D.O. v. Escondido Union School Dist.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

D.O., By and Through His Guardian No. 21-55498

Ad Litem Sonya Walker,

Plaintiff-Appellee, D.C. No.

3:17-cv-02400-

v. BEN-MDD

ESCONDIDO UNION SCHOOL

DISTRICT, OPINION

Defendant-Appellant.

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 panel reversed the district court’s summary

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:

Through [Escondido]’s Intensive Behavior Intervention

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

obtain invalid results.” Escondido’s request for Dr.

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

potentially autistic child.” The district court quoted

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 presented a much more significant

material factual dispute over whether the child suffered from

the alleged disability. We still applied de novo review as

to whether the school district in that case violated IDEA.

E.M. I, 652 F.3d at 1002; E.M. II, 758 F.3d at 1170.

The cases in which we did review mixed questions of

fact and law for clear error also indicate that de novo review

should apply here. In Gregory K., the school district

“challenge[d] the trial court’s ruling that ‘Gregory K. has a

learning disability’ and ‘is not mentally retarded,’” which we

held was “a mixed question of law and fact.” 811 F.2d at

1311. We considered, among other things, the student’s

intellectual functioning (“IQ”) range, expert testimony about

the student’s intellectual functioning, and whether the

student’s intellectual functioning met the eligibility criteria

for “mild mental retardation” under Wash. Ann. Code 392-

171-421(2)(a) (1983). 811 F.2d at 1311–12. We held

that “[w]e are ‘left with the definite and firm conviction’ that

the trial court erred in its weighing of the evidence regarding

[the student’s] IQ testing” and that the student’s “eligibility

for special education was correctly based on mild mental

retardation.” Id. at 1312. In R.B. ex rel. F.B. v. Napa

Valley Unified School District, 496 F.3d 932 (9th Cir. 2007),

where we expressly held that the mixed question of law and

fact presented was “primarily factual,” id. at 937, a central

issue was whether the student “did not qualify as a ‘child

20 D.O. V. ESCONDIDO UNION SCHOOL DIST.

with a disability’ because she did not meet any of the criteria

for ‘a severe emotional disturbance.’” Id. at 947.

Unlike in Gregory K. and R.B., whether D.O. is autistic

and whether Escondido’s special education placement for

D.O. was appropriate are not at issue here. D.O. never

disputed the results of Escondido’s October 2017 autism

assessment, which found that D.O. did not qualify for special

education for autism and thus left his special education

placement unchanged. D.O. also conceded that “it is

possible for a student with a diagnosed disability to still not

qualify for special education [for that disability].” 4 The

issue is whether Escondido’s delay in proposing to assess

D.O. for autism was a procedural violation of IDEA and

whether such a violation, if it occurred, denied D.O. a FAPE.

Another issue relevant to the scope of review concerns

the fact that D.O. did not cross-appeal. Because D.O. is not

seeking more relief than what the district court already

granted, D.O. may argue and we may reach “any ground

supported by the record.” United States v. Hilger, 867 F.2d

566, 567 (9th Cir. 1989) (citation omitted). “Generally, ‘a

cross-appeal is required to support modification of the

judgment, but . . . arguments that support the judgment as

4

D.O. attempts to present a factual dispute as to whether he has autism.

D.O. argues that “Escondido incorrectly tells this court that D.O. does

not have autism,” quoting a sentence in Escondido’s brief that “[t]he

suspicion of autism proved unfounded.” D.O. is mischaracterizing

Escondido’s statement because the context of that sentence is that “the

IEP team, including D.O.’s mother, concluded that he did not qualify for

special education under the autism category,” not that D.O. was

incorrectly diagnosed with autism. But regardless, the issue here is

whether Escondido’s delay in proposing to assess D.O. for autism denied

him a FAPE. Moreover, neither the ALJ nor the district court made a

factual finding as to whether D.O. was autistic.

D.O. V. ESCONDIDO UNION SCHOOL DIST. 21

entered can be made without a cross-appeal.’ A cross-

appeal is unnecessary even where the argument being raised

has been explicitly rejected by the district court.” Engleson

v. Burlington N. R. Co., 972 F.2d 1038, 1041 (9th Cir. 1992)

(citations omitted).

III. Analysis

A. Appellate Jurisdiction

D.O. argues that we lack appellate jurisdiction for two

reasons. First, D.O. cites Escondido’s failure to appeal

within 90 days the ALJ’s August 13, 2019 order on remand.

See 20 U.S.C. § 1415(i)(2). This claim is unpersuasive

because Escondido timely appealed the district court’s May

6, 2021 Final Judgment, which was partly in favor of D.O.,

and D.O. does not show how Escondido’s failure to appeal

from the ALJ’s August 13, 2019 order on remand deprives

us of jurisdiction over Escondido’s timely appeal.

Escondido appealed from the Final Judgment on May 14,

2021. “[T]he notice of appeal . . . must be filed . . . within

30 days after entry of the judgment . . . appealed from.”

Fed. R. App. P. 4(a)(1)(A). “The courts of appeals . . . shall

have jurisdiction of appeals from all final decisions of the

district courts of the United States.” 28 U.S.C. § 1291.

We would lack jurisdiction over this appeal if the district

court lacked jurisdiction. See California ex rel.

Sacramento Metro. Air Quality Mgmt. Dist. v. United States,

215 F.3d 1005, 1009 (9th Cir. 2000) (“An appellate court is

under a special obligation to satisfy itself not only of its own

jurisdiction, but also that of the lower courts in a cause under

review.”) (internal quotations and citations omitted). But

there is no indication that the district court lacked

jurisdiction, and neither party has so argued.

22 D.O. V. ESCONDIDO UNION SCHOOL DIST.

Second, D.O. cites the fact that Escondido

unsuccessfully appealed the district court’s December 2018

order before appealing the Final Judgment. D.O. argues

that because that panel “dismissed the First Appeal for lack

of jurisdiction, there is no second bite at the apple.” This

claim lacks merit because, as discussed, Escondido timely

appealed from the Final Judgment. 5

B. Reviewing de novo, Escondido’s delay until April 7,

2017 in proposing an autism assessment plan did not

amount to a procedural violation of IDEA

1. Escondido’s duty to propose an assessment triggered

on December 5, 2016

“A child must be tested in all areas of suspected

disability.” N.B. v. Hellgate Elementary Sch. Dist., ex rel.

Bd. of Directors, Missoula Cnty., Mont., 541 F.3d 1202,

1208 (9th Cir. 2008) (citing 20 U.S.C. § 1414(b)). In N.B.,

the child was diagnosed with autism by an expert outside the

school district. Id. at 1205. The “parents discussed [the

outside expert’s report] with [the school district’s] special

education director in August 2003,” and the school district’s

staff reviewed that report in September 2003. Id. at 1209.

We thus held that the school district was “on notice that [the

child] likely suffered from some form of autism” “[a]s of

September 2003,” citing both the fact that the parents

discussed the report with the district’s staff in August and

the fact that the staff read the report in September. Id.

5

D.O. does not argue that the district court’s December 2018 order was

an immediately appealable collateral order. D.O. could not make such

an argument, given that another panel of the Ninth Circuit dismissed

Escondido’s appeal of the December 2018 order for lack of jurisdiction.

D.O. V. ESCONDIDO UNION SCHOOL DIST. 23

In Timothy O., 822 F.3d at 1105, a psychologist outside

the school district provisionally diagnosed the child with

autism and sent the district a report “two days before the

initial IEP meeting.” Id. at 1115. We held that “even if

[the district] had not had notice of [the child’s] autistic

symptoms at the time of the . . . initial assessment, it obtained

such notice when it received the [report diagnosing autism].”

