AMENDED COMPLAINT with Jury Demand against all defendants, filed by Ka.D., Ky.D., B.D..(Graves, Maureen) Modified on 8/20/2008, notified attorney of s/ (cap).
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Page 1 Case 3:08-cv-00622-W-POR Document10_ Filed 08/13/2008 Page 1 of 73Page 2 Maureen R. Graves (SBN 145979)
John G. Nolte, (SBN 233966)
Law Offices of Maureen Graves Schubert Court
Irvine, CA 92617
Phone: 949-856-0128
Fax: 949-856-0168
maureen@maureengraves.com
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
Ka.D., a minor, by her mother, Ky.D.,
as her next friend; Ky.D. and B.D.
Plaintiffs,
v.
SOLANA BEACH SCHOOL DISTRICT.
Defendant.
2fl
FIRST AMENDED COMPLAINT U.S.C. § 1415 et.seq. U.S.C. § 12101 et seq. U.S.c. § 794
Cal. Ed. Code § 56000 et. Seq.
JURY TRIAL DEMANDED
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 filed under
seal contemporaneously with the original COMPLAINT in this matter) allege as follows:
INTRODUCTION
Case No. 3:08-cv-00622-W-POR
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Plaintiff Ka.D, a five year old girl with a disability, files this civil action against
Defendant Solana Beach School District (hereafter SBSD or the "District"), alleging
violation ofthe Individuals with Disabilities Education Act ("IDEA") 20 U.S.c. 1400 et seq.,
the Americans with Disabilities Act (" ADA"), 42 U.S.c. §12101 et seq., and Section 504 of the
Rehabilitation Act ("Section 504"), 29 U.S.c. § 794 and each statute's implementing
regulations. Plaintiffs allege that Defendant SBSD violated Ka.D.'s and her parents'
substantive and procedural rights under IDEA. Plaintiffs further allege that Defendant
SBSD, largely through the actions of its special education director Mary Ellen Nest,Page 3 1
unlawfully retaliated against them and coerced them by making educational decisions about
Ka.D and depriving her of the full range of educational options based on her parents'
advocacy and opposition to unlawful practices, by depriving her and her parents of
participation in programs on the same terms as it is provided to others also based on her
parents' advocacy and opposition to unlawful practices, by failing to offer an educational
program that afforded her the same opportunity to benefit as did students whose parents
were not engaged in disability-related advocacy and activism, by refusing to offer an
adequate educational program unless the family accepted it in a confidential mediation, and
by restricting her parents' participation with educators and other professionals in the
development of Ka.D. 's educational programs. Nest's retaliatory acts were based on Ka.D. 's
parents' advocacy on her behalf and their advocacy and activism on behalf of other similarly
situated children.
.
In violation of these statutes, the Defendants have intentionally, knowingly and
consistently refused to recognize and fulfill their obligations 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 and non-retaliatory 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, and has punished the D. family for their use of
IDEA's procedures to resist that plan, as well as for their more general activism and
advocacy.
.
In July 2007, Plaintiffs 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 Plaintiffs prevailed as to significant portions of thePage 4 decision and were awarded much of the relief sought in the due process hearing, portions of
the decision were in favor of the District. Plaintiffs allege, 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.
.
Plaintiffs, being aggrieved by the due process hearing decision, bring 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. §
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 and the resulting IEP process. 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.
.
Plaintiffs bring claims for denial of a free appropriate public education in the least
restrictive environment under Section 504 and the ADA because SBSD, as a public entityPage 5 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.
.
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
with OAD's order. To date, the District has refused to pay such fees. With respect to the
other matters, Plaintiffs hope to prevail and to become entitled to attorney's fees pursuant to
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., and this action requests such fees.
JURISDICTION AND VENUE
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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 seq. and 28 U.S.c. § 1331..
Venue is proper in this Court. All of the events that are the subject ofthis
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 five year old girl with a disability. She was born on April 24,
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 SBSDPage 6 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. §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.
.
The full name of Ka.D. is known to Defendant and is contained in an Application
for Appointment of Guardian ad Litem, which was filed under seal at the outset of this
matter.
.
Plaintiff Ky.D. is Ka.D.'s mother. She resides in the City of Solana Beach in San
Diego County, California. The full name ofKy.D. is known to Defendants and is contained
in an Application for Appointment of Guardian ad Litem which was filed under seal at the
outset of this matter. As an advocate on her daughter's behalf, and a parent-activist
regarding special education matters within the District, 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.
.
Plaintiff B.D. is Ka.D. 's father. He resides in the City of 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 was filed under seal at the
outset of this matter. 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.
.
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 ActPage 7 of 1973, and a governmental entity subject to the Americans with Disabilities Act (42 U.S.C.
§ 12101). Defendant hires staff, such as its superintendent and special education director,
who are well aware of their obligations to students with disabilities, and yet repeatedly
violated those obligations with respect to Ka. D. and her family. For instance, special
education director Mary Ellen Nest is employed by the SBSD and was 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. In that capacity she would have been, and
was, aware of the requirements IDEA imposes on school districts, the rights it confers upon
students and their families, and the importance of those rights. Similarly, she would have
been, and was, aware of the rights Section 504 and the ADA confer upon students and their
families, including the rights to non-discrimination, freedom from unnecessary segregation,
and freedom to exercise of statutory rights without retaliation or coercion.
STATEMENT OF FACTS
.
Plaintiff Ka.D. is a five year old girl who was diagnosed in summer 2005, shortly
after her second birthday, 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 social skills and delays in self-help skills. She qualifies for special
education under federal and state law under the autism category, which applies to students
with specified "autistic-like characteristics." She also has optic nerve atrophy and
strabismus, which require intermittent eye patching.
.
Ka.D. received early intervention services starting at approximately age two and a
half. When the responsible local agency delayed in beginning services, her mother began a
long path of becoming extremely well informed and skillful in providing the intensive
applied behavior analysis services that Ka.D. needed. She has since worked collaboratively
with professionals to provide a program of very high quality, from which Ka.D. has
benefited enormously. Upon beginning early intervention, Ka.D. immediately began to
demonstrate dramatic gains.
.
