District Prevails: Kindergartner Not Found Eligible for Special Education Despite Family's Concerns

A family in San Lorenzo Unified School District sought special education eligibility for their kindergarten-aged son based on concerns about speech and language, ADHD, academic delays, and safety awareness. The ALJ found that the district's assessments were appropriate and that the student did not meet eligibility criteria under speech/language impairment, other health impairment, or specific learning disability. Although the district committed a procedural violation by unnecessarily delaying funding of an independent evaluation, the ALJ found this did not rise to a denial of FAPE because the student was ultimately found ineligible for special education.

What Happened

This case involves a six-year-old boy who had been receiving Regional Center early intervention services as a toddler due to delays in adaptive and social-emotional skills, and who had briefly qualified for special education preschool services in 2012 due to a speech articulation disorder. After successfully meeting all his IEP goals, he was exited from special education in May 2013. His parents, grandmother (a former social worker), and eventually his kindergarten teacher continued to have concerns about his speech patterns, attention span, fine motor skills, academic progress, food allergy safety, and social development. In July 2014, with the help of an advocate, the family requested that San Lorenzo reassess the student for special education eligibility.

San Lorenzo conducted a comprehensive assessment in fall 2014, covering speech and language, academics, and social-emotional functioning. All assessors concluded the student did not meet eligibility criteria for special education. The family disagreed and in November 2014 requested an independent psychoeducational evaluation at public expense. San Lorenzo agreed to fund the independent evaluation but caused significant delays in making that happen — the evaluation had still not been completed by the time of the hearing in late 2015. The family filed for due process in September 2015, arguing the district's assessments were inadequate, that the student should have been found eligible for special education under multiple categories, and that the delay in funding the independent evaluation denied the student a FAPE.

What the ALJ Found

The district prevailed on every substantive issue. Here is what the ALJ determined:

Speech and Language Assessment Was Appropriate: The district's speech-language pathologist used validated, non-discriminatory tests administered in the student's primary language. Although the student scored below average on one receptive language subtest, California law requires scores below the 7th percentile on two or more subtests to qualify under the language disorder category. The student only met that threshold on one subtest. The ALJ found the assessment reliable and sufficient.
Academic Assessment Was Appropriate: The district's resource specialist used the Woodcock-Johnson and supplemented it with the Brigance when needed. The student showed some weaknesses but no significant academic deficits given his age and the fact that he had just started kindergarten. The assessment was found procedurally compliant and appropriate.
Social-Emotional Assessment Was Appropriate: The school psychologist used validated rating scales and behavioral assessment tools. The student's argument that the assessor failed to get the parent's input on specific rating instruments was not supported by evidence showing that such input was required for accuracy or reliability.
No Duty to Conduct Occupational Therapy Assessment: The district assessed Student's visual-motor skills as part of the psychoeducational evaluation and observed that, while he used a fisted pencil grip, he could also use a pincer grip when needed. Based on the information available, there was no basis to suspect a need for a separate occupational therapy assessment.
Student Was Not Eligible for Special Education: The ALJ reviewed all three claimed eligibility categories:
- Speech and Language Impairment: Student did not meet the two-subtest threshold required by California law for a language disorder, and he no longer had an articulation disorder.
- Other Health Impairment (ADHD): The family provided only a vague doctor's letter and mother's testimony. There was no evidence that ADHD was adversely affecting the student's educational performance — he could be redirected with prompting.
- Specific Learning Disability: Student failed to show a severe discrepancy (1.5 standard deviations or more) between achievement and intellectual ability, which is required under California's severe discrepancy method.
Procedural Violation Found — But No FAPE Denial: The ALJ found that San Lorenzo unnecessarily delayed funding the family's requested independent psychoeducational and academic evaluation. The district failed to contract with the family's chosen evaluator in a timely manner and did not promptly notify the family of the problem. However, because the student was found ineligible for special education, the Ninth Circuit's ruling in R.B. v. Napa Valley applied: a child who is not eligible for special education in the first place cannot be denied a FAPE through a procedural violation. The procedural violation did not result in a FAPE denial.

What Was Ordered

All relief requested by the student and family was denied.
The district was reminded that its agreement to fund the independent psychoeducational and academic assessments remains in effect — the decision does not relieve San Lorenzo of that obligation.

