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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

J.P. and L.P., on behalf of their minor son, P.P. v. Anchorage School District (9/16/2011) sp-6601, 260 P3d 285

        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 

----------------------- Page 2-----------------------

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. 

                                                    -2-                                               6601
 

----------------------- Page 3-----------------------

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. 

                                                    -3-                                                 6601 

----------------------- Page 4-----------------------

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. 

                                            -4-                                       6601
 

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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. 

                                                    -5-                                              6601
 

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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). 

                                                    -6-                                                 6601 

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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. 

                                                     -7-                                               6601
 

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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). 

                                                  -8-                                             6601
 

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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). 

                                                  -9-                                             6601
 

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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). 

                                                  -10-	                                           6601
 

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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). 

                                                   -11-                                              6601
 

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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. . . .). 

                                                 -12-	                                           6601
 

----------------------- Page 13-----------------------

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. 

                                                   -13-	                                             6601
 

----------------------- Page 14-----------------------

                 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. 

                                                    -14-                                               6601
 

----------------------- Page 15-----------------------

                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)). 

                                                -16-                                           6601
 

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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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----------------------- Page 18-----------------------

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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----------------------- Page 20-----------------------

(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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----------------------- Page 21-----------------------

                 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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----------------------- Page 22-----------------------

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. 

                                                  -22-                                             6601
 
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