COMPLAINT with Jury Demand against Solana Beach School District, Mary Ellen Nest ( Filing fee $ 350 receipt number 149434.), filed by Ka.D., Ky.D., B.D..(kmm) (kaj).
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Case sO Document 1 Filed oon ape Page {i070
| PRED
Maureen R. Graves (SBN 145979) L E U
John G. Nolte, (SBN 233966) PP Moe,
Law Offices of Maureen Graves OB APR -4 PH 4226 Schubert Court GHERY. US DISTRIC
Irvine, CA 92617 SOUTHSPN DISTRICT SF CAO,
Phone: 949-856-0128
Fax: 949-856-0168 ay cP
maureen@maureengraves.com DEPUTY
john@maureengraves.com
Attorneys for Plaintiffs
Ka.D., by her mother, Ky.D.,
as her next friend; Ky.D., and B.D.
}
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA f
Ka.D., a minor, by her mother, Ky.D., ) cabR, CV U 6 2 2 JLS POR
as her next friend; Ky.D. and B.D. ) ~
) «» COMPLAINT
) | 20 U.S.C. § 1415 et.seq.
Plaintiffs, ) 42 U.S.C. § 12101 et seq. ~~"
) 29 U.S.C. § 794
Vv. )
) Cal. Ed. Code § 56000 et. Seq.
SOLANA BEACH SCHOOL DISTRICT )
And MARY ELLEN NEST, ) JURY TRIAL DEMANDED
)
Defendants. )
)
Plaintiffs Ka.D., a minor, by her mother and next friend Ky.D., Ky.D., and B.D. (the
full names of whom are in an Application for Appointment of Guardian Ad Litem being filed
under seal contemporaneously herewith) allege as follows:
INTRODUCTION
. Plaintiff Ka.D, a four and a half year old girl with a disability, files this civil action
against Defendant Solana Beach School District (hereafter SBSD or the “District”) and its
special education director, Mary Ellen Nest (hereafter Nest), alleging violation of the
Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. 1400 et seq., the Americans
with Disabilities Act (“ADA”), 42 U.S. . §12101 et seq., and Section 504 of the Rehabilitation
Act (“Section 504”), 29 U.S.C. § 794, Plaintiffs allege that Defendants SBSD and NEST
violated Ka.D.’s and her parents’ substantive and procedural rights under IDEA. Plaintiff
further alleges that Defendants SBSD and Nest unlawfully discriminated against her byPage 2 Oo eo HN DH Wn Fe WY HO
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making educational decisions about her and depriving her of the full range of educational
options based on her disability and her parents’ advocacy, by depriving her and her parents
of participation in programs on the same terms as it provided to others, and of failing to
offer an educational program that afforded her the same opportunity to benefit as did its
nondisabled students, violating the ADA and the Rehabilitation Act.
. In violation of these statutes, the Defendant has intentionally, knowingly and
consistently refused to recognize and fulfill its obligation to allow Ka.D. to be educated in
natural settings for a preschooler (i.e., in preschool alongside nondisabled peers and in her
home and community), failed to design an appropriate educational program, and excluded
Ka.D. and her parents from equal, non-discriminatory participation in District services.
Instead, the District decided early that Ka.D. was to be educated in a segregated special
education classroom, and it has ignored both substantive and procedural legal requirements
in the service of that plan.
. In July 2007, Plaintiff requested a due process hearing against the District from
the California Office of Administrative Hearings — Special Education Division (OAH), in
accordance with 20 U.S. C. §1415(f). The District also filed for hearing to demonstrate the
adequacy of its assessment of Ka.D. Following a due process hearing which began on
October 29 and concluded on November 19, 2007, a decision was issued on January 7, 2008
and received on that date. Although Plaintiff prevailed as to significant portions of the .
decision and was awarded much of the relief sought in the due process hearing, portions of
the decision were in favor of the District. Plaintiff alleges, as to those portions of the
decision, that the hearing officer’s decision failed to properly interpret federal and state law
and their requirements, is contrary to law, is unsupported by the evidence, and is clearly
erroneous.
. Plaintiff being aggrieved by the due process hearing decision brings this civil
action pursuant to 20 U.S. C. §1415 (i)(2)(A).
. This action includes both an appeal of an administrative decision and a request
for attorneys’ fees pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §Page 3 BR WwW NN
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et seq. (hereinafter “IDEA”). Through this action, Plaintiffs challenge certain aspects of
the decision by OAH in the cases numbered N2007070255 and N2007090146, cases initiated
by the family against the District and by the District against the family, respectively.
Plaintiffs allege that the challenged portions of the Administrative Law Judge’s decision
failed to properly interpret and apply applicable law or to appropriately weigh evidence. A
copy of the decision is attached hereto as Exhibit A and incorporated by reference herein.
Plaintiff brings this action pursuant to 20 U.S.C. §1415(i)(3)(B) of the Individuals with
Disabilities Education Act (“IDEA”) in order to secure additional relief for Ka.D. and
because, as prevailing party in an underlying administrative IDEA hearing, plaintiff is
entitled to an award of attorneys’ fees in connection with the underlying administrative
hearing involving the same parties. As to the portions of the decision which Plaintiffs do not
challenge, Plaintiffs seek attorneys’ fees as prevailing parties in the underlying
administrative action.
. Plaintiffs bring claims for discrimination and retaliation under Section 504 of the
Rehabilitation Act of 1973 (“Section 504”) and the Americans with Disabilities Act (42 U.S.C.
§ 12101), seeking injunctive relief to prevent further violations of these statutes as well as
compensatory damages to compensate for past violations and punitive damages to deter
similar misconduct in the future.
. Plaintiffs bring claims for denial of a free appropriate public education in the least
restrictive environment under Section 504 because SBSD, as a public entity and recipient of
federal funds, was required to provide an educational program to plaintiff without
unnecessary segregation and without discriminatory provisions relating to program access
and parent involvement. Plaintiffs are seeking injunctive relief to prevent further violations
of these statutes as well as compensatory damages to compensate for past violations and
punitive damages to deter similar misconduct in the future.
. With respect to the IDEA matter, Plaintiffs have prevailed for the most part, and
request attorney’s fees pursuant to 20 U.S.C. § 1415(i)(3) for the due process proceeding and
for attendance at the IEP meeting convened to transition Ka.D.’s program in accordancePage 4 Mm Se. WW RN
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with OAH’s order. To date, the District has refused to pay such fees. With respect to the
other matters, they hope to prevail and to become entitled to attorney’s fees pursuant to 29
U.S.C. § 794a(2)(b), 42 U.S.C. § 12203 (a), (b) and (c), 42 U.S.C. § 12205, 29 U.S.C. § 794 and U.S.C. § 12101 et seq..
JURISDICTION AND VENUE
. This court has jurisdiction over the claims in this action pursuant to 20 U.S.C. §(i)(2) &(3), 29 U.S.C. § 794, 42 U.S.C. § 12101 et seg. and 28 U.S.C. § 1331.
. Venue is proper in this Court. All of the events that are the subject of this
complaint took place within the Southern District of California.
. There is a present and actual controversy between the parties to this action. To
the extent required by law, Plaintiffs have exhausted their administrative remedies as to the
issues in this litigation.
PARTIES
. _—~ Plaintiff Ka.D. is a four and a half year old girl with a disabilty. She was born on
April 24, 2003 in San Diego, California and resides with her parents, sister, and maternal
grandparents in Solana Beach, California. Ka.D. is eligible for special education services due
to her autism. Ka.D. is fully and successfully included in a typical community preschool,
requiring the assistance of a skilled one to one behavioral “shadow aide” to facilitate her
participation with typically developing peers. Ka.D. is, and has been at all times relevant
hereto, entitled to the full protections of IDEA, including the right to be provided by SBSD
with a free appropriate educational program made available, to the maximum extent
appropriate, alongside nondisabled peers. She is a "child with a disability" within the
meaning of IDEA, 20 U.S.C. Section 1401(3) and is a qualified individual with a disability
within the meaning of the ADA and the Rehabilitation Act. 42 U.S.C. Section §12131(2) and U.S.C. Section 794.
. The full name of Ka.D. is known to Defendant and is contained in an Application
for Appointment of Guardian ad Litem, which is being filed under seal contemporaneously
herewith.Page 5 oOo Oo SN DBD NO FR WD HO
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the necessary evidence, or without an expert with the firepower to match the opposition.”
Schaffer v. Weast, 126 S. Ct. 528, 532 (2005). Having failed to promptly to seek a hearing to
defend against payment, and having chosen instead to discourage a full and comprehensive
evaluation, SBSD should have been required to fund the assessment unless it demonstrated
during the due process hearing that the IEE did not meet agency criteria it had provided to
the family. The District did not, in response to family inquiries as to criteria for the IEE,
provide monetary, credentialing, or other guidelines. In fact, its primary concern seemed to
be placing limits on the amount of time Dr. Bailey would be allowed to observe the District’s
programs. The District also did not establish that the IEE did not meet agency criteria.
. The ALJ incorrectly concluded that District staff was adequately trained to
implement Ka.D.’s IEP. The decision ignored the importance of the significant evidence of
problems with the District’s behavioral program’s design, implementation, and record-
keeping, and made numerous factual and legal errors in concluding that District staff were
capable of implement =ingthe research-based behavioral program required to continue
Ka.D.’s progress across environments. The hearing officer improperly trivialized differences
between Ka.D.’s current providers and District staff by describing the current providers as
“even better trained” and “more diligent in keeping records,” failing to acknowledge
District’s staffers’ lack of commitment to inclusion as well as their ambivalence regarding,
and refusal to commit to using, research-based educational strategies.
. The ALJ incorrectly determined that the District’s offer of 10 hours per week of
ABA services delivered at the District’s location and by its staff was adequate. In fact, Ka.D.
required no less than 12 to 15 hours of in home services delivered by a highly skilled
provider in a coherent, well-designed and supervised ABA program; and the appropriate
locations for this service were in Ka.D.’s home, neighborhood and broader community, not
in a special education cubicle convenient for SBUSD. In fact, the evidence established that
District staff did not and would not in Ka.D.’s case deliver ABA services in accord with
research based methodologies as to location, program design or intensity, or in a manner
reasonably calculated to allow Ka.D. to participate successfully in general education and Page 14 Oo oOo SN DB WNW BP W NHN
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access the general curriculum alongside nondisabled peers.
. _—_In finding District staff and services adequate, the ALJ ignored extensive evidence
(including the District’s disregard of Ka.D.’s history of progress in the appropriate
preschool setting and its disregard of IDEA’s requirement that students with disabilities be
educated to the maximum extent appropriate alongside nondisabled peers).
. Moreover, the ALJ incorrectly required the family to justify reimbursement for
each component of the educational program with which they replaced the District’s
inadequate offer. Having rejected the District’s offer, the family is entitled to reimbursement
if the program it selected was itself proper. The evidence overwhelmingly supports the
conclusion that the combination of community preschool with aide and ABA home program
provided to Ka.D. in place of the District’s offer was in all ways sound and beneficial.
Nothing in IDEA requires parents presented with a blatantly inappropriate and overly
restrictive service offer to “mitigate damages” by discerning what pieces of a district’s offer
might be defensible, and to plan their child’s program and schedule around accessing that
specific component.
. The ALJ also improperly fashioned the remedy provided so as to leave KaD., in
the event of a subsequent dispute, with no appropriate “stay-put” placement. Concerned
with the state statutory prohibition against an ALJ ordering placement in a school that is not
a state-certified non-public school, the ALJ, rather than ordering placement in a classroom
with the necessary features (as she attempted to do in making a specific description of the
type of aide to be provided), ordered reimbursement but declared the placement for which
reimbursement was offered not to be the “stay put” placement. In fact, the question of
whether the placement for which reimbursement is offered becomes the stay put placement is
determined by federal law, and the ALJ had no authority to override this protection.
. Throughout the decision, the ALJ’s conclusions and findings that are adverse to
Plaintiffs are incorrectly decided and are contrary to the evidence presented during the
hearing. |
. The ALJ’s findings, conclusions and orders were completely inconsistent with the Page 15 PR WwW WN
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overwhelming evidence that the District predetermined that it would not provide Plaintiff
with placement at a community preschool and would not provide her a home ABA program.
In fact, Nest made clear to Plaintiff Ky.D. that she knew that the District’s offer would not
include the community preschool or a home program well in advance of the IEP meeting.. Although Nest clearly informed Plaintiffs prior to the relevant IEP meetings, that
the options she believed the parents were likely to request would not be offered, the ALJ
incorrectly concluded that the parents were provided sufficient “participation” in the IEP
process. The ALJ appears to have misapplied the burden of proof, noting that the family
failed to provide “compelling” evidence of predetermination even though the preponderance
of the evidence standard was applicable, and even though the Supreme Court has made clear
. that the rule in IDEA cases that filing parties have the burden of proof is merely a
procedural default rule to be applied in cases of evidentiary equipoise.
. Although the evidence clearly indicated that Ka.D. has been able to successfully
participate in general education preschool with supports in the form of a one to one
classroom aide and a quality ABA home program consistent with sound research, the ALJ
failed to acknowledge the role the ABA program plays in Ka.D.’s successful inclusion with
nondisabled peers and incorrectly concluded that the admittedly less qualified District staff
and its approach which lacked a research basis were sufficient. Additionally, the ALJ
incorrectly concluded that the District’s ABA program was not shown to lack research bases.
. The ALJ made numerous other factual and legal errors, as well generally ignoring
inconsistencies and contradictions in District staffers’ versions of events, indulging
unwarranted inferences in favor of the District, ignoring and in many cases excluding the
great weight of published research supporting Plaintiff's claims, and misapplying IDEA’s
standards. |
_49. Rather than ensuring that continuous aide services and a smooth transition occur,
OAH failed to require an essential service (the one-to-one aide) for a month following the
decision. The District, for its part, did not voluntarily supply the service in the interim,
although the ALJ had determined it to be necessary for Ka.D.’s successful participation inPage 16 _ Ww
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her preschool environment, and delayed transition planning to the maximum extent allowed
by OAH’s order, predictably resulting in failure to complete the transition planning process
within the 30 day gap period mproperly created by OAH. Moreover, during the period from
the end of the due process hearing until the present, the District has refused to include or
solicit input from Coyne & Associates in planning the transition ordered by the ALJ,
creating a plan with no input on Ka.D.’s present levels, current needs or potential problems
that could arise as the district transitions from Coyne support to the District’s. When the
parent requested that Coyne be included, Nest refused to pay for any Coyne involvement in
the IEP to plan the ordered transition.
. The ALJ incorrectly concluded that Ka.D.’s mother was not entitled to
compensation for her time supplementing her in-home ABA program. Ky.D. was not merely
participating in her child’s therapy in the manner of “parental participation” models but
was providing skilled services an NPA would have provided if funding had been available.
Nor was the therapy Ky.D. provided in excess of Ka.D.’s needs.
. The District has failed even to comply with the portions of Ka.D.’s IEP on which
there is agreement, the speech and occupational therapy programs. The District failed and to
some extent refused, until after a formal complaint was lodged with the California
Department of Education, to comply with the speech and OT provisions of Ka.D.’s IEP.
. The hearing officer gave insufficient weight to the procedural dimensions of the
District’s failures with respect to Ka.D, viewing it as sufficient that family members were
allowed to speak and irrelevant that their statements were rarely answered and had no
bearing on the District’s decision making. In fact, the record reveals IEP “discussions” in
which the District staff members allowed the family to voice their wishes but in which the
family’s proposed placement was never really on the table. The attempt to circumvent the
IEP process and come to agreements outside of the process had real, harmful effects for
Plaintiff. The program envisioned in the District’s “informal mediation” scenario was not
one which would have been developed by an IEP team, it would not necessarily have
included stay put protections so that Ka.D. could continue to receive publicly funded services Page 17 NY NnNno Wn +S WW WN
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in the event of future disputes, and it reflected the District’s negotiating posture rather than
Ka.D.’s needs or her or her parents’ rights under state and federal law.
. The hearing officer drew conclusions about Ka.D.’s’s needs and options which
were not supported by the evidence.
. The ALJ’s finding that the District properly assessed Ka.D. was factually
incorrect. Clearly, the District’s assessment failed to identify the appropriate placement for
Ka.D.. Moreover, the ALJ improperly raised and adopted criteria based on objections to
Dr. Bailey’s assessment that the Distrtict had not articulated to the family.
CLAIMS FOR RELIEF
—COUNT ONE—
Individuals with Disabilities Education Act
and Implementing California Statutes-Attorneys’ Fees
. ‘Plaintiff realleges paragraphs | through 53.
. The educational opportunity created by IDEA is protected by an administrative
hearing and judicial process that is available to a parent or student dissatisfied with the
identification, assessment, or educational program offered by the local educational agency. U.S.C. § 1415. A student who prevails in such administrative hearing is entitled to an
award of attorneys’ fees.
. Plaintiff has largely prevailed in the due process proceeding involving OAH Case
Nos. N2007070255 and N2007090146 and is entitled to an award of attorneys’ fees as
prevailing party in that matter and for attending the transition IEP meeting which resulted
from that proceeding, and to such attorneys’ fees as may be necessary to secure the
underlying award of attorneys’ fees. The District has failed and refused to pay the fees
incurred in this matter.
—COUNT TWO—
Individuals with Disabilities Education Act
and Implementing California Statutes-Appeal of Administrative Decision
. _ Plaintiff realleges paragraphs 1 through 56.Page 18 bh BW N
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in
personal relations, in an amount to be ascertained according to proof at trial.
. Asa direct and proximate result of the actions and events described above,
Plaintiffs have suffered injuries including pain, suffering, humiliation, anxiety, mental
anguish, and emotional distress, all in an amount subject to proof at trial.
. Plaintiffs were forced to hire counsel to represent them in this matter and have
incurred attorneys’ fees and costs, and if they prevail they are entitled to their reasonable
attorney fees pursuant to 29 U.S.C. § 794a(b).
—COUNT FOUR—
Violation of the Americans With Disabilities Act (ADA)
. _— Plaintiff realleges paragraphs 1 through 65.
. The Americans with Disabilities Act prohibits discrimination based on disability.
It also prohibits retaliation, coercion or threats against people who engage in protected
activities under the ADA.
. Defendants’ acts described above which were inflicted upon Plaintiffs violate the
"Americans with Disabilities Act and its implementing regulations.
. Asadirect and proximate result of Defendants’ violation of the ADA, Plaintiffs
have suffered and continue to suffer injuries. |
. As a direct and proximate result of the actions and events described above,
Plaintiffs have suffered injuries including pain, suffering, humiliation, anxiety, mental
anguish, and emotional distress all in an amount subject to proof at trial.
. Plaintiffs were forced to hire an attorney to represent them in this matter and
have incurred attorneys’ fees and costs, and if they prevail they are entitled to their
reasonable attorney fees pursuant to the ADA.
—COUNT FIVE—
Injunctive Relief. Plaintiff requests that this Court enter a preliminary injunction ordering that Ka.
D. remain in the last agreed-upon educational placement for the pendency of this litigationPage 20 \oO oo ~I ON wn SS Ww Ne
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(in effect, that it provide the “stay put" rights which would have been clearly available
pursuant to 20 U.S.C. § 1415(j) but for the ALJ’s specific indication that her decision created
no stay put rights). Because the hearing officer’s determination that Ka.D.’s placement in
her community preschool was reimbursable it constitutes an agreement between the state
and Plaintiff as to that placement, Ka.D. is entitled to the continuation of the placement for
which reimbursement was ordered pending the final outcome of this judicial action, absent
contrary agreement of the parties. Such an order would place the parties in appropriate
bargaining positions as Ka.D. approaches her critical kindergarten year. In the absence of
such relief, the District may again insist that if Ka.D.’s parents want special education
services, these will only be provided in a program which is overly segregated and/or
fragmented and full of unnecessary and detrimental transitions.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that this Court enter judgment on her
behalf and enter preliminary and permanent injunctive relief and declaratory relief as follows:
. Reverse OAH’s findings as to Issues 1A, 1B, 1C, IF, and Issue 2.
. Order the District to provide Ka.D. a quality, research-based home ABA program,
reimbursement for Ky.D. for her hours spent working as Ka.D.’s tutor, payment for the cost
of Dr. Caroline Bailey’s Independent Educational Evaluation, compensation for any costs or
missed services due to the gap in service, and compensation for the adverse impact on family
medical benefits of the diversion of such coverage to fund necessary educational services for
Ka.D.
. Order the District to reimburse any costs the family has borne and compensate
any providers which have yet to be compensated or which provided services which were the
responsibility of SBSD.
, Award Plaintiffs damages in an amount to be determined at trial, including
punitive damages in an amount to be determined according to the proof at trial to deter
Defendants from similarly violating the rights of Ka.D. or other children for whose
educations they are responsible and parents whose rights they are obliged to respect and Page 21 Oo Oo NY WB Wn FS WD NO
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from engaging in similar disability-based discrimination and advocacy-based retaliation with
regard to this family.. Award Plaintiffs costs, disbursements and reasonable attorneys’ fees in the
underlying administrative matter and in this matter, and in this proceeding; and. Grant such other relief as this Court may deem just and proper.
DEMAND FOR JURY TRIAL
Plaintiffs hereby demand a jury trial as to all matters so triable.
Respectfully submitted 4 April 2008, _CH//] Onn noon GAISL
MAUREEN GRAVES
Counsel for Plaintiffs Page 22 . i Page 22 of 70:08-cv-00622-W-BOR Document1 Filed 0004 ae g
MORES 07 of van 2008 | xination ~?949 856 o168 Page 2 of 4g
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
SPECIAL EDUCATION DIVISION
STATE OF CALIFORNIA
In the Matter of: |
STUDENT, OAH CASE No, N2007070255
Petitioner,
Vv,
SOLANA BEACH SCHOOL DISTRICT,
Respondent,
SOLANA BEACH SCHOOL DISTRICT, OAH CASE NO. N2007090146
Petitioner,
v.
STUDENT,
Respondent,
DECISION
day of hearing held on November 19, 2007, at the offices of the Solana Beach Schoo! District
in Solana beach, California, ! The hearing was Open to the public, at the request of Student’s
parents,
cee
' The hearing was originally scheduled to begin on October 22, 2007 Due to the fires in San Diego
County, the hearing was Postponed a weekPage 23 4/ag@8 Page 23 of 70
Student filed a request for due process on July 10, 2007. The District filed a request
for due process on September 7, 2007. The District’s unopposed motion to consolidate the
{wo cases was granted on September 14, 2007. Applicable timelines for the cases were
deemed to begin running from the date the District's due process request was filed. At the
due process hearing, the ALJ received Sworn oral testimony and documentary evidence. At
the conclusion of the hearing, the parties agreed that the record would remain open in order -
ISSUES?
, Whether the District denied a free appropriate public education (FAPE) to
Student for the 2007-2008 school year and 2008 extended school year by:
A. Predetermining its offer of placement and related Services.
B. Failing to consider all relevant data concerning Student, including input
from her parents, before making an offer of placement and related services,
C. Failing to offer an applied behavior analysis (ABA) therapy program
that meets Student’s unique needs because it js not scientifically based and supported
nr
” During the hearing, Student withdrew as a separate issue her contention that the District denied her a
FAPE by failing to ensure Dr Laura Schreibman’s presence at all of Student's individualized educational plan team
Meetings during the time in question. Additionally, Student orginally raised the issue, in her complaint and at the
consultation between its staff and Student’s present providers of applied behavioral analysis services ts insufficient.
This issue is therefore not addressed in this decision, Finally, the issues have been restated in accord with the
evidence presented at hearing and the arguments offered by Student in her briefsPage 24 iled 04/04/28 Page 24 of 70
by peer-reviewed research, to the extent practicable, is not offered in a home
environment, and fails to Provide a sufficient amount of therapy hours.
D, Offering a placement for a portion of Student's school day ina special]
day class that does not incorporate adequate ABA Principles, fails to include peers
with compatible instructional needs, and which is not the least restrictive environment
for Student.
E. Offering a placement ina District genera! education classroom fora
portion of Student's school day thatis an inappropriate instructional setting for her
and whose addition to Student’s Program creates a school day that includes too many
transitions between classroom settings,
F. Failing to provide staff capable of implementing the individualized
educational plan (IEP) offered by the District.
. Are the District's assessments of Student with regard to her educational
placement appropriate and, if not, is Student entitled to reimbursement from the District for
the independent assessment conducted by Dr. Caroline Bailey?
REMEDIES SOUGHT BY STUDENT
Student seeks District funding of 34 hours per week of direct ABA therapy,
through her present provider, Coyne & Associates (Coyne), with the hours to be divided
between student’s private preschool, her home and in the community. Student also seeks 16
hours per month of ABA supervision, also through Coyne, and payment for two hours per
month of ABA clinics, attended by Student's educators, aides, and ABA providers. Student
also seeks reimbursement to her mother for time her mother Spent providing ABA therapy to
Student in their home. Student also seeks reimbursement for the cost of her tuition at the
Hanna Fenichel preschool for the 2007-2008 school year, which has already been paid by her
parents, along with an order for prospective placement at Hanna Fenichel with one-on-one
aide support from Coyne for all hours Student is in attendance, for the remainder of the-2008 school year. Finally, Student seeks reimbursement for the services provided by
Dr. Bailey, including her observations, time Spent researching and reviewing Student's
records, and time spent Preparing her report.
CONTENTIONS OF THE PARTIESPage 25 Filed Ce Page 25 of 70
Case 3:08-cv-00622-W-BOR Document 1
Monday, 07 of Jan 2008, ination ->949 856 0168 Page 5 of 48
Student contends that the District committed procedural violations of the reauthorized
Individuals with Disabilities Educational Act (IDEA) during the IEP Process by
predetermining her placement in the District's preschool and predetermining that Student no
longer required that her present amount of ABA services continue in her home. Student also
Services, and failed to offer a program that is scientifically based and supported by peer-
reviewed research, to the extent practicable. Student further contends that the IEP offer is
substantively defective because it fails to meet her unique needs. Student contends that the
District's offer does not include provision for sufficient direct ABA? instruction, fails to
ronment (LRE) for her.
She also contends that the offer of placement in the District's general education classroom
for the other portion of Student’s school day is inappropriate due to the structure of the class
and, in particular, the amount of students in it. Student further contends that District staff is
for the services of Dr. Caroline Bailey, including all time spent on observations, review of
records, research, and for preparation of Dr, Bailey's extensive report.
The District contends that it did not commit any procedural or substantive violations
ofthe IDEA. It asserts that the evidence fails to support Student’s contention that the
rr
As explained by District expert Dr. Laura Schreibman, ABA, as an intervention for the treatment of
autism, is oflen associated with specific behavioral methods, such as: discrete trial training (DTT), intensive
behavioral intervention: incidental teaching; prvotal response training; and verbal behavior analysis. A discrete trial
1s a single cycle of a behavioraily-based instruction routine. A particular trial may be repeated several times in
succession, several times a day, over several days (or even longer) until the skill is mastered.
The method and technique of ABA therapy requires that targeted behaviors be reduced to their most basic
elements, and that the child is then trained by repetitious drilling in the redirected behaviors desired. Contextual
factors, established operations, antecedent stimull, positive reinforcers, and other consequences are used, based on
identified functional relationships with the environment, in order to produce practical behavior change. Negative
behaviors are generally ignored. Prompts or other assislance are timed and provided to assure Correct responses, and
then gradually “faded” to establish independence The child is then urged to repeat each task until it has been
leamed. Overall, the treatment focuses primarily on developing language, increasing social behavior, and promoting
cooperative play with peers along with independent and appropriate toy play, Concurrently, substantial efforts are
directed at decreasing excessive ntuals, tantrums and aggressive behaviorPage 26 se 3:08-cv-00622-W-BOR Document1 Filed 08/04 ge Page 26 of 70
wordy 0? of Jan 2008, xination ~>949 856 0168 Page 6 of 48
failed to disagree with the assessments conducted by the District, a Prerequisite to their
entitlement to an independent educational evaluation (IEE). In the alternative, the District
offers that its assessments all met appropriate legal standards. The District therefore denies
that it violated Student's rights under the IDEA or that she is entitled to any of the remedies
she has requested.
FACTUAL FINDINGS
Background Information
. Student's parents and grandparents started noticing that Student was failing to
develop appropriately when Student was around two years old. They noticed that Student's
eye expression was “flat.” Student was not showing any interest in talking, was not
babbling, as would a normal child, had no eye Contact, and showed no interest in others.
Student's medical providers diagnosed her with severe autism and referred Student's parents
noted that Student failed to interact with others, engaged in minimal eye contact with others,
failed to respond to basic commands or to her name, would run out of the house, exhibited
some aggressive behaviors, was Prone to tantrums, and exhibited some stereotypical autistic
behaviors, such as spinning and hand movements. The Regional Center found that Student's
educational needs were severe and that her behavioral needs were moderate. The Regional]
Center contracted with Coyne, which is certified by the state of California as a non-public
agency (NPA) to provide the ABA services to Student,Page 27 Monday. 07 of Jan 2008, ination ->949 856 0168 Page 7 of 48
. Once Student was diagnosed with autism, her mother became an active
Participant in researching information and treatments on autism and personally learning
techniques which Student's mother could implement herself with Student. Mother’s research
On the internet in the summer of 2005, led her to the Brent Woodall Foundation.’ The
foundation evaluates children for autism and recommends treatments and sources of
assistance for parents. Tracey Woodall runs the Foundation, which is based in Texas,
Student and her mother flew to Texas in August of 2005, Ms. Woodall administered the
Assessment of Basic Language and Leaming Skills to Student to assess Student’s present
developmental levels and to assist In educational planning for Student. The assessment
observations of Student indicated that she was able quickly to acquire tasks that did not
require language comprehension. The assessment also indicated Student had profound
receptive and expressive language delays and that Student did not then possess any
functional social skills. Student also demonstrated delays in Self-help skills, as well as self-
stimulatory behaviors stereotypical of autism, such as wiggling her fingers.
, During the four days Student and her mother were in Texas, the Woodall
Foundation provided Student with 32 hours of ABA therapy and provided Student’s mother
with intensive parent training. Student responded extremely well to the therapy, progressing
more in the four days than expected. Ms. Woodall recommended that Student receive at
least 30 hours per week of one-on-one direct ABA therapy services,
, Although the Regional Center did not agree to fund the 30-hour a week
Program recommended by Ms. Woodall, it did contract with Coyne to provide approximately hours a week of in-home ABA services to Student starting in September 2005. Except for
the number of recommended hours, the Coyne services mirrored the recommendations made
by Ms. Woodall. Coyne provided a parent training component as well. Within a short time
after the Coyne services began, Student’s mother noted a marked improvement in Student’s
behavior and development. ,
. The Woodall Foundation administered another set of assessments to Student in
December 2005. The assessment noted that in the four months or so that Student had been
receiving ABA services, Student's speech and language skills had progressed exceptionally
well, rising in just four months from profoundly severe to moderately severe.