Upon turning three in April, 2006, Ka.D. became eligible for special educationPage 8 services under Part B of IDEA, and since that point, has been and remains entitled to have in
place an Individualized Education Program (hereafter "IEP") setting forth, inter alia, the
nature of her disabilities and the unique educational needs arising from those disabilities. To
ensure that an appropriate program is provided for the student, the IEP was, and is,
required to set forth what is hoped to be accomplished with the student over the course of the
year. In order to ensure full understanding of what is to be accomplished, the IEP was, and
is, required to contain baseline levels of performance and measurable annual goals. Further,
the IEP was, and is, required to contain a description of the specific program and services to
be provided to the student in order to appropriately address the goals and objectives. The
IEP is required to be developed during a meeting of an IEP "team" including and consisting
of the student's parents, teachers, related service providers and other appropriate
participants. The student is entitled to the provision of a free and appropriate public
education (FAPE) in the least restrictive environment (LRE), a term indicating that the
program is to be provided to the maximum extent appropriate alongside nondisabled peers.
.
When Ka.D. first came to the attention of SBSD, her mother was informed that
the District had a special day class program for students like her. 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.
.
At a series of IEP meetings in spring 2006, SBSD declined to provide in-home
services, and insisted that if Ka.D.'s 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.Page 9 While financial details are confidential, the educational bottom line was that from
June 2006 until August 2007, when the agreement expired of its own terms, Ka.D. 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 attended a
community preschool with natural proportions of students with and without disabilities,
supported by a behaviorist employed by Coyne. Beginning in approximately October 2006,
she has also received speech and language and occupational therapy services from SBSD.
Following the expiration of the settlement agreement in August 2007, Ka.D.'s family
continued to ensure in-home ABA services and school "shadow aide" ABA services through
Coyne & Associates. In February 2008, after OAH ruled that Ka.D. should be placed in
general education but permitted the District to use its own personnel to support her, Ka.D.'s
direct and supervisorial applied behavior analysis services began to be provided by SBSD
employees.
.
At some 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.
.
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.Page 10 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.
.
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
l I o n this case because of what she characterized to that expert as 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 settlement
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.
.
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 mainly during two IEP meetings in May and June 2007, though some did not
emerge until the due process hearing in October and November 2007. The first IEP meeting,
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,Page 11 1
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 (which, as the family learned through the District's evidence
submissions for the due process case, was based on a rigid formula ostensibly based on
"general" characteristics of students with autism); "mainstreaming" time in the Child
Development Center, a large, chaotic preschool/day care program operated by SBSDj and
additional instruction, which was poorly specified, through the District's in-house applied
behavior analysis program. She would also be pulled out of some of these settings for speech
and language services.
.
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 clearly established least restrictive environment mandates of
IDEA and Section 504) and proposed a more restrictive setting nonetheless.
.
Ka.D. 's family filed for a special education due process hearing. At that point, an
early resolution session became mandatory unless both sides agreed to waive. The family
agreed to do so, at the District's suggestion that the parties proceed directly to mediation.
Unfortunately, SBSD abruptly cancelled mediation, which is voluntary for each party,
shortly before it was to occur.
.
The District assessed Ka.D. during several observations by its psychologist,
behavioral specialist and Dr. Laura Shreibman, an outside consultant, in March and April
. Unfortunately, the District appears to have misrepresented to Dr. Schreibman what
she had been shown: at hearing she testified that she had come to understand that the large
chaotic environment she had seen, which she had indicated was not suitable for Ka.D.,
actually consisted of two classes oddly combined. Given her updated understanding, she
believed that the class would be appropriate after all. In fact, the program she had seen did,
as other testimony made clear, constitute one class of students. Student's parents disputedPage 12 the observations and placement recommendations of District assessors. On August 7, 2007,
Ka.D.'s parents wrote to Nest informing her that they were going to obtain Independent
Educational Evaluations for Ka.D. The District did not indicate its agreement to fund the
lEE; however, it also did not file a request for due process contesting the request for an lEE
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..
.
SBSD obstructed insofar as possible, observations of its programs by the
independent educational observer. Ultimately, that observation did occur, in October 2007..
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 state that parents are
welcome any time to observe their child.
.
On October 29, 2007, a due process hearing began. The Administrative Law
Judge rendered a decision in which each party partly prevailed, as more fully discussed
below.
.
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, its CDC
general education class was not appropriate for her, and 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
IIPage 13 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 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 was
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 progressed extremely well, to the point that
most of her standardized scores reached the average and above average ranges and she is
increasingly able to demonstrate abilities independently in a variety of natural settings.
.
Although the ALJ correctly determined that the special day class placement was
not appropriate, she 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.
.
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 notPage 14 only a deadline for the District to make the election between Coyne or district staff and
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 interim behavioral services for Ka.D.
addition, though the District was ordered to convene an IEP team meeting to discuss
transitioning Ka.D. to its own service providers, should it choose to do so, the District refused
to fund attendance at that meeting by Coyne & Associates staff. Instead, the District held the
required transition meeting without the presence or input from Coyne & Associates staff,
over the objections of the family. When the family requested to convene a second IEP
meeting, in order to allow input from Coyne staff, the district refused to pay for Coyne
attendance, so the family subsequently withdrew their request for the additional meeting. In
addition, the District was obliged to, and did not offer to, fund attendance by Ka.D. 's special
education attorneys at the transition meeting.
.
In
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 lEEs. 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 cursoryPage 15 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 not only encourages overly subjective approaches, but also
undermines one of the essential purposes of the lEE right, which is to provide families with
"access to an expert who can evaluate all the material that this school 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 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 which the family had obtained unless it demonstrated
during the due process hearing that the lEE 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 lEE,
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 lEE 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 implementing the 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," but failing to acknowledge
District's staffers' lack of commitment to inclusion, their limited training and technicalPage 16 understanding, and their ambivalence regarding, and refusal to commit to using, research2
based educational strategies. Unfortunately, once Ka.D.'s parents consented to allow
services to be provided by District staff, her program rapidly deteriorated, to the point that
in June 2008 they gave notice of their intention to, and did, remove consent for ABA services
by District staff. In August 2008, Ka.D.'s parents explained that in light of her regression
following the District's takeover of services, and the District's kindergarten plans, Ka.D.
would be remaining in preschool and continuing to receive ABA services during the
upcoming year. The family has indicated their request for reimbursement of these services,
and in the absence of a global settlement in the near future, will file for hearing to seek
reimbursement for their costs trying to reverse Ka.D.'s recent regression and restore her
previous very positive trajectory.
.
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.
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
access the general curriculum alongside nondisabled peers. Indeed, the District has not even
been willing to let Ka.D. 's ABA program be driven by her goals and objectives, insisting on a
preacademic orientation which is not appropriate given her relative strengths in that area,
her age, and gaps in underlying language and social abilities.
.
In fact, the evidence established that
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).Page 17 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 Ka.D., 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
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, thatPage 18 1
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.
.
