D.O. v. Escondido Union School Dist.

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 at1121–22; 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.