What changed under AB 438

Effective July 1, 2025, California law moved up when IEP teams must actively consider transition planning. Previously, the requirement defaulted to the IEP in effect when a student turned 16. Now, IEP teams must consider postsecondary goals and transition services beginning when a student starts high school — typically age 14 or 15 — rather than automatically waiting until 16. A team can still decide to wait, but the law now expects that decision to be a deliberate, justified one, not a default.

What a real transition plan should include

• Measurable postsecondary goals in education/training, employment, and (where appropriate) independent living — not vague language like “will explore options.”
• Specific transition services and activities tied to those goals, not just a list of adult agencies that might someday be contacted.
• Course of study planning that actually aligns with the stated postsecondary goal, not just a generic graduation track.
• Student voice — by law, the student should be invited to their own transition IEP meetings, and their preferences should genuinely shape the plan.

Common problems San Diego families run into

Transition sections that are copy-pasted from a prior year with only the age updated, goals so generic they’d apply to almost any student, and services that exist on paper but were never actually connected to a real agency or program.

Does my teen have to attend their own transition IEP meeting?

California law requires that the student be invited to any IEP meeting where transition services will be discussed, and their preferences and interests are supposed to genuinely inform the goals, not just be noted for the record. If a transition meeting is being planned without your teen present, ask why, and consider whether it’s the right approach for a plan that’s ultimately about their future, not just the district’s paperwork. If your teen’s IEP is approaching high school age, or already includes a transition plan that reads like a formality, it’s worth asking the IEP team pointed questions about how the goals were chosen and what’s actually been done to support them. We help San Diego families make sure transition planning is a real roadmap, not just a compliance checkbox.

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The rule the district is supposed to follow

Under federal regulation (34 C.F.R. § 300.502), once a parent requests a publicly funded IEE because they disagree with the district’s evaluation, the district must, “without unnecessary delay,” either pay for the independent evaluation or file a due process complaint to prove its own evaluation was appropriate. There is no third option where the district simply declines and does nothing.

Common ways districts get this wrong

• Ignoring the request entirely rather than responding either way.
• Demanding parents explain, in detail, exactly why they disagree before the district will respond (the regulation does not require this).
• Approving the IEE but imposing cost caps or evaluator restrictions so narrow that no qualified evaluator can be found.
• Simply delaying for months without either funding the evaluation or filing for due process.

What you’re entitled to if the IEE is approved

The district must consider the results of a qualifying IEE in any decisions made about your child’s education, and you can present the evaluation as evidence in any later due process hearing. You are generally entitled to one publicly funded IEE per district evaluation you’re disputing.

If your request has been ignored or refused

Put your original request in writing if you haven’t already, and note the date. If the district doesn’t respond within a reasonable time — and doesn’t file for due process either — that delay is itself something you can raise through a state complaint or a due process filing.

What if the district approves the IEE but sets an unreasonably low cost cap?

A district can set reasonable cost criteria consistent with what it pays its own evaluators, but a cap so low that no qualified evaluator in the area will accept it functions as a denial in practice, not a genuine approval. If you can’t find a qualified provider willing to work within the district’s stated rate, put that in writing and ask the district to either raise the cap or explain how a family is supposed to find someone at that price. San Diego families facing a stalled or denied IEE request are welcome to reach out before more time passes.

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NPS is not the same as unilateral private placement

An NPS placement is proposed and funded by the school district itself as part of the IEP, distinct from a situation where parents place a child privately and later seek reimbursement. Because the district is initiating and paying for it directly, NPS placement generally involves less conflict than a reimbursement case — but getting a district to agree it’s necessary is often its own uphill process.

What has to be shown before NPS is appropriate

IDEA requires students be educated in the Least Restrictive Environment appropriate to their needs, so a district (and, if it comes to that, a hearing officer) will look at whether reasonable supports in a public school setting — aides, specialized programs, smaller class sizes — were tried or seriously considered first, and whether they were, or clearly would be, insufficient.

What San Diego families should gather before requesting NPS

• A clear record of what’s already been tried in the public setting, and why it hasn’t worked.
• Independent evaluations supporting the level of specialized support your child needs.
• Information on specific NPS programs (there are several serving San Diego County, specializing in areas like autism, emotional disturbance, or significant learning disabilities) that match your child’s profile.

