Tuesday, March 3, 2026
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Ninth Circuit Revives Action Seeking Payment for Out-of-State Education During Pandemic
Opinion Says Disabled Child Who Sought Residential, In-Person Instruction Elsewhere After His San Diego-Area School Went Virtual-Only Due to COVID-19 May Be Entitled to Reimbursement
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has resurrected a lawsuit in which the parents of a disabled child seek reimbursement for the cost of sending their son to in-person, residential educational institutions out-of-state after his local school stopped offering on-campus instruction due to California’s response to the COVID-19 pandemic.
At issue is whether the San Diego Unified School District (“SDUSD”) failed to appropriately meet the child’s scholastic needs under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §33 et seq., which offers federal funds to states conditioned on the provision of “free appropriate public education” (“FAPE”) to minors with disabilities, and related California laws.
Under the statutory schemes, qualifying students are to receive an “Individualized Education Program” (“IEP”) personalized to that minor’s specific needs, and parents may seek reimbursement for the cost of private education if they establish that the district has failed to offer an appropriate educational scenario.
In Friday’s decision, authored by Circuit Judge Kim McLane Wardlaw and joined in by Circuit Judges Ronald M. Gould and Lucy H. Koh, the court reversed a decision by Senior District Court Judge Anthony J. Battaglia of the Southern District of California which affirmed an administrative law judge’s determination that the student, “L.B.,” was not entitled to repayment based on a technicality in how the parents communicated with district officials
Request for Services
Wardlaw explained that “the district court held that SDUSD had no duty to offer L.B. a free appropriate public education during this period because Parents did not request an IEP document for L.B., but only an IEP meeting” based on the 2021 Ninth Circuit opinion in Capistrano Unified School District v. S.W, which held that reimbursement for private school costs was inappropriate where the minor’s guardians had failed to first request IEP services.
Saying that the District Court’s decision “rested on a misreading” of Capistrano, the jurist opined:
“The question is whether Parents requested that SDUSD provide an IEP that offered L.B. a free appropriate education, as required by federal and state law. Whether Parents requested an IEP using the words ‘IEP meeting’ or ‘IEP document’ is irrelevant….We remand to the district court for further proceedings regarding whether the IEP program SDUSD offered L.B. during his private placement met the requirements of a free appropriate public education and, if not, whether L.B. is entitled to reimbursement or other remedies for his consequent private placement.”
In December 2019, SDUSD prepared its first IEP for L.B., designating that he be placed at Riley Alternative School, which offers intensive mental health services to students in need in San Diego. His parents, Eric Baumgardner and Robin Morrisey, agreed to the plan for the 2020-2021 school year.
However, when L.B. was slated to begin his eighth-grade year at Riley in the fall of 2020, no in-person services were available. Baumgardner and Morrisey alleged that he missed his remote classes, became aggressive during school hours, and threatened himself and his mother with physical harm.
Out-of-State School
In late September 2020, Baumgardner informed the district that L.B. would be attending Trails Carolina, an out-of-state residential school that offered in-person instruction. The student later transferred to Whetstone Academy, a similar institution in South Carolina.
After schools in California began to reopen in the fall of 2021, L.B. returned to in-person classes at a different San Diego-area school for disabled students in consultation with the district.
L.B. filed a due process complaint with the California Office of Administrative Hearings on Aug. 31, 2022, seeking reimbursement for more than $273,000 for costs associated with his attendance at Trails and Whetstone during the period in which SDUSD purportedly did not offer in-person classes.
Administrative Law Judge Paul Kamoroff denied his request on March 15, 2023, saying the district had no duty to offer L.B. a FAPE because the parents had not “expressly requested” such a plan during that period.
On March 23, 2023, L.B.’s parents filed a complaint on his behalf against SDUSD, alleging that L.B. “has been diagnosed with…Oppositional Defiant Disorder, ADHD,…Disruptive Mood Dysregulated Disorder, Persistent Depressive Disorder, Major Depressive Disorder, recurrent, moderate to severe with suicidal ideation, [and] Specific Learning Disorder[s].” They sought $273,000 in reimbursement and attorney fees.
Unilateral Enrollment
Citing 20 U.S.C. §1412(a)(10)(C)(ii), Wadlaw wrote:
“[The] parents of a child with a disability, who previously received special education and related services under the authority of a public agency, may unilaterally enroll their child in a private school and obtain reimbursement from the agency if the ‘agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.’…Thus, where parents do not agree to the offered IEP because they do not believe that program is appropriate for their child’s needs, as here, ‘Congress meant to include retroactive reimbursement to parents as an available remedy’ for the agency’s failure to satisfy the FAPE criteria.”
Pointing out that “California has implemented its own guidelines that mirror and provide more detail to the requirements in the IDEA,” she opined:
“SDUSD appears to have satisfied the federal and state procedures and provided an IEP for L.B., which was placement at Riley for virtual learning. The problem, however, was that, in Parents’ view, the plan was not meeting L.B.’s educational and mental health needs during COVID-19 amid California’s complete shutdown of public schools. Parents faced a choice: ‘go along with the IEP to the detriment of their child if it turns out to be inappropriate or pay for what they consider to be the appropriate placement’ and seek ‘retroactive reimbursement…at their own financial risk.’…Here, Parents chose the latter approach….”
Noting that the parents continued to participate in discussions with the district about L.B.’s IEP, she remarked:
“[W]e conclude without difficulty that this case does not remotely resemble the ‘unusual series of events’ set forth in Capistrano….Under the IDEA and state law, SDUSD had an ongoing duty to offer a FAPE to L.B., and the only questions to be answered are whether the IEP offered to L.B. constituted a FAPE and whether the private placements were appropriate for L.B.”
The jurist continued:
“On remand, the district court is instructed to consider whether SDUSD offered L.B. a FAPE from October 9, 2020 to December 2, 2021, and, if not, whether tuition reimbursement, attorneys’ fees, compensatory education, or other remedies may be appropriate.”
The case is L.B. v. San Diego Unified School District, 24-5543.
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