Timothy O. v. Paso Robles Unified School District

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY O., individually; No. 14-55800
AMY O., individually; L. O.,
Timothy O. as guardian ad D.C. No.
litem for his minor, 2:12-cv-06385-JGB-JEM
Plaintiffs-Appellants,
v. OPINION
PASO ROBLES UNIFIED
SCHOOL DISTRICT,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Argued and Submitted December 7, 2015
Pasadena, California
Filed May 23, 2016
Before: Stephen Reinhardt, John T. Noonan,
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Reinhardt
2 TIMOTHY O. V. PASO ROBLES USD
SUMMARY*
Individuals with Disabilities Education Act
The panel reversed the district court’s judgment in favor
of the defendant school district in an action brought under the
Individuals with Disabilities Education Act.
The panel held that the school district violated the
procedural requirements of the IDEA by failing to formally
assess a student for autism, even though this was an area of
suspected disability. As a result, the school district was
unable to design an educational plan that addressed the
student’s unique needs, and it denied him a free appropriate
public education. The panel remanded for determination of
an appropriate remedy.
COUNSEL
Marcy J.K. Tiffany (argued), Tiffany Law Group, Torrance,
California, for Plaintiffs-Appellants.
Diane Beall (argued), Kronick, Moskovitz, Tiedmann &
Girard, Sacramento, California, for Defendant-Appellee.
Sarah Erickson André, Michael P. Curtis, and Irene
Tatevosyan, Nixon Peabody LLP, Los Angeles, California,
for Amicus Curiae Learning Rights Law Center.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
TIMOTHY O. V. PASO ROBLES USD 3
Maureen R. Graves, Fountain Valley, California, as and for
Amicus Curiae California Association of Parent-Child
Advocacy.
Selene Almazan-Altobelli, Towson, Maryland, as and for
Amicus Curiae Council of Parent Attorneys and Advocates.
Jan E. Tomsky and Chad J. Graff, Fagen Friedman & Fulfrost
LLP, Oakland, California, for Amicus Curiae California
School Boards Association’s Education Legal Alliance.
OPINION
REINHARDT, Circuit Judge:
The Center for Disease Control and Prevention estimates
that nearly one in sixty-eight children has autism spectrum
disorder, a neurodevelopmental disorder that is characterized,
in varying degrees, by difficulty communicating and
socializing and by restricted repetitive behavior, interests, and
activities.1 The disorder is present from birth, or very early
in development, and affects children’s ability to communicate
ideas and feelings, to use their imagination, and to develop
relationships with others. Every individual with autism
spectrum disorder is unique, although the main characteristics
in children—behavioral deficits in eye contact, responding to
one’s name, joint attention behavior, pretend play, imitation,
1
See CDC Autism and Developmental Disabilities Monitoring Network,
Prevalence of Autism Spectrum Disorder Among Children Aged 8
Years (Mar. 28, 2014), http://www.cdc.gov/mmwr/preview/mmwrhtml/
ss6302a1.htm?s_cid=ss6302a1_w.
4 TIMOTHY O. V. PASO ROBLES USD
nonverbal communication, and language development—are
measurable by eighteen months of age.2
Early diagnosis and intervention is critical for the
education of children with autism. In fact, with early and
appropriate intervention, as many as 25% of children with
early autism will, at an early age, no longer meet the criteria
for that disorder. For the remaining children, intervention in
the child’s preschool years greatly increases the likelihood
that the child will learn to verbally communicate. Indeed, the
success of early intervention techniques has lowered the
number of autistic children who will remain non-verbal
throughout their lifetime to fewer than 10%, down from
roughly 50% in the 1980s. Early intervention also minimizes
the secondary symptoms and disruptive behavior, such as
aggression, tantrums, and self-injury, that are displayed by
children with the disorder. If left untreated, however,
symptoms of autism spectrum disorder can become more
severe and require extensive and expensive therapeutic
interventions.3
2
See Amanda J. ex rel. Annette J. v. Clark Cty. Sch. Dist., 267 F.3d 877,
882–83 (9th Cir. 2007).
3
See Lynn Kern Koegal et al., The Importance of Early Identification
and Intervention for Children with or at Risk for Autism Spectrum
Disorders, 16.1 INT’L J. OF SPEECH-LANGUAGE PATHOLOGY 50, 51–52
(2014). See also Gary E. Marchant & Jason S. Robert, Predictive Health
Technologies: Genetic Testing for Autism Predisposition: Ethical, Legal
and Social Challenges, 9 HOUS. J. HEALTH L. & POL’Y 203, 208–11
(Spring 2009).
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Luke4 is a child with autism.5 Under the Individuals with
Disabilities Education Act ( “IDEA” or “the Act”), 20 U.S.C.
§§ 1400–1487, the defendant Paso Robles Unified School
District (“Paso Robles”) became responsible for providing
Luke with a free appropriate public education (“FAPE”)
when he turned three years old. In order to ensure that
children with disabilities receive an appropriate education
tailored to their unique condition, the IDEA requires that
when a school district is afforded reason to suspect that a
child has a disability, it “conduct a full and individual initial
evaluation” that ensures the child is assessed for “all areas of
suspected disability,” using a variety of reliable and
technically sound instruments. 20 U.S.C. §§ 1414(a)(1),
(b)(2)–(3). At the time of Luke’s initial evaluation, Paso
Robles was aware that Luke displayed signs of autistic
behavior, and therefore, autism was a suspected disability for
which it was required to assess him. It chose, however, not
to formally assess him for autism because a member of its
staff opined, after an informal, unscientific observation of the
child, that Luke merely had an expressive language delay, not
a disorder on the autism spectrum. We hold that, in so doing,
Paso Robles violated the procedural requirements of the
4
In the caption, Luke is named “L.O.” In his brief on appeal, as in this
opinion, he is referred to as Luke.
5
At the time this case was filed, “autism spectrum disorder” was not
recognized as a single disorder, but rather, as subgroups associated with
the severity of the person’s symptoms: Autistic Disorder, Asperger’s
Disorder, Childhood Disintegrative Disorder, and Pervasive
Developmental Disorder Not Otherwise Specified. Since the 2013
revisions to the Diagnostic and Statistical Manual of Mental Disorders,
however, these subgroups have been replaced by the umbrella term
“autism spectrum disorder.” Throughout this opinion, the original
subgroups will generally be referred to individually and collectively as
“disorders on the autism spectrum” or “autism.”
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IDEA and, as a result, was unable to design an educational
plan that addressed Luke’s unique needs. Accordingly, we
hold that Paso Robles denied Luke a free appropriate public
education, and remand for the determination of an appropriate
remedy.
STATUTORY AND REGULATORY BACKGROUND
The Individuals with Disabilities Education Act
(originally the Education for All Handicapped Children Act),
was designed to reverse a history of educational neglect for
disabled children. Schaffer ex rel. Schaffer v. Weast,
546 U.S. 49, 52 (2005) (citing H.R. Rep. No. 94-332, p. 2
(1975)). At the time of its passage, the need for institutional
reform was pervasive: millions of children with a multitude
of disabilities were entirely excluded from public schools,
and others, while present, could not benefit from the
experience because of undiagnosed—and therefore
unaddressed—disabilities. See 20 U.S.C. § 1400(c)(2).
With the goal of remedying these systemic problems, the
Act conditions the receipt of federal funds on States’
maintenance of policies and procedures ensuring that a “free
appropriate public education” is available to all children with
disabilities between the ages of three and twenty-one. Id.§ 1412(a)(1)(A).6 A free appropriate public education
requires the provision of “specially designed instruction, at
6
A “child with a disability” is one who has either intellectual
disabilities, hearing impairments, speech or language impairments, visual
impairments, serious emotional disturbance, orthopedic impairments,
autism, traumatic brain injury, other health impairments, or specific
learning disabilities, and who, by reason thereof, needs special education
and related services. 20 U.S.C. § 1401(3)(A).
TIMOTHY O. V. PASO ROBLES USD 7
no cost to the parents, to meet the unique needs of a child
with a disability,” id. § 1401(9) & (29), as well as
transportation, developmental, corrective and other
supportive services required to ensure that the child benefits
from that special education, id. § 1401(26).
