FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`D.O., By and Through His Guardian
`Ad Litem Sonya Walker,
`
`
`
`
`Plaintiff-Appellee,
`
` v.
`
`ESCONDIDO UNION SCHOOL
`DISTRICT,
`
`
`
` Defendant-Appellant.
`
`
`
` No. 21-55498
`
`D.C. No.
`3:17-cv-02400-
`BEN-MDD
`
`
`OPINION
`
`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.
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`D.O., By and Through His Guardian
`Ad Litem Sonya Walker,
`
`
`
`
`Plaintiff-Appellee,
`
` v.
`
`ESCONDIDO UNION SCHOOL
`DISTRICT,
`
`
`
` Defendant-Appellant.
`
`
`
` No. 21-55498
`
`D.C. No.
`3:17-cv-02400-
`BEN-MDD
`
`
`OPINION
`
`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 district court’s summary
`The panel reversed
`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:
`
`Intervention
`Intensive Behavior
`[Escondido]’s
`Through
`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
` Escondido’s request for Dr.
`obtain invalid results.”
`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
` The district court quoted
`potentially autistic child.”
`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 pr
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
