D.O. v. Escondido Union School Dist. ( 2023 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    D.O., By and Through His Guardian                  No. 21-55498
    Ad Litem Sonya Walker,
    Plaintiff-Appellee,                    D.C. No.
    3:17-cv-02400-
    v.                                            BEN-MDD
    ESCONDIDO UNION SCHOOL
    DISTRICT,                                            OPINION
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Southern District of California
    Roger T. Benitez, District Judge, Presiding
    Argued and Submitted July 13, 2022
    Pasadena, California
    Filed January 31, 2023
    Before: Mark J. Bennett and Gabriel P. Sanchez, Circuit
    Judges, and Elizabeth E. Foote, * District Judge.
    Opinion by Judge Bennett;
    Partial Concurrence and Partial Dissent by Judge Sanchez
    *
    The Honorable Elizabeth E. Foote, United States District Judge for the
    Western District of Louisiana, sitting by designation.
    2              D.O. V. ESCONDIDO UNION SCHOOL DIST.
    SUMMARY **
    Individuals with Disabilities Education Act
    The panel reversed the district court’s summary
    judgment in favor of student D.O. in his action under the
    Individuals with Disabilities Act against Escondido Union
    School District.
    An administrative law judge ruled that Escondido’s
    delay in assessing D.O. for autism was neither a procedural
    violation of the IDEA nor a denial of a free appropriate
    public education, or FAPE. The district court reversed the
    ALJ in part, holding that Escondido’s four-month delay in
    assessing D.O. constituted a procedural violation of IDEA
    and that this procedural violation denied D.O. a FAPE by
    depriving him of educational benefits.
    The panel held that it had jurisdiction because Escondido
    timely appealed the district court’s final judgment, and there
    was no indication that the district court lacked jurisdiction.
    Reviewing de novo, the panel reversed the district
    court’s determination that Escondido’s delay in proposing to
    assess D.O. was a procedural violation of IDEA. The panel
    concluded that Escondido’s duty to propose an assessment
    in an area of suspected disability was triggered on December
    5, 2016, when Escondido was put on notice that D.O. might
    be autistic by Dr. Margaret Dyson, who had completed an
    assessment and report. The panel concluded that
    Escondido’s subsequent four-month delay in proposing an
    **
    This summary constitutes no part of the opinion of the court.   It has
    been prepared by court staff for the convenience of the reader.
    D.O. V. ESCONDIDO UNION SCHOOL DIST.             3
    autism assessment plan did not violate any California
    statutory deadlines or any federal statutory timeline. The
    panel held that Escondido’s delay did not constitute a
    procedural violation of IDEA because Escondido did not fail
    to assess D.O., and some delay in complying with IDEA’s
    procedural requirement is permissible. The panel held that
    the district court erred in determining that Escondido’s delay
    was due, at least in part, to the subjective skepticism of its
    staff. Distinguishing Timothy O. v. Paso Robles Unified
    Sch. Dist., 
    822 F.3d 1105
     (9th Cir. 2016), the panel
    concluded that Escondido staff’s skepticism was based on
    substantial and scientific reasons. The panel held that the
    district court also erred in finding that Escondido’s efforts to
    obtain Dr. Dyson’s report from D.O.’s mother were
    “minimal,” and Escondido properly pursued the report as
    useful to its own assessment.
    The panel also held that even if the delay were a
    procedural violation of FAPE, it did not deny D.O. a
    FAPE. The panel concluded that Escondido’s delay did not
    deprive D.O. of educational benefits, and D.O.’s
    individualized education program, or IEP, was reasonably
    calculated to provide D.O. educational benefits. Further,
    Escondido’s delay did not deprive D.O. of educational
    opportunity, and it did not seriously infringe on D.O.’s
    mother’s opportunity to participate in the IEP formulation
    process.
    The panel held that the appeal was not moot, regardless
    of whether Escondido could recoup the $3,500 it paid to
    D.O. as reimbursement for an independent psychological
    evaluation.
    4            D.O. V. ESCONDIDO UNION SCHOOL DIST.
    The panel reversed the district court’s judgment and
    remanded, directing the district court to enter judgment in
    accordance with this opinion.
    Concurring in part and dissenting in part, Judge Sanchez
    concurred in the majority’s holding that Escondido’s delay
    in proposing to assess D.O. for autism did not deny him a
    FAPE. Judge Sanchez dissented, however, from the
    majority’s conclusion that Escondido’s failure to act for four
    months was nonetheless reasonable under the IDEA because
    D.O.’s mother was uncooperative. Judge Sanchez wrote
    that this court’s precedent is clear that the school district has
    an independent legal obligation to promptly assess a child
    for a suspected disability, even when the parent does not
    cooperate in full or makes promises they do not keep. Judge
    Sanchez wrote that he would affirm the district court’s
    determination that Escondido’s four-month delay in
    initiating the process to assess D.O. for autism constituted a
    procedural violation of IDEA, and he would reverse its
    determination that this procedural violation resulted in the
    denial of a FAPE.
    COUNSEL
    Deborah R.G. Cesario (argued) and Molly E. Thurmond,
    Hatch & Cesario, San Diego, California, for Defendants-
    Appellants.
    Matthew H. Storey (argued) and Jennifer W. Holzman, Law
    Office of Matthew Storey APC, San Diego, California;
    David G. Greco, RMO LLP, Los Angeles, California, for
    Plaintiff-Appellee.
    D.O. V. ESCONDIDO UNION SCHOOL DIST.          5
    Summer D. Dalessandro and Tiffany M. Santos, Fagen
    Friedman & Fulfrost LLP, Carlsbad, California; Robert
    Tuerck and Michael Ambrose, California School Boards
    Association’s Education Legal Alliance, West Sacramento,
    California; for Amicus Curiae California School Boards
    Association’s Education Legal Alliance.
    OPINION
    BENNETT, Circuit Judge:
    Escondido Union School District (“Escondido”) appeals
    the district court’s ruling that Escondido denied D.O. a Free
    Appropriate Public Education (“FAPE”) by failing to timely
    assess him for autism. On December 5, 2016, Dr. Margaret
    Dyson, an external clinical psychologist retained by D.O.’s
    mother, notified Escondido that she had completed an
    assessment of D.O. and, based on the assessment, D.O.
    appeared to meet the criteria for autism spectrum disorder.
    That day, Escondido asked D.O.’s mother to provide Dr.
    Dyson’s report evaluating D.O. once she received it, which
    D.O.’s mother agreed to do. Escondido needed to review
    the report before conducting its own assessment of D.O. for
    autism because certain tests for autism would return invalid
    results if administered more than once in a year.
    Even though D.O.’s mother stated that she received the
    report “shortly after” December 5, 2016, she did not give the
    report to Escondido until July 5, 2017. Counsel for D.O.
    and his mother conceded that Escondido had no way of
    getting Dr. Dyson’s report without D.O.’s mother’s consent.
    Transcript of Oral Argument at 14:15–14:52. In April
    2017, Escondido again requested a copy of Dr. Dyson’s
    6           D.O. V. ESCONDIDO UNION SCHOOL DIST.
    report in a letter to counsel. Also in April 2017, D.O.’s
    mother filed a complaint alleging that Escondido’s delay in
    assessing D.O. for autism was a procedural violation of the
    Individuals with Disabilities Education Act (“IDEA”) and a
    denial of a FAPE. Escondido proposed to assess D.O. for
    autism in April 2017, but D.O.’s mother did not consent to
    an assessment until August 2017. Escondido’s assessment
    completed in October 2017 found that D.O. did not qualify
    for special education for autism. D.O.’s mother did not
    dispute or challenge that determination.
    In October 2017, an administrative law judge (“ALJ”)
    ruled that Escondido’s delay in assessing D.O. for autism
    was neither a procedural violation of IDEA nor a denial of a
    FAPE. The district court reversed the ALJ in part, holding
    that Escondido’s four-month delay in assessing D.O.
    constituted a procedural violation of IDEA and that this
    procedural violation denied D.O. a FAPE by depriving him
    of educational benefits. We have jurisdiction under 
    28 U.S.C. § 1291
     and reverse the district court’s determination
    that Escondido’s delay in proposing to assess D.O. was a
    procedural violation of IDEA that denied him a FAPE. We
    also hold that even if the delay were a procedural violation
    of IDEA, it did not deny D.O. a FAPE.
    I.   Facts and Proceedings Below
    D.O. was born in 2007. D.O. has been educated in
    Escondido since “the summer before he started
    kindergarten” in September 2012 and has received special
    education services in the District ever since.       IDEA
    requires local educational agencies to conduct an “initial
    evaluation . . . to determine whether a child . . . [has] a
    disability,” 
    20 U.S.C. § 1414
    (a)(1)(C), “before the initial
    provision of special education and related services,” 
    id.
     §
    D.O. V. ESCONDIDO UNION SCHOOL DIST.                 7
    1414(a)(1)(A). After an initial evaluation, a “reevaluation
    . . . shall occur . . . not more frequently than once a year” and
    “at least once every 3 years.” Id. § 1414(a)(2)(B). D.O.’s
    first evaluation in 2012 indicated he qualified for special
    education because of his attention deficit hyperactivity
    disorder.       No determination was made then that he
    qualified for special education for autism, and his mother
    never asked Escondido to make an autism determination
    until 2017.
    D.O. demonstrated a need for, and accordingly received,
    substantial mental health services and behavioral
    intervention from Escondido, such as “daily classroom
    support and . . . individual and group counseling” from a
    mental health therapist, “a behavior support plan[] and . . .
    classroom-based behavioral intervention,” as well as
    “specialized academic instruction” and “occupational
    therapy.” 1     D.O.’s 2015 reevaluation did not note
    1
    The ALJ described the services that D.O. received from Escondido as
    follows:
    Through [Escondido]’s Intensive Behavior Intervention
    program at Miller Elementary, [D.O.] was frequently seen by
    two     medical     doctors    who     provided   psychiatric
    assessment/diagnosis and medication prescription and
    monitoring. He was supported by a licensed marriage and
    family therapist who assessed and diagnosed him annually, and
    provided him mental health services daily. He was supported
    by a rehabilitation/behavior therapist. A school psychologist
    conducted a triennial reevaluation, a functional behavior
    assessment, and an educationally related mental health
    assessment with social-emotional functioning assessment of
    [D.O.] [D.O.] had special education and general education
    teachers observing him daily. None of these professionals, in
    the four years they had been working with [D.O. up to
    8           D.O. V. ESCONDIDO UNION SCHOOL DIST.
    indications of autism.
    D.O. also exhibited aggressive behavior, including
    yelling, screaming “verbal threats,” and punching and
    kicking adults and peers.         This aggressive behavior
    escalated in April 2016, when D.O. was eight years old, and
    he was hospitalized at Rady Children’s Hospital for
    psychiatric issues, including verbal and physical aggression,
    property destruction, elopement, and hallucinations, in June
    and July 2016.        Following hospitalization, D.O. was
    referred to therapy with Dr. Dyson, who worked at Rady.
    An unnamed person at the hospital, whom D.O.’s mother
    identified only as “the crisis lady who was working with
    [D.O.],” suggested to D.O.’s mother that D.O. may be
    autistic, and D.O.’s mother asked Dr. Dyson to assess him
    for autism. Nothing in the record suggests that D.O.’s
    mother or anyone else contemporaneously told Escondido
    about the autism assessment request.
    By May 2016, D.O. was also experiencing symptoms of
    psychosis, including paranoia and hallucinations, and was
    taking medication to control such symptoms. A functional
    behavior assessment report providing examples of these
    symptoms was submitted to Escondido.
    D.O.’s escalating aggression caused Escondido to
    conduct an Educationally Related Mental Health Services
    (“ERMHS”) assessment in October 2016. As part of the
    assessment, Dr. Dyson reported to Escondido staff that D.O.
    “presents with unspecified psychosis and Disruptive Mood
    Dysregulation Disorder,” but “Dr. Dyson did not mention . .
    . any suspicion she had that [D.O.] might have autism, any
    December 5, 2016], . . . had any suspicion that he might have
    had autism.
