JG v. Douglas County School District

JG; NG; RG; SG, Plaintiffs-

Appellants,

DOUGLAS COUNTY SCHOOL

DISTRICT, Defendant-

Appellee.

No. 06-17380. Appeals,

United States Court of

Ninth Circuit. Sept.

Argued and Submitted

Filed Dec. against segregating the children

nation developmentally preschool them into a delayed youngsters. are twin brothers

Appellants JG and NG delays speech pat- who exhibited their Belcove-Shalin, W. Heaiv- William Janet difficulties. developmental terns and other Disability ilin, Nevada Bigley, P. Lynne May their mother took them to On NV, Center, Vegas, Las Law Advocacy & Brain screening at the Power Com- free plaintiffs-appellants. for the (“the Center”). munity Learning Center for chil- private The offers services Center Minden, Hales, Hales, R. Rowe & James The Center dren 16705 with disabilities. Lockie, MacFar- NV; B. Lockie & David County Douglas the twins to the referred NV, defendant-appellee. lan, Elko, for District”) (“the and told School Damon, Campbell, A. Jonathan David pro- had a mother that the District their Lamb, Macrae, LeBoef, & Chica- Greene children gram developmentally-delayed for IL, the amicus. go, for program.1 the TEDDY called 5, 2003, May the twins’ mother went On Find Office and to the District’s Child for each two-page questionnaire received a questionnaires, completed child. She con- the District’s Child Find Office and F. DIARMUID Before: on receipt questionnaires firmed of both GOULD, O’SCANNLAIN, M. RONALD that parties agree The May 2003. BEA, Judges. T. Circuit and CARLOS provide Ap- required IDEA GOULD; by Judge Concurrence Opinion proposal notice of a to evalu- pellants with BEA. by Judge proce- copy of IDEA’S ate the twins and May safeguards dural GOULD, Judge: Circuit (2000). (d)(1)(A) 1415(b)(3), § § U.S.C. with Disabilities consider Individuals however, District, notify not did (“IDEA”) a Re- claims and Education Act evaluations that it would conduct NG, twins, and Act claim of JG habilitation August until of the twins autism, parents, of their RG have who to evaluate the required the District (unless indicated, “Ap- otherwise and SG time of within a reasonable children Appellants). all four refers to pellants” 300.343(b) 34 C.F.R. May 7 date. school controversy arises out of the (1999). began ad- Although the District par- notifying the twins’ delay district’s the twins as tests to evaluate ministering the twins for it would evaluate ents that 20, 2003, complete it did not early as June disabilities; of time it from the amount 15, 2003, of the any evaluation until diagnose them school district took the begin to evaluate children. It did autism; challenges that con- from the 25, 2003. September until twins for autism implemen- in its fronted the school district to its the twins The District referred Education Pro- of an Individualized tation 20, 2003. The (“IEP”) children; Day on June Find and Child gram for each could be if the twins twins’ mother asked alleged discrimi- from the school district’s Delayed Youngsters. Develop- mentally Teaching Early 1. TEDDY stands earlier, Special but the District’s but it tested took several more weeks before she who reviewed the Education Teacher begin could her assessment of either of did not have a high twins’ initial forms them and another two weeks after and did not level of concern advance the before implemented she discrete trial test date. Thus, training. although the Center had begun testing May, the twins for autism in the District would

Without notice assessing was still the twins for autism twins, Appellants obtained evaluate the in July. for the twins from private evaluations May Center. On Center By July, late some of the Center staff twins, began evaluated and the twins believed that the twins were autistic. On receiving special education services one July 2003, the Director of the Center later.

week contacted the Special District’s Education 20, 2003, the twins attended the On June relayed Director and suspi- the Center’s Day. District’s Child Find Their mother cions. The Director of the Center said “speech development” pri- listed as her Speech the Center Pathologist, who mary crying, tantrumming, concern longest, worked with the twins the did toileting and other behavioral as issues. not believe that the twins had autism. On Special She also told the District’s Edu- day, the same the twins’ mother called the cation Teacher that both attended the District to ask if the assessments could be speech problems. Special for The Center scheduled earlier. The District did not Speech Education Teacher and the School change the test date. Pathologist gave each tests to the twins 15, 2003, August On the District con- responses. a lack of and received This ducted an assessment of each twin and responses lack of showed that the twins time, held an assessment meeting. At that delayed, developmentally were and the parents the twins’ copy received a Special Education Teacher concluded that Notice of Parent Rights, and their mother she further screening could not conduct at signed a “Parent Consent to Evaluate” Special that time. The Education Teacher form. parents Special The and the Edu- meeting scheduled an assessment on Au- cation Early Teacher also filled out Child- 15, 2003, gust more conduct individual- hood Screening Profiles for the twins. ized testing. Special The Education The District staff worked with the twins informally expressed Teacher that the Dis- for more than an hour but was unable to trict could use the scores from the tests get responses from either of the twins on administered, the Center had but she did many questions. The tests that the staff specific a request make for the rec- members sup- were able to administer ords. ported the conclusion that the twins had mid-June, Also the Center Discrete “developmental delays with speech delay Trainer,2 Trial an individual trained in major as a concern.” children, working with autistic met the Despite July twins. the phone She observed them for several call from the Center, weeks at the the August Center and home. The 15 assessments did not Center Trial any fact, Discrete Trainer started include tests for autism. the 15, 2003, working July with the twins on Special School Education Director had not Training commonly-used finally Discrete Trial is a with a behavior and there ais conse- therapy for Autistic children: teacher quence type positive reinforcement. —some child, prompts responds the then child suspicions to the On October the District the Center’s asked relayed sign a Consent for who would have ad- Release Psychologist, School They of Information from the Center. Deter- any tests for autism. ministered agreed, refused. The twins’ mother how- has autism re- mining whether student ever, bring the Center staff to a meet- good many assessments and takes quires ing on At that meeting, October require time. Some of the tests deal of the Center shared some data. The par- than a of the student for more observation ents said that would not more helpful get it is to know month because information from the Center unless the him assessing or her.3 child before paid District for it. 25, 2003, the District held an August On 9, 13, 16, 2003, On October and the twins’ mother. At meeting IEP with Psychologist completed School several presented her meeting, tests to determine whether the twins were pre-written copies, IEPs as draft autistic. She determined both twins eligible found the twins mildly-moderately autistic. The Dis- developmentally de- services under began trict working pro- new IEPs to layed category and offered services. pose for the twins. IEPs did not mention autism. Special On October Edu- mother attended the The twins’ cation told Teacher the mother about her 25, 2003, meeting with a labeled binder concern that she would not be able to “Autism,” Psychologist School implement newly proposed IEP. She regarding asked if there were concerns ability became comfortable with her to im- being autistic. The twins’ mother twins November, plement by early the IEPs af- thought that the responded Center staff ter learning pro- District would the twins could be autistic but training. vide her with more they were not sure. began Both exhibiting inap- twins new 25, 2003, August began the twins On propriate during behaviors the week of attending program. the District’s TEDDY 9, choking October 2003. These included They receiving continued services at the brother, books, their younger stomping on supplement program. the Center twins, tearing and books. The howev- up er, improved they since enrolled in the 25, 2003, one month after September On program, TEDDY with a resis- decreased Psychologist the School and two months toileting ability tance to and an increased Special after the Education Director had and rules. follow directions autism, possibility heard about the the Psychologist began assessing parents School the removed the twins from the 1, 2003, 13, 2003, program for the TEDDY on October ex- twins autism. On October parents stating pressing problem sent the District a letter concern about the new parents again twins had been evaluated as hav- behaviors. The asked the the to attend the ing requesting payment pay autism and for District to for twins services. Center Center. 2003, 28, July

