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Timothy O. v. Paso Robles Unified School District

United States Court of Appeals, Ninth Circuit

May 23, 2016

TIMOTHY O., individually; AMY O., individually; L. O., Timothy O. as guardian ad litem for his minor, Plaintiffs-Appellants,

         Argued and Submitted: December 7, 2015, Pasadena, California

          Appeal from the United States District Court for the Central District of California. D.C. No. 2:12-cv-06385-JGB-JEM. Jesus G. Bernal, District Judge, Presiding.


         Individuals with Disabilities Education Act

         The panel reversed the district court's judgment in favor of the defendant school district in an action brought under the Individuals with Disabilities Education Act.

         The panel held that the school district violated the procedural requirements of the IDEA by failing to formally assess a student for autism, even though this was an area of suspected disability. As a result, the school district was unable to design an educational plan that addressed the student's unique needs, and it denied him a free appropriate public education. The panel remanded for determination of an appropriate remedy.

         Marcy J.K. Tiffany (argued), Tiffany Law Group, Torrance, California, for Plaintiffs-Appellants.

         Diane Beall (argued), Kronick, Moskovitz, Tiedmann & Girard, Sacramento, California, for Defendant-Appellee.

         Sarah Erickson André, Michael P. Curtis, and Irene Tatevosyan, Nixon Peabody LLP, Los Angeles, California, for Amicus Curiae Learning Rights Law Center.

         Maureen R. Graves, Fountain Valley, California, as and for Amicus Curiae California Association of Parent-Child Advocacy.

         Selene Almazan-Altobelli, Towson, Maryland, as and for Amicus Curiae Council of Parent Attorneys and Advocates.

         Jan E. Tomsky and Chad J. Graff, Fagen Friedman & Fulfrost LLP, Oakland, California, for Amicus Curiae California School Boards Association's Education Legal Alliance.

         Before: Stephen Reinhardt, John T. Noonan, and Jacqueline H. Nguyen, Circuit Judges. Opinion by Judge Reinhardt.


         REINHARDT, Circuit Judge:

         The Center for Disease Control and Prevention estimates that nearly one in sixty-eight children has autism spectrum disorder, a neurodevelopmental disorder that is characterized, in varying degrees, by difficulty communicating and socializing and by restricted repetitive behavior, interests, and activities.[1] The disorder is present from birth, or very early in development, and affects children's ability to communicate ideas and feelings, to use their imagination, and to develop relationships with others. Every individual with autism spectrum disorder is unique, although the main characteristics in children--behavioral deficits in eye contact, responding to one's name, joint attention behavior, pretend play, imitation, nonverbal communication, and language development--are measurable by eighteen months of age.[2]

         Early diagnosis and intervention is critical for the education of children with autism. In fact, with early and appropriate intervention, as many as 25% of children with early autism will, at an early age, no longer meet the criteria for that disorder. For the remaining children, intervention in the child's preschool years greatly increases the likelihood that the child will learn to verbally communicate. Indeed, the success of early intervention techniques has lowered the number of autistic children who will remain non-verbal throughout their lifetime to fewer than 10%, down from roughly 50% in the 1980s. Early intervention also minimizes the secondary symptoms and disruptive behavior, such as aggression, tantrums, and self-injury, that are displayed by children with the disorder. If left untreated, however, symptoms of autism spectrum disorder can become more severe and require extensive and expensive therapeutic interventions.[3]

         Luke[4] is a child with autism.[5] Under the Individuals with Disabilities Education Act ( " IDEA" or " the Act" ), 20 U.S.C. § § 1400-1487, the defendant Paso Robles Unified School District (" Paso Robles" ) became responsible for providing Luke with a free appropriate public education (" FAPE" ) when he turned three years old. In order to ensure that children with disabilities receive an appropriate education tailored to their unique condition, the IDEA requires that when a school district is afforded reason to suspect that a child has a disability, it " conduct a full and individual initial evaluation" that ensures the child is assessed for " all areas of suspected disability," using a variety of reliable and technically sound instruments. 20 U.S.C. § § 1414(a)(1), (b)(2)-(3). At the time of Luke's initial evaluation, Paso Robles was aware that Luke displayed signs of autistic behavior, and therefore, autism was a suspected disability for which it was required to assess him. It chose, however, not to formally assess him for autism because a member of its staff opined, after an informal, unscientific observation of the child, that Luke merely had an expressive language delay, not a disorder on the autism spectrum. We hold that, in so doing, Paso Robles violated the procedural requirements of the IDEA and, as a result, was unable to design an educational plan that addressed Luke's unique needs. Accordingly, we hold that Paso Robles denied Luke a free appropriate public education, and remand for the determination of an appropriate remedy.

