Parent's Assessment Claims Dismissed Due to Missed Filing Deadlines and Revoked Consent

What Happened

Student is an 18-year-old who attends a nonpublic school called Seneca and resides within the Berkeley Unified School District. Student's mother filed a due process hearing request in October 2008, alleging that the district had failed to assess Student pursuant to signed assessment plans dating back to January 2003. The mother claimed the district had misrepresented to her that it had assessed Student, which she argued should excuse the late filing.

The case was complicated by a prior procedural ruling that permanently barred Student from raising claims covering the period between November 21, 2005, and April 7, 2008. As a result, the only issues before the ALJ at the March 2009 hearing were: (1) whether the district failed to assess Student before November 2005, going back to 2003; and (2) whether the district failed to assess Student after April 7, 2008. At the start of the hearing, Mother also requested a last-minute continuance to gather records and prepare, which was denied because the case had already been pending for five months and no good cause was shown.

What the ALJ Found

Claims before November 2005 were filed too late. California law requires a parent to file a due process hearing request within two years of when they "knew or had reason to know" of the facts underlying the complaint. The ALJ found that as early as November 2005, Mother had signed an assessment plan that clearly stated the district was required to complete assessments and hold an IEP meeting within 60 days. That means Mother knew by January 2006 at the latest that the district had an obligation to complete assessments. To challenge a failure occurring that early, Mother needed to file by January 2008. Because she didn't file until October 2008, all claims from January 2003 through November 2005 were dismissed as too late.

There is a narrow exception to this rule: if a district made specific misrepresentations that it had already solved the problem, the clock can pause. Mother claimed the district told her it had assessed Student, but the ALJ found no evidence to support this. The exception did not apply, and the older claims were thrown out without reaching their merits.

Claims after April 2008 failed on the facts. For the period after April 7, 2008, the district sent Mother a proposed assessment plan by email on June 20, 2008. Mother testified she signed and returned it on June 30, 2008. The district's Special Education Manager testified credibly that the district never received a signed copy. More importantly, on July 18, 2008, Mother sent the district a letter expressly revoking her consent to the evaluation. Under California law, a district cannot conduct an assessment without a signed consent — and once consent is revoked, the district must stop. Because consent was either never received or was withdrawn before any assessment began, the ALJ found the district had not violated its obligations.

What Was Ordered

1. All of Student's requests for relief were denied.
2. The district was found to be the prevailing party on all issues heard and decided.

Why This Matters for Parents

1. File quickly — the two-year clock starts when you first learn of a problem, not when you learn it's illegal. If you sign an assessment plan and the district doesn't follow through, your window to file a complaint begins running from the moment you knew the district was supposed to act. Waiting too long can permanently bar your claims, even valid ones.

2. The "district misled me" exception is narrow and requires real evidence. If you believe the district lied to you about having completed an assessment, you need documentation — emails, meeting notes, written statements — not just your testimony. Without evidence of a specific misrepresentation, this exception will not save a late-filed claim.

3. Think carefully before revoking consent to an assessment. Once you revoke consent in writing, the district is legally prohibited from assessing your child under that plan. If you later want assessments done, the process must start over. Revoking consent can delay services rather than protect your child's rights.

4. Keep copies of everything you send to the district, especially signed forms. In this case, there was a factual dispute about whether the signed assessment plan was ever received. If Mother had a fax confirmation, a delivery receipt, or had sent it via certified mail, the outcome on that point might have been different.