    D.O. V. ESCONDIDO UNION SCHOOL DIST.                  9
    concern expressed to her that [he] might have autism, or that
    she was evaluating or had been asked to evaluate [him] for
    possible autism.” Escondido staff members who provided
    D.O. with various services testified before the ALJ that the
    symptoms that D.O. exhibited at this time were inconsistent
    with an autism diagnosis. Salvatore D’Amico, the school
    psychologist responsible for assessing D.O., testified that
    D.O.’s symptoms “look[] more like a mood disorder, rather
    than an autism spectrum disorder.” D’Amico was present
    in D.O.’s classroom “at least two times a month” in the
    2015–2016 school year and “three times a month” in the
    2016–2017 school year. Rania Garva was a mental health
    therapist at Escondido who “interacted almost daily” with
    D.O. and provided “daily classroom support and weekly or
    bi-weekly individual and group counseling” to him.
    Garva, who was qualified to diagnose “individuals with a
    mood disorder” as well as “individuals with autism,”
    testified that she disagreed with an autism diagnosis for D.O.
    because his behavior, including “physical assault, stealing,
    [and] reckless behavior” was “not consistent with . . . a child
    that is on the autism spectrum.” Garva diagnosed D.O.
    with Bipolar I disorder under the DSM IV and testified that
    the diagnosis would not have changed under the DSM V.2
    Escondido did not consult Dr. Dyson regarding D.O. before
    the 2016 ERMHS assessment.
    2
    Relying on the same testimony, the ALJ found that “[n]one of the
    educational, mental health, behavioral health, or medical professionals
    who had worked with [D.O.] through [Escondido] had observed in
    [D.O.] characteristics or symptoms of autism, and none suspected autism
    as an area of disability for [D.O.]” The ALJ specifically cited certain
    symptoms inconsistent with autism. For example, “[w]hen [D.O.]
    demonstrated typical behavior and social interaction, such as in his
    general education math class, he was entirely appropriate.”
    10            D.O. V. ESCONDIDO UNION SCHOOL DIST.
    On December 5, 2016, D.O.’s IEP team met to review
    the results of the ERMHS assessment. The parties disputed
    some of what was said during that meeting, but the ALJ
    found that Dr. Dyson informed Escondido that “she had
    completed an assessment and based on the assessment,
    [D.O.] appeared to meet criteria for Autism Spectrum
    Disorder.” At the meeting, Tracy Lane, an Escondido staff
    member, asked D.O.’s mother “for [Dr. Dyson’s] report to
    be provided to [Lane] once . . . available.” D.O.’s mother
    conceded that she “w[as] to provide a copy to [Escondido].”
    Dr. Dyson’s report recommended that “[D.O.’s] treatment be
    modified to include interventions related to [autism],” and
    encouraged D.O.’s mother “to share these results with . . .
    [D.O.’s] school and IEP team.” 3 Even though Dr. Dyson’s
    report is dated December 5, 2016, and D.O.’s mother
    conceded that she received it “shortly after” the IEP meeting
    on that day, D.O.’s mother did not give the report to
    Escondido until July 5, 2017. When asked why she did not
    “share this report to anyone from Escondido once it was
    made available to [her],” D.O.’s mother said, “I’m not sure.”
    On March 28, 2017, D.O.’s mother filed an IDEA due
    process complaint against Escondido with California’s
    Office of Administrative Hearings (“OAH”).              The
    complaint alleged that D.O. had autism and that Escondido
    failed “to timely assess [D.O.] in all areas of suspected
    disability” but it did not specifically claim that Escondido
    failed to assess D.O. for autism. On April 7, 2017,
    3
    Dr. Dyson’s report was not addressed to Escondido. The report
    indicates that neither Dr. Dyson nor the children’s hospital where D.O.
    was hospitalized ever sent the report to Escondido directly because the
    report encourages “[D.O.’s mother] to share these results with [his]
    school and IEP team.”
    D.O. V. ESCONDIDO UNION SCHOOL DIST.          11
    Escondido responded to the complaint and also sent the
    attorney for D.O. and his mother a proposed autism
    assessment plan. D.O.’s mother did not consent to the
    proposed assessment plan. The same day, Escondido
    wrote to the attorney for D.O. and his mother, “renew[ing]
    its request for a copy of [Dr. Dyson’s] report” and stating
    that “[u]pon receipt [Dr. Dyson’s report] will be considered
    at an IEP team meeting.”
    On April 20, 2017, D.O. amended his complaint to also
    allege that Escondido denied him a FAPE by failing to
    timely assess him for autism. Before April 20, 2017, no
    one had asked Escondido to assess D.O. for autism.
    Escondido again sent D.O.’s mother a proposed autism
    assessment plan on August 23, 2017, which she consented to
    on that day. Escondido’s October 2017 assessment of D.O.
    found that he did not qualify for special education for autism
    and left D.O.’s special education placement the same as it
    was before the assessment. D.O.’s mother did not dispute
    or challenge these determinations. On October 10, 2017,
    the ALJ denied relief on all claims.
    There are two issues before us on appeal. The first is
    whether any delay in proposing the autism assessment
    constituted a procedural violation of IDEA. The second is,
    if there was such a procedural violation, whether Escondido
    denied D.O. “a FAPE for the 2016-2017 school year by
    failing to timely assess [him] . . . for autism following the
    December 5, 2016 IEP team meeting[,]” which both the ALJ
    and the district court referred to as Issue 3b. On Issue 3b,
    the ALJ found that Escondido’s duty to assess D.O. for
    autism was triggered on December 5, 2016 because Dr.
    Dyson’s statements in the IEP meeting on that day put
    Escondido on notice that D.O. was suspected of autism.
    But the ALJ found that the four-month delay between
    12           D.O. V. ESCONDIDO UNION SCHOOL DIST.
    December 5, 2016 and April 7, 2017 (when Escondido
    proposed an assessment for autism) did not violate IDEA.
    The ALJ found that D.O.’s mother never requested an
    assessment for autism, failed to provide Dr. Dyson’s report
    to Escondido until July 2017, and failed to explain the delay,
    even though Escondido “wanted to see Dr. Dyson’s report to
    know which testing instruments she had used, to be sure to .
    . . not inappropriately readminister the same instruments and
    obtain invalid results.”         Escondido’s request for Dr.
    Dyson’s report is relevant because, as the ALJ found,
    “assessment instruments [for autism spectrum disorder]
    restricted how frequently any particular assessment could be
    re-administered to a person and still be considered valid and
    reliable. [Escondido] was waiting to see Dr. Dyson’s
    report before presenting [D.O.’s mother] with an assessment
    plan so [Escondido] would not improperly assess [D.O.] by
    reusing the same instruments.” The district court also
    found that Escondido “wanted to review Dr. Dyson’s report
    . . . to identify the specific tests she used because assessors
    cannot give certain tests more than once within a year.” As
    stated above, counsel for D.O. and his mother conceded that
    Escondido had no way of getting Dr. Dyson’s report without
    D.O.’s mother’s consent. Transcript of Oral Argument at
    14:15–14:52.
    The ALJ also found that “the four month delay . . . was
    not unreasonable,” citing Tamalpais Union High School
    District v. D.W., 
    271 F. Supp. 3d 1152
     (N.D. Cal. 2017). In
    Tamalpais, an assessment in June 2014 “reflected that D.W.
    struggled with defiance/aggression, hyperactivity, learning,
    executive function, inattention, and social relations.” 
    Id. at 1156
    . The student was assessed again in May 2015, but
    that assessment failed to assess the student’s mental health.
    
    Id. at 1158
    . In the ALJ’s view, Tamalpais held that the
    D.O. V. ESCONDIDO UNION SCHOOL DIST.          13
    June 2014 assessment put the school district “on notice that
    it should have at least conducted a mental health evaluation
    the following year.” 
    Id. at 1159
    . Citing Tamalpais, the
    ALJ held that “[w]hen a delay of up to one year in . . .
    [assessing] a suspected area of disability can be deemed
    acceptable, the four-month delay in this case cannot be said
    to have resulted in a denial of FAPE to [D.O.]” Thus, the
    ALJ found that Escondido’s “failure to provide . . . an
    assessment plan until April 7, 2017, was not a procedural
    violation of the IDEA.”
    The ALJ also held that “[e]ven if [D.O.] had proved a
    procedural violation, [he] failed to demonstrate how
    [Escondido’s delay] . . . until April 7, 2017 denied [him] a
    FAPE.” D.O. “did not establish . . . how his educational
    program should have been different if he had autism.”
    Escondido also did not significantly impede D.O.’s mother’s
    participation in educational decision making because she
    “had the information in Dr. Dyson’s report regarding any
    educational implications of Dr. Dyson’s diagnosis, and she
    had the ability to advocate for [D.O.]’s education based on
    the information in Dr. Dyson’s report,” and D.O.’s mother
    “did not consent to [the proposed April 2017] assessment
    [plan] until over four months later.” “If [D.O.’s mother]
    was impeded in her ability to participate in educational
    decision-making, it was due to her own delay.”
    D.O. appealed the ALJ’s order on November 29, 2017.
    On such an appeal, the district court may take the testimony
    of witnesses and make factual findings based on credibility.
    See Ojai Unified Sch. Dist. v. Jackson, 
    4 F.3d 1467
    , 1471
    (9th Cir. 1993) (“[J]udicial review in IDEA cases differs
    substantially from judicial review of other agency actions, in
    which courts generally are confined to the administrative
    record and are held to a highly deferential standard of
    14          D.O. V. ESCONDIDO UNION SCHOOL DIST.
    review.”) (quoting Kerkam v. McKenzie, 
    862 F.2d 884
    , 887
    (D.C. Cir. 1988) (“[T]he district court’s authority under §
    1415(e) to supplement the record below with new evidence
    . . . plainly suggests less deference than is conventional [in
    the review of agency actions.]”)). Here, the district court
    did not take the testimony of any witnesses.
    On December 18, 2018, the district court affirmed the
    ALJ in part and reversed in part. Issue 1 concerned
    whether Escondido denied D.O. a FAPE by convening a
    meeting of the IEP team on April 15, 2016, a week after
    Escondido’s behavior emergency intervention against D.O.
    on April 8, 2016, instead of within two days of the
    intervention. Issue 2 concerned whether Escondido denied
    D.O. a FAPE by failing to determine the necessity for an
    interim behavior intervention plan and/or document the
    reasons for not developing an interim behavior intervention
    plan at the April 15, 2016 IEP meeting. Issue 3a concerned
    whether Escondido denied D.O. a FAPE by failing to timely
    conduct the ERMHS assessment, and Issue 3b concerned
    whether Escondido denied D.O. a FAPE by failing to timely
    assess him for autism. The district court noted that D.O.’s
    amended complaint sought to reverse the ALJ on all issues,
    but that the parties had jointly dismissed Issue 3a, and D.O.
    moved for summary judgment only on Issues 2 and 3b.
    The district court did not discuss Issue 1. The district court
    denied relief on Issue 2, affirming the ALJ’s reasoning and
    conclusion.
    The district court reversed the ALJ solely on Issue 3b.
    The district court held that the delay between December 5,
    2016 and April 7, 2017 was a procedural violation of IDEA
    because, while Escondido “was reasonable in waiting some
    period of time for Dr. Dyson’s report before assessing D.O.,
    a four-month wait . . . is not reasonable.” The court held
    D.O. V. ESCONDIDO UNION SCHOOL DIST.          15
    that Escondido’s “delay was due, at least in part, to the
    skepticism of its staff,” citing testimony indicating “their
    disagreement with Dr. Dyson’s autism diagnosis based on
    their own day-to-day observations of D.O.’s behavior.”
    Escondido “was obligated to assess D.O. for autism,
    regardless of the subjective views of its staff members
    concerning the likely outcome of such an assessment.”
    In determining that the four-month delay was
    unreasonable, the district court rejected Escondido’s
    argument “that D.O.’s mother failed to offer [Dr. Dyson’s]
    report to [Escondido] and waited . . . four months to consent
    to the assessment,” holding that “the onus is on [Escondido],
    not the parent, to assess children in all areas of a suspected
    disability” and that Escondido had made only “minimal
    attempts to obtain the report.” The district court also
    dismissed the fact that no one asked Escondido to assess
    D.O. for autism until April 2017, stating that “the timing
    suggests that it was D.O.’s complaint that spurred
    [Escondido] into action, leading [Escondido] to propose an
    autism assessment after dragging its heels for four months.”