If the district resists

Districts often resist NPS placement because of cost, even when it’s clearly warranted — that resistance is not, on its own, a legally sufficient reason to deny it.

Who pays for transportation to an NPS placement?

When an NPS placement is part of the IEP, transportation to and from the program is generally the district’s responsibility as a related service, just as it would be for any other IEP-required placement. That can mean a district-arranged van or bus route, or in some cases mileage reimbursement — the specifics should be written into the IEP itself, not left as an informal understanding. If you believe your San Diego child needs a Non-Public School placement and the district disagrees, or has offered one that doesn’t actually match your child’s needs, we can help you evaluate the options and, if necessary, pursue it through due process.

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The 10-day rule

A school can remove a student with a disability for up to 10 consecutive school days in a school year using the same discipline process applied to any student, without triggering additional IDEA protections. Once removals exceed 10 consecutive days, or add up to a pattern of more than 10 days across the year, additional protections kick in — including the right to continued educational services and, generally, a Manifestation Determination Review.

Manifestation determination controls what happens next

For any longer-term removal, the district must determine whether the behavior was related to the disability. If it was, the child generally can’t simply be expelled the way a general education student might be for the same conduct — the team instead has to address the behavior itself, typically through a behavior plan, rather than remove the child from their placement.

“Stay-put” during a dispute

If a parent disagrees with a disciplinary decision and requests a due process hearing, the child generally remains in their current educational placement (or the interim alternative setting, in weapons/drugs/serious injury cases) while that hearing is pending — the district can’t simply carry out an expulsion while the dispute is still being decided, outside of specific exceptions.

Practical steps for parents facing a disciplinary meeting

• Ask directly whether the school considers this a “change of placement” and whether an MDR will be held.
• Bring any evidence connecting the behavior to your child’s disability — prior evaluations, therapist input, or documented triggers.
• Don’t assume a proposed expulsion is final; you have the right to challenge both the discipline itself and any manifestation finding you disagree with.

Do informal removals count toward the 10-day limit?

They can. If a school repeatedly calls you to pick up your child early, or sends them home informally rather than through a formal suspension, those removals may still count toward the 10-day threshold if they amount to a pattern of exclusion from the same educational program. Keep a personal log of every early pickup or informal removal, including dates and stated reasons — it may matter more than the school’s own paperwork suggests it does.

If your San Diego County child is facing suspension or expulsion, getting informed before the meeting — not after a decision is made — puts you in a much stronger position.

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When an MDR is required

Whenever a school proposes to remove a student with a disability for more than 10 consecutive school days — or a pattern of shorter removals adds up to a de facto change in placement — the district must hold an MDR.

What the team actually decides

The IEP team, including the parent, reviews the child’s file and the behavior in question and answers two questions: was the conduct caused by, or directly related to, the child’s disability; and was the conduct the direct result of the district’s failure to implement the IEP? A “yes” to either question means the behavior is a manifestation of the disability.

If the behavior is a manifestation

• The child generally returns to their prior placement (with limited exceptions).
• The IEP team must conduct or review a functional behavior assessment and put a behavior intervention plan in place.
• The disciplinary removal that triggered the MDR is not simply carried out as planned.

If it’s found not to be a manifestation

The school may proceed with discipline as it would for a student without a disability — but the district must still continue providing educational services so the child can progress in the general curriculum and toward IEP goals. One important exception applies regardless of the manifestation finding: for weapons, illegal drugs, or serious bodily injury, a school may place a student in an interim alternative educational setting for up to 45 school days no matter what the MDR concludes.

Your rights as a parent in the room

You are a required participant in this meeting, not an optional one, and you can disagree with the team’s conclusion and request a due process hearing on an expedited basis.

What if I disagree with the MDR outcome?

You can request an expedited due process hearing, which moves faster than a standard hearing given the disciplinary stakes involved. In many cases, the child’s placement during that dispute follows the “stay-put” rule — generally remaining in the placement they were in before the disciplinary action, with narrow exceptions for weapons, drugs, or serious injury cases. If your San Diego County child is facing a disciplinary removal and a manifestation determination is coming up, it’s worth understanding these rights before the meeting, not after.

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Progress is a legal requirement, not just a hope

The U.S. Supreme Court’s Endrew F. decision requires that a child’s IEP be “reasonably calculated to enable the child to make progress appropriate in light of the child’s circumstances.” The Court was explicit that schools cannot settle for barely-more-than-nothing progress simply because a child has a significant disability. A lower starting point changes what ambitious progress looks like — it does not excuse a district from aiming for it.

