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Parents Prevail in Ninth Circuit: Failure to Assess is Denial of FAPE

Wednesday, June 01, 2016   (0 Comments)
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The Ninth Circuit issued a decision in the case Timothy O. v. Paso Robles and REVERSED and REMANDED the case for further proceedings. The family was represented by the Marcy Tiffany. COPAA filed an amicus brief written by Selene Almazan. Alice Nelson, Catherine Merino Reisman and Andree Larose assisted in the drafting. The parent lost at the hearing level (ALJ). The District Court affirmed the order of the ALJ. The parent appealed to the Ninth Circuit. In a decisive win on the issue of a school district’s duty to assess for autism the Ninth Circuit held unequivocally that if the school district is informed of a “non-frivolous” suspicion of autism (based on either parental concerns, opinions of outside experts or the child’s own conduct and behavior), it must assess, and the failure to do so is a denial of FAPE because a school district cannot develop an appropriate IEP without knowing that a student is autistic. It also updates the data about the prevalence of autism that was discussed in Amanda J., and underscores the importance of early intervention, including citations to recent research.

The Ninth Circuit said:

Here, the record shows that Paso Robles had notice that Luke displayed symptoms of autism. Both the ALJ and the district court found that Paso Robles was aware, before its initial evaluation of Luke in October 2009, that Tri–Counties believed that he might have a disorder on the autism spectrum.18 Indeed, Peck admitted at the administrative hearing that autism was a suspected disability when he stated that he had been called to informally observe Luke’s initial evaluation because there was a possibility of looking at autism as a disabling condition.

Despite this knowledge, when creating a plan for Luke’s initial assessment, Paso Robles did not include any of the standard assessments for autism. Rather, the notice sent to Luke’s parents reflected that he would not be given any assessment for social/adaptive behavior, which would be necessary in order to determine whether Luke had autistic-like symptoms. Instead, during the October 2009 initial assessment, Paso Robles attempted to assess Luke for several other disorders, but was unable to complete its tests of him because of Luke’s “compliance” issues. At no point during its examination did Paso Robles conduct or attempt to conduct any form of standard or reliable assessment for autism or autistic-like behavior.

Even more troubling, by the time of the December 2010 IEP, it was clear from parent and teacher complaints that Luke displayed autistic-like behavior at home and at school. Even then, Paso Robles did not suggest that Luke should be provided services to address his autistic-like behavior or even that Luke should be assessed for autism. This complete failure to assess Luke for all areas of suspected disability clearly and substantially violated the IDEA’s procedural requirements.

Click here for the decision, which provides a detailed history of the student and the parent’s long fight to achieve a FAPE for their son.

Congratulations to the Marcy Tiffany and her Law firm for achieving an excellent result for the family

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