Why This Matters for Parents

Eligibility thresholds are strict — know the specific criteria before you file. In California, qualifying for special education under "speech and language impairment" based on a language disorder requires scores below the 7th percentile on at least two standardized subtests. One low score, even a very low one, is not enough on its own. Understanding the exact legal standard in advance helps families build a stronger evidentiary case.
An ADHD diagnosis alone does not guarantee special education eligibility. To qualify under "other health impairment" based on ADHD, you must show that the ADHD adversely affects educational performance in a way that requires special education — not just that the child is sometimes inattentive. Gather teacher observations, work samples, and functional data showing real educational impact, not just a diagnosis letter.
Delays in funding an independent evaluation are a procedural violation — but may not be enough to win your case. This ALJ agreed that San Lorenzo was too slow in funding the independent evaluation. However, because the student was found ineligible, the procedural violation did not change the outcome. Procedural violations are most powerful when the student is eligible for services and the violation blocked meaningful participation in the IEP process.
If you request an IEE, follow up actively and document everything. In this case, the delay in completing the independent evaluation was partly due to the unavailability of the family's chosen assessor and partly due to the district's failure to follow up. Keep written records of every communication about the evaluation, and if the district is slow, send written follow-up requests to create a paper trail.
Your child may still have real needs even if they don't qualify for special education. A child can have genuine attention, motor, language, and safety concerns without meeting the narrow eligibility criteria for special education under IDEA. If special education is not available, explore Section 504 accommodations (which this family already had for food allergies), general education supports, and private evaluations — and keep re-evaluating as your child grows and their needs become more visible in an academic setting.

What Happened

What the ALJ Found

The district prevailed on every substantive issue. Here is what the ALJ determined:

Speech and Language Assessment Was Appropriate: The district's speech-language pathologist used validated, non-discriminatory tests administered in the student's primary language. Although the student scored below average on one receptive language subtest, California law requires scores below the 7th percentile on two or more subtests to qualify under the language disorder category. The student only met that threshold on one subtest. The ALJ found the assessment reliable and sufficient.
Academic Assessment Was Appropriate: The district's resource specialist used the Woodcock-Johnson and supplemented it with the Brigance when needed. The student showed some weaknesses but no significant academic deficits given his age and the fact that he had just started kindergarten. The assessment was found procedurally compliant and appropriate.
Social-Emotional Assessment Was Appropriate: The school psychologist used validated rating scales and behavioral assessment tools. The student's argument that the assessor failed to get the parent's input on specific rating instruments was not supported by evidence showing that such input was required for accuracy or reliability.
No Duty to Conduct Occupational Therapy Assessment: The district assessed Student's visual-motor skills as part of the psychoeducational evaluation and observed that, while he used a fisted pencil grip, he could also use a pincer grip when needed. Based on the information available, there was no basis to suspect a need for a separate occupational therapy assessment.
Student Was Not Eligible for Special Education: The ALJ reviewed all three claimed eligibility categories:
- Speech and Language Impairment: Student did not meet the two-subtest threshold required by California law for a language disorder, and he no longer had an articulation disorder.
- Other Health Impairment (ADHD): The family provided only a vague doctor's letter and mother's testimony. There was no evidence that ADHD was adversely affecting the student's educational performance — he could be redirected with prompting.
- Specific Learning Disability: Student failed to show a severe discrepancy (1.5 standard deviations or more) between achievement and intellectual ability, which is required under California's severe discrepancy method.
Procedural Violation Found — But No FAPE Denial: The ALJ found that San Lorenzo unnecessarily delayed funding the family's requested independent psychoeducational and academic evaluation. The district failed to contract with the family's chosen evaluator in a timely manner and did not promptly notify the family of the problem. However, because the student was found ineligible for special education, the Ninth Circuit's ruling in R.B. v. Napa Valley applied: a child who is not eligible for special education in the first place cannot be denied a FAPE through a procedural violation. The procedural violation did not result in a FAPE denial.

What Was Ordered

All relief requested by the student and family was denied.
The district was reminded that its agreement to fund the independent psychoeducational and academic assessments remains in effect — the decision does not relieve San Lorenzo of that obligation.

Why This Matters for Parents

Eligibility thresholds are strict — know the specific criteria before you file. In California, qualifying for special education under "speech and language impairment" based on a language disorder requires scores below the 7th percentile on at least two standardized subtests. One low score, even a very low one, is not enough on its own. Understanding the exact legal standard in advance helps families build a stronger evidentiary case.
An ADHD diagnosis alone does not guarantee special education eligibility. To qualify under "other health impairment" based on ADHD, you must show that the ADHD adversely affects educational performance in a way that requires special education — not just that the child is sometimes inattentive. Gather teacher observations, work samples, and functional data showing real educational impact, not just a diagnosis letter.
Delays in funding an independent evaluation are a procedural violation — but may not be enough to win your case. This ALJ agreed that San Lorenzo was too slow in funding the independent evaluation. However, because the student was found ineligible, the procedural violation did not change the outcome. Procedural violations are most powerful when the student is eligible for services and the violation blocked meaningful participation in the IEP process.
If you request an IEE, follow up actively and document everything. In this case, the delay in completing the independent evaluation was partly due to the unavailability of the family's chosen assessor and partly due to the district's failure to follow up. Keep written records of every communication about the evaluation, and if the district is slow, send written follow-up requests to create a paper trail.
Your child may still have real needs even if they don't qualify for special education. A child can have genuine attention, motor, language, and safety concerns without meeting the narrow eligibility criteria for special education under IDEA. If special education is not available, explore Section 504 accommodations (which this family already had for food allergies), general education supports, and private evaluations — and keep re-evaluating as your child grows and their needs become more visible in an academic setting.