3. The Center administered the Child Autism conversation with the Dis- Rating evaluations, day Scale autism test on the first of its only relayed suspected trict that the Center Thus, but Center's Discrete Trial the Center was not twins were autistic. complete took several weeks to Trainer diagnosis certain in its more than two months assessments. The record is unclear when the evaluating began after it the children. Center concluded the twins had autism. But 2003, 17, procedural a had committed violations the District held October On man- evaluating timely the twins the twins’ IEPs with update meeting that Appellants ner. She concluded should The District deter- results. the autism for Au- compensated be services between eligible as twins mined that both 25, gust awarding 13 and eligible $800.00 found JG autistic: compensate for those services. meeting eligi- and NG an October 4, 2003, meeting. The ble at a November parties appealed, September on new IEPs that added proposed 2, 2004, adopted Review Officer State training, trial extended for discrete time Hearing findings all of the Officer’s of fact analy- functional behavior year, and school awarding but reversed her decision and school. home sis at the twins’ The State Review Officer con- $800.00. cluded, however, that the District had de- 30, 2003, the twins’ mother On October a FAPE nied the twins when did not and asked who would called the District propos- with a notice of trainings trial conduct the discrete procedural al to evaluate and notice of held. The District where would be safeguards May on 7. The State Review that it had responded Program Specialist compensate ordered the District to Officer private two behavior ana- contracted with fifty percent of the cost of ob- implementing the dis- lysts support for evaluations, taining a total of the Center’s training program. crete trial $835. early November September Appellants ap- On They IEPs. wanted the rejected the twins’ They pealed to the court. district Trial Teacher to continue Discrete Center alleged discrimination in violation of sec- The District had working with the twins. Act tion 504 of the Rehabilitation of 1973. her, hiring but she did not have considered The district court affirmed the State Re- authorization. She was early childhood decision, granted view Officer’s the Dis- to work for the District ex- also reluctant summary judgment for trict’s motion supervisory in a role. cept claim, Ap- and denied discrimination Special Edu- On November summary judg- pellant’s cross-motion par- Director a letter to the cation wrote timely filed a notice of ment. proposal ents in which she described the appeal. Education Appropriate for a Free Public (1) argue appeal, Appellants On (“FAPE”), pay refused to for the Center’s court its discretion in re- district abused services, the District would and stated that ducing by fifty percent their award trials in a one-on-one deliver the discrete equitable reasons and abused its discretion group and small basis. awarding not them the costs of ser- sending the twins parents stopped (2) vices; 2003 IEPs were to the in mid-November because Center adequate provide IEPs and did not parents longer pay no for the could (3) FAPE; a twins with JG’s October keep services. The chose 2003 IEP and NG’s 2003 IEP November home, did not re- twins at and the twins FAPE; provide did not the twins with a any ceive services. (4) and the district court erred motion for granting On re- District’s sum- December hearing. mary judgment denying Appellants’ The Hear- quested process a due summary the Re- hearing February judgment a from motion for ing Officer held 16-20, Act claim. 2004. found that the District habilitation She

