9th Circuit: School District Denies FAPE to Student By Failing to Assess in All Areas of Suspected Disability
In Timothy O. v. Paso Robles Unified School District, 116 LRP 21676 (9th Cir. May 23, 2016), the 9th U.S. Circuit Court of Appeals held that a school district denied a preschooler a free appropriate public education by relying on a school psychologist’s informal observations to decide against evaluating for autism and concluding that he only had an expressive language impairment.
Prior to turning three years old, Student had received speech language and occupational therapy through the regional center. The District offered to conduct an initial assessment to determine whether he qualified for special education and related services. During the assessment, the District’s resource specialist and speech therapist observed Student but were unable to administer any standardized assessments due to his “compliance” issues. The District’s school psychologist observed Student for approximately 30-40 minutes. As a result of this observation, the psychologist concluded that there was no need to formally assess for any disorder on the autism spectrum because he observed behaviors uncharacteristic of a child on the autism spectrum. Consequently, the District concluded that Student only had an expressive language impairment, not autism.
The regional center performed a psychological assessment of Student and diagnosed Student with a disorder on the autism spectrum, and provided a copy of the report to the District prior to Student’s initial IEP meeting. Yet, the regional center’s assessment was not discussed at the IEP meeting. At Student’s initial IEP meeting, the team identified Student as a child with a disability under the category of “speech or language impairment” and developed an IEP to address those concerns. Unfortunately, Student struggled during his first two years of school (e.g., refusing to leave his mother’s side, engaging in aggressive behaviors, and refusing to talk to adults or peers). Parents obtained private assessments which diagnosed student with autism, obtained private behavioral services for Student, and withdrew him from public school.
Parents filed a due process complaint alleging in relevant part that the District violated the procedural and substantive requirements of the IDEA and the California Education Code by (1) failing to assess Student in all areas of suspected disability, specifically autism; and (2) failing to appropriately address his behavioral issues, such as refusing to speak, tantrums, and non-compliance. The hearing officer ruled in the District’s favor and the U.S. District court affirmed the hearing officer’s decision. Parents’ appealed this decision to the 9th Circuit.
The 9th Circuit explained that well before creating an IEP for Student, the District had notice that he might have a disorder on the autism spectrum. Under IDEA, the District had an affirmative obligation to formally assess Student for autism using reliable, standardized, and statutorily prescribed methods. However, the District ignored the clear evidence requiring it to do so, and instead determined that Student was not autistic based on the view of a staff member who opined, after a casual observation, that he did not display signs of autism. The Court held that this failure to formally assess Student’s disability rendered the provision of a free appropriate education impossible and left his autism untreated for years while District staff, because of a lack of adequate information, took actions that may have been counter-productive and reinforced Student’s refusal to speak.
If a local educational agency is on notice that a child may have a particular disability, it must conduct an appropriate assessment of that child for that disability regardless of the subjective views of its staff concerning the likely outcome of such an assessment. Under the IDEA, LEAs must formally assess students using reliable and standardized methods when they are alerted to the possibility that a student may have an IDEA-qualifying disability.
While this case turned on an LEA’s obligation to assess in all areas of suspected disability, it may open the door to more litigation over disputes about eligibility classifications. Although an LEA is obligated to address an eligible child’s unique needs regardless of the eligibility category, parents often have a strong interest in the specific category of eligibility of their child and disputes on this issue have been and will continue to be litigated.
Summary: The Office of Administrative Hearings (“OAH”) ruled that while a school district did not provide prior written notice that it would not conduct behavior and assistive technology (“AT”) assessments, this did not deny a student a FAPE. Tehachapi Unified School District (2015) 116 LRP 256.
Facts: Student was eligible for special education as a child with autism. Student moved to California from Alabama in January 2014. Student enrolled in the District and several IEP meetings were convened during the end of the 2013/2014 school year to review Student’s existing IEP and discuss Student’s appropriate placement, assessments, and services.
Student’s Alabama IEP indicated that Student needed assistive technology (“AT”) devices and/or services, but no such devices or services were listed in the IEP. However, Parents did not request an AT assessment at any of Student’s IEP meetings.
