District Can Override Parent Refusal to Allow Triennial Assessment

A parent refused to consent to her daughter's triennial psychoeducational and speech/language assessments, insisting on conditions including her own presence during testing. The Garvey School District filed for due process to proceed with the assessments over the parent's objection. The ALJ ruled in favor of the District, finding the assessment plan was legally sound, the assessors were qualified, and the parent's conditions were not legally required.

What Happened

Student is a six-year-old girl with Down Syndrome who qualifies for special education under the category of intellectual disability. She is non-verbal and communicates primarily through approximations of American Sign Language (ASL). She attended a special day class at Bitely Elementary School within the Garvey School District and had been receiving District special education services since age three, including speech therapy four times per week.

In March 2010, the District sent Parent a triennial assessment plan — a legally required evaluation conducted every three years — proposing assessments in cognitive development, social-emotional development, adaptive behavior, speech and language, and academic skills. Parent returned the plan with conditions: she demanded either that assessments be conducted by an outside UCLA team, or that she be present during all testing sessions. The District rejected these conditions, explaining that Parent's presence would distract Student and compromise the accuracy of results. Parent ultimately refused to consent to the psychoeducational and speech/language portions of the assessment. The District filed for due process to compel the assessments over Parent's objection.

What the ALJ Found

Because the District prevailed, this section explains why the ALJ rejected the parent's claims.

The ALJ found that the District followed every required procedural step: it sent the assessment plan on time, included a copy of Parent's rights, made multiple follow-up attempts to obtain consent, and even added the occupational therapy and physical therapy assessments that Parent requested. The proposed assessors — school psychologist Nancy Kugler and speech/language pathologist Julie Sena — were both found to be highly qualified. Kugler had performed Student's initial assessment in 2007 and had observed her regularly for three years. Sena had provided Student's speech therapy for three years and worked with her four times per week.

The ALJ rejected Parent's argument that an ELARC psychologist's 2009 report (the "Kim Report") was sufficient and that no further testing was needed. The Kim Report was completed for a different purpose — confirming eligibility for regional center services — and could not be completed in full because Student resisted participating in standardized testing. The ALJ accepted the District assessors' credible testimony that the Kim Report was outdated and insufficient to design an appropriate educational program. The ALJ also found no support for Parent's interpretation that the Kim Report recommended a ban on further testing; the report only noted that Student might respond better to structured testing after more years of intervention.

Regarding Parent's request to be present during testing, the ALJ found that both Kugler and Sena credibly testified that Parent's presence would distract Student, undermine testing validity, and introduce inadvertent cueing. The ALJ also found no evidence that the District had ever failed to timely change Student's diapers, rejecting that stated concern as a basis for requiring Parent's presence.

What Was Ordered

The District is entitled to proceed with the psychoeducational and speech/language portions of the March 10, 2010 triennial assessment plan without parental consent.
Parent's requests — including her presence during assessments and use of outside UCLA assessors — were denied.

Why This Matters for Parents

Districts have a legal right to conduct triennial assessments, even over a parent's objection. Under federal and California law, a district must reassess students at least every three years. If a parent refuses consent, the district can go to a due process hearing to obtain permission to proceed. Parents who want their child to continue receiving special education services generally cannot block a legally required reassessment.
You cannot force a district to use outside evaluators in place of their own assessors. While you have the right to request an Independent Educational Evaluation (IEE) at public expense under certain circumstances, you cannot require the district to use a university clinic or outside team instead of their own qualified staff for a triennial assessment. The district has the right to choose its own qualified assessors.
Wanting to be present during testing is understandable, but it is not a guaranteed right. If a district's qualified professionals can credibly show that a parent's presence would compromise test results — particularly for a young child who looks to a parent for cues and direction — the ALJ may allow the assessment to proceed without the parent in the room.
An outside report prepared for a different agency may not be enough to satisfy a district's assessment obligations. A report created to confirm regional center eligibility is not the same as a comprehensive educational assessment. If the district can show the existing report doesn't address educational needs and program planning, it will likely be permitted to conduct its own evaluation.

What Happened

What the ALJ Found

Because the District prevailed, this section explains why the ALJ rejected the parent's claims.

What Was Ordered

The District is entitled to proceed with the psychoeducational and speech/language portions of the March 10, 2010 triennial assessment plan without parental consent.
Parent's requests — including her presence during assessments and use of outside UCLA assessors — were denied.

Why This Matters for Parents

Districts have a legal right to conduct triennial assessments, even over a parent's objection. Under federal and California law, a district must reassess students at least every three years. If a parent refuses consent, the district can go to a due process hearing to obtain permission to proceed. Parents who want their child to continue receiving special education services generally cannot block a legally required reassessment.
You cannot force a district to use outside evaluators in place of their own assessors. While you have the right to request an Independent Educational Evaluation (IEE) at public expense under certain circumstances, you cannot require the district to use a university clinic or outside team instead of their own qualified staff for a triennial assessment. The district has the right to choose its own qualified assessors.
Wanting to be present during testing is understandable, but it is not a guaranteed right. If a district's qualified professionals can credibly show that a parent's presence would compromise test results — particularly for a young child who looks to a parent for cues and direction — the ALJ may allow the assessment to proceed without the parent in the room.
An outside report prepared for a different agency may not be enough to satisfy a district's assessment obligations. A report created to confirm regional center eligibility is not the same as a comprehensive educational assessment. If the district can show the existing report doesn't address educational needs and program planning, it will likely be permitted to conduct its own evaluation.