L.B. v. San Diego Unified School District - IDEA Reimbursement

FOR PUBLICAT ION UNITE D STATES COURT OF APPE ALS FOR THE NI NTH CIR CUIT L.B., By and Through his Guardian Ad Litem ROB IN MORRISEY, Plaintiff - A ppellant, v. SAN DIEGO UN IFIED SCHOOL D IST RIC T, Defendant - Appell ee. No. 24-5543 D.C. No. 3:23- cv -00528- AJB - DDL OPINION Appeal from the United States D istrict Court for the Southern Distric t of California Anthony J. Battaglia, District Judge, Presiding Argued and Submitted October 8, 2025 Pasaden a, Calif orni a Filed February 27, 2026 Before: Kim McLane Wardlaw, Ronald M. Gould, and Lucy H. Koh, Circuit Judges. Opinion by Judge Wardlaw

2 L.B. V. S AN D IEGO U NIF IE D S CHOOL D IST. SUMMARY * Indivi duals with D isabil ities Educ ation Ac t The pan el rev ersed t he di strict court’s affirm ance of an administra tive law judge’s de termination th at student L.B. was not entitled to reimbursement under the Individuals with Disabilities E ducation Ac t from the San D iego Unified School Distric t (“SDUS D”) for speci al edu cation ex penses he incurre d while attending two pr ivate residential tre atment centers in middle school. L.B.’s parents claimed that SDUSD failed to offer L.B. a free appropriate public education during the time he wa s enrolle d in the residential treatme nt centers after struggling with signific ant challen ges while enrolle d in SDUS D during th e C OV ID - 19 pandemic. The distric t court held that SDUS D had no duty to offe r L.B. a free appropriate public education during this per iod because his parents did not request an individualized education program (“IEP”) document for L.B., but only an IEP meeting. Distinguishing Capistrano Unified School District v. S.W., 21 F.4th 1125 (9th Cir. 2021), the panel he ld that the very purpose of an IEP meeting under federal and California state law is for the student’ s IEP team, co nsisting of his parents an d sp ecifi ed teach ers and scho ol of fici als, to develop and offer an IEP that will provide a free appropriate public education. Wheth er L.B.’s parent s requ ested an IE P using the words “IEP meeting” or “IEP document” therefore was irr elevant. The pan el remanded to t he d istri ct court for * This s ummary consti tutes no par t of the opi nion of the court. It has been pre pared by c ourt staff for the convenie nce of t he reader.

L.B. V. S AN D IEGO U NIF IE D S CHOOL D IST. 3 further proceedings regarding whether the I EP program that SDUSD offered L.B. during his private placement met the requirements of a free appropriate public education and, if not, whether L.B. was entitled to reimburseme nt or other remedies for hi s conseq uent private p lacem ent. COUNSEL Meagan Nunez (argued), L aw Offi ce of M eagan Nunez, San Diego, California, for Plaintiff-Appellant. Jonathan P. Read (argued) and Shiva E. Stein, Fa gen Friedman Fulfrost LLP, Carlsbad, California, for Defendant - Appell ee. Selene A. Alm azan - Altobelli, Council of Parent Att orneys and Advocates, Towson, Maryland; Ellen M. Saideman, Law Office of Ellen Saideman, Barrington, R hode Island; Alexis Casilla s, Law Offices of Ale xis Casillas PLC, San Marino, California; for Amicus Cur iae Council of Parent Attorneys and Advocates.

4 L.B. V. S AN D IEGO U NIF IE D S CHOOL D IST. OPINION WARDLAW, C ircuit Ju dge: L.B., by and through hi s Guardian Ad Litem, Robin Morrisey, appeals the district court’s affirm ance of an Administrativ e Law Judge’s d etermination that h e was n ot entitled to r eimbursement from the San Diego Unified School Distric t (“SDUSD”) under t he Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq., fo r special educat ion expenses he incurred while attending tw o privat e resid ential treatm ent cent ers in middl e school. L.B.’s paren ts (“Parents”) fir st met with SDUSD off icials in 2019 to create an “Individualized Education Program” (“IEP”) 1 for L.B. ’s ment al heal th n eeds. P arents accepted the IEP for L.B., but found, a few w eeks into the 2020 – 21 sc hool year, that it was not meeting L.B.’s educational, emotional, and mental health n eeds. L.B. struggled with significant challeng es while enrolled in SDUSD during the COVID -19 pandemic, in which SDUS D offered only virtua l learning. Parents thus enrolled L.B. in two successive out -of- state residen tial treatment centers th at allowed for in -person educatio n and men tal h ealt h services. While L.B. w as enrolled in the re sidential treatment centers, P arent s atten ded s everal meetings with L.B.’s IEP T eam at SDUSD, which consisted of Parents and statutorily specifi ed SDUS D off icials. Parent s lat er sought reimburs ement from SDUSD for the costs of enr ollment in the residen tial treatment cente rs, claiming that SDUS D had 1 An “IEP” is “a written statement fo r each child with a disability th at is develope d, reviewe d, and revised” by an “IEP Team, ” consis ting of the parents and statutorily specified members of t he school and schoo l district. 20 U.S.C. § 1414(d)(1)(A)(i), (B).

