In 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), 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 first disposed of a mootness challenge to the case, finding that the dispute was not moot even though the public school system paid the tuition for the private school while the proceedings were going on. The court reasoned that the parent continued to demand reimbursement for transportation as well as to seek compensatory education.

On the merits, 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 said that the parent adequately raised concerns about transition, specifically the need to take into account the changes anticipated in the child’s educational experience, such as the number of fellow students and daily routines the child would be exposed to.

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 declared that “J.B.’s IEP contained only the vague statement that J.B. would ‘receive specialized instruction in the general education setting for Science and Social Studies activities as deemed appropriate by his Special Education teacher/Care Coordinator and General Education teacher.’ This improperly delegated the determination of J.B.’s placement to teachers outside the IEP process. The language was also too vague to enable J.B. to use the IEP as a blueprint for enforcement.” The court pointed out that the child was mainstreamed into Mandarin, which the court said was obviously inappropriate for him, but not necessarily mainstreamed into Science or Social Studies. The inability of the parent to participate in the IEP process denied the child free, appropriate public education.

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. The court stated for good measure, “ABA is widely recognized as a superior method for teaching children with autism.” Id. at 3. The case was remanded for a determination as to remedy.

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 significance of the case rests on each of its principal holdings. Although the IDEA is clear that transition services must be addressed for students nearing completion of their studies, the opinion is a definitive ruling about a more contested form of transition services. It declares that transition needs to be addressed as a young child moves into a different educational setting for kindergarten. The failure to specify the least restrictive setting in the IEP and the odd choices about the courses that were suitable for mainstream instruction could have been an oversight on the part of the school system, but one cannot help thinking that the court suspected the placement in the foreign language class was simply babysitting and wanted to be on record against that. Finally, the court came down decisively in favor of the position that when ABA therapy is raised and discussed at an IEP team meeting, a decision on the use of the methodology has to be in the child’s IEP. If integral to the child’s education, it must be specified in the IEP document. The court staked out clear positions on all these issues. To what degree the decision is persuasive outside the Ninth Circuit will emerge over time.