District Wins Right to Reassess Student After Independent Evaluation Conflicts with Prior Findings

Orange Unified School District filed for due process after parents refused to consent to a third assessment of their 12-year-old daughter, who had twice been found ineligible for special education. The parents had obtained their own independent assessment concluding the student might qualify for services due to a learning disability and ADHD. The ALJ ruled in favor of the District, ordering the parents to make the student available for assessment.

What Happened

Student is a 12-year-old girl who had been assessed by Orange Unified School District twice before — once in 2003 and again in 2005 — and was found ineligible for special education services both times. Despite these findings, Student continued to struggle in school, particularly in math. Both times, the District's school psychologist found no significant discrepancy between Student's cognitive ability and her academic achievement, which was the standard used at the time for identifying a specific learning disability.

Frustrated by the District's conclusions, Student's parents hired an independent licensed psychologist, Dr. Passaro, who conducted his own assessment in 2006. Dr. Passaro reached very different conclusions: he found a significant difference between two key cognitive scores, identified a cognitive processing deficit, and concluded that Student might qualify for special education under categories of specific learning disability (in reading and math) and other health impairment (ADHD). When the parents shared this report with the District and requested an IEP meeting, the District proposed conducting a new assessment of its own. The parents refused to consent, believing the independent assessment was sufficient and that further testing would harm Student's self-esteem. The District filed for due process to compel the assessment.

What the ALJ Found

Because the District was the party seeking relief in this case, it bore the burden of proving that a new assessment was justified. The ALJ found that the District met that burden for several reasons.

The District's staff raised legitimate concerns about Dr. Passaro's independent assessment. Most importantly, Dr. Passaro never observed Student in a classroom — a significant gap, particularly given his conclusion that Student had an attention disorder. District staff also noted that Dr. Passaro appeared to have omitted reading scores from one of the tests he administered, even though he concluded Student had a reading disability. These were meaningful gaps in an otherwise critical document.

The ALJ also found that the stark conflict between Dr. Passaro's conclusions and the two prior District assessments created a genuine need for updated information. An IEP team cannot fairly determine a student's eligibility when it has contradictory assessments in front of it and no way to resolve the conflict. Under those circumstances, a fresh District assessment was a reasonable and lawful response.

The ALJ rejected the parents' argument that the District failed to follow proper procedural steps before drafting its assessment plan. The relevant regulation envisions informal, fluid communication — not a rigid formal meeting — and the evidence showed that the parents had already decided not to consent regardless of any meeting. The ALJ also firmly rejected the District's request for sanctions against the parents, finding that the parents had done nothing wrong by exercising their legal right to contest the assessment.

What Was Ordered

The District's request to assess Student was granted.
If Student's parents wish to have Student considered for special education services, they are ordered to make Student available for assessment in accordance with the District's assessment plan dated August 30, 2006.
The District's request for sanctions against the parents was denied.

Why This Matters for Parents

An independent assessment alone may not be enough to force an IEP. When an independent evaluation conflicts sharply with prior District assessments, the District has the legal right — and may have the obligation — to conduct its own updated assessment before an IEP team can make eligibility decisions. Parents cannot simply present a private evaluation and expect the District to accept it wholesale.
Independent evaluators should always observe the student in the classroom. The ALJ highlighted the absence of classroom observation as a significant weakness in the independent assessment. If you hire a private evaluator, make sure they observe your child in school — especially if the concerns involve attention, behavior, or performance in the classroom environment.
Refusing to meet with the District can hurt your case. The ALJ noted that the parents declined to meet with District staff to discuss the proposed assessment plan. Courts and hearing officers look unfavorably on parties who refuse to engage in the collaborative process that special education law is built around. Even if you plan to refuse consent, participate in the conversation first.
Parents cannot be sanctioned simply for exercising their due process rights. The District tried to have the parents penalized for refusing consent in "bad faith." The ALJ rejected this completely. Refusing to consent to an assessment and defending yourself in a due process hearing are rights protected by law — using them is never grounds for sanctions.

What Happened

What the ALJ Found

Because the District was the party seeking relief in this case, it bore the burden of proving that a new assessment was justified. The ALJ found that the District met that burden for several reasons.

What Was Ordered

The District's request to assess Student was granted.
If Student's parents wish to have Student considered for special education services, they are ordered to make Student available for assessment in accordance with the District's assessment plan dated August 30, 2006.
The District's request for sanctions against the parents was denied.

Why This Matters for Parents

An independent assessment alone may not be enough to force an IEP. When an independent evaluation conflicts sharply with prior District assessments, the District has the legal right — and may have the obligation — to conduct its own updated assessment before an IEP team can make eligibility decisions. Parents cannot simply present a private evaluation and expect the District to accept it wholesale.
Independent evaluators should always observe the student in the classroom. The ALJ highlighted the absence of classroom observation as a significant weakness in the independent assessment. If you hire a private evaluator, make sure they observe your child in school — especially if the concerns involve attention, behavior, or performance in the classroom environment.
Refusing to meet with the District can hurt your case. The ALJ noted that the parents declined to meet with District staff to discuss the proposed assessment plan. Courts and hearing officers look unfavorably on parties who refuse to engage in the collaborative process that special education law is built around. Even if you plan to refuse consent, participate in the conversation first.
Parents cannot be sanctioned simply for exercising their due process rights. The District tried to have the parents penalized for refusing consent in "bad faith." The ALJ rejected this completely. Refusing to consent to an assessment and defending yourself in a due process hearing are rights protected by law — using them is never grounds for sanctions.