    The district court thus held that the four-month delay was a
    procedural violation of IDEA.
    The district court held that this procedural violation
    deprived D.O. of a FAPE. “D.O.’s IEP goals were likely
    inappropriate because they were made without sufficient
    evaluative information about his individual capabilities as a
    potentially autistic child.”      The district court quoted
    Timothy O. v. Paso Robles Unified School District, 
    822 F.3d 1105
    , 1126 (9th Cir. 2016), which held that “the failure to
    obtain critical and statutorily mandated medical information
    about an autistic child and about his particular educational
    needs renders the accomplishment of the IDEA’s goals—
    and the achievement of a FAPE—impossible.” (cleaned up).
    16           D.O. V. ESCONDIDO UNION SCHOOL DIST.
    The district court held that “because [Escondido] waited
    approximately four[]months to begin the process of
    obtaining information that might reflect on autism diagnosis
    and D.O.’s resulting differing needs, it was ‘impossible’ for
    [Escondido] to provide a FAPE to D.O.” The district court
    remanded the case to the ALJ without instructions, staying
    further proceedings.
    On remand, the ALJ “interpreted the remand as for the
    purpose of determining what remedy was appropriate” for
    the Issue 3b FAPE denial, and, on August 13, 2019, awarded
    D.O. reimbursement of the $3,500 that his mother spent on
    an independent psychological evaluation of D.O.
    Escondido appealed the district court’s December 18, 2018
    order on September 5, 2019, arguing that the ALJ’s August
    2019 decision converted the district court’s December 18,
    2018 order into a final decision. A panel of this Court
    dismissed that appeal for lack of jurisdiction under 
    28 U.S.C. § 1291
    , holding that “[t]he OAH decision does not by itself
    automatically create a final judgment in the district court;
    rather, the parties must return to that court so that it will
    ‘have before it all the issues that are necessary for it to render
    a final judgment.’” On May 6, 2021, the district court
    affirmed the ALJ’s August 2019 order awarding D.O.
    $3,500 and issued its final ruling holding that Escondido
    denied D.O. a FAPE by failing to timely assess him. The
    district court affirmed the ALJ on all other issues. These
    rulings were embodied in Findings of Fact, Conclusions of
    Law, and Final Judgment (“Final Judgment”) entered on
    May 6, 2021. Escondido timely appealed on May 14, 2021.
    II.   Standard of Review
    “We review the district court’s findings of fact for clear
    error even when they are based on the written record of
    D.O. V. ESCONDIDO UNION SCHOOL DIST.           17
    administrative proceedings.” Amanda J. ex rel. Annette J.
    v. Clark Cnty. Sch. Dist., 
    267 F.3d 877
    , 887 (9th Cir. 2001).
    A factual finding is “clearly erroneous when . . . the
    reviewing court is left with a definite and firm conviction
    that a mistake has been committed.” Burlington N., Inc. v.
    Weyerhaeuser Co., 
    719 F.2d 304
    , 307 (9th Cir. 1983). We
    review questions of law de novo. Gregory K. v. Longview
    Sch. Dist., 
    811 F.2d 1307
    , 1310 (9th Cir. 1987). “The grant
    or denial of summary judgment is a conclusion of law,
    reviewed de novo.” JG v. Douglas Cnty. Sch. Dist., 
    552 F.3d 786
    , 802 (9th Cir. 2008). We review mixed questions
    of law and fact de novo unless the mixed question is
    primarily factual. Amanda J., 
    267 F.3d at 888
    . We face
    two issues on appeal: whether Escondido’s four-month delay
    in assessing D.O. for autism constituted a procedural
    violation of IDEA and, if the delay amounted to such a
    violation, whether that violation denied D.O. a FAPE.
    We review both issues de novo. In E.M. ex rel. E.M. v.
    Pajaro Valley Unified Sch. Dist. Off. of Admin. Hearings,
    
    758 F.3d 1162
     (9th Cir. 2014) (hereinafter E.M. II), as in this
    case, the student alleged that the school district denied him a
    FAPE in violation of IDEA by “fail[ing] to assess [him] in
    all areas of suspected disability.” 
    Id. at 1178
    . The
    student challenged, among other things, the school district’s
    finding that his central auditory processing disorder did not
    qualify him for special education under the “other health
    impairment” category.        
    Id. at 1170
    .      That challenge
    presented a mixed question of fact and law because it
    concerned whether the student suffered from a central
    auditory processing disorder, a question of fact, and whether
    a central auditory processing disorder is an “other health
    impairment” under federal and state regulations, a question
    of law. See E.M. ex rel. E.M. v. Pajaro Valley Unified Sch.
    18           D.O. V. ESCONDIDO UNION SCHOOL DIST.
    Dist. Off. of Admin. Hearings, 
    652 F.3d 999
    , 1003 (9th Cir.
    2011) (hereinafter E.M. I) (“E.M. argues that the district
    court improperly concluded that he failed to establish that he
    suffered from a ‘disorder in a basic psychological process.’
    We agree. The only person who formally assessed E.M. . .
    . . diagnosed E.M. with an auditory processing disorder.”);
    E.M. II, 
    758 F.3d at 1165
     (“the district court . . . ruled that
    E.M.’s central auditory processing disorder could not be
    considered an ‘other health impairment’ under the applicable
    federal and state regulations.”) (citing 
    34 C.F.R. § 300.7
    (c)(9) (2005); Cal. Code Regs. Tit. 5, § 3030(f)
    (2005)). Despite recognizing the deference due to the
    factual findings made below, we still applied de novo review
    in both E.M. I and E.M. II. E.M. I, 
    652 F.3d at 1002
     (de
    novo review); E.M. II, 
    758 F.3d at 1170
     (“We . . . review de
    novo the district court’s decision that the school district
    complied with the IDEA.” (internal quotations and citation
    omitted)); 
    id.
     (“Our opinion [in E.M. I] did not alter the
    standard of review [for E.M. II].”).
    E.M. indicates that de novo review applies to whether
    Escondido’s delay in assessing D.O. for autism constituted a
    procedural violation of IDEA. Whether the four-month
    delay in assessment is a procedural violation is a mixed
    question of fact and law because it requires us to determine
    why the delay occurred (a question of fact) and whether such
    a delay violated IDEA (a question of law). But the factual
    part of this mixed question is far smaller than the legal part
    because the core of the facts material to why Escondido’s
    delay occurred are undisputed. Escondido “wanted to see
    Dr. Dyson’s report to know which testing instruments she
    had used, to be sure to . . . not inappropriately readminister
    the same instruments and obtain invalid results.” D.O.’s
    mother was “not sure” as to why she did not give Dr.
    D.O. V. ESCONDIDO UNION SCHOOL DIST.            19
    Dyson’s report to Escondido until July 2017 despite
    receiving it “shortly after” December 5, 2016. Escondido
    “renew[ed] its request for a copy of [Dr. Dyson’s] report”
    and stated in a letter to the attorney for D.O. and his mother
    that “[u]pon receipt” of the report, it would be considered at
    an IEP team meeting. The remaining questions of fact
    related to this issue are minor. This is especially so when
    compared to E.M., which presented a much more significant
    material factual dispute over whether the child suffered from
    the alleged disability. We still applied de novo review as
    to whether the school district in that case violated IDEA.
    E.M. I, 
    652 F.3d at 1002
    ; E.M. II, 
    758 F.3d at 1170
    .
    The cases in which we did review mixed questions of
    fact and law for clear error also indicate that de novo review
    should apply here. In Gregory K., the school district
    “challenge[d] the trial court’s ruling that ‘Gregory K. has a
    learning disability’ and ‘is not mentally retarded,’” which we
    held was “a mixed question of law and fact.” 
    811 F.2d at 1311
    . We considered, among other things, the student’s
    intellectual functioning (“IQ”) range, expert testimony about
    the student’s intellectual functioning, and whether the
    student’s intellectual functioning met the eligibility criteria
    for “mild mental retardation” under Wash. Ann. Code 392-
    171-421(2)(a) (1983). 
    811 F.2d at
    1311–12. We held
    that “[w]e are ‘left with the definite and firm conviction’ that
    the trial court erred in its weighing of the evidence regarding
    [the student’s] IQ testing” and that the student’s “eligibility
    for special education was correctly based on mild mental
    retardation.” 
    Id. at 1312
    . In R.B. ex rel. F.B. v. Napa
    Valley Unified School District, 
    496 F.3d 932
     (9th Cir. 2007),
    where we expressly held that the mixed question of law and
    fact presented was “primarily factual,” 
    id. at 937
    , a central
    issue was whether the student “did not qualify as a ‘child
    20             D.O. V. ESCONDIDO UNION SCHOOL DIST.
    with a disability’ because she did not meet any of the criteria
    for ‘a severe emotional disturbance.’” 
    Id. at 947
    .
    Unlike in Gregory K. and R.B., whether D.O. is autistic
    and whether Escondido’s special education placement for
    D.O. was appropriate are not at issue here. D.O. never
    disputed the results of Escondido’s October 2017 autism
    assessment, which found that D.O. did not qualify for special
    education for autism and thus left his special education
    placement unchanged. D.O. also conceded that “it is
    possible for a student with a diagnosed disability to still not
    qualify for special education [for that disability].” 4 The
    issue is whether Escondido’s delay in proposing to assess
    D.O. for autism was a procedural violation of IDEA and
    whether such a violation, if it occurred, denied D.O. a FAPE.
    Another issue relevant to the scope of review concerns
    the fact that D.O. did not cross-appeal. Because D.O. is not
    seeking more relief than what the district court already
    granted, D.O. may argue and we may reach “any ground
    supported by the record.” United States v. Hilger, 
    867 F.2d 566
    , 567 (9th Cir. 1989) (citation omitted). “Generally, ‘a
    cross-appeal is required to support modification of the
    judgment, but . . . arguments that support the judgment as
    4
    D.O. attempts to present a factual dispute as to whether he has autism.
    D.O. argues that “Escondido incorrectly tells this court that D.O. does
    not have autism,” quoting a sentence in Escondido’s brief that “[t]he
    suspicion of autism proved unfounded.” D.O. is mischaracterizing
    Escondido’s statement because the context of that sentence is that “the
    IEP team, including D.O.’s mother, concluded that he did not qualify for
    special education under the autism category,” not that D.O. was
    incorrectly diagnosed with autism. But regardless, the issue here is
    whether Escondido’s delay in proposing to assess D.O. for autism denied
    him a FAPE. Moreover, neither the ALJ nor the district court made a
    factual finding as to whether D.O. was autistic.
    D.O. V. ESCONDIDO UNION SCHOOL DIST.            21
    entered can be made without a cross-appeal.’ A cross-
    appeal is unnecessary even where the argument being raised
    has been explicitly rejected by the district court.” Engleson
    v. Burlington N. R. Co., 
    972 F.2d 1038
    , 1041 (9th Cir. 1992)
    (citations omitted).
    III.   Analysis
    A.   Appellate Jurisdiction
    D.O. argues that we lack appellate jurisdiction for two
    reasons. First, D.O. cites Escondido’s failure to appeal
    within 90 days the ALJ’s August 13, 2019 order on remand.
    See 
    20 U.S.C. § 1415
    (i)(2). This claim is unpersuasive
    because Escondido timely appealed the district court’s May
    6, 2021 Final Judgment, which was partly in favor of D.O.,
    and D.O. does not show how Escondido’s failure to appeal
    from the ALJ’s August 13, 2019 order on remand deprives
    us of jurisdiction over Escondido’s timely appeal.
    Escondido appealed from the Final Judgment on May 14,
    2021. “[T]he notice of appeal . . . must be filed . . . within
    30 days after entry of the judgment . . . appealed from.”
    Fed. R. App. P. 4(a)(1)(A). “The courts of appeals . . . shall
    have jurisdiction of appeals from all final decisions of the
    district courts of the United States.” 
    28 U.S.C. § 1291
    .
    We would lack jurisdiction over this appeal if the district
    court lacked jurisdiction.           See California ex rel.
