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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. J.P. and L.P., on behalf of their minor son, P.P. v. Anchorage School District (9/16/2011) sp-6601
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
J.P. and L.P., on behalf of their )
minor son, P.P., ) Supreme Court Nos. S-13624/13633
)
Appellants and Cross-Appellees, ) Superior Court No. 3AN-08-10452 CI
)
v. ) O P I N I O N
)
ANCHORAGE SCHOOL DISTRICT, ) No. 6601 - September 16, 2011
)
Appellee and Cross-Appellant. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Peter G. Ashman, Judge.
Appearances: Sonja D. Kerr, Public Interest Law Center of
Philadelphia, Pennsylvania, for Appellants and Cross-
Appellees. Bradley D. Owens and Cheryl Mandala, Jermain,
Dunnagan & Owens, P.C., Anchorage, for Appellee and
Cross-Appellant.
Before: Carpeneti, Chief Justice, Winfree, Christen, and
Stowers, Justices. [Fabe, Justice, not participating.]
CHRISTEN, Justice.
I. INTRODUCTION
Parents requested that the Anchorage School District evaluate their child
for eligibility for special education services. While awaiting the results of the eligibility
assessment, the parents arranged for private tutoring. The school district did not assess
the child's eligibility within the statutorily-required time, and the parents requested a due
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process hearing. They also arranged for their child to be privately evaluated to determine
whether he was eligible for special education services. The school district subsequently
completed its evaluation and determined the child to be ineligible for services. At the
due process hearing, the parents alleged that the school district committed procedural
violations under the federal Individuals with Disabilities Education Act (IDEA),
including impermissibly delaying the evaluation. They sought reimbursement for the
cost of their child's private evaluation and tutoring.
An independent hearing officer presided over the due process hearing and
ultimately agreed with the district that the child was ineligible for services. But the
hearing officer ordered the school district to pay the cost of the private eligibility
assessment and to partially pay the cost of the tutoring. The superior court upheld the
award of the private eligibility assessment, but reversed the award of the private tutoring
cost.
On appeal to this court, the school district argues that the parents should not
be reimbursed for the evaluation or the tutoring; the parents argue they are entitled to full
reimbursement for both expenses. The central question we address is: where a child is
ultimately determined to be ineligible for special education services, does the IDEA
provide relief for procedural violations that occur during the process of evaluating the
child's eligibility for services? For reasons explained herein, we affirm the superior
court's decision, upholding the independent hearing officer's award of the private
assessment cost, but reversing the hearing officer's award of the private tutoring
expenses.
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II. FACTS AND PROCEEDINGS
During the 2006-2007 school year, P.P. was in first grade at Turnagain
Elementary School in Anchorage.1 P.P.'s parents, J.P. and L.P., became concerned about
P.P.'s reading skills in May of 2007. They orally requested an evaluation for special
education services but were told that the Anchorage School District could not conduct
an evaluation until the fall. J.P. and L.P. were also unable to obtain an evaluation or
services from the district's Department of Indian Education, so they hired a private tutor
to work with P.P. during the summer of 2007.
Before P.P. started second grade, J.P. and L.P. wrote a letter to the principal
of Turnagain Elementary requesting "a full comprehensive evaluation of our son, [P.P.],
for any disability including but not limited to dyslexia and for potential giftedness." The
letter was dated August 17, 2007. J.P. and L.P. met with the principal and P.P.'s
second-grade teacher on August 21. The parties disagree about what happened at the
meeting. J.P. and L.P. contend that they described the tutoring P.P. was receiving,
passed on a copy of the tutor's report concerning testing of P.P. that she had done, and
asked for help with P.P.'s possible dyslexia. Despite the unambiguous language in the
parents' August 17 letter, the school district argues that the principal and second grade
teacher were not sure from the parents' letter what the parents were seeking. The school
district also contends that the principal and teacher entered the meeting hoping for
clarification, did not receive a copy of the tutor's report, and did not leave the meeting
with the impression that the school district had been asked to conduct a special education
evaluation.2 It is undisputed that the district did not give J.P. or L.P. written Notice of
1 Initials have been used for all family members to protect their identities.
2 The hearing officer ultimately held that the school district failed to meet its
burden of resolving any questions about whether the parents were seeking special
education services for their child.
