Downey USD Ordered to Fund Independent Assessments After Years of Delay

A parent fought Downey Unified School District for years over its refusal to implement consented IEP services and its repeated failure to assess her son in four critical areas—despite consent, a prior OAH order, and a federal court ruling. The ALJ found the district did not materially fail to implement the IEP but did impede the mother's IEP participation by never completing assessments in functional behavior, autistic-like behaviors, audiology, and motor development. The district was ordered to fund independent educational evaluations in all four unassessed areas.

What Happened

This case involves a student who began receiving special education services from Downey Unified School District before age three, initially due to a mixed receptive-expressive language disorder. By Kindergarten, the student's mother had growing concerns beyond speech: he bumped into things, could not coordinate his movements well, appeared sensitive to sounds, did not socialize with peers, and showed possible signs of autism. Downey's IEP team disagreed with the autism theory, attributing his behaviors to ADHD, and proposed placing him in a special day class. The mother—represented by attorneys—declined the special day class but, through attorney letters, clearly consented to specific IEP goals, speech services, and a series of assessment plans covering six areas: psycho-educational, speech and language, functional behavior, autistic-like behaviors, audiology, and motor development/physical fitness. Downey refused to implement or assess based on the technicality that the mother had not physically signed the documents—a position a federal district court later overturned, finding her attorney's letters constituted valid consent.

This decision is a remand from the U.S. District Court for the Central District of California, which sent the case back to OAH to determine what happened in light of the confirmed consent. After a second round of hearings in 2015, ALJ Darrell Lepkowsky found that Downey's failure to implement the IEP goals was excusable (because the goals required a special education teacher the mother had declined), that the missing five minutes of weekly speech therapy was too minor to constitute a FAPE denial, and that the delay in psycho-educational and speech assessments caused no proven harm. However, the ALJ found that Downey's years-long failure to ever administer four of the agreed-upon assessments—functional behavior, autistic-like behaviors, audiology, and motor development/physical fitness—significantly impeded the mother's ability to participate in the IEP process, because she was never given the information she needed to advocate for those areas of potential need.

What the ALJ Found

The outcome was mixed. The student prevailed on one issue (failure to assess in four areas); the district prevailed on the remaining three issues. Here is what the ALJ found on each:

IEP Goals Were Not Implementable Without the Special Day Class (District Won): The mother consented to instructional goals but refused the special day class placement those goals were designed for. The ALJ found Downey could not reasonably have implemented the goals in a general education classroom of 25–30 students without a credentialed special education teacher overseeing them. This conclusion was reinforced by the fact that even years later, once the family accepted a general education placement with supports, all of the student's academic goals still required pull-out instruction from a special education teacher before meaningful progress occurred.
Five Extra Minutes of Speech Therapy Was Not a Material Failure (District Won): The difference between what was provided (two 20-minute sessions weekly) and what was offered (three 15-minute sessions weekly) was only five minutes per week—about 11% of the total consented service time. The speech pathologist testified it would not have made a difference, and the student ultimately progressed to the average range in all speech areas and was exited from speech services entirely by 2013.
Delay in Psycho-Educational and Speech Assessments Caused No Proven Harm (District Won): The 2013 triennial assessments in these areas showed the student had actually improved significantly. The later assessments did not reveal any new unmet needs that an earlier assessment would have uncovered. The student failed to provide any concrete evidence of what earlier assessments would have changed.
Failure to Assess in Four Areas Impeded Parental Participation (Student Won): Downey never assessed the student in functional behavior, autistic-like behaviors, audiology, or motor development/physical fitness—despite agreeing to do so in multiple assessment plans (March 2010, November 2010, and May 2011), despite losing at due process and being told it could assess without signed consent, and despite the federal court ruling confirming the mother's consent. The ALJ found this was a procedural FAPE violation because the mother was never given the information she needed to understand or advocate for her son's potential needs in those areas. She could not request appropriate services if she never knew whether those needs existed.

What Was Ordered

Downey must fund independent educational evaluations (IEEs) in all four unassessed areas: autistic-like behaviors, audiology, functional behavior, and motor development/physical fitness.
The family may choose their own independent assessors, as long as those assessors meet Downey's or its Special Education Local Plan Area's (SELPA's) credentialing and fee criteria.
Downey must contract with chosen assessors within 30 days of receiving their contact information and qualifications in writing.
Downey must convene an IEP team meeting to review results within 30 days of receiving each assessment report.
Downey must pay each assessor for up to two hours of their normal fees to attend and participate in the IEP team meeting (including travel time), whether in person or by phone.
Downey is not required to fund additional IEEs in these areas if the family later disagrees with the independent assessors' findings.
All other requested remedies—92 hours of tutoring, 92 hours of counseling, 92.5 hours of adaptive physical education, and 8.5 hours of compensatory speech services—were denied because the student failed to provide evidence connecting those requests to actual losses.