793 Dist., Valley 932, STANDARD OF REVIEW Sch. 496 F.3d Unified (9th Cir.2007) (internal quotation 937 court’s find We review the district omitted). marks and citation error, ings of fact for clear even when on an findings district court based those Analysis Duyn administrative record. v. Bak Van Children with disabilities are enti (9th 5J, 811, 502 F.3d er Sch. Dist. education, tled a public free Cir.2007); County Amanda J. Clark are entitled to education designed and tai Cir.2001). Dist., 267 F.3d appropriate lored to be to their disabilities. We review the district court’s conclusions By these means disabled children will be J., of law de novo. Amanda 267 F.3d integrated society into and enhance their personal well-being important and their cases, In IDEA unlike other societal contributions. Congress enacted action, reviewing cases administrative we IDEA to ensure that children with disabili employ highly do not deferential stan 1412(1) § ties receive a FAPE. 20 U.S.C. Nevertheless, Id. com dard of review. (2000). Supreme previous Court has plete inappropriate.” de novo review “is Id. ly said that a FAPE must “basic give weight” “due to the state adminis We students, opportunity” floor of to disabled proceedings. Duyn, trative Van 502 F.3d “potential-maximizing not a education.” at 817. fact-intensive nature of “[T]he Rowley, Bd. Educ. v. 458 U.S. of special eligibility education determination & n. S.Ct. L.Ed.2d 690 judicial (1982). of coupled with considerations brought cases under economy ap a more deferential 1415(e)(2), consider, first, § render we whether proach appropriate.” Hood v. Encinitas complied procedures state with the set Act,4 and, second, 1104 n. 4 Union Sch. forth in the whether the (9th Cir.2007). give particular defer program individualized educational devel “thorough oped through procedures ence to and careful” administra the Act’s was findings. Napa reasonably give ap- tive R.B. ex rel. F.B. v. calculated to the child J., agency In Amanda we stated: what the school district or state has 1415(b)(1)(A). found. 20 U.S.C. establishing "[P]ar- In addition to substantive re- quirements, proce- right ‘present complaints the IDEA also includes ents have the which, violated, safeguards may dural if respect any relating matter to the prevent receiving a child from a FAPE. identification, evaluation, or educational Among important procedural the most safe- child, placement provision or the ” guards protect parents’ are those that child.’ 20 U.S.C. [a FAPE] to such right development to be involved in the 1415(b)(1)(E). making their com- After plan. their child’s educational Parents not plaint, parents the are entitled to "an im- only represent the best interests of their partial process hearing ... conducted due development process, they child in the IEP agency by by or the State educational provide information about the child agency an local educational or intermediate developing comprehensive critical to IEP unit, by as determined State educational only they position and which are in a to agency,” by 20 law or the State educational guarantee parents ability know. To to 1415(b)(2), party § U.S.C. and if either is make informed decisions about their child's agen- dissatisfied with the state educational education, right grants the IDEA them the review, cy’s they may bring a civil action in relating to “examine all relevant records" court, 20 U.S.C. state or federal "identification, evaluation, to their child’s 1415(e)(2). § placement,” and educational as well as "to J., (footnote Amanda 267 F.3d at 882 omit- independent obtain an educational evalua- ted). disagree they tion” of child with their if 794 an of at the district court was abuse posed benefits.5 Id. educational

propriate urge Specifically, Appellants discretion. 206-07,102 3034. S.Ct. a full they us to hold that should receive IDEA procedures Compliance for the evalua- reimbursement Center’s ensuring every eligible that to is “essential for tions of the twins and reimbursement FAPE, proce and those child receives 23 and the Center’s services between June meaningful paren for dures which August 2003. impor are particularly participation tal J., IDEA, has the district court F.3d at 891. Under 267 tant.” Amanda appropriate relief highly specific power grant elaborate “When 1415(i)(2)(B) (2000); § safeguards equity. embodied U.S.C. procedural Dep’t v. general Burlington Sch. Comm. contrasted with the are [IDEA] Educ., 359, 374, 105 ad 471 U.S. S.Ct. imprecise substantive and somewhat (1985). Act, A court re in the we think L.Ed.2d 385 district contained monitions parties the conduct of both fash Congress attached to views importance that the Target safeguards ioning cannot be relief. W.G. v. Bd. procedural these of Trs. of (9th Dist., Range 960 F.2d Rowley, 458 U.S. gainsaid.” Cir.1992). court’s We review district S.Ct. 3034. discretion.

equitable award for abuse of the District’s Procedural A. Remedies T.A., Forest Grove Sch. Dist. No. 28 Violation Cir.2008). 1078, 1084-85 F.3d pro- requires school districts 1. for the Center’s Eval- Reimbursement to the prior parents notice vide “[w]ritten uations ... the local edu- child whenever of the (A) argue proposes ... to initiate agency cation (B) legally obligated initiate or to share the Center’s change; or refuses to or identification, evaluation, or evaluations and that the reduction their change, the child, unfairly punishes them. A school or the award placement educational duty evalu appropriate public independent a free edu- district has an provision of they may child.” 20 U.S.C. ate children after notice cation 1415(b)(3) (2000). learning The District did not have disabilities. 20 U.S.C. 1414; 1412(a)(3),(7)(2000); §§ N.B. v. notice until id. provide Appellants with this provid- Hellgate Elem. Sch. but should have (9th Cir.2008). 7,May 1209-10 ed the notice on conduct, agree Notwithstanding parents’ parties Both duty-bound when it the District was to evaluate procedural committed a violation impending Target Range, the twins. we concluded did not inform of its agreed though and that this viola- that even evaluations of twins Appel- private partic- a FAPE. to secure the child’s school’s deprived tion the twins of however, IEP school dis- remedy ipation meeting, im- in an argue, lants appropri- that: have available to them ... a free also noted public emphasizes spe- ate education which provides The IDEA states with federal funds designed help services educate children with disabilities if cial education related every they provide qualified child with a unique to meet their needs statutory J., (footnote omitted) meets the federal re- FAPE that 267 F.3d at 882 Amanda quirements. Congress enacted the IDEA (1994)). 1400(c) (quoting 20 U.S.C. “to assure that all children with disabilities duty give of its private that the school violation notice of triet had to ensure planned evaluations had Target Range, 960 F.2d at occurred. Be- participated. cause no causal connection exists between par- we held that the Although 1484-85. parents’ refusal to share the informa- determining in actions were relevant ents’ they gained from tion the Center and the relief, not reduce their reimburse- we did prior delay District’s in case, providing them at In another ment. Id. notice, Appellants are entitled to a full turn over a full doctor’s parents did not (noting reimbursement. See id. at 95 that child. Sch. Dist. report their Union about (9th Cir.1994). agreed plaintiffs “courts are im- Smith, 1519,1524 15 F.3d conduct, is, proper whatever it must be did not excuse the school dis- This also in significant related some substantial and to obtain evaluations for obligation trict’s way claim to the he now asserts” for the itself, were also entitled parents and those relief). equitable court to reduce a full reimbursement. Id. at 1527. conclude that the district court did not receive notice that Appellants its discretion it abused when affirmed the evaluate the the District would twins. only award of half of the costs of the twins’ Shortly they after should have received Appellants evaluations. are entitled to notice, private they took their children to $1,670.00, the full reimbursement for the to evaluate them. The conduct Center twins’ evaluations. seeking private evaluation they when were not told was reasonable 2. Reimbursement for the Center’s Ser- conduct evaluations that the District would vices if had of their children. Even Although some cases we have re- shared the Center’s results with the Dis- question viewed of reimbursement de trict, obligation the District’s to conduct its novo, recognized we have that this was not Target Range, remained. own evaluations keeping with the text of the statute nor Sch., 1484-85; at 15 F.3d 960 F.2d Union Supreme precedent. the dictates of Court at 1524. refusal to share this Appellants’ Grove, Thus, Forest 1084-85. information, therefore, not harm the did we review the denial of reimbursement for It had to obtain its own evalua- District. abuse of discretion. improper Ap- It to reduce