Id. at 1121. In Pasatiempo by Pasatiempo v. Aizawa, 103

F.3d 796 (9th Cir. 1996), the agency refused to assess a child

who was diagnosed with “a potentially disabling condition.”

Id. at 800. We held that “informed suspicions of parents,

who may have consulted outside experts, should trigger the

statutory protections.” Id. at 802.

Escondido was put on notice that D.O. may be autistic,

and thus that it had a duty to assess him, on December 5,

2016. The ALJ found that Dr. Dyson stated at a meeting of

D.O.’s IEP team on that day that she had completed her

assessment, and D.O. met the diagnostic criteria for autism

spectrum disorder. Escondido concedes that Dr. Dyson

began that evaluation at D.O.’s mother’s request. As we

have held, notice of the “informed suspicion[] of parents,

who may have consulted outside experts” triggers the duty

to assess. Id. That principle applies to an even greater

extent here, where there was an actual statement that D.O.

met the criteria for autism spectrum disorder from the expert

whom the parent consulted, made in the presence of the

parent and the IEP team. Although D.O.’s mother failed to

give Escondido Dr. Dyson’s December 5, 2016 written

report diagnosing D.O. with autism until July 2017, Dr.

Dyson’s verbal statement on December 5, 2016 was enough

to put Escondido on notice of its duty to assess. See N.B.,

541 F.3d at 1209 (school district was on notice after the

parents discussed an outside report diagnosing their child

24 D.O. V. ESCONDIDO UNION SCHOOL DIST.

with autism with district staff). Thus, Escondido’s duty to

propose an assessment triggered on December 5, 2016.

2. Escondido’s delay did not violate any statutory

deadlines or timelines

“Procedural compliance is essential to ensuring that

every eligible child receives a FAPE . . . .” Amanda J., 267

F.3d at 891. “[A] school district must comply not only with

federal statutory and regulatory procedures, but with state

regulations as well: ‘State standards that are not inconsistent

with federal standards [under the IDEA] are also enforceable

in federal court.’” N.B., 541 F.3d at 1208 (second

alteration in original) (quoting W.G. v. Bd. of Trs. of Target

Range Sch. Dist. No. 23, 960 F.2d 1479, 1483 (9th Cir.1992)

(superseded by statute in part on other grounds)).

As discussed above, D.O. claimed that he was denied a

FAPE because Escondido convened 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. D.O. also

argued that Escondido denied him 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. The district court did not discuss the first claim

but rejected the second.

As to the issue before us, D.O. argues that Escondido’s

proposal of an assessment plan on April 7, 2017 violated

state law because Escondido had a “duty within 15 days [of

December 5, 2016] to offer D.O.’s [m]other an assessment

plan[] [for autism] under IDEA and state law,” and

“California Education Code [§] 56043(a) gives [Escondido]

15[]days to provide an assessment plan.” The district court

D.O. V. ESCONDIDO UNION SCHOOL DIST. 25

also cited § 56043(a) in ruling that Escondido’s “four-month

delay was unreasonable under the circumstances,

constituting a procedural violation.”

Escondido’s four-month delay did not violate any

California statutory deadlines. D.O.’s characterization of §

56043(a) is incorrect because § 56043(a) states that “[a]

proposed assessment plan shall be developed within 15

calendar days of referral for assessment.” Id. (emphasis

added). Cal. Educ. Code § 56029 defines “[r]eferral for

assessment” as “any written request for assessment” made

by a parent, guardian, teacher, or “other service provider of

the individual.” Id. (emphasis added). As discussed, it is

undisputed that no one gave Escondido a written request for

an autism assessment before April 20, 2017, 6 and

Escondido proposed an autism assessment plan on April 7,

2017, when it responded to D.O.’s complaint. Thus,

Escondido’s proposal of an autism assessment plan on April

7, 2017 did not violate § 56043.

Escondido also did not violate any federal statutory

timeline. The assessment that D.O. claims Escondido

failed to timely provide is a reevaluation because Escondido

assessed D.O. initially in 2012 to determine his eligibility for

special education. Federal law requires a reevaluation “if

the local educational agency determines that the . . . needs .

6

Dr. Dyson’s report may constitute such a “written request for

assessment” because Dr. Dyson was arguably a “service provider” under

§ 56029 and her 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] IEP team.” But

even if Dr. Dyson’s report constitutes a “written request for assessment”

under section 56029, D.O.’s mother did not give the report to Escondido

until July 5, 2017.

26 D.O. V. ESCONDIDO UNION SCHOOL DIST.

. . of the child warrant a reevaluation” or “if the child’s

parents or teacher requests a reevaluation.” 20 U.S.C. §

1414(a)(2)(A). “A reevaluation . . . shall occur . . . not

more frequently than once a year, unless the parent and the

local educational agency agree otherwise” and “at least once

every 3 years, unless the parent and the local educational

agency agree that a reevaluation is unnecessary.” Id. §

1414(a)(2)(B).

Escondido did not violate § 1414(a)(2)(A) or §

1414(a)(2)(B). Despite § 1414(a)(2)(A)(ii)’s requirement

that a reevaluation be made “if the child’s parents . . .

request[]” one, no one acting on D.O.’s behalf requested a

reevaluation for autism before April 20, 2017. Consistent

with § 1414(a)(2)(A)(i)’s requirement that a reevaluation be

made if the school deems it necessary, Escondido

reevaluated D.O. in 2016 due to “the need to gather

additional information regarding [his] social, emotional, and

behavioral functioning . . . .” The timing of Escondido’s

evaluations complied with § 1414(a)(2)(B), which states that

a reevaluation shall occur no more often than once a year but

no less often than once every three years.

Thus, Escondido’s delay in proposing an autism

assessment plan did not violate any state or federal statutory

deadline or timeline.

3. Escondido’s delay did not constitute a procedural

violation of IDEA

A delay in proposing an autism assessment plan does not

by itself constitute a procedural violation of IDEA. First, a

failure to assess a child for a suspected disability does

constitute such a violation. See Timothy O., 822 F.3d at

1118 (school district “failed to formally assess [the child] for

autism”); N.B., 541 F.3d at 1205 (school district “failed to

D.O. V. ESCONDIDO UNION SCHOOL DIST. 27

meet its procedural obligation under the IDEA to evaluate

[the child] to determine whether he was autistic.”). But

second, some delay in complying with IDEA’s procedural

requirements is permissible. See, e.g., A.M. ex rel.

Marshall v. Monrovia Unified Sch. Dist., 627 F.3d 773, 779

(9th Cir. 2010) (holding that school district “did not hold an

IEP [meeting] within thirty days” of child’s enrollment as

required by Cal. Educ. Code § 56325(a)(1), but that a two-

week “brief delay during winter vacation” did not

procedurally violate IDEA). Thus, when faced with a

delay in proposing an assessment plan, we must decide

whether the delay equaled a procedural violation. See JG,

552 F.3d at 798 (“We hold that Nevada’s forty-five-school-

day timeline is not an inconsistent interpretation of IDEA’s

reasonable timeliness requirement.”).

The district court erred in holding that Escondido’s four-

month delay was a procedural violation of IDEA. The

district court found that Escondido’s “delay was due, at least

in part, to the skepticism of its staff,” citing “their

disagreement with Dr. Dyson’s autism diagnosis based on

their own day-to-day observations of D.O.’s behavior.”