Identification and Evaluation of Children with
Disabilities
In order to provide a free appropriate public education to
all children with disabilities States must, of course, first
identify those children and evaluate their disabling
conditions. Accordingly, the IDEA requires that every State
have procedures in place that are designed to identify children
who may need special education services. Id.
§ 1412(a)(3)(A). Once identified, those children must be
evaluated and assessed for all suspected disabilities so that
the school district can begin the process of determining what
special education and related services will address the child’s
individual needs. See id. §§ 1412(a)(7), 1414(a)–(c).
That this evaluation is done early, thoroughly, and
reliably is of extreme importance to the education of children.
Otherwise, many disabilities will go undiagnosed, neglected,
or improperly treated in the classroom. See id. § 1400(c).
For this reason, the IDEA requires that local school districts7
must “conduct a full and individual initial evaluation” of a
7
Specifically, the statute requires that the initial evaluation be conducted
by a “State educational agency, other State agency, or local educational
agency.” A State educational agency is the State agency primarily
responsible for the State supervision of public schools. 20 U.S.C.
§ 1401(32). Generally, a “local educational agency” is synonymous with
the local school district. See id. § 1401(19). Thus, for simplicity’s sake,
this opinion will refer simply to “school districts,” or “the district.”
8 TIMOTHY O. V. PASO ROBLES USD
child “before the initial provision of special education and
related services” to that child. Id. § 1414(a)(1)(A) (emphasis
added).8 Furthermore, the IDEA and its accompanying
regulations contain an extensive set of procedural
requirements that are designed to ensure that this initial
evaluation (as well as any subsequent reevaluations) achieves
a complete result that can be reliably used to create an
appropriate and individualized educational plan tailored to the
needs of the child.
First, the initial evaluation must be designed not only to
determine whether the child has a disability, but also “to
gather relevant functional, developmental, and academic
information about the child,” that can be used to determine
the child’s individual educational needs. 34 C.F.R.
§ 300.304(b)(1); 20 U.S.C. § 1414(a)(1)(C). The school
district must, therefore, “ensure that– . . . the child is assessed
in all areas of suspected disability.” 20 U.S.C.
§ 1414(b)(3)(B) (emphasis added). Anything less would not
provide a complete picture of the child’s needs.
Second, the local school district must provide notice to
the child’s parents that describes “any evaluation procedures”
8
Any parents who have reason to suspect their child may have a
disability may request such an initial evaluation. 34 C.F.R. § 300.301(b).
If the school district wishes to deny the request, it must provide written
notice to the parents explaining that it refuses to conduct an initial
evaluation and provide an explanation as to why it does not suspect the
child has a disability and what records or evaluations it used as the basis
for its decision. 34 C.F.R. § 300.503(a) & (b). A parent may then
challenge this decision by requesting a due process hearing under
34 C.F.R. § 300.507 or filing a State complaint under 34 C.F.R.
§ 300.153. The school district may also initiate an evaluation sua sponte
if it seeks and receives parental consent. 34 C.F.R. § 300.301(b).
TIMOTHY O. V. PASO ROBLES USD 9
that the district proposes to conduct, as well as why it has
made those decisions. 20 U.S.C. § 1414(b)(1) (emphasis
added); 34 C.F.R. § 300.304(a). The statute further requires,
inter alia, that in conducting the evaluation, school districts
must:
1. Use a “variety of assessment tools and
strategies” without relying on “any single
measure or assessment as the sole
criterion for determining whether a child
is a child with a disability or determining
an appropriate educational program for
the child,” 20 U.S.C. § 1414(b)(2)(A) &
(B);
2. Use “technically sound instruments that
may assess the relative contribution of
cognitive and behavioral factors, in
addition to physical or developmental
factors,” id. § 1414(b)(2)(C); and
3. Ensure that all assessments are conducted
by trained and knowledgeable personnel,
in accordance with instructions provided
by the producer of the assessment, and for
purposes which the assessments or
measures are valid and reliable, id.
§ 1414(b)(3)(A).
Upon completion of this full and individual initial evaluation,
the school district shall provide a copy of the evaluative
report to the child’s parents. Id. § 1414(b)(4)(B). If the
parents disagree with the school district’s evaluation of their
child, they have a right to “obtain an independent educational
10 TIMOTHY O. V. PASO ROBLES USD
evaluation” or “IEE” at public expense. 20 U.S.C.
§ 1415(b)(1); 34 C.F.R. § 300.502.
Creation of an Individualized Education Program
(“IEP”)
The results of the initial evaluation are critical to the next
step of the process: the creation of an individualized
education program or “IEP.” The IEP is a written document
that states the child’s present levels of academic achievement
and functional performance, creates measurable annual goals
for the child, describes the child’s progress toward meeting
the annual goals, and explains the services that will be
provided to the child to help him advance toward attaining his
particular goals. 20 U.S.C. § 1414(d)(1)(A). It is created by
a child’s “IEP Team”—which consists of the child’s parents,
teachers, evaluators, and administrators, see generally
Winkelman ex rel. Winkelman v. Parma City Sch. Dist.,
550 U.S. 516, 524 (2007)—after the team has considered the
child’s strengths, the parents’ concerns about the child’s
education, and the results of the school district’s initial
evaluation of the child, which (if done appropriately)
provides a complete picture of the child’s specific academic,
developmental, and functional needs. See 20 U.S.C.
§ 1414(d)(3)(A)(iii); 34 C.F.R. § 300.304(b)(1).
Although the IDEA gives discretion to school districts to
create and execute appropriate educational programs for
children with disabilities, the IDEA requires that parents be
afforded a significant and collaborative role in the
development of a child’s IEP. Winkelman, 550 U.S. at 524.
To that end, the IDEA contains a significant number of
procedural safeguards that are designed to ensure that the
child’s parents have sufficient information to understand and
TIMOTHY O. V. PASO ROBLES USD 11
participate meaningfully in all aspects of that discussion. See
M.M. v. Lafayette Sch. Dist., 767 F.3d 842, 851 (9th Cir.
2014). It requires, among other things, that school districts
provide copies of the initial evaluative report to the parents,
20 U.S.C. § 1414(b)(4), thoroughly document all information
used to evaluate the educational needs of the child, 34 C.F.R.
§ 300.306(c)(1), and provide parents with an opportunity to
examine all of their child’s records. 20 U.S.C. § 1415(b)(1).
It also requires that parents be given formal, written
notice whenever the school district intends to change or
refuses to change the identification, evaluation, or educational
placement of their child. Id. § 1415(b)(3). That notice must
not only describe the action proposed or refused by the
agency, but also explain why the agency proposes or refuses
to take the action, as well as the records or assessments that
the agency used as a basis for its decision. 34 C.F.R.
§ 300.503(a) & (b).
Further, any parent who is dissatisfied with the
identification, evaluation, or educational placement of the
child must have the opportunity to present a formal
complaint. 20 U.S.C. § 1415(b)(6). Whenever a complaint
is filed, the school district must convene a meeting with the
parents and members of the IEP Team during which the
parents may discuss the complaint and give the school district
the opportunity to resolve it. Id. § 1415(f)(1)(B)(i). If the
school district does not resolve the complaint to the
satisfaction of the parents within thirty days, the parents have
the right to an impartial due process hearing before an
administrative law judge. Id. § 1415(f)(1)(B)(ii). Any party
aggrieved by the findings and decision rendered at the
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hearing may appeal to the state educational agency or may b
ring a civil action in federal court. Id. § 1415(i)(2)(A).9
FACTUAL BACKGROUND
Luke, an autistic child, was five years old when this case
was originally filed. He displayed symptoms of a
developmental disorder early in life, and in March 2009,
when he was twenty-seven months old, he began to receive
speech, language, and occupational therapy at the Tri-
Counties Regional Center (“Tri-Counties”). Tri-Counties,
like all regional centers in California, is a nonprofit private
corporation that contracts with the Department of
Developmental Services to provide early intervention services
for at-risk infants and toddlers.10 California children under
the age of three qualify for services at regional centers if they
have a “developmental delay in one or more of the following
five areas: cognitive development; physical and motor
development, including vision and hearing; communication
development; social or emotional development; or adaptive
development” or if they suffer from “conditions of known
etiology or conditions with established harmful
developmental consequences.” Cal. Gov’t Code § 95014.