tion. would be when their conduct did not pellants’ award Appellants contend that the district Dobbs, Dan B. harm the District. See 1 its it did not court abused discretion when (2d 2.4(2), at 96 Law of Remedies equitable relief for the loss of ser- grant ed.1993) (discussing reducing equitable The district court concluded that no vices. stating for unclean hands and “the awards appropriate relief was because the twins plaintiffs remedy against the defendant during not entitled to services that not unless his misconduct should be denied Appellants argue they paid time. for defendant, actually has harmed the or has they during services this time because did put at least the defendant substantial not know that the District would misconduct”). harm services; risk of from that the twins needed the ser- vices; and that the twins should have been Appellants’ refusal to share information eligible after June but the services obligation had no to share has no unreasonably delayed connection to the District’s violation of evaluations. IDEA’S did provisions. notice absolutely not refuse to share this informa- The District violated IDEA when did October, long provide Appellants proce- tion until after the District’s notice of the 796 for handi- executing programs educational IDEA. 20 U.S.C. of safeguards

dural (2000). 1415(b)(3) safeguards, children, imposes signifi- Those it capped § [but] a however, notify about only to be followed requirements cant must The District evaluation. pending Rowley, discharge responsibility.” of that a determination only upon provide services 183, It re- 458 102 S.Ct. 3034. U.S. 1414, 1415(j). §§ It Id. eligibility. conduct an quires that a school district compensate Ap- to incongruous would be Assis- in a reasonable time. evaluation the District for services before pellants of. tance to States for Education Children eligible for the twins were had determined Early and the Interven- Disabilities With them. and Toddlers Program tion for Infants the twins needed argue Appellants 12406, Disabilities, Fed.Reg. 12440 with needs, however, have services. The twins’ (Mar. 1999) 12, (implementing 34 C.F.R. violation that bearing procedural no on 300.343). § But it allows states to estab- Further, May occurred on procedures. The Act en- lish their own IDEA notice of received Appellants compliance by conditioning funds sures learned that they would have procedures, Secretary approving of Education obligation had no 1412(a) § 20 U.S.C. procedures. those the twins’ evaluations. until after services (2000). led likely have This would on their own. is silent Although obtain services the text of statute timeliness, Secretary of on evaluation found and the Officer The State Review regulations promulgated Education has that the affirmed District Court require- time” impose a “reasonable timely under IDEA. evaluations 1414(a) (2000); § 34 C.F.R. ment. See id. delay argue that the evaluation (1999). Specifically, § 1999 the argues 300.343 was unreasonable.6 Secretary implemented regulation the state administra- a complied that it timeline rule, forty-five-school-day tive public agency “Each shall ensure stated: Nev. Admin. evaluating for children. of time period that within a reasonable 388.337(1)(A). consider what We Code agency’s receipt parent following the deference, given by us to any, if must be child-(i) of a consent to an initial evaluation ” on the fact regulation based the Nevada evaluated.... 34 C.F.R. The child is Secretary approved of Education (1999). required have also 300.343 determining disburse when timely suspected in all areas of evaluation whether, regard- also consider funds. We Hellgate Elem. Sch. disabilities. See the Dis- regulation, Nevada less of the (concluding that a F.3d at 1209-10 reason- in this instance were trict’s actions an evaluation district that did not obtain able. the child for autism for six months denied FAPE). n . The and IDEA Statute Nevada inter- of Education letters Department to the States IDEA “leaves IDEA have also preting explaining developing primary responsibility argued brief that its evalua argued issue was not and the District’s may that this It be timely, we do not hold this explicit tions were and so not made because it was raised INS, argument waived. See opening and it should be Appellants’ brief Alcaraz Cir.2004) (9th (holding that v. U.S. F.3d waived. Rattlesnake Coal. deemed exception to the waiver rule exists when an Agency, 509 F.3d Envt. Prot. However, Cir.2007). properly issue caused reading the failure to raise the we a fair think opposing party). prejudice implicitly issue no opening brief raises this

797 need for an initial evalua- the conclusion that the a the reasonableness of emphasized within a reasonable time. depends tion to occur child’s evaluation on the individual Programs, Education Special The Office of circumstances.7 administering office for principal IDEA, that an initial evaluation has stated Secretary Education’s de of delay.” undue be conducted “without must termination that a procedures state’s com Hehir, Dir., from Thomas Office of Letter ply with is entitled to IDEA some level of Lukhard, Programs, Jerry Saper- Special Edue. Reed, deference.8- See 481 stone, System, Health 21 Mental Services 1807, U.S. 107 S.Ct. 95 L.Ed.2d (OSEP 1994); 1127 see also 20 IDELR (1987) (noting Secretary 328 of Health (2000). That U.S.C. 1402 Office and Human Services was entitled to sub whether a noted that the determination of stantial deference his conclusion that a a timely district did not conduct school regulation state’s that personal included according applica- evaluation to IDEA and injury, determining family’s awards a must be made on a ble state standards “income and consistent resources” was case-by-case Stephanie Letter from basis. regulations with HHS that were silent on Lee, Dir., Special Office of Educ. Smith issue). that Secretary’s finding that Programs, Davis-Wellington, to Beth Chil- regulations Nevada’s comply with 2003) 19, Advocacy (Aug. dren’s Network requirements body expe of “constitute^ http://www.ed.gov/policy/ available rience and judgment informed to which speced/guid/idea/letters/2003-3/davis may properly resort for guidance.” [we] 081903fape3q2003.pdf. Co., 134, Skidmore v. & See U.S. Swift (1944). 65 S.Ct. 89 L.Ed. 124 Department