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
were sufficient and that the family had failed to demonstrate that the District's program
lacked a sound research base.
.
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.
.
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
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 improperly 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, instead
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 Ka.D. 'sPage 19 parents 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 cost-sharing plan 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
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. Moreover,
relegating these discussions to a confidential mediation setting would have limited Ky.D.'s
ability to share with other parents the nature of the discussions and probably certain details
about the arrangements.
.
The hearing officer drew conclusions about Ka.D.'s needs and options which were
not supported by the evidence.Page 20 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.
.
During the relevant time period, Ky.D. has been a tireless advocate not only for
her daughter, but also for other children with special needs. She has, in addition to
advocating for the programs Ka.D. needs, helped other parents in their struggles against
SBSD. Ky.D. started a support group for parents of children in SBSD special education
programs, is a vocal opponent of the District's highly segregated approach to special
education, has communicated directly with the School Board superintendent regarding
Ka.D. 's case, and has informed parents of inadequacies in the programs she has observed.
For parents involved in IDEA disputes with school districts, the ability freely to share
information with one another about experiences with school staff and administrators,
District responses to family requests, and the fair opportunity to observe District programs
are crucial. The District, and Nest specifically, were aware of Ky.D. 's activities. The family
also advocated for Ka.D.'s and their own rights specifically, and successfully, by filing for
due process during the 2006-2007 school year. Ky.D., as a result of her experience and
abilities, is a forceful advocate for competent early intervention, inclusion, and the due
process system. Nest and the District were aware of her activities and the assistance and
support she provided to other members of the community.
CLAIMS FOR RELIEF
-COUNT ONE-
Individuals with Disabilities Education Act
and Implementing California Statutes-Attorneys' Fees
.
Plaintiffs reallege paragraphs 1 through 54.
.
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.Page 21 20 U.S.c. § 1415. The parents of a student who prevails in such administrative hearing are
entitled to an award of attorneys' fees..
Plaintiffs largely prevailed in the due process proceeding involving OAH Case
Nos. N2007070255 and N2007090146 and are 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 ofAdministrative Decision
.
Plaintiffs reallege paragraphs 1 through 57.
.
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 party aggrieved by the decision of the administrative tribunal is entitled
to judicial review of that decision.
.
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.
.
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 ofRehabilitation Act of 1973
.
Plaintiffs reallege paragraphs 1 through 61.
.
The District by its actions and inactions set forth above, has violated and
continues to violate Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.c. §
(Section 504), and the regulations promulgated thereunder, 34 C.F.R. Part 104, byPage 22 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, violating
IDEA's requirements, and violating Section 504's least restrictive environment
requirements. Defendant further violated Section 504 by retaliating against Plaintiffs for
actions protected under Section 504, including but not limited advocating on behalf of a
child's education, community leadership, advocacy, and activism regarding rights of
children with disabilities, and exercise of due process rights. These retaliatory acts included,
but were not limited to, refusal to let Ka.D.'s 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, refusing to offer
the clearly appropriate program except in a process that did not provide the full panoply of
IDEA rights (essentially coercing a waiver of rights), limiting access to District programs on
the same terms as those offered to families of children who have not taken protected actions
in furtherance of their statutory rights, and pressuring the parents to refrain from speaking
freely regarding their concerns during the IEP process.
.
As a direct and proximate result of the District's violation of Section 504, Plaintiffs
Ky.D. and B.D. have suffered and continue to suffer injuries, pain, humiliation, anxiety,
mental anguish, emotional distress, lost earnings, out-of-pocket costs, and damage to
reputation, social and educational development and personal relations, in an amount to be
ascertained according to proof at trial. The District's actions in violation of Section 504 were
intentional and constituted deliberate indifference to Plaintiffs' rights under that statute.
.
The District's actions in response to Plaintiffs' protected activities had an adverse
impact on Plaintiffs. As a direct and proximate result of the actions and events described
above, Plaintiffs have suffered injuries including pain, suffering, humiliation, anxiety, mental
anguish, out-of-pocket costs, lost earnings, 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 havePage 23 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).
-CQUNTFQUR
Violation 0/ the Americans With Disabilities Act (ADA)
.
Plaintiffs reallege paragraphs 1 through 66.
.
The Americans with Disabilities Act prohibits discrimination based on disability
by governmental entities. It also prohibits retaliation, coercion or threats (by governmental
entities and others) against people who engage in protected activities under the ADA.
.
The District's acts described above, which were inflicted upon Plaintiffs, violate
the Americans with Disabilities Act and its implementing regulations, 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 governmental program or activity, violating IDEA's requirements, and disregarding
the mandate that governmental educational programs be offered in the least restrictive
environment. Defendant further violated the ADA by retaliating against Plaintiffs for
actions protected under the ADA, including but not limited Ky.D. 's and B.D. 's advocacy on
behalf of their child's education, community leadership, advocacy, and activism regarding
rights of children with disabilities, and exercise of due process rights. These retaliatory acts
included, but were not limited to, refusal to let Ka.D. 's 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,
refusing to offer the clearly appropriate program except in a process that did not provide the
full panoply of IDEA rights (essentially coercing a waiver of rights), limiting access to
District programs on the same terms as those offered to families of children who havoe not
taken protected actions in furtherance of their statutory rights, and pressuring the parents to
refrain from speaking freely regarding their concerns during the IEP process.
.
The Defendant's actions in response to Plaintiffs' protected activities had a readily
foreseeable adverse impact on Plaintiffs. The District's provision of crucial programs wasPage 24 threatened, delayed and interrupted and, as a direct and proximate result of Defendants'
violation of the ADA, Plaintiffs have also suffered and continue to suffer injuries. The
District's actions in violation of the ADA were intentional and constituted deliberate
indifference to Plaintiffs' rights under that statute.
.
As a direct and proximate result of the actions and events described above,
Plaintiffs have suffered injuries including pain, suffering, humiliation, anxiety, mental
anguish, lost earnings, out-of-pocket costs, 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
.
Plaintiffs reallege paragraphs 1 through 72.
.
Plaintiffs request that this Court enter a preliminary injunction ordering that
Ka.D. remain in the last agreed-upon educational placement for the pendency of this
litigation (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 Plaintiffs as to that placement, and 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 critical school years. 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. Indeed, in June and
July 2008, the District attempted quietly, without notifying Ka.D.'s parents, to place Ka.D.'sPage 25 program under the supervision of its consultant Erin Ring, who has previously attempted to
steer Ka.D. into low-intensity, ineffective programs which, rather than individualizing
services, rely on crude and, in Ka.D.'s case, inaccurate stereotypes about autism.