    Sacramento Metro. Air Quality Mgmt. Dist. v. United States,
    
    215 F.3d 1005
    , 1009 (9th Cir. 2000) (“An appellate court is
    under a special obligation to satisfy itself not only of its own
    jurisdiction, but also that of the lower courts in a cause under
    review.”) (internal quotations and citations omitted). But
    there is no indication that the district court lacked
    jurisdiction, and neither party has so argued.
    22            D.O. V. ESCONDIDO UNION SCHOOL DIST.
    Second, D.O. cites the fact that Escondido
    unsuccessfully appealed the district court’s December 2018
    order before appealing the Final Judgment. D.O. argues
    that because that panel “dismissed the First Appeal for lack
    of jurisdiction, there is no second bite at the apple.” This
    claim lacks merit because, as discussed, Escondido timely
    appealed from the Final Judgment. 5
    B. Reviewing de novo, Escondido’s delay until April 7,
    2017 in proposing an autism assessment plan did not
    amount to a procedural violation of IDEA
    1. Escondido’s duty to propose an assessment triggered
    on December 5, 2016
    “A child must be tested in all areas of suspected
    disability.” N.B. v. Hellgate Elementary Sch. Dist., ex rel.
    Bd. of Directors, Missoula Cnty., Mont., 
    541 F.3d 1202
    ,
    1208 (9th Cir. 2008) (citing 
    20 U.S.C. § 1414
    (b)). In N.B.,
    the child was diagnosed with autism by an expert outside the
    school district. 
    Id. at 1205
    . The “parents discussed [the
    outside expert’s report] with [the school district’s] special
    education director in August 2003,” and the school district’s
    staff reviewed that report in September 2003. 
    Id. at 1209
    .
    We thus held that the school district was “on notice that [the
    child] likely suffered from some form of autism” “[a]s of
    September 2003,” citing both the fact that the parents
    discussed the report with the district’s staff in August and
    the fact that the staff read the report in September. 
    Id.
    5
    D.O. does not argue that the district court’s December 2018 order was
    an immediately appealable collateral order. D.O. could not make such
    an argument, given that another panel of the Ninth Circuit dismissed
    Escondido’s appeal of the December 2018 order for lack of jurisdiction.
    D.O. V. ESCONDIDO UNION SCHOOL DIST.            23
    In Timothy O., 
    822 F.3d at 1105
    , a psychologist outside
    the school district provisionally diagnosed the child with
    autism and sent the district a report “two days before the
    initial IEP meeting.” 
    Id. at 1115
    . We held that “even if
    [the district] had not had notice of [the child’s] autistic
    symptoms at the time of the . . . initial assessment, it obtained
    such notice when it received the [report diagnosing autism].”
    
    Id. at 1121
    . In Pasatiempo by Pasatiempo v. Aizawa, 
    103 F.3d 796
     (9th Cir. 1996), the agency refused to assess a child
    who was diagnosed with “a potentially disabling condition.”
    
    Id. at 800
    . We held that “informed suspicions of parents,
    who may have consulted outside experts, should trigger the
    statutory protections.” 
    Id. at 802
    .
    Escondido was put on notice that D.O. may be autistic,
    and thus that it had a duty to assess him, on December 5,
    2016. The ALJ found that Dr. Dyson stated at a meeting of
    D.O.’s IEP team on that day that she had completed her
    assessment, and D.O. met the diagnostic criteria for autism
    spectrum disorder. Escondido concedes that Dr. Dyson
    began that evaluation at D.O.’s mother’s request. As we
    have held, notice of the “informed suspicion[] of parents,
    who may have consulted outside experts” triggers the duty
    to assess. 
    Id.
     That principle applies to an even greater
    extent here, where there was an actual statement that D.O.
    met the criteria for autism spectrum disorder from the expert
    whom the parent consulted, made in the presence of the
    parent and the IEP team. Although D.O.’s mother failed to
    give Escondido Dr. Dyson’s December 5, 2016 written
    report diagnosing D.O. with autism until July 2017, Dr.
    Dyson’s verbal statement on December 5, 2016 was enough
    to put Escondido on notice of its duty to assess. See N.B.,
    
    541 F.3d at 1209
     (school district was on notice after the
    parents discussed an outside report diagnosing their child
    24           D.O. V. ESCONDIDO UNION SCHOOL DIST.
    with autism with district staff). Thus, Escondido’s duty to
    propose an assessment triggered on December 5, 2016.
    2. Escondido’s delay did not violate any statutory
    deadlines or timelines
    “Procedural compliance is essential to ensuring that
    every eligible child receives a FAPE . . . .” Amanda J., 
    267 F.3d at 891
    . “[A] school district must comply not only with
    federal statutory and regulatory procedures, but with state
    regulations as well: ‘State standards that are not inconsistent
    with federal standards [under the IDEA] are also enforceable
    in federal court.’”       N.B., 
    541 F.3d at 1208
     (second
    alteration in original) (quoting W.G. v. Bd. of Trs. of Target
    Range Sch. Dist. No. 23, 
    960 F.2d 1479
    , 1483 (9th Cir.1992)
    (superseded by statute in part on other grounds)).
    As discussed above, D.O. claimed that he was denied a
    FAPE because Escondido convened a meeting of the IEP
    team on April 15, 2016, a week after Escondido’s behavior
    emergency intervention against D.O. on April 8, 2016,
    instead of within two days of the intervention. D.O. also
    argued that Escondido denied him a FAPE by failing to
    determine the necessity for an interim behavior intervention
    plan and/or document the reasons for not developing an
    interim behavior intervention plan at the April 15, 2016 IEP
    meeting. The district court did not discuss the first claim
    but rejected the second.
    As to the issue before us, D.O. argues that Escondido’s
    proposal of an assessment plan on April 7, 2017 violated
    state law because Escondido had a “duty within 15 days [of
    December 5, 2016] to offer D.O.’s [m]other an assessment
    plan[] [for autism] under IDEA and state law,” and
    “California Education Code [§] 56043(a) gives [Escondido]
    15[]days to provide an assessment plan.” The district court
    D.O. V. ESCONDIDO UNION SCHOOL DIST.                   25
    also cited § 56043(a) in ruling that Escondido’s “four-month
    delay was unreasonable under the circumstances,
    constituting a procedural violation.”
    Escondido’s four-month delay did not violate any
    California statutory deadlines. D.O.’s characterization of §
    56043(a) is incorrect because § 56043(a) states that “[a]
    proposed assessment plan shall be developed within 15
    calendar days of referral for assessment.” Id. (emphasis
    added). 
    Cal. Educ. Code § 56029
     defines “[r]eferral for
    assessment” as “any written request for assessment” made
    by a parent, guardian, teacher, or “other service provider of
    the individual.” 
    Id.
     (emphasis added). As discussed, it is
    undisputed that no one gave Escondido a written request for
    an autism assessment before April 20, 2017, 6 and
    Escondido proposed an autism assessment plan on April 7,
    2017, when it responded to D.O.’s complaint. Thus,
    Escondido’s proposal of an autism assessment plan on April
    7, 2017 did not violate § 56043.
    Escondido also did not violate any federal statutory
    timeline. The assessment that D.O. claims Escondido
    failed to timely provide is a reevaluation because Escondido
    assessed D.O. initially in 2012 to determine his eligibility for
    special education. Federal law requires a reevaluation “if
    the local educational agency determines that the . . . needs .
    6
    Dr. Dyson’s report may constitute such a “written request for
    assessment” because Dr. Dyson was arguably a “service provider” under
    § 56029 and her report recommended that “[D.O.’s] treatment be
    modified to include interventions related to [autism]” and encouraged
    D.O.’s mother “to share these results with . . . [D.O.’s] IEP team.” But
    even if Dr. Dyson’s report constitutes a “written request for assessment”
    under section 56029, D.O.’s mother did not give the report to Escondido
    until July 5, 2017.
    26           D.O. V. ESCONDIDO UNION SCHOOL DIST.
    . . of the child warrant a reevaluation” or “if the child’s
    parents or teacher requests a reevaluation.” 
    20 U.S.C. § 1414
    (a)(2)(A). “A reevaluation . . . shall occur . . . not
    more frequently than once a year, unless the parent and the
    local educational agency agree otherwise” and “at least once
    every 3 years, unless the parent and the local educational
    agency agree that a reevaluation is unnecessary.” 
    Id.
     §
    1414(a)(2)(B).
    Escondido did not violate § 1414(a)(2)(A) or §
    1414(a)(2)(B). Despite § 1414(a)(2)(A)(ii)’s requirement
    that a reevaluation be made “if the child’s parents . . .
    request[]” one, no one acting on D.O.’s behalf requested a
    reevaluation for autism before April 20, 2017. Consistent
    with § 1414(a)(2)(A)(i)’s requirement that a reevaluation be
    made if the school deems it necessary, Escondido
    reevaluated D.O. in 2016 due to “the need to gather
    additional information regarding [his] social, emotional, and
    behavioral functioning . . . .” The timing of Escondido’s
    evaluations complied with § 1414(a)(2)(B), which states that
    a reevaluation shall occur no more often than once a year but
    no less often than once every three years.
    Thus, Escondido’s delay in proposing an autism
    assessment plan did not violate any state or federal statutory
    deadline or timeline.
    3. Escondido’s delay did not constitute a procedural
    violation of IDEA
    A delay in proposing an autism assessment plan does not
    by itself constitute a procedural violation of IDEA. First, a
    failure to assess a child for a suspected disability does
    constitute such a violation. See Timothy O., 
    822 F.3d at 1118
     (school district “failed to formally assess [the child] for
    autism”); N.B., 
    541 F.3d at 1205
     (school district “failed to
    D.O. V. ESCONDIDO UNION SCHOOL DIST.            27
    meet its procedural obligation under the IDEA to evaluate
    [the child] to determine whether he was autistic.”). But
    second, some delay in complying with IDEA’s procedural
    requirements is permissible.       See, e.g., A.M. ex rel.
    Marshall v. Monrovia Unified Sch. Dist., 
    627 F.3d 773
    , 779
    (9th Cir. 2010) (holding that school district “did not hold an
    IEP [meeting] within thirty days” of child’s enrollment as
    required by 
    Cal. Educ. Code § 56325
    (a)(1), but that a two-
    week “brief delay during winter vacation” did not
    procedurally violate IDEA). Thus, when faced with a
    delay in proposing an assessment plan, we must decide
    whether the delay equaled a procedural violation. See JG,
    
    552 F.3d at 798
     (“We hold that Nevada’s forty-five-school-
    day timeline is not an inconsistent interpretation of IDEA’s
    reasonable timeliness requirement.”).
    The district court erred in holding that Escondido’s four-
    month delay was a procedural violation of IDEA. The
    district court found that Escondido’s “delay was due, at least
    in part, to the skepticism of its staff,” citing “their
    disagreement with Dr. Dyson’s autism diagnosis based on
    their own day-to-day observations of D.O.’s behavior.”
    The court then held that Escondido “was obligated to assess
    D.O. for autism, regardless of the subjective views of its staff
    members concerning the likely outcome of such an
    assessment,” quoting our statement in Timothy O. that
    “[s]chool districts cannot circumvent th[e] responsibility [to
    assess for suspected disability] by way of informal
    observations, nor can the subjective opinion of a staff
    member dispel such reported suspicion.” 
    822 F.3d at 1119
    .
    These observations/determinations by the district court
    are materially incorrect, whether we review them de novo or
    28            D.O. V. ESCONDIDO UNION SCHOOL DIST.
    for clear error. 7 The district court’s reliance on Timothy O.
    was erroneous because Timothy O. is inapt. In Timothy O.,
    “[a]t the time of [the child’s] initial evaluation, [the school
    district] was aware that [the child] displayed signs of autistic
    behavior” because the district had sent one of its
    psychologists to observe the child “to advise [the district’s]
    staff whether it needed to conduct a full and formal test for
    autism.”      
    Id. at 1109, 1114
    .        But the psychologist
    dismissed the possibility of autism after only “an informal,
    unscientific observation of the child” that lasted for only
    “thirty to forty minutes.” 
    Id.
     In contrast, Escondido’s
    skepticism that D.O. was autistic was far from “the informal
    observations” or “the subjective opinion of a staff member”
    that Timothy O. rejected. 