After the age of three, local school districts become
responsible for the education of children with disabilities.
20 U.S.C. § 1412. In California, however, children can also
9
To ensure that parents are aware of these rights, school districts are
required to provide parents an explanation of these procedural safeguards.
20 U.S.C. § 1415(c)(1)(C).
10
Cal. Dep’t Dev. Serv., Information About Regional Centers,
http://www.dds.ca.gov/RC/Home.cfm.
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continue to receive services at private regional centers if they
have “mental retardation, autism, epilepsy, cerebral palsy, or
a condition that is similar to mental retardation or requires
similar treatment.” Cal. Welf. & Inst. Code § 4512. At least
at the time of the events in this case, that meant that children
with Autistic Disorder, but not any other disorder on the
spectrum, were eligible for continued regional center
services.11 In contrast, under the IDEA and the California law
that supplements that Act, local school districts have at all
times been required to provide special education services to
a much broader category of children, including any child who
manifests autistic-like behavior, regardless whether he or she
has been formally diagnosed with Autistic Disorder. See
34 C.F.R. § 300.8(c)(1); Cal. Educ. Code § 56846.2(a).12
11
As noted supra note 3, at the time of the events in this case, “autism
spectrum disorder” was not yet recognized as a single disorder. Although
the California Department of Developmental Services did not take a
formal position as to whether ‘autism’ in the California statute regarding
regional centers referred to any disorder on the spectrum or merely
Autistic Disorder, it filed briefs supporting the decisions of regional
centers not to offer continued services to children with disorders other
than Autistic Disorder. This ultimately resulted in the California Court of
Appeal concluding, in an unpublished decision, that “autism” in this
statute was synonymous with Autistic Disorder. See Brian S. v.
Delgadillo, 2010 WL 2933624 (Cal. App. 2010) (unpublished). It is not
clear what effect, if any, the recent changes to the Diagnostic and
Statistical Manual would have on this interpretation.
12
The IDEA requires that local school districts provide special education
services to children with autism, but allows the States to define what
qualifies as autistic for the purpose of special education. Some states, for
example, follow the medical definition found in the Diagnostic and
Statistical Manual. In California at the time of the events in this case, any
child who displayed two of seven listed types of autistic-like behavior
qualified as ‘autistic’ for the purpose of receiving special education
through local school districts, regardless whether the child had been
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After three months of Luke’s receiving services at Tri-
Counties, his parents had a meeting with staff from Tri-
Counties and Paso Robles to discuss what would happen
when Luke turned three years old. During that meeting, Paso
Robles scheduled a date on which it would conduct an initial
assessment to determine whether Luke was a child with a
disability and therefore qualified for special education and
related services under the IDEA. Paso Robles’ notes of that
meeting reflect that the group discussed how Luke seemingly
had no health needs, but that there were concerns about his
speech, and that Tri-Counties would perform a psychological
assessment of Luke—presumably to test for Autistic
Disorder—in order to determine whether he qualified for
further regional center services.13
On October 30, 2009, a few weeks before Luke’s third
birthday, Paso Robles conducted Luke’s initial evaluation.
formally diagnosed with any disorder on the spectrum. 5 C.C.R.
§ 3030(g) (2009).
13
Although Paso Robles’ records do not state precisely what Tri-
Counties wanted to test Luke for, Autistic Disorder seems to be the only
true possibility. If Luke had “no health needs,” he certainly would not
qualify for further regional center services as a child with either epilepsy
or cerebral palsy. Further, nothing in the record suggests that he displayed
any signs of mental retardation “or a condition that is similar to mental
retardation,” which are the only other conditions, aside from autism, that
would have qualified him for continued regional center services. The
conclusion that Tri-Counties wanted to perform a psychological
assessment for Autistic Disorder, and, in fact, discussed that possibility
with Paso Robles at the June 2009 meeting is also made clear by the fact
that (1) Paso Robles conceded in the district court that it “was aware” that
the Regional Center suspected Luke was autistic before it conducted its
own assessment, and (2) Tri-Counties ultimately assessed Luke for autism
but not for any other disabilities.
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According to the notice provided to Luke’s parents, Luke was
to be assessed by Christie Youngdale, a resource specialist for
Paso Robles, and Lisa Stinson, a speech and language
therapist, for academic/pre-academic achievement, sensory-
motor development, communication development, and health
issues. He was not, the notice reflected, to be given any
assessments under the category of “social/adaptive behavior,”
the category covering disorders on the autism spectrum.
Youngdale and Stinson observed Luke and tried to engage
him in play, but their attempts to utilize standard assessment
tools were unsuccessful because of his “compliance” issues.
During the assessment, William Peck, a Paso Robles
psychologist, stopped by and observed Luke for
approximately thirty to forty minutes. Although the notice to
Luke’s parents mentioned nothing about Peck’s involvement,
Peck later testified that he came to observe in order to
“consult with the staff in terms of possible handicapping
conditions which may be – may have or may not have been
present.” Specifically, he later admitted, “there was a
possibility of looking at autism as a handicapping condition.”
Rather than schedule a formal assessment for that condition,
however, Peck merely observed Luke in order to advise Paso
Robles’ staff whether it needed to conduct a full and formal
test for autism. This was, apparently, his standard practice.
Peck at no point explained the purpose of his visit to Luke’s
parents. Indeed, during the observation, he did not
communicate at all with either Luke or his parents, who were
present while the tests were administered.
From his cursory observation, during which he did not
utilize any standard assessment tools, Peck concluded that
there was no need for Paso Robles to formally assess Luke
for any disorder on the autism spectrum because he saw Luke
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use a “variety of facial expressions,” display emotions, and
demonstrate his “skill at turn-taking.” In Peck’s opinion, this
was uncharacteristic of a child with a disorder on the autism
spectrum. Relying on this informal advice, Paso Robles
concluded that Luke had only an expressive language
impairment—not autism—and without taking any steps to
assess Luke for autism or autistic-like behaviors, or to ensure
that he would be so assessed, it scheduled an initial IEP
meeting for early December 2009.14 At no point, however,
did Paso Robles explain to Luke’s parents that it had thought
about assessing Luke for autism, and indeed, had called Peck
in to observe for that reason. Nor did it explain that it had
decided not to formally assess Luke for autism based on
Peck’s recommendation.
On November 18, 2009, Tri-Counties performed a
psychological assessment of Luke to determine whether he
had Autistic Disorder and therefore qualified for continued
regional center services after the age of three. Dr. Linda
Griffin’s final report concluded that:
Luke has some autistic symptoms which are a
concern. He has significantly delayed
expressive language; he is also not exhibiting
varied and frequent social pretend play, with
the exception of transportation toys. He
prefers to play alone much of the time. His
joint attention to adult directed tasks is poor
14
On November 10, Paso Robles called Tri-Counties asking if it had
assessed Luke. Tri-Counties told Paso Robles that it had not yet received
consent from Luke’s parents to conduct an assessment. That same day,
Paso Robles sent invitations to the IEP meeting, demonstrating its intent
to proceed to the IEP meeting without an assessment for autism.
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generally speaking, however there are
exceptions seemingly dependent on the nature
of the activity . . . It is difficult to get his
attention. . . . With the exception of his
expressive language delay which is very
pronounced, the severity of the other
symptoms above are mild in my opinion;
however, taken together, they stand in contrast
to a child with only a language disorder.
She provisionally diagnosed Luke with Pervasive
Developmental Disorder, Not Otherwise Specified (“PDD-
NOS”), a disorder on the autism spectrum, and opined that
potentially, with “therapeutic intervention[]” Luke might no
longer meet the criteria for that disorder, but that “[i]t is very
important that he receive appropriate interventions that
address his areas of concern” because “mild symptoms may
become more pronounced over time.”