In of Education timeline, recognize Secretary While we impose specific declined to stat- has this ing doing experience judgment, so “could result in the time- we do not have being implemented only lines in a the benefit of a compli- interpretation written or sense, regard meeting Moreover, ance opinion. without formal when the Sec .... spirit requirement Although retary approved no the Nevada regulation specific given, implementation generally timeline is aas condition to the state receiv funds, ing should be done with all due haste.” 64 federal he did not indicate that Fed.Reg. Secretary’s at 12581. The refus- he determined the time limit was adopt specific such, al to supports timeline also reasonable each case. As we do occurred, year particular 7. A after the in this case should be conducted based on events Congress amended the Act to more allow for State circumstances.” Assistance to the imposing fpr an state discretion timelines States for Education of Children with Disabil- evaluation. The 2004 amendments to Act ities and Preschool Grants for Children with require days evaluations to occur "within 60 Disabilities, Fed.Reg. (Aug. receiving parental of consent for the evalua- 14, 2006). relating We do not reach issues tion, or, if the State establishes a timeframe interpretation of the statute as amended. within which the evaluation must be conclud- ed, within such timeframe." 20 U.S.C. Although agency's interpretation a state of 1414(a)(1)(C)(i)(I) 2005). (Supp. pro- V deference, federal law is not entitled to Ortho mulgating regulations part implement this Belshe, paedic Hosp. v. statute, Department of Education 1997), Secretary's approval Cir. explicitly sixty days declined to state that was agency's interpretation is due some def Instead, the maximum timeframe. it stated agency’s erence because it shows a federal permit the Act was intended "to States to interpretation of the federal that it is appro- make statute reasoned determinations of the - priate period charged of time in which evaluations to administer.' began receiving much when the twins Secretary’s judgment give services, days thirty- is 110 calendar weight. eight days. school forty-five- that Nevada’s holdWe 110-day delay was reasonable not an inconsistent is school-day timeline Nothing occurred at the June this case. timeli IDEA’S reasonable interpretation of that the Dis- Day 20 Child Find indicated hold, do not howev We requirement. ness expedite trict should the evaluations. districts with er, school provides that any earliest the District had notice of sus- applicable statute. under safe-harbor July autism was 2003. The pected reg with a state compliance Regardless of began evaluating the twins one requires IDEA ulatory requirement, administering tests began month later and time to a reasonable act within districts after that. The for autism one month To disabled children. potentially evaluate testimony that Hearing Officer credited sure, comply with state’s be a failure delay was stated this one-month essential of unreason good evidence regulation is valid test Premature produce results. reg delay.9 compliance But able trust and comfort testing requisite without necessarily mean that in ulation will not would be level between child and evaluator completed its district each case the school testimony that ineffective. Based on the period. in a reasonable investigation credible, Hearing Officer considered purposes impressed are delay was not unreasonable. school fulfilled when IDEA will be best prac as is expeditiously act as districts delays, like this Small administrative the evaluations tically possible complete one, especially delays pro needed to children. disabled results, mote effective test should not ren It the District’s actions unreasonable. der requires courts to consider also makes sense to allow school districts a individually. general See each child’s case leeway degree during summer vacation. 176, 102 Rowley, 458 S.Ct. ly U.S. Schs., Pub. See Doe Metro. Nashville its To allow a state to use L.Ed.2d 690. (6th Cir.2001) Fed.Appx. (upholding in the absence as a safe harbor regulations delay the child was out of six-month where regulation directive or congressional of a state, holidays, it occurred over the and it Congress’s flout allowing for such would to obtain re was difficult for the school judicial of IDEA claims intent that review information). quested Compliance with the child-specific. be and should be regulation state is relevant encompass a situa holding Our does not considered, disposi- ultimate and but the simply delays tion where a school district acted the District question tive is whether potentially in the face of a for a referral in a time. reasonable vaca solely autistic child because summer timely tion makes a evaluation difficult. of the Evaluation b. The Reasonableness district Oregon, In Adams v. the school Timeframe reduced a services to accommodate child’s plans. 195 required give district staffs summer vacation The District was (9th Cir.1999). 1141, 1144 The reduc a consent form on F.3d notice and bearing unique child’s From that date until tion had no May Indeed, regulation federal standards [under IDEA] of the state sistent with a violation court.”). Target Range, F.2d actionable. would be are also enforceable in federal ("State are not incon- at 1483 standards that deprived Having the child of a considered the record and therefore and the ar- needs 16722 school guments presented by parties FAPE. Id. at 1150-51. The well as law, child had applicable in Adams knew as the we district will not disturb an need for services. Id. our urgent the State Review finding. Officer’s case, knowledge did not have We hold that the district court abused until or even notice of the twins’ autism reducing its discretion in the reimburse- two weeks before the scheduled as- about ment of evaluation costs. The district sessments. court did not abuse its discretion in declin- Hellgate, the district learned stu- ing to award costs for services that the in potentially August, dent autistic was twins received between June 23 and Au- him to another institution for an referred 24, gust 2003. November, in and then