. Planning for Student’s transition from early start services to educational
Services to be provided by the District occurred in the spring of 2006. Prior to the meeting,
Student was assessed by the District in the areas of psycho-motor developmenv/perceptual
function, language/speech/communication development, cognitive functioning,
rr nn
* His widow, Tracey Woodall, founded the Brent Woodall Foundation in his memory after he was killed in
the World Trade Towers on September 1], 2001. Student's mother was drawn to the website because she had
known Brent Woodall in college.Page 28 Monday:07 of Jan 2008. ination ->948 856 0168 Page 8 of 48
social/emotional adaptive behavior, and health. Coyne also did its own Psychological
assessment of Student about the same time the District conducted its assessments of her, as
part of the Regional Center’s ongoing provision of services to Student.
. Student’s initial IEP with the District was held on March 31, 2006. The IEP
team noted that Student was highly responsive to a structured environment. She was
beginning to show strong pre-academic skills (she was able to count to 12), and could answer
However, the assessments indicated, and the IEP tcam agreed, that Student demonstrated
significant deficits in the areas of receptive, expressive and pragmatic language. Student
communicated primarily using one-word utterances and she often Spoke jargon and engaged
in echolalia. ® Although Student was approximately 34 months old at the time she was
the ages of 15 and 16 months. Ata level of between 20 and 2] months, Student’s expressive
vocabulary was also significantly below her actual age level. Student also demonstrated
significant social/emotional deficits, The JEP team noted that she felt overwhelmed in large
groups and would withdraw. Student continued to demonstrate fleeting and limited eye
contact, and was noted to withdraw during group activities with peers. The IEP team also
noted that Student's diagnosis of autism caused the indicated delays in communication and
social skills and that Student was currently unable to acquire new skills through observation
Or group instruction,
. As a result of Student’s assessments and discussions with the IEP team on
March 31, 2006, the District offered Student the following placement and services:
placement in a District special day class for 240 minutes a day, 120 minutes of which would
be individualized direct instruction; individualized direct instruction for an additional two
hours per day, five days a week; speech and language services three times a week for 30
minutes each session; and occupational therapy/speech Broup one time a week for a 45.
minute session. The District also proposed up to 25 hours of consultation between Coyne
and District staff to transition Student’s ABA program to the District. Student’s parents
S present levels of performance, and
With most of the goals developed for her. However, they did not agree with the District’s
Proposed placement and proposal for Provision of ABA services, Specifically, Student's
parents believed that Student did not belong in a SDC and believed that Coyne should
continue providing ABA services to Student in theirhome.
. Coyne referred Student's parents to the Hanna Feniche] preschool. Hanna
Fenichet is a community preschool serving typically developing preschool students. The
state of California has not certified it as a non-public school (NPS). Student’s parents were
re
* On April 21, 2006, the Regional Center found that Student continued to be ehgible for its services.
* American Heritage Dictionary defines echolalia as the immediate and involuntary repetition of words or
phrases just spoken by others, often a symptom of autism.Page 29 f 70
:08-cv-00622-W-BOR Document 1 Filed 1 Page 29 0
Case 3
Monday 07 of Jan 2008, ination ->949 856 0168 Page 9 of 48
very impressed by the school and decided that they would enroll Student there beginning in
the fall of 2006, They also filed a due Process complaint against the District based upon their
disagreement with the placement offered by the District. The Parties settled the due Process
complaint in the summer of 2006. By the terms of the settlement, which covered the 2006- school year, Student received a total of 25 hours a week of ABA services to be
provided by Coyne. The 25 hours consisted of 19 hours a week of direct instruction in
Student's home and six hours per week of a one-on-one aide for Student while she attended
Hanna Fenichel two days a week. The settlement agreement also provided for supervision of
the ABA program at home and at Student's preschool, Additionally, Student received two-minue sessions of speech and language therapy at the District Preschool site as well as an
hour a month of occupational therapy consultation between Student’s mother and a District
occupational! therapist. At hearing, the parties did not enter into evidence this settlement
agreement. It is also unclear from the testimony at hearing exactly who funded the
placement and services.
]. After signing of the settlement agreement, Student’s parents had little contact
with the District until February 16, 2007, when Student's IEP team first met to begin the
process of developing the IEP for Student's 2007-2008 school year. The JEP team held
meetings on February 16, 2007, May 11, 2007, and June 13, 2007. It is the offer made to
Student by the District as a culmination of these meetings, the events leading to that offer,
and observations conducted of Student to help the District determine its offer, which form
the basis of the complaints that are at issue in this hearing.
Procedural Violations That May Constitute a Denial Of FAPE
. Aschool district must comply both Procedurally and substantively with the
IDEA. While not every procedural flaw constitutes a denial of FAPE, procedural flaws that
constitute such a denial. A school district may commit a procedural violation of the IDEA if
It comes to an IEP meeting without an open mind and several options to offer for discussion
with all team members, or refuses to consider the input of a student’s parents or other
relevant data her parents may have. A district fulfills its obligation in this regard if it does
suggest different potential placements, and discusses and considers any suggestions and/orPage 30 Monday 07 of Jan 2008, - ination ->849 856 0168 Page 10 of 48
Predetermination of Educational Placement
. Student contends that the District had already predetermined to place her in a
. The JEP team considered the meeting the parties held on February 16, 2007, to
be a “pre-meeting.” The main purpose of the meeting was to determine which assessments
the District would administer to Student and to arrange observations of her. At this meeting,
the District prepared an assessment plan for Student that included forma! assessments in the
areas of speech and language and vision, observations of Student and a review of her records,
by a District behavior specialist and school psychologist, and by an outside evaluator,
Student's mother signed agreement to the assessment plan on February 19, 2007; she later
added that she was also requesting a Social/emotional and adaptive behavior assessment.
. Jodie Reise, a behavior specialist for the District, observed Student for an hour
at her preschool on March 13, 2007. At school, Ms. Reise observed that Student would play
alongside her peers but did not initiate play herself. Her one-on-one aide facilitated al! her
interaction with peers, Student did not comply with her teacher's Prompts to go to circle
time; she responded when prompted by her aide. Ms. Reise observed that Student did not
respond to questions specifically on topic and did not always use complete sentences in her
responses, However, Student was quiet and attentive during the circle time. Ms. Reise also
related services for Student.
. Ms. Reise then observed Student at Student’s home for two hours on March, 2007. Ms. Reise noted that Student engaged in a significant amount of imaginary play at
home, used pronouns in her speech, and answered “who, what, where” type of questions
when asked by her one-on-one ABA aide who was giving Student a session during Ms.
Reise’s observation. The aide also worked with Student on recalling detailed information.
Ms. Reise noted that Student knew all the upper case letters and was working on leaming the
lower case letters. Student was attentive while listening to a story and answered questions
about it that her aide posed to her. Ms. Reise observed that Student could rote count to 15,
could answer social questions, such as ones about her parents’ names, and could identify
some words by sight. Ms. Reise’s observation notes of Student while at Student's home also
did not make any recommendations concerning Student's educational placement or provision
of related services.Page 31 Monday ‘07 of Jan 2008, ination ~>?949 856 0168 Page 11 of 48
. Dr. Laura Schreibman, a distinguished professor at the University of
California, San Diego, who is an autism specialist and was the District’s outside evaluator,
observed Student for approximately two hours at her preschool on March 22, 2007. Schoo!
psychologist Sharon Loveman observed Student for an hour and a half at her school on April, 2007, and for an hour and 45 minutes at Student’s home on April 19, 2007. Ms. Reise and
Ms. Loveman hand-wrote their observations but did not make any specific recommendations
District's general education class was then beyond Student’s capabilities. She also found
that behaviors she observed in Student counseled against continued full inclusion of Student
in her present placement at Hanna Fenichel. Rather, Dr. Schreibman recommended a
placement for Student in the District’s SDC, which also enrolled a number of typically
developing peers along with the special education students. The District provided copies of
all three of these reports to Student’s parents.
. District Schoo! psychologist Sharon Loveman observed Student for two and a
half hours at her preschool! on April 3, 2007. She observed that Student’s general demeanor
was relaxed, happy, engaged and alert. However, Ms. Loveman also noted that Student had
limited interaction with her peers and, while she played alongside them, Student did not
interaction with her peers was limited. With regard to Student's use of language, Ms,
Loveman noted that Student expressive language was limited, although Student did repeat
spontaneously words that she overheard and was able to express emotion and intent. Ms,
Loveman also observed that Student was attentive during circle time, was able to choose
. Ms. Loveman observed Student at Student’s home for an hour and forty-five
minutes on April 19, 2007. Ms. Loveman observed that Student Sought out variation and
new learning experiences at home, refusing to do tasks she had already mastered. Student
had a high stamina for work and play and was socially engaged and curious during the home
observation. Ms. Loveman observed that Student had a strong memory for previously
acquired information and demonstrated an extensive and varied vocabulary as it related toa
dinosaur book. Ms. Loveman noted that Student at times did take a lot of time to respond to
questions, but that Student's expressive language did include the use of adjectives and
pronouns. She noted (as later confirmed by Ms. Reise) that Student’s verbal expression was
significantly more spontaneous at home than at school. Ms. Loveman’s observation notes of
Student at home did not include any recommendations conceming placement or services for
Student.Page 32 Monday 07 of Jan 2008, MPination ~>949 856 0168 Page 12 of 4g
]. After receiving Dr. Schreibman’s letter, as well as the observations of Ms.
Loveman and Ms, Reiss, Ms. Nest discussed Dr. Schreibman’s recommendations with both
Ms. Loveman and Ms. Reiss, as well as with District speech and language pathologist Lisa
Ryder. Her conversations with each took place separately. Ms. Nest asked each if she
believed that Student should remain in her present placement at Hanna Fenichel. Each
expressed reservations about the placement and the level of prompting Student was receiving
at the school, as observed by Ms. Loveman, Ms. Reiss, and Dr. Schreibman. While Ms. Nest
discussed or compared program costs, and never discussed whether the District should refuse
to consider continuing Student’s placement at Hanna Fenichel. Ms. Nest did not direct any
of the staff members to take a particular position on Placement nor did she direct that they
refuse to consider a placement at Hanna Fenichel.
. Coyne also prepared a progress report regarding Student, dated May 1, 2007,
in anticipation of Student's annual JEP. The report recommended that Student continue to
receive 25 to 30 hours a week of ABA-related services, divided between Student's home and
preschool. Most significantly, Coyne recommended that Student’s education be ina fully
included general education class rather than in a SDC, in direct contradiction to the
. Student’s mother agreed with Coyne’s recommendations. Since they were
contrary to the recommendation of Dr. Schreibman, who Student's mother knew to be a well-
. Ms. Whitney telephoned Ms, Nest per the request of Student’s mother. Ms,
Whitney explained what was in the Coyne report, stating that the family wanted to have a
streamlined IEP meeting without surprises. Ms. Nest agreed that there might be
disagreement at the IEP meeting since the parties’ respective consultants had given contrary
recommendations. Ms. Nest did not make any negative remarks about Student’s mother to
Ms. Whitney, their conversation was brief and Ms. Nest thanked Ms. Whitney for sharing the
family's information concerning the Coyne recommendations with her,
with the same level of Coyne services and would refuse to consider placement in a District
classroom, Based upon her conversation with Ms. Whitney, Ms. Nest telephoned Student's
mother. They had a long discussion about the upcoming IEP meeting and about Dr.
NHPage 33 iled 04/04/ Page 33 of 70
District staff had expressed concerning possible placement for Student.
. Student's mother believed that Ms. Nest’s conversation with her indicated that
the District would not consider a placement at Hanna Fenichel. She called Ms. Whitney to
voice her concerns and, ultimately, wrote to the District's Superintendent to express her
concern that the District had predetermined Student's placement for the following’ schoo!
year. The Superintendent never responded to the letter. Ms. Nest did not discuss options for
Student's placement with the Superintendent.
, Concerned about the tenor of the conversations between Student’s mother and
Ms. Nest and the concern of Student's mother that the IEP meeting would be a charade, Ms.
Whitney contacted Ms. Loveman to set up a meeting prior to the scheduled IEP meeting.
Ms. Loveman agreed that a meeting would be helpful to try to restore trust and confidence
between Student’s mother and Ms. Nest. Ms. Loveman hoped that this meeting would make
the following day’s IEP meeting more productive.
. = The meeting took place at the District’s offices on May 10, 2007, and lasted
approximately 30 minutes. Present were Student's mother, Ms. Whitney, Ms. Loveman, Ms,
Ryder, and Ms. Nest, Student’s mother expressed her concerns about the District following
nor did it alleviate any of the concerns Student's mother had that the District had
predetermined Student's placement for the upcoming school year.
. The IEP team meeting took place as scheduled on May 11, 2007. Present at
the meeting were Student’s mother, Coyne & Associates ABA Supervisor Jessica Korneder,
Hanna Fenichel schoo! Director Sarah Hillier, vision specialist Amy Nangel, and Student’s
attomey Maureen Graves. Also Present were Regional Center educational consultant Jane
Whitney, District school psychologist Sharon Loveman, Child Development Center Director Page 34 08-cy-00622-W-2OR Document1 Filed 00 Page 34 of 70
‘08-cy- _W-
ree oF “ean 7008, @inaisc ~?949 856 0168 Page 14 of 4g
District Director of Pupil Services Mary Ellen Nest, District Preschool SDC teacher Tracy
Allison and occupational therapist Karen Peterson, District consultant Dr. Laura Schreibman
Joined the meeting about an hour after it started,
. The team reviewed Student’s present levels of performance (the review had
begun during the previous eeting on February 16, 2007) and Student's goals. Student's
mother had Previously met with Ms, Ryder, the Speech and language pathologist, to draft
, The JEP team Spent a considerable amount of time during the meeting
reviewing Coyne's Progress report of Student and the observations of Student by Ms. Reise,
Ms. Loveman, and Dr. Schreibman. Hanna Fenichel Director Ms. Hillier reviewed Student's
Progress at the preschool and the impressions the Hanna Fenichel staff had of Student. The
meeting lasted almost three hours; much the meeting discussion focused On Student’s
progress, present abilities, and, significantly, what type of placement Student needed in order
to make further progress in her education. Student's mother spoke for very long interludes
On what she saw as Student’s Progress, abilities and needs for the upcoming schoo! year.
Ms. Reise and Ms. Loveman discussed their observations of Student and their concerns that
Student was not able to initiate social interactions at school and their concerns that Student's
expressive language at school continued to be underdeveloped,
. After Dr, Schreibman arrived at the meeting, the team focused on her report
and recommendations, Dr. Schreibman was concerned that Student was stil! exhibiting
perseverating behaviors. For example, she had observed Student’s fixation with one type of
play and her lack of Spontaneous play with other students. Dr. Schreibman also expressed
her concern, as indicated in her observation report, that Student was not directing language at
another person; Dr. Schreibman had observed Student talking to the wall. Dr. Schreibman
believed that these behaviors of Student needed to be extinguished, and believed that a SDC
was the best environment for doing so. She strongly felt that Student should not continue in
a fully included classroom, Rather, Dr. Schreibman believed that Student’s appropriate
placement was in the District’s preschool SDC, although she anticipated that Student would
eee
” The Child Development Center (CDC) is a semi-autonomous unit within the District. }t is a self.
Supporting fee-for-services preschool open to the public. There is no requirement that a student must be a District
resident to attendthe CDC CDC employees are District employees, although the CDC js funded from student
enrollment fees. The District's Beneral education preschool classes are inthe CDC. The District's preschool SDC
classes, however, arc operated outside the CDC under direct District control. Children with special education
eligibility whose [EP teams place them ina CDC class do not have lo pay the enrollment feesPage 35 4/04/2008 Page 35 of 70
soon be able to transition to a general education class if it had a smal! number of students in
it. Dr. Schreibman did indicate, however, that she believed a Possible placement for Student
that Student’s interactions with Peers was increasing, that she was requiring less prompting
from her aides, that her language abilities were increasing, and that she was functioning well
in the general education inclusive environment at Hanna Fenichel,
. Dr. Schreibman had to leave the IEP meeting before it concluded. After she
left, the team members spent the majority of the remaining meeting time reviewing and
Constructing Student’s goals and objectives. The IEP team agreed on Student's goals.
However, the IEP team did not reach any decision regarding Student’s educationa! placement
for the next year and did not spend more than incidental time discussing Student’s need for
. Based upon advice of legal counsel, the District decided to hold another
formal IEP team meeting to present its offer of placement and services to Student’s mother
rather than to submit the offer by mail. The meeting took place on June 13, 2007. Present
were Student's mother and her attorney Ms. Graves, Dr. Len Levin (the Coyne Clinical
Director), Jessica Korneder from Coyne, Ms. Whitney, Ms. Loveman, Ms. Blackwood, Ms.
Ryder, Ms. Allison, Ms. Nest, and Jonathan Read, attorney for the District. No one from the
team invited Dr. Schreibman to the meeting.Page 36 iled 04/04/2808 Page 36 of 70
Case 3:08-cv-00622-W-BOR Document 1 Filed ~@
Monday .07 of Jan 2008, ination -2949 858 0168 Page 16 of a8
daysa week. Student would then transition toa District general education preschool class,
where she would spend two hours a day, four days a week, accompanied by a one-on-one
aide, The District also offered to provide Student with one-on-one ABA therapy at the
District school site for two hours a day, five days a week. The District also offered Student
two 45+ minute sessions a week Of speech and language therapy, one 60-minute session of
8roup social skills a week, and one 60-minute occupational therapy consultation per month.
The District noted that the SDC was actually composed of approximately seven Special needs
children and five typically developing children so that Student would be educated with
typical peers for most of her day.
. The District's offer differed from the offer made to Student the previous year
in a number of ways. Foremost, it divided Student's time in a classroom equally between a
SDC and a general education class. It provided for a one-on-one aide to accompany Student
in the general education class. The offer also included a group social skills class that the
did not consist of a full placement of Student in an SDC; rather, the District based its offer
upon consideration of al] recommendations concerning Student. District staff sincerely
believed that they considered all input and considered al] of Student's needs, and believed
that District classrooms could meet those needs ®
a eee
* The District's offer of speech and language services, Occupational therapy consultation, and group social
skills session, is not at issue. Page 37 8-cv-00622-W-BOR Document 1 Filed 000 Page 37 of 70
ase 3:0 ; of Jan 2008, ination ->999 856 0168 Page 17 of 48
ay
. Especially credible was the testimony of school psychologist Ms. Loveman.
By the time she testified at the hearing, Ms. Loveman had retired. Therefore, any bias or
loyalties that may be argued to influence staff members presently employed by the District
could not be attributed to Ms. Loveman. Additionally, and significantly, Ms. Loveman had,
and has, a long-term personal relationship with Student’s family, extending to when
Student’s mother was a small child. Ms. Loveman therefore had no reason to temper, color,
or change her recommendations to please the District at the JEP meetings or any reason to
color her testimony at hearing. If anything, her long-term personal relationship with
Student's family would argue for an inference that Ms. Loveman would be more apt to want
to skew her recommendations toward the desires of Student's family.
. Ms. Loveman, however, gave credible testimony that her recommendation that
Student required a SDC placement for at least a portion of her school day, was based upon
her observations of Student as corroborated by the observations of Ms. Reise and Dr.
Schreibman. Ms, Loveman specifically stated that the District's offer was not
Predetermined. The weight of the evidence supports this contention with regard to the
District's offer of educational placement for Student.
. Neither does the evidence support Student’s contention that the District failed
to consider input from Student's mother, from Coyne, or from any other source, before it
As previously stated, Hanna Fenichel is not a certified NPS. However, there was no mention by the
District at any of the IEP mectings or testimony by District staff at the hearing that the lack of NPS status was the
reason the District did not offer to place Student there Page 38 Monday -07 of Jan 2008, ination ->949 856 0168 Page 18 of 46
the IEP meeting. Third, the evidence indicates that District team members did not all
inittally have the same recommendation for placement and that a District did not develop a
. The weight of the evidence substantiates the District's position that Student's
mother, educational advocate, preschool Director, and ABA providers were able to
participate meaningfully in the JEP Process. The District team members fully considered al!
comments and recommendations at all IEP meetings these individuals attended. They all
asked questions, gave their opinions, voiced their concerns, and gave general input to their
belief that Student did not belong ina SDC placement. There is no credible evidence, other
than the fact that the District ultimately offered a placement at one of its own schools, that
the District prevented Student or her representatives from meaningfully participating in the
JEP process.
ts the fact that the District offered Student a placement at a District elementary school rather
than at Hanna Fenichel, However, the fact that the District ultimately believed that its
program offered a FAPE to Student and that, therefore, it need not offer Student a placement
al a private preschool does not compel the conclusion that the offer was predetermined.
. Student has failed to produce persuasive evidence that the District
predetermined her educational placement prior to the June 13, 2007 IEP team meeting. No
procedural violation occurred.
, The analysis concerning the District’s offer to Student of ABA therapy for 10
hours a week at the District schoo! site, results in the same conclusion concerning whether
that portion of the District’s offer was predetermined. A review of the record of the IEP
team meetings!” indicates that there was meaningful discussion of Student’s need for
intensive one-on-one ABA therapy and discussion between the parties as to where the
therapy should occur. The parties specifically discussed the recommendations made by
$e
° The ALJ listened to the full recording of both meetings.Page 39 i 39 of 70:08-cv-00622-W-BOR Document 1 Filed 00/08 Page |
MonaaS 3 of Jan 2008, ination ->948 856 0168 Page 19 of 48
Coyne. Student's mother stated that Coyne recommended that Student continue to receive a
total of 30 hours a week of ABA services.'' She clarified that the ABA services at home
would significantly decrease the following schoo! year while there would be 4 corresponding
increase in school ABA services since the time an ABA aide would accompany Student to
school would increase.
concerns about what they considered appropriate for Student's ABA therapy and no evidence
that discussion was stifled. To the contrary, Student’s mother Spent considerable time
Voicing her opinion as to what she thought was proper leve] and type of services. Although
Services or that school officials higher UP in school hierarchy had instructed either Ms. Nest
or other schoo! staff that in-home services should not be considered.
. ° Both Ms, Loveman and Ms. Reise had observed Student at home during ABA
therapy sessions. Both noted that Student's language was more expressive and better
grammatically at home. Both noted to the IEP team that Student's social skills and responses
to her environment were Stronger at home than at skill. ‘In addition, both believed that
. The core of the disagreement with regard to the ABA services at the JEP
meeting therefore was where the services should be delivered and by whom. The District's
offer of 10 hours of one-on-oné ABA Services corresponded Substantially to the 12 hours
. The weight of the evidence therefore fails to support Student’s contention that
the District either predetermined the amount and location of ABA therapy offered to Student
a
" Coyne's report actually recommends a total of 25 to 30 hours of total ABA services. Page 40 8 Page 40 of 70
at the June 13, 2007 IEP team meeting and or made the offer without considering the input of
Student's mother or the Coyne representatives. There was thus no procedural violation of
Student's right to a FAPE.
Adequacy of the District's Offer of Placement and ABA Services
. Aschool district provides a FAPE to a student if it designs its program or
placement to address the Student’s unique educational needs and provides a Program and
Services reasonably calculated to provide some educational benefit to the Student in the least
restrictive environment. A school district is also required to provide a student with special]
needs a program, including support Services, designed to address the child’s unique needs.
Student’s expressive and pragmatic language in the classroom is still below normal
developmental level although her language is much more expressive when she js conversing
in her home. Student stil! requires the assistance of a one-on-one aide in the classroom to
Prompt Student to follow instructions, to redirect her activities or inappropriate behavior, and
to assist her in initiating interactions with peers. Student also continues to show anxiety
when she is in large Sroup settings such as restaurants and church Sunday school, requiring
family support and assistance to assist her in functioning in these environments.
Inadequate Offer of Intensive ABA Therapy Services. Student contends that she requires approximately 17 hours of in-home ABA
therapy. She asserts that the 10 hours per week of school-site ABA therapy offered by the
District is insufficient to provide her with meaningful educational benefit. Student contends
? Contrast this Standard with the applicable standard under Califomia's Lanterman Developmental!
Disabilities Services Act (Welf & Inst. Code, § 4501 et seq ) which states that “Its the intent of the Legistature that
regional centers assist persons with developmental disabilities and their families in securing those services and
supports which maximize opportunities and choices for living, working, learning, and recreating in the community,”
(Welf. & Inst. Code, § 4640.7.) Page 41 Filed oa/oaiaggs Page 41 of 70
Case 3:08-cv-00622-W R Document 1
Monday .07 of Jan 2008, ination ->948 856 0168 Page 21 of 48
the program should have been offered in her home, which is a more naturalistic Setting for a
four-year-old child. She also contends that the Program offered to her is not scientifically
based and supported by peer-reviewed research as required by the reauthorized IDEA, The
District contends that Student has not met her burden of Proving that the Program it offered
will not provide at least some educational benefit to her.
. The Weight of the evidence does not support Student's contentions. First,
Student presented no evidence, either documentary or through testimony at hearing, that
Student needs some 17 hours a week of on€-on-one ABA services. Indeed, Jessica
Korneder,”’ the Coyne representative Supervising Student’s ABA Program, indicated at the
IEP meetings and at hearing that she believed that Student continued to require a total of 30
hours of ABA therapy. She recommended that the 30 hours be divided between provision of
one-on-one aide services at Student’s school for the time Student participated ina classroom,
and about 12 hours of intensive ABA therapy in Student’s home. With regard to the number
recommended by Ms. Korneder. The District's offer includes 10 hours of one-on-one ABA
therapy and one hour of a facilitated group social skills session (which Student is not
presently receiving) for a total of 11 hours. There is simply no evidence that Student will not
be able to access her education or will be unable to progress in the curriculum with one less
hour of services that that recommended by Ms. Korneder. While additional hours of ABA
certainly might provide additional benefit to Student, the District is not required to maximize
her potential,
. Additional support for the District’s position that its offer of 10 hours of ABA
is sufficient to meet Student’s unique needs is found in the documentary and testimonial
Sessions of imaginative play. Ms. Woodall corroborated the observations of Student’s
mother, stating at hearing Student had made extreme Progress. Dr. Joseph Morrow,' one of
Seren
"’ Ms. Korneder has a Masters degree in Behavior Analysis from Western Michigan University, and is a
Board Certified Behavior Analyst. She has been working al Coyne for about two years and is one of its Regional
Directors. Ms. Komeder has almost 10 years of experience working in the area of ABA, with Increasing
responsibility over the years for supervision of ABA programs,
' Dr. Morrow obtained a Doctorate degree from Washington State University in experimental
psychology. He has spent over forty years working in the area of behavior analysis. He is g professor emeritus at Page 42 8
Monday .07 of Jan 2008, ination -~>949 856 o1 Page 22 of 48
. There is more dispute as to where Student’s ABA services should take place.
Dr. Bailey, '* Dr. Levin,'® Ms. Komeder and Ms. Woodall, all believe that Student’s ABA
services should occur in the home, which they believe is the natural setting for a child of
Student's age. They believe that Student needs to lear at home and then generalize this
knowledge to other settings, such as school. Student points to literature showing that autistic
Students received the most benefit from in-home programs. However, as discussed above,
the standard is not where a student will benefit the most from a particular service. Rather,
the legal standard is whether a student will obtain educational benefit from what a district is
offering. In this case, the evidence Supports a finding that Student will obtain educational
benefit from an ABA Program at a District school site.
. Ms. Reise, the District's behavior specialist, and Ms. Loveman, the District's
school psychologist, both observed Student in her preschool and in her home. Both observed
that Student’s language abilities and social interactions were much more in evidence at home
than at school. Ms. Loveman noted that Student was much more spontaneous and
independent. Because of the discrepancies between Student's demonstrated abilities at home
as compared to school, Both Ms. Loveman and Ms. Reise believe, and the evidence
substantiates, that Student will benefit from moving her ABA instruction to the school
setting. The evidence supports the District’s contention that Student will benefit from
learning to generalize her abilities to the school setting rather than continuing to concentrate
on the home setting where she shows greater competency. This is especially true since the
stated goal of Student’s mother, her experts, and Coyne is to prepare Student for full-
inclusion in a general education Ki ndergarten for the 2008-2009 school year,
. Student also contends that the ABA program offered by the District is not
scientifically based or supported by peer-reviewed research. First, the District in its closing
brief correctly points to the United States Department of Education’s commentary to the new
federal regulations implementing the reauthorized IDEA, That commentary states “(T]here
California State University, Sacramento, a licensed psychologist, and a Board Certified Behavior Analyst. Dr.
Monow founded, and is presently the president of. Applied Behavior Consultents, a certified NPS for students with
autism, which also provides ABA therapy to children and toddlers.
"Dr. Bailey received her Doctorate degree in clinical psychology and developmental psychology from the
University of Southem California in 2004. She is presently an assistant professor at Califomia State University,
Fullerton. She 1s not a licensed psychologist of Board Certified Behavior Analyst, although she has significant
training and education in psychology and learning disabilities
'° Dr Levin, Coyne’s Clinical Director, received his Doctorate degree in Clinical Psychology from the
State University of New York in 1996. He has a Significant amount of experience working with autistic children,
and a number of publications to his credit,
]Page 43 cv-00622-Wz2OR Document 1 Filed 04/04/2a08 Page 43 of 70
se 3:08-
Monday D9 of Jan 2008, ination ~2949 858 0168 Page 23 of 48
is nothing in the Act to Suggest that the failure of a public agency to Provide services based
On peer-reviewed research would automatically result in a denial of FAPE. The final
decision about the special education and related services, and supplementary aids and
Services that are to be provided to a child must be made by the child's IEP Team based on
the child’s individual needs.” (71 Fed.Reg. 46665 (August 14, 2006).)
. More Significantly, there is no evidence that the District Proposed using
behavioral instruction that differed significantly from that provided by Coyne. District
behavior specialist Jodi Reise credibly testified that the behavior Program that she supervised
was based upon traditional ABA principles, including the integration of discrete trial
training, pivotal response training, and intensive one-on-one instruction. As the District
points out, Dr. Levin and Ms. Korneder stated the methods used by Coyne were not based
solely on traditional discrete trial training principles.
individualize treatment for autistic children. As Dr. Schreibman explained, interventions for
autistic children are upon applied learning theory, commonly referred to as ABA. However,
there are several Strategies that have been researched and validated, all of which prove
beneficial to some children. These strategies include discrete trial training, pivotal response
training, incidental teaching, and the picture exchange communication, Dr. Schreibman
explained that ABA is a research technology, not a specific treatment. Rather, there are a
number of treatments that are included in the umbrella of behavioral intervention.