    Id. at 1119
    . For one thing,
    Escondido had educated D.O. since “the summer before he
    started kindergarten” in 2012 and provided substantial
    mental health services to him for “five years, working with
    him very closely” as of 2017. And as discussed above,
    Staff who expressed skepticism that D.O. was autistic
    included Rania Garva, who had served as D.O.’s mental
    health therapist since 2012. Garva interacted with D.O.
    daily, had diagnosed him with bipolar I, and was qualified to
    diagnose him with autism. Garva testified that D.O.’s
    behavior, which included “physical assault, stealing, [and]
    reckless behavior,” was “not consistent with . . . a child that
    is on the autism spectrum.” Likewise, Salvatore D’Amico,
    the school psychologist responsible for assessing D.O., and
    who had regularly assessed him for several years, provided
    7
    And as discussed above, we here review de novo the bottom-line
    determination that there was a procedural violation of IDEA. See E.M.
    II, 
    758 F.3d at 1170
     (We “review de novo the district court’s decision
    that the school district complied with the IDEA.” (internal quotations
    and citation omitted)).
    D.O. V. ESCONDIDO UNION SCHOOL DIST.        29
    detailed testimony supporting his mood disorder, not autism
    spectrum disorder, opinion.
    Indeed, D.O.’s education through the District’s
    Intensive Behavioral Intervention program also involved
    two medical doctors who provided psychiatric assessment
    and medication monitoring; a rehabilitation/behavior
    therapist; D.O.’s special education teachers; and D.O.’s
    general education teachers. All these professionals had
    years of experience with D.O. As the ALJ found: “None
    of these professionals, in the four years they had been
    working with [D.O.], believed he presented as a student
    with autism or had any suspicion that he might have had
    autism.”
    For good reason. As the ALJ found, Dr. Dyson
    reported to Escondido staff during the October 2016
    ERMHS assessment that D.O. “was able to verbalize social
    and emotional strategies to deal with challenging behavior
    and social situations in a clinical setting when not in
    distress.”    Such fluctuating behavior, according to
    Escondido staff who worked closely with D.O., was
    inconsistent with an autism diagnosis. Dr. Dyson also “did
    not mention to Mr. D’Amico any suspicion she had that
    [D.O.] might have autism, any concern expressed to her that
    [D.O.] might have autism, or that she was evaluating or had
    been asked to evaluate [D.O.] for possible autism.”
    Considering these circumstances, Escondido staff’s
    skepticism of Dr. Dyson’s diagnosis was based on reasons
    far more substantial and scientific than “informal
    observations” or “the subjective opinion of a staff member”
    in Timothy O., 
    822 F.3d at 1119
    . The school psychologist
    in Timothy O. “stopped by and observed [the child] for
    approximately thirty to forty minutes,” 
    id. at 1114
    , but
    30          D.O. V. ESCONDIDO UNION SCHOOL DIST.
    Escondido staff had provided substantial services to D.O. for
    years. For example, D.O. had a mental health therapist
    who “interacted almost daily” with D.O. and provided “daily
    classroom support and weekly or bi-weekly individual and
    group counseling” to him, for “five years.” Thus, the
    district court’s attribution of Escondido’s delay in assessing
    D.O. to “the subjective views of its staff members,” was
    erroneous, whether clear error or de novo review applies.
    Critically, part of Escondido’s delay was because it “was
    waiting to see Dr. Dyson’s report before presenting [D.O.’s
    mother] with an assessment plan so [Escondido] would not
    improperly assess [D.O.] by reusing the same instruments.”
    Due to the test-retest effect, publishers of
    assessment instruments restricted how
    frequently any particular assessment could be
    re-administered to a person and still be
    considered valid and reliable. District was
    waiting to see Dr. Dyson’s report before
    presenting Mother with an assessment plan
    so District would not improperly assess
    Student by reusing the same instruments.
    Without Dr. Dyson’s report (or some other definitive
    description of the tests Dr. Dyson had used), Escondido
    could not appropriately conduct an autism assessment of
    D.O. and any assessment it conducted without Dr. Dyson’s
    report might well have been invalid. But D.O.’s mother
    failed to provide the report to Escondido until July 2017 and
    failed to explain the delay during the administrative hearing
    (or to the district court). The district court also recognized
    the fact that Escondido “wanted to review Dr. Dyson’s report
    D.O. V. ESCONDIDO UNION SCHOOL DIST.                    31
    . . . to identify the specific tests she used because assessors
    cannot give certain tests more than once within a year.”
    Yet the district court dismissed this fact by finding that
    Escondido’s “minimal attempts to obtain the report do not
    somehow justify a four-month delay, particularly when one
    of those attempts was made only after D.O. filed his due
    process complaint.” Although the district court did not
    explain why Escondido’s efforts to obtain Dr. Dyson’s
    report from D.O.’s mother were “minimal,” that finding was
    erroneous. 8 Escondido first asked D.O.’s mother for the
    report on December 5, 2016, when Dr. Dyson revealed to
    Escondido for the first time that she had evaluated D.O. for
    autism. Escondido could not have asked for the report any
    earlier because December 5, 2016 was when Escondido
    discovered that such a report existed. And D.O.’s mother
    agreed to provide the report. Escondido attempted to
    obtain the report again in April 2017 by sending a written
    8
    The district court’s statement that Escondido’s efforts to obtain Dr.
    Dyson’s report were “minimal” is better described as a characterization
    than as a factual finding, not least because the district court does not
    explain why Escondido’s efforts were “minimal.” We nevertheless
    describe this characterization as a finding following Federated
    Department Stores, Inc. v. Moitie, 
    452 U.S. 394
     (1981). In that case,
    the district court stated that “respondents had attempted to avoid removal
    jurisdiction by ‘artful[ly]’ casting their ‘essentially federal law claims’
    as state-law claims,” and the Supreme Court held that it “will not
    question here that factual finding.” 
    Id.
     at 397 n.2. Dissenting, Justice
    Brennan stated that “this amounts to no more than a pejorative
    characterization,” instead of a finding of fact. 
    Id.
     at 409–10 (Brennan,
    J., dissenting). But here, regardless of whether the district court’s
    statement is a factual finding or a mere characterization, that statement
    was erroneous.
    32             D.O. V. ESCONDIDO UNION SCHOOL DIST.
    request to the attorney for D.O. and his mother. 9 Though,
    of course, Escondido could have made the second request
    earlier, the district court’s finding that Escondido’s multiple
    attempts to obtain Dr. Dyson’s report were “minimal,” was
    erroneous, whether clear error or de novo review applies. 10
    On this point, the dissent argues that D.O.’s mother’s
    failure to provide Escondido with Dr. Dyson’s report has no
    bearing on Escondido’s independent duty under IDEA to
    assess D.O. While parental recalcitrance does not strip a
    school district of its duty to assess children “using the
    comprehensive and reliable methods that [] IDEA requires,”
    Timothy O., 
    822 F.3d at
    1121–22, neither does IDEA require
    school districts to prioritize speed over accuracy.
    On December 5, 2016, Escondido became aware that
    D.O. had been evaluated for autism.               Rephrased,
    Escondido became aware that D.O. had taken a set of tests.
    According to the dissent, Escondido was legally required to
    conduct (or create a plan to conduct) its own set of autism
    assessment tests very shortly thereafter—even though
    Escondido did not know which tests D.O. had already taken,
    and even though to ensure accuracy, assessors “cannot give
    certain tests more than once within a year.” Indeed, if tests
    are duplicated “within a certain time frame,” the tests can be
    considered “null and void.” The District and its mental
    health professionals, which had sound reasons, based on
    9
    Nothing in the record suggests Escondido knew D.O. or his mother
    had an attorney prior to March 28, 2017, when D.O. filed the original
    complaint.
    10
    Even if the April request had been made earlier, Dr. Dyson’s report
    was not provided until July, and Escondido could not have appropriately
    performed an autism assessment until it had that report or a list of the
    tests Dr. Dyson had utilized in her assessment.
    D.O. V. ESCONDIDO UNION SCHOOL DIST.            33
    years of testing and observation, for believing D.O. did not
    have autism, acted reasonably by not precipitously
    scheduling or moving to schedule potentially invalid tests.
    The dissent also faults Escondido for its insufficient
    doggedness in pursuing Dr. Dyson’s report and, at the same
    time, dismisses the idea that the District was truly waiting
    for the Dyson report because it prepared the April 2017
    assessment plan without the report in hand. But the District
    renewed its request for the Dyson report in April. As the
    ALJ noted, the April 4, 2017 assessment plan sent to D.O.’s
    mother “indicated the school staff was awaiting a copy” of
    Dr. Dyson’s report “for review as part of the evaluation.”
    Moreover, the District enclosed in the April 4, 2017 plan “a
    Student/Patient Release of Information form seeking
    authorization for Rady Children’s Hospital to disclose”
    information including the Dr. Dyson report. Escondido
    understood that best practices required Dr. Dyson’s report be
    considered in crafting an autism assessment plan for D.O.
    Moreover, no claim has been made that Escondido
    inappropriately delayed the assessment after receiving the
    consent to perform it from D.O.’s mother on August 23. 11
    Unlike Escondido, which was merely delayed in assessing
    D.O., the school district in Timothy O. “deliberately refused”
    to assess a child for autism, 
    822 F.3d at 1122
    . This fact
    materially distinguishes this case from Timothy O. See 
    id.
    (“[I]t is particularly egregious that in conducting [the
    child’s] initial evaluation . . . [the school district]
    deliberately refused to include an assessment of the one
    suspected disability of which it had clear notice—autism.”
    11
    “Determining whether a student has autism requires many
    assessments and takes a good deal of time.” JG, 
    552 F.3d at 791
    .
    34          D.O. V. ESCONDIDO UNION SCHOOL DIST.
    (emphasis added)). Thus, the district court erred in not
    accounting for the many material differences between this
    case and Timothy O.
    This case resembles JG, 
    552 F.3d 786
    , not Timothy O.
    JG involved, among other things, “the school district’s delay
    in notifying the [children’s] parents that it would evaluate
    [them] for disabilities.” 
    Id. at 789
    . The school district
    “was required to give . . . notice [to the parents] on May 7,
    2003,” but the district began evaluating the children without
    notifying the parents and gave notice only on August 15,
    2003. 
    Id.
     Ultimately this resulted in a delay of “110
    calendar days and thirty-eight school days” between the date
    the District was required to give the children’s parents a
    notice and consent form and the date the children began
    receiving services. 
    Id. at 798, 800
    . We held that “[t]he
    110-day delay was reasonable” because “[s]mall
    administrative delays, like this one, and especially delays
    needed to promote effective test results, should not render
    the [school district’s] actions unreasonable.” 
    Id. at 798
    ; see
    also 
    id. at 791
     (“Determining whether a student has autism
    requires many assessments and takes a good deal of time.”).
    We also held that school districts have “a degree of leeway
    during summer vacation,” while excluding cases “where a
    school district simply delays in the face of a referral for a
    potentially autistic child solely because summer vacation
    makes a timely evaluation difficult.” 
    Id. at 798
    .
    JG is materially similar to this case.    As the
    approximate four-month delay in JG included a summer
    break, the four-month delay here included a two-week
    D.O. V. ESCONDIDO UNION SCHOOL DIST.              35
    winter break. 12 As in JG, the delay here was due in
    nontrivial part to “delays needed to promote effective test
    results.”     
    Id.
        Indeed, as discussed above, without
    knowing the tests Dr. Dyson used, Escondido could not have
    performed the assessment accurately. As the district court
    recognized, “[b]efore performing its own autism assessment
    of D.O., [Escondido] wanted to review Dr. Dyson’s report .
    . . to identify the specific tests she used because assessors
    cannot give certain tests more than once within a year,” and
    Escondido “attempted [a second time] to obtain the report by
    asking D.O.’s counsel for the report on April 7, 2017.”
    Despite receiving the report “shortly after” the IEP meeting
    on December 5, 2016, D.O.’s mother gave the report to
    Escondido only on July 5, 2017. And Escondido proposed
    an assessment for the first time on April 7, 2017, but D.O.’s
    mother did not consent to an assessment plan until August
    23, 2017.