L.B. V. S AN D IEGO U NIF IE D S CHOOL D IST. 5 failed to offer L.B. a f ree appropriate public education (“FAPE ”) during that ti me. But the district co urt di d not determine whether SDUSD’s IEP constituted an a ppropriate public education program during the COVID -19 pandemic. Instead, the distric t court held that SDUSD had no duty to offer L.B. a free approp riate pu blic edu cati on during this period becau se P arents did not request an IEP document for L.B., but only an IEP meeting. We revers e and reman d. W e explai n that th e v ery purpose of an IEP meeting under federal and Californ ia state law is for the IEP T eam to develop a nd offer an I EP that w ill provide a free appropriate public education. The question is whether Parents requested that SDUSD provide an IEP that offered L.B. a free appropriate education, as required by federal and stat e law. Whet her Par ents requ ested an IEP using the words “ IEP mee ting ” or “ IEP docu ment” is irrelevan t. Thus, t he district court’ s inquiry into the intent of each meet ing was mispl aced, as was its analysis of how Parents reques ted e ach meeting. We remand to the district court for further proceedings regarding whether the IEP program SDUSD offer ed L.B. during his private place ment met the requirements of a free app ropriat e public education and, if not, whether L.B. is entitled to reimbursement or other rem edies for his consequent private placement. I. STATUTO RY BACKGROUND The Indiv iduals with Disabilities E ducation Act (“IDEA”) off ers feder al f unds t o states conditioned upon the provision of a “ free appropriate public education ” to childre n with disabilitie s residing in the state. 20 U.S.C. § 1412(a)(1)(A). “Th e core of t he [IDEA]. . . is the cooperati ve pro cess that it est ablis hes between parents an d schools.” Schaffer ex rel. Sch affer v. Weast, 546 U.S. 49, 53

6 L.B. V. S AN D IEGO U NIF IE D S CHOOL D IST. (2005) (citation omitted). The “ primary vehicle ” for th is collaboration is the “ Individualized Education P rogram,” which is “a personalized plan to meet all of t he child’s educational needs.” Fry v. Napoleon Cmty. Schs., 580 U.S. 154, 158 (2017) (citation and internal quotation marks omitted). An IEP is developed by a child’s “IEP T eam,” consis ting of the child’s parents and specified teachers and school officia ls. 20 U.S.C. § 1414(d)(1)(B). The IEP spells out a child’s “levels of academ ic achiev ement, ” identifies “measur able annu al goal s,” and list s “special edu cation an d related s ervices ” that the school plans to provide each school year. Id. § 1414(d) (1)(A)(i). Paren ts play a key role in the IEP p ro c es s. Th ey are m ade members of IEP T eams by statute and must be informed a bout and consent to evaluations of their child, id. § 1414(c)(3); they must be provided with written prior notice of a ny changes in an IEP, id. § 1415(b)(3); and must be notified in writing of the procedur al safegu ards av ail able to t hem und er the IDEA, id. § 1415(d)(1) (A). See Amanda J. ex rel. Annette J. v. Clarke Cnty. Sch. Dist., 267 F.3d 877, 882 (9th Cir. 2001) (“Parents not only represent the best interests of their child in the I EP development process, they a lso provide information about the child critical to developing a compre hensive IEP and which only they are in a position to know.”). Parents who believe the public school has failed to offer their ch ild a FAPE may p lace their child in an “appropri ate” private school and seek reimbu rsement from the public school for the as soci ated costs. 20 U.S.C. § 141 2(a)(10) (C). “[T]he IDEA establishes formal proce dures for resolving disputes” between parents and schools. Fry, 580 U.S. at 159. If parents believe that a school has denied the ir child a FAPE, they may pres ent a complaint to the local or state

L.B. V. S AN D IEGO U NIF IE D S CHOOL D IST. 7 educatio nal ag ency. 20 U.S.C. § 1415(b)(6). This pleading triggers a preliminar y meeting between the parents and the IEP team to resolve t he issues in the complaint. Id. § 1415 (e), (f)(1)(B)(i). If the complaint is not resolved to the parents’ sati sfactio n, th e paren ts hav e a rig ht t o a “du e process hearing” before an administrative law judge. Id. §1415(f) (1)(A). A paren t may t hen seek j udicial revi ew of the administrative process by filing a civil action in federal court. Id. § 1415(i)(2)(A). 2 II. FACTUAL BACKG ROUND In 2019, L.B. was a middle sc hool student with a history of serious mental health diagnoses, including suicidal ideation, that required several hospitalizations. At the beginning of the 2019–20 school year, L.B., t hen a sevent h - grade student, was enrol led in the S DUSD. L.B. stopped attending SDUSD in October 2019, however, due to hi s mental he alth chall enges, and L.B.’s pa rents placed him at a local priv ate residenti al treatm ent cent er in November 2019. In December 2019, after Parents met with SD USD officia ls, S DUSD p repar ed its fi rst IEP for L.B. This IEP offered L.B. specialized academi c inst ruction, mental health services, and behavior al intervention services. SDUSD also offered L.B. placement at Riley A lternative School (“Riley ”), a San Diego public school that provides intensive mental health s ervices for students with severe social or emotional dif ficulties. Paren ts met with their SD USD IE P Team two additional times that winter, but Parent s and 2 The IDEA is a “model of cooperative federalism,” and “leaves to the stat es the prim ary responsi bility for de veloping a nd exec uting educati onal pro grams for handic apped chil dren, but impos es s ignificant requireme nts to be followed in the dis charge of t hat resp onsibili ty.” Schaffer, 546 U.S. at 52 (citation an d internal alte rations omitted).

