9th Circuit: School District Denies FAPE to Student By Failing to Assess in All Areas of Suspected Disability


Author: Heather Edwards, Attorney at Law

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.


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