    In sum, while Escondido was notified of facts on
    December 5, 2016 which triggered its duty to propose an
    autism assessment for D.O., Escondido’s four-month delay
    in proposing an autism assessment did not amount to a
    procedural violation of IDEA. Escondido did not violate
    any statutory deadline under state law, and the reasons for
    Escondido’s delay are unlike the reasons for delay presented
    in cases in which we have found a procedural violation of
    IDEA. Although we review whether Escondido’s delay
    amounted to a procedural violation of IDEA de novo, see
    E.M. II, 
    758 F.3d at 1170
    , Escondido’s delay did not amount
    12
    Escondido’s duty to assess triggered on December 5, 2016, and
    Escondido proposed a plan on April 7, 2017. There are 123 calendar
    days between those two dates, and Escondido’s academic calendar for
    that year shows that there were 73 school days between those dates.
    36           D.O. V. ESCONDIDO UNION SCHOOL DIST.
    to a procedural violation of IDEA whether de novo or clear
    error review applies.
    C. Even if Escondido’s four-month delay were a
    procedural violation of IDEA, any such violation did
    not deny D.O. a FAPE
    1.    Escondido’s delay did not deprive D.O. of
    educational benefits, and D.O.’s IEP was reasonably
    calculated to provide D.O. educational benefits
    A procedural violation of IDEA constitutes a denial of
    FAPE if there are “procedural inadequacies that result in the
    loss of educational opportunity, or seriously infringe [on] the
    parents’ opportunity to participate in the IEP formulation
    process, or . . . cause[] a deprivation of educational benefits.”
    Amanda J., 
    267 F.3d at 892
     (internal quotations and citation
    omitted). If none of these elements exist, we “evaluate
    whether the IEP is reasonably calculated to enable the child
    to receive educational benefits.” Anchorage Sch. Dist. v.
    M.P., 
    689 F.3d 1047
    , 1054 (9th Cir. 2012) (internal
    quotations and citation omitted). The district court held
    that Escondido’s four-month delay in proposing to assess
    D.O. denied him a FAPE “on the basis of the educational
    benefit ground,” again relying on Timothy O.:
    [T]he Ninth Circuit has held that “[o]n more
    than one occasion . . . the failure to obtain
    critical and statutorily mandated medical
    information about an autistic child and about
    his particular educational needs renders the
    accomplishment of the IDEA’s goals—and
    the achievement of a FAPE—impossible.”
    [Timothy O., 822 F.3d] at 1126 (emphasis in
    original). Here, as in Timothy O., D.O.’s
    D.O. V. ESCONDIDO UNION SCHOOL DIST.           37
    IEP goals were likely inappropriate because
    they were made without sufficient evaluative
    information about his individual capabilities
    as a potentially autistic child.      See 
    id.
    Accordingly, because the District waited
    approximately four[] months to begin the
    process of obtaining information that might
    reflect on autism diagnosis and D.O.’s
    resulting differing needs, it was “impossible”
    for the District to provide a FAPE to D.O.
    See 
    id.
    The district court’s reliance on Timothy O. is erroneous
    because it ignores the fact that, in Timothy O., “it [wa]s
    particularly egregious that in conducting [the child’s] initial
    evaluation which assessed him for other possible disorders,
    [the school district] deliberately refused to include an
    assessment of the one suspected disability of which it had
    clear notice—autism.” 
    822 F.3d at 1122
    . As a result, the
    school district staff “treated [the child] as if he were
    selectively mute, which they certainly would not have done
    if they had an assessment for autism.” 
    Id. at 1125
    .
    Because the school district in Timothy O. refused to assess
    the child for autism, we held that “the failure to obtain
    critical and statutorily mandated medical information about
    an autistic child . . . renders the accomplishment of the
    IDEA’s goals—and the achievement of a FAPE—
    impossible.” 
    Id. at 1126
     (cleaned up). In contrast,
    Escondido proposed to assess D.O. for autism in April 2017
    and assessed him for autism in October 2017, two months
    after obtaining parental consent. The district court erred in
    conflating the refusal to assess (and other egregious
    38            D.O. V. ESCONDIDO UNION SCHOOL DIST.
    behavior) in Timothy O. with Escondido’s delay in
    assessment in the circumstances here. 13
    We reject D.O.’s argument that a delay in assessment is
    a per se denial of a FAPE, even if the delay does amount to
    a procedural violation of the IDEA. D.O. relies in part on
    N.B. which, according to D.O., held that a school district
    denied a student a FAPE because when it “suspected that a
    student had autism [it] merely referred parents to obtain an
    assessment from an outside agency, rather than the district
    assessing itself . . . .” But N.B. is distinguishable because a
    delay is different from the school district failing to assess a
    child and instead farming out the assessment to an outside
    entity. When, as here, the school district assessed after a
    delay, we must decide whether the delay deprived the child
    of an educational benefit. And we hold that the same is true
    even if the delay did amount to an IDEA procedural violation.
    13
    Those circumstances are discussed above, but some bear repeating.
    The District had been providing special education services to D.O. for
    the entire time he had been in school—“five years” as of 2017. Those
    services consisted of, among others, “psychiatric assessment/diagnosis
    and medication prescription and monitoring,” “mental health services
    daily,” and “special education and general education teachers observing
    him daily.” The first suggestion of autism was in a December 2016
    meeting. Escondido’s mental health professionals, including D’Amico
    and Garva, questioned autism because of possible behaviors by D.O. that
    they averred were clinically inconsistent with autism. An assessment
    for autism could not responsibly be done until the district knew what
    tests Dr. Dyson had used because certain standard tests could not be
    repeated until one year had passed from when Dr. Dyson had
    administered them. D.O.’s mother said she would provide Dr. Dyson’s
    report and did not. Counsel for D.O. and his mother conceded at oral
    argument that “there are certain autism tests that can’t be repeated”
    within 365 days because “the data from those [repeated] assessments
    wouldn’t be valid.” Transcript of Oral Argument at 24:18–24:40.
    D.O. V. ESCONDIDO UNION SCHOOL DIST.                   39
    The relevant question is not merely whether the delay was
    too long, but whether the delay deprived the child of an
    educational benefit.
    Here, even if Escondido’s delay in proposing to assess
    D.O. were a procedural violation of IDEA, such a violation
    did not deny D.O. a FAPE because it did not deprive him of
    any educational benefit.        “[D]elays in meeting IEP
    deadlines do not deny a student a FAPE where they do not
    deprive a student of any educational benefit.” Doug C. v.
    Hawaii Dep’t of Educ., 
    720 F.3d 1038
    , 1046 (9th Cir. 2013)
    (citing A.M., 
    627 F.3d at 779
    ). Even though the school
    district in A.M. delayed in assessing the student’s needs, we
    held that the delay “caused no educational deprivation to
    A.M. [a]s . . . evidenced by the fact that A.M.’s placement
    continued as [before] in May.” 
    627 F.3d at 779
    . As in
    A.M., Escondido’s assessment of D.O. was delayed, but
    Escondido assessed D.O. for autism and maintained the
    same special education placement for D.O. as before the
    autism assessment. 14 In the circumstances here, because
    D.O.’s special education placement remained unchanged,
    Escondido’s delay in that assessment did not deprive D.O.
    of educational benefits. 15 D.O.’s mother did not dispute
    the results of D.O.’s October 2017 autism assessment, and
    14
    As noted, Escondido maintained the same special education
    placement without objection or challenge by D.O.’s mother.
    15
    We are not called upon to decide whether under different
    circumstances there might be a FAPE denial because of, for example, a
    loss of educational benefits or a loss of an educational opportunity even
    if a placement remained unchanged after a delayed assessment. The
    questions we answer here are whether a delay (even an impermissible
    one) per se equals a FAPE denial—it does not; and whether the delay
    here denied D.O. a FAPE—it did not.
    40           D.O. V. ESCONDIDO UNION SCHOOL DIST.
    D.O. concedes that “it is possible for a student with a
    diagnosed disability to still not qualify for special education
    [for that disability].”
    As to whether D.O.’s IEP was “reasonably calculated”
    to provide educational benefits, that requirement is met by
    providing an education that provides a student with a
    “meaningful benefit.” N.B., 
    541 F.3d at
    1212–13. To
    meet this standard, a school district “must offer an IEP
    reasonably calculated to enable a child to make progress
    appropriate in light of the child’s circumstances.” Endrew
    F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 
    137 S.Ct. 988
    , 999 (2017). “[W]e must not critique an IEP with
    the benefit of hindsight . . . we evaluate whether the [IEP
    was] reasonably calculated to ensure that the child would
    receive educational benefits at the time of implementation.”
    Anchorage Sch. Dist., 
    689 F.3d at 1058
    . Escondido
    “provid[ed] personalized instruction with sufficient support
    services to permit the child to benefit educationally from that
    instruction,” Rowley, 458 U.S. at 203. For five years as of
    2017, “[D.O.] was frequently seen by two medical doctors
    who provided psychiatric assessment/diagnosis and
    medication prescription and monitoring. He was supported
    by a licensed marriage and family therapist who assessed
    and diagnosed him annually and provided him mental health
    services daily.            He was supported by a
    rehabilitation/behavior therapist. A school psychologist
    conducted a triennial reevaluation, a functional behavior
    assessment, and an educationally related mental health
    assessment with social-emotional functioning assessment of
    [D.O.] [D.O.] had special education and general education
    teachers observing him daily.”
    This case is also materially different from cases in which
    we found that an IEP was not reasonably calculated to
    D.O. V. ESCONDIDO UNION SCHOOL DIST.                      41
    provide educational benefits. For example, in N.B., where
    the school district “referred [student’s] parents to [an outside
    entity] for an autism evaluation, rather than arranging for an
    evaluation after being apprised of [an autism] diagnosis [by
    an outside expert,]” we held that “it was not possible . . . to
    develop a plan reasonably calculated to provide [student]
    with a meaningful educational benefit.” 
    541 F.3d at 1208, 1210
    .     Unlike the school district in N.B., Escondido
    assessed D.O. for autism in October 2017 and concluded that
    D.O.’s eligibility categories for special education should
    remain unchanged because he did not qualify for special
    education for autism.
    For these reasons, Escondido’s delay did not deprive
    D.O. of educational benefits, and his IEP was reasonably
    calculated to confer educational benefits.
    2.    Escondido’s delay did not deprive D.O. of
    educational opportunity 16
    “A loss of an educational opportunity occurs, for
    example, when there is a ‘strong likelihood’ that, but for the
    procedural error, an alternative placement ‘would have been
    better considered.’” Timothy O., 
    822 F.3d at 1124
     (quoting
    16
    D.O. argues that Escondido’s delay “constitut[ed] a denial of FAPE
    that caused D.O. a deprivation of educational benefit, loss of educational
    opportunity, and/or loss of parent participation . . . .” The district court,
    however, found that D.O. was denied a FAPE solely “on the basis of the
    educational benefit ground.” Even though D.O. did not cross-appeal,
    we may reach the issues that D.O. argues but the district court did not
    discuss because D.O. is not asking for relief any greater than what the
    district court already granted. See Hilger, 
    867 F.2d at 567
    ; Engleson,
    972 F.2d at 1041; see also Spurlock v. FBI, 
    69 F.3d 1010
    , 1018 (9th Cir.
    1995) (“An appellee who fails to file a cross-appeal cannot attack a
    judgment with a view towards enlarging his own rights.”).
    42           D.O. V. ESCONDIDO UNION SCHOOL DIST.
    Doug C., 
    720 F.3d at 1047
    ). Even though Escondido’s
    autism assessment of D.O. was delayed, D.O.’s special
    education placement stayed unchanged after the assessment.
    And there is no evidence that if the assessment had been
    conducted earlier, an alternative placement would have
    occurred or been “better considered.”         So even if
    Escondido’s delay were a procedural violation of IDEA,
    such a violation did not deprive D.O. of educational
    opportunity.