.
Plaintiffs further request that the District be ordered to refrain from violating
Plaintiffs' Section 504 and the ADA rights and further be ordered to provide an educational
program to Ka.D. without unnecessary segregation and without discriminatory provisions
relating to program access and parent involvement.
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 lA, 1B, iC, 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.
.
Award Plaintiffs' costs, disbursements and reasonable attorneys' fees in the
underlying administrative matter, at the transition IEP Meeting, and in this proceeding..
Order the District to refrain from violating Plaintiffs' Section 504 and ADA rights
and further order the District to provide an educational program to Ka.D. without
unnecessary segregation and without discriminatory provisions relating to program access
and parent involvement; and
.
Grant such other relief as this Court may deem just and proper.Page 26 DEMAND FOR JURY TRIAL
Plaintiffs hereby demand a jury trial as to all matters so triable.
Respectfully submitted 13 August 2008,
MAUREEN GRAVES
Counsel for Plaintiffs
Page 27 Page
DEFORE TIlE
OFFICE OF ADMINISTRATIVE HEARiNGS
SPECIAL EDUCATION DIVISION
STATE OF CALIFORNIA
In the Maner of
!
I
STUDENT,
Ot\H CASE NO, N2007070255
Petitioner.
v.
SOLANA BEACH SCHOOL DISTRICT,
Respondent,
SOLANA BEACH SCHOOL DISTRICT,
OAH CASE NO. N2007090146
Petitioner.
v.
STUDENT,
Responden 1,
DECISION
Darrell Lepkowsky, Administrative Law Judge (ALJ), Office of Administrative
Hearings (OAH), Special Educalion DiviSIOn, State ofCalifoTnl8, heard this maneT on the len
business days between October 29,2007, and November 9, 2007, with the eleventh and final
day of hearing held on November 19. 2007, at the offices of the Solana Beach School District
in Solana beach, California I The hearing was open to the publi c, 81 Ihe request of Student's
parents,
I
The hearing
Wil.l
originally scheduled
County, the hearIng W~5 postponed a week
begin on October 22,2007 Due to the fires
In
San nlego
Of 48Page 28 ..,.j
M~ndlY C7 of Jan 200~aXjnation
->949 858 0168
Page
~tlorneys Maureen R. Graves and john G, Nolte represented Snlden, and her parents,
Student s mother was present throughout tJle hearing Student's father was occasionally
prescnt.
Attorney Jonathan P Read. of Fagen. Friedman & Fulfrost, LLP, represented the
Solana Beach School District (Dlstnct), Mary Ellen Nest, the District's Director of Pupil
Services, was present throughout the hearing
Student frIed a request for due process on July 10.2007, The Distnct filed a request
for due process on September 7,2007 The Distnct's unopposed motion 10 consolidate the
two 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 rem8i~ open in order
for the parties to sllbmlt post-hearing clOSing briefs and reply brief's Both parties tImely
filed their closing brIefs on December 17,2007 Student timely fi led her reply brief on
December 24,2007 The District tiled its reply brier on December 26,2007, The AU
closed the record and deemed the matter submitted as of December 26, 2007. The parties
stipulated to tolling the time In which a deciSion WIlS due until January 7, 2008
ISSlJES 1
I,
Whelher the DIstrict denied a free appropriate public education (rAPE) to
Student for the 2007 ·2008 school year and 2008 extended school year by,
A.
Predetermining its offer of placement and related services
B
[-'lliling to consider all relevant data concerning Student, including input
from her rorents, before mak Jng an ofTer of placement and related servIces
C
Failing to otTer an applied behavior analysis (ABA) Iherapy program
that meets Student's unique needs because It is not scientifically based and supported
I
DUl'lng the hearing, Studen! Withdrew as a separate Issue her contention that Ihe Dlslrlct denied her a
FAPE by failing to ensure Dr 1.aura Schreibman's presence at al! of Sl'~denl's Individualized educ~\lonal plan learn
meetlngl durlIlg \.he time In question AdOillonaliy, Student onglnally rOlsedthe Issue, In her cC1mplaml and aLthe
prehe,ring conference, of the DistrICt's alleged failure LO develop an appropnate plan to transil Ion Student from her
current educational program ICl the program offered by Ihe Dlstnct However Student did nC1! present any eVidence
add/elling thIS Issue al heanng and Student does not address II In her clOSing hrlef The only reference to a
transilion plan In Siudent's bnef IS a ()ne-sentence reference ',0 the facllhatthe DISlIICI'S proposal for two hours of
consultatIon belween Its staff and Siudent's presenl prOViders C1fapplied behaVioral analySIS serVices IS insuffiCient
Thislssl.It iltherefore not addressed In thiS deciSion Finally, the Issues have been rcstRted In accord Wllh \.he
evidence presented at hCRrlng and Ihe argtlments offered bv Student In her briefs
of 48Page 29 ~
->949 856 0166
Page
by peer-reviewed research, to the eX1en\ practicable, IS not offered In a home
enVironment, and falls to provide a sumcient amount of therapy hours
[)
Offering a placement for a portion of Student's school day in a special
day class tha.t 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 placernenl In a District general education classroom for a
portion of Studenr's school day that is an inappropriate instructional sening for her
and whose addition to Student's program creates a school day that includes too many
transitions between classroom senings.
.
F
Fail ing to provide staff capable of implementing the individualized
educational plan (I EP) olTered by the Distric I.
Are the DI stnct' s assessments of Student WI til regard to her educational
placement appropriate and, if no~ is Student entitled to reimbursement from the Dislnct for
the independent assessment conducted by 1)1 Caroline Bailey?
REMEDIES SOUOIIT BY STUDENT
Student seeks District funding of34 hours per week of direct ABA therapy,
lhrouah her present provider, Coyne &. ASSOCiates (Coyne), with the hours to be divided
between student's private preschool, her horne and in the communit)'. Student also seeks /6
hours per month of ABA supervision. also through Coyne, and payment for two hours per
month of ABA clinics, al1el1ded by Student's educators, aides, and ABA providers Student
also sovovks 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 2007-200R school year, which has already been paid by her
parents, along with an order for prospective placement at Hanna Fenichel with one-on-one
RIde support from Coyne for all hours Studenl IS In anendance. 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 prepanng her report
CONTENTIONS OF THE PARTIES
The main thrust of the dispute between Student and the District in this case is where
Student should be educated in order to preparc her for entering a general education
Kindergarten class In the fall of 2008, The partIes do not dispute that Student should spend
at least some of her ti me I n a preschool cl aSsroom with typically developi ng peers. They do
dispute, however, whether a District placement is appropriate to meet Student's unique
ot 48Page 30 .J
of Jan 2008~aXinat1on
->949 856 0168
Page
needs. With regard to the provision of one-on-one ABA se"'lces, the parties do not dispute
that Student presently requIres an aide dunng allY tIme she spends in a typical gcneral
education class. Nor do they dispute tllar Student requires at/east some direct individual
ABA therapy. Rather, they dispute wh~ IStO prOVIde the ABA aide and servIces, the amount
of dlrec1 services Student requires, and If direct services should be provided at Srudent's
home or at the Distnct's preschool campus.
