The Ninth Circuit recently held in Timothy O. v. Paso Robles Unified School District (May 23, 2016, 9th Cir. 14-55800) that the District violated the procedural requirements of the Individuals with Disabilities Education Act (IDEA) by failing to conduct a formal assessment of a student in his “suspected disability” of autism when it had notice that this was a potential area of need. Accordingly, the student’s resulting Individualized Education Program (IEP) failed to address his unique needs, and deprived him of a free, appropriate public education (FAPE), entitling the parents to an appropriate remedy.
In 2011, Timothy’s parents filed a due process complaint with the Office of Administrative Hearings (OAH) alleging that the District violated the IDEA and the California Education Code by failing to assess him in his suspected disability of autism and failing to address his behavioral issues (e.g., refusal to speak, tantrums, noncompliance). OAH ruled for the District, finding that the student failed to establish that he should have been assessed in the areas of autism, in light of the fact that his Regional Center assessment was already so thorough and had documented his autistic symptoms, and the IEP team considered that report in making its placement decision. On appeal, the District Court affirmed OAH’s judgment under a different rationale, finding that the District did not have to formally assess the student for autism because the school psychologist already observed him during his initial evaluation and did not see him exhibit any obvious characteristics of a child with autism that would warrant formal assessment.
The Ninth Circuit Court of Appeal reversed the District Court’s decision. The Court explained that the IDEA and the California Education Code require a school district to assess a child 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); Ed. Code, § 56320(f).) A disability is “suspected” if the district receives notice “in the form of expressed parental concerns about a child’s symptoms . . . , of expressed opinions by informed professionals . . . , or even by other less formal indicators, such as the child’s behavior in or out of the classroom.” Once the district receives notice of a child’s suspected disability, the formal assessment procedures are triggered. The district’s duty to conduct a formal assessment cannot be discharged by a district employee’s informal observations. Likewise, the district’s duty to assess cannot be satisfied merely by reviewing and considering a Regional Center assessment during the IEP process, given that a Regional Center assessment is to determine qualification for regional center services, and not to determine the child’s educational needs or qualification for special education under the IDEA. Here, because the District failed to conduct its own formal assessment with respect to Timothy’s “suspected disability” of autism, the resulting IEP failed to provide him with a FAPE.
The Timothy O. opinion stands for the principle that a school district must conduct its own formal assessments across all areas of suspected disability once it has reason to “suspect” the student has a disability that requires special education. It is imperative that a school district conduct its own formal assessments instead of relying on an outside assessment not designed to obtain evaluative information about the student’s educational needs or qualification for special education under the IDEA. Any district that wishes to consider an independent non-educational assessment as part of the IEP process should first take steps to ensure that the non-educational assessment is “conducted and considered in a manner that complies with the [IDEA]” (e.g., that the assessor uses “a variety of assessment tools and strategies,” uses “technically sound instruments,” etc.). This includes providing the parents with proper notice that the IEP team will be considering the non-educational assessment, so as not to hinder the parents’ participation in the IEP process.
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