Similarly, Parents did not request a behavior assessment at the first of several IEP meetings, and only raised the issue at an IEP meeting about a month before the end of the school year. The IEP team discussed the appropriateness of conducting a behavior assessment. The IEP team concluded that a behavior assessment was inappropriate at that time because (1) the District should start with the least restrictive approach before moving to a full behavior assessment, (2) there was not enough time left in the school year to conduct the full behavior assessment, (3) Student was still in transition from Alabama to his new placement and needed more time to adjust, and (4) Student only had one serious behavior incident since enrolling at the District.
The District never provided prior written notice that it was not going to conduct an AT or behavior assessment, and Student’s IEP document did not explain either decision.
Student argued that he was denied a FAPE because the District failed to give Parents prior written notice that the District would not conduct AT or behavior assessments.
Outcome: OAH held that the District was not required to provide prior written notice regarding an AT assessment because Parents never requested an assessment. OAH also held that prior written notice should have been provided regarding behavior assessment after Parents first raised the issue with the IEP team. In this case, the failure to provide prior written notice was a procedural violation of the IDEA, but it did not deny Student a FAPE.
Discussion: The IDEA requires a local educational agency (“LEA”) to provide “prior written notice” whenever the LEA proposes or refuses to initiate or change “the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.” 20 U.S.C. § 1415(b)(3); 34 C.F.R. § 300.503(a); Educ. Code § 56500.4(a). Prior written notice is required “to ensure that the parents of a child with a disability are both notified of decisions affecting their child and given an opportunity to object to these decisions.” C.H. v. Cape Henlopen School Dist. (3rd Cir. 2010) 606 F.3d 59, 70.
An appropriate prior written notice must contain, among other things, (1) a description of the action proposed or refused by the agency, (2) an explanation for the action, and (3) a description of the assessment procedure or report which is the basis of the action. 34 C.F.R. § 300.503(a); Ed. Code, § 56500.4(b). An IEP document can serve as prior written notice if the IEP contains the required content. 71 Fed.Reg. 46691 (Aug. 14, 2006).
Since failure to issue a prior written notice is a procedural violation of the IDEA, a student has the burden to show that the procedural violation either (1) impeded the student’s right to a FAPE, (2) significantly impeded a parent or legal guardians’ opportunity to participate in the decision-making process regarding the provision of a FAPE, or (3) deprived the student of educational benefits. 20 U.S.C. § 1415(f)(3)(E); Ed. Code §§ 56505(f), (j).
In this case, the District was not required to issue prior written notice related to an AT assessment because Student’s Alabama IEP did not identify any AT devices or services, and Parents never requested an AT assessment.
Once Parents raised the issue of a behavior assessment, the District should have issued prior written notice regarding its decision not to assess Student. The IEP document could have served this purpose, but it failed to contain the required content: it stated that a behavior assessment was not appropriate at the time, but did not explain the basis for the decision.
However, Student ultimately failed to show that this procedural violation constituted a denial of FAPE. For one, Parents participated in the IEP meeting and the IEP team fully explained its decision to not conduct a behavior assessment at that time. Since Parents were fully informed of the reasons for the denial, the failure to provide prior written notice did not significantly impede Parents’ opportunity to participate in the decision-making process.
Practice Tips: When in doubt, serve parents with a prior written notice. Procedural violations of the IDEA do not always translate into denials of FAPE, but LEAs should strive to comply with every requirement in the IDEA for the benefit of their students and themselves.
When a new student enrolls with an existing IEP, it pays to carefully review the document. In this case the parents never requested an assistive technology (“AT”) assessment, but the student’s existing IEP from Alabama referred generally to a need for AT devices or services. The LEA was not obligated to implement services which were not specified in IEP. However, the LEA was lucky that OAH did not conclude that it should have conducted an AT assessment based on the Alabama IEP. OAH could decide differently in a similar situation.
On April 14, 2016, the California Court of Appeals overturned the June 10, 2014, decision in Vergara v. California. The appeals court overruled the Superior Court’s ruling that the Education Code’s schemes for certificated employee tenure, dismissals, and seniority-based layoffs are unconstitutional.