. Dr. Schreibman further explained that research has determined that many
children do not respond well to discrete trial training, and that others do not respond to
pivotal response training. Therefore, a Program must be developed to respond to the child's
specific needs. Dr. Schreibman is acquainted with Ms. Reise and believes that she is capable
of implementing an appropriate behavioral intervention program for Student.
eer
” Dr. Lovaas is the author of the seminal! study of behavior analysis in autistic children, “Behavioral
Treatment and Normal Educational and Intellectual Functioning in Young Autistic Children " (Journa] of Consulting
and Clinical Psychology (198 7).) Page 44 , 4/208 Page 44 of 70
present program may be better than the one offered by the District does not mean that the
District's program will not provide Student with a FAPE. The District need not provide the
best program; it only need provide a Program that offers more than minima! educational
benefit to her. The weight of the evidence demonstrates that the District’s intensive one-on-
one ABA program will more than meet that standard.
, In sum, the weight of the evidence Supports the District's contention its offer
of 10 hours of intensive one-on-one ABA services provided to Student at the District's
school site meets Student's unique needs in the area of behavioral intervention Student has
Special Day Class offered by District
. Student contends that the SDC at the District's Preschoo] does not incorporate
adequate ABA principles, fails to include peers with compatible instructional needs, and is
not the feast restrictive environment for Student.
. — Student’s argument that the SDC fails to include peers with compatible
instructional needs is not supported by persuasive evidence. District witnesses Mary Ellen
Nest, Jodi Reise, and SDC teacher Denise Gomez all testified that the composition of the
weight of the evidence presented by the District is that the SDC teacher teaches to the needs
of every student in her class and that, therefore, the SDC class would be able adequately to
meet Student's instructional needs.Page 45 i 04/a@08 Page 45 of 70
Case 3:08-cv-00622-W. R Document 1 Filed 04/ @
Monday 07 of Jan 2008, ination ~2?949 856 0168 Page 25 o¢ 48
. Finally, Student asserts that the SDC is not the least restrictive en vironment
(LRE) for her. The IDEA requires, to the maximum extent appropriate, that children with
disabilities should be educated with children who are not disabled, unless due to either the
nature of the disability, or its severity, education ina regular class cannot be achieved
satisfactorily even with the use of supplementary aids and services. Four factors are
paraprofessionals and services that might be appropriate; (2) the non-academic benefits of a
general education placement, such as language and behavior models provided by non-
disabled students; (3) the negative effects the student's presence may have on the teacher and
other students in the general] education setting; and (4) the cost of educating the student in a
mainstream environment.
. Cost factors of educating Student in a general education classroom were not
put at issue in this case and thus will not be addressed. Neither is there any evidence that
Student would have a negative effect ona general education teacher or the other students in a
general education classroom. To the contrary, when the IEP meetings were held in May and
without incident, Sharon Hillier, the Director of the Hanna Fenichel school, who observed
Student a couple of times a week in Student's preschool class, commented to the IEP team
that Student was a delightful addition to the school. Ms. Hillier indicated that Student
engaged in class activities and followed classroom routines, albeit with support from
. Additionally, there is little evidence that Student would not benefit from
inclusion in a general education classroom. The observations by Ms, Loveman, Ms, Reise,
and Dr. Schreibman did not focus on the benefit Student was receiving in her general
education classroom at Hanna Fenichel. Rather, their observations focused on the fact that Page 46 se 3:08-cv-00622-W- R Document 1 Filed 00 Page 46 of 70
Moh ASE F of Jan 2008, BK ination -2949 856 0168 Page 26 of 4a
before the hearing took place. Four to six months is a significant amount of time in the life
of any four-year-old child; it is a particularly significant amount of time for Student as the
evidence indicated she has consistently made remarkable progress over brief periods.
. The District believes, based on the recommendations of its expert, Dr,
Schreibman, and staff members Ms. Loveman and Ms. Reise that Student was not ready for
full inclusion at the time the IEP team met. The District argues that Student needs to be in an
environment where she learns independently to navigate a classroom and where activities are
teacher-directed rather than student-directed as preparation for the structure of typical
Kindergarten class. Dr. Schreibman, who is well known in the field of autism, specifically
believed that Student required the structure of the SDC class in order to extinguish the
behaviors she observed in Student, such as talking without directing her language toward
anyone in particular, and not being fully engaged in the classroom, Ms. Loveman and Ms,
Reise also believed that Student would be better served in the SDC where the specially-
Sena
" Dr Schneider-Zioga has a doctorate degree in lingutstics from the University of California at Los
Angeles. She is presently a full time lecturer at California State University, Fullerton. Page 47 Monday 07 of Jan 2008, we ination ~>949 856 0168 Page 27 of 48
trained SDC teacher could focus on extinguishing Student’s inappropriate behaviors,
increasing Student's language skills, and teaching her navigate a classroom without an aide.
with the use of supplementary aids and services cannot be achieved satisfactorily. Therefore
even if it is not the best academic setting for a Student, a general education classroom is
appropriate if the child can receive a satisfactory education there.
. The District's contention that the IEP team did not have enough evidence
when it met in May and June 2007 to determine that Student could be satisfactorily educated
indicated the progress Student had made in her preschool class at the school. Ms. Hillier
indicated that Student was participating in the class and following routines. In the nine
months Student had been in the class, she had improved significantly in the areas of
engagement, play, language and eye contact. Ms. Korneder, and the Coyne progress report,
corroborated Ms. Hillier’s observations. Coyne noted that Student had achieved many of her
IEP goals earlier than projected, had made significant gains in the areas of speech and
language, social interaction skills, generalization, and compliance. As of March 2007,
Student was beginning to comment !0, respond to, and initiate interaction with her
classmates. Coyne noted that while Student still required an aide to assist in the acquisition
of peer-interaction skills and to support her attending to and compliance with her teacher's
structure of the SDC classroom in order to obtain benefit from or access her education, The
evidence showed that Student does not need tightly controlled activities, adult initiation of all
her social activities, or a visual schedule, the core components of the District's SDC, in order
to benefit from her education.
. Dr. Schreibman, Ms. Loveman and Ms. Reise based their recommendations
for a SDC placement on their observations of Student at school. However, the total amount
of time spent on those observations was approximately five hours. Conversely, Ms. Hillier
and Ms. Korneder observed Student for a few hours a week over nine months. They were
able to observe Student's ability to navigate a general education classroom, her ability to
learn to follow routines, and her Progress in learning to interact with peers. Additionally, the
main rationale advanced by the District’s observers for placing Student in a SDC was so that
her autistic-like behaviors, behaviors that have not been shown to interfere with her access to
her education or with the access of other Students to their education, could be extinguished.
The District offers no legal authority that supports the contention that extinguishing non-
interfering behaviors is, or should be, the basis for a child's placement ina SDC. Student has
therefore met her burden of proof that she can, at the least, make satisfactory progress ina Page 48 Monday 07 of Jan 2008, PiRination ->949 856 0168 Page 28 of 48
general education classroom, and has therefore met her burden of proof that a general
education classroom is the least restrictive environment for her. The District's offer to
Student of placement in a SDC class for a portion of her school day therefore substantively
denied her a FAPE,
General Education Classroom Component of the District's Offer
. Student contends that the general education classroom component of the
District's offer denied her a FAPE because it Was an inappropriate educational setting for
her. She also contends that when the general education component was combined with the
early morning SDC placement, the offer required Student to transition through too many
areas of the school campus, through too many different activities, and to have to interact with
too many different classmates,
. AJL TEP team members agreed that full time placement in a general education
class at the CDC would be too overwhelming for Student, Dr. Schreibman specifically stated
in her observation report that the CDC classroom, which she believed consisted of 24
children instructed by two teachers, was too much for Student to handle. She recommended
that any inclusive classroom for Student, even after she transitioned from the recommended
SDC, should only contain a few students. Dr. Schreibman believed that the Hanna Fenichel
class, or one with a similar amount of students, would be an appropriate inclusion model for
Student.
. In fact, the total number of classmates with whom Student would need to
interact in the CDC class was actually closer to 30 since a different core group of students
attended class on different days. The structure of the CDC class in late morning during the
time the District proposed that Student attended it presented an even more complicated
picture, particularly for a child who was not scheduled to interact with the class at the
beginning of the day when the children participated in opening activities and circle time.
During the time Student would be participating in the general education class, the children
were divided into two groups of 12, with one group engaging in pre-academic type activities
in the classroom and the other group participating in outside activities centering on gross
motor skills. The two groups switched after approximately twenty minutes. The children
who made up each group changed on a daily basis.'? After these activities, the 24 children
reunited in the classroom for activities such as singing and story time before engaging in
closing day activities and transition to lunch and playground time.”
'* District witnesses did indicate that they could possibly arrange for the group composition to remain
constant; however, the District did not confirm this by memorializing it as 8 part of the written [EP offer.
in fact, the District's offer would require Student to have to interact with about 42 children each day,
counting the children from the SDC and the children in the general education class. This directly contradicts Dr.
Schreibman’s recommendation that an inclusion class for Student only contain a small amount of classmates
because she did not believe Student was ready to handle interacting with a large number of peers at a one time. Page 49 Monday 07 of Jan 2008, FB ination ~>949 856 0168 Page 29 of 4e
observations.”! On the other hand, the belief of the Coyne staff and Student’s mother that the
CDC class would overwhelm Student is Supported by their respective constant contact with
Student and observations of her in her present classroom,
. Additionally, there appears to be no concrete basis for the District's position
that Student was capable of transitioning from the SDC to the CDC, and to make all the
transitions required in the CDC class, even with the provision of an aide. In fact, the
District’s position is contradictory. It first asserts that Student requires a SDC class because
she in not engaging enough with her classmates and is dependent on her aide for Initiating
social interactions. Simultaneously, the District asserts that Student is capable of interacting
with some 42 students a day and transitioning not only between multiple activities in a
classroom but also transitioning between two groups of students in two very different classes.
The District’s arguments in support of its position are unpersuasive. 2?
, The ALJ finds that the Student has met her burden of proof that the CDC
classroom was not an appropriate instructional setting for her and therefore the District’s
offer substantively denied her a FAPE,
Failure to Provide Staff Adequately Trained to Implement Student's IEP
. Student's contends that the District staff is not adequately trained, Although
not specified in her stated issues for hearing, Student appears to focus her concerns on
whether Jodi Reise, the District behavior specialist, is qualified to supervise Student's ABA
program and whether Denise Gomez, the SDC teacher, could implement Student’s IEP. As
discussed above, Student has not met her burden of proof in either regard.
** Although a long time family friend, there is no evidence that Ms. Loveman had observed Student outside
the context of her formal observations in Preparation for the IEP meetings.
” CDC Director Suzanne Blackwood and CDC teacher Jody Gallagher discussed the general education
program and classrooms at the CDC. Their accounts credibly support the District's position that the District offers a
quality preschool education. This Decision just finds that the program did not meet the needs of the student in this
case. Page 50 Gase 3:08-cv-00622-W-POR Document 1 Filed 04/04/2008 Page 50 of 70
montey O70 Jan 2008, @irecien ->949 856 O16 Page 30 of 48
IEP.
Appropriateness of the District's Assessments and Reimbursement of Student's IEE
. A parent has the right to obtain an IEE if the parent disagrees with a district's
assessment. When a parent makes a request for an IEE, a district must either fund the IEE at
public expense or file for a due process hearing to show that its assessments were
appropriate. Individuals who are knowledgeable about a student's disability and competent
to perform the assessments must conduct assessments, The tests and assessment materials
must be validated for the specific purpose for which they are used, and must be selected and
administered so as not to be racially, culturally or sexually discriminatory. The assessments
must be provided and administered in the student's primary language or other mode of
communication unless this is clearly not feasible. The assessors must use a variety of
assessment tools including information provided by the parent. Reassessment of a child may
occur ifa district believes that the child's needs warrant reassessment or if the child’s parents
or teacher requests reassessment. Unless other requested, reassessment shall not occur more
. The District administered a multidisciplinary initial assessment to Student in
the spring of 2006, in preparation for her initial IEP. The assessment included an evaluation
of Student’s health and development. The District also administered a transdisciplinary play-
based assessment that included clinical observations, administration of the Southern
California Ordinal Scales of Development - Cognition, administration of the Behavior
Assessment System for Children, record review, and the MacArthur Communicative
Development Inventories.
, Student's IEP team met on February 16, 2007, in order to start the process of
formulating her IEP for the 2007-2008 school year. As part of that process, the team
discussed what reassessments and new assessments Student needed. The team determined
that a formal, standardized assessment was not necessary in order to determine Student's Page 51 Monday 07 of Jan 2008, : Nation ~2949 856 0168 Page 31 of 48
Present academic achievement. Instead, the IEP determined that Smdent’s SDC teacher and
a District behavior specialist would determine Student's academic achievement through
observations of her and a review of her records. Likewise, the team determined that a
formal, standardized assessment in the area of cognitive functioning was not necessary,
Rather, the team designated the school psychologist to observe Student and review her
records to determine Student's needs in this area. The team also agreed that the District
. As discussed. above, school psychologist Ms, Loveman, behavior specialist
Ms. Reise, and outside consultant Dr. Schreibman, conducted observations of Student in
March and April 2007. Student’s parents disputed the observations of each, and the ultimate
placement recommendations of each, as did the Director of Student's preschool and her ABA
providers from Coyne. Student’s parents therefore did not agree to the District’s offer of
placement and services at the IEP team meetings held May 1! and June 13, 2007.
. On April 7, 2007, Student's parents wrote to Ms. Nest, informing her that they
would be unilaterally placing Student at Hanna Fenichel for the 2007-2008 school year.
They also informed Ms. Nest that they were going to obtain IEEs for Student because they
specifically disagreed with the recommendations of the District's outside consultant (Dr.
Schreibman) that Student required placement in an SDC. Student’s parents informed Ms.
Nest that they would be seeking reimbursement from the District of the IEEs, indicating that
they were considering IEEs by an educational! psychologist, a speech and language
pathologist, an ABA expert, and an expert on educational inclusion for students with autism.
Student’s attorney confirmed to the District’s attomey that Student was seeking an IEE at
public expense. Rather than agreeing to pay for the IEEs, the District exercised its rights and
filed its own due process complaint to validate its assessments.
. Student's parents never obtained a speech and language JEE. There was no
evidence presented at hearing and no argument made in Student's closing briefs that the
speech and language assessment conducted by speech and language pathologist Lisa Ryder
over eight days in March and April 2007 did not meet legal standards or was in any way
improperly administered.
- 91. The only “assessment” ultimately obtained by Student's parents was from Dr,
Caroline Bailey. As stated above, although she has a Doctorate degree in psychology, Dr.
Bailey is not a licensed psychologist. She is not licensed to administer standardized tests to
adults or children, and she did not do so with Student. Rather, Dr. Bailey spent numerous
hours observing Student in Student’s home, school, and church, numerous hours reviewing
Student's records and researching issues concerning Student's autism, and numerous hours Page 52 Monday 07 of Jan 2008, ination ->949 856 0168 Page 32 of 48
preparing her extensive report concerning her findings and recommendations of Student. Dr.
Bailey’s bill, and the reim bursement request by Student’s parents, is for $24,900.
. Student maintains that her parents are entitled to reimbursement for Dr.
Bailey’s services because the District’s observations did not comply with evaluation and
reporting requirement and because Student disagrees with the observations and
recommendations of Dr. Schreibman that Student engages in autistic-like behaviors to such
an extent that an SDC placement is necessary.
. Student’s request for reimbursement fails on several grounds. First, while she
argues that the District’s “assessment” failed to comply with evaluation and reporting
requirements, Student fails to identify what those standards are and in what way they were
violated by the District. As the District points out in its brief, while there are specific legal
standards for formal assessments, there simply are no statutory or regulatory standards for
observations of students. That Student disagreed with what Dr. Schreibman observed and
recommended does not result in finding that she is entitled to an JEE. Nor does the fact that
Dr. Bailey conducted a much more intensive observation and spent many more hours on her
observation and review of Student than did Dr. Schreibman result in the invalidation of Dr.
Schreibman’s observation and recommendation.
. Second, if Student believed that formal assessment, with Standardized testing,
was warranted for her, she should have made such a request. She did not. Nor did Student’s
parents obtain an JEE that met the legal standard of being administered by someone
competent to perform the assessment, since Dr. Bailey is not licensed to administer
Standardized tests and did not, in fact, administer any. She, like Dr. Schreibman, only
observed Student. Student fails to demonstrate in what way Dr. Bailey’s observations,
review, and research, meet evaluation and reporting requirements not met by Dr.
Schreibman.
. Finally, there is no requirement that reassessment of a student within three
years of formal assessing must include formal, standardized testing unless it has been
requested by either the student's parents or teacher. Student did not request any formal
assessments and did not obtain any IEE that met the legal standards indicated in paragraph above, The evidence thus supports the District’s contention that its observations of
Student were appropriate, that there is no specific standard by which to measure
observations, and that Student’s JEE met a standard that the District’s observations did not
meet. Student is therefore not entitled to reimbursement for the costs of Dr. Bailey’s
services,
Appropriate Remedies
. Aschool district may be required to reimburse a parent for the costs of private
school tuition and other related services if the district failed to make a FAPE available to the
child. Reimbursement is an equitable remedy that is determined on the facts of each case.
As determined in Factual Findings 76 and 82, the District failed to offer Student a FAPE for
]Page 53 Monday 07 of Jan 2008, ination ->949 856 0168 Page 33 of 48
the 2007-2008 school year by not offering her a placement in the least restrictive
environment, and by offering her a placement in the District's CDC general education class
which failed to meet Student's unique needs.
. Reimbursement for the cost of a private school may be reduced or denied if the
parents did not provide notice, prior to removing the child from the Public school, that rejects
the proposed placement, states their concerns, and expresses the intent to enroll the student in
a private school. As determined in Factual Finding 89, Student’s parents provided the
District the required notice prior to unilaterally placing her at Hanna Fenichel.
. Finally, equitable considerations, such as the conduct of both parties, may be
evaluated when determining what, if any, relief is appropriate. Several factors may be
considered when determining the amount of reimbursement to be ordered: the effort parents
expended in securing alternative placements; the availability of other more suitable
placements; and the cooperative or uncooperative position of the school district or of the
student’s parents.
. The weight of the evidence is that Hanna Fenichel was an appropriate
placement for Student. All parties, including the District’s expert consultant, gave glowing
reviews of its staff and program as well as the excellent progress Student has made while
attending that school. Nor does the District point to any equitable reasons to deny
reimbursement to Student's parents of the tuition they have paid for Student’s schooling at
Hanna Feniche]. Nor is there any evidence of any other suitable placements for Student.
The ALJ has found that the District's offer of placement denied Student a FAPE as its SDC
did not constitute the LRE for Student and its CDC general education class was not
appropriate for her. Therefore, Student is entitled to reimbursement of her tuition for the past
school semester at Hannah Fenichel,
]. Student also requests prospective reimbursement for costs at Hanna Fenichel
for the remainder of the 2007-2008 school year. The ALJ is prohibited by statute from
ordering prospective placement at the school since it is not a certified NPS. Ifthe issue were
simply that Student’s parents had prepaid the full year’s tuition at Hanna Fenichel, but were
not required to do so, Student’s argument that her parents are entitled to full payment of the
tuition as reimbursement rather than a prospective cost, would be unpersuasive. However,
the quirk in this case is that Student’s mother testified, and the Hanna Fenichel Director
confirmed, that the school requires parents to pay the full year’s tuition in advance in order to
preserve a place in the school. The District provided no evidence to counter this assertion, Page 54 Monday 07 of Jan 2008. xination ~>949 856 0168 Page 34 of 48
The ALJ finds that Hanna Fenichel is an appropriate placement for Student and that there is
no evidence in the record of any other placement that would be suitable for her. The ALJ
also finds that there is no evidence that Student's parents did not adequately cooperate with
. Student further requests that the ALJ order retroactive and Prospective
payment of the costs of the Coyne one-on-one ABA aide that Student needs in order to attend
the general education classroom at Hanna Fenichel. There is no dispute that Student requires
such an aide in a general education classroom. Coyne is a certified NPA So there is nothing
to prohibit the requested order by the ALJ. However, Student has failed to demonstrate that
the District could not provide an adequate aide to address her needs at Hanna Fenichel. Nor
is Student entitled to select her own provider of services. Acknowledging that Student
requires an aide, the ALJ shall therefore order that the District provide an appropriate aide to
Student in her class at Hanna Fenichel. The aide shall have been specifically trained in ABA
principles and specifically trained to work with autistic children. Should the District decided
. Finally, Student's mother requests that she receive reimbursement for the
hours she spent providing one-on-one ABA therapy to Student, which supplemented the
hours provided by Coyne beginning in September 2007. The evidence fully supports the
any child in need of such services. After Student was diagnosed with autism, her mother
began researching treatments and theories concerning autism. Student’s mother later
obtained a graduate certificate in ABA from Pennsylvania State University that qualifies her
to provide ABA services. She has gone to extraordinary efforts to become knowledgeable
about autism and, in particular, about her daughter’s specific needs. Student's mother has
also invested considerable time and effort in obtaining training so that she can address her
daughter’s needs. However, there is no support for Student’s position that a parent is entitled
to payment for providing educational services to his or her child under the facts of this case.
Additionally, since the ALJ has found that the District's offer of 10 hours a week of ABA
services would provide educational benefit to Student, there is no evidence to support
Student’s contention that she required the additional hours of ABA services provided to her
by her mother in order for her to receive a FAPE. Finally, the ALJ notes that implementation
of ABA concepts in an autistic child’s home after the child’s parents have received training,
appears to be one of the foundations of ABA therapy. Indeed, Dr. Morrow testified that the
rrr eerie
Ip any case, Student has not presented evidence of what the cost of the Coyne one-on-one aide 1s orif
Student's parents have paid any or al! of the Past costs of that services. Page 55 Monday 07 of Jan 2008, xXination ->949 856 0168 Page 38 of 48
one of the key components of the ABA program his NPA had begun with toddlers is the
concept that the children’s Parents would receive training so that they could continue the
ABA therapy the child received in Dr. Morrow's clinic in the home. Student therefore has
failed to meet her burden of proof that her mother is entitled to payment for the hours she has
Spent supplementing Student’s ABA therapy.
CONCLUSIONS OF LAW
Burden of Proof
l. Student, as the petitioning party seeking relief in issues A(1) through A(6), has
the burden of proof as to those issues. The District, petitioning party in issue B, has the
burden of proof as to that issue. (Schaeffer v. Weast (2005) $46 U.S. 49 [126 S.Ct. 528, 163
L.Ed.2d 387].)
Did the District predetermine its offer of placement and related Services in ils IEP offer for
the 2007-2008 school year?
. Pursuant to the Individuals with Disabilities in Education Improvement Act
(IDEIA), effective July 1, 2005, and California special education law, children with
disabilities have the right to a FAPE that emphasizes special education and related services
designed to meet their unique needs and to Prepare them for employment and independent
living. (Ed. Code, § 56000.) FAPE consists of special education and related services that are
available to the student at no charge to the parent or guardian, meet the state educational
standards, include an appropriate schoo! education in the state involved, and conform to the
child's JEP. (20 U.S.C. § 1402(9).)
. There are two parts to the legal analysis of whether a school district complied
with the IDEA. The first examines whether the district has complied with the procedures set
forth in the IDEA. The second examines whether the IEP developed through those
procedures was reasonably calculated to enable the child to receive educational benefit. (Bd.
of Educ. of the Hendrick Hudson Central Sch Dist. v. Rowley (1982) 458 U.S. 176 [102
S.Ct. 3034, 73 L.Ed.2d 690) (hereafter Row/ey),)
, The IDEA requires that a due process decision be based upon substantive
grounds when determining whether the child received a FAPE. (Ed. Code, § $6505, subd.
(f(1).) A procedural violation therefore only requires a remedy where the procedural
Violation impeded the child’s right toa FAPE, significantly impeded the parent's Opportunity
to participate in the decision making process regarding the provision of a FAPE to the
parent's child, or caused a deprivation of educational benefits. (20 U.S.C. § 14] 5(f(3 XE):
Ed. Code, § 56505, subd. Q); Rowley, supra, 458 U.S. at pp. 206-07; see also AmandaJ. y.
Clark County Sch. Dist. (9th Cir. 200] ) 267 F.3d 877, 892.) Procedural violations which do
not result in a loss of educational Opportunity or which do not constitute a serious
infringement of parents’ Opportunity to participate in the JEP formulation process are
insufficient to support a finding that a pupil has been denied a free and appropriate public Page 56 Monday 07 of Jan 2008. ination ->949 856 0168 Page 38 of 48
education. (W.G. v. Bd of Trustees of Target Range Sch. Dist, No. 23 (9th Cir. 1992) 960
F.2d 1479, 1483 (hereafter Target Range),) Procedural errors during the IEP process are
subject to a harmless error analysis. (A4.L., etal, v. Federal Way Sch. Dist (9th Cir. 2004) F.3d 634.)
, In determining the educational placement of a disabled student, the public
agency must ensure that the placement is based on the child's IEP. (34 CER. § 300.116.)
F.Supp.1253, 1262.) Indeed, a district has an obligation to make a formal written offer in the
JEP that clearly identifies the proposed program. (Union Sch. Dist. v. Smith (9th Cir. 1994) F.3d 1519, 1526.)
. A school district has the right to select a program and/or service provider for a
special education student, as long as the program and/or provider is able to meet the student’s
by the public. (See, MR. v. San Ramon Valley Unified Sch. Dist. (N.D.Cal. 2007) 2007 U.S.
Dist. Lexis 9135; Slama ex rel. Slama v. Indep. Sch, Dist. No, 2580 (D. Minn. 2003) 259 F.
Supp.2d 880, 885; O'Dell v. Special Sch. Dist. (E.D. Mo. 2007) 47 IDELR 2] 6.) Nor must
S wishes in order to be sufficient or appropriate. (Shaw v. Dist. of
Colombia (D.D.C. 2002) 238 F.Supp.2d 127, 139 [IDEA does not provide for an
“education...designed according to the parent's desires,”’], citing Rowley, supra, 458 U.S. at
p. 207.)
, In the instant case, the weight of the evidence fails to prove that the District
predetermined its offer of placement and services for Student at its preschool SDC and
preschool general education class, Although Ms. Nest expressed concerns to Student's
mother prior to the IEP meeting on May 11, 2007, that the parties would not be able to reach
agreement at the meeting, those concerns do not compel a finding that the District’s IEP team
as a whole had made a decision regarding where it would offer to place Student. Although
Ms. Nest discussed the upcoming IEP team meeting with other District staff members, she
did so only to obtain an understanding of what each had observed of Student and what each
might be recommending as a placement.
. There is also no evidence that Ms, Nest either directed District IEP team
members to refuse to consider a particular placement or that she attempted to influence their
recommendations in any way. Unlike the circumstances in the Dea/ case, the Student
presented no compelling evidence that the District here had a policy of refusing to place
special education students at private schools or give students in-home ABA services if such
was necessary and appropriate. Nor has Student proven that high-level District officials were Page 57 Monday 07 of Jan 2008, xination ->899 856 0168 Page 37 of 48
dictating placement decisions concerning special education students. Unlike the school
district in Deal, the District here provided many opportunities for the Director of the private
schoo! (Hanna Fenichel) and the private ABA provider (Coyne) to offer their opinions and
+
well as her attomey, private school Director, and provide ABA providers, to contribute to the
discussions concerning placement and services. There was no evidence of District attempts
to stifle discussion concerning placement at Hanna Fenichel. To the contrary, a review of the
JEP meetings indicates that many different JEP members and consultants dedicated
considerable portions of the IEP meetings on May 11, 2007, and June 12, 2007, to discussing
the conflicting recommendations for Student’s placement and services, Furthermore, there is
no evidence that the District made statements either at or outside of IEP meetings that it
would never consider a private school placement for Student,
, Pursuant to. Factual Findings 12 through 46, and Conclusions of Law 2
through 8, the evidence fails to support the Student's position that the District predetermined
its offer of placement and services for Student. To the contrary, the evidence supports a
conclusion that the District encouraged discussion of a placement at Hanna Fenichel as
compared to a placement in its classrooms. None of the cases cited above or cited by Student
in her closing briefs stand for the Proposition that a district is required to offer a placement
that is suggested by a student, or that the failure fo accept a student's suggested placement
means, ipso facto, that a district has predetermined placement. Student has therefore failed
to meet her burden of persuasion that the District's offer of placement in its SDC and in its
general education class, was predetermined before the IEP meetings and has thus failed to
prove that the District procedurally violated her rights under the IDEA with regard to her
classroom placement.
Did the District fail to consider all relevant data conceming Student, including input from
her parents, before making an offer of placement and related services?
. In order to fulfill the goal of parental participation in the IEP process, the
school district is required to conduct, not just an IEP meeting, but also a meaningful IEP
meeting. (Target Range, supra, 960 F.2d at p. 1485.) A parent has meaningfully
participated in the development of an IEP when she is informed of her child's problems,
attends the IEP meeting, expresses her disagreement regarding the IEP team's conclusions,
and requests revisions in the IEP. (NL. y. Knox County Schools. (6th Cir. 2003) 315 F.3d, 693; Fuhrman v. East Hanover Bd. of Educ. (3d Cir. 1993) 993 F.2d 1031, 1036
[parent who has an opportunity to discuss a proposed IEP and whose concerns are considered
by the IEP team has participated in the IEP process in a meaningful way].) “A school
district violates IDEA procedures if it independently develops an IEP, without meaningful
parental participation, and then simply presents the [EP to the parent for ratification.” (Ms.
S. ex rel G. v. Vashon Island School District (9th Cir. 2003) 337 F.3d 1115, 113} .) The test
is whether the schoo! district comes to the IEP meeting with an open mind and several
options, and discusses and considers the parents’ placement recommendations and/or Page 58 Monday 07 of van 2008, Bx ination ->949 856 0168 Page 38 of 48
concerns before the IEP team makes a final recommendation. (Doyle v. Arlington County
School Board, supra, 806 F ‘Supp. at p. 1262; Deal, Supra, 392 F.3d at p. 857.)
]. Based upon Factual Findings 12 through 46 and Conclusions of Law 2 through, Student has failed to demonstrate that the District failed to consider the input, opinions,
recommendations, or concerns of Student's mother, Student’s ABA providers, Student's
preschool Director, or any other individual having information concerning Student, with
regard to her placement or services. A review of the IEP team meetings held on May I! and
June 13, 2007, support a finding that there was significant discussion by all attendees
concerning the benefits and drawbacks of different placements for Student. Student’s mother
and ABA providers gave long and detailed descriptions of their views of Student's
capabilities as well as what they considered appropriate programs and services for her.
There is no indication that the IEP meeting was a charade or that the District was merely
going through the motions in holding it. Student has therefore failed to meet her burden of
persuasive that the District procedurally violated her rights by failing to consider the input of
Student's mother or her service providers.
Did the District fail to offer an ABA therapy program that meets Student's unique needs
because it is not scientifically based and Supported by peer-reviewed research, to the extent
practicable, is not offered in a home environment, and Sails to provide a sufficient amount of
therapy hours?
