Appeal from the United States District Court for the District of Nevada D.C. No. CV-04-00541-LRH/RAM Larry R. Hicks, District Judge, Presiding.
The opinion of the court was delivered by: Gould, Circuit Judge
Argued and Submitted September 12, 2008 -- San Francisco, California.
Before: Diarmuid F. O'Scannlain, Ronald M. Gould, and Carlos T. Bea, Circuit Judges.
We consider Individuals with Disabilities Education Act ("IDEA") claims and a Rehabilitation Act claim of twins, JG and NG, who have autism, and of their parents, RG and SG (unless otherwise indicated, "Appellants" refers to all four Appellants). The controversy arises out of the school district's delay in notifying the twins' parents that it would evaluate the twins for disabilities; from the amount of time it took the school district to diagnose them with autism; from the challenges that confronted the school district in its implementation of an Individualized Education Program ("IEP") for each of the children; and from the school district's alleged discrimination against the children by segregating them into a preschool for developmentally delayed youngsters.
Appellants JG and NG are twin brothers who exhibited delays in their speech patterns and other developmental difficulties. On May 3, 2003, their mother took them to a free screening at the Brain Power Community Learning Center ("the Center"). The Center offers private services for children with disabilities. The Center referred the twins to the Douglas County School District ("the District") and told their mother that the District had a program for developmentally-delayed children called the TEDDY program.*fn1
On May 5, 2003, the twins' mother went to the District's Child Find Office and received a two-page questionnaire for each child. She completed the questionnaires, and the District's Child Find Office confirmed receipt of both questionnaires on May 7, 2003. The parties agree that IDEA required the District to provide Appellants with notice of a proposal to evaluate the twins and a copy of IDEA's procedural safeguards on May 7, 2003. 20 U.S.C. § §1415(b)(3), (d)(1)(A) (2000). The District, however, did not notify the parents that it would conduct evaluations of the twins until August 15, 2003. IDEA also required the District to evaluate the children within a reasonable time of the May 7 date. 34 C.F.R. § 300.343(b) (1999). Although the District began administering tests to evaluate the twins as early as June 20, 2003, it did not complete until August 15, 2003, any evaluation of the children. It did not begin to evaluate the twins for autism until September 25, 2003.
The District referred the twins to its Child Find Day on June 20, 2003. The twins' mother asked if the twins could be tested earlier, but the District's Special Education Teacher who reviewed the twins' initial forms did not have a high level of concern and did not advance the test date.
Without notice that the District would evaluate the twins, Appellants obtained private evaluations for the twins from the Center. On May 14, 2003, the Center evaluated the twins, and the twins began receiving special education services one week later.
On June 20, 2003, the twins attended the District's Child Find Day. Their mother listed "speech development" as her primary concern and crying, tantrumming, and toileting as other behavioral issues. She also told the District's Special Education Teacher that both attended the Center for speech problems. The Special Education Teacher and the School Speech Pathologist each gave tests to the twins and received a lack of responses. This lack of responses showed that the twins were developmentally delayed, and the Special Education Teacher concluded that she could not conduct further screening at that time. The Special Education Teacher scheduled an assessment meeting on August 15, 2003, to conduct more individualized testing. The Special Education Teacher informally expressed that the District could use the scores from the tests the Center had administered, but she did not make a specific request for the records.
Also in mid-June, the Center Discrete Trial Trainer,*fn2 an individual trained in working with autistic children, met the twins. She observed them for several weeks at the Center and at home. The Center Discrete Trial Trainer started working with the twins on July 15, 2003, but it took several more weeks before she could begin her assessment of either of them and another two weeks after that before she implemented discrete trial training. Thus, although the Center had begun testing the twins for autism in May, it was still assessing the twins for autism in July.
By late July, some of the Center staff believed that the twins were autistic. On July 28, 2003, the Director of the Center contacted the District's Special Education Director and relayed the Center's suspicions. The Director of the Center said that the Center Speech Pathologist, who had worked with the twins the longest, did not believe that the twins had autism. On the same day, the twins' mother called the District to ask if the assessments could be scheduled earlier. The District did not change the test date.
On August 15, 2003, the District conducted an assessment of each twin and held an assessment meeting. At that time, the twins' parents received a copy of the Notice of Parent Rights, and their mother signed a "Parent Consent to Evaluate" form. The parents and the Special Education Teacher also filled out Early Childhood Screening Profiles for the twins. The District staff worked with the twins for more than an hour but was unable to get responses from either of the twins on many questions. The tests that the staff members were able to administer supported the conclusion that the twins had "developmental delays with speech delay as a major concern."