    3. Escondido’s delay did not seriously infringe on
    D.O.’s mother’s opportunity to participate in the IEP
    formulation process
    A procedural violation constitutes a denial of FAPE if it
    “seriously infringe[s] [upon] the parents’ opportunity to
    participate in the IEP formulation process.” Amanda J.,
    
    267 F.3d at 892
    . In Amanda J., the school district withheld
    reports from the student’s parents indicating that the student
    may be autistic. We held:
    [B]y failing to disclose Amanda’s full
    records to her parents once they were
    requested, . . . the District denied Amanda a
    FAPE. The IEP team could not create an
    IEP that addressed Amanda’s special needs
    as an autistic child without knowing that
    Amanda was autistic. . . . Amanda’s parents
    were not informed of the possibility that their
    daughter suffered from autism . . . despite the
    fact that the district’s records contained test
    results indicating as much. Not only were
    Amanda’s        parents     prevented     from
    participating fully, effectively, and in an
    informed manner in the development of [her]
    D.O. V. ESCONDIDO UNION SCHOOL DIST.         43
    IEP, they were not even aware that an
    independent psychiatric evaluation was
    recommended, an evaluation that [her]
    mother testified she would have had
    performed immediately.
    
    Id. at 894
    . In Timothy O., where the school district
    “deliberately refused to include an assessment of . . .
    autism,” 
    822 F.3d at 1122
    , we cited Amanda J. to find that
    “this lack of information . . . substantially hindered [the
    child’s] parents’ ability to participate in the IEP process.”
    
    822 F.3d at
    1124–25 (quoting 
    267 F.3d at 894
    ).
    Escondido’s delay did not seriously infringe on parental
    participation. Unlike the school districts in Timothy O. and
    Amanda J., Escondido neither refused to assess D.O. nor
    withheld any information. It was D.O.’s mother who failed
    to timely provide Escondido with Dr. Dyson’s report. This
    delayed Escondido in assessing D.O. because “[b]efore
    performing its own autism assessment of D.O., [Escondido]
    wanted to review Dr. Dyson’s report . . . to identify the
    specific tests she used because assessors cannot give certain
    tests more than once within a year.” Moreover, even
    though Escondido proposed an assessment on April 7, 2017,
    D.O.’s mother failed to consent to an assessment plan until
    August 2017. Thus, as the ALJ held, Escondido “did not
    significantly impede parental participation” and “[i]f Mother
    was impeded in her ability to participate in educational
    decision-making, it was due to her own delay.”
    For these reasons, D.O.’s IEP was reasonably calculated
    to provide educational benefits, and Escondido’s delay did
    not deprive him of educational benefits or opportunity and
    did not significantly impede parental participation. Thus,
    even if Escondido’s four-month delay in proposing to assess
    44           D.O. V. ESCONDIDO UNION SCHOOL DIST.
    D.O. were a procedural violation of IDEA, such a violation
    did not deny D.O. a FAPE.
    D. Whether Escondido can recoup the $3,500 it paid
    to D.O. is irrelevant to whether this appeal is moot for
    lack of a case or controversy
    D.O. argues that “this appeal should be dismissed
    because there is no case or controversy in that the money
    already paid to D.O.’s parent cannot be recouped by
    Escondido.” D.O. also argues that “[e]ven if this Court
    were to find it permissible to reimburse Escondido, its failure
    to appeal the OAH Remand Order in 90 days should prevent
    this action from proceeding.” According to D.O., “[i]f
    Escondido wanted to challenge the cost of the evaluation as
    a result of the OAH Remand Order [from 2019], it was
    required to challenge that decision to the district court within
    90 days. Instead, Escondido incorrectly filed an appeal
    with the [Ninth] Circuit. Escondido should not now be
    allowed to ignore the statute and resurrect a fatal decision it
    made over two years ago.”
    Even assuming that Escondido cannot recoup the $3,500
    reimbursement, that fact would not render the appeal moot.
    “The doctrine of mootness, which is embedded in Article
    III’s case or controversy requirement, requires that an actual,
    ongoing controversy exist at all stages of federal court
    proceedings.” Pitts v. Terrible Herbst, Inc., 
    653 F.3d 1081
    ,
    1086 (9th Cir. 2011). The issues before us on appeal are
    whether Escondido’s delay in assessing D.O. for autism was
    a procedural violation of IDEA and whether that delay
    denied him a FAPE. These issues are both ongoing and do
    not turn on the status of the reimbursement. Thus, whether
    or not Escondido can recoup the $3,500 reimbursement, this
    appeal is not moot.
    D.O. V. ESCONDIDO UNION SCHOOL DIST.          45
    ***
    The district court erred in granting summary judgment to
    D.O. on his claim that Escondido’s four-month delay was a
    procedural violation of IDEA, and that the violation denied
    him a FAPE. We direct the district court to enter judgment
    in accordance with this opinion. Each party shall bear its
    own costs.
    REVERSED AND REMANDED.
    SANCHEZ, Circuit Judge, concurring in part and dissenting
    in part:
    I concur in the majority’s holding that the Escondido
    Union School District’s (“Escondido”) delay in proposing to
    assess D.O. for autism did not deny him a Free Appropriate
    Public Education (“FAPE”) under the Individuals with
    Disabilities Education Act (“IDEA”).           I respectfully
    dissent, however, from the majority’s conclusion that
    Escondido’s failure to act for four months in the middle of
    the school year was nonetheless reasonable under the IDEA
    because D.O.’s mother was uncooperative. Our precedent
    is clear that the school district has an independent legal
    obligation to promptly assess a child for a suspected
    disability, even when the parent does not cooperate in full or
    makes promises they do not keep. Accordingly, I would
    affirm the district court’s determination that Escondido’s
    four-month delay in initiating the process to assess D.O. for
    autism constituted a procedural violation of IDEA, and
    reverse its determination that this procedural violation
    resulted in the denial of a FAPE.
    46             D.O. V. ESCONDIDO UNION SCHOOL DIST.
    I.
    The material facts are not in dispute. On December 5,
    2016, Escondido was made aware that Dr. Margaret Dyson,
    a licensed clinical psychologist at Rady Children’s Hospital,
    had assessed D.O. and determined that he appeared to meet
    the criteria for autism spectrum disorder. The parties agree
    that Escondido’s duty under IDEA to propose an assessment
    plan for D.O. was trigged by this disclosure. It is also
    undisputed that Escondido did not propose to assess D.O for
    autism until April 7, 2017—a four-month delay equivalent
    to half the school year. The district court found that
    Escondido made “minimal attempts” to obtain the Dyson
    report over those four months and only proposed an
    assessment plan after D.O.’s mother filed a due process
    complaint against the district on March 28, 2017. The
    court further found that Escondido’s delay was motivated at
    least in part by staff skepticism about the autism diagnosis.1
    Finally, there is no dispute that when Escondido finally
    proposed its assessment plan, district staff had not received
    the Dyson report and did not rely on any outside report to
    prepare the assessment plan.
    The majority’s holding that no procedural violation
    occurred here     contravenes our precedent and the
    1
    The district court’s findings concerning staff members’ actions or
    inactions and what motivated their decision to delay the assessment plan
    are factual findings we review for “clear error even when they are based
    on the written record of administrative proceedings.” See Amanda J.
    ex rel. Annette J. v. Clark Cty. Sch. Dist., 
    267 F.3d 877
    , 887 (9th Cir.
    2001). Whether staff had reasonable grounds for the delay and whether
    such delay constituted a procedural violation of IDEA are questions of
    law we review de novo. See 
    id.
     As discussed below, the majority
    muddles this distinction and fails to accord appropriate deference to the
    district court’s factual findings.
    D.O. V. ESCONDIDO UNION SCHOOL DIST.            47
    procedural requirements of IDEA. Under federal law, the
    district must ensure that “[each] child is assessed in all areas
    of suspected disability.” 
    20 U.S.C. § 1414
    (b)(3)(B); 
    Cal. Educ. Code § 56320
    (f); see W.G. v. Bd. of Trs. of Target
    Range Sch. Dist. No. 23, 
    960 F.2d 1479
    , 1483 (9th Cir. 1992)
    (“State standards that are not inconsistent with federal
    standards [under IDEA] are also enforceable in federal
    court.”). A child is “suspected” of a disability “when the
    district has notice that the child has displayed symptoms of
    that disability.” Timothy O. v. Paso Robles Unified Sch.
    Dist., 
    822 F.3d 1105
    , 1119 (9th Cir. 2016). “Once either
    the school district or the parents suspect disability … a test
    must be performed so that parents can receive notification
    of, and have the opportunity to contest, conclusions
    regarding their child.” 
    Id. at 1120
     (internal quotation
    marks and citation omitted). IDEA “requires that [school]
    districts act within a reasonable time to evaluate potentially
    disabled children.” JG v. Douglas Cnty Sch. Dist., 
    552 F.3d 786
    , 798 (9th Cir. 2008).
    We have consistently held that inaction by parents does
    not relieve districts of their independent obligation to
    comply with the procedures established by IDEA. In W.G.
    v. Board of Trustees, for example, a child’s parents promised
    the school district they would arrange for personnel of the
    child’s school to attend an IEP meeting for the child, but the
    parents failed to do so. 
    960 F.2d at 1481
    . We held that
    this failure did not relieve the school district of its own duty
    under IDEA to secure the school’s participation in the IEP
    meeting. 
    Id.
     at 1484–85; see also 
    id. at 1486
     (finding the
    school’s failure to propose a follow-up IEP meeting for five
    months during the school year was a procedural violation of
    IDEA). In Union High School District v. Smith, we
    rejected the argument that parents who withheld portions of
    48           D.O. V. ESCONDIDO UNION SCHOOL DIST.
    an outside report diagnosing their child with autism excused
    the district of its obligation to evaluate the child for autism.
    
    15 F.3d 1519
    , 1523 (9th Cir. 1994). We concluded that
    even if the withheld portions of the report were relevant to
    such evaluation, “[a]ny failure of the [parents] to turn over
    portions of a specialist’s report cannot excuse [a district’s]
    failure to procure the same information for itself.” 
    Id.
     at
    1523–24 (citing W.G., 
    960 F.2d at
    1484–85).
    We reiterated again in N.B. v. Hellgate Elementary
    School District that “[a] school district cannot abdicate its
    affirmative duties under the IDEA.” 
    541 F.3d 1202
    , 1209
    (9th Cir. 2008). In N.B., the district was alerted to an
    outside report diagnosing the child with possible autism.
    
    Id.
     at 1205–06. Because the district did not have personnel
    qualified to conduct an autism evaluation, it referred the
    parents to an outside organization that provided free autism
    testing. 
    Id.
     at 1208–09. The child’s parents did not
    procure an evaluation from the outside organization for
    several more months, and the district seized on this fact to
    argue that the parents’ inaction excused its own failure to
    secure an evaluation. 
    Id.
     We rejected the argument,
    holding that the district “did not fulfill its statutory
    obligations by simply referring [the child’s] parents to the
    [outside organization]. Such an action does not ‘ensure
    that the child is assessed,’ as required by 
    20 U.S.C. § 1414
    (b)(3)(C).” 
    Id.
    D.O.’s mother’s failure to provide the Dyson report to
    the district does not excuse Escondido’s statutory obligation
    to propose an assessment plan for D.O. within a reasonable
    period after becoming aware of his suspected disability. It
    makes no difference that D.O.’s mother promised to deliver
    a copy of the Dyson report to Escondido on December 5,
    2016, because Escondido could not abdicate its own
    D.O. V. ESCONDIDO UNION SCHOOL DIST.            49
    affirmative obligation to begin the autism assessment
    process under IDEA.           The majority emphasizes that
    Escondido could not assess D.O. without first knowing
    which tests Dr. Dyson used to evaluate D.O. because certain
    autism tests cannot be administered to a child more than once
    a year. Even if true, that does not bear on the procedural
    violation at issue in this appeal. The challenged delay here
    concerns Escondido’s “minimal attempts” to procure the
    Dyson report and its failure to propose an assessment plan
    for four months of the school year, not a delay in the
    assessment itself. Escondido’s justification for failing to
    act sooner—that it was waiting on D.O.’s mother to deliver
    the Dyson report—rings hollow given that district staff had
    not obtained and did not rely on the Dyson report when they
    proposed the assessment plan in April 2017.
    The majority contends that the district court clearly erred
    in its “minimal attempts” finding because Escondido asked
    for the report twice, first in December 2016 and then again
    in April 2017, and it quibbles over whether this is a factual
    finding or mere characterization. This is a factual finding,
    and it is amply supported by the record. Escondido
    provided no evidence it made any effort to obtain the Dyson
    report over those four months, nor does it challenge the
    court’s finding that the district only offered an assessment
    plan after D.O.’s mother filed a due process complaint on
    March 28, 2017. This timing indicated to the district court
    that litigation was what prompted the district to act.
