District Wins: No BIP or Transition Plan Required While Student Stays at Private Placement

A parent filed due process against Lake Elsinore Unified School District arguing the district denied her daughter a free appropriate public education by failing to include a formal behavior intervention plan and a transition plan in its 2014 and 2015 IEPs, and by refusing to fund an independent functional behavior assessment. The ALJ ruled in the district's favor on all issues, finding that a behavior plan cannot be meaningfully developed until a student actually enters the district placement, that a transition plan was premature without parental consent to return to public school, and that the right to an independent evaluation is only triggered after the district conducts its own evaluation first.

What Happened

Student is a teenager with autism who had significant behavioral challenges, including physical aggression, property destruction, self-injurious behavior, and verbal disruptions. She had not attended a district school since June 2012. In April 2014, Parents notified the district that they were placing Student at Port View Preparatory, a private nonpublic school in Yorba Linda, and asked whether the district would offer a free appropriate public education (FAPE). The district held IEP meetings in June 2014 and December 2015, offering placement in a moderate-to-severe special day class with behavior supports, speech and language therapy, occupational therapy, and nonpublic agency behavioral services. Parents never consented to either IEP and Student remained at Port View throughout the entire period. In April 2016, Parents filed a due process complaint arguing the district's IEPs were inadequate because they lacked a formal behavior intervention plan (BIP) and a transition plan, that the district should have filed its own due process hearing to defend its IEPs, and that the district was required to fund an independent functional behavior assessment requested by Parents in March 2016.

The district, for its part, repeatedly requested that Parents sign releases of information so it could communicate with Port View staff — requests Parents largely refused or significantly limited. As a result, the district had very little current behavioral data about Student when developing its IEPs, relying largely on 2012 records and limited present-levels documents provided by Parents.

What the ALJ Found

The ALJ ruled in the district's favor on every issue. On the question of a formal behavior intervention plan, the ALJ accepted the district's position — supported by both district staff and Port View's own experts — that behavior plans are environment-specific. A meaningful BIP can only be developed by observing a student in the actual placement, collecting data over time, and adjusting based on what is seen. Because Student had never entered a district placement, the district had no way to collect the necessary data. Importantly, Port View itself did not have a formal BIP in place at the time of either the June 2014 or December 2015 IEP meetings — Port View only finalized one in January 2016. The district's IEPs did include behavior goals, positive behavioral supports, a reinforcement system, a one-on-one aide, and a commitment to develop a BIP through a nonpublic agency once Student enrolled. The ALJ found this sufficient to offer FAPE.

On the transition plan, the ALJ found that the legal requirement for a transition plan applies when a student is moving from a nonpublic school into a regular class program — and the district was offering a special day class, not a regular class. The ALJ also found that a transition plan could not realistically be developed until Parents actually agreed to a placement change, at which point Port View and the district would collaborate. No transition plan had been in place for any of Student's prior school changes either, and Port View's own experts acknowledged the plan would be built collaboratively once Parents consented to return.

On the district's alleged duty to file for due process to defend its IEPs, the ALJ found that the legal obligation to file with "reasonable promptness" applies when a student is publicly placed and a parent rejects part of an IEP while the student stays in school. Here, Student was entirely privately placed and Parents had never consented to any district services. The district had no obligation to file a due process hearing to compel a unilaterally private-placed student to accept public school services.

Finally, on the request for an independent functional behavior assessment, the ALJ found that the right to an independent educational evaluation (IEE) at public expense is only triggered when a parent disagrees with the district's own evaluation. Because the district had not yet conducted a functional behavior assessment — it was trying to get Parents' consent to do so — there was no district evaluation to disagree with, and therefore no IEE right had been triggered.

What Was Ordered

Student's requests for relief were denied in their entirety.
The district was found to be the prevailing party on all issues.
No compensatory education, tuition reimbursement, or independent assessment funding was ordered.

Why This Matters for Parents

A district cannot be required to develop a behavior intervention plan in a vacuum. Because BIPs must be based on observation and data collection in the actual placement environment, a district that has never had access to your child cannot be held responsible for not having one ready. If you want a BIP from the district, at some point the district needs to be able to observe your child.
Withholding information from the district can hurt your case. Parents in this case refused to sign releases allowing verbal communication between the district and Port View, and limited the release of records. The ALJ repeatedly noted this left the district working with outdated information. If you want the district to write an IEP that reflects your child's current needs, sharing current data from the private provider strengthens your position.
The right to an independent evaluation only exists if the district has already evaluated your child. You cannot skip the district's evaluation and demand that the district pay for a private one instead. The district must conduct its own assessment first; only then, if you disagree with the results, can you request an IEE at public expense.
A district's duty to file for due process to defend its IEP applies to publicly-placed students, not privately-placed ones. If your child is enrolled in a private school entirely at your own direction — not because the district placed them there — the district is not legally required to file a hearing to force you to accept its FAPE offer. This also means that if you want reimbursement for private placement, the burden is on you to prove the district's offer was inadequate.

What Happened

What the ALJ Found

What Was Ordered

Student's requests for relief were denied in their entirety.
The district was found to be the prevailing party on all issues.
No compensatory education, tuition reimbursement, or independent assessment funding was ordered.

Why This Matters for Parents

A district cannot be required to develop a behavior intervention plan in a vacuum. Because BIPs must be based on observation and data collection in the actual placement environment, a district that has never had access to your child cannot be held responsible for not having one ready. If you want a BIP from the district, at some point the district needs to be able to observe your child.
Withholding information from the district can hurt your case. Parents in this case refused to sign releases allowing verbal communication between the district and Port View, and limited the release of records. The ALJ repeatedly noted this left the district working with outdated information. If you want the district to write an IEP that reflects your child's current needs, sharing current data from the private provider strengthens your position.
The right to an independent evaluation only exists if the district has already evaluated your child. You cannot skip the district's evaluation and demand that the district pay for a private one instead. The district must conduct its own assessment first; only then, if you disagree with the results, can you request an IEE at public expense.
A district's duty to file for due process to defend its IEP applies to publicly-placed students, not privately-placed ones. If your child is enrolled in a private school entirely at your own direction — not because the district placed them there — the district is not legally required to file a hearing to force you to accept its FAPE offer. This also means that if you want reimbursement for private placement, the burden is on you to prove the district's offer was inadequate.