, As stated above, in the Rowley case the United States Supreme Court
addressed the level of instruction and services that must be provided to a student with
disabilities to satisfy the substantive requirements of the IDEA. (Rowley, 458 U.S at p. 200.)
The Court determined that a student's IEP must be reasonably calculated to provide the
student with some educational benefit, but that the IDEA does not require school districts to
provide special education students with the best education available or to provide instruction
Or services to maximize a student's abilities. (/d. at pp. 198-200.) The Court stated that
school districts are required to provide only a “basic floor of opportunity” that consists of
access to specialized instruction and related services which are individually designed to
provide educational benefit to the student. (Jd. at p. 201.) As long as a school district
provides a FAPE, the type of methodology employed in providing a FAPE is left to the
district’s discretion. (/d. at p. 208.)
. To determine whether a district offered a student a FAPE, the analysis must
focus on the adequacy of the district’s proposed program. (Gregory K. v. Longview Sch.
Dist. (9th Cir. 1987) 811 F.2d 1307, 1314 (hereafter Gregory K.).) If the district's program
was designed to address the student's unique educational needs, was reasonably calculated to
provide him some educational benefit, and comported with his IEP, then that district
provided a FAPE, even if the student’s parents preferred another program which would have
resulted in greater educational benefit. (20 U.S.C. § 1412(aX5\(A); Ed. Code, § 56031 )
. California’s definition of special education includes both specially designed
instruction to meet the unique needs of individuals with exceptional needs and related Page 59 Monday 07 of Jan 2008, ination ~>949 856 0168 Page 39 of 48
Services to enable them to benefit from such Specially designed instruction. (Ed. Code, §). Related services may be referred toas designated instruction and services (DIS).
(Ed. Code, § 56363, subd. (a).)
. Title 34 Code of Federal Regulations, part 300.320(a)(4) states IEPs shall
include a statement of the special education and related services and supplementary aids and
services, based on peer-reviewed research to the extent practicable. The language “to the
extent practicable” regarding the use of peer-reviewed research does not forbid a district
from using an educational Program or service that is not peer-reviewed, where it is
impracticable to provide such a program. The United States Department of Education's
comments and discussions regarding “peer-reviewed research” state that “We decline to
require all IEP Team meetings to include a focused discussion on research-based methods or
“to the extent practicable” regarding the use of peer-reviewed research does not forbid a
district from using an educational program or service that is not peer-reviewed, where it is
impracticable to provide such a Program. Courts have determined that the most important
issue is whether the proposed instructional method meets the student’s needs and whether the
student may make adequate educational progress. (Deal v, Hamilton County Dept. of Educ.
(E.D.Tenn. 2006) 2006 U.S. Dist. LEXIS 27570, pp. $1-57; Rocklin Unified School District
(OAH, May 25, 2007) 48 IDELR 234, 107 LRP 31811, 20 U.S.C. § 1414(d)(1 XIV); 34
C.F.R. § 300.320; Ed. Code, § 56345, subd. (aX4).)
. As stated in Factual Finding 53, all parties agree that Student continues to have
unique needs in the areas of expressive and pragmatic speech and language and in
socialization. Nor do the parties dispute that Student continues to require intensive ABA
Services to assist in addressing her deficits. Student argues that she requires some ]7 hours
of ABA therapy and that the therapy must be provided in her home. As stated in Factual
Findings 54 through 64, and based upon Conclusions of Law 12 through 15, Student has
failed to meet her burden that she requires ]7 hours of in-home ABA services in order for her
to obtain benefit from her education, Student did not present compelling evidence in support
of this contention. In fact, Coyne & Associates, Student’s present ABA provider, only
recommended in its progress report prepared in May 2007, that Student receive a total of 25
to 30 hours of combined ABA services. Since Coyne provides an ABA aide to Student at her
preschool for approximately 18 hours a week, its recommendation for one-on-one intensive
ABA therapy amounted to only 7 to 12 hours a week. This conforms to the District's offer
of 10 hours a week. Nor did Student provide persuasive evidence that her special needs
dictate that she receive the ABA therapy in home as opposed to at school, in order for her to
obtain educational benefit or to access her education. Student’s deficits in language and
socialization are much more marked at home than at school; the evidence thus supports the
District's position that providing the ABA services at school will assist Student in learning to
generalize her newly acquired abilities to the school setting. Finally, as stated in Factual
Findings 59 through 64, and Conclusions of Law 15, Student has failed to meet her burden of
proof that the District's ABA program is not based upon methodologies that are scientifically Page 60 Monday 07 of Jan 2008, FaRination ->949 858 0168 Page 40 of ae
based and supported by peer review. To the contrary, the evidence indicated that the ABA
program provided by the District includes the same methodologies used by Coyne. The fact
that the Coyne providers are more highly trained, are better at record keeping, and may be
better supervised than District staff does not Support a conclusion that the District's program
does not meet legal standards. The District's offer of 10 hours of ABA therapy to be
provided at the District’s school site therefore did not deny Student a FAPE.
Did the District's offer of placement Sor a portion of Student's school day in a special day
class deny her a FAPE because it does not incorporate adequate ABA Principles, fails to
include peers with compatible instructional needs, and is not the least restrictive
environment for Student?
, To determine whether a schoo! district substantively offered FAPE to a
student, the adequacy of the schoo! district's proposed program must be determined.
(Gregory K., supra, 811 F.2d at p. 1314.) Under Rowley and state and federal statutes, the
standard for determining whether a district's provision of services substantively and
procedurally provided a FAPE involves four factors: (1) the services must be designed to
meet the student’s unique needs; (2) the services must be reasonably designed to provide
some educational benefit; (3) the services must conform to the JEP as written; and, (4) the
program offered must be designed to provide the student with the foregoing in the least
restrictive environment.
. Both federal and state law requires school districts to provide a program in the
LRE to each special education student. (See 34 C.F.R. §§ 300.114, et seq.) A special
education student must be educated with nondisabled peers ‘(t]o the maximum extent
appropriate,” and may be removed from the regular education environment only when the
nature and severity of the student's disabilities is such that education in regular classes with
the use of supplementary aids and services “cannot be achieved satisfactorily.” (Ed. Code,
§§ 56001, subd. (g), 56345, subd. (a)(5), 20 U.S.C. § 1412(aX(SXA); 34 CFR. §.114(a)(2Xi), (ii).) A placement must foster maximum interaction between disabled
Students and their nondisabled peers “in a manner that is appropriate to the needs of both.”
(Ed, Code, § 56031; see also 20 U.S.C. § 1412 (aX5XA), Rowley, supra, 458 US. at p. 18},
fn, 4; Poolaw v, Bishop (9th Cir. 1995) 67 F.3d 830, 834.)
, When determining whether a placement is in the least restrictive environment
(LRE), four factors must be evaluated and balanced: (1) the academic benefits of placement
in a mainstream setting, with any supplementary paraprofessionals and services that might be
appropriate, (2) the non-academic benefits of mainstream placement, such as language and
behavior models provided by non-disabled students; (3) the negative effects the student's
presence may have on the teacher and other students: and (4) the cost of educating the
student in a mainstream environment. (Ms. S. v. Vashon Island School Dist. (9th Cir, 2003)
* The terms “regular education” and “general education” mean the same thing as it relates to the IDEA,
and are often used interchangeably by the parties here. Page 61 Monday 07 of Jan 2008, ination ->948 856 01 Page 41 of 468
F.3d 1115, 1136-1 137; Sacramento City Unified School District v. Rachel H. (9th Cir.) 14 F.3d 1398, 1404 (hereafter, Rachel! H. ))
. As stated in Factual Finding 66, and based upon Conclusion of Law 17,
Student has failed to meet her burden of showing that the SDC proposed did not meet her
. However, as stated in Factual Findings 68 through 76, and based upon
Conclusions of Law 17, 18, and 19, Student has met her burden of proof that the SDC class
was not the LRE for her. Applying the four-factor analysis describe in the Rachel H. case, it
ts Clear that Student could, at the very least, be satisfactorily educated ina general education
classroom as long as she had aide support. There is little evidence that Student would not
benefit from full inclusion in a general education setting. By the time Student's IEP
meetings were held in May and June 2007, Student had spent almost an entire school year
successfully progressing in her education at Hanna Fenichel. The only people who had
consistently observed Student during that entire year ~ her mother, her preschool Director,
and her ABA supervisor - all observed that Student was able to follow routines in the class,
engage to some extent with her classmates, and generally benefit from her education, There
was no evidence that Student was disruptive in class or that cost factors influenced the
District's determination that its SDC was the proper placement for Student. As stated in
Conclusion of Law 18, the IDEA, the California Education Code, and federal regulations
place a heavy emphasis on educating special education students in the regular education
environment, even if supports and accommodations are required. Removal of a special
education child from the general education should oceur only when the nature and severity of
the child’s disability prevents her from being educated satisfactorily in the general education
environment.
, Certainly, as the cases cited in Conclusion of Law 18 note, full inclusion is not
possible or practical for every special needs student. Student’s experts acknowledge as
much. Dr. Morrow runs an NPS jin which he enrolls only special needs students. Ms.
Korneder testified that she recommends SDC placement for students where appropriate. Dr.
Bailey testified that she too would indicate ifa SDC placement is appropriate; in fact, Dr.
Bailey was herself a student in a SDC, However, in Student's case, she has persuasively
shown that a SDC is not the LRE for her. Therefore, the District’s offer of placement in its
SDC substantively denied her a FAPE,
Did the District's offer of placement in a District general education classroom for a portion
of Student's school day deny her a FAPE because it is not an appropriate instructional
setting for her and because the placement creates a school day that includes too many
transitions between classroom settings? Page 62 Monday 07 of Jan 2008, ination ~>849 856 o1
Page 42 of 48
spend in this class would only consist of 12 students, such was true for only approximately minutes of the two hours Student would be in the Class. Additionally, the true count of
total potential peers with whom Student would have to interact in the class was actually
closer to 30 than 24 since there were different students enrolled in the class on different days,
The District’s position that Student could navigate the CDC class is based on the
observations and recommendations of its former school psychologist and present behavior
specialist. However, the amount of time they observed Student at her private preschool only
totaled three hours, Additionally, the setting at which they observed Student - the preschool
class at Hanna Fenichel - was significantly different from the CDC class proposed by the
Did the District's placement offer deny Student a FAPE because the District failed to provide
staff capable of implementing the offer?
. As determined in Factual Findings 83 and 84, and based upon Conclusions of
Law 6 and 17, Student has failed to meet her burden of proof that District staff members
were incapable of implementing any portion of the District’s proposed offer. Instructors for
each portion of the placement are trained professionals who take their Jobs seriously. That
Student's present ABA providers may be even better trained or supervised than District staff,
or that her present providers may be more diligent in keeping records than do District staff,
does not lead to the conclusion that District staff could not meet Student's educational needs.
Are the District's assessments of Student with regard to her educational placement
appropriate and, if not, is Student entitled to reimbursement from the District for the
independent assessment conducted by Dr. Caroline Bailey?
. Prior to making a determination of whether a child qualifies for special
education services, a school district must assess the child. (20 U.S.C. § 1414(a), (b); Ed.
]Page 63 Monday 07 of Jan 2008, ination ->949 856 01
-00622-W,BOR Document 1 Filed Me Page 63 of 70 Page 43 of 48
Code, §$§ 56320, 56321.)> The request for an initial assessment to see if a child qualifies for
special education and related services may be made by a parent of the child or by a state or
district must conduct a reassessment of the special education student not more frequently
than once a year, but at least once every three years. (20 U.S.C. § 1414(a)(2)(B); Ed, Code,
§ 56381, subd. (aX2).) A reassessment shall be conducted upon the request of a parent. (20
U.S.C. § 1414(a)(2XA)(ii); Ed. Code, § 56381, subd, (aX!).)
. School districts must perform assessments and reassessments according to
Strict statutory guidelines that prescribe both the content of the assessment and the
qualifications of the assessor(s). The district must select and administer assessment materials
in the student's native language and that are free of racial, cultural and sexual discrimination.
(20 U.S.C. § 1414(b\(3XA)(i); Ed. Code, § 56320, subd. (a).) The assessment materials must
be valid and reliable for the purposes for which the assessments are used. (20 U.S.C. §(bX3)A)(iii); Ed. Code, § 56320, subd. (b)(2).) They must also be sufficiently
comprehensive and tailored to evaluate specific areas of educational need. (20 U.S.C, §(bX3)(C), Ed. Code, § 56320, subd. (¢).) Trained, knowledgeable and competent
district personne! must administer special education assessments. (20 U.S.C. §(bX3A)(iv), Ed. Code, §§ 56320, subd. (bX3), 56322.) A credentialed school
psychologist must administer psychological assessments and individually administered tests
of intellectual or emotional functioning. (Ed. Code, §§ 56320, subd. (bX3), 56324, subd,
(a).) A school nurse or physician must administer a health assessment. (Ed. Code, § 56324,
subd. (b).)
. _ In performing a reassessment, a school district must review existing
assessment data, including information provided by the parents and observations by teachers
and service providers. (20 U.S.C. § 1414(c)(1XA); Ed. Code, § 56381, subd. (bX1).) Based
upon such review, the district must identify any additional information that is needed by the
IEP team to determine the present levels of academic achievement and related developmental
needs of the student and to decide whether modifications or additions in the child’s special
education program are needed. (20 U.S.C. § 1414(cX1)(B); Ed. Code, § 56381, subd.
(b)(2).) The district must perform assessments that are necessary to obtain such information
concerning the student. (20 U.S.C. § 1414(cX2); Ed. Code, § $6381, subd, (c).)
. The procedural safeguards of the IDEA provide that under certain conditions a
Student is entitled to obtain an IEE at public expense. (20 U.S.C. § 1415(bX 1), 34 CFR. §.502 (a)(1); Ed. Code, § 56329, subd. (b) [incorporating 34 C.F.R. § 300.502 by
reference]; Ed. Code, § 56506, subd, (¢) [parent has the right to an IEE as set forth in Ed.
Code, § 56329; see also 20 U.S.C. § 141 5(d)(2) [requiring procedural safeguards notice to
parents to include information about obtaining an IEE].) “Independent educational
assessment means an assessment conducted by a qualified examiner who is not employed by
* The federal code uses the term “evaluation” instead of the term “assessment” used by Califomia law, but
the two terms have the same meaning for these purposes. Page 64 Monday 07 of Jan 2008, ination ->949 856 0168 Page 44 of 4g
y
the public agency responsible for the education of the child in question.” (34 CFR. §.502(aX3\Xi). ) To obtain an IEE, the student must disagree with an assessment obtained
by the public agency and request an IEE. 34 CFR. § 300.502(b\ 1) & (bX2).)
. The provision of an IEE is not automatic. Code of Federal Regulations, title, part 300.502(b)(2), Provides, in relevant part, that following the student’s request for an
IEE, the public agency me jt, without unnecessary delay, either:
(1) File a due process complaint to request a hearing to show that its
assessment is appropriate; or
(i!) Ensure that an independent educational assessment is provided at public
expense, unless the agency demonstrates in a hearing pursuant to $§ 300.507
through 300.513 that the assessment obtained by the parent did not meet
agency criteria.
(See also Ed. Code, § 86329, subd. (¢) [providing thata public agency may initiate a due
process hearing to show that its assessment was appropriate]. )
. As Stated in Factual Findings 85 through 95, and based upon Conclusions of
Law 2 through 29, the weight of the evidence mitigates against a finding that the District’s
assessment process was inappropriate or that Student is entitled to reim bursement for the
assessments, the District chose not to re-assess Student using formal, standardized tests in
spring 2007. The law does not require that it do so. Rather, the District proposed an
assessment plan that indicated that District staff would only conduct observations of Student
in the areas of cognitive functioning, academic achievement, and social adaptive behavior.
Student's mother signed the assessment plan; Student’s parents have not asked the District to
administer formal assessments.
. There are no specific statutory or regulatory standards for how observations,
conducted as part of an assessment process, should be performed. There is no guidance as to
how long an observation should be, where it should take place, or how notes on the
observation should be taken. There is no requirement that a formal report of the observation
be generated and, therefore, no standard for what such a report would contain or in what
format it would be written. Therefore, there is no basis for Student's contention that the
District's observations did not comply with evaluation and reporting requirements. No such
standards exist. In fact, the IEE obtained by Student did not include standardized tests either.
Dr. Bailey's IEE consisted of observations of Student, review of her records, research, and
the preparation of a report. Dr. Bailey did not conduct any standardized tests of Student.
Student's parents did not ask her to do so and she is not licensed to administer such tests.
Nor did Dr. Bailey or Student's parents refer Student to another psychologist to administer
standardized tests. Student disagreed with what the District assessors observed and
disagreed with their conclusions and recommendations concerning Student's placement,
However, such disagreement does not Support a contention that Student is legally entitled to Page 65 Monday 07 of Jan 2008, ination ~>999 856 0168 Page 45 of 48
an IEE. The weight of the evidence therefore Supports the District's contention that its
assessments were proper and that Student is not entitled to reimbursement of her IEE at
public expense. ?6
Determination of Re lief
. The court has long recognized that equitable considerations are appropriate
when fashioning relief for violations of the IDEA. (Parents of Student W. y, Puyallup Sch.
Dist, No. 3 (9th Cir. 1994) 31 F.3d 1489, 1496 (hereafter Puyallup School), citing School
Committee of Burlington v, Department of Education (1985) 47} U.S. 359, 374 [105 S.Ct.].) Compensatory education is an equitable remedy; it is nota contractual remedy.
(Puyallup School, supra, 31 F.3d at p. 1497.) Relief is appropriate if it is designed to ensure
that the student is appropriately educated within the meaning of the IDEA, (Jbid.) The
award must be reasonably calculated to provide the educational benefits that likely would
have accrued from special education Services the schoo! district should have supplied. (Reid
ex rel. Reid v. District of Columbia (D.D.C. Cir. 2005) 40] F.3d 316, 524.)
. A district may be required to reimburse a Student’s parents for the costs ofa
private school if the child Previously received special education and related services from the
district and the district failed to make a FAPE available to the child. (20U.S.C. §(aX 10) (CXii); 34 C.F.R, § 300.148(c); Ed. Code, § 56175.) Factors to be considered
when determining the amount of reimbursement include the existence of other, more suitable
placements, the effort expended by the parent in securing alternative placements and the
general cooperative or uncooperative position of the school district. (Zarger Range, supra, F.2d at p. 1487: Glendale Unified Sch. Dist. v. Almasi, (C.D. Cal, 2000) 122 F.Supp.2d, 1109.)
. Additionally, a student is only entitled to reimbursement of private schoo!
tuition if it is determined that the placement at the private school was appropriate for the
student. The placement does not have to meet the standard of a public school’s offer of
FAPE; it must, however, address the Student’s needs and provide educational benefit to him
or her. (Florence County School Dist, v. Carter (1993) 510 US. 7,13 (114 S.Ct. 361, 126
L.Ed.2d 284] (hereafter Carter), Alamo Heights Independent Sch. Dist. v. State Bd of
Education (5th Cir. 1986) 790 F.2d 1153, 1161; 34C E.R. § 300.148.) Court decisions
subsequent to Burlington have also extended relief in the form of com pensatory education to
students who have been denied a FAPE. (See, ¢.g., Lester H. v. K. Githool and the Chester
Upland School District (3d Cir. 1990) 916 F.2d 865: Miener v. State of Missouri (8th Cir.) 800 F.2d 749.) Compensatory education is an equitable remedy. There is no
obligation to provide day-for-day or hour-for-hour compensation. “Appropriate relief is relief
—_——
** The ALJ notes that the bill for services tendered by Dr. Bailey is extraordinarily high. The ALJ
reviewed a sampling of about 15 prior Califomia administrative decisions in which the Student's parents requested
reimbursement for an [EE. The ALJ did not find any reimbursement order for over $4,500. Page 66 Monday 07 of Jan 2008, ination -9949 656 0168 Page 46 of 48
designed to ensure that the Student is appropriately educated within the meaning of the
IDEA.” (Puyallup School supra, 3) F.3d at p. 1497.)
. There is broad discretion to consider equitable factors when fashioning relief.
(Carter, supra, 510 U.S. at p. 16.) The conduct of both parties must be reviewed and
considered to determine whether relief is appropriate. (Puyallup School supra, 31 F.3d at p,.) An award to compensate for past violations must rely on an individualized
assessment, just as an IEP focuses on the individual student's needs. (Reid ex rel. Reid y,
District of Columbia (D.D.C. Cir. 2005) 401 F.3d 516, 524.) The award must be “reasonably
calculated to provide the educational benefits that likely would have accrued from special
education services the school district should have supplied in the first place.” (/bid.)
. Therefore, under appropriate circumstances, a court (and an ALJ ) has the
discretion to award prospective relief, However, in California, the Education Code limits the
prospective relief that an ALJ may order, By statute, an ALJ may not render a decision that
results in the placement of an individual with exceptional needs in a nonpublic, nonsectarian
school, or that results in a service for an individual with exceptional needs provided by a
nonpublic, nonsectarian agency, if the school or agency has not been certified by the State of
California pursuant to the Education Code. (Ed. Code, § 56505.2, subd. (a).)
. Based upon Factual Findings 68 through 82 and 96 through 100 and
Conclusions of Law 17, 18, 19, 21, 22, 23, and 32 through 36, Student is entitled to relief
based upon the ALJ's finding that the District's offer of placement in its SDC and CDC
general education classes denied Student a FAPE. Hanna Fenichel met the legal
requirements of an appropriate placement for Student. Nor is there any evidence that
Student’s parents unduly failed to cooperate in the [EP process. Student’s parents are thus
entitled to reimbursement for the costs of tuition at Hanna Fenichel that they have already
paid. Furthermore, as detailed above, since the evidence supports the contention of Student’s
mother that the school required payment of tuition in advance, Student's parents are entitled
to the full amount of tuition they have paid, in the amount of $6,100,
. 38. However, as noted in Conclusion of Law 37, California statute prohibits the
AL] from ordering that the District prospectively place Student at Hanna Fenichel and the
ALJ is not making such an order now. The ALJ's order that the District reimburse Student's
parents the full tuition they have paid for school year 2007-2008 is therefore not to be
interpreted as an order for prospective placement of Student at Hanna Fenichel nor is it to be
interpreted that Hanna Fenichel is the stayput for Student for any future purposes.
. Based upon the Factual Findings and Conclusions of Law in this Decision,
Student is entitled to the provision of a one-on-one aide at school. As Stated in Factual
Finding 101, however, Student is not entitled to her choice of aide provider. Therefore, the
ALJ orders that the District provide an appropriate aide to Student in her class at Hanna
Fenichel. The aide shall be specifically trained in ABA principles and specifically trained to
work with autistic children. Should the District decided to use an aide other than one from
Coyne, the District will arrange for an IEP team meeting to determine an appropniate plan to
transition Student from her Coyne aides to the aide(s) selected by the District. Page 67 =ctv-00622-WazBOR Document1 Filed ne Page 67 of 70
Monday 07 of Jan 2008, ination — ->949 856 oO} Page 47 of 4a
. Based upon Factual! Findings 85 through 95 and Conclusions of Law 2 through, Student's request for reimbursement for the cost of Dr. Bailey's services is denied.
]. . Finally, Student requests monetary compensation for her mother’s time spent
supplementing Student's in-home ABA program. Student's request is supported by neither
providing services to her child. However, that case was very unusual because the parent had
specifically received training to become a service provider when she was unable to find
another service provider to furnish services to her child. The court limited its holding toa
situation in which “a trained service provider was not available...” (/d. at p. 75.) In this
case, there is no question that Appropriate service providers were available through the
District or through NPAs such as Coyne. Additionally, the ALJ has found that Student did
not require more than 10 hours a week of one-on-one ABA therapy in order to benefit from
her education. Student's request that her mother be reimbursed for providing supplement
ABA services is therefore denied.2’
ORDER
l. Within 30 days of this order, the District shall pay $6,100 to Student’s parents
to reimburse them for the costs of tuition they paid to the Hanna Fenichel School.
. Within 30 days of this order, the District shall provide a one-on-one aide to
Student for the time she is enrolled at Hanna Fenichel, for the remainder of the 2007-2008
school year, including extended school year in the summer of 2008. If the District chooses
Not to contract with Coyne, the District shal! arrange for an IEP meeting with Student’s
parents and the District team members to determine an appropriate plan for transitioning
Student from her present Coyne aide(s) to the aide(s) selected by the District. The order to
hold the IEP meeting if Coyne is not the selected provider does not affect the obligation of
the District to begin providing one-on-one aide services to Student at Hanna Fenichel within days of this order. The District shall also provide a minimum of one hour a week of
supervision for the one-on-one aide, either through its own staff of the NPA of the District's
choice.
Sr NRE Ecaeareetree:
Student has not provided any other evidence of costs expended by her parents for Coyne services. She
has therefore failed to show entitlement to any reimbursement other than that ordered here. Furthermore, since the
ALJ has found that District staff is competent to provide ABA services, Student is not entitled to reimbursement for
the costs of her Coyne one-on-one aide at school. , Page 68 8
Monday 07 of Jan 2008, ination ->949 856 oO1 Page 48 of 48
. If Student wishes to receive intensive ABA services from the District, she
must agree to the 10 hours of ABA services at the District schoo! site, as offered in the June, 2007 JEP.
, Student’s other requests for relief are denied,
PREVAILING PARTY
Education Code section 56507, subdivision (d), requires that this Decision indicate
the extent to which each party prevailed on each issue heard and decided in this due process
matter. Pursuant to this mandate, it is determined that the Student substantially prevailed on
Issue 1(D) and fully prevailed on Issue I(E). The District fully prevailed on Issues 1(A),(B), 1(C), 1(F), and Issue 2. The District minimally prevailed on Issue I(D).
RIGHT TO APPEAL THIS DECISION
This is a final administrative decision, and all parties are bound by this Decision.
Pursuant to Education Code section 56505, subdivision (k), any party may appeal this
Decision to a court of competent Jurisdiction within ninety (90) days of receipt,
DATED: January 7, 2008
Office of Administrative Hearings
Special Education Division Page 69 UNITED STATES
DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
SAN DIEGO DIVISION
# 149434 —- SH
** COPY « =x
April 04, 2008:28:36
Civ Fil Non-Pris
USAO #.: O8CVO622
Judge..: JANIS L. SAMMARTINO
Amount. : $350.00 CA
Total-—> $350.00
FROM: KA.D (MINOR) V. SOLANA BEACH SPage 70 : V apers as required by law, except as provided
tates in September 1974, is required for the sept cre open purpose of initiating
SOLANA BEACH SCH@®)ls DISTANC patito AAV ELLEN
§a6 Diegu Thunty
CINU.STRRAINGTEP CREE ONLY T
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE
DEPUTY.
Jonathan Read, Fagen, Friedman & Fulfrost, | Civic Center Dr., Suite, San Marcos, CA 92069, Ph: 760-304-6000; Fax: 304-60] ]
DEUS Tae sea ea TR FF BTR
Brief description of cause:
VI. CAUSE OF ACTION
Re OUT Wie tage Statutes unless diversity):
Appeal of special education administrative decision; claims under ADA and Rehabilitation Act of 1973
VII. REQUESTED IN
LY CHECK IF THIS IS A CLASS ACTION. DEMAND $s
CHECK YES only if demanded in complaint:
COMPLAINT: UNDER F.R-C.P. 23 Damages according to proof & injunctive reliefs = JURY DEMAND: (Yes (No
VU, RELATED CASE(S) Sei a
IF ANY (See instructions) UGE DOCKET NUMBER
DATE _ SIGNATURE OF ATTORNEY OF RECORD ./04/2008 Rn Ky Ona
/04 1} 2 =
FOR OFFICE USE ONLY uu,
RECEIPT # | Yu AMOUNT 250 APPLYING [FP JUDGE MAG, JUDGE
UX 408
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Case sO Document 1 Filed oon ape Page {i070
| PRED
Maureen R. Graves (SBN 145979) L E U
John G. Nolte, (SBN 233966) PP Moe,
Law Offices of Maureen Graves OB APR -4 PH 4226
34 Schubert Court GHERY. US DISTRIC
Irvine, CA 92617 SOUTHSPN DISTRICT SF CAO,
Phone: 949-856-0128
Fax: 949-856-0168 ay cP
maureen@maureengraves.com DEPUTY
john@maureengraves.com
Attorneys for Plaintiffs
Ka.D., by her mother, Ky.D.,
as her next friend; Ky.D., and B.D.
}
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA f
9
Ka.D., a minor, by her mother, Ky.D., ) cabR, CV U 6 2 2 JLS POR
as her next friend; Ky.D. and B.D. ) ~
) «» COMPLAINT
) | 20 U.S.C. § 1415 et.seq.
Plaintiffs, ) 42 U.S.C. § 12101 et seq. ~~"
) 29 U.S.C. § 794
Vv. )
) Cal. Ed. Code § 56000 et. Seq.
SOLANA BEACH SCHOOL DISTRICT )
And MARY ELLEN NEST, ) JURY TRIAL DEMANDED
)
Defendants. )
)
Plaintiffs Ka.D., a minor, by her mother and next friend Ky.D., Ky.D., and B.D. (the
full names of whom are in an Application for Appointment of Guardian Ad Litem being filed
under seal contemporaneously herewith) allege as follows:
INTRODUCTION
1. Plaintiff Ka.D, a four and a half year old girl with a disability, files this civil action
against Defendant Solana Beach School District (hereafter SBSD or the “District”) and its
special education director, Mary Ellen Nest (hereafter Nest), alleging violation of the
Individuals with Disabilities Education Act (“IDEA”) 20 U.S.C. 1400 et seq., the Americans
with Disabilities Act (“ADA”), 42 U.S. . §12101 et seq., and Section 504 of the Rehabilitation
Act (“Section 504”), 29 U.S.C. § 794, Plaintiffs allege that Defendants SBSD and NEST
violated Ka.D.’s and her parents’ substantive and procedural rights under IDEA. Plaintiff
further alleges that Defendants SBSD and Nest unlawfully discriminated against her by
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making educational decisions about her and depriving her of the full range of educational
options based on her disability and her parents’ advocacy, by depriving her and her parents
of participation in programs on the same terms as it provided to others, and of failing to
offer an educational program that afforded her the same opportunity to benefit as did its
nondisabled students, violating the ADA and the Rehabilitation Act.
2. In violation of these statutes, the Defendant has intentionally, knowingly and
consistently refused to recognize and fulfill its obligation to allow Ka.D. to be educated in
natural settings for a preschooler (i.e., in preschool alongside nondisabled peers and in her
home and community), failed to design an appropriate educational program, and excluded
Ka.D. and her parents from equal, non-discriminatory participation in District services.
Instead, the District decided early that Ka.D. was to be educated in a segregated special
education classroom, and it has ignored both substantive and procedural legal requirements
in the service of that plan.