autism evaluation the evaluation until March. did not obtain August B. The 2003 IEPs Elementary N.B. Dist. 541 Hellgate Sch. Alleged 1. Procedural Violation concluded that this F.3d at 1205-06. We Appellants argue that the District a FAPE. Id. at resulted in a denial of comply procedures did not with set forth Here, completed the twins’ conducting 25, the Act in the August months of receiv- evaluations within three 2003, Specifically, Appellants evaluations. ing potentially notice that the children suf- urge us to conclude that the did District from autism. fered a proper not conduct evaluation it because give weight” “due to the administra- did not test the twins for autism before Duyn, 502 F.3d at proceedings. tive Van August finalized the Appel IEPs. carefully Review 817. The State Officer lants further assert even if the Dis and found the considered the record Dis- trict did IDEA comply procedures in a trict evaluated the twins reasonable evaluations, conducting developed the the Specifically, timeframe. the State Review reasonably IEPs were not calculated to Hearing Officer found the Officer’s conclu- benefit the twins. year days sion that extended school should forty-five-school-day August be included the The district court found that the 25, 2003, including timeline was error. Without evaluations were “full and indi- evaluations,” days, complied required by those the District had with vidual initial as 1414(a)(1)(A) (2000). § the timeline. He further found that IDEA. 20 U.S.C. requires District had evaluated the twins a rea- that a school district use “a variety strategies sonable time. He noted this was not of assessment tools and case, Adams, technically like ... where District had use sound instru- [and] 1414(a)(2)(A),(C). solely Any § for its reduced services own conven- ments.” Id. Rather, ience. the State Review Officer standardized tests must “have been vali- specific purpose concluded that the District needed to coor- dated for the for which used; many dinate its ... obligations children are administered meeting knowledgeable over the summer while also personnel; trained and forty-five-sehool-day Relying any time-line. ... administered in accordance with Hearing finding provided by producer Officer’s that the Dis- instructions 1414(b)(3). trict staff had no reasonable basis sus- such tests.” Id. The evalua- pect the twins were autistic on “sufficiently comprehensive June tions must be he August identify special concluded that all of the child’s edu- needs, 2003 assessment date was reasonable. cation and related service whether were disability the did not believe twins commonly linked to the Center or not Thus, child has been classi- in which category autistic as late as 300.532(2)(h)(1999). fied.” 34 C.F.R. suspi- had stated its although the Center early July its results cions as as the District did argue then were not definitive. requirements and these fulfill the twins within not evaluate did Hearing findings Officer’s contend IDEA. meaning of and careful” and are thus due “thorough have assessed the should that the District Napa Valley Uni- greater deference. See Pri- Pre-school and using twins Wechsler’s (internal Dist., 496 F.3d at 937 fied the Childhood Intelligence, mary Scales omitted). and citation quotation marks Scale, Peabody Pic- Rating Autism fdund the District Hearing Officer The District used Vocabulary Tests. ture testimony credible and she Psychologist’s in October. these tests mandatory tests for that some of the noted administering responds District The of the child for require autism observation have violated August in would these tests Giving Hearing a month. Officer over that it administer the requirement IDEA’S deference, that the District agree due we likely to in the manner most assessments effectively administer the autism could not Id. These yield accurate information. the test administrators tests until after results until the yield not valid tests would Because gotten to know the twins. with the Dis- become familiar twins had immediately admin- the District could not staff, light of the twins’ particularly trict for autism in a valid man- ister the tests respond to to the staffs unwillingness IDEA, ner, August required by as questions. initial evaluations qualify evaluations as several tests District administered 300.531, §§ IDEA. 34 C.F.R. under 25, 2003, meeting: IEP August before the (1999). 300.532 completed question- a mother the twins’ 2003; staff May naire on IEP determined that the Relígate, we Phonological of gave Assessments member plan reasonably develop team could not 2003; and the District Process on June provide the child with calculated Early Screening Profile administered AGS benefit meaningful educational in- Questionnaires providing Health Home/ an evaluation. year school without autism child interactions parent/ about formation at Elem. Hellgate and the twins’ health. Hellgate received 1209-10. The district Officer, State Review Offi- Hearing child could be autistic notice cer, August all found the court and district not obtain an evaluation August but did evaluations within the evaluations IEP address meeting and convene an IDEA, crediting the District’s meaning autism until March. See id. at the child’s testimony about the dubious reliabili- staff contrast, District here By 1205-06. early. too administered While ty of tests IEP to address the meetings convened autism tests administered some the Center months of finaliz autism within two twins’ Trial Teacher did early, the Discrete quite The District had ing original IEPs. until evaluating the twins begin not even necessary prop conduct taken the time began observing one month after she then had assessments and er and valid they began attending month after them—a addressing what additional services begun Center, to the lending further credence at the twins needed. of the staff District’s contentions. Some J., child. Amanda August we hold that the evalua- 267 F.3d at Because 894. The August as initial evaluations under qualify only tions assessments showed IDEA, reject the contention that we there one difference between the regard- twins a lack of ing was the outset evaluations motor skills. Because this was the resulting only in the denial of a FAPE. distinction between the twins in the validly

tests that the District could admin- Alleged 2. Substantive Violation August, ister in the lack of individualiza- tion is not surprising. The District argue planned more tests as soon as could reasonably IEPs were not calculat effectively administer them. ed twins with educational benefits because the IEPs did not address provided We hold the twins’ autism. consider the IEP at children with a FAPE from August 25 implementation, the time its hind until 21 and October November if sight, and ask its methods were reason

ably calculated to confer an educational C. The October and November IEPs. Adams, on the child. benefit 195 F.3d at Appellants also raise a substantive challenge to the October and November ninety They The twins received minutes of IEPs. contend that the District could speech language and services implement the October and twice November week, the Education Special Teacher IEPs and that these IEPs were not rea the in sonably individualized twins’ services the calculated to confer an educational TEDDY program by relying Specifically, on index benefit. Appellants argue gave cards. These services the twins that the District had analyst no behavior Importantly, educational benefits. the on staff. A analyst behavior would be pursuing eligibility qualified perform District was autism analysis functional District, however, supervise determinations. The the in implementa staff the reasonably August calculated that tion of a trial training program. discrete responds IEPs could confer educational benefits The District that IDEA does not on the twins on the require employ based tests a district a behavior Rather, validly analyst. District could in Au- it requires administer the District to Further, gust. the twins progress employ made an individual with Nevada State certification, Agency recognized certain areas while attended the Education TEDDY program. licensing, registration. Their IEPs that were or 34 C.F.R. developed after autism determination 300.23. placement continued their TEDDY Hearing findings Officer’s detailed

program. fact, by adopted of the State Review Offi- court, Finally, Appellants argue by also cer and affirmed the district August individually twins’ IEPs were not demonstrate that the District did have requires personnel capable implementing tailored.10 IDEA IEPs be indi- vidual tailored unique to the needs of each IEPs. The District had contracted with suggest imper- presented also that it was the IEPs in a “take it or began missible that the District position, leave it” which would have consti- meeting pre-written IEP with identical IEPs. G., tuted S. ex rel. error. See Ms. Vashon This not invalidate does the substance or de- Dist., Island Sch. 337 F.3d velopment Fed.Reg. of the IEPs. 64 at 12478- Cir.2003). Appellants put forth no evidence that the They unexhausted. support sented because was analysts for behavior private