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Procedural Safeguards - information about their special education rights - as
mandated under the IDEA.3
As of October 22, 2007, J.P. and L.P. had had no further contact with the
school district. The parties agree that this was approximately 45 school days after the
parents sent their written request that the district evaluate P.P. for special education
eligibility. J.P. and L.P. reiterated their request for the assessment on October 25, and
they requested a due process hearing pursuant to the IDEA.4 Their hearing request
alleged that J.P. and L.P. "received no response from [the principal] or any other member
of the school district staff concerning the full comprehensive evaluation of [P.P.]" and
that "[Anchorage School District] has refused to take any action to evaluate [P.P.] as
required by law and has denied him a free appropriate public education as a result."5 J.P.
and L.P. asked that the district be ordered to: (1) pay for an independent evaluation of
P.P.; (2) qualify P.P. for special education; (3) reimburse them for the cost of P.P.'s
private tutoring and continue to pay for ongoing private tutoring; (4) pay attorney's fees
and costs; and (5) create a multi-year individualized education program (IEP) for P.P.
J.P. and L.P. simultaneously initiated an independent assessment of P.P. to determine
whether he was eligible for special education services; on November 1, 2007, clinical
neuropsychologist Dr. Kristi Fuller evaluated P.P. at his parents' request.
3 20 U.S.C. § 1415(d) (2006).
4 20 U.S.C. § 1415(f)(1)(A) (2006).
5 The term "free appropriate public education" comes from the IDEA, 20
U.S.C.A. § 1401(9) (West 2010). See infra note 11.
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An independent hearing officer was appointed to conduct the due process
hearing requested by J.P. and L.P.6 The parties attended a pre-hearing conference with
the hearing officer on November 20, 2007 where they agreed upon the issues for the
hearing.7 The hearing officer later reported that she "left with the belief that the
[Anchorage School District] would expeditiously provide any forms necessary for an
evaluation to parents' attorney[,] then the evaluation process would begin."
Dr. Fuller's report was completed on November 1, 2007 (with a later
addendum dated December 19, 2007), and the school district requested a copy of it. The
parties disagreed about whether J.P. and L.P. should be required to provide a copy of
Fuller's written report before the school district undertook its own evaluation, but J.P.
and L.P. ultimately sent a copy of the report to the district after they were ordered to do
so on January 7, 2008. The district then began its own evaluation, which was completed
on January 29, 2008 when the Turnagain Elementary's special education team met. The
team decided that P.P. "was doing well in a general education classroom" and did not
require special education services. L.P. and J.P. did not attend the January 29 meeting
on the advice of their counsel.
6 The required criteria for an independent hearing officer are outlined in
20 U.S.C. § 1415(f)(3)(A) (2006) ("A hearing officer . . . shall, at a minimum . . . not
be . . . an employee of the . . . agency involved in the education . . . of the child; or . . . a
person having a personal or professional interest that conflicts with the person's
objectivity[,]" and shall have the knowledge and ability to understand the provisions of
the IDEA, to conduct procedurally appropriate hearings, and to render and write
decisions.).
7 These were: (1) whether the parents asked the school district to evaluate
P.P. for special education; (2) whether the district failed to evaluate P.P. in a timely
manner; (3) whether the parents were entitled to an independent evaluation of P.P. and
whether the district must pay for it; (4) whether the parents were entitled to
reimbursement for tutoring; (5) whether the parents were entitled to attorney's fees; and
(6) whether the hearing officer had the authority to order a multi-year IEP.
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The due process hearing began on February 5, 2008, but it was not
completed until July 18, 2008 - after P.P. completed second grade. The hearing
officer's decision was issued in August 2008. The hearing officer found that: (1) the
burden of resolving whether the parents were seeking special education services for P.P.
belonged to the school district and the district failed to meet this burden; (2) the district's
failure to pass on results of its January 2008 testing in a timely fashion was not
deliberate; and (3) the district's January 2008 assessment of P.P. was a more complete
picture of P.P.'s performance than the Fuller evaluation and was therefore "entitled to
greater weight."
The hearing officer reached the following conclusions of law: (1) though
P.P. is a student with "specific learning disabilities," he was not eligible for special
education services under the IDEA8 because he was performing adequately in a general
education classroom at the time of the assessment; (2) J.P. and L.P. did not prove that
private tutoring was necessary for P.P. to access the curriculum or that private tutoring
was what allowed P.P. to perform adequately in school; (3) the school district unduly
delayed the evaluation of P.P.'s eligibility for services that it performed pursuant to his
parents' request; and (4) the school principal failed to provide J.P. and L.P. with notice
of procedural safeguards, as required under the IDEA. The hearing officer ordered the
school district to reimburse J.P. and L.P. for the full costs of private tutoring from the
date of their initial meeting with P.P.'s principal and second grade teacher
(August 21, 2007) through the date of the pre-hearing conference (November 20, 2007).
