In E. M. v. Pajaro Valley Unified School District (July 15, 2014) No. 12-15743, the Ninth Circuit recently held that a student with an auditory processing disorder could be eligible for special education and related services on the basis of a "specific learning disability" (SLD) or as being "other health impaired" (OHI) at the same time. However, the original denial of eligibility by the district was in 2005, the student had already graduated, and the Court of Appeals held that the district's denial of eligibility based on lack of a "severe discrepancy" and failure to consider OHI based on "limited alertness" was reasonable at the time.
E.M. ("Student") was assessed for an SLD in 2005, based on an auditory processing disorder. The district psychologist administered the Wechsler and Woodcock Johnson intelligence tests and concluded that there was not a severe discrepancy between Student's intelligence and academic performance. Based on Education Code section 56337 and the regulations then in effect, the district concluded that Student was not eligible for special education. In 2009, Student was tested again by a different psychologist using a different test that suggested a higher general intelligence level. On that basis, the district determined that Student was eligible based on an SLD and offered services. The parents continued to complain that Student should have been identified in 2005 based on his hearing deficit, claiming that Student qualified for special education based on an OHI, which does not require a "severe discrepancy." Under OHI, eligibility is based on a health problem that causes "limited alertness" that "adversely affects a child's educational performance." (34 Code of Fed. Regs. sec. 300.7(c)(9).)
This case has a long history. It was remanded to the Office of Administrative Hearings (OAH) and to the District Court several times. One remand by the 9th Circuit was expressly to consider the legal opinion of the U.S. Department of Education that a child could qualify for special education under both SLD and OHI criteria at the same time for the same condition. Despite the remands, the District Court held that the school district did not violate the IDEA in 2005 in either its choice of cognitive development test; its application of the "severe discrepancy" standard, or the failure to identify under OHI, given Student's academic success.
In the final consideration of the parents' appeal, the 9th Circuit upheld the District Court, OAH, and the school district and denied any additional remedy. In so ruling, the Court concluded that the district used a reasonable assessment tool and applied the test results in a reasonable manner based on the statistical standard required by law. Although the Court deferred to the policy expertise of the U.S. Department of Education regarding qualification based on multiple disability classifications, the Court upheld the trial court finding that the parents had not provided sufficient evidence that an OHI had adversely affected Student's performance. The Court noted that, given the passage of time and the number of remands that had already occurred, no point would be served by further inquiry into the affect the OHI might have had on Student's limited alertness.
This decision may have less significance in the future given the recent change in the California regulations which allows districts to identify a student with an SLD based on multiple measures, including "response to intervention." (5 CCR sec. 3030(b)(10), now consistent with 34 CFR sec. 300.307.) That is, if districts are not required to rely solely on the statistical methodology of the "severe discrepancy" model, and have more flexibility in determining eligibility, then parents will be less inclined to try to qualify their children under the more general standard for OHI. (See our Legal Alert dated July 11, 2014, Bulletin No. 1127495.1)
What This Means To You
A student with a processing disorder or health condition that suggests both an SLD and an OHI should be assessed for eligibility under both classifications.
Districts should revise their policies and practices regarding assessment and identification of SLDs in light of the new regulations at 5 CCR sec. 3030(b)(10). Districts should not rely only on the "severe discrepancy" methodology but should also consider the student's "response to intervention" and the "pattern of strengths and weaknesses."
A school district may choose an appropriate assessment tool for a particular eligibility category from among various assessment options, based on the opinions of qualified professionals, and the courts will defer to that choice if it is reasonable.
Where the IDEA is not clear on a rule of law, the courts will defer to the interpretations of the U.S. Department of Education as the agency charged with enforcement of the IDEA and promulgation of the IDEA regulations.
The burden of proof in due process remains on the parents alleging a denial of FAPE to produce evidence that an alternative theory of eligibility that was not originally heard by OAH would have led to eligibility if it had been heard.
After eight years, multiple remands, and the graduation of the student from high school, the appellate court will eventually shut off any further challenges to the district's original eligibility determinations.