The court then held that 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,” quoting our statement in Timothy O. that

“[s]chool districts cannot circumvent th[e] responsibility [to

assess for suspected disability] by way of informal

observations, nor can the subjective opinion of a staff

member dispel such reported suspicion.” 822 F.3d at 1119.

These observations/determinations by the district court

are materially incorrect, whether we review them de novo or

28 D.O. V. ESCONDIDO UNION SCHOOL DIST.

for clear error. 7 The district court’s reliance on Timothy O.

was erroneous because Timothy O. is inapt. In Timothy O.,

“[a]t the time of [the child’s] initial evaluation, [the school

district] was aware that [the child] displayed signs of autistic

behavior” because the district had sent one of its

psychologists to observe the child “to advise [the district’s]

staff whether it needed to conduct a full and formal test for

autism.” Id. at 1109, 1114. But the psychologist

dismissed the possibility of autism after only “an informal,

unscientific observation of the child” that lasted for only

“thirty to forty minutes.” Id. In contrast, Escondido’s

skepticism that D.O. was autistic was far from “the informal

observations” or “the subjective opinion of a staff member”

that Timothy O. rejected. Id. at 1119. For one thing,

Escondido had educated D.O. since “the summer before he

started kindergarten” in 2012 and provided substantial

mental health services to him for “five years, working with

him very closely” as of 2017. And as discussed above,

Staff who expressed skepticism that D.O. was autistic

included Rania Garva, who had served as D.O.’s mental

health therapist since 2012. Garva interacted with D.O.

daily, had diagnosed him with bipolar I, and was qualified to

diagnose him with autism. Garva testified that D.O.’s

behavior, which included “physical assault, stealing, [and]

reckless behavior,” was “not consistent with . . . a child that

is on the autism spectrum.” Likewise, Salvatore D’Amico,

the school psychologist responsible for assessing D.O., and

who had regularly assessed him for several years, provided

7

And as discussed above, we here review de novo the bottom-line

determination that there was a procedural violation of IDEA. See 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)).

D.O. V. ESCONDIDO UNION SCHOOL DIST. 29

detailed testimony supporting his mood disorder, not autism

spectrum disorder, opinion.

Indeed, D.O.’s education through the District’s

Intensive Behavioral Intervention program also involved

two medical doctors who provided psychiatric assessment

and medication monitoring; a rehabilitation/behavior

therapist; D.O.’s special education teachers; and D.O.’s

general education teachers. All these professionals had

years of experience with D.O. As the ALJ found: “None

of these professionals, in the four years they had been

working with [D.O.], believed he presented as a student

with autism or had any suspicion that he might have had

autism.”

For good reason. As the ALJ found, Dr. Dyson

reported to Escondido staff during the October 2016

ERMHS assessment that D.O. “was able to verbalize social

and emotional strategies to deal with challenging behavior

and social situations in a clinical setting when not in

distress.” Such fluctuating behavior, according to

Escondido staff who worked closely with D.O., was

inconsistent with an autism diagnosis. Dr. Dyson also “did

not mention to Mr. D’Amico any suspicion she had that

[D.O.] might have autism, any concern expressed to her that

[D.O.] might have autism, or that she was evaluating or had

been asked to evaluate [D.O.] for possible autism.”

Considering these circumstances, Escondido staff’s

skepticism of Dr. Dyson’s diagnosis was based on reasons

far more substantial and scientific than “informal

observations” or “the subjective opinion of a staff member”

in Timothy O., 822 F.3d at 1119. The school psychologist

in Timothy O. “stopped by and observed [the child] for

approximately thirty to forty minutes,” id. at 1114, but

30 D.O. V. ESCONDIDO UNION SCHOOL DIST.

Escondido staff had provided substantial services to D.O. for

years. For example, D.O. had a mental health therapist

who “interacted almost daily” with D.O. and provided “daily

classroom support and weekly or bi-weekly individual and

group counseling” to him, for “five years.” Thus, the

district court’s attribution of Escondido’s delay in assessing

D.O. to “the subjective views of its staff members,” was

erroneous, whether clear error or de novo review applies.

Critically, part of Escondido’s delay was because it “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.”

Due to the test-retest effect, publishers of

assessment instruments restricted how

frequently any particular assessment could be

re-administered to a person and still be

considered valid and reliable. District was

waiting to see Dr. Dyson’s report before

presenting Mother with an assessment plan

so District would not improperly assess

Student by reusing the same instruments.

Without Dr. Dyson’s report (or some other definitive

description of the tests Dr. Dyson had used), Escondido

could not appropriately conduct an autism assessment of

D.O. and any assessment it conducted without Dr. Dyson’s

report might well have been invalid. But D.O.’s mother

failed to provide the report to Escondido until July 2017 and

failed to explain the delay during the administrative hearing

(or to the district court). The district court also recognized

the fact that Escondido “wanted to review Dr. Dyson’s report

D.O. V. ESCONDIDO UNION SCHOOL DIST. 31

. . . to identify the specific tests she used because assessors

cannot give certain tests more than once within a year.”

Yet the district court dismissed this fact by finding that

Escondido’s “minimal attempts to obtain the report do not

somehow justify a four-month delay, particularly when one

of those attempts was made only after D.O. filed his due

process complaint.” Although the district court did not

explain why Escondido’s efforts to obtain Dr. Dyson’s

report from D.O.’s mother were “minimal,” that finding was

erroneous. 8 Escondido first asked D.O.’s mother for the

report on December 5, 2016, when Dr. Dyson revealed to

Escondido for the first time that she had evaluated D.O. for

autism. Escondido could not have asked for the report any

earlier because December 5, 2016 was when Escondido

discovered that such a report existed. And D.O.’s mother

agreed to provide the report. Escondido attempted to

obtain the report again in April 2017 by sending a written

8

The district court’s statement that Escondido’s efforts to obtain Dr.

Dyson’s report were “minimal” is better described as a characterization

than as a factual finding, not least because the district court does not

explain why Escondido’s efforts were “minimal.” We nevertheless

describe this characterization as a finding following Federated

Department Stores, Inc. v. Moitie, 452 U.S. 394 (1981). In that case,

the district court stated that “respondents had attempted to avoid removal

jurisdiction by ‘artful[ly]’ casting their ‘essentially federal law claims’

as state-law claims,” and the Supreme Court held that it “will not

question here that factual finding.” Id. at 397 n.2. Dissenting, Justice

Brennan stated that “this amounts to no more than a pejorative

characterization,” instead of a finding of fact. Id. at 409–10 (Brennan,

J., dissenting). But here, regardless of whether the district court’s

statement is a factual finding or a mere characterization, that statement

was erroneous.

32 D.O. V. ESCONDIDO UNION SCHOOL DIST.

request to the attorney for D.O. and his mother. 9 Though,

of course, Escondido could have made the second request

earlier, the district court’s finding that Escondido’s multiple

attempts to obtain Dr. Dyson’s report were “minimal,” was

erroneous, whether clear error or de novo review applies. 10

On this point, the dissent argues that D.O.’s mother’s

failure to provide Escondido with Dr. Dyson’s report has no

bearing on Escondido’s independent duty under IDEA to

assess D.O. While parental recalcitrance does not strip a

school district of its duty to assess children “using the

comprehensive and reliable methods that [] IDEA requires,”

Timothy O., 822 F.3d at 1121–22, neither does IDEA require

school districts to prioritize speed over accuracy.

On December 5, 2016, Escondido became aware that

D.O. had been evaluated for autism. Rephrased,

Escondido became aware that D.O. had taken a set of tests.

