District Wins: Parent's Refusal to Allow Assessment and Placement Blocks FAPE Claim

What Happened

Student is a 21-year-old young woman with autism who also has significant medical needs related to asthma. She had been receiving special education services for years, most recently through home/hospital instruction due to a physician's order. When that order expired in June 2010 and was not renewed, the district developed a series of IEPs offering Student placement in the "Action" program — a functional skills and sheltered work class designed for young adult special education students. The program offered individualized academic instruction, speech and language therapy, career awareness, job coaching, travel training, and agency coordination with the regional center to prepare Student for her transition out of district services at age 22. The district also assembled a full team of trained staff, including a dedicated one-to-one aide, an autism specialist, a speech-language pathologist, a school nurse, and an occupational therapist, all of whom received extensive training specifically to support Student's return to school.

Despite attending school for one successful day on August 23, 2010, Student never returned. Parent raised a series of concerns — including disagreement with the district's choice of speech-language provider, questions about the one-to-one aide's qualifications, transportation safety concerns, and requests for items such as a piano and noise-reducing headphones. Parent also signed an OT assessment plan in August 2010 but then refused to make Student available for the assessment. After Parent withdrew consent to the IEP and ultimately withdrew Student from the district entirely in April 2011, the district filed for due process to establish that its program was appropriate and to compel the OT assessment.

What the ALJ Found

The ALJ ruled entirely in favor of the district on both issues. On the question of FAPE, the ALJ found that the district had followed all required procedures — providing proper notice, holding multiple IEP meetings with full teams, inviting and accommodating Parent's participation, and developing IEPs with present levels of performance, measurable goals, a transition plan, and an individual health plan. The district's placement in the Action class was found to be in the least restrictive environment appropriate for Student, given her age, functional needs, cognitive ability, and the fact that a general education classroom was never considered appropriate by anyone, including Parent.

On speech-language services, the ALJ found that the district's speech-language pathologist was fully qualified, credentialed, experienced with students with autism, and familiar with ABA and discrete trial training. The law does not require a district to use a parent's preferred provider — only a qualified one. Parent's insistence on continuing with the prior NPA provider did not override the district's right to use its own qualified staff.

On the OT assessment, the ALJ found that because Parent had already consented to the assessment plan and then refused to schedule the appointment without explanation, the district was entitled to an order compelling the assessment. The district had identified a legitimate need — Student was transitioning from a home setting to a school program — and had a qualified assessor ready to conduct it.

What Was Ordered

1. The district's IEPs for ESY 2010 and the 2010-2011 school year were found to offer Student a free appropriate public education in the least restrictive environment.
2. Parent was ordered to make Student available for the occupational therapy assessment within ten (10) calendar days of the decision if Student wished to receive district-funded OT services.
3. The student's requests for any additional relief were denied. The district prevailed on all issues.

Why This Matters for Parents

1. A district does not have to use your preferred provider — only a qualified one. The law requires the district to provide a licensed, credentialed, and experienced provider, not the specific person or agency you prefer. If you believe a provider is unqualified, you need evidence of actual deficiencies — not just a preference for someone else.

2. Once you sign an assessment consent form, the district can go to hearing to enforce it. If you consent to an assessment and then refuse to make your child available, the district can file for due process and a judge can order you to comply. Withdrawing cooperation after signing does not eliminate the district's right to assess.

3. Withdrawing your child from school or refusing placement can undermine your legal position. When a parent blocks a placement — especially one the district has invested significant resources in preparing — it becomes very difficult to later claim the program was inappropriate, since it was never actually tried.

4. A district's IEP is judged on what was reasonable at the time it was written, not in hindsight. Courts and ALJs evaluate whether the district made a reasonable, good-faith offer based on available information — not whether it was the best possible program or the one the parent preferred.