Tri-Counties sent a copy of Dr. Griffin’s report
(hereinafter “Griffin Report”) to Paso Robles, which received
it on December 2, 2009, two days before the initial IEP
meeting. Despite its diagnosis and recommendation, the
report was not discussed at the IEP meeting; nor did Paso
Robles reevaluate its decision not to assess Luke for autism.15
15
Paso Robles argues that the Griffin Report was “considered,” at the
IEP meeting, and indeed, the administrative law judge so found. The sole
support for this statement is a single question asked at the administrative
hearing. Peck, who was a member of the IEP Team, was asked “So did
you consider that assessment at the 12/4/2009 IEP meeting?” and he
responded “Yes.” Regardless whether Peck himself considered the Griffin
Report at the meeting, there is no evidence that the assessment was
discussed at the meeting as part of the collaborative process mandated by
the IDEA. The IEP itself does not mention the Griffin Report, and another
18 TIMOTHY O. V. PASO ROBLES USD
Indeed, Paso Robles contends that Dr. Griffin’s diagnosis was
insufficient to even create suspicion that Luke had a disorder
on the autism spectrum because Peck’s earlier observation of
Luke had dispelled any suspicion that Luke had such a
disorder and because Dr. Griffin’s “provisional” diagnosis
was not conclusive.
The IEP that was created as a result of the meeting
identified Luke’s disability as a “speech or language
impairment,” and set several goals for Luke to achieve in
those areas, including a goal that he would begin speaking in
small phrases, have a limited vocabulary of fifteen to twenty
words, and use other nonverbal means to communicate. Luke
was offered group speech and language services for twenty-
five minutes, seven times a month, as well as placement in a
preschool classroom that met two days a week for 1.5 hours
each day. The IEP contained no mention of any disorder on
the autism spectrum or even any possibility of such a
disorder.
The 2009–2010 School Year
Luke exhibited signs of extreme difficulty in his first year
of school. He often refused to leave his mother’s side and,
according to her, displayed other problems in his classroom
behavior. In February, Youngdale suggested that Luke
should be transferred to a more intensive program.
Ultimately, however, neither Paso Robles nor Luke’s parents
member of Paso Robles’ staff who testified at length about what was
considered during the IEP meeting never once mentioned the Griffin
Report. Further, Luke’s mother testified that she did not know that the
school district had received a copy of the report because it was never
mentioned during the meeting.
TIMOTHY O. V. PASO ROBLES USD 19
called an IEP meeting to discuss such a change. Luke’s
mother also expressed concerns about aggressive and
obsessive behavior outside the school, and asked his other
teacher, Stinson, whether Luke might be autistic. Without
scheduling an assessment, Stinson assured Luke’s mother that
he was not, but also suggested that Luke might make better
progress in a more intensive program.
In May, another IEP meeting was held. The team agreed
that Luke would attend a more intensive preschool program
in the next year, but that he would not receive extended
school year services over the summer.
The 2010–2011 School Year
During the summer of 2010, Luke’s parents had him
privately evaluated by a speech and language pathologist, an
occupational therapist, and a neurologist. Subsequently, his
parents determined that he would not return to Paso Robles
for preschool, and that instead, he would be educated at home
utilizing the private services of a behaviorist. In October
2010, however, in part due to the cost of the private services,
Luke returned to school.
Luke’s IEP was amended to reflect that he would attend
a preschool class taught by Noah Cooper. This class, which
met three hours a day, had approximately eight students with
mild to moderate language and social skill defects, some of
whom had autism or exhibited autistic-like behavior. Luke
began attending the class in November. While in Cooper’s
class, Luke would occasionally whisper to his peers, but
would immediately stop speaking when an adult approached.
20 TIMOTHY O. V. PASO ROBLES USD
At an IEP meeting in December 2010, staff expressed
concern that Luke was not talking to either adults or peers
and suggested that he might have “selective mutism.” Luke’s
parents reported that he was having tantrums at home,
including crying and aggressive behavior. According to
Peck, it was apparent from these complaints that Luke
displayed several types of autistic-like behavior, which would
ordinarily qualify him to receive special education services
for autism, but he did not mention that possibility at the IEP
meeting because:
[W]e didn’t have an assessment to address
that disability. In other words, off the top of
my head, I’m not going to be at an IEP
meeting and say a kid has autism when I
haven’t done an assessment specifically using
instruments standardized and developed to
make that particular determination. I’m just
not going to make that diagnosis off the top of
my head.
Despite having previously expressed the view that Paso
Robles did not need to assess Luke for disorders on the
autism spectrum, Peck did not inform the IEP Team of his
new concern or suggest that Luke should now be assessed for
autism.16
16
Peck at no point explained why he was previously able to make a
diagnosis “off the top of [his] head” as to why Luke did not have autism
without doing an assessment, but because he could not know the answer
without an assessment, would not advise the participants at the IEP
meeting that he now believed that Luke might have such a disability.
TIMOTHY O. V. PASO ROBLES USD 21
As the year progressed, Cooper continued to try to
accommodate Luke’s refusal to speak, and Luke’s mother
continued to communicate her concerns that Luke was
demonstrating aggressive behavior at home. In January, her
attorney sent a letter to Paso Robles informing the District
that Luke had obtained legal representation and that his
parents requested that the school fund an independent
educational evaluation of Luke for autism. His parents also
retained the services of Genevieve Sullivan, a behavior
specialist, to observe Luke in class and had him privately
assessed for autism by Dr. B.J. Freeman, a well-respected
national expert on autism and autism-like disorders.
Dr. Freeman diagnosed Luke with Autistic Disorder. She
determined that Luke needed a positive behavior support plan
to address his problems, including his refusal to talk. Luke’s
mother testified that she told several members of Paso
Robles’ staff, including Luke’s teacher, about this diagnosis.
The next month, Paso Robles announced that it would finally
do a formal and comprehensive evaluation of Luke,
motivated by his parents seeking “some type of outside
assessment.” Paso Robles did not complete the assessment
for almost an entire year, until January 2012, after which
Peck opined for the first time that Luke had autistic-like
behavior.
In the meantime, Luke’s parents arranged for him to
receive behavioral therapy from Sullivan’s agency. Within
a few short weeks, Luke began speaking to unfamiliar adults,
and a few months later he was speaking in multi-word
sentences to therapists, his parents, and non-family members
who had never before heard him speak.
22 TIMOTHY O. V. PASO ROBLES USD
PROCEDURAL BACKGROUND
On July 6, 2011, Luke’s parents filed a request for a due
process hearing with the Office of Administrative Hearings,
alleging in relevant part that Paso Robles violated the
procedural and substantive requirements of the IDEA and the
California Education Code by (1) failing to assess Luke in all
areas of suspected disability, specifically autism; and
(2) failing to appropriately address his behavioral issues, such
as refusing to speak, tantrums, and non-compliance, during
the 2010–2011 school year.17 They further alleged that, by
violating these requirements, the school denied Luke a free
appropriate public education during the 2009–2010 and
2010–2011 school years. They requested, as a remedy for
these violations, that Paso Robles pay for the private
assessments and private behavioral services that Luke
received, that it provide Luke with compensatory behavioral
and speech services, and that it include the behavioral therapy
recommended by Dr. Freeman as part of Luke’s ongoing
educational program. His parents also withdrew Luke from
school in a letter dated July 15, 2011.
17
Plaintiffs raise both of these issues on appeal. Because we hold that
Paso Robles denied Luke a free appropriate public education by failing to
assess him for autism, we do not reach the second question
presented—whether the school district denied Luke a free appropriate
public education by failing to address his behavioral issues. The plaintiffs
also presented a host of other issues before the administrative law judge,
including whether Luke should have been made eligible for special
education under the category of “autistic-like,” none of which is raised on
this appeal. Amicus Curiae California Boards Association’s Education
Legal Alliance asks us to hold that neither the IDEA nor California law
entitles special education students to a particular diagnosis or “eligibility
classification.” That question, however, is different from the question
whether a school district must assess a child for all areas of suspected
disability and, as noted, is no longer at issue in this case.
