District Wins Right to Assess Student Over Parent's Refusal

What Happened

Student is a 6-year-old boy who was first found eligible for special education under the category of speech and language impairment when he was in preschool in 2011. His IEP called for placement in a kindergarten special day class. However, without notifying the IEP team, Parent arranged an intra-district transfer to a different school where no one knew Student had an active IEP — so Student received no special education services at all at the start of the 2013-2014 school year. When staff at that school raised concerns about Student's behavior and speech, his special education eligibility was discovered. The district held an IEP meeting and again offered the special day class placement. At that meeting, Parent formally revoked all consent for special education in writing.

After the revocation, Student continued to struggle significantly. His behaviors — including pushing other students, hitting and kicking staff, biting, throwing objects, and refusing to follow directions — were severe enough that his school transfer was eventually revoked and he was moved to his home school. Academic concerns mounted as well: Student was below grade level in reading and math, had difficulty focusing, and often could not complete classwork. The district tried multiple general education interventions, including behavior contracts, social stories, a school counselor, sticker charts, a new curriculum, and one-on-one aide support. None were successful. By May 2014, the district proposed a formal special education assessment. Parent again refused consent in writing. The district then filed for due process, asking the ALJ to authorize the assessment without parental consent.

What the ALJ Found

Because the district filed this case — not the parent — the district carried the burden of proving it had the right to assess Student. The ALJ found that the district met that burden on all counts.

First, the ALJ found that the district's child find obligation was clearly triggered. Student had already been identified as a child with a disability, and the parent's revocation of consent did not erase the district's reasonable belief that Student still had a disability and needed special education. Student's continued behavioral and academic difficulties after the revocation only reinforced that belief. The district appropriately tried general education interventions before seeking a formal assessment, which is what the law requires.

Second, the ALJ found that the assessment plan itself was proper. It was written in plain English (Parent's native language), explained exactly which areas would be assessed, and informed Parent that no IEP services would begin without separate consent. Parent was given a copy of procedural safeguards along with the plan. All legal notice requirements were satisfied.

Third, the proposed assessors were qualified. A credentialed special education teacher would handle academic assessments, a licensed speech-language therapist would assess communication, and a credentialed school psychologist would handle the remaining areas — all in compliance with California Education Code requirements.

What Was Ordered

1. Monterey Peninsula Unified School District is authorized to proceed with the special education assessment proposed in its May 5, 2014 assessment plan without parental consent.

Why This Matters for Parents

1. Revoking consent for special education does not end the district's child find duty. If a district still has reason to believe a child has a disability — especially if the child was already found eligible — it can seek legal authorization to assess the child even after a parent says no. Revocation stops services, but it does not prevent the district from seeking a new evaluation through due process.

2. Districts must try general education supports before pushing for a special education assessment. In this case, the district's use of multiple interventions over many months actually strengthened its legal case. Parents should be aware that when a district documents failed interventions, it builds a record that courts and ALJs find compelling.

3. A parent can refuse consent, but the district can go to court (or OAH) to override that refusal. The IDEA gives districts the right to file for due process when a parent declines an assessment. If the district proves its case, the assessment can proceed without your signature.

4. Transferring schools does not cancel an existing IEP. In this case, Student's intra-district transfer caused him to lose services entirely because no one at the new school knew about his IEP. Parents should always notify the new school in writing that their child has an active IEP whenever changing schools — even within the same district.