Student contends that the Distnct commitled procedural violations Of1hc reauthorized
Individuals with Disabilities Educ8tionaiAct (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
contends that the Distnct failed to consider all relevant dala conceming Student, Including
inpul from her parents and Coyne, before making an offer of school placement and related
services, and fai led to offer a program that is scientifically based and supported by peer
reviewed research, to the eXlent practicable Student further contends that the fEP offer is
substantively defective beclluse it fads to meet her unique needs, Student contends that the
Districl 's offer docs not include pro viSloll for sullic ienl direct AB AJ instruction, fails to
include peers with compatible Instructional needs, and includes too many transitions between
classroom settings Stlldent further assert.'> thaI the District'S offer ofpJacement for pal1 of
her day In a special day class (SDC) is not the least restrictive environment (LRE) for her
She also con tends that the offer of placemen t in the DIstrict's general ed ucatl on classroom
for the other portion of Student's school day is inappropriate due to the structure of the class
and, in particu lar, the amount of students In It Student further contends that District staff is
not capable of implementing the District's proposed fEP Finally, Student contends that the
District failed to assess her appropriately and that she is therefore entitled to reImbursement
for the servICes of Dr Caroline Dalley, Including all time spent on observations, revIew of
records, research, and for preparation of Dr Bailey's e>-1enslve report,
The District contends that it did not commit any procedural or suhstantive viola lions
of the rDEA lt asserts that the evidence fails 10 Sllpport Srudent 's contenllOn that the
l PJ explained by DistrIct expert L>r Laura Schreibman, AHA, as an intervenllon for the treMment of
autism, IS onen assocl8led With speclrlc behaVIOral methods, such as discrete tnal trlllning (DTT), IntenSive
behavioral mterventlon, Incidental teaching, pi votalresponse lralnlng, and verbal behaVior anAlysis. A discrete Inal
IS a llngle cycle of a behaViorally-based instruction rout inC A particular trial may be repealed severllilimes In
SUcceSSion, several limes a day, ovcr several days (or even longer) until Ihe skill IS mastcred
The method and technique of ABA therary requires thai tare,~\ed t>eh~vIO~ be reduced 10 their most baSIC
elemems, and Ihal the child IS then trained by repetitiOUS dJ~liJng In Ihe redirected behaViors deSired Contextual
factors, established operations, antecedent stimuli, POSitive reinforcers, and other consequences are used. based on
Identified functional relationships With the enVironment, I~ order tQ produce prActICAl behaVior change. Negallve
be~aviors are generally q;nored. Prompts or other assistance Are limed and prOVided 10 assure correcl responses, and
then gradually "faded' to eSlabilsh inderendence The child 1$ then urged 10 repeat each task until II has been
learned Overall, the treatment focuses rrlmarily on developln~ language, Increasing SOCial behAVior, and promoting
cooperalive play With peers along \\'Ilh Indcpendcnl and appropriate toy play Concurrently, SUbS\anllol efforts are
dIrected at decreasing excessive rituals, WlnlN1TlS And aggressive hehavlor
oJ 48Page 31 .,
->949 856 0168
Pags
DIstrict predetermined its offer of placement 10 her or failed 10 consider relevant Information
about Student from her parents or other sources. It further contends that the educatioTlaJ
program offered to Student at the June 13, 2007 fEP team meeting provides Student with
educational benefits and permits her to progress In the curriculum. The District contend th
the teac~ersl lildes, and service provider~ on its stafT are capable of addressing all of
s at
Student s ~ducatlonal needs. The DIstrict further asserts that its offer of placement for part
ofSludenl s day In Its SDC, and for part Student's day in one of its genera! educahon
preschool classes, was an appropriate otTer for Student and was the least restrictive
environment for her. The District further contends thaI Student does not require more than hours a week of ABA therapy Finally, the District asserts that Student is not entitled to
relmbu~e~ent for I,he services of Dr. Bailey The District asserts that Student's parents
failed to dTsagrce wrth the assessments conducted by the District, a prerequisite to their
entitlement to an Independent educational evaluation (lEE) In the alternative, the District
otTers that its assessments all met appropriate legal standards. The District therefore denies
lhal it violated Student's rights under the IDEA or that she is entitled 10 any of the remedies
she has requested.
or
FACTUAL fTNDlNGS
Backgrcn.md Information
Student's presently just over four·and·a-halfyears old. She was born on April,2003 At alltirnes relevant to the allegations in thiS case, she resided with her parents
within the District's boundaries Student is eligible for special education and related services
based upon a diagnosis of autism. Her eligibility for special education services is not at issue
in this case.
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 norma! 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 the San Diego Regional Center. The Regional Center eventually evaluated Student,
determined that she suffered from developmental delays, including speech and language
delays, and found Student eligible to receive services. Observations by the Regional Cenler
noted thai Student faded 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, e,
some aggressIve benavlors. was prolle to tantrums. and e'
behaviors, such as spinning and hand movemenls. The Regional Center found thaI Student's
educational needs were severe and that her behaVioral needs were moderate The Regional
Center contracted with Coyne, wh ich is certified by the state of California as a non-public
agency (NPA) to provide the ABA services to Student
of 48Page 32 'Wi
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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 WoodRII Foundation. 4 The
foundation evaluates children for autism and recommends treatments and sources of
aS~lSlance for parents. Tracey Woodall runs the Foundation, which is based in Texas.
Student and her morher new to Texas in Ausust of 2005, Ms. Woodall administered the
Assessment of BaSIC Language and Learning Skills to Student to assess Student's prescnt
developmental levels and to assIst Il\ educational planning for Student. The assessment
indicated that Student demonstrated severe cognitive delays. However, the assessment and
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 dela~'s in self-help skills, as well as self
stimulatory behaViors stercotypical of autism, such as wiggll ng hcr Ii ngers
Dunng 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 10 the therapy, progressing
more in the four days than expected. Ms. Woodall recommended that Student recei ve at
least 30 hours per week of one-on-one direct ABA therapy services.