3. In July 2007, Plaintiff requested a due process hearing against the District from
the California Office of Administrative Hearings — Special Education Division (OAH), in
accordance with 20 U.S. C. §1415(f). The District also filed for hearing to demonstrate the
adequacy of its assessment of Ka.D. Following a due process hearing which began on
October 29 and concluded on November 19, 2007, a decision was issued on January 7, 2008
and received on that date. Although Plaintiff prevailed as to significant portions of the .
decision and was awarded much of the relief sought in the due process hearing, portions of
the decision were in favor of the District. Plaintiff alleges, as to those portions of the
decision, that the hearing officer’s decision failed to properly interpret federal and state law
and their requirements, is contrary to law, is unsupported by the evidence, and is clearly
erroneous.
4. Plaintiff being aggrieved by the due process hearing decision brings this civil
action pursuant to 20 U.S. C. §1415 (i)(2)(A).
5. This action includes both an appeal of an administrative decision and a request
for attorneys’ fees pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §
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1400 et seq. (hereinafter “IDEA”). Through this action, Plaintiffs challenge certain aspects of
the decision by OAH in the cases numbered N2007070255 and N2007090146, cases initiated
by the family against the District and by the District against the family, respectively.
Plaintiffs allege that the challenged portions of the Administrative Law Judge’s decision
failed to properly interpret and apply applicable law or to appropriately weigh evidence. A
copy of the decision is attached hereto as Exhibit A and incorporated by reference herein.
Plaintiff brings this action pursuant to 20 U.S.C. §1415(i)(3)(B) of the Individuals with
Disabilities Education Act (“IDEA”) in order to secure additional relief for Ka.D. and
because, as prevailing party in an underlying administrative IDEA hearing, plaintiff is
entitled to an award of attorneys’ fees in connection with the underlying administrative
hearing involving the same parties. As to the portions of the decision which Plaintiffs do not
challenge, Plaintiffs seek attorneys’ fees as prevailing parties in the underlying
administrative action.
6. Plaintiffs bring claims for discrimination and retaliation under Section 504 of the
Rehabilitation Act of 1973 (“Section 504”) and the Americans with Disabilities Act (42 U.S.C.
§ 12101), seeking injunctive relief to prevent further violations of these statutes as well as
compensatory damages to compensate for past violations and punitive damages to deter
similar misconduct in the future.
7. Plaintiffs bring claims for denial of a free appropriate public education in the least
restrictive environment under Section 504 because SBSD, as a public entity and recipient of
federal funds, was required to provide an educational program to plaintiff without
unnecessary segregation and without discriminatory provisions relating to program access
and parent involvement. Plaintiffs are seeking injunctive relief to prevent further violations
of these statutes as well as compensatory damages to compensate for past violations and
punitive damages to deter similar misconduct in the future.
8. With respect to the IDEA matter, Plaintiffs have prevailed for the most part, and
request attorney’s fees pursuant to 20 U.S.C. § 1415(i)(3) for the due process proceeding and
for attendance at the IEP meeting convened to transition Ka.D.’s program in accordance
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with OAH’s order. To date, the District has refused to pay such fees. With respect to the
other matters, they hope to prevail and to become entitled to attorney’s fees pursuant to 29
U.S.C. § 794a(2)(b), 42 U.S.C. § 12203 (a), (b) and (c), 42 U.S.C. § 12205, 29 U.S.C. § 794 and
42 U.S.C. § 12101 et seq..
JURISDICTION AND VENUE
9. This court has jurisdiction over the claims in this action pursuant to 20 U.S.C. §
1415(i)(2) &(3), 29 U.S.C. § 794, 42 U.S.C. § 12101 et seg. and 28 U.S.C. § 1331.
10. Venue is proper in this Court. All of the events that are the subject of this
complaint took place within the Southern District of California.
11. There is a present and actual controversy between the parties to this action. To
the extent required by law, Plaintiffs have exhausted their administrative remedies as to the
issues in this litigation.
PARTIES
12. _—~ Plaintiff Ka.D. is a four and a half year old girl with a disabilty. She was born on
April 24, 2003 in San Diego, California and resides with her parents, sister, and maternal
grandparents in Solana Beach, California. Ka.D. is eligible for special education services due
to her autism. Ka.D. is fully and successfully included in a typical community preschool,
requiring the assistance of a skilled one to one behavioral “shadow aide” to facilitate her
participation with typically developing peers. Ka.D. is, and has been at all times relevant
hereto, entitled to the full protections of IDEA, including the right to be provided by SBSD
with a free appropriate educational program made available, to the maximum extent
appropriate, alongside nondisabled peers. She is a "child with a disability" within the
meaning of IDEA, 20 U.S.C. Section 1401(3) and is a qualified individual with a disability
within the meaning of the ADA and the Rehabilitation Act. 42 U.S.C. Section §12131(2) and
29 U.S.C. Section 794.
13. The full name of Ka.D. is known to Defendant and is contained in an Application
for Appointment of Guardian ad Litem, which is being filed under seal contemporaneously
herewith.
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14, _— Plaintiff Ky.D. is Ka.D.’s mother. She resides in the City of Solana Beach in San
Diego County, California. The full name of Ky.D. is known to Defendants and is contained
in an Application for Appointment of Guardian ad Litem, which is being filed
contemporancously herewith. As an advocate on her daughter’s behalf, Ky.D. is within the
zone of the interest of the Rehabilitation Act’s requirements, including its prohibitions on
disability-related discrimination and on retaliation for disability-related advocacy and is
protected by the ADA’s prohibitions against retaliation and discrimination.
15. _— Plaintiff B.D. is Ka.D.’s father. He resides in the Solana Beach in San Diego
. County, California. The full name of B.D. is known to Defendants and is contained in an
Application for Appointment of Guardian ad Litem, which is being filed contemporaneously
herewith. As an advocate on his daughter’s behalf, B.D. is within the zone of the interest of
the Rehabilitation Act’s requirements, including its prohibitions on disability-related
discrimination and on retaliation for disability-related advocacy, and is protected by the
ADA’s prohibitions against retaliation and discrimination.
16. Defendant SBSD is a governmental agency organized and existing under the laws
of the State of California and is located within San Diego County. Defendant is required by
federal and California law to provide students such as Plaintiff with a free appropriate
educational program. Defendant is a “local educational agency” within the meaning of 20
U.S.C, § 1401(15), a recipient of federal funds subject to Section 504 of the Rehabilitation Act
of 1973, and a governmental entity subject to the Americans with Disabilities Act (42 U.S.C.
§ 12101).
17. Defendant MARY ELLEN NEST (“Nest”) is employed by the SBSD and has been
so employed throughout the 2006-07 and 2007-08 school years. Beginning in or around
August 2005, she became Director of Pupil Services for the SBSD.
STATEMENT OF FACTS
18. _‘ Plaintiff Ka.D. is a four year old girl who was diagnosed just after age two with
moderate to severe autism. At that time, Ka.D. demonstrated severe cognitive delays and
profound receptive and expressive language delays as well as a complete lack of functional
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nondisabled peers.
21. When she first came to the attention of SBSD, Ka.D.’s mother was informed that
the District had a special day class program for students like Ka.D. She was also informed
by District staff that SBSD would not provide in-home applied behavior analysis services.
Ka.D’s mother nonetheless requested that a full range of options be considered for Ka.D.
22. Ataseries of IEP meetings in spring 2006, SBSD declined to provide in-home
services, and insisted that if Ka.D. parents wished for her to receive publicly funded special
education services, most of her program would need to occur in a class composed largely of
students with autism, and entirely of students with disabilities. Opportunities for contact
with nondisabled students were described vaguely. Since Ka.D. was doing very well with
existing services, and was viewed by her parents and ABA provider as being ready for
inclusion in a typical preschool program, Ka.D. did not enter the program recommended by
SBSD. Instead, her parents filed for due process in May 2006, and in September 2006,
shortly before a hearing was scheduled to occur, the parties entered into a confidential
settlement arrangement regarding the 2006-07 school year.
23. While financial details are confidential, the educational bottom line was that
Ka.D. has continued to receive in-home ABA services from Coyne & Associates (Coyne), a
nonpublic agency certified by California to provide services for students with disabilities,
and since June 2006, she has attended a community preschool with natural proportions of
students with and without disabilities, supported by a behaviorist employed by Coyne. Since
approximately October 2006, she has also received speech and language and occupational
therapy services from SBSD.
24. Atsome point, Ky.D. inquired as to the availability of a slot in the District’s Child
Development Center (CDC) but was told that that option would be available to Ka.D. only if
it were provided for as a “mainstreaming” placement in her IEP. In contrast, typical
children are allowed to enroll in CDC without such limitations. In fact, CDC actively
discourages families of children with disabilities from enrolling them in the program outside
of the IEP process.
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25. __ As the spring 2007 annual review for Ka.D.’s IEP approached, Ky.D. and B.D.
hoped that the District would recognize that given her excellent progress, she should
continue to receive a similar program, combining 1:1 instruction with educational inclusion.
Ky.D.’s discussions with District staff regarding Ka.D.’s outstanding progress left her and
her husband hopeful that the District would finally honor Ka.D.’s right to. be educated in an
inclusive rather than segregated environment. While they hoped that the District would not
resist letting Ka.D. complete her time in preschool at her existing preschool with her highly
competent supports, they realized that the District might propose increasing reliance on
District staff to provide supports, and did not necessarily oppose such a transition.
26. The District, however, showed signs early on that their intent was to remove Ka.D.
from her community preschool placement and put her in its own largely segregated,
disorganized and fragmented program. In February 2007, the district held an IEP to
develop an assessment plan in which it would bring in several of its own staff as well as an
outside autism expert to observe Ka.D. in her current placement, ahead of the annual IEP.
27. Before the IEP team even met to discuss placement and services for the upcoming
year, Nest, SBSD’s special education director, telephoned Ky.D. to let her know that the
District was going to be proposing more “structure” for Ka.D., and that since she did not
expect the parents to agree, she hoped they would agree to an “informal mediation” rather
than invoking due process rights. By this time, Nest had contacted an outside expert to work
on this case because of what she represented was a dispute with the family. Nest also told an
educational consultant who was assisting the family through the San Diego Regional Center
that the District would be open to continuing the previous year’s arrangement; the
consultant responded that this was not likely to work, since the length of Ka.D.’s school week
would be increasing substantially. In response to protests by Ky.D. that she did not want her
daughter’s placement offer predetermined before her IEP team even met, SBSD convened an
in-person meeting, at which the same message was reiterated: that the parties were expected
to disagree at the IEP level, but that the District hoped to stay out of due process. Nest asked
Ky.D. not to make comments during the IEP meeting that might upset staff.
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28. While the bottom line—that there would be no in-home services and no agreement
for Ka.D. to remain in her community preschool and that the District would demand
“structure” in the form of a segregated special day class—was clear from the outset, details
emerged during two IEP meetings in May and June 2007. The first, on May 11, was
attended by the District’s expert, who was not invited back for the second meeting, on June
13, at which the District’s proposal was actually set forth. The District proposed to remove
Ka.D. from her inclusive preschool and to terminate in-home services, replacing her
research-validated and highly successful program with a convoluted mix of readily available
placements and services. Under its program, Ka.D.’s program would have three major
components: a special day class composed mainly of students with autism and a few
nondisabled peers run according to a rigid formula purportedly based on “general”
characteristics of students with autism; “mainstreaming” time in the Child Development
Center, a large, chaotic preschool/day care program operated by SBSD; and additional
instruction, which was poorly specified, through the District’s in-house applied behavior
analysis program. She would also be pulled out of other activities for speech and language
services.
29. Although Ka.D. had clearly been showing progress for nearly a year in the typical,
general education preschool, and even though the District’s own expert determined that the
CDC was inappropriate for Ka.D., Nest and the District deliberately ignored the
information (as well as the least restrictive environment mandates of IDEA and Section 504)
and proposed a more restrictive setting nonetheless.
30. ‘Ka.D.’s family filed for hearing, and after suggesting waiver of an early resolution
session so that the parties could proceed directly to mediation, SBSD abruptly cancelled
mediation shortly before it was to occur.
31. The District assessed Ka.D. during several observations by its psychologist,
behavioral specialist and hired expert in March and April 2007. Student’s parents disputed
the observations and placement recommendations of each. On August 7, 2007, Ka.D.’s
parents wrote to Nest informing her that they were going to obtain Independent Educational
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Evaluations for Ka.D. The District did not indicate its agreement to fund the IEE; however,
it also did not file a request for due process contesting the request for an IEE at public
expense until September 7, 2007. In the interim, Ka.D.’s parents arranged to have Dr.
Caroline Bailey, conduct a more thorough and comprehensive observation of Ka.D..
32. SBSD obstructed insofar as possible, observations of its programs by the
independent educational observer. Ultimately, that observation did occur, in October, 2007.
33. In fact, the District unduly restricts access to its preschool special education
programs by not only evaluators, but even by parents. The District’s undue restriction on
observation of its special education preschool program is in sharp contrast to its open door
policy for parents of nondisabled children. Nest has informed the family that they are
allowed to visit the site for a maximum of 30 minutes once a month and must be escorted by
an administrator. Each visit must be arranged by appointment only. In contrast the CDC
materials given out to parents of general education preschoolers clearly states that parents
are welcome any time to observe their child.
34, On October 29, 2007, a due process hearing was held. The Administrative Law
Judge rendered a decision in which each party partly prevailed, as more fully discussed
below.
35. The ALJ correctly determined that the District’s offer of placement denied Ka.D.
a free appropriate public education as its special day class (a group composed primarily of
students with autism) did not constitute the least restrictive environment for her, that its
CDC general education class was not appropriate for her, and that there was no evidence of
any other suitable placements for her. As the hearing officer recognized, Ka.D. was making
progress in her general education preschool program, and thus removing her into a group
composed primarily of students with autism (the District’s proposed placement) would
violate her right to be educated to the maximum extent appropriate with nondisabled peers;
the CDC general education preschool placement the District offered was inappropriate for
Ka.D. as it was too large; and the educational placement offered, as a whole, was not
appropriate, in that it would have required Ka.D. to manage interactions with an excessively
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large number of children, and multiple transitions between activities, settings and groups of
classmates. Since Ka.D.’s parents had been required to, and had, paid tuition for the year,
the District was ordered to reimburse this expenditure. The District was not ordered to
reimburse for applied behavior analysis support services which had already been provided
to Ka.D. at her preschool, because the parents had not proven out-of-pocket costs for
providing these services (which were supported by the San Diego Regional Center and the
family’s Tri-Care insurance through the Marine Corps). The hearing officer incorrectly
neglected to consider the impact of the use of private insurance on the family’s access to
other medical care services, of particular concern given Ka.D.’s eye disorder and the fact
that her father is recovering from a serious wound suffered in Iraq, and failed to make an
explicit finding regarding the appropriateness of the Coyne aide, although such finding is
implicit in the determinations that Ka.D. required an aide in her preschool, and that during
the period in which Coyne provided ABA services to Ka.D. she has progressed extremely
well, to the point that her standardized scores are now largely in the above and above
average range and she is increasingly able to demonstrate abilities independently in a variety
of natural settings.
36. Although the ALJ correctly determined that the special day class placement was
not appropriate, it failed to recognize the overwhelming evidence that the classroom, in
addition to not being the least restrictive alternative, was also lacking appropriate methods
of instruction, including adequate applied behavior analysis services, and did not include
peers with compatible instructional needs.
37. The ALJ concluded that there “is no dispute that Student requires [a one-to-one
ABA) aide in a general education classroom,” and ordered the District to provide an aide
(using either District or Coyne staff, at the District’s discretion) at Hanna Fenichel
Preschool. However, the ALJ’s order required only that the District provide the aide
“within 30 days of this order” so that no provision was made to provide or fund an
admittedly essential service in the interim. An appropriate order would have provided not
only a deadline for the District to make the election between Coyne or district staff and
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arrange for a transition plan, but also interim services and funding for the Coyne aide and
funding for any necessary supervision and consultation as well as attendance at IEP meetings
during the transition. The failure to do so deprived Ka.D. of a free appropriate public
education in that the program ordered did not require the District to provide all of the
services Ka.D. required to receive educational benefit in her general education classroom. As
a result, family was required to, and did, fund the interim behavioral services Ka.D.
required.
38. Contrary to the ALJ’s decision, the Independent Educational Evaluation
conducted by Dr. Caroline Bailey should be reimbursed. The family gave the District notice
of its disagreement with District evaluations and requested information as to the District’s
criteria for IEEs. The District failed to provide such information and did not request a due
process hearing to defend the appropriateness of its assessments “without unnecessary
delay.” In fact, its assessments were deficient as they failed to recognize that Ka.D. would
not be appropriately placed in the District’s SDC or in the CDC preschool and that
placement in a small, typical preschool with one to one aide support was the appropriate
placement and in that they failed to accurately identify the elements of an appropriate
program for Ka.D. Dr. Bailey’s evaluation came to radically different conclusions than did
the District’s. This is not surprising as the District’s piecemeal observations were flawed in
their failure to sufficiently observe Ka.D. across relevant settings, in their vague and cursory
descriptions of observed behaviors and environments, in their failure to take into account
Ka.D.’s strabismus in evaluating the relationship of her gaze to “autism,” and in their failure
to synthesize findings into a report which linked and cross-checked observations and other
information, including relevant research findings. The ALJ’s decision imposing essentially
no requirements on districts which use observational rather than standardized testing
techniques in evaluating students also undermines one of the essential purposes of the IEE
right, which is to provide families with “access to an expert who can evaluate all the material
that this schoo! must make available, and who can give an independent opinion” so that,
families “are not left to challenge the government without a realistic opportunity to access
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the necessary evidence, or without an expert with the firepower to match the opposition.”
Schaffer v. Weast, 126 S. Ct. 528, 532 (2005). Having failed to promptly to seek a hearing to
defend against payment, and having chosen instead to discourage a full and comprehensive
evaluation, SBSD should have been required to fund the assessment unless it demonstrated
during the due process hearing that the IEE did not meet agency criteria it had provided to
the family. The District did not, in response to family inquiries as to criteria for the IEE,
provide monetary, credentialing, or other guidelines. In fact, its primary concern seemed to
be placing limits on the amount of time Dr. Bailey would be allowed to observe the District’s
programs. The District also did not establish that the IEE did not meet agency criteria.
39. The ALJ incorrectly concluded that District staff was adequately trained to
implement Ka.D.’s IEP. The decision ignored the importance of the significant evidence of
problems with the District’s behavioral program’s design, implementation, and record-
keeping, and made numerous factual and legal errors in concluding that District staff were
capable of implement =ingthe research-based behavioral program required to continue
Ka.D.’s progress across environments. The hearing officer improperly trivialized differences
between Ka.D.’s current providers and District staff by describing the current providers as
“even better trained” and “more diligent in keeping records,” failing to acknowledge
District’s staffers’ lack of commitment to inclusion as well as their ambivalence regarding,
and refusal to commit to using, research-based educational strategies.
40. The ALJ incorrectly determined that the District’s offer of 10 hours per week of
ABA services delivered at the District’s location and by its staff was adequate. In fact, Ka.D.
required no less than 12 to 15 hours of in home services delivered by a highly skilled
provider in a coherent, well-designed and supervised ABA program; and the appropriate
locations for this service were in Ka.D.’s home, neighborhood and broader community, not
in a special education cubicle convenient for SBUSD. In fact, the evidence established that
District staff did not and would not in Ka.D.’s case deliver ABA services in accord with
research based methodologies as to location, program design or intensity, or in a manner
reasonably calculated to allow Ka.D. to participate successfully in general education and
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access the general curriculum alongside nondisabled peers.
41. _—_In finding District staff and services adequate, the ALJ ignored extensive evidence
(including the District’s disregard of Ka.D.’s history of progress in the appropriate
preschool setting and its disregard of IDEA’s requirement that students with disabilities be
educated to the maximum extent appropriate alongside nondisabled peers).
42. Moreover, the ALJ incorrectly required the family to justify reimbursement for
each component of the educational program with which they replaced the District’s
inadequate offer. Having rejected the District’s offer, the family is entitled to reimbursement
if the program it selected was itself proper. The evidence overwhelmingly supports the
conclusion that the combination of community preschool with aide and ABA home program
provided to Ka.D. in place of the District’s offer was in all ways sound and beneficial.
Nothing in IDEA requires parents presented with a blatantly inappropriate and overly
restrictive service offer to “mitigate damages” by discerning what pieces of a district’s offer
might be defensible, and to plan their child’s program and schedule around accessing that
specific component.
43. The ALJ also improperly fashioned the remedy provided so as to leave KaD., in
the event of a subsequent dispute, with no appropriate “stay-put” placement. Concerned
with the state statutory prohibition against an ALJ ordering placement in a school that is not
a state-certified non-public school, the ALJ, rather than ordering placement in a classroom
with the necessary features (as she attempted to do in making a specific description of the
type of aide to be provided), ordered reimbursement but declared the placement for which
reimbursement was offered not to be the “stay put” placement. In fact, the question of
whether the placement for which reimbursement is offered becomes the stay put placement is
determined by federal law, and the ALJ had no authority to override this protection.
44. Throughout the decision, the ALJ’s conclusions and findings that are adverse to
Plaintiffs are incorrectly decided and are contrary to the evidence presented during the
hearing. |
45. The ALJ’s findings, conclusions and orders were completely inconsistent with the
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overwhelming evidence that the District predetermined that it would not provide Plaintiff
with placement at a community preschool and would not provide her a home ABA program.
In fact, Nest made clear to Plaintiff Ky.D. that she knew that the District’s offer would not
include the community preschool or a home program well in advance of the IEP meeting.
46. Although Nest clearly informed Plaintiffs prior to the relevant IEP meetings, that
the options she believed the parents were likely to request would not be offered, the ALJ
incorrectly concluded that the parents were provided sufficient “participation” in the IEP
process. The ALJ appears to have misapplied the burden of proof, noting that the family
failed to provide “compelling” evidence of predetermination even though the preponderance
of the evidence standard was applicable, and even though the Supreme Court has made clear
. that the rule in IDEA cases that filing parties have the burden of proof is merely a
procedural default rule to be applied in cases of evidentiary equipoise.
47. Although the evidence clearly indicated that Ka.D. has been able to successfully
participate in general education preschool with supports in the form of a one to one
classroom aide and a quality ABA home program consistent with sound research, the ALJ
failed to acknowledge the role the ABA program plays in Ka.D.’s successful inclusion with
nondisabled peers and incorrectly concluded that the admittedly less qualified District staff
and its approach which lacked a research basis were sufficient. Additionally, the ALJ
incorrectly concluded that the District’s ABA program was not shown to lack research bases.
48. The ALJ made numerous other factual and legal errors, as well generally ignoring
inconsistencies and contradictions in District staffers’ versions of events, indulging
unwarranted inferences in favor of the District, ignoring and in many cases excluding the
great weight of published research supporting Plaintiff's claims, and misapplying IDEA’s
standards. |
_49. Rather than ensuring that continuous aide services and a smooth transition occur,
OAH failed to require an essential service (the one-to-one aide) for a month following the
decision. The District, for its part, did not voluntarily supply the service in the interim,
although the ALJ had determined it to be necessary for Ka.D.’s successful participation in
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her preschool environment, and delayed transition planning to the maximum extent allowed
by OAH’s order, predictably resulting in failure to complete the transition planning process
within the 30 day gap period mproperly created by OAH. Moreover, during the period from
the end of the due process hearing until the present, the District has refused to include or
solicit input from Coyne & Associates in planning the transition ordered by the ALJ,
creating a plan with no input on Ka.D.’s present levels, current needs or potential problems
that could arise as the district transitions from Coyne support to the District’s. When the
parent requested that Coyne be included, Nest refused to pay for any Coyne involvement in
the IEP to plan the ordered transition.
50. The ALJ incorrectly concluded that Ka.D.’s mother was not entitled to
compensation for her time supplementing her in-home ABA program. Ky.D. was not merely
participating in her child’s therapy in the manner of “parental participation” models but
was providing skilled services an NPA would have provided if funding had been available.
Nor was the therapy Ky.D. provided in excess of Ka.D.’s needs.
51. The District has failed even to comply with the portions of Ka.D.’s IEP on which
there is agreement, the speech and occupational therapy programs. The District failed and to
some extent refused, until after a formal complaint was lodged with the California
Department of Education, to comply with the speech and OT provisions of Ka.D.’s IEP.
52. The hearing officer gave insufficient weight to the procedural dimensions of the
District’s failures with respect to Ka.D, viewing it as sufficient that family members were
allowed to speak and irrelevant that their statements were rarely answered and had no
bearing on the District’s decision making. In fact, the record reveals IEP “discussions” in
which the District staff members allowed the family to voice their wishes but in which the
family’s proposed placement was never really on the table. The attempt to circumvent the
IEP process and come to agreements outside of the process had real, harmful effects for
Plaintiff. The program envisioned in the District’s “informal mediation” scenario was not
one which would have been developed by an IEP team, it would not necessarily have
included stay put protections so that Ka.D. could continue to receive publicly funded services
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in the event of future disputes, and it reflected the District’s negotiating posture rather than
Ka.D.’s needs or her or her parents’ rights under state and federal law.
53. The hearing officer drew conclusions about Ka.D.’s’s needs and options which
were not supported by the evidence.
54. The ALJ’s finding that the District properly assessed Ka.D. was factually
incorrect. Clearly, the District’s assessment failed to identify the appropriate placement for
Ka.D.. Moreover, the ALJ improperly raised and adopted criteria based on objections to
Dr. Bailey’s assessment that the Distrtict had not articulated to the family.
CLAIMS FOR RELIEF
—COUNT ONE—
Individuals with Disabilities Education Act
and Implementing California Statutes-Attorneys’ Fees
55. ‘Plaintiff realleges paragraphs | through 53.
56. The educational opportunity created by IDEA is protected by an administrative
hearing and judicial process that is available to a parent or student dissatisfied with the
identification, assessment, or educational program offered by the local educational agency.
20 U.S.C. § 1415. A student who prevails in such administrative hearing is entitled to an
award of attorneys’ fees.
57. Plaintiff has largely prevailed in the due process proceeding involving OAH Case
Nos. N2007070255 and N2007090146 and is entitled to an award of attorneys’ fees as
prevailing party in that matter and for attending the transition IEP meeting which resulted
from that proceeding, and to such attorneys’ fees as may be necessary to secure the
underlying award of attorneys’ fees. The District has failed and refused to pay the fees
incurred in this matter.
—COUNT TWO—
Individuals with Disabilities Education Act
and Implementing California Statutes-Appeal of Administrative Decision
58. _ Plaintiff realleges paragraphs 1 through 56.
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59. The educational opportunity created by IDEA is protected by an administrative’
hearing and judicial process that is available to a parent or student dissatisfied with the
identification, assessment, or educational program offered by the local educational agency.
20 U.S.C. § 1415. A party aggrieved by the decision of the administrative tribunal is entitled
to judicial review of that decision.
60. Portions of the decision in OAH Case Nos. N2007070255 and N2007090146 were
incorrectly decided and Plaintiffs seek reversal of those portions of the hearing officer’s
decision decided in favor of the District. |
61. Plaintiffs will be entitled to such additional attorneys’ fees as may be necessary to
secure reversal of the incorrect portions of OAH’s decision.
—COUNT THREE—
Violation of § 504 of Rehabilitation Act of 1973
62. _—~ Plaintiff realleges paragraphs 1 through 60.
63. Defendants by their actions and inactions set forth above, have violated and
continue to violate Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794
(Section 504), and the regulations promulgated thereunder, 34 C.F.R. Part 104, by
discriminating against Plaintiffs on the basis of Ka. D.’s disability, excluding plaintiffs from
the participation in or denying plaintiffs the benefits of, or subjecting plaintiffs to
discrimination under a program or activity receiving Federal financial assistance.
Defendants have further violated Section 504 by retaliating against Plaintiffs for actions
protected under Section 504, including advocating on behalf of a child’s education. In
essence, having exercised their due process rights upon Ka.D.’s entry to the District, Nest
and the District refused to let her case enter a mode of normal educational planning,
predetermining the outcome of the IEP process and relegating her family to a requested
process of “informal mediation” even before a dispute had arisen.
64. ‘As a direct and proximate result of Defendants’ violation of Section 504, Plaintiffs
have suffered and continues to suffer injuries, pain, humiliation, anxiety, mental anguish,
emotional distress, and damage to reputation, social and educational development and
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(in effect, that it provide the “stay put" rights which would have been clearly available
pursuant to 20 U.S.C. § 1415(j) but for the ALJ’s specific indication that her decision created
no stay put rights). Because the hearing officer’s determination that Ka.D.’s placement in
her community preschool was reimbursable it constitutes an agreement between the state
and Plaintiff as to that placement, Ka.D. is entitled to the continuation of the placement for
which reimbursement was ordered pending the final outcome of this judicial action, absent
contrary agreement of the parties. Such an order would place the parties in appropriate
bargaining positions as Ka.D. approaches her critical kindergarten year. In the absence of
such relief, the District may again insist that if Ka.D.’s parents want special education
services, these will only be provided in a program which is overly segregated and/or
fragmented and full of unnecessary and detrimental transitions.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that this Court enter judgment on her
behalf and enter preliminary and permanent injunctive relief and declaratory relief as follows:
1. Reverse OAH’s findings as to Issues 1A, 1B, 1C, IF, and Issue 2.
2. Order the District to provide Ka.D. a quality, research-based home ABA program,
reimbursement for Ky.D. for her hours spent working as Ka.D.’s tutor, payment for the cost
of Dr. Caroline Bailey’s Independent Educational Evaluation, compensation for any costs or
missed services due to the gap in service, and compensation for the adverse impact on family
medical benefits of the diversion of such coverage to fund necessary educational services for
Ka.D.
3. Order the District to reimburse any costs the family has borne and compensate
any providers which have yet to be compensated or which provided services which were the
responsibility of SBSD.
4, Award Plaintiffs damages in an amount to be determined at trial, including
punitive damages in an amount to be determined according to the proof at trial to deter
Defendants from similarly violating the rights of Ka.D. or other children for whose
educations they are responsible and parents whose rights they are obliged to respect and
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from engaging in similar disability-based discrimination and advocacy-based retaliation with
regard to this family.
5. Award Plaintiffs costs, disbursements and reasonable attorneys’ fees in the
underlying administrative matter and in this matter, and in this proceeding; and
6. Grant such other relief as this Court may deem just and proper.
DEMAND FOR JURY TRIAL
Plaintiffs hereby demand a jury trial as to all matters so triable.
Respectfully submitted 4 April 2008, _CH//] Onn noon GAISL
MAUREEN GRAVES
Counsel for Plaintiffs
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3:08-cv-00622-W-BOR Document1 Filed 0004 ae g
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BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
SPECIAL EDUCATION DIVISION
STATE OF CALIFORNIA
In the Matter of: |
STUDENT, OAH CASE No, N2007070255
Petitioner,
Vv,
SOLANA BEACH SCHOOL DISTRICT,
Respondent,
SOLANA BEACH SCHOOL DISTRICT, OAH CASE NO. N2007090146
Petitioner,
v.