What flat progress can mean, legally

• The instructional approach isn’t matched to your child’s actual needs, even if it’s being implemented consistently.
• Goals are being marked “met” without real underlying data supporting that conclusion.
• The IEP hasn’t meaningfully changed in years despite the lack of results — a strong sign no one has stopped to ask why.

This applies across disabilities and grade levels

This isn’t limited to reading, and it isn’t limited to elementary school. Flat progress in communication, behavior, math, or functional life skills raises the same legal question at any age: is this program actually reasonably calculated to help, or has it simply become the default because no one revisited it?

What to do next

Start by pulling your child’s actual progress-monitoring data across the last two to three years, not just the summary language on report cards. Look at the present levels of performance over the last three IEPs. If the pattern is real, an independent evaluation and a serious conversation with the IEP team about changing the approach — not just repeating it — is usually the right first step, and may also open the door to compensatory services or reimbursement for outside help you’ve already paid for.

How many years of flat progress is “enough” to raise concerns?

There’s no fixed legal number, but as a practical matter, one disappointing progress report is very different from a multi-year pattern. A single flat semester might reflect a rough patch; two or three years of essentially unchanged performance despite consistent services is a much stronger signal that the program itself, not the child, is the limiting factor. If this sounds like your family’s experience in San Diego County, we’re glad to talk through what your options look like.

The post My Child Isn’t Making Progress — Is That Legal? appeared first on The Law Office of Matthew H. Storey.

The standard is individualized, not uniform

In Endrew F. v. Douglas County School District, the U.S. Supreme Court held that an IEP must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” — and specifically rejected the idea that schools can settle for barely-more-than-nothing progress just because a child’s disability is significant. A lower cognitive ceiling can change what ambitious looks like; it doesn’t eliminate the requirement that real progress happen.

Warning signs in a child’s IEP

• Goals that repeat, nearly word-for-word, from one year’s IEP to the next.
• Progress reports that say “progressing” or “met” without any underlying data to show what changed.
• A student’s actual skill level looking essentially the same as it did one, two, or three years ago, despite reportedly meeting annual goals.

Flat progress is information, not just disappointment

Multiple years without meaningful change in a core skill area — reading, communication, functional life skills — is not simply something to accept as “that’s just how it is for my child.” It can be direct evidence that the program itself, not the child’s ceiling, is the problem. Courts have been clear that a school district doesn’t get credit for effort or good intentions if the actual result, over time, is stagnation.

What to do if this sounds familiar

Ask for the underlying progress-monitoring data behind any “goal met” determination — not just the summary. You need data! If a pattern of flat progress emerges across multiple years, an independent evaluation and a hard look at whether the program needs to change (not just be repeated) is often the right next step.

Does a lower cognitive score mean the district can aim lower?

It means the starting point and pace look different, not that the district is excused from aiming for genuine growth. Endrew F. specifically addressed this scenario, rejecting the idea that a school can be satisfied with barely-more-than-nothing progress simply because a child can’t be fully mainstreamed. What counts as “ambitious” is calibrated to the child, but the requirement that real progress happen does not disappear. Our office helps San Diego families evaluate exactly this pattern, including whether privately obtained services should be reimbursed by the district.

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The legal test, in two parts

Under the U.S. Supreme Court’s Burlington and Carter decisions, parents can recover reimbursement when (1) the school district failed to offer a Free Appropriate Public Education (FAPE), and (2) the private service the parents obtained was appropriate to the child’s needs. Both parts matter, but neither requires perfection.

A common misconception: “but the tutoring didn’t fully work”

Districts sometimes argue that if a child’s privately obtained tutoring or therapy didn’t produce dramatic, measurable gains, it must not have been “appropriate” — and therefore shouldn’t be reimbursed. Courts have specifically rejected this argument. Appropriateness is judged by whether the service was reasonably designed to meet the child’s needs at the time it was chosen, not by grading the outcome years later. A private program doesn’t have to guarantee results any more than a public school district’s IEP does.

What actually matters for a reimbursement claim

• Clear documentation that the district’s own program wasn’t providing meaningful progress (report cards, progress notes, evaluations).
• Evidence the private service was individually matched to your child’s diagnosed needs — not simply the most convenient or popular option.
• Timely written notice to the district, where required, of your intent to seek private services at the district’s expense.
• Reasonable, market-comparable costs for the services obtained.

