October 2008

Case of the Month: N.B. and C.B. v. Hellgate Elementary School District (9th Circuit, September 4, 2008).

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Like Amanda J., this case out of Montana highlights the importance of careful reading of student records and ignoring suspected autism at your own peril.

In Oregon, as in many other states (but perhaps not all), teams are not required to find a student eligible in all applicable categories - one will do, but the team must evaluate in all areas of suspected disability and address all special education needs in a student's IEP (or IFSP for preschool children). OAR 581-01-2120(4).

In Hellgate, a 3 year old student moved in from out of state with an IEP calling for 12.5 hours per week of special instruction, including 2 hours per week of speech therapy. The parent also gave the special education director a copy of a private evaluation noting that the student exhibited characteristics of autism. The new district implemented the out of state IEP (see 34 CFR 300.323(f)) until holding an IEP meeting in mid-September. At that meeting, the team initiated an evaluation consisting of 6 weeks of observation by various service providers to gather more information to address the student's needs on the IEP. But the team did not initiate an autism evaluation, arguing later because the parent did not raise this as a concern. At the same time, the team reduced IEP services by more than half pending completion of the evaluation.

In November, when the team met again to review the assessment, the parents raised concerns about possible autism. The district referred the parents to an outside agency where the parents could obtain a free autism evaluation. In April, the outside evaluation was completed, indicating autism spectrum disorder, and the district increased the IEP services back to the move-in IEP levels.

The Ninth Circuit found that the district failed to meet its obligation to assess the student in all areas of suspected disabilities after becoming aware of the private evaluation, and that simply referring the parent to an outside agency was an abdication of the district's responsibility. Without the information related to autism spectrum disorder, it was not possible for the team to develop a plan reasonably calculated to provide meaningful educational benefit to the student. As a result, the Court awarded the parents with reimbursement for the costs of the private services they obtained that year.

The parents also asked for extended school year (ESY) services; the team did not reach consensus on this issue, resulting in a district determination that the student did not need ESY services based on a regression-recoupment analysis. The parents argued that the district's criteria was too narrow and should have been multi-factored.

Here, the Ninth Circuit found that the district's reliance on the regression/recoupment analysis was not an IDEA violation. Montana state policy permitted consideration of various factors in addition to regression/recoupment. The team discussed various factors, including whether the student was on the verge of breakthrough skills, as part of the regression/recoupment analysis. The court accepted the opinion of the district's witnesses, who had more contact with the student, and rejected the opinion of the parents' experts who testified generally about the need for year-round services for students with autism.

Lessons Learned:

1. Evaluate first, then base IEP team decisions on the evaluation. Here, the team acknowledged it needed more information to develop an appropriate IEP - so what was the basis for reducing services immediately?

2. If there are any evaluations in the student's record, or if any team member has an inkling of a suspicion that a student may have autism, particularly a preschool or elementary aged student, bring this information to the full attention of the team and make a very documented decision about whether to evaluate.

3. Because Oregon's regional autism program has specialists who assist districts and EI/ECSE programs with autism evaluations, it would be unlikely that a district or program would shift the responsibility to the parent to get an outside autism evaluation. But I can see this happening in other areas. If the team believes that an evaluation is necessary and does not have the capacity to conduct it, the district has the responsibility to ensure that it happens. This means taking on a direct role in contacting the outside agency, monitoring to ensure compliance with timelines, etc.

4. Take a look at your district's ESY policy. The federal regulation, 34 CFR 300.106, does not specify a criteria for ESY. The comments to the regulations indicate that a state "may use recoupment and retention as their sole criteria" but states have "considerable flexibility" in establishing state standards in this area. The Oregon regulation, OAR 581-015-2065, does not require consideration of factors other than regression-recoupment. However, if your state or district policy includes consideration of discretionary factors, the court may well hold you to consideration of those factors.