District Must Fund Independent FBA After Excluding Parent From Assessment Process

What Happened

Student was an 11-year-old sixth grader eligible for special education under the categories of autism and speech or language impairment. Parent was concerned that Student had behaviors interfering with his ability to learn — including difficulty recognizing social cues, trouble making friends, difficulty focusing and following directions, and low achievement in reading and writing. In October 2019, Parent formally requested that the district conduct a functional behavior assessment (FBA), explicitly stating he expected to be included as an active participant in the process.

The district assigned a Board-Certified Behavior Analyst to conduct the FBA. Through a miscommunication, the assessor was never given Parent's detailed two-page list of concerns. The assessor called Parent to schedule an interview, but Parent — not knowing who she was — emailed the district director saying he did not want to discuss Student "at the moment." The district interpreted this as a refusal to participate and instructed the assessor never to contact Parent again. The assessor completed the FBA identifying only one target behavior (Student's negative self-talk about writing) without reviewing Parent's concern list and without ever speaking to Parent. When Parent received the report, he objected strongly, explaining he had never refused to participate. Despite Parent's January and February 2020 emails clearly expressing his willingness to be involved, the district made no further effort to contact him before finalizing the FBA.

What the ALJ Found

The FBA was inappropriate — but that did not automatically mean the student was denied a FAPE.

The ALJ found that the district conducted its FBA inappropriately by unreasonably failing to obtain Parent's input. Federal and California law require assessors to gather relevant information from parents, and districts must make reasonable efforts to secure parental participation in the assessment process — even when parents are perceived as difficult. Parent's emails consistently expressed a desire to be involved. The district's decision to cut off all contact with Parent after one ambiguous email, and its failure to re-engage even after Parent clearly corrected the misunderstanding in writing, was not excusable.

However, the ALJ denied the student's claim that this procedural violation denied Student a FAPE. Student's expert did not identify any specific behaviors that the assessor's 10 hours of observations and teacher interviews failed to detect. There was no evidence that Parent would have provided information that materially changed the FBA's findings. The ALJ also found that the delay in developing Student's IEP was caused in part by Parent's refusal to attend IEP meetings until the district produced a new FBA — not solely by the district's procedural error.

On the records issue, the ALJ found the district failed to provide Parent copies of the assessor's interview notes and the completed rating scale form — which are educational records under FERPA and IDEA that parents have the right to review. However, because the records were accidentally destroyed (wiped from the assessor's laptop after she left the district), no bad-faith inference was drawn. Student again could not show this failure caused actual harm, so no FAPE denial was found.

What Was Ordered

1. San Jose Unified School District must fund an independent functional behavior assessment (IEE) of Student at public expense.
2. Within five business days of the decision, the district must provide Parent its criteria for independent evaluators. Parent then has 15 business days to select a qualified assessor and provide contact information.
3. Within 10 business days of receiving the assessor's contact information, the district must send the assessor a contract and cooperate with all reasonable requests.
4. The independent assessor shall provide the report directly to both Parent and the district. The district must convene an IEP team meeting to discuss the report within 30 days of receiving it, and must fund up to three hours of the assessor's attendance at that meeting.
5. All other claims for relief — including any additional compensatory education or remedies — were denied.

Why This Matters for Parents

1. One ambiguous email is not a refusal to participate. The district used a single email — in which Parent said he did not want to speak with an unknown caller "at the moment" — to permanently cut off contact. The ALJ made clear this was not good enough. Districts must make reasonable, persistent efforts to include parents in the assessment process, and cannot claim a parent refused to cooperate based on an unclear communication.

2. You have the right to an independent FBA if the district's FBA is inappropriate. California law gives parents the right to an independent educational assessment at public expense when they disagree with a district's assessment and the district cannot prove its assessment was done properly. This case confirms that an FBA counts as an "assessment" triggering that right — the ALJ explicitly rejected the district's argument that FBAs are exempt from independent assessment rules.

3. Proving a procedural violation is not enough — you also need to show harm. The parent won the right to an independent FBA, but lost the FAPE claims because Student could not show that the flawed FBA actually hurt him. If you are challenging a district assessment, document specifically what information the district missed and how it affected your child's program.

4. Your detailed records requests matter — and the district must honor them. Parent's written request for the FBA protocols, raw data, interview notes, and rating scale forms was legally valid. The ALJ confirmed these are educational records that parents have the right to review. If a district tells you it has produced "all documents," ask specifically about assessor notes, completed rating scale forms, and interview notes — these are separate from the final report and must also be disclosed.