8 L.B. V. S AN D IEGO U NIF IE D S CHOOL D IST. SDUSD could not agree to an IEP that both believed would be appropriate for L.B. In Febru ary 2020, Parents filed a request for a due process hearing with the Of fice of Administrative Hearings (“OAH”). Two mon ths lat er, Parent s and S DUSD ent ered into a settle ment agreement that stipulated, among other requirem ents, t hat Parents would agree to the IEP that SDUSD had propos ed, and L.B. would attend Riley for the 2020–21 academi c year. L.B. began his eighth - grade school ye ar in fall 2020 a t Riley, as planned. However, due to the CO V ID -19 pandemic, SDUSD schools were physically closed. All instruction and services were provided virtually. L.B. struggled in this environment both with online learning a nd with the “asynchronous” learning packets students were assigned to do on their o wn. L.B. mis sed class es a nd bec ame agitated and aggressive toward his family members and himself during school hours. L.B. threat ened h is m other an d younger brother with physical violence and artic ulated a plan to stab himself with a knife. Parents concluded that the existing IEP was not working to meet L.B.’s educational needs. On September 29, 2020, l ess than one month into the school year, L.B.’s father em ailed the district to alert it that L.B. would be attending Trail s Carol ina (“T rails ”), a residen tial wilder ness therap y program in No rth Carolina, starting the next day. Parents s elected Trai ls in p art b ecause it offered in - person servi ces at a ti me when s chool s in Califo rnia were physical ly closed due to the COVID -19 pandemic. On October 1, 2020, SDUSD o fficials r esponded to this email by stating that the distr ict would not fund the placement, as it believed it had offered L.B. an I EP that

L.B. V. S AN D IEGO U NIF IE D S CHOOL D IST. 9 satisfied the require ments of a “free appropri ate pu blic educatio n.” On October 1, the educatio nal speci alist in charge of L.B.’s case, Jordan M eans, emailed Paren ts asking if they would like to hold a “formal [I EP] meeting.” Means emailed L.B.’s IEP Team the following day, informing th em that he had had a conversation with Parents. He st ated that “[w]e need to discuss further how to better support [L.B.],” including by “[d]iscuss[ing] what worked and what did not work in his experience at Ri ley (virtual learning).” Parents met with the IEP Tea m later that week, and discussed L.B.’s placement, behavioral conce rns, and FAPE. Parents consent ed to th e G eneral Educat ion team mem ber’ s absenc e, as is required under the IDEA, 20 U.S.C. § 1414(d)(1)(c)(i). The distric t also “disenrolled” L.B. fr om Ri ley at that t ime and offered him an I EP to attend Ri ley, to be re vised when he returned. On October 22, Sue Salorio, a lead teacher at Riley, emailed Paren ts aski ng th em if t hey con sented t o th e IE P t he school had prepared. L.B.’s mother responded, s tating that while s he agreed that P arents “unilat erall y placed [L.B. ] at the wil derness.. . program,” she wanted i t “noted somewhere” that “the impetus for doing so [was]. . . his inability to successfully participate in school,” given that h e “did not receive many of the components necessary to support his IEP,” including “group ther apy” and “t he opportunity to obtain support in moments of beha vioral decompensation.” A week later, on October 28, Sal orio emai led Parents asking if they would “like [her] to schedule another IEP to discuss your concerns fr om [the] last IEP.” Salo rio indic ated that L.B. wa s still enrolled in SDUSD and being marked as

10 L.B. V. S AN D IEGO U N IF IE D S CHOOL D IST. absent from school and that he wa s at risk of receiving failing grades becaus e of his absen ce. L.B.’s mother wrot e back, “Sue I am not sure I understand all of this [w]ith his grades. Please c an w e schedu le an IEP me eting t his wee k ASA P?” Parents met with the IEP Team on November 5, 2020. At that meeting, Parents confirmed that L.B. would be disenrolled from SDUSD. Parents ag ain met with the IEP Team to follow up on th e “progress toward IEP goals and clarific ation of se rvices offered du ring C OVID - 19” on November 13. A week after the November 13 meeting, Salorio sent Par ents “a final copy of the IEP,” stating she would take “the next steps of dis - enrolling him as of 9/30/20 and reverting his grades back to the same date.” L.B. attended Trails for three months, until December 2020. Then, Parents enrolled L.B. in Whetstone Academy (“Whetst one”), a secon d residential trea tment center, located in South Carolina. On Mar ch 6, 2021, P arents emailed the SDUSD IE P team to request tha t the district “recon sider[] its determination not to fund the placement” at a resid ential treatmen t cente r. The email attach ed an Independent Educational Evaluation (“IEE”) of L.B. conducted by Dr. Jennifer Zeisz, an educat io nal expert. On March 19, 2021, Salo rio sent Parents a rele ase of inform atio n for Trail s so that SDUSD could “use that info a long with our data to complete an annual [IEP].” On March 23, 2021, Parents notified Salorio that L.B. had been discharged from T r ails on December 31, 2020, and sent Salorio the discharge summary. On April 13, SDUSD scheduled a nother IEP Team meeting with Par ents for April 27, 2021. On April 27, 2021, P arents notified SDUSD that L.B. had be en enrolled in Whetstone by emailing Salorio a lette r from Whetstone stating that L.B. had bee n enrolled there since December 30,