According to the dissent, Escondido was legally required to

conduct (or create a plan to conduct) its own set of autism

assessment tests very shortly thereafter—even though

Escondido did not know which tests D.O. had already taken,

and even though to ensure accuracy, assessors “cannot give

certain tests more than once within a year.” Indeed, if tests

are duplicated “within a certain time frame,” the tests can be

considered “null and void.” The District and its mental

health professionals, which had sound reasons, based on

9

Nothing in the record suggests Escondido knew D.O. or his mother

had an attorney prior to March 28, 2017, when D.O. filed the original

complaint.

10

Even if the April request had been made earlier, Dr. Dyson’s report

was not provided until July, and Escondido could not have appropriately

performed an autism assessment until it had that report or a list of the

tests Dr. Dyson had utilized in her assessment.

D.O. V. ESCONDIDO UNION SCHOOL DIST. 33

years of testing and observation, for believing D.O. did not

have autism, acted reasonably by not precipitously

scheduling or moving to schedule potentially invalid tests.

The dissent also faults Escondido for its insufficient

doggedness in pursuing Dr. Dyson’s report and, at the same

time, dismisses the idea that the District was truly waiting

for the Dyson report because it prepared the April 2017

assessment plan without the report in hand. But the District

renewed its request for the Dyson report in April. As the

ALJ noted, the April 4, 2017 assessment plan sent to D.O.’s

mother “indicated the school staff was awaiting a copy” of

Dr. Dyson’s report “for review as part of the evaluation.”

Moreover, the District enclosed in the April 4, 2017 plan “a

Student/Patient Release of Information form seeking

authorization for Rady Children’s Hospital to disclose”

information including the Dr. Dyson report. Escondido

understood that best practices required Dr. Dyson’s report be

considered in crafting an autism assessment plan for D.O.

Moreover, no claim has been made that Escondido

inappropriately delayed the assessment after receiving the

consent to perform it from D.O.’s mother on August 23. 11

Unlike Escondido, which was merely delayed in assessing

D.O., the school district in Timothy O. “deliberately refused”

to assess a child for autism, 822 F.3d at 1122. This fact

materially distinguishes this case from Timothy O. See id.

(“[I]t is particularly egregious that in conducting [the

child’s] initial evaluation . . . [the school district]

deliberately refused to include an assessment of the one

suspected disability of which it had clear notice—autism.”

11

“Determining whether a student has autism requires many

assessments and takes a good deal of time.” JG, 552 F.3d at 791.

34 D.O. V. ESCONDIDO UNION SCHOOL DIST.

(emphasis added)). Thus, the district court erred in not

accounting for the many material differences between this

case and Timothy O.

This case resembles JG, 552 F.3d 786, not Timothy O.

JG involved, among other things, “the school district’s delay

in notifying the [children’s] parents that it would evaluate

[them] for disabilities.” Id. at 789. The school district

“was required to give . . . notice [to the parents] on May 7,

2003,” but the district began evaluating the children without

notifying the parents and gave notice only on August 15,

2003. Id. Ultimately this resulted in a delay of “110

calendar days and thirty-eight school days” between the date

the District was required to give the children’s parents a

notice and consent form and the date the children began

receiving services. Id. at 798, 800. We held that “[t]he

110-day delay was reasonable” because “[s]mall

administrative delays, like this one, and especially delays

needed to promote effective test results, should not render

the [school district’s] actions unreasonable.” Id. at 798; see

also id. at 791 (“Determining whether a student has autism

requires many assessments and takes a good deal of time.”).

We also held that school districts have “a degree of leeway

during summer vacation,” while excluding cases “where a

school district simply delays in the face of a referral for a

potentially autistic child solely because summer vacation

makes a timely evaluation difficult.” Id. at 798.

JG is materially similar to this case. As the

approximate four-month delay in JG included a summer

break, the four-month delay here included a two-week

D.O. V. ESCONDIDO UNION SCHOOL DIST. 35

winter break. 12 As in JG, the delay here was due in

nontrivial part to “delays needed to promote effective test

results.” Id. Indeed, as discussed above, without

knowing the tests Dr. Dyson used, Escondido could not have

performed the assessment accurately. As the district court

recognized, “[b]efore performing its own autism assessment

of D.O., [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,” and

Escondido “attempted [a second time] to obtain the report by

asking D.O.’s counsel for the report on April 7, 2017.”

Despite receiving the report “shortly after” the IEP meeting

on December 5, 2016, D.O.’s mother gave the report to

Escondido only on July 5, 2017. And Escondido proposed

an assessment for the first time on April 7, 2017, but D.O.’s

mother did not consent to an assessment plan until August

23, 2017.

In sum, while Escondido was notified of facts on

December 5, 2016 which triggered its duty to propose an

autism assessment for D.O., Escondido’s four-month delay

in proposing an autism assessment did not amount to a

procedural violation of IDEA. Escondido did not violate

any statutory deadline under state law, and the reasons for

Escondido’s delay are unlike the reasons for delay presented

in cases in which we have found a procedural violation of

IDEA. Although we review whether Escondido’s delay

amounted to a procedural violation of IDEA de novo, see

E.M. II, 758 F.3d at 1170, Escondido’s delay did not amount

12

Escondido’s duty to assess triggered on December 5, 2016, and

Escondido proposed a plan on April 7, 2017. There are 123 calendar

days between those two dates, and Escondido’s academic calendar for

that year shows that there were 73 school days between those dates.

36 D.O. V. ESCONDIDO UNION SCHOOL DIST.

to a procedural violation of IDEA whether de novo or clear

error review applies.

C. Even if Escondido’s four-month delay were a

procedural violation of IDEA, any such violation did

not deny D.O. a FAPE

1. Escondido’s delay did not deprive D.O. of

educational benefits, and D.O.’s IEP was reasonably

calculated to provide D.O. educational benefits

A procedural violation of IDEA constitutes a denial of

FAPE if there are “procedural inadequacies that result in the

loss of educational opportunity, or seriously infringe [on] the

parents’ opportunity to participate in the IEP formulation

process, or . . . cause[] a deprivation of educational benefits.”

Amanda J., 267 F.3d at 892 (internal quotations and citation

omitted). If none of these elements exist, we “evaluate

whether the IEP is reasonably calculated to enable the child

to receive educational benefits.” Anchorage Sch. Dist. v.

M.P., 689 F.3d 1047, 1054 (9th Cir. 2012) (internal

quotations and citation omitted). The district court held

that Escondido’s four-month delay in proposing to assess

D.O. denied him a FAPE “on the basis of the educational

benefit ground,” again relying on Timothy O.:

[T]he Ninth Circuit has held that “[o]n more

than one occasion . . . 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.”

[Timothy O., 822 F.3d] at 1126 (emphasis in

original). Here, as in Timothy O., D.O.’s

D.O. V. ESCONDIDO UNION SCHOOL DIST. 37

IEP goals were likely inappropriate because

they were made without sufficient evaluative

information about his individual capabilities

as a potentially autistic child. See id.

Accordingly, because the District 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 the District to provide a FAPE to D.O.

See id.

The district court’s reliance on Timothy O. is erroneous

because it ignores the fact that, in Timothy O., “it [wa]s

particularly egregious that in conducting [the child’s] initial

evaluation which assessed him for other possible disorders,

[the school district] deliberately refused to include an

assessment of the one suspected disability of which it had

clear notice—autism.” 822 F.3d at 1122. As a result, the

school district staff “treated [the child] as if he were

selectively mute, which they certainly would not have done

if they had an assessment for autism.” Id. at 1125.