         Statutory and Regulatory Background

         The Individuals with Disabilities Education Act (originally the Education for All Handicapped Children Act), was designed to reverse a history of educational neglect for disabled children. Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 52, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005) (citing H.R. Rep. No. 94-332, p. 2 (1975)). At the time of its passage, the need for institutional reform was pervasive: millions of children with a multitude of disabilities were entirely excluded from public schools, and others, while present, could not benefit from the experience because of undiagnosed--and therefore unaddressed--disabilities. See 20 U.S.C. § 1400(c)(2).

         With the goal of remedying these systemic problems, the Act conditions the receipt of federal funds on States' maintenance of policies and procedures ensuring that a " free appropriate public education" is available to all children with disabilities between the ages of three and twenty-one. Id. § 1412(a)(1)(A).[6] A free appropriate public education requires the provision of " specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability," id. § 1401(9) & (29), as well as transportation, developmental, corrective and other supportive services required to ensure that the child benefits from that special education, id. § 1401(26).

         Identification and Evaluation of Children with Disabilities

          In order to provide a free appropriate public education to all children with disabilities States must, of course, first identify those children and evaluate their disabling conditions. Accordingly, the IDEA requires that every State have procedures in place that are designed to identify children who may need special education services. Id. § 1412(a)(3)(A). Once identified, those children must be evaluated and assessed for all suspected disabilities so that the school district can begin the process of determining what special education and related services will address the child's individual needs. See id. § § 1412(a)(7), 1414(a)-(c).

          That this evaluation is done early, thoroughly, and reliably is of extreme importance to the education of children. Otherwise, many disabilities will go undiagnosed, neglected, or improperly treated in the classroom. See id. § 1400(c). For this reason, the IDEA requires that local school districts[7] must " conduct a full and individual initial evaluation" of a child " before the initial provision of special education and related services" to that child. Id. § 1414(a)(1)(A) (emphasis added).[8] Furthermore, the IDEA and its accompanying regulations contain an extensive set of procedural requirements that are designed to ensure that this initial evaluation (as well as any subsequent reevaluations) achieves a complete result that can be reliably used to create an appropriate and individualized educational plan tailored to the needs of the child.

          First, the initial evaluation must be designed not only to determine whether the child has a disability, but also " to gather relevant functional, developmental, and academic information about the child," that can be used to determine the child's individual educational needs. 34 C.F.R. § 300.304(b)(1); 20 U.S.C. § 1414(a)(1)(C). The school district must, therefore, " ensure that-- . . . the child is assessed in all areas of suspected disability." 20 U.S.C. § 1414(b)(3)(B) (emphasis added). Anything less would not provide a complete picture of the child's needs.

          Second, the local school district must provide notice to the child's parents that describes " any evaluation procedures" that the district proposes to conduct, as well as why it has made those decisions. 20 U.S.C. § 1414(b)(1) (emphasis added); 34 C.F.R. § 300.304(a). The statute further requires, inter alia, that in conducting the evaluation, school districts must:

1. Use a " variety of assessment tools and strategies" without relying on " any single measure or assessment as the sole criterion for determining whether a child is a child with a disability or determining an appropriate educational program for the child," 20 U.S.C. § 1414(b)(2)(A) & (B);
2. Use " technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors," id. § 1414(b)(2)(C); and
3. Ensure that all assessments are conducted by trained and knowledgeable personnel, in accordance with instructions provided by the producer of the assessment, and for purposes which the assessments or measures are valid and reliable, id. § 1414(b)(3)(A).

          Upon completion of this full and individual initial evaluation, the school district shall provide a copy of the evaluative report to the child's parents. Id. § 1414(b)(4)(B). If the parents disagree with the school district's evaluation of their child, they have a right to " obtain an independent educational evaluation" or " IEE" at public expense. 20 U.S.C. § 1415(b)(1); 34 C.F.R. § 300.502.