TIMOTHY O. V. PASO ROBLES USD 23
A multi-day hearing was held in March and April of
2012. On July 6, 2012, the administrative law judge (“ALJ”)
denied all of Luke’s claims. Most relevant to the current
appeal, the ALJ declined to address whether Paso Robles’
October 2009 initial evaluation of Luke was deficient, and
instead found that, “[b]ecause Dr. Griffin’s report was so
thorough, the District saw no need to conduct further
assessments of [Luke], and relied heavily on the report.”
Without citing any authority, she held that Luke “failed to
meet his burden of proof that the District should have
assessed him in the areas of autism and behavior.” Even if
Paso Robles was required to assess for autism, the ALJ found,
that failure was harmless because Paso Robles relied heavily
on Dr. Griffin’s assessment when creating Luke’s IEP. The
ALJ also concluded that Paso Robles did not need to assess
Luke for autism or behavioral functioning in the 2010–2011
school year because Luke did not display any serious autistic-
like behavior at school.
Luke’s parents appealed the ALJ’s decision to the United
States District Court for the Central District of California.
The district court affirmed the ALJ’s decision, but adopted a
different rationale. The district court concluded that Paso
Robles “knew” that Tri-Counties suspected Luke might be
autistic, but it did not need to formally assess Luke for autism
because Peck observed him at his initial evaluation on
October 30, 2009 and did not observe obvious characteristics
of a child with autism. The district court also agreed with the
ALJ that, even if Paso Robles was required to perform an
assessment of Luke for autism, any failure to do so was
harmless because Paso Robles “made appropriate
recommendations” based on Dr. Griffin’s report which
assessed Luke for autism. Further, the court asserted, Paso
Robles did not need to reassess Luke in 2010 because Luke’s
24 TIMOTHY O. V. PASO ROBLES USD
parents never requested a reassessment, and because his
teacher reasonably wanted to observe Luke for a longer
period of time to determine what testing needed to be done.
This appeal followed.
STANDARD OF REVIEW
This case requires us to review both the decision of the
district court and that of the administrative law judge. We
review de novo the question whether a school district’s
proposed individualized education program provided a free
appropriate public education. Amanda J., 267 F.3d at 887.
In doing so, we may review a district court’s findings of fact
only for clear error. Id. Further, we must offer “due weight”
to the decisions of the state’s administrative bodies, a
standard which is far less deferential than judicial review of
other agency actions, but rather, requires us to refrain from
substituting our “own notions of sound educational policy for
those of the school authorities which [we] review.” Id.
(quoting Rowley v. Bd. of Educ., 458 U.S. 176, 206 (1982)).
ANALYSIS
School districts may deny a child a free appropriate public
education by violating either the substantive or procedural
requirements of the IDEA. M.M., 767 F.3d at 852. A school
district denies a child a free appropriate public education by
violating the IDEA’s substantive requirements when it offers
a child an IEP that is not reasonably calculated to enable the
child to receive educational benefits. J.W. ex rel. J.E.W. v.
Fresno Unified Sch. Dist., 626 F.3d 431, 432–33 (9th Cir.
2010). The school district may also, however, deny the child
a free appropriate public education by failing to comply with
the IDEA’s extensive and carefully drafted procedures. See
TIMOTHY O. V. PASO ROBLES USD 25
Doug C. v. Hawaii Dep’t of Educ., 720 F.3d 1038, 1043 (9th
Cir. 2013). While some procedural violations can be
harmless, procedural violations that substantially interfere
with the parents’ opportunity to participate in the IEP
formulation process, result in the loss of educational
opportunity, or actually cause a deprivation of educational
benefits “clearly result in the denial of a [free appropriate
public education.]” Amanda J., 267 F.3d at 892.
Luke’s primary contention on this appeal is that Paso
Robles violated the IDEA’s essential procedural requirement
that it conduct an initial evaluation to assess a child “for all
areas of suspected disabilities” when it failed to formally
assess him for autism or autistic-like behavior. We agree and
reject the district court’s holding that, although Paso Robles
was aware that Tri-Counties suspected Luke might be
autistic, it did not need to assess him for autism because one
of the District’s staff members, William Peck, informally
observed Luke and did not see him exhibit any such behavior.
The IDEA requires that, if a school district has notice that a
child has displayed symptoms of a covered disability, it must
assess that child in all areas of that disability using the
thorough and reliable procedures specified in the Act. School
districts cannot circumvent that responsibility by way of
informal observations, nor can the subjective opinion of a
staff member dispel such reported suspicion. Further, we
reject the ALJ’s equivocal and unsupported statement that
Paso Robles may not have needed to assess Luke for autism
because it “knew” that Tri-Counties was going to assess him.
There is no support for this finding in the record and, even if
there were, Paso Robles took no steps to ensure that any
assessment by Tri-Counties complied with the requirements
of the IDEA imposed on the District. Under these
circumstances, the potential Tri-Counties assessment could
26 TIMOTHY O. V. PASO ROBLES USD
not satisfy Paso Robles’ obligation to conduct an IDEA-
compliant individual initial evaluation prior to developing
Luke’s IEP and providing special education services to Luke.
Finally, we hold that Paso Robles’ fundamental
procedural violations denied Luke a free appropriate public
education during the 2009–2010 and 2010–2011 school years
because the District’s failure to assess Luke for all areas of
suspected disability deprived his IEP Team of critical
evaluative information about his developmental abilities as an
autistic child. That deprivation made it impossible for the
IEP Team to consider and recommend appropriate services
necessary to address Luke’s unique needs, thus depriving him
of critical educational opportunities and substantially
impairing his parents’ ability to fully participate in the
collaborative IEP process. In so holding, we reject the
argument advanced by both the district court and the ALJ that
any failure to assess Luke for autism was rendered harmless
by Paso Robles’ reliance on the Griffin Report in creating
Luke’s IEP. There is no evidence in the record that Dr.
Griffin’s assessment was conducted with the intent of helping
Luke’s IEP Team to develop an appropriate educational plan
or to gather all the necessary information required by the
IDEA for that purpose. Nor is there any evidence that the
Griffin Report was actually considered by Luke’s team as
part of the collaborative process mandated by the IDEA, or
that the information it collected or its findings were
incorporated into Luke’s IEP. In fact, all the evidence is to
the contrary. Accordingly, we reverse the decision of the
district court and remand for the determination of an
appropriate remedy.
TIMOTHY O. V. PASO ROBLES USD 27
I. Paso Robles Failed to Conduct an Assessment for
Autism, as Required by the IDEA
Under the IDEA, the school district must conduct a “full
and individual initial evaluation,” one which ensures that the
child is assessed in “all areas of suspected disability,” before
providing that child with any special education services.
20 U.S.C. §§ 1414(a)(1)(A), 1414(b)(3)(B). The California
Education Code, which incorporates the requirements of the
IDEA into state law, similarly requires that the child be
assessed “in all areas related to the suspected disability.” See
Cal. Educ. Code § 56320(f). As described earlier, this
requirement serves a critical purpose: it allows the child’s
IEP Team to have a complete picture of the child’s
functional, developmental, and academic needs, which in turn
allows the team to design an individualized and appropriate
educational plan tailored to the needs of the individual child.
Our precedent establishes that a disability is “suspected,”
and therefore must be assessed by a school district, when the
district has notice that the child has displayed symptoms of
that disability. In Pasatiempo by Pasatiempo v. Aizawa,
103 F.3d 796 (9th Cir. 1996), for example, we held that the
“informed suspicions of parents, who may have consulted
outside experts,” trigger the requirement to assess, even if the
school district disagrees with the parent’s suspicions because
“[t]he identification [and assessment] of children who have
disabilities should be a cooperative and consultative process.”
Id. at 802. Once either the school district or the parents
suspect disability, we held, a test must be performed so that
parents can “receive notification of, and have the opportunity
to contest, conclusions regarding their children.” Id.28 TIMOTHY O. V. PASO ROBLES USD
Similarly, in N.B. v. Hellgate Elementary School District,
541 F.3d 1202 (9th Cir. 2008), we held that the requirement
to assess may be triggered by the informed suspicions of
outside experts. There, a young child was assessed by a
professional for speech and language problems before the
child began school. Id. at 1205–06. The professional
concluded that an “autistic component” was complicating the
child’s performance, although the professional did not
diagnose the child with a disorder on the autism spectrum.