Because the school district in Timothy O. refused to assess

the child for autism, we held that “the failure to obtain

critical and statutorily mandated medical information about

an autistic child . . . renders the accomplishment of the

IDEA’s goals—and the achievement of a FAPE—

impossible.” Id. at 1126 (cleaned up). In contrast,

Escondido proposed to assess D.O. for autism in April 2017

and assessed him for autism in October 2017, two months

after obtaining parental consent. The district court erred in

conflating the refusal to assess (and other egregious

38 D.O. V. ESCONDIDO UNION SCHOOL DIST.

behavior) in Timothy O. with Escondido’s delay in

assessment in the circumstances here. 13

We reject D.O.’s argument that a delay in assessment is

a per se denial of a FAPE, even if the delay does amount to

a procedural violation of the IDEA. D.O. relies in part on

N.B. which, according to D.O., held that a school district

denied a student a FAPE because when it “suspected that a

student had autism [it] merely referred parents to obtain an

assessment from an outside agency, rather than the district

assessing itself . . . .” But N.B. is distinguishable because a

delay is different from the school district failing to assess a

child and instead farming out the assessment to an outside

entity. When, as here, the school district assessed after a

delay, we must decide whether the delay deprived the child

of an educational benefit. And we hold that the same is true

even if the delay did amount to an IDEA procedural violation.

13

Those circumstances are discussed above, but some bear repeating.

The District had been providing special education services to D.O. for

the entire time he had been in school—“five years” as of 2017. Those

services consisted of, among others, “psychiatric assessment/diagnosis

and medication prescription and monitoring,” “mental health services

daily,” and “special education and general education teachers observing

him daily.” The first suggestion of autism was in a December 2016

meeting. Escondido’s mental health professionals, including D’Amico

and Garva, questioned autism because of possible behaviors by D.O. that

they averred were clinically inconsistent with autism. An assessment

for autism could not responsibly be done until the district knew what

tests Dr. Dyson had used because certain standard tests could not be

repeated until one year had passed from when Dr. Dyson had

administered them. D.O.’s mother said she would provide Dr. Dyson’s

report and did not. Counsel for D.O. and his mother conceded at oral

argument that “there are certain autism tests that can’t be repeated”

within 365 days because “the data from those [repeated] assessments

wouldn’t be valid.” Transcript of Oral Argument at 24:18–24:40.

D.O. V. ESCONDIDO UNION SCHOOL DIST. 39

The relevant question is not merely whether the delay was

too long, but whether the delay deprived the child of an

educational benefit.

Here, even if Escondido’s delay in proposing to assess

D.O. were a procedural violation of IDEA, such a violation

did not deny D.O. a FAPE because it did not deprive him of

any educational benefit. “[D]elays in meeting IEP

deadlines do not deny a student a FAPE where they do not

deprive a student of any educational benefit.” Doug C. v.

Hawaii Dep’t of Educ., 720 F.3d 1038, 1046 (9th Cir. 2013)

(citing A.M., 627 F.3d at 779). Even though the school

district in A.M. delayed in assessing the student’s needs, we

held that the delay “caused no educational deprivation to

A.M. [a]s . . . evidenced by the fact that A.M.’s placement

continued as [before] in May.” 627 F.3d at 779. As in

A.M., Escondido’s assessment of D.O. was delayed, but

Escondido assessed D.O. for autism and maintained the

same special education placement for D.O. as before the

autism assessment. 14 In the circumstances here, because

D.O.’s special education placement remained unchanged,

Escondido’s delay in that assessment did not deprive D.O.

of educational benefits. 15 D.O.’s mother did not dispute

the results of D.O.’s October 2017 autism assessment, and

14

As noted, Escondido maintained the same special education

placement without objection or challenge by D.O.’s mother.

15

We are not called upon to decide whether under different

circumstances there might be a FAPE denial because of, for example, a

loss of educational benefits or a loss of an educational opportunity even

if a placement remained unchanged after a delayed assessment. The

questions we answer here are whether a delay (even an impermissible

one) per se equals a FAPE denial—it does not; and whether the delay

here denied D.O. a FAPE—it did not.

40 D.O. V. ESCONDIDO UNION SCHOOL DIST.

D.O. concedes that “it is possible for a student with a

diagnosed disability to still not qualify for special education

[for that disability].”

As to whether D.O.’s IEP was “reasonably calculated”

to provide educational benefits, that requirement is met by

providing an education that provides a student with a

“meaningful benefit.” N.B., 541 F.3d at 1212–13. To

meet this standard, a school district “must offer an IEP

reasonably calculated to enable a child to make progress

appropriate in light of the child’s circumstances.” Endrew

F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 137

S.Ct. 988, 999 (2017). “[W]e must not critique an IEP with

the benefit of hindsight . . . we evaluate whether the [IEP

was] reasonably calculated to ensure that the child would

receive educational benefits at the time of implementation.”

Anchorage Sch. Dist., 689 F.3d at 1058. Escondido

“provid[ed] personalized instruction with sufficient support

services to permit the child to benefit educationally from that

instruction,” Rowley, 458 U.S. at 203. For five years as of

2017, “[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.”

This case is also materially different from cases in which

we found that an IEP was not reasonably calculated to

D.O. V. ESCONDIDO UNION SCHOOL DIST. 41

provide educational benefits. For example, in N.B., where

the school district “referred [student’s] parents to [an outside

entity] for an autism evaluation, rather than arranging for an

evaluation after being apprised of [an autism] diagnosis [by

an outside expert,]” we held that “it was not possible . . . to

develop a plan reasonably calculated to provide [student]

with a meaningful educational benefit.” 541 F.3d at 1208,

1210. Unlike the school district in N.B., Escondido

assessed D.O. for autism in October 2017 and concluded that

D.O.’s eligibility categories for special education should

remain unchanged because he did not qualify for special

education for autism.

For these reasons, Escondido’s delay did not deprive

D.O. of educational benefits, and his IEP was reasonably

calculated to confer educational benefits.

2. Escondido’s delay did not deprive D.O. of

educational opportunity 16

“A loss of an educational opportunity occurs, for

example, when there is a ‘strong likelihood’ that, but for the

procedural error, an alternative placement ‘would have been

better considered.’” Timothy O., 822 F.3d at 1124 (quoting

16

D.O. argues that Escondido’s delay “constitut[ed] a denial of FAPE

that caused D.O. a deprivation of educational benefit, loss of educational

opportunity, and/or loss of parent participation . . . .” The district court,

however, found that D.O. was denied a FAPE solely “on the basis of the

educational benefit ground.” Even though D.O. did not cross-appeal,

we may reach the issues that D.O. argues but the district court did not

discuss because D.O. is not asking for relief any greater than what the

district court already granted. See Hilger, 867 F.2d at 567; Engleson,

972 F.2d at 1041; see also Spurlock v. FBI, 69 F.3d 1010, 1018 (9th Cir.

1995) (“An appellee who fails to file a cross-appeal cannot attack a

judgment with a view towards enlarging his own rights.”).

42 D.O. V. ESCONDIDO UNION SCHOOL DIST.

Doug C., 720 F.3d at 1047). Even though Escondido’s

autism assessment of D.O. was delayed, D.O.’s special

education placement stayed unchanged after the assessment.

And there is no evidence that if the assessment had been

conducted earlier, an alternative placement would have

occurred or been “better considered.” So even if

Escondido’s delay were a procedural violation of IDEA,

such a violation did not deprive D.O. of educational

opportunity.

