San Marcos USD Must Fund Behavioral Support for Preschooler Despite Winning Most Issues

A family filed a due process complaint against San Marcos Unified School District on behalf of their nearly three-year-old daughter with significant behavioral and developmental needs. The district won on eight of nine issues, including autism eligibility, predetermination, and physical therapy. However, the ALJ found that the district denied Student a FAPE by offering absolutely no behavioral support services in the May 2017 IEP, despite its own assessors expressing serious uncertainty about the cause and severity of Student's behaviors. The district was ordered to fund independent behavioral and psychoeducational evaluations and to immediately provide a one-to-one ABA-trained aide and BCBA consultation.

What Happened

Student was born in June 2014 and was nearly three years old at the time of her initial IEP. Before turning three, she received intensive Early Start services through the Regional Center, including applied behavior analysis, occupational therapy, speech therapy, and infant education. A Regional Center assessment when Student was 18 months old noted concerns consistent with autism spectrum disorder, including minimal eye contact, self-injury, inconsistent responses, and significant behavioral challenges. When the Regional Center referred Student to the district for her transition into the school system, the district conducted its own assessments in April and May 2017. During those assessment sessions, Student's behaviors were so extreme that she could not be assessed at all unless her brother was present in the room. Even with her brother present, she required constant prompting, refused tasks, eloped, and demonstrated significant non-compliance. Despite all of this, the district's May 30, 2017 IEP offered Student a preschool placement with no behavioral support services — just speech therapy and classroom accommodations like visual schedules.

Parents challenged the IEP on nine separate grounds, including that the district failed its child-find obligation by not considering an autism diagnosis, that the IEP was predetermined, that Parents were excluded from meaningful participation, that Student was restrained and secluded at school without proper reporting, and that the district failed to assess or provide services in physical therapy and assistive technology. The family also argued the district should have offered behavioral support services and a transition plan to help Student enter the preschool environment for the first time.

What the ALJ Found

The ALJ ruled in the district's favor on eight of the nine issues. The district had considered autism eligibility during its assessments and IEP meetings. The IEP was not predetermined — Parents participated meaningfully, even though they disagreed with the outcome. No evidence supported that Student was restrained or secluded. The adapted physical education assessment was thorough enough that a formal physical therapy referral was not required. Student's use of an iPad at home did not, without more, create a duty to assess for assistive technology.

However, Student prevailed on the critical issue of behavioral services. The ALJ found that the district's own assessment was riddled with uncertainty. Assessors could not explain Student's behaviors, could not assess her without her brother present, and openly admitted they did not know how she would perform in a group setting. Yet the IEP offered zero behavioral support — no behavior intervention plan, no one-to-one aide, no BCBA consultation. The district's plan was essentially to place Student in preschool and "see how she did." The ALJ found this was not an appropriate offer of a FAPE. When a district acknowledges it does not understand a child's behaviors or their cause, it cannot justify offering nothing while it figures things out. The failure to provide even temporary behavioral supports, given the severity of Student's needs, was a denial of FAPE.

The ALJ also criticized the district's repeated explanation that Student's non-compliance and inconsistent communication were a "choice." The assessors offered no evidence-based rationale for this interpretation, and it led them to underestimate the seriousness of Student's behavioral needs.

What Was Ordered

District shall fund an independent psychoeducational evaluation and an independent behavioral assessment, conducted by assessors of Student's choosing, subject to district criteria for qualifications, cost limits, and approved instruments.
Within 15 days of the decision, district shall provide Student with its agency criteria for independent assessments.
Within 30 days, Parents shall inform the district of their chosen assessors.
After assessments are complete, district shall convene an IEP team meeting within 15 days to review results and develop appropriate behavioral services. District shall fund the assessors' attendance at the IEP meeting for up to three hours each.
Immediately and pending the assessments and new IEP meeting, district shall provide Student with a one-to-one ABA-trained staff member for all hours Student attends preschool, plus supervision and consultation by a Board Certified Behavior Analyst (BCBA). If the district cannot provide this through its own staff, it must contract with a nonpublic agency.
This interim placement and services shall constitute Student's stay-put placement.
All other requested remedies — nonpublic school placement, compensatory education, counseling, physical therapy and assistive technology assessments, and a behavior emergency report — were denied.