Id. at 1209. The child’s parents delivered these records to the
school district’s special education director and discussed the
evaluation with him, but the school district never arranged for
the child to be assessed for autism. Id. at 1205–06. Instead,
it referred the child’s parents to a third party which would
perform a free autism test for the parents. Id. at 1206. The
school district, like Paso Robles, later claimed that it did not
arrange for the child to be tested because it did not suspect
that the child had autism. Id. at 1209. We held that the
district’s assertion of ignorance was plainly contradicted by
the record because the school was aware (due to the prior
evaluation) that autism was a possibility. Id. at 1209–10.
Here, the record shows that Paso Robles had notice that
Luke displayed symptoms of autism. Both the ALJ and the
district court found that Paso Robles was aware, before its
initial evaluation of Luke in October 2009, that Tri-Counties
believed that he might have a disorder on the autism
spectrum.18 Indeed, Peck admitted at the administrative
18
Paso Robles now asserts that there is no basis to conclude that Tri-
Counties told the District that it suspected Luke had autism. While the
notes from the June 2009 meeting between Luke’s parents, Tri-Counties,
and Paso Robles do not specifically mention “autism,”they do establish
that Tri-Counties wanted to give Luke a psychological examination to see
TIMOTHY O. V. PASO ROBLES USD 29
hearing that autism was a suspected disability when he stated
that he had been called to informally observe Luke’s initial
evaluation because there was a possibility of looking at
autism as a disabling condition.
Despite this knowledge, when creating a plan for Luke’s
initial assessment, Paso Robles did not include any of the
standard assessments for autism. Rather, the notice sent to
Luke’s parents reflected that he would not be given any
assessment for social/adaptive behavior, which would be
necessary in order to determine whether Luke had autistic-
like symptoms. Instead, during the October 2009 initial
assessment, Paso Robles attempted to assess Luke for several
other disorders, but was unable to complete its tests of him
because of Luke’s “compliance” issues. At no point during
its examination did Paso Robles conduct or attempt to
conduct any form of standard or reliable assessment for
autism or autistic-like behavior.
Moreover, even if Paso Robles had not had notice of
Luke’s autistic symptoms at the time of the October 30, 2009
initial assessment, it obtained such notice when it received
the Griffin Report, which “provisionally” diagnosed Luke
with a disorder on the autism spectrum and noted that he
displayed troubling autistic behavior. Peck testified that he
did not give much weight to Dr. Griffin’s assessment because
it was only a “provisional” diagnosis. Regardless of Paso
if he qualified for further regional center services, which he would qualify
for only if he had mental retardation, epilepsy, cerebral palsy, or autism.
The only plausible such disorder in Luke’s case was autism. In any event,
Paso Robles conceded in the district court that it was aware that Tri-
Counties suspected Luke was autistic before it conducted its own
assessment.
30 TIMOTHY O. V. PASO ROBLES USD
Robles’ subjective opinion about the validity of Dr. Griffin’s
diagnosis, however, the “informed suspicions of . . . [a]
consulted outside expert[]”—here, Dr. Griffin, whose report
stated that Luke displayed troubling autistic
behavior—establishes the statutory requirement of suspicion
thus necessitating a full assessment for autism. See
Pasatiempo, 103 F.3d at 802. Paso Robles still did not do so,
and instead, two days later, held an IEP meeting during which
neither autism nor the Griffin Report were ever discussed.
Further, neither the possibility of autism nor the
recommendations of the Griffin Report were incorporated
into Luke’s IEP.
Even more troubling, by the time of the December 2010
IEP, it was clear from parent and teacher complaints that
Luke displayed autistic-like behavior at home and at school.
Even then, Paso Robles did not suggest that Luke should be
provided services to address his autistic-like behavior or even
that Luke should be assessed for autism. This complete
failure to assess Luke for all areas of suspected disability
clearly and substantially violated the IDEA’s procedural
requirements.
A. Peck’s Informal Observation of Luke Could Not
Satisfy Paso Robles’ Obligation to Assess for Autism
Despite its clear notice of Luke’s autistic-like behavior,
Paso Robles argues that autism was not a “suspected
disability” either at the time of its October 2009 initial
assessment or after it received Dr. Griffin’s assessment. The
district court agreed, and held that while Paso Robles “knew
that [Tri-Counties] suspected that [Luke] may be autistic,” it
did not need to formally assess Luke because it had requested
that its staff member, Peck, observe informally Luke’s
TIMOTHY O. V. PASO ROBLES USD 31
assessment for other disorders and determine whether
additional testing was needed. According to Peck, he saw
Luke display behavior that was not characteristic of a child
with autism, and therefore advised the district that no
additional assessment was necessary. Specifically, the
district court wrote, it was “not aware of any authority that
supports that where the school district is on notice that a
student may be on the autism spectrum, observes the student,
and determines that he did not exhibit any characteristics of
autism, that the district is still required to complete additional
testing.”
That conclusion, however, is directly contrary to the
provisions of the IDEA and our precedent, which establish
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. That
notice may come in the form of expressed parental concerns
about a child’s symptoms, as in Pasatiempo, of expressed
opinions by informed professionals, as in Hellgate, or even
by other less formal indicators, such as the child’s behavior
in or out of the classroom. A school district cannot disregard
a non-frivolous suspicion of which it becomes aware simply
because of the subjective views of its staff, nor can it dispel
this suspicion through informal observation. Rather, such
notice automatically triggers mandatory statutory procedures:
the school district must conduct an assessment for all areas of
the suspected disability using the comprehensive and reliable
methods that the IDEA requires. In this case, it is particularly
egregious that in conducting Luke’s initial evaluation which
assessed him for other possible disorders, Paso Robles
deliberately refused to include an assessment of the one
suspected disability of which it had clear notice—autism.
32 TIMOTHY O. V. PASO ROBLES USD
Peck, of course, did not conduct an assessment for autism,
let alone one that complied with the IDEA. Not only was his
involvement in Luke’s initial evaluation not included within
the original notice provided to Luke’s parents, but he did not
use a variety of standard or reliable methods. 20 U.S.C.
§ 1414(b)(3)(A). Rather, he used only one, generally
unreliable method—informal observation—or to use a phrase
later employed by him, observation “off the top of my head.”
While the record reflects that a complex form of structured
observation may be used as a tool to identify autistic-like
behavior, Peck was not certified at that time to perform that
kind of testing, and in fact did not do so or even purport to
have attempted to do so.
To hold that Peck’s informal observation could overcome
Paso Robles’ statutory obligation to formally assess Luke for
a suspected disability would allow school districts to
disregard expressed and informed 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. This result would be particularly
devastating for children with autism because, as Dr. Freeman
explained at the administrative hearing, the condition “can be
very subtle” and manifest itself in many different ways. It
would likely be missed by an informal observation, resulting
in many children remaining undiagnosed, untreated, and
unable to reach their full educational potential. The effect,
moreover, would be felt most heavily by children from
disadvantaged families without the sophistication or
resources to obtain outside professional opinions.
TIMOTHY O. V. PASO ROBLES USD 33
B. The Griffin Report Cannot Qualify as an Assessment
that Satisfies Paso Robles’ Obligations Under the
IDEA
Although Paso Robles does not advance the argument on
appeal, the ALJ equivocally expressed an alternate theory as
to why Paso Robles did not need to assess Luke for autism.