Why This Matters for Parents

Attorney letters can constitute valid consent. If your attorney sends a letter to the district clearly accepting or consenting to an IEP provision or assessment plan, that may legally count as consent—even if you never sign the document itself. Do not let a district reject your consent on a pure technicality without pushing back.
Refusing a placement does not forfeit everything else in the IEP. The mother declined the special day class but consented to goals and services separately. Parents have the right to consent to some portions of an IEP and reject others. Keep your consent narrow and specific so the district must implement what you agree to.
Failure to assess can be its own FAPE violation—even without proven harm. The ALJ ordered IEEs even though the student could not prove he was concretely harmed by the missing assessments. The key was that the mother's right to participate in IEP decisions was impaired because she never had the information those assessments would have provided. If a district agrees to assess and then never does it, that itself is a procedural violation.
Districts cannot hide behind unsigned forms if consent was communicated another way. Downey refused to assess for years because parents didn't physically sign assessment plan documents—but the district's own attorney letters and the federal court both confirmed valid consent existed. Document every form of consent carefully, and if a district claims it "doesn't have consent," challenge that claim immediately in writing.
Compensatory education requests must be backed by evidence, not just a parent's belief. The student lost all of his compensatory education claims because the only support offered was the mother's lay testimony estimating hours of services. To succeed on a compensatory education request, you need expert testimony or assessment data showing what the student lost and what it would take to make them whole. Engage qualified professionals early to document harm while it is still fresh.

What Happened

What the ALJ Found

The outcome was mixed. The student prevailed on one issue (failure to assess in four areas); the district prevailed on the remaining three issues. Here is what the ALJ found on each:

IEP Goals Were Not Implementable Without the Special Day Class (District Won): The mother consented to instructional goals but refused the special day class placement those goals were designed for. The ALJ found Downey could not reasonably have implemented the goals in a general education classroom of 25–30 students without a credentialed special education teacher overseeing them. This conclusion was reinforced by the fact that even years later, once the family accepted a general education placement with supports, all of the student's academic goals still required pull-out instruction from a special education teacher before meaningful progress occurred.
Five Extra Minutes of Speech Therapy Was Not a Material Failure (District Won): The difference between what was provided (two 20-minute sessions weekly) and what was offered (three 15-minute sessions weekly) was only five minutes per week—about 11% of the total consented service time. The speech pathologist testified it would not have made a difference, and the student ultimately progressed to the average range in all speech areas and was exited from speech services entirely by 2013.
Delay in Psycho-Educational and Speech Assessments Caused No Proven Harm (District Won): The 2013 triennial assessments in these areas showed the student had actually improved significantly. The later assessments did not reveal any new unmet needs that an earlier assessment would have uncovered. The student failed to provide any concrete evidence of what earlier assessments would have changed.
Failure to Assess in Four Areas Impeded Parental Participation (Student Won): Downey never assessed the student in functional behavior, autistic-like behaviors, audiology, or motor development/physical fitness—despite agreeing to do so in multiple assessment plans (March 2010, November 2010, and May 2011), despite losing at due process and being told it could assess without signed consent, and despite the federal court ruling confirming the mother's consent. The ALJ found this was a procedural FAPE violation because the mother was never given the information she needed to understand or advocate for her son's potential needs in those areas. She could not request appropriate services if she never knew whether those needs existed.

What Was Ordered

Downey must fund independent educational evaluations (IEEs) in all four unassessed areas: autistic-like behaviors, audiology, functional behavior, and motor development/physical fitness.
The family may choose their own independent assessors, as long as those assessors meet Downey's or its Special Education Local Plan Area's (SELPA's) credentialing and fee criteria.
Downey must contract with chosen assessors within 30 days of receiving their contact information and qualifications in writing.
Downey must convene an IEP team meeting to review results within 30 days of receiving each assessment report.
Downey must pay each assessor for up to two hours of their normal fees to attend and participate in the IEP team meeting (including travel time), whether in person or by phone.
Downey is not required to fund additional IEEs in these areas if the family later disagrees with the independent assessors' findings.
All other requested remedies—92 hours of tutoring, 92 hours of counseling, 92.5 hours of adaptive physical education, and 8.5 hours of compensatory speech services—were denied because the student failed to provide evidence connecting those requests to actual losses.

Why This Matters for Parents

Attorney letters can constitute valid consent. If your attorney sends a letter to the district clearly accepting or consenting to an IEP provision or assessment plan, that may legally count as consent—even if you never sign the document itself. Do not let a district reject your consent on a pure technicality without pushing back.
Refusing a placement does not forfeit everything else in the IEP. The mother declined the special day class but consented to goals and services separately. Parents have the right to consent to some portions of an IEP and reject others. Keep your consent narrow and specific so the district must implement what you agree to.
Failure to assess can be its own FAPE violation—even without proven harm. The ALJ ordered IEEs even though the student could not prove he was concretely harmed by the missing assessments. The key was that the mother's right to participate in IEP decisions was impaired because she never had the information those assessments would have provided. If a district agrees to assess and then never does it, that itself is a procedural violation.
Districts cannot hide behind unsigned forms if consent was communicated another way. Downey refused to assess for years because parents didn't physically sign assessment plan documents—but the district's own attorney letters and the federal court both confirmed valid consent existed. Document every form of consent carefully, and if a district claims it "doesn't have consent," challenge that claim immediately in writing.
Compensatory education requests must be backed by evidence, not just a parent's belief. The student lost all of his compensatory education claims because the only support offered was the mother's lay testimony estimating hours of services. To succeed on a compensatory education request, you need expert testimony or assessment data showing what the student lost and what it would take to make them whole. Engage qualified professionals early to document harm while it is still fresh.