L.B. V. S AN D IEGO U NIF IE D S CHOOL D IST. 11 2020 and summarizing his progre ss. Dr. Zei sz pres ented her findings at the April IEP “annual” mee ting, held pursuant to 20 U.S.C. § 1414(d)(4)(A)(i), which requir es the l ocal educatio n agen cy to review each chi ld’s IEP annually. Dr. Zeisz op ined that L.B.’s severe menta l health and emotional issues caused him to “struggle [] severely with transitions” between home and school. She sp ecificall y recom mended a “therap eutic b oarding en vir onment ” because t he child does not need to be moved back and forth and can be in therapy as needed, not as an outpatient. At the end of the meeting, Salo rio said that the Team needed more information, and needed Par ents’ con sen t to as sess L. B. at Whetston e. Parents consented to SDUSD’s assessment of L.B. at Whetst one. During summer and fall 2021, SDUSD sent officials to South Carolina to assess L.B. at Whetstone. 3 In Oct ober 2021, the IEP Te am and P arents m et again. Parent s continued to ask SDUSD to fund a residential placement for L.B., but the district st ated tha t its assessment of L.B. remained ongoing. On Novembe r 28, 2021, SDUSD completed its evaluation, in which L.B. ’s classif ication changed from “ Emotionally Distur bed ” to “ Specifi c Learn ing Disability. ” The updated IEP offered L.B. placement at another school for students with disabilitie s, Marcy - Ad olescent Day Treatm ent (“Ma rcy Day”). Par ents consented to the new proposed IEP, and L.B. returned to SDUSD to atten d Marcy Day. 3 While the AL J found that Pa rents refus ed request s from SD USD to evaluat e L.B. in Cali fornia, t he dist rict c ourt fou nd “no e vidence” that Parents refused s uch reques ts.

12 L.B. V. S AN D IEGO U N IF IE D S CHOOL D IST. II I. PROCEDURAL B ACKGROUND On August 31, 2022, L.B. f iled a due process complaint with the California Office of Admin istrative Hearings (“ OAH ”), s eeking full reimbu rsement f rom S DUSD for tuition and other costs associate d with his residential placement at Trails and Whetstone. Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 242 n.9 (2009) (“ [C]ourts may grant reimburs ement .. . only when a school district fails to provide a FAPE and the private - school placement is appropri ate.”) (emp hasis in origi nal). An Administrative Law Judge (“ ALJ ”) heard the matter by videoconference over nine days and denied L.B.’s claims for relief. T he ALJ did not reach th e question of whether SDUSD failed to offer L.B. a F APE whil e he was priv ately pl aced because th e ALJ held that SDUSD had “no duty” to offe r L.B. a FAPE, reasoning that Parents had not “ expressly requested an IEP ” during this period. The ALJ reas oned that Parents’ meetings and communications with S DUSD were for purposes other than requesting an IEP, such as disenrolling L.B. from SDUSD so that he would not receive failing grades. The district cour t affirmed. The district court reasoned that Parents had requested IEP “ meetin gs ” but not an IEP “ document,” and thus SDUSD had no obligation to prepare an IEP for L.B. L.B. timely appealed. IV. STANDARD OF REVIEW Under th e IDEA, “feder al cou rts acco rd con siderabl y less def erence to state ad min istrat ive proceedi ngs t han they do in most instances of judi cial review of agency actions, in which courts generally are confined to the administrative record an d are h eld t o a highly deferential standard of review.” Anchorage Sch. Dist. v. M.P., 689 F.3d 1 047, 1053 (9th Cir. 2012) (citation and interna l omission omitted). The

L.B. V. S AN D IEGO U NIF IE D S CHOOL D IST. 13 IDEA empowers federal courts to “receive the r ecords of the admini strati ve proc eedin gs,” “he ar add itio nal ev idence at the reques t of a party,” and “gr ant such r elief as the court determines is appropriate. ” 20 U.S.C. § 1415(i)(2)(C). Still, f ederal co urts defer t o st ates’ “sp eciali zed kn owled ge and experience” in education by giving “due w eight” to the states’ a dministrative b odies. Amanda J., 267 F.3d at 887 – 888 (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westches ter Cn ty. v. Row ley, 458 U.S. 176, 206 –08 (1982)). Courts giv e par ticul ar deferen ce when th e hearing officer’s ru lings are “thorough and careful.” R.B. ex rel. F.B. v. Napa Valley Unified Sch. D ist., 496 F.3d 932, 937 (9th Cir. 2007) (citation and quotation marks omi tted). We revi ew a district court’ s factual findin gs for clear error, even when they are based on the a dministrative record. Amanda J., 267 F.3d at 887. We review questi ons of l aw de novo. Gregory K. v. Lo ngview Sch. Dist., 811 F.2d 1307, 1310 (9th Cir. 1987). We review mixed questions of law and fact de novo “ unless the mixed question is primarily factual. ” Amanda J., 267 F.3d at 887. We addres s one is sue o n appeal: Did the distr ict court and the ALJ err in holding that SDUSD was not requir ed to offer a FAP E t o L.B. beca use Parents did not properly request an IEP do cumen t? We review this issue de novo. Gregory K., 811 F.2d at 131 0. Parents and SDUSD do not disagree o ver wh ether any of the r elevant ev ents occur red, and d efining t he leg al p arameter s for when a school has a duty to offer a FAPE is a question of law.

