District Failed to Hold IEPs or Assess Autistic Student for Years During Ongoing Litigation

A student with high-functioning autism aged out of special education without receiving a single IEP or assessment for over three years while his family fought the district in federal court. The ALJ found that Fallbrook Union High School District violated IDEA by failing to develop annual IEPs, conduct a required triennial assessment, and provide a transition plan — even though the student was not attending district schools. The student prevailed on all three issues, and an independent educational evaluation was ordered at state expense to help craft a compensatory education award.

What Happened

Student is a young man with high-functioning autism who attended Fallbrook High School through his senior year in a special day class. He struggled with communication, social interaction, auditory memory, anxiety, and perseverating on issues. The last IEP meeting the district ever held for him was in February 2008, and the last assessment it performed was in May 2007. When Student turned 22 in April 2011, he aged out of special education eligibility without ever receiving a regular high school diploma — and without the district having developed a single IEP for the 2008–2009, 2009–2010, or 2010–2011 school years.

The family had been fighting the district for years. After a 2007 OAH decision directed the district to hold a new IEP meeting, the February 2008 IEP team again offered placement at the district high school — a setting Student could not attend due to severe anxiety from prior bullying. When Parents disagreed, they briefly placed Student at Fusion Academy, a private one-on-one instruction school, for about five months in 2008 until they could no longer afford it. The family then pursued their claims in federal court for over two years while the district went completely silent — holding no IEP meetings and conducting no assessments. Parent filed this due process complaint in May 2011, seeking IEEs, compensatory education, and accountability for the district's years of inaction.

What the District Did Wrong

The ALJ found that the district committed procedural violations that rose to the level of a substantive denial of FAPE — meaning Student was actually harmed, not just the subject of a paperwork error. The district had a legal duty to hold annual IEP meetings, conduct a triennial reassessment (due by May 2010 at the latest), and include transition planning for a student over age 16. It did none of these things for three school years.

The district argued that its obligations ended once Student stopped attending district schools, but the ALJ rejected this completely. Under established case law, a district must continue developing IEPs when a prior IEP is under active administrative or judicial review. Here, the February 2008 IEP was being challenged in federal court the entire time — which meant the district's duty to update IEPs and conduct assessments remained very much alive. The district also argued Student was a "unilaterally placed" private school student, relieving it of responsibility. The ALJ disagreed: Student only attended Fusion for five months, the family clearly never abandoned their legal claims against the district, and the district itself knew from federal court proceedings that the Fusion placement was temporary and the family couldn't afford to continue it.

What Was Ordered

An independent educational evaluator (Dr. Michael Tincup) was appointed by the ALJ under Education Code section 56505.1 to conduct a psychoeducational assessment of Student, including recommendations for appropriate placements to deliver compensatory education.
The California Department of Education — not the district, and not the family — was ordered to pay for this independent evaluation.
Both Parents and the district were ordered to cooperate fully with the evaluator.
A follow-up Trial Setting Conference was scheduled for May 16, 2012, to discuss the evaluation results and set hearing dates for the second phase of the case, in which the ALJ would determine the specific compensatory education remedy.

Why This Matters for Parents

A district cannot go silent just because a family is in court. If you are challenging an IEP through due process or in federal court, the district is still legally required to hold annual IEP meetings, conduct triennial assessments, and update transition plans. Ongoing litigation does not pause the district's obligations — it actually reinforces them.
A short private placement does not mean you've given up your rights. The district tried to label Student as "unilaterally placed" to escape responsibility. The ALJ found that because the family never abandoned their legal claims and the placement was clearly temporary and financially forced, the district could not use that label to walk away from its duties.
You can request an ALJ-ordered independent evaluation if the district's failure to assess makes it impossible to craft a remedy. When a district hasn't assessed a student in years, federal and state law allow a hearing officer to order an independent evaluation at public expense specifically to help design appropriate compensatory education. You don't have to pay for it yourself.
Students who age out of special education can still receive compensatory education. Student turned 22 and lost eligibility before this case was resolved, but the ALJ confirmed that equitable remedies — including compensatory services — can extend past age 22 to address harms suffered while the student was still eligible. Aging out does not erase what was owed.

What Happened

What the District Did Wrong

What Was Ordered

An independent educational evaluator (Dr. Michael Tincup) was appointed by the ALJ under Education Code section 56505.1 to conduct a psychoeducational assessment of Student, including recommendations for appropriate placements to deliver compensatory education.
The California Department of Education — not the district, and not the family — was ordered to pay for this independent evaluation.
Both Parents and the district were ordered to cooperate fully with the evaluator.
A follow-up Trial Setting Conference was scheduled for May 16, 2012, to discuss the evaluation results and set hearing dates for the second phase of the case, in which the ALJ would determine the specific compensatory education remedy.

Why This Matters for Parents

A district cannot go silent just because a family is in court. If you are challenging an IEP through due process or in federal court, the district is still legally required to hold annual IEP meetings, conduct triennial assessments, and update transition plans. Ongoing litigation does not pause the district's obligations — it actually reinforces them.
A short private placement does not mean you've given up your rights. The district tried to label Student as "unilaterally placed" to escape responsibility. The ALJ found that because the family never abandoned their legal claims and the placement was clearly temporary and financially forced, the district could not use that label to walk away from its duties.
You can request an ALJ-ordered independent evaluation if the district's failure to assess makes it impossible to craft a remedy. When a district hasn't assessed a student in years, federal and state law allow a hearing officer to order an independent evaluation at public expense specifically to help design appropriate compensatory education. You don't have to pay for it yourself.
Students who age out of special education can still receive compensatory education. Student turned 22 and lost eligibility before this case was resolved, but the ALJ confirmed that equitable remedies — including compensatory services — can extend past age 22 to address harms suffered while the student was still eligible. Aging out does not erase what was owed.