informed consent. The Court therefore affirms the ALJ's findings.
B. Intent to Re-Enroll
The ALJ found Parent had no intention of re-enrolling J.B. at a District school. (Doc. 57-1 at 12.) Parent asserts her intent was irrelevant because L.B. was seeking a new IEP, and because the existing IEP was soon to be renewed. (Doc. 75 at 32.) Parent also asserts the ALJ errantly decided this issue based on Parent's decision not to re-enroll J.B. in the district. (Id. at 33.) The Court rejects Parent's assertions and holds that the ALJ's findings are supported by the record.
Parent withdrew J.B. from the District in October 2013 and placed him at Brightmont. (IR 108 at 2.) The District offered to fund J.B.'s Brightmont tuition for twenty-two school days, ending on December 20, 2013, in an effort to transition him back to the District. (Id.) Parent “indicated she [was] not willing to move forward with any portions of the plan, particularly prohibiting the communication with or visitation to [Brightmont].” (Id.) After rejecting the transition plan, the parties held the December 19, 2013 RED meeting that prompted Parent's counteroffer. December 19, 2013, thus represents Parent's final attempt to cooperate with the District. On December 20, 2013, District employee Dr. Shari Dukes emailed all relevant documents to Parent and invited her to reach out with any questions. (IR 112 at 3.) Parent testified that after receiving this email, she never contacted Dr. Dukes or another District employee again. (IR 133 at 18, 151.) Parent also acknowledges she never enrolled or tried to re-enroll J.B. in the District thereafter. The Court agrees with the ALJ that Parent's rejection of the District's attempted evaluations, and her subsequent lack of contact with the District, are indicative that Parent showed no intent to re-enroll J.B.
C. The District's Ongoing Obligations
Parent argues the District's offer to reimburse one month of J.B.'s Brightmont tuition was not a FAPE offer and thus did not affect the District's obligations under IDEA. (Doc. 57-1 at 38.) Parent thus requests this Court to revisit its previous finding in the January 2020 Clarifying Order that Parent rejected the District's final FAPE offer on December 19, 2013. See L.B., 2020 WL 3026286, at *1. The Court declines to do so. Parent also argues the District remained obligated under IDEA to make a new offer of FAPE after December 19, 2013, “because the IEP was due to be reviewed at least annually by January 30, 2014 at the latest.” (Doc. 75 at 40-41.) The ALJ found that “in the absence of a further request after December 19, 2013 to offer a FAPE . . . [the District] had no further IDEA obligation to Student.” (Doc. 57-1 at 15.)
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).
The District made a final FAPE offer on December 19, 2013, which Parent rejected. Parent's rejection of that FAPE offer, along with her non-consent to the District's attempts to reevaluate J.B., relieved the District of any IDEA obligations. Parent's later lack of contact with the District also relieved the District of any duty to revisit J.B.'s IEP on an annual basis or otherwise because Parent never sought another FAPE offer. The Court thus affirms the ALJ's decision that the District did not violate the IDEA.
IV. CONCLUSION
Accordingly, IT IS ORDERED affirming the ALJ's March 26, 2021 decision.
IT IS FURTHER ORDERED directing the Clerk of Court to enter final judgment accordingly and close this case.