3. Escondido’s delay did not seriously infringe on

D.O.’s mother’s opportunity to participate in the IEP

formulation process

A procedural violation constitutes a denial of FAPE if it

“seriously infringe[s] [upon] the parents’ opportunity to

participate in the IEP formulation process.” Amanda J.,

267 F.3d at 892. In Amanda J., the school district withheld

reports from the student’s parents indicating that the student

may be autistic. We held:

[B]y failing to disclose Amanda’s full

records to her parents once they were

requested, . . . the District denied Amanda a

FAPE. The IEP team could not create an

IEP that addressed Amanda’s special needs

as an autistic child without knowing that

Amanda was autistic. . . . Amanda’s parents

were not informed of the possibility that their

daughter suffered from autism . . . despite the

fact that the district’s records contained test

results indicating as much. Not only were

Amanda’s parents prevented from

participating fully, effectively, and in an

informed manner in the development of [her]

D.O. V. ESCONDIDO UNION SCHOOL DIST. 43

IEP, they were not even aware that an

independent psychiatric evaluation was

recommended, an evaluation that [her]

mother testified she would have had

performed immediately.

Id. at 894. In Timothy O., where the school district

“deliberately refused to include an assessment of . . .

autism,” 822 F.3d at 1122, we cited Amanda J. to find that

“this lack of information . . . substantially hindered [the

child’s] parents’ ability to participate in the IEP process.”

822 F.3d at 1124–25 (quoting 267 F.3d at 894).

Escondido’s delay did not seriously infringe on parental

participation. Unlike the school districts in Timothy O. and

Amanda J., Escondido neither refused to assess D.O. nor

withheld any information. It was D.O.’s mother who failed

to timely provide Escondido with Dr. Dyson’s report. This

delayed Escondido in assessing D.O. because “[b]efore

performing its own autism assessment of D.O., [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.” Moreover, even

though Escondido proposed an assessment on April 7, 2017,

D.O.’s mother failed to consent to an assessment plan until

August 2017. Thus, as the ALJ held, Escondido “did not

significantly impede parental participation” and “[i]f Mother

was impeded in her ability to participate in educational

decision-making, it was due to her own delay.”

For these reasons, D.O.’s IEP was reasonably calculated

to provide educational benefits, and Escondido’s delay did

not deprive him of educational benefits or opportunity and

did not significantly impede parental participation. Thus,

even if Escondido’s four-month delay in proposing to assess

44 D.O. V. ESCONDIDO UNION SCHOOL DIST.

D.O. were a procedural violation of IDEA, such a violation

did not deny D.O. a FAPE.

D. Whether Escondido can recoup the $3,500 it paid

to D.O. is irrelevant to whether this appeal is moot for

lack of a case or controversy

D.O. argues that “this appeal should be dismissed

because there is no case or controversy in that the money

already paid to D.O.’s parent cannot be recouped by

Escondido.” D.O. also argues that “[e]ven if this Court

were to find it permissible to reimburse Escondido, its failure

to appeal the OAH Remand Order in 90 days should prevent

this action from proceeding.” According to D.O., “[i]f

Escondido wanted to challenge the cost of the evaluation as

a result of the OAH Remand Order [from 2019], it was

required to challenge that decision to the district court within

90 days. Instead, Escondido incorrectly filed an appeal

with the [Ninth] Circuit. Escondido should not now be

allowed to ignore the statute and resurrect a fatal decision it

made over two years ago.”

Even assuming that Escondido cannot recoup the $3,500

reimbursement, that fact would not render the appeal moot.

“The doctrine of mootness, which is embedded in Article

III’s case or controversy requirement, requires that an actual,

ongoing controversy exist at all stages of federal court

proceedings.” Pitts v. Terrible Herbst, Inc., 653 F.3d 1081,

1086 (9th Cir. 2011). The issues before us on appeal are

whether Escondido’s delay in assessing D.O. for autism was

a procedural violation of IDEA and whether that delay

denied him a FAPE. These issues are both ongoing and do

not turn on the status of the reimbursement. Thus, whether

or not Escondido can recoup the $3,500 reimbursement, this

appeal is not moot.

D.O. V. ESCONDIDO UNION SCHOOL DIST. 45

***

The district court erred in granting summary judgment to

D.O. on his claim that Escondido’s four-month delay was a

procedural violation of IDEA, and that the violation denied

him a FAPE. We direct the district court to enter judgment

in accordance with this opinion. Each party shall bear its

own costs.

REVERSED AND REMANDED.

SANCHEZ, Circuit Judge, concurring in part and dissenting

in part:

I concur in the majority’s holding that the Escondido

Union School District’s (“Escondido”) delay in proposing to

assess D.O. for autism did not deny him a Free Appropriate

Public Education (“FAPE”) under the Individuals with

Disabilities Education Act (“IDEA”). I respectfully

dissent, however, from the majority’s conclusion that

Escondido’s failure to act for four months in the middle of

the school year was nonetheless reasonable under the IDEA

because D.O.’s mother was uncooperative. Our 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. Accordingly, I 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

reverse its determination that this procedural violation

resulted in the denial of a FAPE.

46 D.O. V. ESCONDIDO UNION SCHOOL DIST.

I.

The material facts are not in dispute. On December 5,

2016, Escondido was made aware that Dr. Margaret Dyson,

a licensed clinical psychologist at Rady Children’s Hospital,

had assessed D.O. and determined that he appeared to meet

the criteria for autism spectrum disorder. The parties agree

that Escondido’s duty under IDEA to propose an assessment

plan for D.O. was trigged by this disclosure. It is also

undisputed that Escondido did not propose to assess D.O for

autism until April 7, 2017—a four-month delay equivalent

to half the school year. The district court found that

Escondido made “minimal attempts” to obtain the Dyson

report over those four months and only proposed an

assessment plan after D.O.’s mother filed a due process

complaint against the district on March 28, 2017. The

court further found that Escondido’s delay was motivated at

least in part by staff skepticism about the autism diagnosis.1

Finally, there is no dispute that when Escondido finally

proposed its assessment plan, district staff had not received

the Dyson report and did not rely on any outside report to

prepare the assessment plan.

The majority’s holding that no procedural violation

occurred here contravenes our precedent and the

1

The district court’s findings concerning staff members’ actions or

inactions and what motivated their decision to delay the assessment plan

are factual findings we review for “clear error even when they are based

on the written record of administrative proceedings.” See Amanda J.

ex rel. Annette J. v. Clark Cty. Sch. Dist., 267 F.3d 877, 887 (9th Cir.

2001). Whether staff had reasonable grounds for the delay and whether

such delay constituted a procedural violation of IDEA are questions of

law we review de novo. See id. As discussed below, the majority

muddles this distinction and fails to accord appropriate deference to the

district court’s factual findings.

D.O. V. ESCONDIDO UNION SCHOOL DIST. 47

procedural requirements of IDEA. Under federal law, the

district must ensure that “[each] child is assessed in all areas

of suspected disability.” 20 U.S.C. § 1414(b)(3)(B); Cal.

Educ. Code § 56320(f); see W.G. v. Bd. of Trs. of Target

Range Sch. Dist. No. 23, 960 F.2d 1479, 1483 (9th Cir. 1992)

(“State standards that are not inconsistent with federal

standards [under IDEA] are also enforceable in federal

court.”). A child is “suspected” of a disability “when the

district has notice that the child has displayed symptoms of

that disability.” Timothy O. v. Paso Robles Unified Sch.

Dist., 822 F.3d 1105, 1119 (9th Cir. 2016). “Once either

the school district or the parents suspect disability … a test

must be performed so that parents can receive notification

of, and have the opportunity to contest, conclusions

regarding their child.” Id. at 1120 (internal quotation

marks and citation omitted). IDEA “requires that [school]

districts act within a reasonable time to evaluate potentially

disabled children.” JG v. Douglas Cnty Sch. Dist., 552

F.3d 786, 798 (9th Cir. 2008).