,
Aflhough the Regional Center did not agree 10 fund the 30-hour a week
program recommended by Ms Woodall, II did contract with Coyne to provide approximately
12nOllrs a week ofrn-home ABA ser"lccs to Student starting in September 200S. Except for
the number of recommended hours, the Coyne services mirrored the recommendatIons made
by Ms. Woodall Coyne provided a parcnt tralnillg component as well. Within a shon 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 111 the four months or so that Student had been
receiving ABA services. Student's speech and langUllge skills had progressed exceptionally
well, rising in jusl four months from profoundly severe to moderately severe.
,
Planning for Student's transition from early start servIces to ed ucational
services to be provided by the District occurred in the spring of 2006. Prior to the meeting,
Student was assessed by the Di~;(nct in the areas of pS'r'l:ho-motor development/perceptual
function, language/speech/communication development, cognit,"e functiOning,
•
H\~
Widow, Tracey Woodal', founded the 8ren\ Woodall Foundalion In hiS memory after he WRS killed
lhe World Trade Towcl'$ on September I I, 200 I Student's molher was drawn to the websJle because she had
known Brent WOOdRll1O college
In
ofPage 33 Page
social/emotional adaptive behavior, and health, Coyne also did its own psychological
assessment of Student about the same lime the DIstrict conducted its assessments of her as
part of tile Regional Center's ongoing provision of servIces 10 S[Udellt,~
,
Student's inltlallEP with the District was held on March 31, 2006 The IEP
learn noted that Student was highly responsive 10 B slructured environment. She was
beginning to show strong pre-academic skills (she was oble to COllnt to 12), and could answer
basic questions about herself and her family, such as her name and her sister's name,
However, the assessments indicated, and the [EP team 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,6 Although Student was approximately 34 months old attne time sne was
assessed, the assessmencs i nd icated she had a vocabulary com prehension of a ch ild between
the ages of 15 and 16 months, At a level of between 20 lind 21 months, Student's expressive
vocabulary was also significantly below her actual age level. Student also demonstrated
significant social/emotional deficits, Tile IEP team noted that she fell overwhelmed in large
groups ll!ld would withdraw. Student continued to demonstrate neeting and limited eye
conlatt, and was noted to wIthdraw dUring group activities with peers. The fEP 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 grou p Instruction,
,
As a resu It of Studen t's assessments and diSCUSSions with the JEP team on
March 31, 2006, the District offered Student the foJlowrng placement and sen'ices:
placement in a District specia I day class for 240 minutes a day, )20 minutes of which would
be individualized direct instruction, individualIzed direct insl!'1lction for an additional two
hours per day, five days a week, speech and language services three tImes a week for 30
mmutes each session~ and occupational therapy/speech group one tIme a week for a 45·
minute session, The District also proposed up to 25 hours of consu ltation between Coyne
and District stafTto transition Student's ABA program to the District Student'S parents
agreed with the JEP team's determination of Student's present levels of performance, and
with most of the goals developed for her However, they did 110t agree 'vith the District's
proposed placement and proposal for provision of ABA sen'ices, SpeCIfically, Student's
parents believed that StlJdent did not belong in a SDC and believed Ihat Coyne should
continue providing A13A services to Student in their home
Coyne referred Student's parents to the Hanna Fenichel preschool Hanna
Fenichel is a com'munlty preschool serving typically developing preschool students, The
state of California has not certified it as a non-public school (NPS), Student's parents were
, On April 21,2006, the Regional (enter
plvase~
founc1th~1
Studenl wnl,nued to he eliSlhie for
liS
services
I American Ilenlage DICllonary defines echolalia as the Immediate and InvolunlaIy repel Ilion of words or
lust spoken by others, oflen a symptom of aUl15m
of 48Page 34 ~
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very impressed by the school and decided that they would enroll Student there beginning in
the fall of2006.. They also filed a due process complaInt against the DiSITict based upon their
dIsagreement with the placement offered by the DIStTlct The panies 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 /9 hours a week of direct instruction ill
Student's home and six hours per week of a one-on-one aide for Student wh iJe she attended
Hanna Fcnichel two days a week. The settlement agreement also provided for supervision of
the ADA program at home and at Student's preschool Additionally, Stud ent received two
45·minue sessions of speech and language thera.py at the District preschool site as well as an
hour a month of occupational therapy consultation between Studenl'S mOlher and a District
occupational therapiSt. At hearing. the parties did not enter into evidence this settlement
agreemenl II is also unclear from the te~imony at heanng exactly who funded the
placement and services
II.
After signing of the settlement agreement, Srudent's parents had little conlact
with the District until February 16, 2007, when Student's IEP team first met to begin the
proem 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 Jt is the offer made to
Student by the District as a culmmation of these meetings, the events leading to that offer,
and observatIOns conducted of Student 10 help the District determine Its offer, which form
the basis of the complaints that are at issue in this hearing.
Procedural Violattons That May Cons1ttute a Denial ofFAPE
A school district must comply both procedurally and substantively with the
IDEA. While not every procedural naw constitutes a denial of FAPE. procedural flaws that
inhibit a student's right to receive a FAPE, significantly Inhibit a parent's opportunity to
participate in the IEP process. or cause a deprivation of educatIOnal benefit to a student will
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 learn members, or refuses to consider the Input ofa 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
concerns a parent has concernIng the child's placement However, participation by the
parents must not be mere form over substance; participation in the fEP process mllst be
meaningful..
A school district is also required to make El formal written offer that clearly
identifies its proposed program. However, it IS proper for district IEP team members to
discuss among themselves the parameters of programs available to a student and to write II
draft ofa program they rnay want to discuss with a student's parents. Furthermore, parents
do not ha"e a right to their chOice of placemen 1 or choice of service providers, as long as tile
district's choice of program or providers offers 11 FAPE to the student.
o! 48Page 35 Case 3:08-cv-00622-W-POR
Document 10
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/ Educatrona I Placement
. 14.
Student contends that the Pistri~\ had al~eady predetermined to place her in a
specIal day class at lIs preschool before It participated In, the IEP meeting on May 11,2007,
and therefore de~led her parents an opportunIty to par1Jclpate In the IEP process, resulting in
a demal of FAPE to her Studen t bases her asser1lon on conversations Student's mother had
with District DireClor of Pupil Services Mall' EllenNesl prior to the May 11 meeting on the
fact I.hat District witnesses ackno~ledged having discussed Student's rEP before the May II
meeting, and based upon Student s assertion that the DIstrICt refused to consider continued
placement for her at Hanna Fenichel.
