District Must Find ADHD Student Eligible Despite Progress at Private School

An 11-year-old boy with ADHD struggled severely at his public elementary school — missing 22 days in four months, being bullied, and failing to benefit from general education accommodations. Newport-Mesa Unified refused to find him eligible for special education after its evaluation, pointing to his improved functioning at a private school. The ALJ ruled the district wrongly ignored the fact that Student's improvement at the private school was due to intensive special education-like supports, and ordered the district to grant eligibility, reimburse private school and therapy costs, and provide compensatory services.

What Happened

Student was an 11-year-old boy with attention deficit hyperactivity disorder (ADHD), anxiety, obsessive compulsive disorder, and sensory processing difficulties. While attending his district elementary school, Student struggled profoundly: he was frequently too anxious to enter the building, missed 22 school days in just four and a half months, was bullied repeatedly by classmates (including being locked in a closet and punched), and could not benefit from classroom instruction despite his teacher's constant individual attention. The district tried general education accommodations through a Student Success Team plan, but those efforts failed. Parent requested a special education assessment in December 2014, but the district offered only a Section 504 assessment instead — a less comprehensive process that does not lead to special education services. Parent ultimately withdrew Student from the public school in January 2015 and placed him at a private school, funding private occupational therapy, educational therapy, and counseling out of pocket.

After months of delay — including Parent's own seven-month delay in signing the assessment plan — the district completed its evaluation in November 2015 and convened an IEP team meeting. The district concluded Student did not qualify for special education because he appeared to be functioning adequately at the private school. Parent disagreed, arguing that Student was only doing better because of the intensive supports the private school provided — supports that amounted to de facto special education. The district denied eligibility, and Parent filed for due process.

What the District Did Wrong

The ALJ found that the district's IEP team made a critical error in how it interpreted Student's progress at the private school. The private school provided Student with an individualized support plan, small class sizes, small group instruction, a rocking chair for sensory needs, brain breaks, preferential seating, a separate testing environment, and checklists — on top of the private occupational therapy, educational therapy, and counseling Parent was paying for. The district's evaluator observed Student functioning adequately in that heavily supported environment and concluded he didn't need special education. But the ALJ found this reasoning was backward: the fact that Student improved with those supports showed he needed them, not that he could get by without them.

The IEP team also improperly dismissed evidence of how Student had performed at the public school just 10 months earlier — without any special education supports. At the public school, Student was inattentive, emotionally escalated, persistently bullied, and missing school entirely. The ALJ found this comparison was essential data the IEP team was required to consider. By looking only at Student's performance in a heavily supported private setting and ignoring his documented failure in an unsupported public setting, the district wrongly denied him special education eligibility under the "other health impairment" category due to ADHD.

The ALJ also found that the district erred earlier by offering only a Section 504 assessment in response to Parent's December 2014 request, when the child's difficulties clearly warranted a full special education evaluation. Districts have an independent "child find" duty to identify children who may need special education — a duty that does not depend on a parent's request, and is not eliminated when a parent withdraws their request.

However, the district's actual assessment instruments and testing procedures were found to be technically adequate. Because the assessments themselves met legal requirements, the ALJ denied Parent's request for a publicly funded independent educational evaluation (IEE) in the psychoeducational and speech-language areas. The district also prevailed on the question of autism and specific learning disability eligibility, as there was insufficient information at the time of the November 2015 IEP meeting to support those categories.

What Was Ordered

The district must hold an IEP team meeting within 30 days to formally grant Student special education eligibility under "other health impairment" due to ADHD, and to consider whether Student qualifies under any additional disability categories.
The district must pay Parent $5,196.07 in reimbursement for private school tuition, occupational therapy, and educational therapy costs incurred after the November 30, 2015 IEP meeting.
The district must provide 22 hours of compensatory occupational therapy (representing one hour per week for the remainder of the school year after January 2016), to be delivered within 10 months of the decision.
The district must provide 24 hours of compensatory counseling services (one hour per week from December 2015 through the end of the school year), to be delivered within 11 months of the decision.
The district is not required to fund independent educational evaluations for psychoeducational or speech-language assessments, as those components of its evaluation met legal standards.

Why This Matters for Parents

A child's improvement in a supportive environment does not mean they don't need special education. If your child is only succeeding because of intensive accommodations, small classes, private therapy, or other supports, a district cannot use that success to deny eligibility. The question is whether the child needs those supports — not whether they happen to be receiving them somewhere.
Districts must look at the full picture, not just a snapshot. An IEP team is required to consider all relevant information, including how a student performed without special education supports, even if that was at a prior school or in a prior year. If your child struggled before receiving private supports, document that history carefully — it matters legally.
The district's child find duty is independent of your requests. Even if you withdraw an assessment request or sign a 504 plan instead of a special education assessment plan, the district still has a legal obligation to evaluate your child for special education if there is reason to suspect a disability. Don't assume your child's right to evaluation depends solely on what you ask for.
An assessment can be technically adequate even if the eligibility decision was wrong. These are two separate questions. A district can follow all the right testing procedures and still make an incorrect eligibility determination. If you believe the eligibility decision was wrong, you can challenge that decision even if the individual tests were properly administered — and you may not automatically be entitled to a funded IEE just because the eligibility outcome was incorrect.

What Happened

What the District Did Wrong

What Was Ordered

The district must hold an IEP team meeting within 30 days to formally grant Student special education eligibility under "other health impairment" due to ADHD, and to consider whether Student qualifies under any additional disability categories.
The district must pay Parent $5,196.07 in reimbursement for private school tuition, occupational therapy, and educational therapy costs incurred after the November 30, 2015 IEP meeting.
The district must provide 22 hours of compensatory occupational therapy (representing one hour per week for the remainder of the school year after January 2016), to be delivered within 10 months of the decision.
The district must provide 24 hours of compensatory counseling services (one hour per week from December 2015 through the end of the school year), to be delivered within 11 months of the decision.
The district is not required to fund independent educational evaluations for psychoeducational or speech-language assessments, as those components of its evaluation met legal standards.

Why This Matters for Parents

A child's improvement in a supportive environment does not mean they don't need special education. If your child is only succeeding because of intensive accommodations, small classes, private therapy, or other supports, a district cannot use that success to deny eligibility. The question is whether the child needs those supports — not whether they happen to be receiving them somewhere.
Districts must look at the full picture, not just a snapshot. An IEP team is required to consider all relevant information, including how a student performed without special education supports, even if that was at a prior school or in a prior year. If your child struggled before receiving private supports, document that history carefully — it matters legally.
The district's child find duty is independent of your requests. Even if you withdraw an assessment request or sign a 504 plan instead of a special education assessment plan, the district still has a legal obligation to evaluate your child for special education if there is reason to suspect a disability. Don't assume your child's right to evaluation depends solely on what you ask for.
An assessment can be technically adequate even if the eligibility decision was wrong. These are two separate questions. A district can follow all the right testing procedures and still make an incorrect eligibility determination. If you believe the eligibility decision was wrong, you can challenge that decision even if the individual tests were properly administered — and you may not automatically be entitled to a funded IEE just because the eligibility outcome was incorrect.