## Facts

- C.B., a preschool-aged child, had early evaluations indicating an autistic component and a need for speech therapy.
- A New Jersey school district created an IEP providing substantial special-education instruction and speech/language services.
- After the family moved to Montana, the Hellgate Elementary School District received the prior records and was told of possible autism.
- The District did not timely evaluate C.B. for autism and did not fully implement comparable services initially; instead, it referred the parents to an outside child development center for testing.
- The outside evaluation diagnosed an autism spectrum disorder; the District then reconvened the IEP team and increased services over time, eventually approximating the prior service levels.
- The parents requested extended school year (ESY) services for summer 2004; the District denied ESY using a regression/recoupment approach.
- The parents pursued an IDEA due process complaint; an administrative hearing officer and the federal district court ruled for the District.

## Issues

1. Whether the District violated IDEA’s child-find/evaluation duties by failing to conduct a timely autism evaluation despite notice of suspected autism and by shifting evaluation to a third party.
2. Whether the District denied a free appropriate public education (FAPE) by refusing ESY services for summer 2004 under a regression/recoupment standard.

## Decision

- The Ninth Circuit affirmed in part, vacated in part, and remanded.
- The court vacated the judgment upholding the District’s procedural compliance and held the District violated IDEA by failing to fulfill its independent duty to evaluate C.B. for autism.
- The court affirmed the judgment that denial of ESY did not constitute a substantive denial of FAPE, accepting regression/recoupment as a permissible ESY framework and finding sufficient evidence of steady progress without severe regression risk.
- The case was remanded for further proceedings consistent with the procedural violation, including consideration of appropriate relief.

## Legal Principles

- IDEA imposes an affirmative, non-delegable duty on school districts to identify, locate, and evaluate children suspected of having disabilities; referring parents to outside evaluators does not satisfy the district’s obligation to ensure a timely, appropriate evaluation.
- An IDEA procedural violation can amount to a denial of FAPE when it impedes the child’s right to FAPE, significantly interferes with parental participation, or deprives the child of educational benefits.
- ESY determinations may permissibly use a regression/recoupment standard; ESY is generally required only when lack of services would cause severe regression and inability to regain skills within a reasonable time.

## Conclusion

The Ninth Circuit held that the District violated IDEA’s evaluation requirements by not independently evaluating a child for suspected autism, but it upheld the denial of ESY services because the record supported the conclusion that the child made steady progress and did not face severe, unrecoupable regression without summer services.


N.B. v. Hellgate Elementary Sch. Dist., 541 F.3d 1202 (9th Cir. 2008)