The IEP team considered the meeting the parties held On february 16,2007, to
be 8 "pre-meetrng." The main purpose of tile meeting was to determine whIch assessments
rhe Distnct would administer to Student and to arrange observations of her. At this meeting,
the Di:l\riCt prepared an asiiessment plan for Srudentthat included forma 1assessment~ 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 thaI 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 all her
intera~tl0n with peers Student did not comply with her teacher's prompts to go to circle
lime; 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
observed thaI Student was able to choose activities independently and remain engaged in
them. Ms Reise's observatIon noles did nol make any recommendations about placement or
related services for St udent.
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 or questions
when asked by her one-nn-one ABA aide who was giving Student 0 session dunng Ms.
Reise's obserVation The aide al~o worked WIth Student on recalling detailed information,
Ms Reise noted thaI Student knew all the upper case letters and was working on leaming the
lower case leners Student WllS attentIve while Iistening to a story and answered questions
about it thaI her aide posed 10 her. Ms. Reise observed that Student could rote COllnt to IS,
could answer social questions, such as ones about her parents' names, and could identify
some words by sight. Ms. Reise's obser;ation noles ofSludent while at Student's home also
did not make any recommendations concerning Student'S educational placement or proVIsion
of related sel"'lces
of 48Page 36 wi
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->949 6S6 0168
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. 18, Dr. Laura Schreibman: II distinguished professor at the University of
CailforOla, 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. Scho~1
psychologist Sharon Loveman obscrved Student for an hour and II half at her school on April,2007, and for an hour llI1d 45 minutes at Student's home on April 19,2007. Ms Reise and
Ms. Loveman hand-wrote theIr observations but did Aot make any specific recommendations
concerning Student In their observation reports Dr. Schreibman reduced her observations to
a Ictt,er written to Ms, Nest in which she also gave her recommendations concerning what she
conSIdered an appropriate placement for Srudent Dr. Schreibman, who had also observed
both a Dislrict preschool SDC and a District general education preschoo I class, found that the
District's general education class was then beyond Student's capabilities She also found
that behaviors sne observed in Sl\Jdent counseled against continued full Inclusion of Student
in her present placement at Hanna Fenichel. Rather, Or. Schreibman recommended a
placement for Student in the District's SOC. whIch also enrolled a number of typically
developing peers along with the special educallon students The District provided copies of
all three of these reports to Student's parents
.
Dlslrict School psychologist Sharon Loveman observed Student for two and a
naIf hours at her preschool on Apnl 3, 2007 She observed that Student's general demeanor
was relaxed, happy, engaged and alert. However, Ms. l,oveman also noted that Student had
limited interaction with her peers and, while she played alongside them, Student did not
mimic their play and seemed unaware of her peers' shift to rlay that is more complex. Ms,
Loveman noted that Student'S response to her instructor's attempts to get Student to Initiate
interaction with her ~ers 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 thaI she overheard and was able to express emotion and intent, Ms.
Loveman also observed that Student was anenllve during Circle time, was able to choose
books to look at and knew thaI the book was supposed to be read page by page. Student also
appeared to understand the routines In the classroom, and did not have difficulty transitioning
between activities in the class or from classroom to playground. Ms. Loveman did not make
any recommendations in her observation notes concerning placement or services for Student,
Ms Loveman observed Student at Student's home for an hour and forty-five
mmuteson April 19,2007 Ms. Loveman observed that ST1.1dent 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 inronnation and demonstrated an extensive and varied vocabulary as it related to a
dinosaur book. Ms. Loveman noted that Student at times did take a lot of tIme to respond 10
questions, but that Student's expressive languagc did include the use of adjectIves and
pronouns. She noted (as later confirmed by Ms Reise) that Student's ~erbal exp~ession was
significantly more spontaneous at home than at school Ms. Loveman s observallon notes of
Student al home did notlllclude any recomrn~ndations concerning placement or servIces for
Student. Page 37 .""j
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->949 856 0168
Page 12 of 48
After receiving Dr Schreibman's letter, a~ well as the observations ofMs
Loveman and Ms. Reiss, Ms Nest discussed Dr Schreibman's rccommclldations with both
Ms. Lovemlll1 and Ms ReIss, as well as with Dlstnct 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 ~e vel of prompting Student was receiving
at Ihe school, as observed by ~s, Loveman. Ms, ReIss, and Dr. Schreibman. While Ms. Nest
and the other staff members discussed supports and services Student was presently receiving,
and what possible supports and semces they each believed Student needed, they never
discussed or compared progrnm costs, and never discussed whether the District should refuse
to consider continuing Student's placement at Hanna Fenichel. Ms. Nesl did not direct any
of the staff members to take a partIcular pOSitIOn on placement nor did she direct Ihal they
refuse to consider a placement al Hanna fenlchel.
.
Coyne also prepared a progress report regarding Student, dated May 1, 2007,
in anticipation of Shldent 's annual JEP. The report recommended Ihal 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 edUl.:al10n be In n fully
included general education class rather than In a SDC, In dlrec! ~ontradiction to the
recommendatIOn made by Dr Schreibman
. Studenl's mother agreed with Coyne's recommendations. Since they were
contrary to the recommendation of Dr SchreibmlUl, who Student's mother knew to be a well
known authority on autism, Student's mother became concerned about tIle confllCIs in the
two recommendations and how the District would react to the recommendatIons made by
Coyne, She was very concerned that the Districl would not consider Coyne's
rCtommendations and that the District would refu~e to conSider placing Student at Hanna
Fenichel for Ihe upcoming school year, She therefore telephoned Jane Whitney, her
educational consultant from the Regional Center, and aske
her of what the Coyne report recommended so that there would be no surprises at the fEP
meeting. which had recently been schedLiled for May J J, 2007.,
Ms, Whitney telephoned Ms. Nest per Ihe request of Student's mother Ms,
Whitney explained whal was in the Coyne report., stating that Ihe family wanted to have a
streamlined lEP meeting wilhoul surprises Ms Nesl agreed that there might be
disagreement at the rEP meeting since the parties' respective consultants had given contrary
recommendations Ms. Nest did not make any negative remarks about Student's mother to
Ms W11ltncv their conversation was brief and Ms. Nest thanked Ms. Whitney for shartng the
family's inf~;mation concerning the Coyne recommendations with her
After Ihe phone call from Ms. Whitney. Ms Nest was convinced that
Student's family was going to insist 011 mailltaining Sl1.Jdent's placement at Hanna Fenic~e'
with Ihe same level of Coyne services and would refuse to conSider placement In a DIstrict
classroom Based upon her conversation with Ms Whilney, Ms Nest telephoned Student's
mother They hlld a long discussion abollt the upcoming fEP meeting and about Dr.Page 38 .."J
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->949 656 0168
Page 13 Of 48
Schreib~an's recommendation that, Student be ~Iaced In the District's SOC Ms, Nest told
Student s mother that she agreed With Dr. Schreibman's recommendation for a SDC
placement although she was not specific during thiS conversation as to why she agreed with
It. Th,~ prompted a diSCUSSion between the two about the concept of placemen t in the least
restnctlveenvlronment, and the opinIOn of Student's mother that an inclUSive placement was
more approp~late for Student. M,~' Nest commented that she wlUlted the fEP meeting to be
non·adversanaland they snould agree to dIsagree" Ms, Nest ended the conversation by
Slating that lfthere \Vas no agreement at the IEP meeting the parties could meet afterward
and perhaps try to media te their ditferences Ms, Nest did 110t discuss what opinions other
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 placemenr at Hanna Fenichel. She called Ms, Whitney to
VOice her concerns and, ultimately, wrote 10 the District's Superintendent to express her
concem that the District had predetermined Student's placement for the following school
year, The Superintendent never responded to the lener Ms, Nest did not discuss options for
Student's placement with the Supenntendent
Concerned about the tenor of the conversations between Student's mother and
Ms. Nest and the concern of Student's mother that the fEP meeting would be a charade, Ms.