Without citing any legal or factual support, the ALJ said that
“[t]he District knew that [Luke] was to be formally assessed
by a psychologist through Tri-Counties,” and the Griffin
Report “was so thorough, the District saw no need to conduct
further assessments of [Luke].” There is no support in the
record for this finding. The Griffin Report was conducted
explicitly for the purpose of assisting Tri-Counties in
determining whether Luke qualified for continued regional
center services, not to gather information about him that
could be used to determine his individual educational needs
or to determine whether he qualified for special education
under the IDEA. Further, Paso Robles took absolutely no
steps to ensure that this assessment would occur or that it
would be conducted and considered in a manner that
complies with the IDEA. It also did not inform Luke’s
parents that it intended to rely, or did in fact rely, on the
Griffin Report in creating Luke’s IEP. Accordingly, the
Griffin Report cannot qualify as an assessment that satisfies
Paso Robles’ obligations under the IDEA.19
19
Amicus Curiae Learning Rights Law Center asks that we hold that
school districts are never allowed to rely on the assessments performed by
regional centers as a substitute for conducting their own. According to the
amicus, the regional center’s assessment is performed strictly for the
purpose of diagnosing a child to determine eligibility to receive continued
regional center services, whereas, in contrast, school districts must
perform assessments not only to diagnose children’s medical disability,
but also to assess the child’s strengths and needs for educational planning,
34 TIMOTHY O. V. PASO ROBLES USD
As an initial matter, there is no support for the ALJ’s
suggestion that Paso Robles did not assess Luke for autism
because it “knew” that he was going to be assessed by Tri-
Counties or for the finding that Paso Robles believed the
Griffin Report to be comprehensive and thorough. To the
contrary, the record clearly establishes that the reason Paso
Robles did not assess Luke for autism was because it did not
subjectively believe that he was autistic and because Peck had
not observed any autistic-like behavior during his informal
observation of Luke. Had Paso Robles truly intended to rely
on Tri-Counties’ assessment of Luke, it surely would have
taken steps to ensure that the assessment occurred when, on
November 10, 2009, it learned that Tri-Counties had not yet
received parental consent to conduct an assessment. Instead,
Paso Robles sent invitations to Luke’s December IEP meeting
that same day, signaling its intent to proceed without any
assessment for autism by Tri-Counties or otherwise.
Testimony from the administrative hearing, moreover, reveals
that Paso Robles’ staff believed the Griffin Report to be
unreliable and inaccurate and that the District therefore
disregarded it entirely. Peck criticized Dr. Griffin’s
methodology, and explained that he understood the
“provisional” diagnosis to mean the results of the test were
non-conclusive. Similarly, Stinson testified that she believed
that Paso Robles could ignore the provisional diagnosis
because the school district received a lot of reports of PDD-
NOS when the child had only a severe language impairment.
Moreover, even were we to accept the ALJ’s clearly
erroneous factual findings, we would still be compelled to
conclude that Paso Robles violated the IDEA because it took
including helping in the creation of an IEP. We express no view on this
question.
TIMOTHY O. V. PASO ROBLES USD 35
absolutely no steps to “ensure” that the Tri-Counties
assessment occurred or was conducted and considered in a
manner that complies with the Act. See Hellgate, 541 F.3d at
1209 (holding that a school district may not “abdicate” its
responsibilities under the IDEA and that merely referring a
child’s parents to a third party for testing violates the
statutory requirement that the school district “ensure” that the
child is assessed). Paso Robles did not explain to Luke’s
parents that it intended to rely on Tri-Counties to assess Luke
for autism or include an assessment for autism in Luke’s
initial evaluation plan. See 20 U.S.C. § 1414(b)(1) & (c)(1).
It also did not take any steps to ensure that the Tri-Counties
assessment actually took place, nor did it give Luke’s parents
notice that the Griffin Report would be considered in creating
Luke’s IEP, as it would be required to do if it were part of
Paso Robles’ initial evaluation. See 20 U.S.C.
§ 1414(d)(3)(A)(iii) (requiring that the IEP Team consider
“the results of the initial evaluation”); 34 C.F.R. § 300.503(prior notice requirement). Finally, as described below in
Part II, the report was never discussed or considered by
Luke’s IEP Team when creating his initial IEP.
In short, the record clearly reflects that Paso Robles was
on notice that Luke might have a disorder on the autism
spectrum before it developed and provided him with special
educational services. It was therefore required by the IDEA
to ensure that an assessment for that disability was conducted
using the sound and reliable methods that the Act demands
and to consider the results of that assessment when creating
Luke’s IEP and providing him special education services. It
failed to do so, which in itself constituted a substantial
procedural violation of the IDEA.
36 TIMOTHY O. V. PASO ROBLES USD
II. Paso Robles’ Violation of the IDEA’s Procedural
Requirements Denied Luke a Free Appropriate
Education
Having concluded that Paso Robles violated the
procedural requirements of the IDEA, we must determine
whether the violations are “sufficient to support a finding that
[Luke] was denied a [free appropriate public education].”
Amanda J., 267 F.3d at 892. While some procedural
violations of the IDEA may be harmless, such errors
constitute a denial of a free appropriate public education if
they seriously impair the parents’ opportunity to participate
in the IEP formulation process, result in the loss of
educational opportunity for the child, or cause a deprivation
of the child’s educational benefits. Id.; see also M.L. v. Fed.
Way Sch. Dist., 394 F.3d 634, 652 (9th Cir. 2005) (Gould, J.,
concurring). 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.” Doug C., 720 F.3d at 1047 (quoting M.L.,
394 F.3d at 657 (Gould, J., concurring)). As we have
previously held, to succeed on a claim that a child was denied
a free appropriate public education because of a procedural
error, the individual need not definitively show that his
educational placement would have been different without the
error. Id.On more than one occasion, we have held that the
provision of a free appropriate public education is
“impossible” when the IEP Team fails to obtain information
that might show that the child is autistic. See, e.g., Hellgate,
541 F.3d at 1210 (“The failure to obtain critical medical
information about whether a child has autism ‘render[s] the
accomplishment of the IDEA’s goals—and the achievement
TIMOTHY O. V. PASO ROBLES USD 37
of a free appropriate public education—impossible.’”);
Amanda J., 267 F.3d at 894 (“The IEP team could not create
an IEP that addressed Amanda’s special needs as an autistic
child without knowing that Amanda was autistic.”).20
We reaffirm that holding today. As in Hellgate and
Amanda J., any goals set forth in Luke’s IEP were likely
inappropriate because they were made without sufficient
evaluative information about Luke’s individual capabilities as
an autistic child. Indeed, testimony from Paso Robles’ staff
indicates that any ostensible progress that Luke made was
likely attributable to an “underestimation of his abilities” at
the outset.21 Further, this lack of information denied Luke
20
Weissburg v. Lancaster School District, 591 F.3d 1255 (9th Cir.
2010), cited by the amicus in support of the school district, does not
undermine these cases. There, we noted that the IDEA does not give a
student the legal right to a proper disability classification. Whether Luke
should have been given a different eligibility classification, however, is
not the basis of the plaintiffs’ appeal. Instead, the question is whether the
IEP Team could have properly created an individualized education plan
tailored to Luke’s particular needs without having before it the statutorily
required assessment of him for autism.
21
Although not essential to our holding that Luke was denied a FAPE,
some evidence in the record suggests that Luke did not actually make
meaningful progress toward even the limited goals in his IEP. There were
conversations between Luke’s parents and teachers during the 2009–2010
school year to the effect that Luke was not making adequate progress
toward his goals and required a more intensive program. Further, Luke’s
assessment score dropped significantly between November 2009—when
he was assessed by Dr. Griffin before he received any special education
from Paso Robles—and January 2012—when he was assessed by Dr.
Freeman. As Dr. Freeman explained, if Luke had made “meaningful
progress,” the score would have remained the same or increased. A
significant drop suggested that Luke was “not keeping pace.”
38 TIMOTHY O. V. PASO ROBLES USD
educational opportunities and substantially hindered his
parents’ ability to participate in the IEP process.
Here, there is strong reason to believe that alternative
services would have at least been more seriously considered
during the collaborative IEP process if the school district had
formally assessed Luke for autism. See Doug C., 720 F.3d at
1047. Because Luke was never formally so assessed, several
members of Paso Robles’ staff treated him as if he had
selective mutism, an anxiety disorder. Rather than engaging
in positive interventions to encourage Luke to talk, the staff
strove to create an environment that would minimize his
supposed anxiety. As Luke’s private behaviorist explained,
these actions should not have been taken in the case of an
autistic child and may actually have reinforced Luke’s refusal
to speak. Similarly, as Erika Castro, a Paso Robles speech
therapist, testified, had she been aware that Luke had been
diagnosed by Dr. Griffin as having a disorder on the autism
spectrum, she would not have suggested that he was
selectively mute. Indeed, because she was under the
misperception that Luke’s refusal to speak was due to an
anxiety disorder, she never suggested to Luke’s teacher that
he needed to be seen and possibly be treated by a
behaviorist—a recommendation that she might have
otherwise made. Such a referral would likely have been of
immense benefit with respect to Luke’s education, as
evidenced by the tremendous improvement in his speech once
he began receiving such services.