Despite the July 28 phone call from the Center, the August 15 assessments did not include any tests for autism. In fact, the School Special Education Director had not relayed the Center's suspicions to the School Psychologist, who would have administered any tests for autism. Determining whether a student has autism requires many assessments and takes a good deal of time. Some of the tests require observation of the student for more than a month because it is helpful to get to know a child before assessing him or her.*fn3
On August 25, 2003, the District held an IEP meeting with the twins' mother. At the meeting, the District presented her with pre-written IEPs as draft copies, and the District found the twins eligible for services under the developmentally delayed category and offered services. The IEPs did not mention autism.
The twins' mother attended the August 25, 2003, meeting with a binder labeled "Autism," and the School Psychologist asked if there were concerns regarding the twins being autistic. The twins' mother responded that the Center staff thought that the twins could be autistic but that they were not sure.
On August 25, 2003, the twins began attending the District's TEDDY program. They continued receiving services at the Center to supplement the program.
On September 25, 2003, one month after the School Psychologist and two months after the Special Education Director had heard about the possibility of autism, the School Psychologist began assessing the twins for autism. On October 1, 2003, the parents sent the District a letter stating that the twins had been evaluated as having autism and requesting payment for Center services.
On October 7, 2003, the District asked the parents to sign a Consent for Release of Information from the Center. They refused. The twins' mother agreed, however, to bring the Center staff to a meeting on October 8, 2003. At that meeting, the Center shared some data. The parents said that they would not provide more information from the Center unless the District paid for it.
On October 9, 13, and 16, 2003, the School Psychologist completed several tests to determine whether the twins were autistic. She determined that both twins were mildly-moderately autistic. The District began working on new IEPs to propose for the twins.
On October 9, 2003, the Special Education Teacher told the mother about her concern that she would not be able to implement the newly proposed IEP. She became comfortable with her ability to implement the IEPs by early November, after learning that the District would provide her with more training.
Both twins began exhibiting new inappropriate behaviors during the week of October 9, 2003. These included choking their younger brother, stomping on books, and tearing up books. The twins, however, had improved since they enrolled in the TEDDY program, with a decreased resistance to toileting and an increased ability to follow directions and rules.
The parents removed the twins from the TEDDY program on October 13, 2003, expressing concern about the new problem behaviors. The parents again asked the District to pay for the twins to attend the Center.
On October 17, 2003, the District held a meeting to update the twins' IEPs with the autism results. The District determined that both twins were eligible as autistic: the District found JG eligible at an October 21, 2003, meeting and NG eligible at a November 4, 2003, meeting. The District proposed new IEPs that added time for discrete trial training, extended school year, and functional behavior analysis at the twins' home and school.
On October 30, 2003, the twins' mother called the District and asked who would conduct the discrete trial trainings and where they would be held. The District Program Specialist responded that it had contracted with two private behavior analysts for support in implementing the discrete trial training program.
In early November 2003, the parents rejected the twins' IEPs. They wanted the Center Discrete Trial Teacher to continue working with the twins. The District had considered hiring her, but she did not have early childhood authorization. She was also reluctant to work for the District except in a supervisory role.
On November 10, 2003, the Special Education Director wrote a letter to the parents in which she described the proposal for a Free Appropriate Public Education ("FAPE"), refused to pay for the Center's services, and stated that the District would deliver the discrete trials in a one-on-one and small group basis.
The parents stopped sending the twins to the Center in mid-November because the parents could no longer pay for the services. The parents chose to keep the twins at home, and the twins did not receive any services.
On December 4, 2003, Appellants requested a due process hearing. The Hearing Officer held a hearing from February 16-20, 2004. She found that the District had committed procedural violations by not evaluating the twins in a timely manner. She concluded that Appellants should be compensated for services between August 13 and August 25, awarding $800.00 to compensate for those services.
The parties appealed, and on September 2, 2004, the State Review Officer adopted all of the Hearing Officer's findings of fact but reversed her decision awarding the $800.00. The State Review Officer concluded, however, that the District had denied the twins a FAPE when it did not provide Appellants with a notice of proposal to evaluate and notice of procedural safeguards on May 7. The State Review Officer ordered the ...