The hearing officer also ordered reimbursement of one-half the costs of private tutoring
from the day after the pre-hearing conference to the date the district formally found P.P.
8 20 U.S.C.A. § 1401(3)(A) (West 2010).
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ineligible for special education (January 29, 2008). Finally, the hearing officer ordered
the district to reimburse J.P. and L.P. for the cost of the Fuller evaluation.9
J.P. and L.P. appealed the determination that P.P. was ineligible for
services, and the school district appealed the award of tutoring and assessment costs.
Because J.P. and L.P. later dismissed their appeal regarding eligibility, the superior court
did not address the hearing officer's eligibility determination. After considering the
parties' briefing and oral argument, the superior court ruled: (1) because P.P. was not
eligible for special education services under the IDEA, and because J.P. and L.P.
enrolled P.P. in private tutoring without the school district's consent, the IDEA did not
require the district to reimburse P.P.'s parents for the cost of private tutoring; but
(2) because school districts have an affirmative, independent duty under the IDEA to
evaluate children for special education services within 45 school days after notification
that a child may have a learning disability, and because the school district did not meet
this obligation, the district was required to reimburse J.P. and L.P. for the cost of the
private eligibility assessment.
Both sides appeal the superior court's decision. J.P. and L.P. seek reversal
of the superior court's denial of private tutoring costs; the school district seeks reversal
of the court's decision regarding evaluation expenses.
9 The hearing officer awarded full reimbursement for tutoring between
August 21, 2007 and November 20, 2007 on the grounds that the school district was
entirely responsible for the delay in evaluation during that period. She awarded only
partial reimbursement for tutoring from November 21 to January 29 because she found
that both parties shared responsibility for delay during those months; she decided that
although the district had a duty to evaluate, there was "no excuse for the parents to not
turn over" the private evaluation results requested by the district to assist in their
evaluation.
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III. STANDARD OF REVIEW
This appeal turns on the interpretation of the Individuals with Disabilities
Education Act - a question of law. This court reviews questions of law de novo, using
its independent judgment to adopt "the rule of law most persuasive in light of precedent,
reason, and policy."10
IV. DISCUSSION
A. The Individuals With Disabilities Education Act
The IDEA was enacted by Congress "to ensure that all children with
disabilities have available to them a free appropriate public education"11 and "to ensure
that the rights of children with disabilities and parents of such children are protected."12
10 Jacob v. State, Dep't of Health & Social Servs., Office of Children's Servs.,
177 P.3d 1181, 1184 (Alaska 2008) (internal citations and quotation marks omitted).
11 The IDEA, 20 U.S.C.A. § 1401(9) (West 2010), defines a "free appropriate
public education" as:
special education and related services that--
(A) have been provided at public expense, under public
supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or
secondary school education in the State involved; and
(D) are provided in conformity with the individualized
education program required under section 1414(d) of this
title.
12 20 U.S.C.A. § 1400(d)(1) (West 2010).
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In relevant part, the IDEA defines "child with a disability"13 and imposes affirmative
duties upon states and school districts receiving federal aid for special education.14 The
"child find" duty requires that "[a]ll children with disabilities residing in the State . . . and
who are in need of special education and related services, are identified, located, and
evaluated . . . ."15 A parent, a state educational agency, or any other state agency or local
educational agency may initiate a request for an evaluation to determine whether a child
is a "child with a disability" under the IDEA.16 The appropriate agency must conduct "a
full and individual initial evaluation" within 45 school days after receiving parental
consent to the evaluation.17 To determine whether a child has a specific learning
disability, a school district is not required to consider "whether a child has a severe
discrepancy between achievement and intellectual ability."18 But school districts should
13 A "child with a disability" is one "with . . . speech or language impairments
. . . other health impairments, or specific learning disabilities; and . . . who, by reason
thereof, needs special education and related services." 20 U.S.C.A. § 1401(3)(A) (West
2010).
14 20 U.S.C. § 1412 (2006).
15 20 U.S.C. § 1412(a)(3) (2006).