Why This Matters for Parents

A district cannot offer zero behavioral services when its own assessment shows it doesn't understand a child's behaviors. The ALJ found that uncertainty about the cause of behaviors is not a reason to wait and see — it is a reason to provide supports while gathering more information. If your district's assessors openly admit they aren't sure what's driving your child's behavior, that uncertainty should lead to more services, not fewer.
"We'll observe how they do in class" is not an IEP. The district's plan was to use preschool placement as a diagnostic tool. The ALJ rejected this approach, finding that offering placement without supports, to a child who could not even be assessed without her sibling present, was not a legitimate educational program. An IEP must address a child's known needs at the time it is written — not hope that exposure to school will clarify things.
Winning on eligibility category doesn't mean a district has met its obligations. The district won the argument that Student did not need to be classified as autistic. But the ALJ made clear that IDEA is about meeting a child's actual needs, not about labels. Even without an autism classification, Student's behavioral needs were real and required services. Don't let a dispute about eligibility category distract from the more important question: is your child getting the supports they actually need?
Document everything the district says it doesn't know. The district's own assessors said at the IEP meeting that they had "the same questions" as Parents about what was causing Student's behaviors. Statements like these — captured in IEP notes or hearing testimony — can be powerful evidence that a district's offer was inadequate. When district staff express uncertainty, ask directly: what services will you provide while we figure this out?

What Happened

What the ALJ Found

What Was Ordered

District shall fund an independent psychoeducational evaluation and an independent behavioral assessment, conducted by assessors of Student's choosing, subject to district criteria for qualifications, cost limits, and approved instruments.
Within 15 days of the decision, district shall provide Student with its agency criteria for independent assessments.
Within 30 days, Parents shall inform the district of their chosen assessors.
After assessments are complete, district shall convene an IEP team meeting within 15 days to review results and develop appropriate behavioral services. District shall fund the assessors' attendance at the IEP meeting for up to three hours each.
Immediately and pending the assessments and new IEP meeting, district shall provide Student with a one-to-one ABA-trained staff member for all hours Student attends preschool, plus supervision and consultation by a Board Certified Behavior Analyst (BCBA). If the district cannot provide this through its own staff, it must contract with a nonpublic agency.
This interim placement and services shall constitute Student's stay-put placement.
All other requested remedies — nonpublic school placement, compensatory education, counseling, physical therapy and assistive technology assessments, and a behavior emergency report — were denied.

Why This Matters for Parents

A district cannot offer zero behavioral services when its own assessment shows it doesn't understand a child's behaviors. The ALJ found that uncertainty about the cause of behaviors is not a reason to wait and see — it is a reason to provide supports while gathering more information. If your district's assessors openly admit they aren't sure what's driving your child's behavior, that uncertainty should lead to more services, not fewer.
"We'll observe how they do in class" is not an IEP. The district's plan was to use preschool placement as a diagnostic tool. The ALJ rejected this approach, finding that offering placement without supports, to a child who could not even be assessed without her sibling present, was not a legitimate educational program. An IEP must address a child's known needs at the time it is written — not hope that exposure to school will clarify things.
Winning on eligibility category doesn't mean a district has met its obligations. The district won the argument that Student did not need to be classified as autistic. But the ALJ made clear that IDEA is about meeting a child's actual needs, not about labels. Even without an autism classification, Student's behavioral needs were real and required services. Don't let a dispute about eligibility category distract from the more important question: is your child getting the supports they actually need?
Document everything the district says it doesn't know. The district's own assessors said at the IEP meeting that they had "the same questions" as Parents about what was causing Student's behaviors. Statements like these — captured in IEP notes or hearing testimony — can be powerful evidence that a district's offer was inadequate. When district staff express uncertainty, ask directly: what services will you provide while we figure this out?