STUDENT,
Respondent,
DECISION
day of hearing held on November 19, 2007, at the offices of the Solana Beach Schoo! District
in Solana beach, California, ! The hearing was Open to the public, at the request of Student’s
parents,
cee
' The hearing was originally scheduled to begin on October 22, 2007 Due to the fires in San Diego
County, the hearing was Postponed a week
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Student filed a request for due process on July 10, 2007. The District filed a request
for due process on September 7, 2007. The District’s unopposed motion to consolidate the
{wo cases was granted on September 14, 2007. Applicable timelines for the cases were
deemed to begin running from the date the District's due process request was filed. At the
due process hearing, the ALJ received Sworn oral testimony and documentary evidence. At
the conclusion of the hearing, the parties agreed that the record would remain open in order -
ISSUES?
1, Whether the District denied a free appropriate public education (FAPE) to
Student for the 2007-2008 school year and 2008 extended school year by:
A. Predetermining its offer of placement and related Services.
B. Failing to consider all relevant data concerning Student, including input
from her parents, before making an offer of placement and related services,
C. Failing to offer an applied behavior analysis (ABA) therapy program
that meets Student’s unique needs because it js not scientifically based and supported
nr
” During the hearing, Student withdrew as a separate issue her contention that the District denied her a
FAPE by failing to ensure Dr Laura Schreibman’s presence at all of Student's individualized educational plan team
Meetings during the time in question. Additionally, Student orginally raised the issue, in her complaint and at the
consultation between its staff and Student’s present providers of applied behavioral analysis services ts insufficient.
This issue is therefore not addressed in this decision, Finally, the issues have been restated in accord with the
evidence presented at hearing and the arguments offered by Student in her briefs
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by peer-reviewed research, to the extent practicable, is not offered in a home
environment, and fails to Provide a sufficient amount of therapy hours.
D, Offering a placement for a portion of Student's school day ina special]
day class that does not incorporate adequate ABA Principles, fails to include peers
with compatible instructional needs, and which is not the least restrictive environment
for Student.
E. Offering a placement ina District genera! education classroom fora
portion of Student's school day thatis an inappropriate instructional setting for her
and whose addition to Student’s Program creates a school day that includes too many
transitions between classroom settings,
F. Failing to provide staff capable of implementing the individualized
educational plan (IEP) offered by the District.
2. Are the District's assessments of Student with regard to her educational
placement appropriate and, if not, is Student entitled to reimbursement from the District for
the independent assessment conducted by Dr. Caroline Bailey?
REMEDIES SOUGHT BY STUDENT
Student seeks District funding of 34 hours per week of direct ABA therapy,
through her present provider, Coyne & Associates (Coyne), with the hours to be divided
between student’s private preschool, her home and in the community. Student also seeks 16
hours per month of ABA supervision, also through Coyne, and payment for two hours per
month of ABA clinics, attended by Student's educators, aides, and ABA providers. Student
also seeks reimbursement to her mother for time her mother Spent providing ABA therapy to
Student in their home. Student also seeks reimbursement for the cost of her tuition at the
Hanna Fenichel preschool for the 2007-2008 school year, which has already been paid by her
parents, along with an order for prospective placement at Hanna Fenichel with one-on-one
aide support from Coyne for all hours Student is in attendance, for the remainder of the
2007-2008 school year. Finally, Student seeks reimbursement for the services provided by
Dr. Bailey, including her observations, time Spent researching and reviewing Student's
records, and time spent Preparing her report.
CONTENTIONS OF THE PARTIES
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Student contends that the District committed procedural violations of the reauthorized
Individuals with Disabilities Educational Act (IDEA) during the IEP Process by
predetermining her placement in the District's preschool and predetermining that Student no
longer required that her present amount of ABA services continue in her home. Student also
Services, and failed to offer a program that is scientifically based and supported by peer-
reviewed research, to the extent practicable. Student further contends that the IEP offer is
substantively defective because it fails to meet her unique needs. Student contends that the
District's offer does not include provision for sufficient direct ABA? instruction, fails to
ronment (LRE) for her.
She also contends that the offer of placement in the District's general education classroom
for the other portion of Student’s school day is inappropriate due to the structure of the class
and, in particular, the amount of students in it. Student further contends that District staff is
for the services of Dr. Caroline Bailey, including all time spent on observations, review of
records, research, and for preparation of Dr, Bailey's extensive report.
The District contends that it did not commit any procedural or substantive violations
ofthe IDEA. It asserts that the evidence fails to support Student’s contention that the
rr
7 As explained by District expert Dr. Laura Schreibman, ABA, as an intervention for the treatment of
autism, is oflen associated with specific behavioral methods, such as: discrete trial training (DTT), intensive
behavioral intervention: incidental teaching; prvotal response training; and verbal behavior analysis. A discrete trial
1s a single cycle of a behavioraily-based instruction routine. A particular trial may be repeated several times in
succession, several times a day, over several days (or even longer) until the skill is mastered.
The method and technique of ABA therapy requires that targeted behaviors be reduced to their most basic
elements, and that the child is then trained by repetitious drilling in the redirected behaviors desired. Contextual
factors, established operations, antecedent stimull, positive reinforcers, and other consequences are used, based on
identified functional relationships with the environment, in order to produce practical behavior change. Negative
behaviors are generally ignored. Prompts or other assislance are timed and provided to assure Correct responses, and
then gradually “faded” to establish independence The child is then urged to repeat each task until it has been
leamed. Overall, the treatment focuses primarily on developing language, increasing social behavior, and promoting
cooperative play with peers along with independent and appropriate toy play, Concurrently, substantial efforts are
directed at decreasing excessive ntuals, tantrums and aggressive behavior
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failed to disagree with the assessments conducted by the District, a Prerequisite to their
entitlement to an independent educational evaluation (IEE). In the alternative, the District
offers that its assessments all met appropriate legal standards. The District therefore denies
that it violated Student's rights under the IDEA or that she is entitled to any of the remedies
she has requested.
FACTUAL FINDINGS
Background Information
2. Student's parents and grandparents started noticing that Student was failing to
develop appropriately when Student was around two years old. They noticed that Student's
eye expression was “flat.” Student was not showing any interest in talking, was not
babbling, as would a normal child, had no eye Contact, and showed no interest in others.
Student's medical providers diagnosed her with severe autism and referred Student's parents
noted that Student failed to interact with others, engaged in minimal eye contact with others,
failed to respond to basic commands or to her name, would run out of the house, exhibited
some aggressive behaviors, was Prone to tantrums, and exhibited some stereotypical autistic
behaviors, such as spinning and hand movements. The Regional Center found that Student's
educational needs were severe and that her behavioral needs were moderate. The Regional]
Center contracted with Coyne, which is certified by the state of California as a non-public
agency (NPA) to provide the ABA services to Student,
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3. Once Student was diagnosed with autism, her mother became an active
Participant in researching information and treatments on autism and personally learning
techniques which Student's mother could implement herself with Student. Mother’s research
On the internet in the summer of 2005, led her to the Brent Woodall Foundation.’ The
foundation evaluates children for autism and recommends treatments and sources of
assistance for parents. Tracey Woodall runs the Foundation, which is based in Texas,
Student and her mother flew to Texas in August of 2005, Ms. Woodall administered the
Assessment of Basic Language and Leaming Skills to Student to assess Student’s present
developmental levels and to assist In educational planning for Student. The assessment
observations of Student indicated that she was able quickly to acquire tasks that did not
require language comprehension. The assessment also indicated Student had profound
receptive and expressive language delays and that Student did not then possess any
functional social skills. Student also demonstrated delays in Self-help skills, as well as self-
stimulatory behaviors stereotypical of autism, such as wiggling her fingers.
4, During the four days Student and her mother were in Texas, the Woodall
Foundation provided Student with 32 hours of ABA therapy and provided Student’s mother
with intensive parent training. Student responded extremely well to the therapy, progressing
more in the four days than expected. Ms. Woodall recommended that Student receive at
least 30 hours per week of one-on-one direct ABA therapy services,
5, Although the Regional Center did not agree to fund the 30-hour a week
Program recommended by Ms. Woodall, it did contract with Coyne to provide approximately
12 hours a week of in-home ABA services to Student starting in September 2005. Except for
the number of recommended hours, the Coyne services mirrored the recommendations made
by Ms. Woodall. Coyne provided a parent training component as well. Within a short time
after the Coyne services began, Student’s mother noted a marked improvement in Student’s
behavior and development. ,
6. The Woodall Foundation administered another set of assessments to Student in
December 2005. The assessment noted that in the four months or so that Student had been
receiving ABA services, Student's speech and language skills had progressed exceptionally
well, rising in just four months from profoundly severe to moderately severe.
7. Planning for Student’s transition from early start services to educational
Services to be provided by the District occurred in the spring of 2006. Prior to the meeting,
Student was assessed by the District in the areas of psycho-motor developmenv/perceptual
function, language/speech/communication development, cognitive functioning,
rr nn
* His widow, Tracey Woodall, founded the Brent Woodall Foundation in his memory after he was killed in
the World Trade Towers on September 1], 2001. Student's mother was drawn to the website because she had
known Brent Woodall in college.
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social/emotional adaptive behavior, and health. Coyne also did its own Psychological
assessment of Student about the same time the District conducted its assessments of her, as
part of the Regional Center’s ongoing provision of services to Student.
8. Student’s initial IEP with the District was held on March 31, 2006. The IEP
team noted that Student was highly responsive to a structured environment. She was
beginning to show strong pre-academic skills (she was able to count to 12), and could answer
However, the assessments indicated, and the IEP tcam agreed, that Student demonstrated
significant deficits in the areas of receptive, expressive and pragmatic language. Student
communicated primarily using one-word utterances and she often Spoke jargon and engaged
in echolalia. ® Although Student was approximately 34 months old at the time she was
the ages of 15 and 16 months. Ata level of between 20 and 2] months, Student’s expressive
vocabulary was also significantly below her actual age level. Student also demonstrated
significant social/emotional deficits, The JEP team noted that she felt overwhelmed in large
groups and would withdraw. Student continued to demonstrate fleeting and limited eye
contact, and was noted to withdraw during group activities with peers. The IEP team also
noted that Student's diagnosis of autism caused the indicated delays in communication and
social skills and that Student was currently unable to acquire new skills through observation
Or group instruction,
9. As a result of Student’s assessments and discussions with the IEP team on
March 31, 2006, the District offered Student the following placement and services:
placement in a District special day class for 240 minutes a day, 120 minutes of which would
be individualized direct instruction; individualized direct instruction for an additional two
hours per day, five days a week; speech and language services three times a week for 30
minutes each session; and occupational therapy/speech Broup one time a week for a 45.
minute session. The District also proposed up to 25 hours of consultation between Coyne
and District staff to transition Student’s ABA program to the District. Student’s parents
S present levels of performance, and
With most of the goals developed for her. However, they did not agree with the District’s
Proposed placement and proposal for Provision of ABA services, Specifically, Student's
parents believed that Student did not belong in a SDC and believed that Coyne should
continue providing ABA services to Student in theirhome.
10. Coyne referred Student's parents to the Hanna Feniche] preschool. Hanna
Fenichet is a community preschool serving typically developing preschool students. The
state of California has not certified it as a non-public school (NPS). Student’s parents were
re
* On April 21, 2006, the Regional Center found that Student continued to be ehgible for its services.
* American Heritage Dictionary defines echolalia as the immediate and involuntary repetition of words or
phrases just spoken by others, often a symptom of autism.
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very impressed by the school and decided that they would enroll Student there beginning in
the fall of 2006, They also filed a due Process complaint against the District based upon their
disagreement with the placement offered by the District. The Parties settled the due Process
complaint in the summer of 2006. By the terms of the settlement, which covered the 2006-
2007 school year, Student received a total of 25 hours a week of ABA services to be
provided by Coyne. The 25 hours consisted of 19 hours a week of direct instruction in
Student's home and six hours per week of a one-on-one aide for Student while she attended
Hanna Fenichel two days a week. The settlement agreement also provided for supervision of
the ABA program at home and at Student's preschool, Additionally, Student received two
45-minue sessions of speech and language therapy at the District Preschool site as well as an
hour a month of occupational therapy consultation between Student’s mother and a District
occupational! therapist. At hearing, the parties did not enter into evidence this settlement
agreement. It is also unclear from the testimony at hearing exactly who funded the
placement and services.
1]. After signing of the settlement agreement, Student’s parents had little contact
with the District until February 16, 2007, when Student's IEP team first met to begin the
process of developing the IEP for Student's 2007-2008 school year. The JEP team held
meetings on February 16, 2007, May 11, 2007, and June 13, 2007. It is the offer made to
Student by the District as a culmination of these meetings, the events leading to that offer,
and observations conducted of Student to help the District determine its offer, which form
the basis of the complaints that are at issue in this hearing.
Procedural Violations That May Constitute a Denial Of FAPE
12. Aschool district must comply both Procedurally and substantively with the
IDEA. While not every procedural flaw constitutes a denial of FAPE, procedural flaws that
constitute such a denial. A school district may commit a procedural violation of the IDEA if
It comes to an IEP meeting without an open mind and several options to offer for discussion
with all team members, or refuses to consider the input of a student’s parents or other
relevant data her parents may have. A district fulfills its obligation in this regard if it does
suggest different potential placements, and discusses and considers any suggestions and/or
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Predetermination of Educational Placement
14. Student contends that the District had already predetermined to place her in a
15. The JEP team considered the meeting the parties held on February 16, 2007, to
be a “pre-meeting.” The main purpose of the meeting was to determine which assessments
the District would administer to Student and to arrange observations of her. At this meeting,
the District prepared an assessment plan for Student that included forma! assessments in the
areas of speech and language and vision, observations of Student and a review of her records,
by a District behavior specialist and school psychologist, and by an outside evaluator,
Student's mother signed agreement to the assessment plan on February 19, 2007; she later
added that she was also requesting a Social/emotional and adaptive behavior assessment.
16. Jodie Reise, a behavior specialist for the District, observed Student for an hour
at her preschool on March 13, 2007. At school, Ms. Reise observed that Student would play
alongside her peers but did not initiate play herself. Her one-on-one aide facilitated al! her
interaction with peers, Student did not comply with her teacher's Prompts to go to circle
time; she responded when prompted by her aide. Ms. Reise observed that Student did not
respond to questions specifically on topic and did not always use complete sentences in her
responses, However, Student was quiet and attentive during the circle time. Ms. Reise also
related services for Student.
17. Ms. Reise then observed Student at Student’s home for two hours on March
23, 2007. Ms. Reise noted that Student engaged in a significant amount of imaginary play at
home, used pronouns in her speech, and answered “who, what, where” type of questions
when asked by her one-on-one ABA aide who was giving Student a session during Ms.
Reise’s observation. The aide also worked with Student on recalling detailed information.
Ms. Reise noted that Student knew all the upper case letters and was working on leaming the
lower case letters. Student was attentive while listening to a story and answered questions
about it that her aide posed to her. Ms. Reise observed that Student could rote count to 15,
could answer social questions, such as ones about her parents’ names, and could identify
some words by sight. Ms. Reise’s observation notes of Student while at Student's home also
did not make any recommendations concerning Student's educational placement or provision
of related services.
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18. Dr. Laura Schreibman, a distinguished professor at the University of
California, San Diego, who is an autism specialist and was the District’s outside evaluator,
observed Student for approximately two hours at her preschool on March 22, 2007. Schoo!
psychologist Sharon Loveman observed Student for an hour and a half at her school on April
3, 2007, and for an hour and 45 minutes at Student’s home on April 19, 2007. Ms. Reise and
Ms. Loveman hand-wrote their observations but did not make any specific recommendations
District's general education class was then beyond Student’s capabilities. She also found
that behaviors she observed in Student counseled against continued full inclusion of Student
in her present placement at Hanna Fenichel. Rather, Dr. Schreibman recommended a
placement for Student in the District’s SDC, which also enrolled a number of typically
developing peers along with the special education students. The District provided copies of
all three of these reports to Student’s parents.
19. District Schoo! psychologist Sharon Loveman observed Student for two and a
half hours at her preschool! on April 3, 2007. She observed that Student’s general demeanor
was relaxed, happy, engaged and alert. However, Ms. Loveman also noted that Student had
limited interaction with her peers and, while she played alongside them, Student did not
interaction with her peers was limited. With regard to Student's use of language, Ms,
Loveman noted that Student expressive language was limited, although Student did repeat
spontaneously words that she overheard and was able to express emotion and intent. Ms,
Loveman also observed that Student was attentive during circle time, was able to choose
20. Ms. Loveman observed Student at Student’s home for an hour and forty-five
minutes on April 19, 2007. Ms. Loveman observed that Student Sought out variation and
new learning experiences at home, refusing to do tasks she had already mastered. Student
had a high stamina for work and play and was socially engaged and curious during the home
observation. Ms. Loveman observed that Student had a strong memory for previously
acquired information and demonstrated an extensive and varied vocabulary as it related toa
dinosaur book. Ms. Loveman noted that Student at times did take a lot of time to respond to
questions, but that Student's expressive language did include the use of adjectives and
pronouns. She noted (as later confirmed by Ms. Reise) that Student’s verbal expression was
significantly more spontaneous at home than at school. Ms. Loveman’s observation notes of
Student at home did not include any recommendations conceming placement or services for
Student.
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2]. After receiving Dr. Schreibman’s letter, as well as the observations of Ms.
Loveman and Ms, Reiss, Ms. Nest discussed Dr. Schreibman’s recommendations with both
Ms. Loveman and Ms. Reiss, as well as with District speech and language pathologist Lisa
Ryder. Her conversations with each took place separately. Ms. Nest asked each if she
believed that Student should remain in her present placement at Hanna Fenichel. Each
expressed reservations about the placement and the level of prompting Student was receiving
at the school, as observed by Ms. Loveman, Ms. Reiss, and Dr. Schreibman. While Ms. Nest
discussed or compared program costs, and never discussed whether the District should refuse
to consider continuing Student’s placement at Hanna Fenichel. Ms. Nest did not direct any
of the staff members to take a particular position on Placement nor did she direct that they
refuse to consider a placement at Hanna Fenichel.
22. Coyne also prepared a progress report regarding Student, dated May 1, 2007,
in anticipation of Student's annual JEP. The report recommended that Student continue to
receive 25 to 30 hours a week of ABA-related services, divided between Student's home and
preschool. Most significantly, Coyne recommended that Student’s education be ina fully
included general education class rather than in a SDC, in direct contradiction to the
23. Student’s mother agreed with Coyne’s recommendations. Since they were
contrary to the recommendation of Dr. Schreibman, who Student's mother knew to be a well-
24. Ms. Whitney telephoned Ms, Nest per the request of Student’s mother. Ms,
Whitney explained what was in the Coyne report, stating that the family wanted to have a
streamlined IEP meeting without surprises. Ms. Nest agreed that there might be
disagreement at the IEP meeting since the parties’ respective consultants had given contrary
recommendations. Ms. Nest did not make any negative remarks about Student’s mother to
Ms. Whitney, their conversation was brief and Ms. Nest thanked Ms. Whitney for sharing the
family's information concerning the Coyne recommendations with her,
with the same level of Coyne services and would refuse to consider placement in a District
classroom, Based upon her conversation with Ms. Whitney, Ms. Nest telephoned Student's
mother. They had a long discussion about the upcoming IEP meeting and about Dr.
NH
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District staff had expressed concerning possible placement for Student.
26. Student's mother believed that Ms. Nest’s conversation with her indicated that
the District would not consider a placement at Hanna Fenichel. She called Ms. Whitney to
voice her concerns and, ultimately, wrote to the District's Superintendent to express her
concern that the District had predetermined Student's placement for the following’ schoo!
year. The Superintendent never responded to the letter. Ms. Nest did not discuss options for
Student's placement with the Superintendent.
27, Concerned about the tenor of the conversations between Student’s mother and
Ms. Nest and the concern of Student's mother that the IEP meeting would be a charade, Ms.
Whitney contacted Ms. Loveman to set up a meeting prior to the scheduled IEP meeting.
Ms. Loveman agreed that a meeting would be helpful to try to restore trust and confidence
between Student’s mother and Ms. Nest. Ms. Loveman hoped that this meeting would make
the following day’s IEP meeting more productive.
28. = The meeting took place at the District’s offices on May 10, 2007, and lasted
approximately 30 minutes. Present were Student's mother, Ms. Whitney, Ms. Loveman, Ms,
Ryder, and Ms. Nest, Student’s mother expressed her concerns about the District following
nor did it alleviate any of the concerns Student's mother had that the District had
predetermined Student's placement for the upcoming school year.
29. The IEP team meeting took place as scheduled on May 11, 2007. Present at
the meeting were Student’s mother, Coyne & Associates ABA Supervisor Jessica Korneder,
Hanna Fenichel schoo! Director Sarah Hillier, vision specialist Amy Nangel, and Student’s
attomey Maureen Graves. Also Present were Regional Center educational consultant Jane
Whitney, District school psychologist Sharon Loveman, Child Development Center Director
12
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District Director of Pupil Services Mary Ellen Nest, District Preschool SDC teacher Tracy
Allison and occupational therapist Karen Peterson, District consultant Dr. Laura Schreibman
Joined the meeting about an hour after it started,
30. The team reviewed Student’s present levels of performance (the review had
begun during the previous eeting on February 16, 2007) and Student's goals. Student's
mother had Previously met with Ms, Ryder, the Speech and language pathologist, to draft
31, The JEP team Spent a considerable amount of time during the meeting
reviewing Coyne's Progress report of Student and the observations of Student by Ms. Reise,
Ms. Loveman, and Dr. Schreibman. Hanna Fenichel Director Ms. Hillier reviewed Student's
Progress at the preschool and the impressions the Hanna Fenichel staff had of Student. The
meeting lasted almost three hours; much the meeting discussion focused On Student’s
progress, present abilities, and, significantly, what type of placement Student needed in order
to make further progress in her education. Student's mother spoke for very long interludes
On what she saw as Student’s Progress, abilities and needs for the upcoming schoo! year.
Ms. Reise and Ms. Loveman discussed their observations of Student and their concerns that
Student was not able to initiate social interactions at school and their concerns that Student's
expressive language at school continued to be underdeveloped,
32. After Dr, Schreibman arrived at the meeting, the team focused on her report
and recommendations, Dr. Schreibman was concerned that Student was stil! exhibiting
perseverating behaviors. For example, she had observed Student’s fixation with one type of
play and her lack of Spontaneous play with other students. Dr. Schreibman also expressed
her concern, as indicated in her observation report, that Student was not directing language at
another person; Dr. Schreibman had observed Student talking to the wall. Dr. Schreibman
believed that these behaviors of Student needed to be extinguished, and believed that a SDC
was the best environment for doing so. She strongly felt that Student should not continue in
a fully included classroom, Rather, Dr. Schreibman believed that Student’s appropriate
placement was in the District’s preschool SDC, although she anticipated that Student would
eee
” The Child Development Center (CDC) is a semi-autonomous unit within the District. }t is a self.
Supporting fee-for-services preschool open to the public. There is no requirement that a student must be a District
resident to attendthe CDC CDC employees are District employees, although the CDC js funded from student
enrollment fees. The District's Beneral education preschool classes are inthe CDC. The District's preschool SDC
classes, however, arc operated outside the CDC under direct District control. Children with special education
eligibility whose [EP teams place them ina CDC class do not have lo pay the enrollment fees
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soon be able to transition to a general education class if it had a smal! number of students in
it. Dr. Schreibman did indicate, however, that she believed a Possible placement for Student
that Student’s interactions with Peers was increasing, that she was requiring less prompting
from her aides, that her language abilities were increasing, and that she was functioning well
in the general education inclusive environment at Hanna Fenichel,
35. Dr. Schreibman had to leave the IEP meeting before it concluded. After she
left, the team members spent the majority of the remaining meeting time reviewing and
Constructing Student’s goals and objectives. The IEP team agreed on Student's goals.
However, the IEP team did not reach any decision regarding Student’s educationa! placement
for the next year and did not spend more than incidental time discussing Student’s need for
36. Based upon advice of legal counsel, the District decided to hold another
formal IEP team meeting to present its offer of placement and services to Student’s mother
rather than to submit the offer by mail. The meeting took place on June 13, 2007. Present
were Student's mother and her attorney Ms. Graves, Dr. Len Levin (the Coyne Clinical
Director), Jessica Korneder from Coyne, Ms. Whitney, Ms. Loveman, Ms. Blackwood, Ms.
Ryder, Ms. Allison, Ms. Nest, and Jonathan Read, attorney for the District. No one from the
team invited Dr. Schreibman to the meeting.
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daysa week. Student would then transition toa District general education preschool class,
where she would spend two hours a day, four days a week, accompanied by a one-on-one
aide, The District also offered to provide Student with one-on-one ABA therapy at the
District school site for two hours a day, five days a week. The District also offered Student
two 45+ minute sessions a week Of speech and language therapy, one 60-minute session of
8roup social skills a week, and one 60-minute occupational therapy consultation per month.
The District noted that the SDC was actually composed of approximately seven Special needs
children and five typically developing children so that Student would be educated with
typical peers for most of her day.
39. The District's offer differed from the offer made to Student the previous year
in a number of ways. Foremost, it divided Student's time in a classroom equally between a
SDC and a general education class. It provided for a one-on-one aide to accompany Student
in the general education class. The offer also included a group social skills class that the
did not consist of a full placement of Student in an SDC; rather, the District based its offer
upon consideration of al] recommendations concerning Student. District staff sincerely
believed that they considered all input and considered al] of Student's needs, and believed
that District classrooms could meet those needs ®
a eee
* The District's offer of speech and language services, Occupational therapy consultation, and group social
skills session, is not at issue.
15
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ay
41. Especially credible was the testimony of school psychologist Ms. Loveman.
By the time she testified at the hearing, Ms. Loveman had retired. Therefore, any bias or
loyalties that may be argued to influence staff members presently employed by the District
could not be attributed to Ms. Loveman. Additionally, and significantly, Ms. Loveman had,
and has, a long-term personal relationship with Student’s family, extending to when
Student’s mother was a small child. Ms. Loveman therefore had no reason to temper, color,
or change her recommendations to please the District at the JEP meetings or any reason to
color her testimony at hearing. If anything, her long-term personal relationship with
Student's family would argue for an inference that Ms. Loveman would be more apt to want
to skew her recommendations toward the desires of Student's family.
42. Ms. Loveman, however, gave credible testimony that her recommendation that
Student required a SDC placement for at least a portion of her school day, was based upon
her observations of Student as corroborated by the observations of Ms. Reise and Dr.
Schreibman. Ms, Loveman specifically stated that the District's offer was not
Predetermined. The weight of the evidence supports this contention with regard to the
District's offer of educational placement for Student.
43. Neither does the evidence support Student’s contention that the District failed
to consider input from Student's mother, from Coyne, or from any other source, before it
9 As previously stated, Hanna Fenichel is not a certified NPS. However, there was no mention by the
District at any of the IEP mectings or testimony by District staff at the hearing that the lack of NPS status was the
reason the District did not offer to place Student there
16
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the IEP meeting. Third, the evidence indicates that District team members did not all
inittally have the same recommendation for placement and that a District did not develop a
44. The weight of the evidence substantiates the District's position that Student's
mother, educational advocate, preschool Director, and ABA providers were able to
participate meaningfully in the JEP Process. The District team members fully considered al!
comments and recommendations at all IEP meetings these individuals attended. They all
asked questions, gave their opinions, voiced their concerns, and gave general input to their
belief that Student did not belong ina SDC placement. There is no credible evidence, other
than the fact that the District ultimately offered a placement at one of its own schools, that
the District prevented Student or her representatives from meaningfully participating in the
JEP process.
ts the fact that the District offered Student a placement at a District elementary school rather
than at Hanna Fenichel, However, the fact that the District ultimately believed that its
program offered a FAPE to Student and that, therefore, it need not offer Student a placement
al a private preschool does not compel the conclusion that the offer was predetermined.
46. Student has failed to produce persuasive evidence that the District
predetermined her educational placement prior to the June 13, 2007 IEP team meeting. No
procedural violation occurred.
47, The analysis concerning the District’s offer to Student of ABA therapy for 10
hours a week at the District schoo! site, results in the same conclusion concerning whether
that portion of the District’s offer was predetermined. A review of the record of the IEP
team meetings!” indicates that there was meaningful discussion of Student’s need for
intensive one-on-one ABA therapy and discussion between the parties as to where the
therapy should occur. The parties specifically discussed the recommendations made by
$e
° The ALJ listened to the full recording of both meetings.
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Coyne. Student's mother stated that Coyne recommended that Student continue to receive a
total of 30 hours a week of ABA services.'' She clarified that the ABA services at home
would significantly decrease the following schoo! year while there would be 4 corresponding
increase in school ABA services since the time an ABA aide would accompany Student to
school would increase.
concerns about what they considered appropriate for Student's ABA therapy and no evidence
that discussion was stifled. To the contrary, Student’s mother Spent considerable time
Voicing her opinion as to what she thought was proper leve] and type of services. Although
Services or that school officials higher UP in school hierarchy had instructed either Ms. Nest
or other schoo! staff that in-home services should not be considered.
49. ° Both Ms, Loveman and Ms. Reise had observed Student at home during ABA
therapy sessions. Both noted that Student's language was more expressive and better
grammatically at home. Both noted to the IEP team that Student's social skills and responses
to her environment were Stronger at home than at skill. ‘In addition, both believed that
50. The core of the disagreement with regard to the ABA services at the JEP
meeting therefore was where the services should be delivered and by whom. The District's
offer of 10 hours of one-on-oné ABA Services corresponded Substantially to the 12 hours
51. The weight of the evidence therefore fails to support Student’s contention that
the District either predetermined the amount and location of ABA therapy offered to Student
a
" Coyne's report actually recommends a total of 25 to 30 hours of total ABA services.
18
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at the June 13, 2007 IEP team meeting and or made the offer without considering the input of
Student's mother or the Coyne representatives. There was thus no procedural violation of
Student's right to a FAPE.
Adequacy of the District's Offer of Placement and ABA Services
52. Aschool district provides a FAPE to a student if it designs its program or
placement to address the Student’s unique educational needs and provides a Program and
Services reasonably calculated to provide some educational benefit to the Student in the least
restrictive environment. A school district is also required to provide a student with special]
needs a program, including support Services, designed to address the child’s unique needs.
Student’s expressive and pragmatic language in the classroom is still below normal
developmental level although her language is much more expressive when she js conversing
in her home. Student stil! requires the assistance of a one-on-one aide in the classroom to
Prompt Student to follow instructions, to redirect her activities or inappropriate behavior, and
to assist her in initiating interactions with peers. Student also continues to show anxiety
when she is in large Sroup settings such as restaurants and church Sunday school, requiring
family support and assistance to assist her in functioning in these environments.