14 L.B. V. S AN D IEGO U N IF IE D S CHOOL D IST. V. DISCUSS ION A. Statutory F ramework “A S tate covered by the IDEA must provide a disabled child w ith su ch sp ecial ed ucation and r elated se rvices ‘i n conformity with the [child’s] individualized educ ational program,’ or IEP.” Endrew F. ex rel. Joseph F v. Douglas Cnty. Sch. Dist. RE -1, 580 U.S. 386, 390 – 91 (2017) (alter ations in original) (quoting 20 U.S.C. § 1401(9)(D)). “ The IEP i s the cent erpiece o f the st atute’s educati on delivery system for disabled children.” Id. at 391 (citation and quotation marks omitted). Eac h child’s IEP is “ prepa red by a child’s ‘ IEP Team, ’ .. . which inc ludes teachers, school officials, and the child’s parents.” Id. (citing 20 U.S.C. § 1414(d)(1)(B)). “Among other requireme nts, each child’s IEP must include a statement of goa ls, how the child’s progress will be measured, and the natur e of the special education and related services to be provided.” L offman v. Cal. Dep’t of Educ., 119 F.4th 1147, 1155 (9th C ir. 2024); see also 20 U.S.C. § 1414(d)(1)(A)(i). “To meet its substantive obligation under the I DEA, a school must o ffer an IEP reas onably calculat ed to enable a child to make progress appropriate in light of the child’s circums tances.” Endrew F., 580 U.S. at 399. This is t he covered states’ freestanding obligation with respect to every child “residing in the state,” including the homeless, wards of the st ate, “and chil d ren with disabilities a ttending priva te schools.” 20 U.S.C. § 1412(a)(3)(A) (the “Ch ild Find” provision). The IDEA “provide s several different ways in which children with disabilities may receive publicly funde d services.” Loffman, 11 9 F.4th at 1155. These include “placements by a public agency, either in a public school

L.B. V. S AN D IEGO U NIF IE D S CHOOL D IST. 15 with an IEP under 20 U.S.C. § 1412(a)(1) or in a private school with an IEP under 20 U.S.C. § 14 12(a) (10)(B). ” Id. In addition, and salient here, 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 a nd obtain reimbu rsement f rom t he agency if t he “ agency ha d not made a free appr opriat e public education available to the child in a timely man ner prior to that enrollment.” 2 0 U.S.C. § 1412(a)(10)(C)(ii). Thus, where parents do not agree to the offer ed IEP because they do not be lieve tha t program is appropriate for their child’s needs, as h ere, “C ongr ess meant to include r etroactive reimb ursement to parents a s an availabl e remed y” for t he agency ’s fai lure t o sat isfy t he FAPE criteria. 4 Sch. Comm. of T own of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359, 369–70 (1985) (“ Burlington ”). California has implemented its o wn guidelines that mirror and provide more detail to th e r equirem ents i n the IDEA. 20 U.S.C. § 1412(a); see Cal. Educ. Code §§ 56000– 56865. Among other requirements, California l aw defin es the purpose of IEP meetings, Cal. Educ. Code § 56340; specifi es the circu mstan ces th at trig ger IEP meet ings, id. § 56343; defines the required members of I EP teams, id. § 56341 (b); and provides a “continuum of program options ” 4 To satisfy th e criteria of FAPE, th e IEP offer must p rovide “ special education and related services that -- (A) have bee n provide d at publi c expense, u nder publ ic supe rvisi on and dir ection, and wit hout char ge; (B) meet the standard s of the State educational agency; (C) include an appropri ate presc hool, ele mentary s chool, or s econdary s chool education in the S tate invol ved; and (D) are provided i n conformi ty with t he individual ized e ducation program re quired un der secti on 1414(d) o f this title.” 20 U.S.C. § 1401(9).