16 20 U.S.C. § 1414 (a)(1)(B) (2006).
17 20 U.S.C. § 1414(a)(1)(C) (2006) requires that such an evaluation be
completed within 60 days of receiving parental consent but provides that a state may set
an alternative time frame. 4 Alaska Administrative Code (AAC) 52.115 (2010) requires
that, in Alaska, an evaluation must be completed within 45 school days after obtaining
parental consent.
18 20 U.S.C. § 1414(b)(6)(A) (2006).
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review all existing evaluations of the child, including any private evaluations obtained
by the parents.19
The IDEA also requires agencies to establish procedures to ensure that
children with disabilities and their parents are "guaranteed procedural safeguards with
respect to the provision of a free appropriate public education."20 In 4 AAC 52.480
(2007), the State of Alaska adopted by reference the procedures set out in 34 C.F.R. §
300.504 (2007), the federal regulations adopted pursuant to the IDEA. In relevant part,
34 C.F.R. § 300.504 requires that a copy of the procedural safeguards available to the
parents of a child with a disability be given to the parents once per school year and also
"upon initial referral or parent request for evaluation."21 4 AAC 52.190 (2007) also
adopted by reference 34 C.F.R. § 300.503 (2006), which requires that written notice be
given to parents of a child with a disability "a reasonable time" before a school district
proposes to initiate or refuses to initiate identification or evaluation proceedings.22 In
addition, 20 U.S.C. § 1415(f), AS 14.30.193, and 4 AAC 52.550 (2007) provide that a
parent of a child with a disability has the right to request, via written notice, an impartial
due process hearing on any issue related to the identification, evaluation, or educational
placement of the child.
B. The Superior Court Applied The Correct Standard Of Review To The
Independent Hearing Officer's Decision.
J.P. and L.P. argued that the superior court should not review the hearing
officer's decision de novo, but should instead rely on "special standards of review
19 20 U.S.C. § 1414(c)(1) (2006).
20 20 U.S.C. § 1415(a) (2006).
21 34 C.F.R. § 300.504(a)(1) (2007).
22 34 C.F.R. § 300.503(a) (2006).
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required by the IDEA." 20 U.S.C. § 1415(i)(2)(A) and (C) of the IDEA state that "any
party aggrieved by the findings and decision made [by a hearing officer] . . . shall have
the right to bring a civil action" and that in such a civil action the reviewing court "shall
receive the records of the administrative proceedings; . . . hear additional evidence at the
request of a party; and . . . basing its decision on the preponderance of the evidence, . . .
grant such relief as the court determines is appropriate."23 The United States Supreme
Court has held that the requirement that the reviewing court receive records of the
administrative proceedings "carries with it the implied requirement that due weight shall
be given to these proceedings."24
On appeal to this court, J.P. and L.P. again assert that the superior court was
obligated to apply the standard of review set out in the IDEA. Other courts have
confirmed that trial courts should review an administrative decision issued under the
IDEA with the deference implied by the statute's language.25 But, with regard to
conclusions of law, these and other decisions equate the IDEA's "due weight" standard
23 20 U.S.C. § 1415(i)(2) (2006).
24 Board of Educ. of Hendrick Hudson Central Sch. Dist., Westchester Cnty.
v. Rowley, 458 U.S. 176, 206 (1982).
25 See, e.g., Seattle Sch. Dist. No. 1 v. B.S., 82 F.3d 1493, 1499 (9th Cir.
1996);Anchorage Sch. Dist. v. M.P., 3AN-05-07009 CI (Alaska Super. April 13, 2006).
Some courts have referred to the standard of review under the IDEA as "modified de
novo." See, e.g., N.L. ex rel. Mrs. C. v. Knox County Schs., 315 F.3d 688, 692 (6th Cir.
2003).
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with pure de novo review.26 The question in this appeal is clearly one of law: were
P.P.'s parents entitled to reimbursement of evaluation and tutoring costs under the IDEA
given that P.P. was ultimately deemed ineligible for special education services? The
superior court correctly recognized that "neither party disputes the hearing officer's
factual findings" and therefore had no occasion to apply the IDEA's "modified de novo"
standard for reviewing questions of fact. The superior court correctly applied the de
novo standard of review to the hearing officer's conclusions of law. Contrary to the
argument raised by J.P. and L.P., application of the de novo standard of review does not
impermissibly "limit the authority" of the hearing officer; the superior court was free to
independently analyze the legal issues presented by this appeal without deferring to the
hearing officer's decision.
