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T.B., A Minor, By and Through His v. St. Joseph School District

April 27, 2012

T.B., A MINOR, BY AND THROUGH HIS
PARENTS AND LEGAL GUARDIANS; W.B.; J.B.,
PLAINTIFFS - APPELLANTS,
v.
ST. JOSEPH SCHOOL DISTRICT,
DEFENDANT - APPELLEE.



Appeal from the United States District Court for the Western District of Missouri.

Per curiam.

[PUBLISHED]

Submitted: February 15, 2012

Before LOKEN, BYE, and MELLOY, Circuit Judges.

T.B.'s parents, on behalf of their disabled child, appeal the district court's *fn1 finding the St. Joseph School District did not violate the Individuals with Disabilities Education Act by failing to provide a free appropriate public education to T.B., making the parents ineligible for reimbursement for the costs of T.B.'s home-based program. We affirm.

I

T.B. is an autistic child. In 1997, T.B. began receiving educational services from the St. Joseph School District (School District). In June 2006, unable to reach an agreement on an extended school year program for the summer, the parents informed the School District of their decision to withdraw T.B. from school and enroll him in a home-based program. T.B. did not return to school in the fall of 2006. In September 2006, the School District sent the parents a letter stating it was the School District's understanding T.B. was not enrolled for the 2006-2007 school year. The School District further informed the parents it was prepared and ready to provide services to T.B.

On November 17, 2006, following discussions for the development of a new Individualized Education Program (IEP)*fn2 , the parents submitted T.B.'s enrollment forms to the School District. The new IEP was finalized on December 4, 2006, and was to take effect upon T.B.'s re-enrollment in the School District on December 15, 2006. T.B., however, did not return to school and after ten consecutive days of non- attendance, the School District dropped him from its rolls in accordance with Missouri law.

On March 28, 2007, the parents filed a due process complaint (Complaint I), challenging the adequacy of the School District's proposed extended school year program for summer 2006 and the proposed IEP for the 2006-2007 school year. The parties subsequently engaged in informal settlement negotiations, ultimately entering into a written Release and Settlement Agreement concerning the resolution of Complaint I.

In June 2009, however, while proceedings over Complaint I were still pending, the parents filed a second due process complaint (Complaint II) for the period November 1, 2007 to June 1, 2009. In Complaint II, the parents asserted the School District had failed to provide free appropriate public education (FAPE) within the meaning of the Individuals with Disabilities Education Act (IDEA) because the School District did not conduct a three-year re-evaluation of T.B. by January 24, 2008,*fn3 and did not inform the parents of its intent not to do so. The parents further asserted the School District failed to develop annual IEPs for T.B. after November 1, 2007. The parents therefore sought reimbursement for the costs of placing T.B. in a home-based program.

After a hearing, a three-member administrative panel empowered by the Missouri State Board of Education found the School District violated the IDEA by failing to conduct a triennial re-evaluation of T.B., as required by 20 U.S.C. § 1414(a)(2), and by failing to inform the parents in writing of its intent not to conduct such evaluation. The administrative panel found no IDEA violation regarding the annual IEPs, explaining the School District had no continuing duty to develop or review IEPs for T.B. following his unilateral withdrawal from school. The administrative panel denied the parents' request for reimbursement on the ground T.B.'s home-based program was "woefully inadequate" and the parents had failed to prove they actually paid for the costs associated with it. Specifically, the administrative panel found the home-based program failed to meet T.B.'s academic and social needs, and therefore was not "proper" within the meaning of the IDEA, because, among other things: (1) the program did not offer any education-related services such as speech, physical, or occupational therapy; (2) "there was no set schedule" and the program hours were limited; and (3) "an academic component was glaringly absent" as demonstrated by the lack of any record indicating T.B.'s current cognitive skills, his grade level, or his reading and math levels. Hr'g Panel Findings of Fact, Conclusion of Law, Decision & Order, April 1, 2010, at 29. Accordingly, the administrative panel concluded T.B.'s home-based program provided primarily personal assistance services intended to assist T.B. with his daily living skills.

The parents subsequently filed suit in district court, claiming the administrative panel erred in finding the School District had no ongoing obligation to develop annual IEPs for T.B. once he was in the home-based program and in denying their request for reimbursement. After conducting an independent review, the district court held the School District had no duty to review or develop annual IEPs for T.B. because the parents unilaterally chose to withdraw T.B. from school in 2006. Because no such duty existed, the district court concluded the School District did not violate the IDEA by failing to offer a FAPE to T.B. and denied the parents' request for reimbursement. The district court additionally determined the parents were not entitled to reimbursement because they failed to show what expenses for the home-based program, if any, they had actually incurred. The parents appeal.

II

On appeal, the parents argue the district court erred in determining the School District did not violate the IDEA by failing to offer a FAPE to T.B. and in denying their request for reimbursement. We review the district court's ultimate determination under the IDEA de novo. C.B. ex rel. B.B. v. ...


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