Inadequate Offer of Intensive ABA Therapy Services
54. Student contends that she requires approximately 17 hours of in-home ABA
therapy. She asserts that the 10 hours per week of school-site ABA therapy offered by the
District is insufficient to provide her with meaningful educational benefit. Student contends
? Contrast this Standard with the applicable standard under Califomia's Lanterman Developmental!
Disabilities Services Act (Welf & Inst. Code, § 4501 et seq ) which states that “Its the intent of the Legistature that
regional centers assist persons with developmental disabilities and their families in securing those services and
supports which maximize opportunities and choices for living, working, learning, and recreating in the community,”
(Welf. & Inst. Code, § 4640.7.)
19
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the program should have been offered in her home, which is a more naturalistic Setting for a
four-year-old child. She also contends that the Program offered to her is not scientifically
based and supported by peer-reviewed research as required by the reauthorized IDEA, The
District contends that Student has not met her burden of Proving that the Program it offered
will not provide at least some educational benefit to her.
55. The Weight of the evidence does not support Student's contentions. First,
Student presented no evidence, either documentary or through testimony at hearing, that
Student needs some 17 hours a week of on€-on-one ABA services. Indeed, Jessica
Korneder,”’ the Coyne representative Supervising Student’s ABA Program, indicated at the
IEP meetings and at hearing that she believed that Student continued to require a total of 30
hours of ABA therapy. She recommended that the 30 hours be divided between provision of
one-on-one aide services at Student’s school for the time Student participated ina classroom,
and about 12 hours of intensive ABA therapy in Student’s home. With regard to the number
recommended by Ms. Korneder. The District's offer includes 10 hours of one-on-one ABA
therapy and one hour of a facilitated group social skills session (which Student is not
presently receiving) for a total of 11 hours. There is simply no evidence that Student will not
be able to access her education or will be unable to progress in the curriculum with one less
hour of services that that recommended by Ms. Korneder. While additional hours of ABA
certainly might provide additional benefit to Student, the District is not required to maximize
her potential,
36. Additional support for the District’s position that its offer of 10 hours of ABA
is sufficient to meet Student’s unique needs is found in the documentary and testimonial
Sessions of imaginative play. Ms. Woodall corroborated the observations of Student’s
mother, stating at hearing Student had made extreme Progress. Dr. Joseph Morrow,' one of
Seren
"’ Ms. Korneder has a Masters degree in Behavior Analysis from Western Michigan University, and is a
Board Certified Behavior Analyst. She has been working al Coyne for about two years and is one of its Regional
Directors. Ms. Komeder has almost 10 years of experience working in the area of ABA, with Increasing
responsibility over the years for supervision of ABA programs,
' Dr. Morrow obtained a Doctorate degree from Washington State University in experimental
psychology. He has spent over forty years working in the area of behavior analysis. He is g professor emeritus at
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57. There is more dispute as to where Student’s ABA services should take place.
Dr. Bailey, '* Dr. Levin,'® Ms. Komeder and Ms. Woodall, all believe that Student’s ABA
services should occur in the home, which they believe is the natural setting for a child of
Student's age. They believe that Student needs to lear at home and then generalize this
knowledge to other settings, such as school. Student points to literature showing that autistic
Students received the most benefit from in-home programs. However, as discussed above,
the standard is not where a student will benefit the most from a particular service. Rather,
the legal standard is whether a student will obtain educational benefit from what a district is
offering. In this case, the evidence Supports a finding that Student will obtain educational
benefit from an ABA Program at a District school site.
58. Ms. Reise, the District's behavior specialist, and Ms. Loveman, the District's
school psychologist, both observed Student in her preschool and in her home. Both observed
that Student’s language abilities and social interactions were much more in evidence at home
than at school. Ms. Loveman noted that Student was much more spontaneous and
independent. Because of the discrepancies between Student's demonstrated abilities at home
as compared to school, Both Ms. Loveman and Ms. Reise believe, and the evidence
substantiates, that Student will benefit from moving her ABA instruction to the school
setting. The evidence supports the District’s contention that Student will benefit from
learning to generalize her abilities to the school setting rather than continuing to concentrate
on the home setting where she shows greater competency. This is especially true since the
stated goal of Student’s mother, her experts, and Coyne is to prepare Student for full-
inclusion in a general education Ki ndergarten for the 2008-2009 school year,
59. Student also contends that the ABA program offered by the District is not
scientifically based or supported by peer-reviewed research. First, the District in its closing
brief correctly points to the United States Department of Education’s commentary to the new
federal regulations implementing the reauthorized IDEA, That commentary states “(T]here
California State University, Sacramento, a licensed psychologist, and a Board Certified Behavior Analyst. Dr.
Monow founded, and is presently the president of. Applied Behavior Consultents, a certified NPS for students with
autism, which also provides ABA therapy to children and toddlers.
"Dr. Bailey received her Doctorate degree in clinical psychology and developmental psychology from the
University of Southem California in 2004. She is presently an assistant professor at Califomia State University,
Fullerton. She 1s not a licensed psychologist of Board Certified Behavior Analyst, although she has significant
training and education in psychology and learning disabilities
'° Dr Levin, Coyne’s Clinical Director, received his Doctorate degree in Clinical Psychology from the
State University of New York in 1996. He has a Significant amount of experience working with autistic children,
and a number of publications to his credit,
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is nothing in the Act to Suggest that the failure of a public agency to Provide services based
On peer-reviewed research would automatically result in a denial of FAPE. The final
decision about the special education and related services, and supplementary aids and
Services that are to be provided to a child must be made by the child's IEP Team based on
the child’s individual needs.” (71 Fed.Reg. 46665 (August 14, 2006).)
60. More Significantly, there is no evidence that the District Proposed using
behavioral instruction that differed significantly from that provided by Coyne. District
behavior specialist Jodi Reise credibly testified that the behavior Program that she supervised
was based upon traditional ABA principles, including the integration of discrete trial
training, pivotal response training, and intensive one-on-one instruction. As the District
points out, Dr. Levin and Ms. Korneder stated the methods used by Coyne were not based
solely on traditional discrete trial training principles.
individualize treatment for autistic children. As Dr. Schreibman explained, interventions for
autistic children are upon applied learning theory, commonly referred to as ABA. However,
there are several Strategies that have been researched and validated, all of which prove
beneficial to some children. These strategies include discrete trial training, pivotal response
training, incidental teaching, and the picture exchange communication, Dr. Schreibman
explained that ABA is a research technology, not a specific treatment. Rather, there are a
number of treatments that are included in the umbrella of behavioral intervention.
62. Dr. Schreibman further explained that research has determined that many
children do not respond well to discrete trial training, and that others do not respond to
pivotal response training. Therefore, a Program must be developed to respond to the child's
specific needs. Dr. Schreibman is acquainted with Ms. Reise and believes that she is capable
of implementing an appropriate behavioral intervention program for Student.
eer
” Dr. Lovaas is the author of the seminal! study of behavior analysis in autistic children, “Behavioral
Treatment and Normal Educational and Intellectual Functioning in Young Autistic Children " (Journa] of Consulting
and Clinical Psychology (198 7).)
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present program may be better than the one offered by the District does not mean that the
District's program will not provide Student with a FAPE. The District need not provide the
best program; it only need provide a Program that offers more than minima! educational
benefit to her. The weight of the evidence demonstrates that the District’s intensive one-on-
one ABA program will more than meet that standard.
64, In sum, the weight of the evidence Supports the District's contention its offer
of 10 hours of intensive one-on-one ABA services provided to Student at the District's
school site meets Student's unique needs in the area of behavioral intervention Student has
Special Day Class offered by District
65. Student contends that the SDC at the District's Preschoo] does not incorporate
adequate ABA principles, fails to include peers with compatible instructional needs, and is
not the feast restrictive environment for Student.
66. — Student’s argument that the SDC fails to include peers with compatible
instructional needs is not supported by persuasive evidence. District witnesses Mary Ellen
Nest, Jodi Reise, and SDC teacher Denise Gomez all testified that the composition of the
weight of the evidence presented by the District is that the SDC teacher teaches to the needs
of every student in her class and that, therefore, the SDC class would be able adequately to
meet Student's instructional needs.
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68. Finally, Student asserts that the SDC is not the least restrictive en vironment
(LRE) for her. The IDEA requires, to the maximum extent appropriate, that children with
disabilities should be educated with children who are not disabled, unless due to either the
nature of the disability, or its severity, education ina regular class cannot be achieved
satisfactorily even with the use of supplementary aids and services. Four factors are
paraprofessionals and services that might be appropriate; (2) the non-academic benefits of a
general education placement, such as language and behavior models provided by non-
disabled students; (3) the negative effects the student's presence may have on the teacher and
other students in the general] education setting; and (4) the cost of educating the student in a
mainstream environment.
69. Cost factors of educating Student in a general education classroom were not
put at issue in this case and thus will not be addressed. Neither is there any evidence that
Student would have a negative effect ona general education teacher or the other students in a
general education classroom. To the contrary, when the IEP meetings were held in May and
without incident, Sharon Hillier, the Director of the Hanna Fenichel school, who observed
Student a couple of times a week in Student's preschool class, commented to the IEP team
that Student was a delightful addition to the school. Ms. Hillier indicated that Student
engaged in class activities and followed classroom routines, albeit with support from
70. Additionally, there is little evidence that Student would not benefit from
inclusion in a general education classroom. The observations by Ms, Loveman, Ms, Reise,
and Dr. Schreibman did not focus on the benefit Student was receiving in her general
education classroom at Hanna Fenichel. Rather, their observations focused on the fact that
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before the hearing took place. Four to six months is a significant amount of time in the life
of any four-year-old child; it is a particularly significant amount of time for Student as the
evidence indicated she has consistently made remarkable progress over brief periods.
73. The District believes, based on the recommendations of its expert, Dr,
Schreibman, and staff members Ms. Loveman and Ms. Reise that Student was not ready for
full inclusion at the time the IEP team met. The District argues that Student needs to be in an
environment where she learns independently to navigate a classroom and where activities are
teacher-directed rather than student-directed as preparation for the structure of typical
Kindergarten class. Dr. Schreibman, who is well known in the field of autism, specifically
believed that Student required the structure of the SDC class in order to extinguish the
behaviors she observed in Student, such as talking without directing her language toward
anyone in particular, and not being fully engaged in the classroom, Ms. Loveman and Ms,
Reise also believed that Student would be better served in the SDC where the specially-
Sena
" Dr Schneider-Zioga has a doctorate degree in lingutstics from the University of California at Los
Angeles. She is presently a full time lecturer at California State University, Fullerton.
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trained SDC teacher could focus on extinguishing Student’s inappropriate behaviors,
increasing Student's language skills, and teaching her navigate a classroom without an aide.
with the use of supplementary aids and services cannot be achieved satisfactorily. Therefore
even if it is not the best academic setting for a Student, a general education classroom is
appropriate if the child can receive a satisfactory education there.
75. The District's contention that the IEP team did not have enough evidence
when it met in May and June 2007 to determine that Student could be satisfactorily educated
indicated the progress Student had made in her preschool class at the school. Ms. Hillier
indicated that Student was participating in the class and following routines. In the nine
months Student had been in the class, she had improved significantly in the areas of
engagement, play, language and eye contact. Ms. Korneder, and the Coyne progress report,
corroborated Ms. Hillier’s observations. Coyne noted that Student had achieved many of her
IEP goals earlier than projected, had made significant gains in the areas of speech and
language, social interaction skills, generalization, and compliance. As of March 2007,
Student was beginning to comment !0, respond to, and initiate interaction with her
classmates. Coyne noted that while Student still required an aide to assist in the acquisition
of peer-interaction skills and to support her attending to and compliance with her teacher's
structure of the SDC classroom in order to obtain benefit from or access her education, The
evidence showed that Student does not need tightly controlled activities, adult initiation of all
her social activities, or a visual schedule, the core components of the District's SDC, in order
to benefit from her education.
76. Dr. Schreibman, Ms. Loveman and Ms. Reise based their recommendations
for a SDC placement on their observations of Student at school. However, the total amount
of time spent on those observations was approximately five hours. Conversely, Ms. Hillier
and Ms. Korneder observed Student for a few hours a week over nine months. They were
able to observe Student's ability to navigate a general education classroom, her ability to
learn to follow routines, and her Progress in learning to interact with peers. Additionally, the
main rationale advanced by the District’s observers for placing Student in a SDC was so that
her autistic-like behaviors, behaviors that have not been shown to interfere with her access to
her education or with the access of other Students to their education, could be extinguished.
The District offers no legal authority that supports the contention that extinguishing non-
interfering behaviors is, or should be, the basis for a child's placement ina SDC. Student has
therefore met her burden of proof that she can, at the least, make satisfactory progress ina
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general education classroom, and has therefore met her burden of proof that a general
education classroom is the least restrictive environment for her. The District's offer to
Student of placement in a SDC class for a portion of her school day therefore substantively
denied her a FAPE,
General Education Classroom Component of the District's Offer
77. Student contends that the general education classroom component of the
District's offer denied her a FAPE because it Was an inappropriate educational setting for
her. She also contends that when the general education component was combined with the
early morning SDC placement, the offer required Student to transition through too many
areas of the school campus, through too many different activities, and to have to interact with
too many different classmates,
78. AJL TEP team members agreed that full time placement in a general education
class at the CDC would be too overwhelming for Student, Dr. Schreibman specifically stated
in her observation report that the CDC classroom, which she believed consisted of 24
children instructed by two teachers, was too much for Student to handle. She recommended
that any inclusive classroom for Student, even after she transitioned from the recommended
SDC, should only contain a few students. Dr. Schreibman believed that the Hanna Fenichel
class, or one with a similar amount of students, would be an appropriate inclusion model for
Student.
79. In fact, the total number of classmates with whom Student would need to
interact in the CDC class was actually closer to 30 since a different core group of students
attended class on different days. The structure of the CDC class in late morning during the
time the District proposed that Student attended it presented an even more complicated
picture, particularly for a child who was not scheduled to interact with the class at the
beginning of the day when the children participated in opening activities and circle time.
During the time Student would be participating in the general education class, the children
were divided into two groups of 12, with one group engaging in pre-academic type activities
in the classroom and the other group participating in outside activities centering on gross
motor skills. The two groups switched after approximately twenty minutes. The children
who made up each group changed on a daily basis.'? After these activities, the 24 children
reunited in the classroom for activities such as singing and story time before engaging in
closing day activities and transition to lunch and playground time.”
'* District witnesses did indicate that they could possibly arrange for the group composition to remain
constant; however, the District did not confirm this by memorializing it as 8 part of the written [EP offer.
in fact, the District's offer would require Student to have to interact with about 42 children each day,
counting the children from the SDC and the children in the general education class. This directly contradicts Dr.
Schreibman’s recommendation that an inclusion class for Student only contain a small amount of classmates
because she did not believe Student was ready to handle interacting with a large number of peers at a one time.
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observations.”! On the other hand, the belief of the Coyne staff and Student’s mother that the
CDC class would overwhelm Student is Supported by their respective constant contact with
Student and observations of her in her present classroom,
81. Additionally, there appears to be no concrete basis for the District's position
that Student was capable of transitioning from the SDC to the CDC, and to make all the
transitions required in the CDC class, even with the provision of an aide. In fact, the
District’s position is contradictory. It first asserts that Student requires a SDC class because
she in not engaging enough with her classmates and is dependent on her aide for Initiating
social interactions. Simultaneously, the District asserts that Student is capable of interacting
with some 42 students a day and transitioning not only between multiple activities in a
classroom but also transitioning between two groups of students in two very different classes.
The District’s arguments in support of its position are unpersuasive. 2?
82, The ALJ finds that the Student has met her burden of proof that the CDC
classroom was not an appropriate instructional setting for her and therefore the District’s
offer substantively denied her a FAPE,
Failure to Provide Staff Adequately Trained to Implement Student's IEP
83. Student's contends that the District staff is not adequately trained, Although
not specified in her stated issues for hearing, Student appears to focus her concerns on
whether Jodi Reise, the District behavior specialist, is qualified to supervise Student's ABA
program and whether Denise Gomez, the SDC teacher, could implement Student’s IEP. As
discussed above, Student has not met her burden of proof in either regard.
** Although a long time family friend, there is no evidence that Ms. Loveman had observed Student outside
the context of her formal observations in Preparation for the IEP meetings.
” CDC Director Suzanne Blackwood and CDC teacher Jody Gallagher discussed the general education
program and classrooms at the CDC. Their accounts credibly support the District's position that the District offers a
quality preschool education. This Decision just finds that the program did not meet the needs of the student in this
case.
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IEP.
Appropriateness of the District's Assessments and Reimbursement of Student's IEE
85. A parent has the right to obtain an IEE if the parent disagrees with a district's
assessment. When a parent makes a request for an IEE, a district must either fund the IEE at
public expense or file for a due process hearing to show that its assessments were
appropriate. Individuals who are knowledgeable about a student's disability and competent
to perform the assessments must conduct assessments, The tests and assessment materials
must be validated for the specific purpose for which they are used, and must be selected and
administered so as not to be racially, culturally or sexually discriminatory. The assessments
must be provided and administered in the student's primary language or other mode of
communication unless this is clearly not feasible. The assessors must use a variety of
assessment tools including information provided by the parent. Reassessment of a child may
occur ifa district believes that the child's needs warrant reassessment or if the child’s parents
or teacher requests reassessment. Unless other requested, reassessment shall not occur more
86. The District administered a multidisciplinary initial assessment to Student in
the spring of 2006, in preparation for her initial IEP. The assessment included an evaluation
of Student’s health and development. The District also administered a transdisciplinary play-
based assessment that included clinical observations, administration of the Southern
California Ordinal Scales of Development - Cognition, administration of the Behavior
Assessment System for Children, record review, and the MacArthur Communicative
Development Inventories.
87, Student's IEP team met on February 16, 2007, in order to start the process of
formulating her IEP for the 2007-2008 school year. As part of that process, the team
discussed what reassessments and new assessments Student needed. The team determined
that a formal, standardized assessment was not necessary in order to determine Student's
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Present academic achievement. Instead, the IEP determined that Smdent’s SDC teacher and
a District behavior specialist would determine Student's academic achievement through
observations of her and a review of her records. Likewise, the team determined that a
formal, standardized assessment in the area of cognitive functioning was not necessary,
Rather, the team designated the school psychologist to observe Student and review her
records to determine Student's needs in this area. The team also agreed that the District
88. As discussed. above, school psychologist Ms, Loveman, behavior specialist
Ms. Reise, and outside consultant Dr. Schreibman, conducted observations of Student in
March and April 2007. Student’s parents disputed the observations of each, and the ultimate
placement recommendations of each, as did the Director of Student's preschool and her ABA
providers from Coyne. Student’s parents therefore did not agree to the District’s offer of
placement and services at the IEP team meetings held May 1! and June 13, 2007.
89. On April 7, 2007, Student's parents wrote to Ms. Nest, informing her that they
would be unilaterally placing Student at Hanna Fenichel for the 2007-2008 school year.
They also informed Ms. Nest that they were going to obtain IEEs for Student because they
specifically disagreed with the recommendations of the District's outside consultant (Dr.
Schreibman) that Student required placement in an SDC. Student’s parents informed Ms.
Nest that they would be seeking reimbursement from the District of the IEEs, indicating that
they were considering IEEs by an educational! psychologist, a speech and language
pathologist, an ABA expert, and an expert on educational inclusion for students with autism.
Student’s attorney confirmed to the District’s attomey that Student was seeking an IEE at
public expense. Rather than agreeing to pay for the IEEs, the District exercised its rights and
filed its own due process complaint to validate its assessments.
90. Student's parents never obtained a speech and language JEE. There was no
evidence presented at hearing and no argument made in Student's closing briefs that the
speech and language assessment conducted by speech and language pathologist Lisa Ryder
over eight days in March and April 2007 did not meet legal standards or was in any way
improperly administered.
- 91. The only “assessment” ultimately obtained by Student's parents was from Dr,
Caroline Bailey. As stated above, although she has a Doctorate degree in psychology, Dr.
Bailey is not a licensed psychologist. She is not licensed to administer standardized tests to
adults or children, and she did not do so with Student. Rather, Dr. Bailey spent numerous
hours observing Student in Student’s home, school, and church, numerous hours reviewing
Student's records and researching issues concerning Student's autism, and numerous hours
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preparing her extensive report concerning her findings and recommendations of Student. Dr.
Bailey’s bill, and the reim bursement request by Student’s parents, is for $24,900.
92. Student maintains that her parents are entitled to reimbursement for Dr.
Bailey’s services because the District’s observations did not comply with evaluation and
reporting requirement and because Student disagrees with the observations and
recommendations of Dr. Schreibman that Student engages in autistic-like behaviors to such
an extent that an SDC placement is necessary.
93. Student’s request for reimbursement fails on several grounds. First, while she
argues that the District’s “assessment” failed to comply with evaluation and reporting
requirements, Student fails to identify what those standards are and in what way they were
violated by the District. As the District points out in its brief, while there are specific legal
standards for formal assessments, there simply are no statutory or regulatory standards for
observations of students. That Student disagreed with what Dr. Schreibman observed and
recommended does not result in finding that she is entitled to an JEE. Nor does the fact that
Dr. Bailey conducted a much more intensive observation and spent many more hours on her
observation and review of Student than did Dr. Schreibman result in the invalidation of Dr.
Schreibman’s observation and recommendation.
94. Second, if Student believed that formal assessment, with Standardized testing,
was warranted for her, she should have made such a request. She did not. Nor did Student’s
parents obtain an JEE that met the legal standard of being administered by someone
competent to perform the assessment, since Dr. Bailey is not licensed to administer
Standardized tests and did not, in fact, administer any. She, like Dr. Schreibman, only
observed Student. Student fails to demonstrate in what way Dr. Bailey’s observations,
review, and research, meet evaluation and reporting requirements not met by Dr.
Schreibman.
95. Finally, there is no requirement that reassessment of a student within three
years of formal assessing must include formal, standardized testing unless it has been
requested by either the student's parents or teacher. Student did not request any formal
assessments and did not obtain any IEE that met the legal standards indicated in paragraph
85 above, The evidence thus supports the District’s contention that its observations of
Student were appropriate, that there is no specific standard by which to measure
observations, and that Student’s JEE met a standard that the District’s observations did not
meet. Student is therefore not entitled to reimbursement for the costs of Dr. Bailey’s
services,
Appropriate Remedies
96. Aschool district may be required to reimburse a parent for the costs of private
school tuition and other related services if the district failed to make a FAPE available to the
child. Reimbursement is an equitable remedy that is determined on the facts of each case.
As determined in Factual Findings 76 and 82, the District failed to offer Student a FAPE for
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the 2007-2008 school year by not offering her a placement in the least restrictive
environment, and by offering her a placement in the District's CDC general education class
which failed to meet Student's unique needs.
97. Reimbursement for the cost of a private school may be reduced or denied if the
parents did not provide notice, prior to removing the child from the Public school, that rejects
the proposed placement, states their concerns, and expresses the intent to enroll the student in
a private school. As determined in Factual Finding 89, Student’s parents provided the
District the required notice prior to unilaterally placing her at Hanna Fenichel.
99. Finally, equitable considerations, such as the conduct of both parties, may be
evaluated when determining what, if any, relief is appropriate. Several factors may be
considered when determining the amount of reimbursement to be ordered: the effort parents
expended in securing alternative placements; the availability of other more suitable
placements; and the cooperative or uncooperative position of the school district or of the
student’s parents.
100. The weight of the evidence is that Hanna Fenichel was an appropriate
placement for Student. All parties, including the District’s expert consultant, gave glowing
reviews of its staff and program as well as the excellent progress Student has made while
attending that school. Nor does the District point to any equitable reasons to deny
reimbursement to Student's parents of the tuition they have paid for Student’s schooling at
Hanna Feniche]. Nor is there any evidence of any other suitable placements for Student.
The ALJ has found that the District's offer of placement denied Student a FAPE as its SDC
did not constitute the LRE for Student and its CDC general education class was not
appropriate for her. Therefore, Student is entitled to reimbursement of her tuition for the past
school semester at Hannah Fenichel,
10]. Student also requests prospective reimbursement for costs at Hanna Fenichel
for the remainder of the 2007-2008 school year. The ALJ is prohibited by statute from
ordering prospective placement at the school since it is not a certified NPS. Ifthe issue were
simply that Student’s parents had prepaid the full year’s tuition at Hanna Fenichel, but were
not required to do so, Student’s argument that her parents are entitled to full payment of the
tuition as reimbursement rather than a prospective cost, would be unpersuasive. However,
the quirk in this case is that Student’s mother testified, and the Hanna Fenichel Director
confirmed, that the school requires parents to pay the full year’s tuition in advance in order to
preserve a place in the school. The District provided no evidence to counter this assertion,
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The ALJ finds that Hanna Fenichel is an appropriate placement for Student and that there is
no evidence in the record of any other placement that would be suitable for her. The ALJ
also finds that there is no evidence that Student's parents did not adequately cooperate with
102. Student further requests that the ALJ order retroactive and Prospective
payment of the costs of the Coyne one-on-one ABA aide that Student needs in order to attend
the general education classroom at Hanna Fenichel. There is no dispute that Student requires
such an aide in a general education classroom. Coyne is a certified NPA So there is nothing
to prohibit the requested order by the ALJ. However, Student has failed to demonstrate that
the District could not provide an adequate aide to address her needs at Hanna Fenichel. Nor
is Student entitled to select her own provider of services. Acknowledging that Student
requires an aide, the ALJ shall therefore order that the District provide an appropriate aide to
Student in her class at Hanna Fenichel. The aide shall have been specifically trained in ABA
principles and specifically trained to work with autistic children. Should the District decided
103. Finally, Student's mother requests that she receive reimbursement for the
hours she spent providing one-on-one ABA therapy to Student, which supplemented the
hours provided by Coyne beginning in September 2007. The evidence fully supports the
any child in need of such services. After Student was diagnosed with autism, her mother
began researching treatments and theories concerning autism. Student’s mother later
obtained a graduate certificate in ABA from Pennsylvania State University that qualifies her
to provide ABA services. She has gone to extraordinary efforts to become knowledgeable
about autism and, in particular, about her daughter’s specific needs. Student's mother has
also invested considerable time and effort in obtaining training so that she can address her
daughter’s needs. However, there is no support for Student’s position that a parent is entitled
to payment for providing educational services to his or her child under the facts of this case.
Additionally, since the ALJ has found that the District's offer of 10 hours a week of ABA
services would provide educational benefit to Student, there is no evidence to support
Student’s contention that she required the additional hours of ABA services provided to her
by her mother in order for her to receive a FAPE. Finally, the ALJ notes that implementation
of ABA concepts in an autistic child’s home after the child’s parents have received training,
appears to be one of the foundations of ABA therapy. Indeed, Dr. Morrow testified that the
rrr eerie
2 Ip any case, Student has not presented evidence of what the cost of the Coyne one-on-one aide 1s orif
Student's parents have paid any or al! of the Past costs of that services.
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one of the key components of the ABA program his NPA had begun with toddlers is the
concept that the children’s Parents would receive training so that they could continue the
ABA therapy the child received in Dr. Morrow's clinic in the home. Student therefore has
failed to meet her burden of proof that her mother is entitled to payment for the hours she has
Spent supplementing Student’s ABA therapy.
CONCLUSIONS OF LAW
Burden of Proof
l. Student, as the petitioning party seeking relief in issues A(1) through A(6), has
the burden of proof as to those issues. The District, petitioning party in issue B, has the
burden of proof as to that issue. (Schaeffer v. Weast (2005) $46 U.S. 49 [126 S.Ct. 528, 163
L.Ed.2d 387].)
Did the District predetermine its offer of placement and related Services in ils IEP offer for
the 2007-2008 school year?
2. Pursuant to the Individuals with Disabilities in Education Improvement Act
(IDEIA), effective July 1, 2005, and California special education law, children with
disabilities have the right to a FAPE that emphasizes special education and related services
designed to meet their unique needs and to Prepare them for employment and independent
living. (Ed. Code, § 56000.) FAPE consists of special education and related services that are
available to the student at no charge to the parent or guardian, meet the state educational
standards, include an appropriate schoo! education in the state involved, and conform to the
child's JEP. (20 U.S.C. § 1402(9).)
3. There are two parts to the legal analysis of whether a school district complied
with the IDEA. The first examines whether the district has complied with the procedures set
forth in the IDEA. The second examines whether the IEP developed through those
procedures was reasonably calculated to enable the child to receive educational benefit. (Bd.
of Educ. of the Hendrick Hudson Central Sch Dist. v. Rowley (1982) 458 U.S. 176 [102
S.Ct. 3034, 73 L.Ed.2d 690) (hereafter Row/ey),)
4, The IDEA requires that a due process decision be based upon substantive
grounds when determining whether the child received a FAPE. (Ed. Code, § $6505, subd.
(f(1).) A procedural violation therefore only requires a remedy where the procedural
Violation impeded the child’s right toa FAPE, significantly impeded the parent's Opportunity
to participate in the decision making process regarding the provision of a FAPE to the
parent's child, or caused a deprivation of educational benefits. (20 U.S.C. § 14] 5(f(3 XE):
Ed. Code, § 56505, subd. Q); Rowley, supra, 458 U.S. at pp. 206-07; see also AmandaJ. y.
Clark County Sch. Dist. (9th Cir. 200] ) 267 F.3d 877, 892.) Procedural violations which do
not result in a loss of educational Opportunity or which do not constitute a serious
infringement of parents’ Opportunity to participate in the JEP formulation process are
insufficient to support a finding that a pupil has been denied a free and appropriate public
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education. (W.G. v. Bd of Trustees of Target Range Sch. Dist, No. 23 (9th Cir. 1992) 960
F.2d 1479, 1483 (hereafter Target Range),) Procedural errors during the IEP process are
subject to a harmless error analysis. (A4.L., etal, v. Federal Way Sch. Dist (9th Cir. 2004)
394 F.3d 634.)
5, In determining the educational placement of a disabled student, the public
agency must ensure that the placement is based on the child's IEP. (34 CER. § 300.116.)
F.Supp.1253, 1262.) Indeed, a district has an obligation to make a formal written offer in the
JEP that clearly identifies the proposed program. (Union Sch. Dist. v. Smith (9th Cir. 1994)
15 F.3d 1519, 1526.)
6. A school district has the right to select a program and/or service provider for a
special education student, as long as the program and/or provider is able to meet the student’s
by the public. (See, MR. v. San Ramon Valley Unified Sch. Dist. (N.D.Cal. 2007) 2007 U.S.
Dist. Lexis 9135; Slama ex rel. Slama v. Indep. Sch, Dist. No, 2580 (D. Minn. 2003) 259 F.
