NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 6 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

REGINA MARIE PANGERL, individually No. 17-15985 and on behalf of Tiffany Pangerl, D.C. No. 2:14-cv-00836-JJT Plaintiff-Appellant,

v. MEMORANDUM*

PEORIA UNIFIED SCHOOL DISTRICT,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona John Joseph Tuchi, District Judge, Presiding

Argued and Submitted June 12, 2019 San Francisco, California

Before: SCHROEDER and M. SMITH, Circuit Judges, and RAKOFF,** District Judge.

T.P. received special education services as student in the Peoria Unified

School District (the “District”). T.P.’s mother, Regina Pangerl, individually and

on T.P.’s behalf, appeals from the district court’s decision affirming the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. determination of an Administrative Law Judge (“ALJ”) that the District did not

deny T.P. a free appropriate public education (“FAPE”) under the Individuals with

Disabilities Act (“IDEA”). We have jurisdiction under 28 U.S.C. § 1291, and we

review the district court’s factual findings for clear error and its legal conclusions,

including whether an individualized education plan (“IEP”) provides a FAPE, de

novo. Doug C. v. Haw. Dep't of Educ., 720 F.3d 1038, 1042 (9th Cir. 2012).1 We

affirm.

1. The district court properly concluded that the District did not seriously

infringe T.P.’s parents’ opportunity to participate in the IEP’s creation when it

continued the November 29, 2012 IEP meeting for 20 minutes after T.P.’s parents

left. Procedural inadequacies constitute a denial of FAPE only if they “result in the

loss of educational opportunity or seriously infringe parent’s opportunity to

participate in the IEP formulation process.” Id. at 1043 (finding a denial of FAPE

where the school refused to reschedule an IEP meeting to accommodate an ill

parent and completed the IEP entirely without parental input). T.P.’s parents

participated in the IEP meeting, with two parental advocates, for over two hours.

One of the two advocates announced plans to leave the meeting after two hours

due to a personal conflict, but the parents never suggested that they themselves had

1 Unless otherwise indicated, case quotations omit all internal quotation marks, alterations, footnotes, and citations.

2 17-15985 any conflict that would prevent them from staying. The District’s representatives

stated clearly that they planned to continue the meeting to finish an IEP that day to

ensure that a new IEP was in place before the current IEP expired. Parents’

advocates acknowledged that they understood that the District planned to complete

the IEP that day. The District continued the meeting for 20 minutes after parents

left to finish the IEP, and then reconvened with parents later to make changes to

the IEP with parents’ participation.

As parents participated in the vast majority of the meeting and then chose to

depart, with the knowledge that the District would continue to finish the IEP and

without expressing any reason why they could not stay, the continuation of the

meeting for 20 additional minutes did not constitute a serious infringement of their

right to participate.

2. The district court properly concluded that the District did not deny

T.P. a FAPE by denying her extended school year (“ESY”) services in summer

2013. Under the IDEA, schools are required to provide ESY services only if the

child’s IEP team determines that the services are necessary for a FAPE. N.B. v.

Hellgate Elementary Sch. Dist., ex rel. Bd. of Directors, Missoula Cty., Mont., 541

F.3d 1202, 1211 (9th Cir. 2008). “A claimant seeking an ESY must satisfy an even

stricter test, because providing an ESY is the exception and not the rule under the

regulatory scheme.” Id. Appellants argue that denial of ESY was a denial of a

3 17-15985 FAPE because the IEP team made the decision after parents left the November

2012 meeting, but, as discussed above, this is a procedural violation that did not

significantly infringe on parents’ participation, and appellants have failed to show

that any procedural violation resulted in a loss of an educational opportunity, given

that they have not shown that ESY services were warranted.

3. The district court properly concluded that the ALJ’s late issuance of

his decision, in violation of the IDEA’s requirement that a final decision be issued

within 75 days of the filing of a complain, did not deny T.P. a FAPE. While the

decision was concededly late, this is a procedural error, and, as appellants

presented no evidence that it resulted in the loss of any educational opportunity, it

is not a denial of a FAPE. See Doug C., 720 F.3d at 1043.

4. The district court properly concluded that T.P. was not denied a FAPE

by the transition plans created as a part of her IEP. The ALJ reasonably found that,

while the transition plans were vague, their vagueness was primarily the result of

T.P.’s own lack of readiness to make more specific decisions at that time and that

the “IEPs were individualized to Student’s generally stated preferences and

interests at the time.” Accordingly, at the time that they were drafted, the

transition plans were reasonably calculated to enable T.P. to make appropriate

progress in the light of her specific circumstances. See Endrew F. v. Douglas Cty.

Sch. Dist., RE-1, 137 S. Ct. 988, 1001 (2017) (holding that “[t]he adequacy of a

4 17-15985 given IEP turns on the unique circumstances of the child for whom it was

created”).

5. The district court properly concluded that the District’s provision of

speech and language services did not deny T.P. a FAPE. The District discontinued

speech therapy services required by the IEP at parents’ request when T.P. objected

to the specific speech therapists provided. The ALJ found, and the district court

concurred, that the therapists provided were professional and adequate, a finding is

supported by facts in the record. The IDEA provides no entitlement to parents’

choice of service providers. See, e.g., A.B. v. Lawson, 354 F.3d 315, 330 (4th Cir.

2004) (“The issue is not whether the [parents' program or preferred provider] is

better, or even appropriate, but whether [the district] has offered an appropriate

program for the child…”). Accordingly, the District did not deny T.P. a FAPE by

failing to give additional choices for providers when adequate providers were

available.

6. The district court properly concluded that 40 hours of math instruction

was adequate compensation for a lapse in the provision of math instruction to T.P.

as provided for in the IEP. There is no obligation under the IDEA to provide day-

for day compensation for time missed; instead, appropriate relief may be

determined based on a fact-specific assessment. See Parents of Student W. v.

Puyallup Sch. Dist., No. 3, 31 F.3d 1489, 1497 (9th Cir. 1994). The ALJ

5 17-15985 reasonably determined that 40 hours of one-on-one instruction was appropriate

compensation based on the testimony of two different expert witnesses.

AFFIRMED.

6 17-15985

FILED

Regina Pangerl v. Peoria Unified Sch. Dist., No. 17-15985

AUG 6 2019

Schroeder, Circuit Judge, concurring: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I do not agree with my colleagues insofar as they suggest there was no error

in the District’s continuing the IEP meeting after the parents and their advocates

had to leave. The IEP was not complete at that time, and the District knew the

parents did not want the IEP completed in their absence. The majority attempts to

minimize the effect of the absence by stressing that the rump meeting lasted only

20 minutes. The error, however, was in going forward without the parents’ input.

See Doug C. v. Hawaii Dept. of Educ., 720 F.3d 1038, 1045 (9th Cir. 2013).

Doubtless had the parents been present while the important remaining subjects

were discussed, completion of the IEP would have taken longer.

I nevertheless agree with the result, because there was much accomplished

while the parents were present, and there were follow-up meetings the parents did

attend. I therefore cannot conclude on the basis of this record that the procedural

error led to a serious violation of parental participation or a loss of educational

opportunity that resulted in the denial of a FAPE. See id. at 1047 (citing Shapiro v.

Paradise Valley Unified Sch. Dist., 317 F.3d 1972, 1079 (9th Cir. 2003)).