CASE NO. 2022100859

Student v. NEWPORT-MESA UNIFIED SCHOOL DISTRICT

Counsel for Student: Tim Adams and Madeline Knutson

Counsel for District: Dan Harbottle

Representative for District: Juliana Sauvao

ALJ: Linda Dowd

Date of Decision: June 22, 2023

Significant areas of law: A parentally placed private school student’s entitlement to an IEP

ISSUES:

• Did District deny Student a FAPE by failing to convene an IEP team meeting while student was a parentally placed private school student?

FACTS OF THE CASE:

• Student was 10 years old and was first eligible for special education on November 4, 2016, as a student with autism and a speech or language impairment. Student attended District’s preschool program during the 2016-2017 school year. Parents disenrolled Student from District in May 2017. Student has not attended a District preschool during the 2016-2017 school year.
• Student filed a due process hearing by contending that District denied him a FAPE  by failing to make an offer of goals, services, and placement, and that the offer it did make at the IEP meetings did not meet Student’s needs. Student also argued that District did not draft goals in all areas of need and the ones it did draft were not appropriate and the services offered by District were inadequate to meet Student’s needs and it failed to offer a permanent one-to-one aide. Student further argued that he required a nonpublic school placement.

CONCLUSION:-

• District DID NOT deny Student a FAPE by failing to convene an IEP team meeting while student was parentally placed private school student.

Rationale:

• Student has been a parentally placed private school student since May 2017.
• For public school children with disabilities, school districts make a FAPE available by having an IEP in effect at the beginning of each school year. (34 C.F.R. § 300.323(a).) Private school children with disabilities, however, do not have an individual entitlement to a FAPE. (34 C.F.R. § 300.137; Capistrano, supra, 21 F.4th at p. 1138.)
• Section 300.137(a) states “no parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school.” (34 C.F.R. § 300.137(a).)
• Once a parent unilaterally enrolls the student in private school, the student meets the definition of a private school child with a disability and does not have an individual entitlement to special education and related services.
• The Ninth Circuit held that if a student has been enrolled in a private school by their parents, the school district does not need to develop an IEP, even when reimbursement has been requested or if a complaint has been filed. When parents withdraw a student from public school and place a student in private school, all a parent has to do is ask for the school district to develop an IEP, and then the school district must develop one. There is no freestanding requirement that IEPs be conducted for privately placed student.
• Parents did not have any further contact with District after withdrawing Student for homeschooling until their attorney sent a letter to the District. Parent’s email to District at the time of withdrawing Student, read in conjunction with the withdrawal form, notified District that Parents would return Student to District when they were ready, at an unspecified future date. – Parents did not request that District develop an IEP for Student while he was privately placed. Therefore, District was not obligated to develop an IEP or offer Student a FAPE. (Capistrano, supra, 21 F.4th at pp. 1138-40.)

REMEDIES/ORDER:

• N/A