two lose on argued that the claim should training trial the discrete in implementing made the its merits. The District first personnel from Trained program.11 argument reply in its brief to exhaustion perform func- would University of Nevada The Dis- summary judgment its motion. at home analysis the twins’ tional behavior Act had the Rehabilitation trict assumed and school. FAPE, a claim for a denial of a claim was Teacher Special Education The District that the District not an unexhausted claim about her abilities had been concerned against discriminated the twins Af early October. the IEPs implement Appellants argue segregating them. the District would she learned ter granting court erred in the district training, she stated additional her with motion and summary judgment District’s im that she could felt confident that she summary denying their cross-motion for Although the IEPs. plement judgment. hire the Cen that the District preferred instructor, summary or denial of training grant trial we ter’s discrete law, reviewed implemen judgment is a conclusion proposed District’s focus on the J., 267 F.3d at 887. preferred al de novo. See Amanda parents’ not the plan, tation Gregory Longview K. v. ternative. See an rem IDEA is not exclusive (9th Cir.1987). F.2d edy for children with disabilities who com an IEP as implement must The District plain of failures their education. See the District has a possible, but soon as H., (concluding Mark so, partic- time to do amount of reasonable availability IDEA does of relief under require a ularly the circumstances where availability under the not limit the of relief Fed.Reg. 12440 & 12579 delay. 64 short Act). Nevertheless, IDEA Rehabilitation 1999) (March 12, 34 C.F.R. (implementing files an ac requires plaintiff that when comments). § The evidence 300.342 and tion that seeks relief under another stat would have shows that the District ute, and that relief is also available under a reasonable amount qualified staff within IDEA, IDEA ex he or she must follow time, not allow the parents did but 1415(i) 20 procedures. haustion U.S.C. District to services. (2000); Robb v. Bethel Sch. Dist.# 308 Cir.2002). 1047, 1050 F.3d adequate that the District had We hold implement to October resources through the administra- Appellants went November IEPs. that process argue tive but did not the twins against District discriminated Act claim D. The Rehabilitation segregating Appellants argue them. court, lack is not fatal to their Ap- in district their of exhaustion For the first time segregation claim of discrimination claim because their pellants added a Claim pro- in an IDEA due Appellees Act. ar- could not be heard under the Rehabilitation 1415(b)(6) Nevertheless, § hearing. gued improperly pre- claim was cess this capacity amongst people.” The tes- Appellants argue independent build our guinea pigs analysts timony suggests contractor would use the twins as that the behavior training. A District staff member testified to the twins would deliver some discrete trials analysts behavior would “train our help It examples to train the teachers. as using examples staff members [JG] they suggest that would have an does not him, going to be but that since discrete trials. untrained teacher deliver there 15 hours a week their function was