We have consistently held that inaction by parents does

not relieve districts of their independent obligation to

comply with the procedures established by IDEA. In W.G.

v. Board of Trustees, for example, a child’s parents promised

the school district they would arrange for personnel of the

child’s school to attend an IEP meeting for the child, but the

parents failed to do so. 960 F.2d at 1481. We held that

this failure did not relieve the school district of its own duty

under IDEA to secure the school’s participation in the IEP

meeting. Id. at 1484–85; see also id. at 1486 (finding the

school’s failure to propose a follow-up IEP meeting for five

months during the school year was a procedural violation of

IDEA). In Union High School District v. Smith, we

rejected the argument that parents who withheld portions of

48 D.O. V. ESCONDIDO UNION SCHOOL DIST.

an outside report diagnosing their child with autism excused

the district of its obligation to evaluate the child for autism.

15 F.3d 1519, 1523 (9th Cir. 1994). We concluded that

even if the withheld portions of the report were relevant to

such evaluation, “[a]ny failure of the [parents] to turn over

portions of a specialist’s report cannot excuse [a district’s]

failure to procure the same information for itself.” Id. at

1523–24 (citing W.G., 960 F.2d at 1484–85).

We reiterated again in N.B. v. Hellgate Elementary

School District that “[a] school district cannot abdicate its

affirmative duties under the IDEA.” 541 F.3d 1202, 1209

(9th Cir. 2008). In N.B., the district was alerted to an

outside report diagnosing the child with possible autism.

Id. at 1205–06. Because the district did not have personnel

qualified to conduct an autism evaluation, it referred the

parents to an outside organization that provided free autism

testing. Id. at 1208–09. The child’s parents did not

procure an evaluation from the outside organization for

several more months, and the district seized on this fact to

argue that the parents’ inaction excused its own failure to

secure an evaluation. Id. We rejected the argument,

holding that the district “did not fulfill its statutory

obligations by simply referring [the child’s] parents to the

[outside organization]. Such an action does not ‘ensure

that the child is assessed,’ as required by 20 U.S.C.

§ 1414(b)(3)(C).” Id.

D.O.’s mother’s failure to provide the Dyson report to

the district does not excuse Escondido’s statutory obligation

to propose an assessment plan for D.O. within a reasonable

period after becoming aware of his suspected disability. It

makes no difference that D.O.’s mother promised to deliver

a copy of the Dyson report to Escondido on December 5,

2016, because Escondido could not abdicate its own

D.O. V. ESCONDIDO UNION SCHOOL DIST. 49

affirmative obligation to begin the autism assessment

process under IDEA. The majority emphasizes that

Escondido could not assess D.O. without first knowing

which tests Dr. Dyson used to evaluate D.O. because certain

autism tests cannot be administered to a child more than once

a year. Even if true, that does not bear on the procedural

violation at issue in this appeal. The challenged delay here

concerns Escondido’s “minimal attempts” to procure the

Dyson report and its failure to propose an assessment plan

for four months of the school year, not a delay in the

assessment itself. Escondido’s justification for failing to

act sooner—that it was waiting on D.O.’s mother to deliver

the Dyson report—rings hollow given that district staff had

not obtained and did not rely on the Dyson report when they

proposed the assessment plan in April 2017.

The majority contends that the district court clearly erred

in its “minimal attempts” finding because Escondido asked

for the report twice, first in December 2016 and then again

in April 2017, and it quibbles over whether this is a factual

finding or mere characterization. This is a factual finding,

and it is amply supported by the record. Escondido

provided no evidence it made any effort to obtain the Dyson

report over those four months, nor does it challenge the

court’s finding that the district only offered an assessment

plan after D.O.’s mother filed a due process complaint on

March 28, 2017. This timing indicated to the district court

that litigation was what prompted the district to act.

Indeed, in the administrative proceedings below, Escondido

argued that district staff “did not immediately seek to begin

their own autism assessment because they believed there was

the possibility that the final [Dyson] report would state

[D.O.] did not meet diagnostic criteria for autism spectrum

disorder.” The ALJ found this reason for delaying

50 D.O. V. ESCONDIDO UNION SCHOOL DIST.

assessment “specious,” both because Dr. Dyson stated on

December 5, 2016 that her report had been finalized and

because district officials were unlikely to accept the report.

The district court’s factual finding that Escondido made

“minimal attempts” to begin the autism assessment process

was not clearly erroneous.

As the district court also found, Escondido delayed in

part because district staff were skeptical of Dr. Dyson’s

autism diagnosis. Our precedent does not permit a school

district to refuse to undertake a formal assessment of a child

because district staff are skeptical that the child will be

diagnosed with the disability at issue. In Pasatiempo v.

Aizawa, we held that the informed suspicions of parents

trigger the duty to assess, even if the district disagrees with

those suspicions. 103 F.3d 796, 802 (9th Cir. 1996). In

N.B., we held that the informed suspicions of outside experts

do the same. 541 F.3d at 1208–09. In Timothy O., the

district was aware that the child displayed signs of autistic

behavior but declined to formally assess him for autism

“because a member of its staff opined, after an informal,

unscientific observation of the child, that [he] merely had an

expressive language delay, not a disorder on the autism

spectrum.” 822 F.3d at 1109. We held that the district’s

failure to formally assess the child for autism was a

procedural violation of IDEA, concluding that “if a school

district is on notice that a child may have a particular

disorder, it must assess that child for that disorder, regardless

of the subjective views of its staff members concerning the

likely outcome of such an assessment.” Id. at 1121.

The majority attempts to distinguish Timothy O. by

suggesting that Escondido staff had a more substantial basis

for its skepticism of the autism diagnosis. Unlike the

cursory “thirty to forty minute[]” informal evaluation by the

D.O. V. ESCONDIDO UNION SCHOOL DIST. 51

psychologist in Timothy O., the majority reasons, Escondido

has educated D.O. since the summer before kindergarten and

has provided D.O with mental health services for five years.

Interactions by several mental health and medical staff gave

Escondido a far more substantial and “scientific” basis for

its skepticism of the autism diagnosis, the majority

concludes. The majority therefore determines that the

district court erred in attributing Escondido’s delay to the

subjective views of its staff. The district court’s factual

finding was not clearly erroneous. No authority supports

the proposition hinted at by the majority that a school district

can delay or refuse a formal assessment if district staff have

interacted more frequently with the child or provided mental

health services in other areas of need. Not even Escondido

argues that its staffs’ interactions with and observations of

D.O. served as an adequate substitute for a formal

assessment of D.O. for autism.

Under IDEA and state law implementing its

requirements, the school district must ensure that “the child

is assessed in all areas of suspected disability.” 20 U.S.C.

§ 1414(b)(3)(B) (emphasis added); 34 C.F.R § 300.304; Cal.

Educ. Code § 56320(f). The majority invents a caveat to

this directive that does not exist in statute or caselaw. As

we explained in Timothy O.:

To hold that [district staff’s] informal observation could

overcome [Escondido’s] statutory obligation to formally

assess [D.O.] for a suspected disability would allow school

districts to disregard expressed and informal concerns about

a child’s disabilities on the basis of prejudicial stereotypes

about what certain disabilities look like, rather than on the

objective evidence and the thorough and reliable

standardized testing that the IDEA requires.