Further, by failing to assess Luke for autism, Paso Robles
deprived Luke’s parents of vital information necessary for
them to meaningfully participate in the IEP process. It is
clear from the record that Paso Robles considered assessing
Luke for autism but decided not to do so after Peck’s
TIMOTHY O. V. PASO ROBLES USD 39
informal and procedurally inadequate observation. It did not,
however, explain this to Luke’s parents. Without this
information, his parents—who were not represented by
counsel at the time—had no reason to question the initial
evaluation report and had no basis to request an independent
educational evaluation.
Paso Robles argues that it provided Luke with a free
appropriate public education because its staff would have
made the same recommendations as to the specialized
services Luke required regardless whether he had been
diagnosed as autistic. Peck, for example, testified that he
would have made the same recommendations during the
December 2009 IEP.22 This argument is plainly contradicted
by the fact that Paso Robles’ staff treated Luke as if he were
selectively mute, which they certainly would not have done
if they had an assessment for autism. Even if true, however,
this argument misses a central concern of our inquiry. The
creation of an IEP is not a unilateral enterprise by the school
district, but rather, a collaborative process that necessitates
parents’ input. Regardless whether Paso Robles staff might
have made identical recommendations in the absence of
informed parental participation in the collaborative process,
the failure to obtain necessary information about Luke’s
disorder prevented an informed discussion with his parents
22
Regardless of the veracity of this statement, the record strongly
suggests that Peck would at least have made different recommendations
at the December 2010 IEP. As he admitted during the administrative
hearing, he did not suggest that Luke had autism or needed treatment for
autistic behavior during that meeting because he had not yet “done an
assessment” for autism. We need not further comment on how his
testimony that he would not do so “off the top of [his] head” comports
with the role he played in 2009 when he ruled out the need for an autism
assessment on the basis of a casual observation.
40 TIMOTHY O. V. PASO ROBLES USD
about his specific needs as an autistic child. Thus, Paso
Robles’ violation of the statutory requirement deprived Luke
of educational opportunities and substantially hindered his
parents’ participation in the process. So that there may be no
similar misunderstanding in the future, we will say it once
again: the failure to obtain critical and statutorily mandated
medical information about an autistic child and about his
particular educational needs “‘render[s] the accomplishment
of the IDEA’s goals—and the achievement of a
FAPE—impossible.’” Hellgate, 541 F.3d at 1210 (emphasis
added) (quoting Amanda J., 267 F.3d at 894). Because the
school district failed to conduct the statutorily mandated
assessment of “all areas of suspected disability” it necessarily
deprived Luke of a free appropriate public education.
Finally, in so holding, we reject the argument of the ALJ
and the district court that any failure by Paso Robles to assess
Luke for autism was harmless because Paso Robles relied
heavily on the Griffin Report when creating Luke’s IEP.
There are three substantial problems with this argument:
(1) there is no evidence that Paso Robles took any steps to
ensure that the Griffin Report was conducted in a manner that
complied with the IDEA’s procedural requirements, (2) the
determination that Paso Robles relied on the Griffin Report
is entirely unsupported by, indeed is contrary to, the evidence
in the record, and (3) any reliance on the Griffin Report was
without notice to or discussion with Luke’s parents, which
would have substantially hindered their ability to fully and
fairly participate in the IEP process, thus exacerbating the
denial to Luke of a free appropriate public education.
First, as discussed supra Section I.B, Paso Robles took
absolutely no steps to “ensure” that the Tri-Counties
assessment occurred or that it was conducted in a manner that
TIMOTHY O. V. PASO ROBLES USD 41
complies with the procedural requirements of the Act. See
Hellgate, 541 F.3d at 1209. Second, there is absolutely no
evidence that the Griffin Report was actually discussed at
Luke’s December 2009 IEP meeting or that it was relied on
at any point during the development of the IEP. The only
evidence that it was considered at all is a single statement
made by Peck at the administrative hearing that he considered
it during the initial IEP meeting. When asked “So did you
consider that assessment at the 12/4/2009 IEP meeting?” he
responded “Yes.” The fact that Peck “considered” the Griffin
Assessment, however, does not suggest that it was relied
upon when creating Luke’s IEP or that it was carefully
considered by the entire IEP Team. Rather, the argument is
directly contrary to the unrefuted evidence that Paso Robles
considered the report to be unreliable: Peck read the report,
believed the “provisional” diagnosis meant that the results
were non-conclusive, disregarded it, and did not even
mention it during the IEP meeting. Similarly, none of Paso
Robles’ other staff members mentioned the Griffin Report
when describing what the IEP Team discussed at the IEP
meeting, and indeed, Luke’s mother testified that she did not
even know that the school district had received a copy of the
report because it was never mentioned. The IEP, of course,
makes absolutely no mention of the report. Finally, Paso
Robles has maintained throughout these proceedings that the
Griffin Reportmobook was of so little significance as not
even to warrant a suspicion of autism.
Third, even if we were to accept the clearly erroneous
factual finding that the report was “considered,” that
consideration would have constituted a further procedural
violation that would only have exacerbated the denial of a
free appropriate public education to Luke. That is because
any purported reliance on the Griffin Report would have
42 TIMOTHY O. V. PASO ROBLES USD
occurred without notice to Luke’s parents that the assessment
was being considered in creating the IEP, as required by
34 C.F.R. § 300.503(a) & (b). The notice requirement
provides parents with information necessary to an
understanding of the rationale behind the school district’s
proposal, thus ensuring the “meaningful participation by
parents and informed parental consent” that the IDEA was
designed to afford. M.M., 767 F.3d at 851. If Paso Robles
had given Luke’s parents written notice that the Griffin
Report would be considered in drafting the IEP, it would have
been required to explain to them why it disagreed with Dr.
Griffin’s diagnosis and to state whether it was making any
recommendations for Luke’s education based on her report.
In the absence of such notice, however, Luke’s parents were
left without critical information. Because they did not have
Paso Robles’ relative sophistication, they could not be
expected to understand how Tri-Counties’ test results could
affect Luke’s special education eligibility or what services
needed to be provided in light of Dr. Griffin’s diagnosis.
Accordingly, they could not give informed consent or
participate meaningfully in the creation of the IEP, a separate
statutory violation in itself.
Because we hold that the failure to assess Luke for autism
constituted a substantial procedural violation of the IDEA that
denied him a free appropriate public education during the
2009–2010 and 2010–2011 school years, we need not address
the separate question raised by him on this appeal: whether
the school district’s failure to take appropriate steps to
address his refusal to speak denied him a free appropriate
education during those same years.
TIMOTHY O. V. PASO ROBLES USD 43
CONCLUSION
Well before creating an individual education plan for
Luke, Paso Robles had notice that he might have a disorder
on the autism spectrum. Under the IDEA, the school district
had an affirmative obligation to formally assess Luke for
autism using reliable, standardized, and statutorily proscribed
methods. Paso Robles, however, ignored the clear evidence
requiring it to do so, and instead determined that Luke was
not autistic based on the view of a staff member who opined,
after a casual observation, that Luke did not display signs of
autism. This failure to formally assess Luke’s disability
rendered the provision of a free appropriate education
impossible and left his autism untreated for years while Paso
Robles’s staff, because of a lack of adequate information,
took actions that may have been counter-productive and
reinforced Luke’s refusal to speak. We hold, therefore, that
Paso Robles violated the IDEA and denied Luke a free
appropriate public education during the 2009–2010 and
2010–2011 school years. We reverse the decision of the
district court and remand for a determination of the
appropriate remedy.
REVERSED AND REMANDED.