803 Dist., any matter v. Tucson respect claims “with Sch. allows Hoeft Unified identification, evaluation, (9th Cir.1992)). or relating to the F.2d We need child, of the or the placement educational not address whether exhaustion under public edu- provision appropriate of a free non-jurisdictional IDEA is a claims-pro cation” be heard. U.S.C. rule, cessing jurisdictional or a bar. See 1415(b)(6) added). Further, (emphasis States, Eberhart v. United 546 U.S. H. presented Mark their (2005) 126 S.Ct. 163 L.Ed.2d 14 (per during Rehabilitation Act claim the admin- curiam). The District did not forfeit the process, though hearing istrative even argument. The District raised it as soon Appel- officer did not rule on the issue. Appellants’ as the nature of Rehabilitation argued lants also could have their discrimi- Act claim became clear. Once the District H., in the Mark hearing. nation claim 513 learned that the claim arguing was not n. F.3d at 927 3.12 that the District had denied argue that the District FAPE, they moved to amend their answer its exhaustion defense. There has waived and asserted the exhaustion defense. The question regarding some whether is District’s treatment of this exhaustion is requirement jurisdic IDEA’S exhaustion is timely.13 sue our view was tional, or whether a district could waive Appellants did not properly present the argument. Newburgh this See Coleman v. claim to the district court. The District City Enlarged had no that Appellants notice considered (2d Cir.2007) (discussing Supreme recent placement twins’ discriminatory. precedent casting Court doubt on this is Therefore, we vacate the district sue). “ court’s requirement The exhaustion reflects order granting summary judg- traditionally strong ‘the state and local ” ment and hold that this claim Christopher interest in education.’ should have S. Educ., County prejudice Stanislaus 384 been dismissed without for lack Office of (9th Cir.2004) (quoting jurisdiction.14 F.3d partial argues process might 12.The dissent that because all ministrative have been used in exhausted, "educational issues” were attempt gain remedy alleged for their Appellants adequate- we should conclude that injury. ly exhausted their Rehabilitation Act claim. primary problems There are two with the though 13. Even the issue was not raised in First, partial analysis: dissent's in Blanchard brief, opposition precedent the under our we Disrict, v. Morton School 420 F.3d 920- can consider the issue because was raised (9th Cir.2005), we stated that dis- "[t]he explicitly Appellant's in the brief. See USA positive question ... is whether is Blanchard Co., Petroleum Co. Atl. 13 F.3d Richfield seeking remedy injuries for that could be re- (9th Cir.1994) (considering an is- any degree by to adminis- dressed IDEA’S appellant opening sue that did in not raise it, procedures.” trative Id. at 921. As we see it). appellee thoroughly brief after discussed the ALJ could have ordered the District to place regular preschool program- the twins in Finally, Appellants argue that the district ing, remedying alleged injury Appellants’ to denying court abused its discretion in their 1415(k)(3)(B)(ii). degree. § some 20 U.S.C. reply motion to strike the District’s brief or in Therefore, Blanchard, even under exhaustion grant the alternative them leave to file a sur- Second, required. was in Witte and Blanch- reply reply. to for its brief its motion ard, parties had resolved "educational is- summary judgment, argued satisfaction, sues” to mutual and none of their Appellants had not exhausted the Rehabil- injuries could have been re- redressed itation Act claim and submitted new evidence. process. course to the IDEA exhaustion We on a parties see a case where the review district court's decision different are still litigating their educational issues and the ad- motion to strike for abuse of discretion. claimed, reasons, “segrega constituted Appellants we RE- foregoing For monetary Appellants sought court’s decision reduc- district tion.” VERSE evaluations, we of relief unavailable un ing damages, the reimbursement a form on court’s decision County the district AFFIRM IDEA. v. Clark der the See Witte (9th and on the motion IDEA claims all other 197 F.3d Cir. Sch. court’s strike, the district 1999). we VACATE Act Rehabilitation Appellant’s on opinion exhaust requires plaintiff IN- claims, REMAND WITH and we filing before suit administrative remedies the district court DIS- STRUCTIONS if is plaintiff another statute under lack prejudice for that claim without MISS under” “seeking relief that is also available shall bear its party Each jurisdiction. 1415(Z). § Though the IDEA. U.S.C. appeal. own costs seek some relief not available Appellants PART; IN REVERSED AFFIRMED IDEA, they re- under were nevertheless PART AND PART; IN IN VACATED pursue those remedies that were quired to REMANDED WITH INSTRUCTIONS. available to them state administrative have been proceedings; their claims could BEA, Judge, concurring part Circuit extent, redressed, by remedies avail- to an dissenting part: the IDEA. See Robb v. Bethel able under disposition in the court’s I concur 4,03, 1047, 1050 Dist. No. under the IDEA. How- claims Appellants’ Cir.2002). ever, I not think the IDEA’S because do Robb, here, Appellants are But unlike plaintiffs requirements bar exhaustion of the IDEA attempting “opt out” under 504 of their claims pursuing from pursued have altogether. Id. Act, respectfully I dis- the Rehabilitation all remedies avail- pursuing or are those holding the district the court’s sent from And, in under the IDEA. able to them jurisdiction to hear these court lacked Appel- proceeding, state administrative the district instead affirm claims. I would assigned the lants contended the District summary judgment granting order court’s program TEDDY without un- twins to the Appellee. in favor of the re- dertaking the individualized evaluation court, con- In the district Robb, by quired by plaintiffs law. The time that the District’s for the first tended contrast, any failed to file administrative TEDDY in the placement of the twins id. claim whatsoever. See intentional discrimi- program constituted cases, permitted plaintiff In two we Act. The nation under the Rehabilitation administrative relief in District, who first seeks rather Appellants contended separate file a proceedings state IDEA than an individualized determina- making needs, damages under 1983 or the Re- suit for simply regarding tion the twins’ Witte, “disabled,” plaintiffs Act. In habilitation assigned and labeled the twins 1983, This, sought monetary damages under education. special the twins to 112, (7th City County Corp., Inv. 900 F.2d 116 v. & v. TIC Golden Gate Hotel Ass’n of 1990)) (alteration S.F., (9th 1994). original). The dis Cir. in 1485 Cir. 18 F.3d " reply the new evidence presented in a trict court did not consider Where ‘new evidence is sur-reply a summary judgment, and denial of leave to file a the dis its to motion for prejudice Appellants. accordingly did the new evi not trict court not consider should op court did not abuse its giving an hold that the district [non-]movant dence without " Miller, denying Appellants' motion to 102 discretion in portunity respond.’ v. Provenz (9th Cir.1996) (quoting Black strike. F.3d 1483

805 Act, the Americans proceedings and ministrative the Rehabilitation District’s for emotional and Disabilities Act evaluation of the twins was deficient and by employees. 197 physical abuse school assignment that the twins’ to the TEDDY at 1276. In Blanchard v. Morton F.3d program did not meet the twins’ education District, of a the mother disabled School only al needs. The new by issue raised money damages under sought child Appellants’ Act Rehabilitation claim is an wages and lost for emotional distress allegation that the District acted with dis district’s caused the school “deliberate criminatory intent. In the IDEA proceed indifference” to her son’s claims. ings, the intent with which district acts (9th Cir.2005). In 420 F.3d both irrelevant; in FAPE failing is Blanchard, we held Witte only the result of its actions or inactions required to advance the plaintiffs were matter. Nor is the District’s intent an damages proceed- in state IDEA claim for “educational issue” the resolution of which plaintiff had raised all of ings, provided requires expert guidance of a state implicated by “educational issues” administrator. v. Virgenes Kutasi Las Cf. disability proceeding. in the IDEA child’s F.3d Unified 921-22; Witte, at 1275. Id. at 197 F.3d (9th Cir.2007). short, and Blanchard stand Witte I would instead affirm the district plaintiff principle for the that once has granting summary judgment court’s order all of the “educational issues” asso- raised in Appellee. favor Where a district ciated with an IDEA claim a state ad- assigns special pur a student to education proceeding, nothing prevents ministrative IEP, suant to a valid the district is not asserting damages him from a claim for liable intentional discrimination under a defendant alleging district court § 504 of the Rehabilitation Act. Mark H. school district also violated other statuto- Lemahieu, 513 F.3d Cir. ry provisions. approach Such an fulfills 2008). agree Because I that the District purposes providing of exhaustion — IEPs, provided the twins valid I would expert offering courts with assistance affirm the district court’s decision on the opportunity to cor- state officials the first merits, than rather conclude the district Robb, an deficiency, rect educational see jurisdiction Appellants’ court lacked over forcing plain- 1051—without Rehabilitation Act claims. gesture engage tiffs the futile raising damages claims in state adminis- proceedings, agency

trative where -the power

lacks the to award such relief.

Here, all Appellants have resolved

“educational issues” associated with their

claims. contended state ad-

Case Details

Case Name: JG v. Douglas County School District

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 24, 2008

Citation: 552 F.3d 786

Docket Number: 06-17380

Court Abbreviation: 9th Cir.