Don’t assume it’s too late, or too complicated

Reimbursement claims are subject to filing deadlines, so it’s worth getting advice sooner rather than later even if the spending happened over several years.

Do I need the district’s permission before starting private services?

No, but there are notice rules worth following carefully. To preserve full reimbursement, parents generally need to notify the district’s IEP team — in writing, before removing the child from a public placement or starting the private service, or at the most recent IEP meeting — of their concerns and their intent to seek reimbursement. Skipping this step doesn’t necessarily kill a claim, but it can reduce what’s recoverable, so it’s worth doing even if you’re planning to start services quickly. If your San Diego family has spent significant money on tutoring or therapy your school district should have provided, we can help you evaluate whether a reimbursement claim makes sense.

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The legal standard, in plain language

California’s regulation (5 CCR § 3043) makes a student eligible for ESY when their disability is likely to continue indefinitely or for a prolonged period, and a break in services may cause regression that the student can’t reasonably recoup once school resumes. Importantly, the regulation does not require your family to produce a formal clinical study proving regression — the IEP team can and should find eligibility based on reasonable evidence, including the nature of the disability itself.

Who typically qualifies

• Students with autism, intellectual disability, or significant communication disorders, where skill-building is often slow and hard-won.
• Students who have shown a pattern of losing skills over past school breaks and taking weeks or longer to recover them.
• Students working on critical, foundational skills (reading, communication, self-care, behavior regulation) where a summer gap could meaningfully set back the year’s progress.

A common misconception

Some districts act as though ESY requires proof the child would regress to “nothing” without summer services. That is not the legal standard. The real question is whether the benefits the child gained during the school year would be significantly put at risk by a summer without programming — a much lower bar than “total collapse.”

If your district says no

A district cannot deny ESY solely because you don’t have a formal regression study — the absence of that specific kind of evidence is not, by itself, a legally sufficient reason to deny services where other evidence supports the need.

Does ESY have to look like the regular school-year program?

No, but it does have to be comparable in quality and actually address the goals it’s meant to protect. California requires a minimum number of instructional days and requires the program be appropriate to the child’s needs — it doesn’t have to be a full replica of the regular school year, but it also can’t be a token, watered-down version offered just to check a compliance box. If your San Diego County child has been denied ESY, or if a district has never even raised it at an IEP meeting despite an ongoing pattern of slow progress, it’s worth having that conversation directly, in writing, before summer break arrives.

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Section 504 covers the majority of ADHD cases

If your child’s ADHD substantially limits a major life activity — concentrating, learning, or behavior regulation — but they can access the general curriculum with accommodations, a 504 Plan is usually the right fit. Common accommodations include extended time, preferential seating, movement breaks, chunked assignments, and organizational support.

When ADHD supports an IEP instead

If ADHD significantly impacts academic achievement despite accommodations — not just attention, but actual learning — a child may qualify for an IEP under the “Other Health Impairment” category. This is especially common when ADHD co-occurs with a learning disability, anxiety, or executive functioning deficits severe enough that specialized instruction, not just accommodation, is needed.

Accommodations that actually address ADHD, versus ones that just look supportive

• Movement breaks and reduced unstructured transition time tend to outperform generic “extra time” accommodations for younger students.
• Checklists and visual schedules for executive functioning support are often more useful than verbal reminders alone.
• Behavior plans should be based on an actual functional behavior assessment, not a generic template reused across students.

If accommodations aren’t working

A 504 Plan that looks reasonable on paper but isn’t actually being implemented — teachers not following it, accommodations forgotten mid-year — is a common and often overlooked problem. You have the right to ask for an implementation review, and if a 504 Plan repeatedly fails in practice, that may be evidence your child actually needs the stronger protections of an IEP.

Can my child have an IEP and still take ADHD medication at school?

Yes. Medication management is a health matter between your family and your child’s doctor, and having an IEP or 504 Plan doesn’t change that. Schools can play a supporting role — a health plan for administering medication during school hours, for example — but neither an IEP team nor a 504 team can require medication as a condition of receiving services, and you’re not required to disclose medication decisions you’d rather keep private. We help San Diego families sort out which path fits their child, and what to do when a plan isn’t being followed.

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