On July 15, 2014, the Ninth Circuit Court of Appeals issued its opinion
in E.M. v. Pajaro Valley Unified School District Office of Administrative Hearings. In addition to the law involved, the E.M. decision also highlights how important it is for parents know their rights and continue to advocate for their child. For students with disabilities time is always of the essence and parents must continue to keep advocating.
The Court of Appeals found that students can be eligible for special education under other health impairment (“OHI”) even if they do not qualify for specific learning disability (“SLD”). This decision affirms the requirement in the Individuals with Disabilities Education Act that a school district must consider “all areas of suspected disability.”
This was the second appeal in this long dispute over “child find” for a California student with a central auditory processing disorder. Under “child find” a school district has an obligation to identify, locate and evaluate students who may have disabilities and need special education.
The United States Department of Education specifically advocated for the Court of Appeals to find that students with central auditory processing disorder can be eligible for SLD and OHI. The Court agreed with the Department of Education.
E.M. did not qualify for special education under the SLD category and the district did not consider other categories.
Beginning in 2004, the school district evaluated E.M. but determined he did not meet the eligibility requirements for specific learning disability. At the time, it was required that a student have a “severe discrepancy” between intelligence and achievement – based on standardized test scores. As of 2006, that is no longer required but it is still considered.
It is clear the district did not consider whether E.M. was eligible under the other health impairment category in addition to SLD. E.M. lost the appeal, in part, because the Court of Appeals found that there was not sufficient evidence that E.M. would have met the criteria for OHI at the time. As a result, the Court of Appeal could not determine that the district failed to meet its “child find” obligations.
Going forward, the E.M. decision should prevent school districts from defending a child find case by arguing they did not need to consider other categories of eligibility before deciding a student is not eligible for special education. Failure to do so could result in a child find violation.
Do not delay if you think your child needs special education.
E.M. was eventually determined eligible for special education but not until February 2008 – about 3 ½ years after the initial evaluation. The family argued the delay in providing E.M. services caused him to fall further behind. Unfortunately, according to the oral argument in the case, this was a gap from which E.M. was not able to recover even with special education. Though E.M. has graduated from high school he still has a number of significant deficits that continued to impact him. Had he been identified sooner, there is little doubt he would have been better off.
Regardless of the outcome, E.M. had to wait far too long to get services. Parents need to be educated about their rights so they can effectively advocate for their child. If the school district determines that a child is not eligible for special education, parents have a number of rights and protections to timely challenge the determination – including an independent educational evaluation (“IEE”), state complaints and a due process hearing – so that your child does not miss out on opportunities to address his or her needs.
If a school district has failed to find your child eligible for special education or if you think they should have evaluated sooner, please contact the Law Office of Richard J. Murphy, PLC.