C. The Superior Court Correctly Denied Reimbursement Of Private
Tutoring Costs.
J.P. and L.P. also argue that the superior court erroneously reversed the
hearing officer's award of partial tutoring costs. In support of this part of their appeal,
they argue the superior court: (1) failed to recognize that the award of partial tutoring
costs was an appropriate remedy within the hearing officer's authority; (2) failed to
recognize that P.P. was protected by the IDEA during the evaluation process even though
26 M.L. v. Federal Way Sch. Dist., 394 F.3d 634, 644 (9th Cir. 2005) ("The
appropriateness of a special education placement under the IDEA is reviewed de novo.");
Seattle Sch. Dist. No. 1, 82 F.3d at 1499 (interpreting the language of the IDEA as
"calling for de novo review"); Carlisle Area Sch. v. Scott P., 62 F.3d 520, 528 n.3 (3d
Cir. 1995) (noting that, under the IDEA, "[o]bviously, conclusions of law receive
plenary review"); Anchorage Sch. Dist. v. M.P., 3AN-05-07009 CI (Alaska Super. April
13, 2006) (finding that the trial court "must review the administrative findings of fact for
clear error and the conclusions of law de novo" under the IDEA); P.N. v. Greco, 282 F.
Supp. 2d 221, 235 (D.N.J. 2003) ("In reviewing administrative decisions in IDEA cases,
a district court applies a de novo standard to questions of law . . . . Administrative
findings of fact are subject to a modified de novo standard of review. . . .).
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he was eventually found ineligible to receive special education services; and (3) failed
to recognize that J.P. and L.P. had independent parental rights, which were violated when
the school district did not timely respond to their request for evaluation and failed to
provide them with procedural safeguards or prior written notice that the district did not
intend to assess P.P. in a timely manner. These arguments are discussed separately in the
parents' briefs, but they amount to a single legal argument: that the IDEA provided
procedural protection to P.P. and that the district's failure to abide by the IDEA's
procedural protections during the evaluation process entitles P.P.'s parents, who acted
on his behalf, to reimbursement for tutoring costs.27
The first, narrow question on appeal is whether the district's procedural
violations entitle P.P. to relief in the form of reimbursement for tutoring expenses, even
though P.P. was not found to be a "child with a disability" eligible for special services.
We conclude that they do not.
1. Because P.P. is not a "child with a disability" under the IDEA,
P.P.'s parents were not entitled to private tutoring for P.P. at
school district expense.
The IDEA defines "child with a disability" as a child:
(i) with intellectual disabilities, hearing impairments
(including deafness), speech or language impairments, visual
27 P.P. is correct that it is within the discretion and power of hearing officers
to award remedial reimbursement under the IDEA, Forest Grove Sch. Dist. v. T.A.,
129 S.Ct. 2484, 2494 n.11 (2009). And he is correct that the IDEA grants parents
independent, enforceable rights regarding procedural safeguards and the substantive
educational decisions made under the act, Winkelman ex rel. Winkelman v. Parma City
Sch. Dist., 550 U.S. 516, 530-31 (2007). But neither of these points lead to the
conclusion that P.P. is necessarily entitled to reimbursement for tutoring costs as a result
of the school district's procedural violations. Nor do they override the logic of the
superior court in denying such relief; they simply rule out other reasons that
reimbursement could have been deemed unavailable.
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impairments (including blindness), serious emotional
disturbance (referred to in this chapter as "emotional
disturbance"), orthopedic impairments, autism, traumatic
brain injury, other health impairments, or specific learning
disabilities; and (ii) who, by reason thereof, needs special
education and related services.28
The need for special education services is determined by a child's ability to keep up with
(or "access") the curriculum, without mandatory consideration of "whether a child has
a severe discrepancy between achievement and intellectual ability."29 As the school
district reiterates in its briefing, P.P. failed to meet the two-part test set forth in 20 U.S.C.
§ 1401(3)(A) for eligibility; he was found to have a specific learning disability but he did
not meet the second requirement of needing "special education and related services" to
access the school curriculum. The district determined that P.P. was ineligible for special
education services because he was able to sufficiently access the school curriculum.
P.P.'s parents do not challenge this determination on appeal. We therefore conclude that
P.P.'s learning disability does not entitle him to private tutoring at school district
30
expense.
28 20 U.S.C.A. § 1401(3)(A) (West 2010).