16 L.B. V. S AN D IEGO U N IF IE D S CHOOL D IST. for students with disabilities, which include “nonpublic, nonsectarian schools,” id. § 56361, 56365, but s ee Loffman, 119 F.4th at 1153 (holding that parents plausibly alleged that the “non sectari an” req uirement violat e s their right s under the Free E xercis e Clau se becaus e it ex cludes relig ious schools). B. Application SDUSD appea rs to h ave sat isfied the fed eral an d st ate procedures and provided an IEP fo r L.B., w hich was placeme nt at Riley for virtu al learning. The problem, however, was that, in Parents’ view, the plan was not meeting L. B. ’s educat ion al and mental health needs during COVID -19 amid Cal ifornia’s compl ete shutdown of public school s. Paren ts faced a choi ce: “ go along with the IEP to the detr iment of their child if it turns out to be inappropriate or pay for what they consider to be the appropriate placement ” and s eek “retro active reimbu rsement. .. at their own financial risk.” Burlington, 471 U.S. at 37 0, 374. Here, Parents chose the latter approach: they enroll ed L.B. in a residen tial wilderne ss treatment c enter with in -person services. During this time, Parent s atten ded six “IEP Meetin gs” with the IEP Team, 5 in which P arents expres sed to the distric t that L.B.’s IEP had not worked during virtual learning and asked the district to reimburse their chosen program or fund L.B.’s placem ent at anoth er res identi al treatmen t cent er. 5 The IEP Team referred to the m eetings as “IEP meetings” in their communicat ions, a nd SDUSD a ppeared to c omply wi th the ID EA’s procedura l require ments for IEP meetings, such as asking for Parent s’ consent to the General Education team member’s absence at the Octob er 9, 2020, IEP meeting, as is r equired under 20 U.S.C. § 1414(d)(1)(C)(i).

L.B. V. S AN D IEGO U NIF IE D S CHOOL D IST. 17 The distric t court erred in holding that SDUSD had no duty to offer L.B. a FAPE during this period. Contrary to the district court’s holding, SDUSD was obligated to offe r L.B. a “fr ee appropriate public educational program” during the entir e time at issue. 20 U.S.C. § 1412(a)(1)(A). As the IDEA and California stat e l aw explai n in detail, the very purpose of “ IEP meeting s” is to develop or r evise a n IEP that offers a student a FAP E. The IDEA specifies the “ IEP Team ” members who must atten d IEP meeting s, id. § 1414(d)(1)(B), and ex plai n s that the IE P T eam m ust “revise [] the IEP as ap propriat e to addr ess” a range of factors, including “any lack of expected progress toward the annual goals,” “information about the child provided to, or by, the parents,” or “the child’s anticipated needs,” id. § 1414(d)(4) (A). Similarly, Calif ornia law requires local educational agenc ies to “ initiate and conduct meetings for the purposes of developing, rev iewing, and revising the individualized education program of each individual with exceptional needs,” and provides a list of factors similar to that of the IDEA regardi ng when an IEP t eam m ust meet to revise t he IEP. 6 Cal. Educ. Code § 56340 (emphasis added). The se statu tes articu late the very purpose of IEP meetings: to “ review ” and “ rev ise ” the IEP as need ed to ens ure th at the IEP of f er s a “free appropriate public education.” § 1412(a)(1)(A), § 1414(d)(4). The requirement of an IEP offer a lso helps to safeguard parental rights, given that “a formal, written offer creates a 6 Under California law, “An [IEP] team s hall meet whenever any of the followi ng occur s ”: (a) “ A pupil has received [a ] .. . form al assessmen t ”; (b) “ The pupi l demonstra tes a lack of anti cipated progres s ”; (c) “ The parent or teache r reques ts a meeting to develo p, review, or re vise the individual ized e ducatio n program ”; or (d) “ At least ann ually, to review the pupil ’ s progre ss.” C al. Educ. C ode § 56343.

18 L.B. V. S AN D IEGO U N IF IE D S CHOOL D IST. clear reco rd that will do much to e liminate troublesome factual disputes,” and “ gr eatly assist[s] parents in presenting complaints w ith respec t to any matter r elating to the educatio nal pl aceme nt o f the ch ild.” Union Sch. Dist. v. Smith, 15 F.3d 1519, 1526 (9th Cir. 1994) (internal altera tions and quotatio n marks omitted); see also Burlington, 471 U.S. at 368 (noting that school di stricts have a “natural advantag e” ov er parents i n the “coo perat ive” IEP process). Because the purpose of an IE P meeting under federal and state law is to develop and offer an IEP that will provide a FAPE, P arents’ par ticip ation in IEP meet ings creat ed a continuous obligation during the period at issue for SDUSD to offer L.B. a FAPE. T he recor d demons trat es tha t SDUS D officials understood this obligation and, in fact, offered L.B. an IEP during the time at issue. At the F all 2020 meetings, SDUSD continued to offer the same plan, enrollment a t Riley, as L.B.’s February 27, 2020, an nual IEP. S DUSD recogniz ed as mu ch at t he t ime. The October 9, 2020, IEP document, for example, states that “[w] hen the program [Trails] is over L.B. wi ll be re - enrolled back at Riley since that is the offe r of FAPE.” A t the April 27, 2021, IEP meeting, Ms. Busch, the principal o f Riley, referenced the school’s assessment of L.B. and how it might change “what our offer of FAPE is for offeri ng th e IEP.” Parents and SDUSD faced the same situa tion as in “all Burlington reimbu rsement c ases”: the school distr ict offer ed a n IE P, an d the parent s rej ected it and “ put their child in private school.” Florence Cnty. Sch. Dist. Four v. Car ter, 510 U.S. 7, 13 (1993). Th us, the district court should have proceeded to the reimbu rsement an alys is a nd analyz ed, on the merits, wh ether “the pub lic placem ent violat ed [the] ID E A and. . . the

