District Can Assess Student Without Parental Consent After Prior OAH Order

What Happened

Student is a 12-year-old male who resided within the Lancaster Elementary School District. He was not eligible for special education at the time of the hearing. In 2006, Parent filed a due process complaint alleging that the district had failed to assess Student in all areas of suspected disability over multiple school years and that Student was eligible for special education under the categories of emotional disturbance, specific learning disability, or autism. As part of that earlier case, the district conducted assessments in early 2007, and Parent obtained an independent educational evaluation (IEE) from a private psychologist. A prior OAH decision (issued August 2007) found that both the district's psychoeducational assessment and the independent assessment were flawed and could not support an eligibility determination. As a result, that ALJ ordered the district to develop a new assessment plan and properly assess Student.

In response, the district developed a new assessment plan in August 2007. Parent refused to sign it. The district then filed this new due process case, asking OAH for permission to conduct the assessments without parental consent. Parent argued that OAH lacked jurisdiction to hear the case and that federal law prohibited the district from assessing Student more than once per year.

What the ALJ Found

The ALJ sided with the district on every issue. First, on the question of jurisdiction, the ALJ found that this case was not simply an attempt to enforce the prior OAH order — it was a new, independent question of whether parental consent could be overridden. Because the prior decision never addressed the consent issue (it had simply ordered assessments, assuming Parent would cooperate), OAH had full authority to hear the district's complaint.

Second, on the once-per-year assessment limit, the ALJ found that this restriction applies only to reassessments of students who are already found eligible for special education. Because Student was not currently eligible, the upcoming assessments were considered initial evaluations, not reassessments, and the annual limit did not apply. This was reinforced by the fact that the new plan included assessments for emotional disturbance and specific learning disability — areas the district had never previously assessed.

Third, the ALJ applied the legal doctrine of collateral estoppel — meaning that because the prior OAH decision had already established the necessity of further assessments, Parent could not re-litigate that point. Student had been the one to argue in the prior case that the district failed to assess him properly. Having won on that issue, Parent could not now block the very assessments that were ordered as a remedy. The parties had also stipulated that the assessment plan itself met all legal requirements.

What Was Ordered

1. The district was authorized to implement the August 28, 2007 assessment plan without parental consent.

Why This Matters for Parents

1. Winning on one issue can create obligations you didn't anticipate. When Parent successfully argued in the earlier case that the district had failed to assess Student properly, that win came with a consequence: it established that proper assessments were needed. Once an OAH order requires assessments, refusing to cooperate can allow the district to come back to OAH and get permission to assess without your consent.

2. The once-per-year assessment limit only protects students who are already receiving special education. If your child has not yet been found eligible, that annual limit does not apply. Districts can conduct what are legally considered "initial evaluations" without being restricted to a once-per-year rule, even if prior assessments were attempted.

3. If you disagree with an OAH order, you must seek a formal stay — not just refuse to cooperate. Parent in this case had appealed the prior decision to federal court but had not obtained a stay of that decision. Without a stay, the prior order remained in effect and enforceable, which significantly undermined Parent's position in this case.

4. OAH can hear a district's request to override parental consent for assessments. Many parents do not realize that districts have the legal right to file their own due process complaint when a parent refuses to consent to an assessment. If the district prevails at that hearing, it can proceed without your signature. This makes it especially important to consult with a special education advocate or attorney before refusing to sign an assessment plan.