29 20 U.S.C. § 1414(b)(6)(A) (2006).
30 J.P. and L.P. argue that the superior court "misunderstood" the holding of
Forest Grove, 129 S.Ct. at 2484. We interpret this part of their argument to be that
although P.P. was found ineligible for special education services, they should still
recover the cost of private tutoring because it was the tutoring that allowed P.P. to
function at grade level - and ultimately prevented him from qualifying for special
education services. This argument relies on the parents' challenge to the hearing
officer's finding that tutoring was neither definitively the cause of, nor necessary for,
P.P.'s academic success. That finding of fact was neither appealed to the superior court
nor properly a part of the appeal to our court.
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2. The school district's procedural violations did not render P.P.
eligible for private tutoring at school district expense.
Other courts have upheld or granted private tuition reimbursement under
the IDEA where there have been procedural violations and children were ultimately
determined to be eligible for services.31 But in R.B. ex rel. F.B. v. Napa Valley Unified
School District, the Ninth Circuit held that "[a] child ineligible for IDEA opportunities
in the first instance cannot lose those opportunities merely because a procedural violation
takes place."32 The United States Supreme Court reached a similar result in Forest Grove
School District v. T.A.33 There, the Court affirmed its prior holding that parents " 'are
entitled to reimbursement [for private educational expenses] only if a federal court
concludes both that the public placement violated IDEA and the private school
placement was proper under the Act.' "34 The Court cautioned that "parents who
'unilaterally change their child's placement during the pendency of review proceedings,
without the consent of state or local school officials, do so at their own financial risk.' "35
Despite the holdings of R.B. and Forest Grove, some language in federal
case law implies that a procedural violation could make IDEA remedies available if the
31 See, e.g., Drobnicki ex rel. Drobnicki v. Poway Unified Sch. Dist., No.
08-56129, 2009 WL 4912163 at *1 (9th Cir. Nov. 17, 2009); M.L. v. Federal Way, 394
F.3d at 636-37; Amanda J. ex rel. Annette J. v. Clark County Sch. Dist., 267 F.3d 877,
884 (9th Cir. 2001). As the district points out, all of these cases involve students who
were eventually deemed eligible for special education services under the IDEA.
32 496 F.3d 932, 942 (9th Cir. 2007).
33 129 S. Ct. at 2484.
34 Id. at 2496 (quoting Florence County Dist. Four v. Carter, 510 U.S. 7, 15
(1993)) (emphasis in original).
35 Id. (quoting Florence County Dist. Four v. Carter, 510 U.S. 7, 15 (1993)).
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procedural violation itself results in a denial of a "free appropriate public education." For
example, in R.B. the Ninth Circuit wrote: "A procedural violation does not constitute a
denial of a [free appropriate public education] if the violation fails to result in a loss of
educational opportunity."36 And the Seventh Circuit has held that a "so-called technical
violation" (involving the qualifications of an occupational therapist engaged to provide
special education services) required compensatory relief because "[a free appropriate
public education], surely, is an education provided by qualified personnel."37 But
notwithstanding this language, the child in each of these cases was determined to be
eligible for special education services, unlike P.P., and R.B. suggests that eligibility for
services is a necessary condition for reimbursement under the IDEA.38 Here, because
there is no appeal of the school district's determination that P.P. was ineligible for special
education services due to his ability to access the curriculum, we conclude that any
procedural delays caused by the district up to the point of its testing did not deny P.P. a
free appropriate public education. Because the district's procedural violation did not
give rise to a remedy under the IDEA, P.P.'s parents enrolled him in private tutoring "at
their own financial risk,"39 and the law does not require the district to reimburse them for
the cost of tutoring.
36 R.B., 496 F.3d at 942 (internal quotation marks omitted) (emphasis added).
37 Evanston Cmty. Consol. Sch. Dist. No. 65 v. Michael M., 356 F.3d 798, 803
(7th Cir. 2004).
38 See supra note 30.
39 Forest Grove, 129 S.Ct. at 2496 (quoting Florence County Dist. Four v.
Carter, 510 U.S. 7, 15 (1993)).
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D. The Superior Court Correctly Awarded Reimbursement Of Private
Evaluation Costs.
The school district argues that P.P.'s ineligibility for special education
services also precludes him from receiving reimbursement for the cost of the private
eligibility assessment. But we agree with the superior court's decision, which upheld the
hearing officer's order awarding the cost of the eligibility assessment under the
circumstances of this case.