52 D.O. V. ESCONDIDO UNION SCHOOL DIST.

See 822 F.3d at 2016 (emphasis added). Common

sense also supports requiring a district to formally assess a

child for a suspected disability even when skepticism about

the resulting diagnosis is well-grounded: The formal

assessment will determine these matters conclusively and

clarify for the parents and school district alike the

appropriate next steps to support the child.

Finally, the majority’s reliance on JG v. Douglas County

School District is misplaced. In JG, the school district was

required under 20 U.S.C. § 1415(b)(3) to provide the parents

of twins with notice of a proposal to evaluate the twins for

learning disabilities by May 7, 2003, but the district failed to

do so. 552 F.3d at 789. Unaware that the district would

conduct evaluations, the twins’ parents sought and paid for

private evaluations. Id. at 795. Recognizing that the

school district denied the children a FAPE when it did not

provide the parents with notice of a proposal to evaluate on

May 7, 2003, we held they were entitled to full

reimbursement for the private evaluations. Id. at 792,

795.

We also considered whether the evaluations ultimately

conducted by the district occurred within a reasonable time.

Id. at 795–99. The school district conducted general

evaluations on August 25, 2003—110 days after notice to

the parents was due on May 7, 2003. Id. at 796, 798. The

earliest the district had any notice of suspected autism was

on July 28, 2003. Id. at 789. On September 25, 2003, the

district began autism-specific testing—just 59 days after

becoming aware of the twins’ suspected autism. Id. In

concluding that the district’s autism testing was not

unreasonably delayed, we emphasized two points. First,

summer vacation took up part of the delay from May to late

August, which impacted only 38 school days. Id. at 798–

D.O. V. ESCONDIDO UNION SCHOOL DIST. 53

99. Second, initial general evaluations of the twins were

conducted over a month before autism-specific testing began

in order to build the “trust and comfort level between child

and evaluator” required for effective autism testing. Id.

The majority analogizes the reasonable “110-day delay”

in JG to the 123 days it took Escondido to propose an

assessment plan for D.O. The comparison is inapt because

the 123 day-delay in this case was during the school year,

not over summer vacation, and therefore the delay occurred

over 73 school days—almost double the number of school

days impacted under JG. More importantly, it took the

district in JG just 59 days from becoming aware of the twins’

suspected autism to begin autism testing. See id. at 789.

Conversely, it took Escondido 123 days from becoming

aware of D.O.’s suspected autism to even propose an autism

assessment plan. Nor are Escondido’s minimal efforts over

a four-month period of inactivity at all comparable to the

month-long general evaluations conducted by the school

district in JG, which were “essential to produce valid test

results” when autism-specific testing began. See id. at

798.

With the goal of guaranteeing a free appropriate public

education to all children with disabilities, IDEA requires a

school district to timely evaluate all potentially disabled

children. Id. at 797–98; see N.B., 541 F.3d at 1207. The

statute does not leave it to the district to decide when to

assess for a disability and when not to bother. Notice of a

suspected disability automatically triggers the district’s

obligation to assess “using the comprehensive and reliable

methods that [] IDEA requires.” Timothy O., 822 F.3d at

1121–22; see N.B., 541 F.3d at 1207. To hold otherwise

“would be particularly devastating for children with autism,”

which can manifest in varied and non-obvious ways.

54 D.O. V. ESCONDIDO UNION SCHOOL DIST.

Timothy O., 822 F.3d at 1121. Here, I can see no reason to

disturb the finding that Escondido’s unjustified four-month

delay in initiating an autism assessment of D.O. was a

procedural violation of IDEA.

II.

I concur in the majority’s conclusion that Escondido did

not deny D.O. a FAPE but write separately to explain the

differences in my reasoning. Procedural violations deny a

child a FAPE where they “result in the loss of educational

opportunity” or educational benefits, or where they

“seriously infringe the parents’ opportunity to participate in

the IEP formulation process.” Amanda J., 267 F.3d at 890

(quoting W.G., 960 F.2d at 1484). Escondido’s procedural

violation had no such effect, and D.O.’s IEP was “reasonably

calculated to enable [D.O.] to receive educational benefits,”

as IDEA requires. See Anchorage Sch. Dist. v. M.P., 689

F.3d 1047, 1054 (9th Cir. 2012) (quoting Bd. of Educ. of

Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v.

Rowley, 458 U.S. 176, 207 (1982)). As the majority

explains, Escondido’s delay in initiating the autism

assessment process did not deprive D.O. of educational

opportunities or benefits. D.O.’s October 2017 evaluation

established that he did not qualify for special education for

autism and D.O.’s special education placement remained

unchanged. In other words, Escondido would not have

provided D.O. different educational opportunities or benefits

had it initiated the evaluation in a timely manner, because

the results of the evaluation indicated that no change in

D.O.’s education was required.

However, the majority misses the mark when it attempts

to distinguish the instant case from Timothy O. and N.B. by

positing that “the refusal to assess” differs from Escondido’s

D.O. V. ESCONDIDO UNION SCHOOL DIST. 55

“delay in assessment.” In determining whether a school

district’s failure to timely assess a child denied the child a

FAPE, the relevant question is what impact such failure had

on the child’s education, not whether the failure is better

described as a “refusal” or a “delay.” See Timothy O., 822

F.3d at 1118; JG, 552 F.3d at 789; N.B., 541 F.3d at 1207.

Where a district’s delay in initiating a disability assessment

is sufficiently long, there is no functional difference between

an unreasonable delay and a refusal to assess. Both result

in the failure to provide a timely assessment and may deprive

the child of educational opportunities or benefits guaranteed

by IDEA.

Timothy O. is distinguishable not because of the district’s

refusal to conduct an assessment, but because there was

“strong reason” to believe the district would have provided

the child different educational opportunities had the district

formally assessed the child for autism. 822 F.3d at 1124–

25. Similarly, in N.B., the district failed to obtain a timely

autism evaluation of the child, eventually receiving a report

from an outside center indicating the child had autism. 541

F.3d at 1206. In response to the report, the district made

substantial changes to the child’s IEP, four months after it

was first put on notice of the child’s potential autism. Id.

at 1206, 1208, 1210. The salient point of these authorities

is that the failure to conduct a timely assessment resulted in

the denial of a FAPE because the children were unable to

receive an IEP properly tailored to their individualized needs

and supportive services. Here, by contrast, the record

shows that Escondido’s delay in initiating D.O.’s assessment

had no impact on D.O.’s IEP or the education D.O. received.

Finally, I concur with the majority that Escondido’s

delay did not deny D.O.’s mother the “ability to participate

in the development of [his] IEP in an informed and effective

56 D.O. V. ESCONDIDO UNION SCHOOL DIST.

manner.” See Amanda J., 267 F.3d at 890–91. Escondido

did not deprive D.O.’s mother of any evaluative information

about D.O., conduct we have held impairs parental

participation. See id.; Timothy O., 822 F.3d at 1124–27.

Further, once Escondido proposed an autism assessment

plan, D.O.’s mother did not participate in the assessment

process for several more months. As the majority notes,

she waited until July 2017 to consent to the plan.

However, the majority’s analysis of whether Escondido

seriously infringed on parental participation emphasizes

again that Escondido did not refuse to assess D.O., posing

the wrong question. The relevant question in my view is

whether Escondido’s delay in proposing an assessment plan

denied D.O.’s mother the ability to meaningfully participate

in the development of D.O.’s IEP. It did not. There is no

evidence that Escondido failed to offer D.O. “an IEP

reasonably calculated to enable [him] to make progress

appropriate in light of [his] circumstances.” Endrew F. ex

rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct.

988, 999 (2017). In sum, Escondido fell short of IDEA’s

procedural requirements, but did not deny D.O. a FAPE.