By way of background, Vergara et al. v. State of California, was originally initiated by Ms. Vergara, a California public school student, and eight other students. They claimed that the state’s laws granting tenure to certificated teachers after two years, establishing detailed rules for certificated employee terminations, and establishing seniority-based “last in, first out (LIFO)” layoffs violated their right to the same quality public education offered to other public school students throughout the state.
They argued, and the trial court judge agreed, that these laws protect “grossly ineffective” teachers from termination or layoff, and these teachers have a strongly negative impact on their students’ education and future earnings potential. These teachers, Vergara argued, are shuffled from school to school and wind up in the lowest-income, worst performing schools which disproportionately serve minority students.
The Court of Appeals found that Vergara and her fellow plaintiffs failed to prove that any of the statutes caused a “certain group of students” to receive an inferior education. The Court held that it is the teacher’s assignment by school administrators, guided by collective bargaining agreements and teacher preference, which creates an increased likelihood that ineffective teachers would be assigned to a specific student group over others. Since the statutes have no effect on teacher assignment, the Court found no “inevitable” constitutional violation.
For local educational agencies (LEAs) adhering to these statutes, the Court’s ruling will have little effect on how teacher tenure is applied. However, the Court’s emphasis on teacher assignment could signal the direction of future litigation by opening the door to challenge administrators who assign poorly evaluated teachers to struggling schools that serve low-income and/or minority students. The ruling serves as a reminder to LEAs to carefully evaluate teachers during their probationary periods and ensure that struggling schools are staffed with effective teachers.
High school graduation represents a particular, important milestone for students with disabilities. Along with the pomp and circumstance, graduation is an event that requires local educational agencies (“LEAs”) to adhere to certain procedural requirements regarding students with disabilities. The end of the school year is not the time for school staff to develop “senioritis.” Here are a few reminders of key requirements when a student with a disability graduates and receives a diploma:
- Convene an IEP meeting prior to graduation and termination of services to ensure that graduation requirements have been met.
- Graduation with a regular high school diploma constitutes a change in placement that requires the LEA to provide parents with prior written notice of its intent to graduate the student within a reasonable time before graduation.
- There is no requirement to reevaluate a student before termination of a child’s eligibility due to graduation with a regular high school diploma. Furthermore, LEAs are not required to reevaluate a student for the sole purpose of securing accommodations for outside tests such as the SAT/ACT.
- Ensure that IEPs include measurable, postsecondary goals in the areas of: training, education, employment, independent living skills (if appropriate), and appropriate transition services to assist the child in reaching these post-secondary goals.
- LEAs must provide the student with a summary of the child’s academic achievement and functional performance, including recommendations on how to assist the child in meeting the child’s post-secondary goals.
- IDEA relieves an LEA of the obligation to provide a free appropriate public education to students who graduate with a regular high school diploma. However, LEAs are obligated to continue to make available a free appropriate public education to students who have not been awarded a regular high school diploma until the student becomes 22 years of age.
- A student graduating from high school does not cut off the LEA’s obligation to remedy a past failure to offer FAPE. Compensatory education may be available for students with disabilities who have graduated from high school with a regular diploma if they can establish that the LEA denied FAPE when they were eligible for IDEA services, and can establish a need for compensatory services.
- LEAs are prohibited from developing an IEP that extends eligibility, and in no event may a pupil be required or allowed to attend school beyond graduating with a regular high school diploma solely because the pupil has not met his or her goals or objectives.
- A student receiving a certificate of achievement or completion has the right to participate in graduation ceremonies and any school activity related to graduation. LEAs may, but are not required to, award a certificate of achievement or completion. However, if participating in graduation-related activities is specified in a child’s IEP (as part of her participation in integrated activities at school), the LEA must implement the IEP and allow the student to participate in the graduation activities.
- Choose accessible graduation venues. IEPs and 504 plans should serve as a guide to ensure equitable participation by students with disabilities in graduation ceremonies and other end-of-year activities.