The superior court observed that if the school district had met its statutory
obligation to evaluate P.P. within 45 school days, it would have been obligated to pay
the entire cost of P.P.'s eligibility assessment. In addition, P.P.'s parents would have
been entitled to request an independent evaluation at the district's expense if they
disagreed with the district's assessment.40 The district does not dispute these
requirements, but argues that the recourse available when a school district fails to timely
assess a child for eligibility does not include the cost of a private assessment.
1. P.P. was eligible for evaluation at school district expense under
IDEA's "child find" requirement.
The IDEA's "child find" duty requires that all children with disabilities be
"identified, located, and evaluated . . . ."41 When a school district receives a request that
a child be evaluated for eligibility to receive special education services, and the district
also receives parental consent to perform such an evaluation, the school district must
conduct the necessary testing - and, if the child is eligible, provide special education
40 In 4 AAC 52.120 Alaska adopted by reference the provisions of 34 C.F.R.
§ 300.502 (2006), which provides parents the right to an independent evaluation of their
child at public expense "if the parent disagrees with an evaluation obtained by the public
agency," subject to conditions and procedural requirements, or if requested by a hearing
officer during a hearing on a due process complaint.
41 20 U.S.C. § 1412(a)(3) (2006).
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services - within 45 school days.42 Because an evaluation is necessary to determine
whether a child is "disabled" within the meaning of the IDEA, disability cannot logically
be considered a prerequisite for the rights implied by the IDEA's "child find"
requirement. Indeed, the Ninth Circuit has held that "child find" is an "independent
duty,"43 under which a school district is "legally obligated to procure its own report from
a specialist."44 We conclude that a school district's duty to evaluate children for
eligibility under the IDEA is not dependent upon the ultimate determination that the child
is "disabled." This is consistent with the language of the IDEA, which requires states to
fulfill the "child find" obligation in order to receive federal funding.45 This duty to assess
children for eligibility is independent from the separate and more general requirement
that states must establish policies to assure that children with disabilities receive free
appropriate public education.46
The school district does not dispute that it was obligated to evaluate P.P.
upon his parents' request and consent for evaluation. The district also concedes that P.P.
had some right to recourse, in the form of a due process hearing or administrative appeal,
in response to its delay. But the district argues that it is not obligated to reimburse J.P.
and L.P. for the cost of the private eligibility assessment they arranged for their son.
42 4 AAC 52.115.
43 JG v. Douglas Cnty. Sch. Dist., 552 F.3d 786, 794 (9th Cir. 2008).
44
Union Sch. Dist. v. B. Smith, 15 F.3d 1519, 1523 (9th Cir. 1994).
45 20 U.S.C. § 1412 (2006).
46 Compare 20 U.S.C. § 1412(a)(3) (2006) with 20 U.S.C. § 1412(a)(1)(A)
(2006).
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2. Reimbursement of private evaluation costs is appropriate based
on the school district's delay, its use of the parents' private
eligibility assessment, and the inadequacy of alternative
remedies.
The school district argues that since P.P. was ultimately deemed ineligible
for special education services, he was not denied a free appropriate public education and
his parents are not entitled to reimbursement for the private eligibility assessment. Under
the circumstances of this case, we disagree.
The United States Supreme Court noted in Forest Grove, "An order
awarding reimbursement of private-education costs when a school district fails to provide
a [free appropriate public education] merely requires the district to belatedly pay
expenses that it should have paid all along."47 We agree with the superior court in this
case that, under Forest Grove and the language of the IDEA, reimbursement of the cost
of education services is appropriate only where a child has been found eligible for special
education services. But children in the Anchorage School District are entitled to be
evaluated for services if an evaluation is properly requested on their behalf; the IDEA
does not condition the entitlement to this screening upon the outcome of the screening.
And school districts are mandated to provide these evaluations in a timely manner.48 It
is neither unreasonable nor surprising that concerned parents who do not receive an
eligibility assessment within the 45 school day period allowed under the IDEA will seek
to obtain private eligibility assessments for their children, if they can afford to do so.
The school district acknowledges this, but argues that when a district fails to act upon a
request for an evaluation in a timely manner, the IDEA limits parents' recourse to:
47 Forest Grove Sch. Dist. v. T.A., 129 S.Ct. 2484, 2495 (2009) (internal
quotation marks omitted).