         Creation of an Individualized Education Program (" IEP" )

          The results of the initial evaluation are critical to the next step of the process: the creation of an individualized education program or " IEP." The IEP is a written document that states the child's present levels of academic achievement and functional performance, creates measurable annual goals for the child, describes the child's progress toward meeting the annual goals, and explains the services that will be provided to the child to help him advance toward attaining his particular goals. 20 U.S.C. § 1414(d)(1)(A). It is created by a child's " IEP Team" --which consists of the child's parents, teachers, evaluators, and administrators, see generally Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 524, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007)--after the team has considered the child's strengths, the parents' concerns about the child's education, and the results of the school district's initial evaluation of the child, which (if done appropriately) provides a complete picture of the child's specific academic, developmental, and functional needs. See 20 U.S.C. § 1414(d)(3)(A)(iii); 34 C.F.R. § 300.304(b)(1).

          Although the IDEA gives discretion to school districts to create and execute appropriate educational programs for children with disabilities, the IDEA requires that parents be afforded a significant and collaborative role in the development of a child's IEP. Winkelman, 550 U.S. at 524. To that end, the IDEA contains a significant number of procedural safeguards that are designed to ensure that the child's parents have sufficient information to understand and participate meaningfully in all aspects of that discussion. See M.M. v. Lafayette Sch. Dist., 767 F.3d 842, 851 (9th Cir. 2014). It requires, among other things, that school districts provide copies of the initial evaluative report to the parents, 20 U.S.C. § 1414(b)(4), thoroughly document all information used to evaluate the educational needs of the child, 34 C.F.R. § 300.306(c)(1), and provide parents with an opportunity to examine all of their child's records. 20 U.S.C. § 1415(b)(1).

          It also requires that parents be given formal, written notice whenever the school district intends to change or refuses to change the identification, evaluation, or educational placement of their child. Id. § 1415(b)(3). That notice must not only describe the action proposed or refused by the agency, but also explain why the agency proposes or refuses to take the action, as well as the records or assessments that the agency used as a basis for its decision. 34 C.F.R. § 300.503(a) & (b).

         Further, any parent who is dissatisfied with the identification, evaluation, or educational placement of the child must have the opportunity to present a formal complaint. 20 U.S.C. § 1415(b)(6). Whenever a complaint is filed, the school district must convene a meeting with the parents and members of the IEP Team during which the parents may discuss the complaint and give the school district the opportunity to resolve it. Id. § 1415(f)(1)(B)(i). If the school district does not resolve the complaint to the satisfaction of the parents within thirty days, the parents have the right to an impartial due process hearing before an administrative law judge. Id. § 1415(f)(1)(B)(ii). Any party aggrieved by the findings and decision rendered at the hearing may appeal to the state educational agency or may b ring a civil action in federal court. Id. § 1415(i)(2)(A).[9]

         Factual Background

         Luke, an autistic child, was five years old when this case was originally filed. He displayed symptoms of a developmental disorder early in life, and in March 2009, when he was twenty-seven months old, he began to receive speech, language, and occupational therapy at the Tri-Counties Regional Center (" Tri-Counties" ). Tri-Counties, like all regional centers in California, is a nonprofit private corporation that contracts with the Department of Developmental Services to provide early intervention services for at-risk infants and toddlers.[10] California children under the age of three qualify for services at regional centers if they have a " developmental delay in one or more of the following five areas: cognitive development; physical and motor development, including vision and hearing; communication development; social or emotional development; or adaptive development" or if they suffer from " conditions of known etiology or conditions with established harmful developmental consequences." Cal. Gov't Code § 95014.

         After the age of three, local school districts become responsible for the education of children with disabilities. 20 U.S.C. § 1412. In California, however, children can also continue to receive services at private regional centers if they have " mental retardation, autism, epilepsy, cerebral palsy, or a condition that is similar to mental retardation or requires similar treatment." Cal. Welf. & Inst. Code § 4512. At least at the time of the events in this case, that meant that children with Autistic Disorder, but not any other disorder on the spectrum, were eligible for continued regional center services.[11] In contrast, under the IDEA and the California law that supplements that Act, local school districts have at all times been required to provide special education services to a much broader category of children, ...

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