L.B. V. S AN D IEGO U NIF IE D S CHOOL D IST. 19 private school placement was proper under the [IDEA].” Id. at 15. The district court ’s error, in hol ding that SDUSD ha d no duty to offer L.B. a FAPE, rested upon a mis r eading of Capistrano Unified Sch ool Dis trict v. S.W, 21 F.4th 1125 (9th Cir. 2021), which was published shortly after th e relevant circum stanc es i n this case occu rred. However, Capistrano invol ved an “unusual ser ies of events. ” Id. at 1138. There, the par ents of B.W., a first - grade student, withdrew B.W. from the publi c school district an d tol d the public school that B.W. would be attending private school for the next two year s. Id. at 1131. B.W.’s parents failed to respond at all to the public school’s reque st for an IEP meeting to develop a plan and later sought reimbursement from the public school. Id. Th e public school and B.W.’s parents stipulated that a public school must develop an IEP when “parents have enrolled the student in private school and there is a cl aim f or reimbu rsem ent.” Id. at 1137. However, we held that the school was not obligated to offer B.W. an IEP under the circumstances, given that “[t]h ere is no freestanding requirement that IEPs be conducted when there is a claim fo r reimb ursement,” and “when a child has been enrolled in private school by her parents, the district only needs to prepare an IEP if the parents ask for one,” which B.W.’s parents had not done. Id. at 1138. The distric t court reason ed that “ C apistrano holds that the district need not prepare an IEP document until requested by parents, and speaks nothing of IEP meeting s,” and thus L.B. was not entit led to an off er of FAPE b ecaus e Parents did not request an IEP “document.” But the district court’s distinction between an IEP “document” and I EP “meeting”

20 L.B. V. S AN D IEGO U N IF IE D S CHOOL D IST. finds no basis in Capistrano, 7 and disr egards the fe deral and state statutory scheme which requires states to offer educational resources to disabled children that conf orm to the IEP. Moreove r, the regulations demonstrate that th e purpose of IEP meetings i s to develop and offer an IEP constituting a FAPE to children w ith disabilities. Here, Parents partici pated in the IEP proces s, and SDUS D together with Pare nts cre ated an IEP th at purported t o offer a fre e appropriate public education plan. Therefore, we conclude without diff iculty that this c ase does not remotely resem ble the “unusual series o f e vents” s et fort h in Capistrano. 21 F.4th at 1138. Under the I DEA 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. C. Whet her the IEP Off ered L.B. Constituted a FAPE Given that the district court found that S DUSD was not “obligated to offer or provide L.B. with a FAPE” when he was privately placed, the district court did not consider, on the merits, whether SDUSD ’s IEP pl an offered L.B. a F APE while L.B. was privately pla ced. SDUSD argues, however, that even though it “had no duty to offer a FAPE” while L.B. was privately placed, SDUSD nonetheless held out L.B.’s IEP as “al ways av ailabl e,” and the IEP was an offer o f FAPE, though P arents found it inadequate. Thus, giv en our holding that SDUSD was obligated to, and did, off er L.B. a n 7 Indeed, Capist rano ’s reference to “IEPs ” in its statement that “[t]here is no free standing re quiremen t that IEPs be conducted when t here is a claim for reimbursement,” 21 F.4th at 1138 (emphasi s added), conveys the fact that there is no rele vant distinct ion bet ween an I EP docum ent and IEP meeting.

L.B. V. S AN D IEGO U NIF IE D S CHOOL D IST. 21 IEP during the time peri od and circum stanc es at is sue, we remand to the district court for further proceedings regarding whether the IEP that SDUSD offe red actually provided L.B. with a FAPE during the 2020 – 21 school year while L.B. was privat ely placed. 8 D. Reimb ursement or Other Remedi es The IDEA grants a federal court “broad discretion ” to “‘ grant such rel ief as [it ] determ ines is approp riate’ .. . in light of the purpose of the [IDEA].” Burlington, 4 71 U.S. at 369 (quoting 20 U.S.C. § 1415(i)). “E ven i f a p arent prevail s on an IDEA cl aim, however, reimbur sement is not automat ic.” Anchorage, 689 F.3d at 1058. Rath er, a par ent is “entitle d to reimburse ment only if a federal court concludes both [1] that the public plac ement violated [the] IDEA [by f ailing to provide a FAPE] and [2] that the private school placement was proper under the [IDE A].” Car ter, 510 U.S. at 15; 20 U.S.C. § 1412(a)(10)(C)(ii); Cal. Educ. Code § 56174, 56175. In determ ining whether pl acem ent at a resident ial sch ool is “proper,” we fo cus on whether the placement is “necess ary for educati onal pu rp oses,” o r whether “t he pl acement is a resp onse to medic al, soci al, or emotional problems .. . quite apart from the learning process.” Ashland Sch. Dist. v. Parents of Studen t R.J., 588 F.3d 1004, 1010 (9th Cir. 2009) (quoting Clovis Unified S ch. Dist. v. Cal. Office of Admin. Hearings, 903 F.2d 635, 643 (9th Cir. 1990)). 8 SD USD argues that L. B. wai ved the a rgument that SD USD deni ed him a FAPE during his private placement, but this is sue permeates L.B.’s Opening B rief. B ecause t his i ssue was argued bef ore the ALJ and the distri ct court, a nd rais ed before us, it is not waive d. See E.M. ex rel. E.M. v. Paja ro Valley Un ified Sch. Dist., 652 F.3d 999, 1006 – 07 (9t h Cir. 2011).

