CASE NO. 2023020144

NEWARK UNIFIED SCHOOL DISTRICT v. Student

Counsel for Student: No one

Counsel for District: Jennifer Fain and Rebecca Buchsbaum

Representative for District: Olivia Rangel

ALJ: Theresa Ravandi

Date of Decision: May 04, 2023

Significant areas of law: Assessing Student without Parent’s Consent

ISSUES:

• Is District authorized to assess Student pursuant to its assessment plan without Parent’s consent?

FACTS OF THE CASE:

• Student was 10 years and nine months old and eligible for special education under the primary category of orthopedic impairment and the secondary category of speech and language impairment. Student had Down Syndrome, a heart condition, asthma, and allergies, and was followed by several medical specialists.
• Student’s last School completed his triennial assessments and prepared a multidisciplinary educational evaluation report which included a health, psychoeducational, speech and language, occupational therapy, assistive technology, and physical therapy assessment in first grade and Student joined the current District in fourth grade.
• District attempted to obtain Parent consent to assess but parent refused to provide consent by objecting the use of norm-referenced or standardized tools. Hence, District filed a due process hearing request before ALJ.

CONCLUSION:-

• District is authorized to assess Student pursuant to its assessment plan without Parent’s consent.

Rationale:

• District did not have a current understanding of Student’s strengths, deficits, or educational functioning as Student enrolled as a fourth grader during the COVID-19 pandemic and schools remained closed to in-person instruction, and Student had not attended any in-person programming.
• Parents themselves asked District to assess Student in all areas of need to determine his present levels. Consequently, District sent Parent an assessment plan proposing to assess Student’s academics, health, intellectual development including auditory processing, language and speech, motor skills, social-emotional and behavioral functioning, and adaptive skills.
• District responded to Parent’s questions on assessments and explained the test instruments the school psychologist would likely administer and why, provided the proposed testing instruments’ website links, and informed Parent of the assessors’ willingness to discuss the tools they planned to use.
• All the witnesses testifying on behalf of District opined that Student’s triennial reassessment was necessary not only because it had been over three years since the last assessments, but also because Student’s IEP team needed updated information to develop an appropriate program. Their testimonies were thoughtful, detailed and persuasive.
• District’s assessment plan was appropriately worded, written in a manner easy to understand, and in English, Parent’s preferred language. It specified the types of assessments, and identified each proposed assessment area and specified the title of a qualified examiner for each area.
• District made numerous attempts to meaningfully discuss with Parent its proposal to reassess Student and to obtain Parent’s consent and provided Parent multiple, substantively similar assessment plans with notices of procedural safeguards. District satisfied the collaborative process under the IDEA that necessitates parental input and informed discussions.
• Once a school district establishes a need for assessment and meets the statutory requirements, parents may not put conditions on assessments.

REMEDIES/ORDER:

• District may reassess Student pursuant to the assessment plan with qualified assessors and assessment tools of its choice.
• Parent shall cooperate in making Student reasonably available for each assessment