A few months ago, we wrote about R.E.B. v. Hawaii Dep’t of Educ., No. 14-15895, 2017 WL 4018395, — F.3d —-, 117 LRP 38439 (9th Cir. Sept. 13, 2017) (per curiam, before Kozinski, Hawkins, and Bea).  It’s back.  Background first.  In R.E.B., the parent of a child with autism contested a proposed IEP that called for the child to make the transition from a private school to a public school kindergarten. The administrative hearing officer upheld the IEP and the district court affirmed. The Ninth Circuit affirmed in part and reversed in part.  The court held that the public school system violated the IDEA by failing to address the parent’s concern about the provision of transition services for the move to public school kindergarten in the proposed IEP. Overruling two district court cases, the court declared that “Where transition services become necessary for disabled children to ‘be educated and participate’ in new academic environments, transition services must be included in IEPs in order to satisfy the IDEA’s ‘supplementary aids and services’ requirement.” 2017 WL 4018395, at *2, citing 20 U.S.C. § 1414(d)(1)(A)(i)(IV). The court also held that the public school system “violated the IDEA by failing to specify in the child’s IEP the least restrictive environment during regular and extended school year,” Id. The court also ruled that that the IEP’s failure to specify Applied Behavioral Analysis methodology violated the IDEA when the IEP team discussed the methodology at length and recognized that it was integral to the child’s education.

Judge Bea dissented in part, crediting the defendant for its plan for gradual transition of the student and contending that the IDEA does not require that transition services be specified on the IEP, that the IEP adequately explained the extent to which the child would participate in education with children without disabilities, and that the IEP did not need to spell out the use of ABA methodology.

The Hawaii Department of Education sought En Banc review.  On April 3, 2018, the Ninth Circuit denied the petition but granted the Department’s Petition for Panel Rehearing and withdrew the Opinion and dissent filed on September 13, 2017.  Judge Kozinski, originally a member of the panel and who participated in the Per Curiam opinion, retired prior to the Court deciding the petitions.  A new judge – Judge Nguyen – was drawn in his place.

This is certainly an interesting case that we need to keep our eye on.