Special Education — Procedural Violations

SPECIAL EDUCATION — PROCEDURAL VIOLATIONS

D.O. v. Escondido Union School District – Federal Court of Appeals, Ninth Circuit (Case No. 19–56043)

MEMBER(S) INVOLVED: Escondido Union School District

IMPORTANCE OF STATEWIDE ISSUE:

While school districts must provide a free appropriate public education (FAPE) to eligible students, this case provided an opportunity to clarify what happens when there is a procedural violation of the Individuals with Disabilities Education Act (IDEA) and the violation itself does not necessarily result in the denial of an educational benefit or opportunity. If the court had found that a procedural violation of IDEA alone equates to a denial of FAPE, it could have exposed local educational agencies (LEAs) to increased liability and further complicate their ability to meet the educational needs of students with disabilities.

SUMMARY OF THE CASE:

Plaintiff student (D.O.) sued Escondido Union SD for a denial of FAPE, primarily based on a procedural violation of IDEA. The student alleged that he was denied FAPE because of a four-month delay by the school in offering to conduct an autism assessment after the school learned of an existing children’s hospital assessment that indicated the student met criteria for autism spectrum disorder.

Ruling for the district, the Administrative Law Judge (ALJ) found that: 1) The four-month delay was not a procedural violation because it was a reasonable delay; and 2) Even if it was a procedural violation, the student failed to prove that it denied him FAPE. The U.S. District Court for the Southern District of California overturned the ALJ’s ruling, finding that the student was denied an educational benefit since his individualized education program (IEP) goals “were likely inappropriate [during the delay] because they were made without sufficient evaluative information about his individual capabilities as a potentially autistic child.” The court found that because the district waited four months to begin the process of gathering information that might reflect an autism diagnosis that reflected different needs than the existing IEP, it was impossible for the district to provide FAPE.

In 2020, Escondido Union SD appealed to the Ninth Circuit, arguing that the district court essentially ruled that a procedural violation alone was a per se denial of a FAPE, contrary to current law under which a procedural violation would be held to deny a student a FAPE only if it denies the student an educational benefit or opportunity or if it seriously infringes on a parent’s right to meaningfully participate in the IEP formulation process.

The ELA filed an amicus brief in support of the district before the Ninth Circuit on May 6, 2020.

On March 26, 2021, the Ninth Circuit Court of Appeals dismissed the appeal for a lack of jurisdiction, finding that the Office of Administrative Hearings decision regarding the remedy in this case did not create a final judgment in the district court that the appellate court could review.

After the Ninth Circuit Court of Appeals dismissed Escondido Union SD’s appeal for lack of jurisdiction on a procedural issue, the school district obtained a final judgment from the lower court and refiled its appeal before the Ninth Circuit Court of Appeals on Sept. 22, 2021. The appeal again argued that under current law, a procedural violation would be held to deny a student a FAPE only if it denies the student an educational benefit or opportunity or if it seriously infringes on a parent’s right to meaningfully participate in the IEP formulation process. The ELA filed another amicus brief in support of the district on Sept. 29, 2021.

CURRENT STATUS AND/OR OUTCOME:

On Jan. 31, 2023, the Ninth Circuit Court of Appeals issued its opinion. The court addressed two issues in its opinion: 1) Whether it was a procedural violation for the district to delay four months between being put on notice of a possible autism diagnosis and offering an autism assessment; and 2) If the delay in assessment was a procedural violation, whether it denied D.O. a FAPE. The court held in favor of the district on both issues. The court held that the district’s duty to propose an assessment of D.O. for autism on Dec. 5, 2016, when an outside therapist informed the district that she had assessed D.O. and determined he appeared to meet the criteria for autism spectrum disorder. However, the court held that the district’s delay in providing an assessment plan until April 7, 2017, did not constitute a procedural violation of the IDEA. The court focused on the fact that the district needed to review the therapist’s report before conducting an autism assessment because the use of certain autism testing instruments too frequently could result in invalid results. The district needed to know what testing instruments the therapist used so that they could use different instruments, as needed, but D.O.’s mother did not provide them with the report, or provide consent for the district to obtain the report, until July 2017. The court disagreed with the district court’s findings that the reason for the delay was that district staff were skeptical about the autism determination and that the district did not make sufficient attempts to obtain the report from the mother. The court analogized other cases in which similar delays had been determined not to be a violation and distinguished cases in which a violation had been found where an LEA refused to provide an assessment, rather than delay in providing an assessment. The court also held that California’s 15-day timeline to provide assessments was not triggered until D.O.’s mother requested an assessment, in writing, in March 2017, after which the district provided an assessment plan.

The court further held that, even if there had been a procedural violation of the IDEA, the violation (the delay in assessing D.O., which occurred in October 2017) did not constitute a denial of FAPE. This was because D.O.’s educational program would not have been different had the assessment been conducted earlier. The district’s assessment determined that D.O. was not eligible for special education services under the category of autism, a finding D.O.’s parent did not challenge, and his educational program (which was quite robust) remained the same. The court also held that the delay did not seriously infringe on D.O.’s mother’s opportunity to participate in the IEP process and upheld the finding of the ALJ below that the mother’s own conduct caused the delay, in her failure to provide the outside therapist’s report to the district and the fact that she did not consent to the assessment until August 2017, several months after the district presented the assessment plan.

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