22 L.B. V. S AN D IEGO U N IF IE D S CHOOL D IST. Here, b ecause t he ALJ “co ncluded t he Di strict prevai led as to all issues, he did not rea ch the issue” of whether L.B.’s resident ial pl acement s at Trai ls and Wh etst one wer e appropriate. The district court, however, considered this issue in the alterna tive, and held, in a brief, two - parag raph ruling, that “ Plaintiff fails to provide evidence as to the sufficiency of the r esidential treatment programs in which L.B. was placed.” Thus, the district court held tha t “even if [L.B.] prevail [s] on the merits, he fails as to the damages he seeks.” Because t he di strict court fail ed to det ermi ne whet her the IEP the school district offered L.B. was appropriate, if it should find upon remand that it was not, it mus t consider, in that light, the appropriateness of Parents’ private placement of L.B. Cart er ’s two - step test for reimbursement considers the appro priat eness of the p rivate pl acement only after the “federal court conclud es .. . t hat the p ublic p lacement violated [the] I DEA.” 510 U.S. 7, 15 (1993). Given that “in all Burlington reimburs ement c ases, the pa rents’ r ejecti on of the school district’s proposed IEP is the very reason for the parents’ decision to put their child in a priv ate school,” th e school’s IDEA violation (step one) contex tual izes th e appropri atenes s of th e priv ate plac ement (s tep two). Car ter, 510 U.S. at 1 3; see Burlington, 471 U.S. at 369 (reimbur sement is app ropriate “if the court ultimately determi nes that such placem ent, rather than a prop osed IEP, is proper under the [IDEA]”) (emphasis added). Here, however, because the district court did not r each the question of whether SDUSD failed to offer L.B. a FAPE, we do not know what deficiencies, if any, existed in the IEP th at SDUSD offered to L. B. that the privat e placements provided.

L.B. V. S AN D IEGO U NIF IE D S CHOOL D IST. 23 If the dis trict court de termines tha t SDUSD did n ot offer L.B. a FAPE and that the pri vate p lacem ents were appropriate, “the district c ourt then must exercise its ‘broad discretion’ and weigh ‘equitable considerations ’ to determi ne whether, an d how much, reimbursement is appropri ate.” C.B. ex rel. Baquerizo v. Garde n Grove Unified Sch. Dist., 635 F.3d 1155, 1159 (9th C ir. 2011) (quoting Carter, 510 U.S. at 15 – 16). “In ma king this determination, the district court may consider all relevant equitable factors, including, inter alia, notice to the school district be fore initiating the alterna tive placement; the existenc e of other, more suitable pla cements; the parents’ efforts in securing the a lt ernative placement; and the lev el of cooperation by the school district.” Anchorage, 689 F.3d a t 1059 (citing Forest Grove, 523 F.3d at 1088– 89). Thus, o n remand, if the district court f inds that SDUSD violated the IDEA, it ma y hold further proceedings reg arding L.B.’s right to reimbu rsement. 9 VI. CONCLUSI ON For the foregoing reasons, we reverse the decision of the district court and remand. On remand, the district c ourt is instructed to consider whether SDUSD offer ed L. B. a FAP E from October 9, 2020 to December 2, 2021, and, if not, whether tuition reimbursement, attorneys’ fee s, 9 While, as SDUSD emphasizes, Parents ’ failure t o provi de 10 - day notice to SDUSD of their pl acement of L.B. in Trails m ay lead any reimburse ment to be reduc ed or denied, 20 U.S.C. § 1412(a)(10)(C)(i ii) (bb), the determinat ion of w hether t o reduce or deny rei mburseme nt based on this or othe r equit able factor s and whether L.B. may qual ify for the “physic al harm” or “emotional harm” exceptions to the 10 - da y notice requirement, § 1412(a)(10)(C)(i v)(I) (cc), (II) (b b), are issues f or the district cou rt to resolve in the first instance.

24 L.B. V. S AN D IEGO U N IF IE D S CHOOL D IST. compensatory education, or other remedies may be appropriate. 10 T he district court may “hear additional evidence at the r equest of a party,” 20 U.S.C. § 1415(i)(2)(C)(ii), and also “ may remand [the issues] to the state he aring officer to dec ide in the first in stance,” D oug C. v. Hawaii Dept. of Educ., 720 F.3d 1038, 104 8 (9th Cir. 2013). REVERSE D and REMANDED. 10 L.B. chal lenges only t he distric t court’s d etermina tions th at SDUSD did not fai l to offer him a FAPE during his private pla cement and L.B.’ s private placements were not a ppropri ate. T hus, t he other issu es that L.B. raised before the district court are forfeited.