48 20 U.S.C. § 1414(a)(1)(C)(i) (2006); 4 AAC 52.115.
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(1) requesting a due process hearing; or (2) pursuing an administrative complaint with
the Department of Education to obtain an order directing the district to conduct an
evaluation.
There are several problems with the district's interpretation of the statute.
The first is apparent from the facts of this case: the school district delayed evaluation
and then, after parents resorted to private testing, used the results of that testing to satisfy
its own eligibility assessment obligation. The district thus eliminated the need for at least
some of the testing that the district would otherwise have been required to perform.
Dr. Fuller administered nine separate tests of P.P., producing an 11-page evaluation
summary and over 150 pages of testing materials and detailed results. The district's
Evaluation Summary and Eligibility Report relied exclusively on the results of Dr.
Fuller's Wechsler Intelligence Scale for Children for its cognitive assessment of P.P.49
One of the three behavior/social/emotional assessments contained in the district's report
was based on testing administered by Dr. Fuller, and one of the district's three
educational assessments - the Woodcock-Johnson III achievement test50 - was based
entirely on Dr. Fuller's test results.51
49 The Turnagain Elementary psychologist in charge of cognitive assessments
stated in her testimony about compiling the school district's evaluation: "I . . . just
transfer[red] the information from [Dr.] Fuller's report to our report." In other words,
the psychologist would normally be responsible for conducting the cognitive assessment
portion of an evaluation, but because Dr. Fuller had already administered the necessary
tests for P.P., the psychologist instead simply adopted Dr. Fuller's results and added
them to the report.
50 The Woodcock-Johnson III achievement test was the only one of the three
educational assessments to test both language and math skills.
51 The other categories in the Evaluation Summary and Eligibility Report are:
Parent Information, Developmental/Medical History, Communication (e.g.,
pronunciation), Hearing, Vision, and Classroom Observation.
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We do not question the school district's decision to use Dr. Fuller's results
in its evaluation; there appear to be valid reasons to avoid repeatedly giving the same test
to a student within a short period of time.52 But this does not change the fact that, by
delaying its evaluation and relying on the private evaluation paid for by L.P. and J.P., the
district partially avoided the cost of completing its statutorily mandated assessment of
P.P.'s eligibility for services and entirely avoided the cost of the independent assessment
his parents would have been entitled to request in response to the district's assessment.
Under these unique circumstances, reimbursement "merely requires the district to
belatedly pay expenses that it should have paid all along"53 and is necessary to hold the
school district to its "child find" obligations under the IDEA. Nothing prevents the
district from conducting additional testing if the parent's choice of evaluators is
unacceptable to the district, and our ruling only requires the district to pay for the
reasonable assessment it is statutorily required to perform.
Moreover, we observe that, despite conceding that P.P. had a right to be
evaluated for eligibility and that he was entitled to some form of recourse as a result of
the district's delay, the school district failed to identify any satisfactory alternative
remedies for P.P. and his parents under the facts of this case. The district argues that P.P.
could have filed for a due process hearing or pursued a complaint procedure through the
Department of Education. But J.P and L.P. requested an evaluation of their child in May
of his first grade year, and were told to wait until the fall. Before their son started second
grade, J.P. and L.P. gave the district a written request to evaluate their child. They also
met with his principal and teacher, and waited 45 school days. When they received no
52 Both Dr. Fuller and the Turnagain Elementary psychologist, Olga
Kyselova, noted that some tests require six months between administrations to avoid a
"practice effect" that could invalidate the results.
53 Forest Grove, 129 S.Ct. at 2495.
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response, J.P. and L.P. requested a due process hearing to protest the district's failure to
act, repeated their request for an evaluation, and only then made arrangements to obtain
a private evaluation. The school district did not complete its eligibility assessment until
January of 2008, approximately three months after the expiration of the 45 school-day
period.
In addition, the district acknowledged at oral argument before our court that
parents are intended to receive information about the Department of Education complaint
process in the Notice of Procedural Safeguards. Here, the district failed to provide L.P.
and J.P with the Notice of Procedural Safeguards, in violation of 4 AAC 52.480. The
school district should not be permitted to rely on its own procedural error to claim that
L.P. and J.P. did not seek all available remedies and that they are precluded from
reimbursement as a result.
V. CONCLUSION
We AFFIRM the superior court's decision denying the cost of private
tutoring, and AFFIRM its award of the cost of the private eligibility assessment.
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