Supp.2d 880, 885; O'Dell v. Special Sch. Dist. (E.D. Mo. 2007) 47 IDELR 2] 6.) Nor must
S wishes in order to be sufficient or appropriate. (Shaw v. Dist. of
Colombia (D.D.C. 2002) 238 F.Supp.2d 127, 139 [IDEA does not provide for an
“education...designed according to the parent's desires,”’], citing Rowley, supra, 458 U.S. at
p. 207.)
7, In the instant case, the weight of the evidence fails to prove that the District
predetermined its offer of placement and services for Student at its preschool SDC and
preschool general education class, Although Ms. Nest expressed concerns to Student's
mother prior to the IEP meeting on May 11, 2007, that the parties would not be able to reach
agreement at the meeting, those concerns do not compel a finding that the District’s IEP team
as a whole had made a decision regarding where it would offer to place Student. Although
Ms. Nest discussed the upcoming IEP team meeting with other District staff members, she
did so only to obtain an understanding of what each had observed of Student and what each
might be recommending as a placement.
8. There is also no evidence that Ms, Nest either directed District IEP team
members to refuse to consider a particular placement or that she attempted to influence their
recommendations in any way. Unlike the circumstances in the Dea/ case, the Student
presented no compelling evidence that the District here had a policy of refusing to place
special education students at private schools or give students in-home ABA services if such
was necessary and appropriate. Nor has Student proven that high-level District officials were
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dictating placement decisions concerning special education students. Unlike the school
district in Deal, the District here provided many opportunities for the Director of the private
schoo! (Hanna Fenichel) and the private ABA provider (Coyne) to offer their opinions and
+
well as her attomey, private school Director, and provide ABA providers, to contribute to the
discussions concerning placement and services. There was no evidence of District attempts
to stifle discussion concerning placement at Hanna Fenichel. To the contrary, a review of the
JEP meetings indicates that many different JEP members and consultants dedicated
considerable portions of the IEP meetings on May 11, 2007, and June 12, 2007, to discussing
the conflicting recommendations for Student’s placement and services, Furthermore, there is
no evidence that the District made statements either at or outside of IEP meetings that it
would never consider a private school placement for Student,
9, Pursuant to. Factual Findings 12 through 46, and Conclusions of Law 2
through 8, the evidence fails to support the Student's position that the District predetermined
its offer of placement and services for Student. To the contrary, the evidence supports a
conclusion that the District encouraged discussion of a placement at Hanna Fenichel as
compared to a placement in its classrooms. None of the cases cited above or cited by Student
in her closing briefs stand for the Proposition that a district is required to offer a placement
that is suggested by a student, or that the failure fo accept a student's suggested placement
means, ipso facto, that a district has predetermined placement. Student has therefore failed
to meet her burden of persuasion that the District's offer of placement in its SDC and in its
general education class, was predetermined before the IEP meetings and has thus failed to
prove that the District procedurally violated her rights under the IDEA with regard to her
classroom placement.
Did the District fail to consider all relevant data conceming Student, including input from
her parents, before making an offer of placement and related services?
10. In order to fulfill the goal of parental participation in the IEP process, the
school district is required to conduct, not just an IEP meeting, but also a meaningful IEP
meeting. (Target Range, supra, 960 F.2d at p. 1485.) A parent has meaningfully
participated in the development of an IEP when she is informed of her child's problems,
attends the IEP meeting, expresses her disagreement regarding the IEP team's conclusions,
and requests revisions in the IEP. (NL. y. Knox County Schools. (6th Cir. 2003) 315 F.3d
688, 693; Fuhrman v. East Hanover Bd. of Educ. (3d Cir. 1993) 993 F.2d 1031, 1036
[parent who has an opportunity to discuss a proposed IEP and whose concerns are considered
by the IEP team has participated in the IEP process in a meaningful way].) “A school
district violates IDEA procedures if it independently develops an IEP, without meaningful
parental participation, and then simply presents the [EP to the parent for ratification.” (Ms.
S. ex rel G. v. Vashon Island School District (9th Cir. 2003) 337 F.3d 1115, 113} .) The test
is whether the schoo! district comes to the IEP meeting with an open mind and several
options, and discusses and considers the parents’ placement recommendations and/or
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concerns before the IEP team makes a final recommendation. (Doyle v. Arlington County
School Board, supra, 806 F ‘Supp. at p. 1262; Deal, Supra, 392 F.3d at p. 857.)
1]. Based upon Factual Findings 12 through 46 and Conclusions of Law 2 through
10, Student has failed to demonstrate that the District failed to consider the input, opinions,
recommendations, or concerns of Student's mother, Student’s ABA providers, Student's
preschool Director, or any other individual having information concerning Student, with
regard to her placement or services. A review of the IEP team meetings held on May I! and
June 13, 2007, support a finding that there was significant discussion by all attendees
concerning the benefits and drawbacks of different placements for Student. Student’s mother
and ABA providers gave long and detailed descriptions of their views of Student's
capabilities as well as what they considered appropriate programs and services for her.
There is no indication that the IEP meeting was a charade or that the District was merely
going through the motions in holding it. Student has therefore failed to meet her burden of
persuasive that the District procedurally violated her rights by failing to consider the input of
Student's mother or her service providers.
Did the District fail to offer an ABA therapy program that meets Student's unique needs
because it is not scientifically based and Supported by peer-reviewed research, to the extent
practicable, is not offered in a home environment, and Sails to provide a sufficient amount of
therapy hours?
12, As stated above, in the Rowley case the United States Supreme Court
addressed the level of instruction and services that must be provided to a student with
disabilities to satisfy the substantive requirements of the IDEA. (Rowley, 458 U.S at p. 200.)
The Court determined that a student's IEP must be reasonably calculated to provide the
student with some educational benefit, but that the IDEA does not require school districts to
provide special education students with the best education available or to provide instruction
Or services to maximize a student's abilities. (/d. at pp. 198-200.) The Court stated that
school districts are required to provide only a “basic floor of opportunity” that consists of
access to specialized instruction and related services which are individually designed to
provide educational benefit to the student. (Jd. at p. 201.) As long as a school district
provides a FAPE, the type of methodology employed in providing a FAPE is left to the
district’s discretion. (/d. at p. 208.)
13. To determine whether a district offered a student a FAPE, the analysis must
focus on the adequacy of the district’s proposed program. (Gregory K. v. Longview Sch.
Dist. (9th Cir. 1987) 811 F.2d 1307, 1314 (hereafter Gregory K.).) If the district's program
was designed to address the student's unique educational needs, was reasonably calculated to
provide him some educational benefit, and comported with his IEP, then that district
provided a FAPE, even if the student’s parents preferred another program which would have
resulted in greater educational benefit. (20 U.S.C. § 1412(aX5\(A); Ed. Code, § 56031 )
14. California’s definition of special education includes both specially designed
instruction to meet the unique needs of individuals with exceptional needs and related
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Services to enable them to benefit from such Specially designed instruction. (Ed. Code, §
56031). Related services may be referred toas designated instruction and services (DIS).
(Ed. Code, § 56363, subd. (a).)
15. Title 34 Code of Federal Regulations, part 300.320(a)(4) states IEPs shall
include a statement of the special education and related services and supplementary aids and
services, based on peer-reviewed research to the extent practicable. The language “to the
extent practicable” regarding the use of peer-reviewed research does not forbid a district
from using an educational Program or service that is not peer-reviewed, where it is
impracticable to provide such a program. The United States Department of Education's
comments and discussions regarding “peer-reviewed research” state that “We decline to
require all IEP Team meetings to include a focused discussion on research-based methods or
“to the extent practicable” regarding the use of peer-reviewed research does not forbid a
district from using an educational program or service that is not peer-reviewed, where it is
impracticable to provide such a Program. Courts have determined that the most important
issue is whether the proposed instructional method meets the student’s needs and whether the
student may make adequate educational progress. (Deal v, Hamilton County Dept. of Educ.
(E.D.Tenn. 2006) 2006 U.S. Dist. LEXIS 27570, pp. $1-57; Rocklin Unified School District
(OAH, May 25, 2007) 48 IDELR 234, 107 LRP 31811, 20 U.S.C. § 1414(d)(1 XIV); 34
C.F.R. § 300.320; Ed. Code, § 56345, subd. (aX4).)
16. As stated in Factual Finding 53, all parties agree that Student continues to have
unique needs in the areas of expressive and pragmatic speech and language and in
socialization. Nor do the parties dispute that Student continues to require intensive ABA
Services to assist in addressing her deficits. Student argues that she requires some ]7 hours
of ABA therapy and that the therapy must be provided in her home. As stated in Factual
Findings 54 through 64, and based upon Conclusions of Law 12 through 15, Student has
failed to meet her burden that she requires ]7 hours of in-home ABA services in order for her
to obtain benefit from her education, Student did not present compelling evidence in support
of this contention. In fact, Coyne & Associates, Student’s present ABA provider, only
recommended in its progress report prepared in May 2007, that Student receive a total of 25
to 30 hours of combined ABA services. Since Coyne provides an ABA aide to Student at her
preschool for approximately 18 hours a week, its recommendation for one-on-one intensive
ABA therapy amounted to only 7 to 12 hours a week. This conforms to the District's offer
of 10 hours a week. Nor did Student provide persuasive evidence that her special needs
dictate that she receive the ABA therapy in home as opposed to at school, in order for her to
obtain educational benefit or to access her education. Student’s deficits in language and
socialization are much more marked at home than at school; the evidence thus supports the
District's position that providing the ABA services at school will assist Student in learning to
generalize her newly acquired abilities to the school setting. Finally, as stated in Factual
Findings 59 through 64, and Conclusions of Law 15, Student has failed to meet her burden of
proof that the District's ABA program is not based upon methodologies that are scientifically
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based and supported by peer review. To the contrary, the evidence indicated that the ABA
program provided by the District includes the same methodologies used by Coyne. The fact
that the Coyne providers are more highly trained, are better at record keeping, and may be
better supervised than District staff does not Support a conclusion that the District's program
does not meet legal standards. The District's offer of 10 hours of ABA therapy to be
provided at the District’s school site therefore did not deny Student a FAPE.
Did the District's offer of placement Sor a portion of Student's school day in a special day
class deny her a FAPE because it does not incorporate adequate ABA Principles, fails to
include peers with compatible instructional needs, and is not the least restrictive
environment for Student?
17, To determine whether a schoo! district substantively offered FAPE to a
student, the adequacy of the schoo! district's proposed program must be determined.
(Gregory K., supra, 811 F.2d at p. 1314.) Under Rowley and state and federal statutes, the
standard for determining whether a district's provision of services substantively and
procedurally provided a FAPE involves four factors: (1) the services must be designed to
meet the student’s unique needs; (2) the services must be reasonably designed to provide
some educational benefit; (3) the services must conform to the JEP as written; and, (4) the
program offered must be designed to provide the student with the foregoing in the least
restrictive environment.
18. Both federal and state law requires school districts to provide a program in the
LRE to each special education student. (See 34 C.F.R. §§ 300.114, et seq.) A special
education student must be educated with nondisabled peers ‘(t]o the maximum extent
appropriate,” and may be removed from the regular education environment only when the
nature and severity of the student's disabilities is such that education in regular classes with
the use of supplementary aids and services “cannot be achieved satisfactorily.” (Ed. Code,
§§ 56001, subd. (g), 56345, subd. (a)(5), 20 U.S.C. § 1412(aX(SXA); 34 CFR. §
300.114(a)(2Xi), (ii).) A placement must foster maximum interaction between disabled
Students and their nondisabled peers “in a manner that is appropriate to the needs of both.”
(Ed, Code, § 56031; see also 20 U.S.C. § 1412 (aX5XA), Rowley, supra, 458 US. at p. 18},
fn, 4; Poolaw v, Bishop (9th Cir. 1995) 67 F.3d 830, 834.)
19, When determining whether a placement is in the least restrictive environment
(LRE), four factors must be evaluated and balanced: (1) the academic benefits of placement
in a mainstream setting, with any supplementary paraprofessionals and services that might be
appropriate, (2) the non-academic benefits of mainstream placement, such as language and
behavior models provided by non-disabled students; (3) the negative effects the student's
presence may have on the teacher and other students: and (4) the cost of educating the
student in a mainstream environment. (Ms. S. v. Vashon Island School Dist. (9th Cir, 2003)
* The terms “regular education” and “general education” mean the same thing as it relates to the IDEA,
and are often used interchangeably by the parties here.
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337 F.3d 1115, 1136-1 137; Sacramento City Unified School District v. Rachel H. (9th Cir.
1994) 14 F.3d 1398, 1404 (hereafter, Rachel! H. ))
20. As stated in Factual Finding 66, and based upon Conclusion of Law 17,
Student has failed to meet her burden of showing that the SDC proposed did not meet her
21. However, as stated in Factual Findings 68 through 76, and based upon
Conclusions of Law 17, 18, and 19, Student has met her burden of proof that the SDC class
was not the LRE for her. Applying the four-factor analysis describe in the Rachel H. case, it
ts Clear that Student could, at the very least, be satisfactorily educated ina general education
classroom as long as she had aide support. There is little evidence that Student would not
benefit from full inclusion in a general education setting. By the time Student's IEP
meetings were held in May and June 2007, Student had spent almost an entire school year
successfully progressing in her education at Hanna Fenichel. The only people who had
consistently observed Student during that entire year ~ her mother, her preschool Director,
and her ABA supervisor - all observed that Student was able to follow routines in the class,
engage to some extent with her classmates, and generally benefit from her education, There
was no evidence that Student was disruptive in class or that cost factors influenced the
District's determination that its SDC was the proper placement for Student. As stated in
Conclusion of Law 18, the IDEA, the California Education Code, and federal regulations
place a heavy emphasis on educating special education students in the regular education
environment, even if supports and accommodations are required. Removal of a special
education child from the general education should oceur only when the nature and severity of
the child’s disability prevents her from being educated satisfactorily in the general education
environment.
22, Certainly, as the cases cited in Conclusion of Law 18 note, full inclusion is not
possible or practical for every special needs student. Student’s experts acknowledge as
much. Dr. Morrow runs an NPS jin which he enrolls only special needs students. Ms.
Korneder testified that she recommends SDC placement for students where appropriate. Dr.
Bailey testified that she too would indicate ifa SDC placement is appropriate; in fact, Dr.
Bailey was herself a student in a SDC, However, in Student's case, she has persuasively
shown that a SDC is not the LRE for her. Therefore, the District’s offer of placement in its
SDC substantively denied her a FAPE,
Did the District's offer of placement in a District general education classroom for a portion
of Student's school day deny her a FAPE because it is not an appropriate instructional
setting for her and because the placement creates a school day that includes too many
transitions between classroom settings?
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spend in this class would only consist of 12 students, such was true for only approximately
45 minutes of the two hours Student would be in the Class. Additionally, the true count of
total potential peers with whom Student would have to interact in the class was actually
closer to 30 than 24 since there were different students enrolled in the class on different days,
The District’s position that Student could navigate the CDC class is based on the
observations and recommendations of its former school psychologist and present behavior
specialist. However, the amount of time they observed Student at her private preschool only
totaled three hours, Additionally, the setting at which they observed Student - the preschool
class at Hanna Fenichel - was significantly different from the CDC class proposed by the
Did the District's placement offer deny Student a FAPE because the District failed to provide
staff capable of implementing the offer?
24. As determined in Factual Findings 83 and 84, and based upon Conclusions of
Law 6 and 17, Student has failed to meet her burden of proof that District staff members
were incapable of implementing any portion of the District’s proposed offer. Instructors for
each portion of the placement are trained professionals who take their Jobs seriously. That
Student's present ABA providers may be even better trained or supervised than District staff,
or that her present providers may be more diligent in keeping records than do District staff,
does not lead to the conclusion that District staff could not meet Student's educational needs.
Are the District's assessments of Student with regard to her educational placement
appropriate and, if not, is Student entitled to reimbursement from the District for the
independent assessment conducted by Dr. Caroline Bailey?
25. Prior to making a determination of whether a child qualifies for special
education services, a school district must assess the child. (20 U.S.C. § 1414(a), (b); Ed.
4]
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Code, §$§ 56320, 56321.)> The request for an initial assessment to see if a child qualifies for
special education and related services may be made by a parent of the child or by a state or
district must conduct a reassessment of the special education student not more frequently
than once a year, but at least once every three years. (20 U.S.C. § 1414(a)(2)(B); Ed, Code,
§ 56381, subd. (aX2).) A reassessment shall be conducted upon the request of a parent. (20
U.S.C. § 1414(a)(2XA)(ii); Ed. Code, § 56381, subd, (aX!).)
26. School districts must perform assessments and reassessments according to
Strict statutory guidelines that prescribe both the content of the assessment and the
qualifications of the assessor(s). The district must select and administer assessment materials
in the student's native language and that are free of racial, cultural and sexual discrimination.
(20 U.S.C. § 1414(b\(3XA)(i); Ed. Code, § 56320, subd. (a).) The assessment materials must
be valid and reliable for the purposes for which the assessments are used. (20 U.S.C. §
1414(bX3)A)(iii); Ed. Code, § 56320, subd. (b)(2).) They must also be sufficiently
comprehensive and tailored to evaluate specific areas of educational need. (20 U.S.C, §
1414(bX3)(C), Ed. Code, § 56320, subd. (¢).) Trained, knowledgeable and competent
district personne! must administer special education assessments. (20 U.S.C. §
1414(bX3A)(iv), Ed. Code, §§ 56320, subd. (bX3), 56322.) A credentialed school
psychologist must administer psychological assessments and individually administered tests
of intellectual or emotional functioning. (Ed. Code, §§ 56320, subd. (bX3), 56324, subd,
(a).) A school nurse or physician must administer a health assessment. (Ed. Code, § 56324,
subd. (b).)
27. _ In performing a reassessment, a school district must review existing
assessment data, including information provided by the parents and observations by teachers
and service providers. (20 U.S.C. § 1414(c)(1XA); Ed. Code, § 56381, subd. (bX1).) Based
upon such review, the district must identify any additional information that is needed by the
IEP team to determine the present levels of academic achievement and related developmental
needs of the student and to decide whether modifications or additions in the child’s special
education program are needed. (20 U.S.C. § 1414(cX1)(B); Ed. Code, § 56381, subd.
(b)(2).) The district must perform assessments that are necessary to obtain such information
concerning the student. (20 U.S.C. § 1414(cX2); Ed. Code, § $6381, subd, (c).)
28. The procedural safeguards of the IDEA provide that under certain conditions a
Student is entitled to obtain an IEE at public expense. (20 U.S.C. § 1415(bX 1), 34 CFR. §
300.502 (a)(1); Ed. Code, § 56329, subd. (b) [incorporating 34 C.F.R. § 300.502 by
reference]; Ed. Code, § 56506, subd, (¢) [parent has the right to an IEE as set forth in Ed.
Code, § 56329; see also 20 U.S.C. § 141 5(d)(2) [requiring procedural safeguards notice to
parents to include information about obtaining an IEE].) “Independent educational
assessment means an assessment conducted by a qualified examiner who is not employed by
* The federal code uses the term “evaluation” instead of the term “assessment” used by Califomia law, but
the two terms have the same meaning for these purposes.
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y
the public agency responsible for the education of the child in question.” (34 CFR. §
300.502(aX3\Xi). ) To obtain an IEE, the student must disagree with an assessment obtained
by the public agency and request an IEE. 34 CFR. § 300.502(b\ 1) & (bX2).)
29. The provision of an IEE is not automatic. Code of Federal Regulations, title
34, part 300.502(b)(2), Provides, in relevant part, that following the student’s request for an
IEE, the public agency me jt, without unnecessary delay, either:
(1) File a due process complaint to request a hearing to show that its
assessment is appropriate; or
(i!) Ensure that an independent educational assessment is provided at public
expense, unless the agency demonstrates in a hearing pursuant to $§ 300.507
through 300.513 that the assessment obtained by the parent did not meet
agency criteria.
(See also Ed. Code, § 86329, subd. (¢) [providing thata public agency may initiate a due
process hearing to show that its assessment was appropriate]. )
30. As Stated in Factual Findings 85 through 95, and based upon Conclusions of
Law 2 through 29, the weight of the evidence mitigates against a finding that the District’s
assessment process was inappropriate or that Student is entitled to reim bursement for the
assessments, the District chose not to re-assess Student using formal, standardized tests in
spring 2007. The law does not require that it do so. Rather, the District proposed an
assessment plan that indicated that District staff would only conduct observations of Student
in the areas of cognitive functioning, academic achievement, and social adaptive behavior.
Student's mother signed the assessment plan; Student’s parents have not asked the District to
administer formal assessments.
31. There are no specific statutory or regulatory standards for how observations,
conducted as part of an assessment process, should be performed. There is no guidance as to
how long an observation should be, where it should take place, or how notes on the
observation should be taken. There is no requirement that a formal report of the observation
be generated and, therefore, no standard for what such a report would contain or in what
format it would be written. Therefore, there is no basis for Student's contention that the
District's observations did not comply with evaluation and reporting requirements. No such
standards exist. In fact, the IEE obtained by Student did not include standardized tests either.
Dr. Bailey's IEE consisted of observations of Student, review of her records, research, and
the preparation of a report. Dr. Bailey did not conduct any standardized tests of Student.
Student's parents did not ask her to do so and she is not licensed to administer such tests.
Nor did Dr. Bailey or Student's parents refer Student to another psychologist to administer
standardized tests. Student disagreed with what the District assessors observed and
disagreed with their conclusions and recommendations concerning Student's placement,
However, such disagreement does not Support a contention that Student is legally entitled to
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an IEE. The weight of the evidence therefore Supports the District's contention that its
assessments were proper and that Student is not entitled to reimbursement of her IEE at
public expense. ?6
Determination of Re lief
32. The court has long recognized that equitable considerations are appropriate
when fashioning relief for violations of the IDEA. (Parents of Student W. y, Puyallup Sch.
Dist, No. 3 (9th Cir. 1994) 31 F.3d 1489, 1496 (hereafter Puyallup School), citing School
Committee of Burlington v, Department of Education (1985) 47} U.S. 359, 374 [105 S.Ct.
1996].) Compensatory education is an equitable remedy; it is nota contractual remedy.
(Puyallup School, supra, 31 F.3d at p. 1497.) Relief is appropriate if it is designed to ensure
that the student is appropriately educated within the meaning of the IDEA, (Jbid.) The
award must be reasonably calculated to provide the educational benefits that likely would
have accrued from special education Services the schoo! district should have supplied. (Reid
ex rel. Reid v. District of Columbia (D.D.C. Cir. 2005) 40] F.3d 316, 524.)
33. A district may be required to reimburse a Student’s parents for the costs ofa
private school if the child Previously received special education and related services from the
district and the district failed to make a FAPE available to the child. (20U.S.C. §
1412(aX 10) (CXii); 34 C.F.R, § 300.148(c); Ed. Code, § 56175.) Factors to be considered
when determining the amount of reimbursement include the existence of other, more suitable
placements, the effort expended by the parent in securing alternative placements and the
general cooperative or uncooperative position of the school district. (Zarger Range, supra,
960 F.2d at p. 1487: Glendale Unified Sch. Dist. v. Almasi, (C.D. Cal, 2000) 122 F.Supp.2d
1093, 1109.)
34. Additionally, a student is only entitled to reimbursement of private schoo!
tuition if it is determined that the placement at the private school was appropriate for the
student. The placement does not have to meet the standard of a public school’s offer of
FAPE; it must, however, address the Student’s needs and provide educational benefit to him
or her. (Florence County School Dist, v. Carter (1993) 510 US. 7,13 (114 S.Ct. 361, 126
L.Ed.2d 284] (hereafter Carter), Alamo Heights Independent Sch. Dist. v. State Bd of
Education (5th Cir. 1986) 790 F.2d 1153, 1161; 34C E.R. § 300.148.) Court decisions
subsequent to Burlington have also extended relief in the form of com pensatory education to
students who have been denied a FAPE. (See, ¢.g., Lester H. v. K. Githool and the Chester
Upland School District (3d Cir. 1990) 916 F.2d 865: Miener v. State of Missouri (8th Cir.
1986) 800 F.2d 749.) Compensatory education is an equitable remedy. There is no
obligation to provide day-for-day or hour-for-hour compensation. “Appropriate relief is relief
—_——
** The ALJ notes that the bill for services tendered by Dr. Bailey is extraordinarily high. The ALJ
reviewed a sampling of about 15 prior Califomia administrative decisions in which the Student's parents requested
reimbursement for an [EE. The ALJ did not find any reimbursement order for over $4,500.
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designed to ensure that the Student is appropriately educated within the meaning of the
IDEA.” (Puyallup School supra, 3) F.3d at p. 1497.)
35. There is broad discretion to consider equitable factors when fashioning relief.
(Carter, supra, 510 U.S. at p. 16.) The conduct of both parties must be reviewed and
considered to determine whether relief is appropriate. (Puyallup School supra, 31 F.3d at p,
1496.) An award to compensate for past violations must rely on an individualized
assessment, just as an IEP focuses on the individual student's needs. (Reid ex rel. Reid y,
District of Columbia (D.D.C. Cir. 2005) 401 F.3d 516, 524.) The award must be “reasonably
calculated to provide the educational benefits that likely would have accrued from special
education services the school district should have supplied in the first place.” (/bid.)
36. Therefore, under appropriate circumstances, a court (and an ALJ ) has the
discretion to award prospective relief, However, in California, the Education Code limits the
prospective relief that an ALJ may order, By statute, an ALJ may not render a decision that
results in the placement of an individual with exceptional needs in a nonpublic, nonsectarian
school, or that results in a service for an individual with exceptional needs provided by a
nonpublic, nonsectarian agency, if the school or agency has not been certified by the State of
California pursuant to the Education Code. (Ed. Code, § 56505.2, subd. (a).)
37. Based upon Factual Findings 68 through 82 and 96 through 100 and
Conclusions of Law 17, 18, 19, 21, 22, 23, and 32 through 36, Student is entitled to relief
based upon the ALJ's finding that the District's offer of placement in its SDC and CDC
general education classes denied Student a FAPE. Hanna Fenichel met the legal
requirements of an appropriate placement for Student. Nor is there any evidence that
Student’s parents unduly failed to cooperate in the [EP process. Student’s parents are thus
entitled to reimbursement for the costs of tuition at Hanna Fenichel that they have already
paid. Furthermore, as detailed above, since the evidence supports the contention of Student’s
mother that the school required payment of tuition in advance, Student's parents are entitled
to the full amount of tuition they have paid, in the amount of $6,100,
. 38. However, as noted in Conclusion of Law 37, California statute prohibits the
AL] from ordering that the District prospectively place Student at Hanna Fenichel and the
ALJ is not making such an order now. The ALJ's order that the District reimburse Student's
parents the full tuition they have paid for school year 2007-2008 is therefore not to be
interpreted as an order for prospective placement of Student at Hanna Fenichel nor is it to be
interpreted that Hanna Fenichel is the stayput for Student for any future purposes.
39. Based upon the Factual Findings and Conclusions of Law in this Decision,
Student is entitled to the provision of a one-on-one aide at school. As Stated in Factual
Finding 101, however, Student is not entitled to her choice of aide provider. Therefore, the
ALJ orders that the District provide an appropriate aide to Student in her class at Hanna
Fenichel. The aide shall be specifically trained in ABA principles and specifically trained to
work with autistic children. Should the District decided to use an aide other than one from
Coyne, the District will arrange for an IEP team meeting to determine an appropniate plan to
transition Student from her Coyne aides to the aide(s) selected by the District.
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40. Based upon Factual! Findings 85 through 95 and Conclusions of Law 2 through
31, Student's request for reimbursement for the cost of Dr. Bailey's services is denied.
4]. . Finally, Student requests monetary compensation for her mother’s time spent
supplementing Student's in-home ABA program. Student's request is supported by neither
providing services to her child. However, that case was very unusual because the parent had
specifically received training to become a service provider when she was unable to find
another service provider to furnish services to her child. The court limited its holding toa
situation in which “a trained service provider was not available...” (/d. at p. 75.) In this
case, there is no question that Appropriate service providers were available through the
District or through NPAs such as Coyne. Additionally, the ALJ has found that Student did
not require more than 10 hours a week of one-on-one ABA therapy in order to benefit from
her education. Student's request that her mother be reimbursed for providing supplement
ABA services is therefore denied.2’
ORDER
l. Within 30 days of this order, the District shall pay $6,100 to Student’s parents
to reimburse them for the costs of tuition they paid to the Hanna Fenichel School.
2. Within 30 days of this order, the District shall provide a one-on-one aide to
Student for the time she is enrolled at Hanna Fenichel, for the remainder of the 2007-2008
school year, including extended school year in the summer of 2008. If the District chooses
Not to contract with Coyne, the District shal! arrange for an IEP meeting with Student’s
parents and the District team members to determine an appropriate plan for transitioning
Student from her present Coyne aide(s) to the aide(s) selected by the District. The order to
hold the IEP meeting if Coyne is not the selected provider does not affect the obligation of
the District to begin providing one-on-one aide services to Student at Hanna Fenichel within
30 days of this order. The District shall also provide a minimum of one hour a week of
supervision for the one-on-one aide, either through its own staff of the NPA of the District's
choice.
Sr NRE Ecaeareetree:
7 Student has not provided any other evidence of costs expended by her parents for Coyne services. She
has therefore failed to show entitlement to any reimbursement other than that ordered here. Furthermore, since the
ALJ has found that District staff is competent to provide ABA services, Student is not entitled to reimbursement for
the costs of her Coyne one-on-one aide at school. ,
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3. If Student wishes to receive intensive ABA services from the District, she
must agree to the 10 hours of ABA services at the District schoo! site, as offered in the June
13, 2007 JEP.
4, Student’s other requests for relief are denied,
PREVAILING PARTY
Education Code section 56507, subdivision (d), requires that this Decision indicate
the extent to which each party prevailed on each issue heard and decided in this due process
matter. Pursuant to this mandate, it is determined that the Student substantially prevailed on
Issue 1(D) and fully prevailed on Issue I(E). The District fully prevailed on Issues 1(A),
1(B), 1(C), 1(F), and Issue 2. The District minimally prevailed on Issue I(D).
RIGHT TO APPEAL THIS DECISION
This is a final administrative decision, and all parties are bound by this Decision.
Pursuant to Education Code section 56505, subdivision (k), any party may appeal this
Decision to a court of competent Jurisdiction within ninety (90) days of receipt,
DATED: January 7, 2008
Office of Administrative Hearings
Special Education Division
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UNITED STATES
DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
SAN DIEGO DIVISION
# 149434 —- SH
** COPY « =x
April 04, 2008
16:28:36
Civ Fil Non-Pris
USAO #.: O8CVO622
Judge..: JANIS L. SAMMARTINO
Amount. : $350.00 CA
Total-—> $350.00
FROM: KA.D (MINOR) V. SOLANA BEACH S
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