    Indeed, in the administrative proceedings below, Escondido
    argued that district staff “did not immediately seek to begin
    their own autism assessment because they believed there was
    the possibility that the final [Dyson] report would state
    [D.O.] did not meet diagnostic criteria for autism spectrum
    disorder.”     The ALJ found this reason for delaying
    50           D.O. V. ESCONDIDO UNION SCHOOL DIST.
    assessment “specious,” both because Dr. Dyson stated on
    December 5, 2016 that her report had been finalized and
    because district officials were unlikely to accept the report.
    The district court’s factual finding that Escondido made
    “minimal attempts” to begin the autism assessment process
    was not clearly erroneous.
    As the district court also found, Escondido delayed in
    part because district staff were skeptical of Dr. Dyson’s
    autism diagnosis. Our precedent does not permit a school
    district to refuse to undertake a formal assessment of a child
    because district staff are skeptical that the child will be
    diagnosed with the disability at issue. In Pasatiempo v.
    Aizawa, we held that the informed suspicions of parents
    trigger the duty to assess, even if the district disagrees with
    those suspicions. 
    103 F.3d 796
    , 802 (9th Cir. 1996). In
    N.B., we held that the informed suspicions of outside experts
    do the same. 
    541 F.3d at
    1208–09. In Timothy O., the
    district was aware that the child displayed signs of autistic
    behavior but declined to formally assess him for autism
    “because a member of its staff opined, after an informal,
    unscientific observation of the child, that [he] merely had an
    expressive language delay, not a disorder on the autism
    spectrum.” 
    822 F.3d at 1109
    . We held that the district’s
    failure to formally assess the child for autism was a
    procedural violation of IDEA, concluding that “if a school
    district is on notice that a child may have a particular
    disorder, it must assess that child for that disorder, regardless
    of the subjective views of its staff members concerning the
    likely outcome of such an assessment.” 
    Id. at 1121
    .
    The majority attempts to distinguish Timothy O. by
    suggesting that Escondido staff had a more substantial basis
    for its skepticism of the autism diagnosis. Unlike the
    cursory “thirty to forty minute[]” informal evaluation by the
    D.O. V. ESCONDIDO UNION SCHOOL DIST.            51
    psychologist in Timothy O., the majority reasons, Escondido
    has educated D.O. since the summer before kindergarten and
    has provided D.O with mental health services for five years.
    Interactions by several mental health and medical staff gave
    Escondido a far more substantial and “scientific” basis for
    its skepticism of the autism diagnosis, the majority
    concludes. The majority therefore determines that the
    district court erred in attributing Escondido’s delay to the
    subjective views of its staff. The district court’s factual
    finding was not clearly erroneous. No authority supports
    the proposition hinted at by the majority that a school district
    can delay or refuse a formal assessment if district staff have
    interacted more frequently with the child or provided mental
    health services in other areas of need. Not even Escondido
    argues that its staffs’ interactions with and observations of
    D.O. served as an adequate substitute for a formal
    assessment of D.O. for autism.
    Under IDEA and state law implementing its
    requirements, the school district must ensure that “the child
    is assessed in all areas of suspected disability.” 
    20 U.S.C. § 1414
    (b)(3)(B) (emphasis added); 34 C.F.R § 300.304; 
    Cal. Educ. Code § 56320
    (f). The majority invents a caveat to
    this directive that does not exist in statute or caselaw. As
    we explained in Timothy O.:
    To hold that [district staff’s] informal observation could
    overcome [Escondido’s] statutory obligation to formally
    assess [D.O.] for a suspected disability would allow school
    districts to disregard expressed and informal concerns about
    a child’s disabilities on the basis of prejudicial stereotypes
    about what certain disabilities look like, rather than on the
    objective evidence and the thorough and reliable
    standardized testing that the IDEA requires.
    52           D.O. V. ESCONDIDO UNION SCHOOL DIST.
    See 
    822 F.3d at 2016
     (emphasis added). Common
    sense also supports requiring a district to formally assess a
    child for a suspected disability even when skepticism about
    the resulting diagnosis is well-grounded: The formal
    assessment will determine these matters conclusively and
    clarify for the parents and school district alike the
    appropriate next steps to support the child.
    Finally, the majority’s reliance on JG v. Douglas County
    School District is misplaced. In JG, the school district was
    required under 
    20 U.S.C. § 1415
    (b)(3) to provide the parents
    of twins with notice of a proposal to evaluate the twins for
    learning disabilities by May 7, 2003, but the district failed to
    do so. 
    552 F.3d at 789
    . Unaware that the district would
    conduct evaluations, the twins’ parents sought and paid for
    private evaluations. 
    Id. at 795
    . Recognizing that the
    school district denied the children a FAPE when it did not
    provide the parents with notice of a proposal to evaluate on
    May 7, 2003, we held they were entitled to full
    reimbursement for the private evaluations.         
    Id. at 792, 795
    .
    We also considered whether the evaluations ultimately
    conducted by the district occurred within a reasonable time.
    
    Id.
     at 795–99. The school district conducted general
    evaluations on August 25, 2003—110 days after notice to
    the parents was due on May 7, 2003. 
    Id. at 796, 798
    . The
    earliest the district had any notice of suspected autism was
    on July 28, 2003. 
    Id. at 789
    . On September 25, 2003, the
    district began autism-specific testing—just 59 days after
    becoming aware of the twins’ suspected autism. 
    Id.
     In
    concluding that the district’s autism testing was not
    unreasonably delayed, we emphasized two points. First,
    summer vacation took up part of the delay from May to late
    August, which impacted only 38 school days. 
    Id.
     at 798–
    D.O. V. ESCONDIDO UNION SCHOOL DIST.         53
    99. Second, initial general evaluations of the twins were
    conducted over a month before autism-specific testing began
    in order to build the “trust and comfort level between child
    and evaluator” required for effective autism testing. 
    Id.
    The majority analogizes the reasonable “110-day delay”
    in JG to the 123 days it took Escondido to propose an
    assessment plan for D.O. The comparison is inapt because
    the 123 day-delay in this case was during the school year,
    not over summer vacation, and therefore the delay occurred
    over 73 school days—almost double the number of school
    days impacted under JG. More importantly, it took the
    district in JG just 59 days from becoming aware of the twins’
    suspected autism to begin autism testing. See 
    id. at 789
    .
    Conversely, it took Escondido 123 days from becoming
    aware of D.O.’s suspected autism to even propose an autism
    assessment plan. Nor are Escondido’s minimal efforts over
    a four-month period of inactivity at all comparable to the
    month-long general evaluations conducted by the school
    district in JG, which were “essential to produce valid test
    results” when autism-specific testing began.      See 
    id. at 798
    .
    With the goal of guaranteeing a free appropriate public
    education to all children with disabilities, IDEA requires a
    school district to timely evaluate all potentially disabled
    children. 
    Id.
     at 797–98; see N.B., 
    541 F.3d at 1207
    . The
    statute does not leave it to the district to decide when to
    assess for a disability and when not to bother. Notice of a
    suspected disability automatically triggers the district’s
    obligation to assess “using the comprehensive and reliable
    methods that [] IDEA requires.” Timothy O., 
    822 F.3d at
    1121–22; see N.B., 
    541 F.3d at 1207
    . To hold otherwise
    “would be particularly devastating for children with autism,”
    which can manifest in varied and non-obvious ways.
    54          D.O. V. ESCONDIDO UNION SCHOOL DIST.
    Timothy O., 
    822 F.3d at 1121
    . Here, I can see no reason to
    disturb the finding that Escondido’s unjustified four-month
    delay in initiating an autism assessment of D.O. was a
    procedural violation of IDEA.
    II.
    I concur in the majority’s conclusion that Escondido did
    not deny D.O. a FAPE but write separately to explain the
    differences in my reasoning. Procedural violations deny a
    child a FAPE where they “result in the loss of educational
    opportunity” or educational benefits, or where they
    “seriously infringe the parents’ opportunity to participate in
    the IEP formulation process.” Amanda J., 
    267 F.3d at 890
    (quoting W.G., 
    960 F.2d at 1484
    ). Escondido’s procedural
    violation had no such effect, and D.O.’s IEP was “reasonably
    calculated to enable [D.O.] to receive educational benefits,”
    as IDEA requires. See Anchorage Sch. Dist. v. M.P., 
    689 F.3d 1047
    , 1054 (9th Cir. 2012) (quoting Bd. of Educ. of
    Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v.
    Rowley, 
    458 U.S. 176
    , 207 (1982)). As the majority
    explains, Escondido’s delay in initiating the autism
    assessment process did not deprive D.O. of educational
    opportunities or benefits. D.O.’s October 2017 evaluation
    established that he did not qualify for special education for
    autism and D.O.’s special education placement remained
    unchanged. In other words, Escondido would not have
    provided D.O. different educational opportunities or benefits
    had it initiated the evaluation in a timely manner, because
    the results of the evaluation indicated that no change in
    D.O.’s education was required.
    However, the majority misses the mark when it attempts
    to distinguish the instant case from Timothy O. and N.B. by
    positing that “the refusal to assess” differs from Escondido’s
    D.O. V. ESCONDIDO UNION SCHOOL DIST.            55
    “delay in assessment.” In determining whether a school
    district’s failure to timely assess a child denied the child a
    FAPE, the relevant question is what impact such failure had
    on the child’s education, not whether the failure is better
    described as a “refusal” or a “delay.” See Timothy O., 
    822 F.3d at 1118
    ; JG, 
    552 F.3d at 789
    ; N.B., 
    541 F.3d at 1207
    .
    Where a district’s delay in initiating a disability assessment
    is sufficiently long, there is no functional difference between
    an unreasonable delay and a refusal to assess. Both result
    in the failure to provide a timely assessment and may deprive
    the child of educational opportunities or benefits guaranteed
    by IDEA.
    Timothy O. is distinguishable not because of the district’s
    refusal to conduct an assessment, but because there was
    “strong reason” to believe the district would have provided
    the child different educational opportunities had the district
    formally assessed the child for autism. 
    822 F.3d at
    1124–
    25. Similarly, in N.B., the district failed to obtain a timely
    autism evaluation of the child, eventually receiving a report
    from an outside center indicating the child had autism. 
    541 F.3d at 1206
    . In response to the report, the district made
    substantial changes to the child’s IEP, four months after it
    was first put on notice of the child’s potential autism. 
    Id. at 1206, 1208, 1210
    . The salient point of these authorities
    is that the failure to conduct a timely assessment resulted in
    the denial of a FAPE because the children were unable to
    receive an IEP properly tailored to their individualized needs
    and supportive services. Here, by contrast, the record
    shows that Escondido’s delay in initiating D.O.’s assessment
    had no impact on D.O.’s IEP or the education D.O. received.
    Finally, I concur with the majority that Escondido’s
    delay did not deny D.O.’s mother the “ability to participate
    in the development of [his] IEP in an informed and effective
    56          D.O. V. ESCONDIDO UNION SCHOOL DIST.
    manner.” See Amanda J., 
    267 F.3d at
    890–91. Escondido
    did not deprive D.O.’s mother of any evaluative information
    about D.O., conduct we have held impairs parental
    participation. See id.; Timothy O., 
    822 F.3d at
    1124–27.
    Further, once Escondido proposed an autism assessment
    plan, D.O.’s mother did not participate in the assessment
    process for several more months. As the majority notes,
    she waited until July 2017 to consent to the plan.
    However, the majority’s analysis of whether Escondido
    seriously infringed on parental participation emphasizes
    again that Escondido did not refuse to assess D.O., posing
    the wrong question. The relevant question in my view is
    whether Escondido’s delay in proposing an assessment plan
    denied D.O.’s mother the ability to meaningfully participate
    in the development of D.O.’s IEP. It did not. There is no
    evidence that Escondido failed to offer D.O. “an IEP
    reasonably calculated to enable [him] to make progress
    appropriate in light of [his] circumstances.” Endrew F. ex
    rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 
    137 S. Ct. 988
    , 999 (2017). In sum, Escondido fell short of IDEA’s
    procedural requirements, but did not deny D.O. a FAPE.