WhItney contacted Ms Lovernan to sel up a meetmg prior to the scheduled IEP meeting,
Ms. Loveman agreed that a meeting would be helpful to try to restore truSl and confidence
between Student's mother and Ms Nest. Ms. [~overnan 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 Lovernan, Ms,
Ryder, and Ms Nest. Student's mother expressed her concerns about the District following
Dr Scnreibman's recommendations and concerns that the District would inSISt that Student
an\:nd the Distr;<:t's SDC the following school year According to Ms Whitney, Ms Nest
was defensive about the District's programs and her stalTand stated that she wanted to
ensure ~lat Student's mother did not criticize the stalTor their programs during the YEP
meeting the next day. However. Ms. Nest also listened to what Student's mother had to say
and did not state that she had been directed by her superiors to refuse to consider anything
other than a DistTlct placement for Student Nor did Ms. Ryder or Ms. Lovemen express an
opinion at this meeting about the benefits or disadvantages of any particular placement for
Student. The meetmg did not resolve any or discord between Student's mother and Ms. Nesl
nor did it alleviate any of the concerns Student's mother had that the District had
predetermined Student's placement for the upcommg school year.
The JEP team meeting took place as scheduled on May I 1,2007. Present at
the meeting were Student's mother, Coyne & Associates ABA supervisor Jessica Komeder,
Hanna Fenichel school Direclor Sarah Hillier, viSion specialist Amy Nangel, and Student's
anorney Maureen Graves AJso present were Regional Center educational consultant Jane
Whitney, District school psychologist Sharon Lavernan, Child Development Center DirectorPage 39 'WI
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Suza~ne Blackwood,7 speech and language pathologist Lisa Ryder. behavior specialist Reise,
Dlstnct Director of Pupil Servlc~s Mary Ellen Nest. District preschool SDC teacher Tracy
Allison and OCCuplitlollalrheraplst Karen Peterson Dlstnct corlsUl!ant Dr. Laura Schreibma
Joined the meeting about an hour after It started
n.
The team reviewed Student's present levels of performance (the review had
begun during the previous meeting on February 16, 2007) and Student's goals. Student's
mother had preViously met With Ms. Ryder, the speech and language pathologist, to draft
spee~h and hUIguage goals The vision specialist had not been able to observe Student prior thIS IEP meettng and wanted to do bOth the observation of Student and specific vision
assessments of her, to which Student's mother agreed There was no disagreement between
the members of the IEP team regarding Student's present levels of performance, the
significant progress Student had made during the school year. or what Student's goals for the
next year should be.
.
The IEP team spent a considerable amount of time durin g the meetin g
reviewing Coyne's progress report of Student and the observations of Student by Ms. Reise.
Ms. Loveman. and Dr Schreibman. Hanna Fenlchel DireclOr 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 Srudent needed In order
to ma~e 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 school year.
Ms. Reise and Ms. Loveman discussed their obsen'ations 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. Schrei bman arrived at the meeting, the team focused on her report
and recommendations Dr Schreibman was concerned that Student was still exnibiting
perseverating ~haviors. For example, she had observed Student's tixation with one lype 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 SOC, although she anticipated that Student would
, The Child !)eyelOpmenl Center (CDC) IS a seml·autonomous unit within the District II IS a self.
fee·for.serYlces preschool open to lhe publiC There IS no requirement thaI 8 student must be 8 DIHrlct
r~ldent to all end the COC COC employees are D'slrlct emrrovec~. although the CDC IS funded from sludent
el\l'ollmen\ fees The DlstllC!', general educallon preschool clCl.5ses ale In the CDC. The lJ,SITrCl'S preschool SOC
clas,es, however, are operated outside the CDC lJJ1der direct DISITlcl control ChJldIen With speCial education
eligJhillty whose lEP teams place them :n a CDC CIRSS do not h~ve 10 pay lhe enroJlm~n\ fees
SUpporting Page 40 ..,.,
200B~'a)(1nat.ion
- >949 858 0168
~oon be IIbl e ,to transi,tlon t? a general education class If It had
II
Page 15
small number of students in
It. Dr SchreIbman dId IOdlcllte, nowev,er, thaI she believed a possible placement for Student
could be a combinatIon of the Districts SDC and the Hanna Fenichcl class
Dr Schreibman's comments prompted a long discussion between the IEP team
members a~ut the benefits and drawbacks of both the District's SOC classroom and the
H~nna Femchel classroom, Unfortunately. at the time of the IEP meeting, no one from the
District had been able to obse"'e the four-year-old cIlIss at Hanna Fenichel where Student
would attend the following school year was she to be placed then:. Ms. Hillier discussed the
differences between the three-year-old class and the four-year-old class: students anended
the latter five days a week rather than two days a week. and the four-year-old class was less
pillyobased and focused more on kindergarten readiness than did the three-year-old class.
There was a marked disagreement between the panies as to the import of the
observations of Student by the District obse"'ers. Ms. Loveman, Ms. Reise. and Dr.
Schreibman believed that the behaviors they observed of Student at sch 001 were signi ticant
and could best be addressed and extinguished in a SDC setting, although they did see many
ofthe benefits of the Hanna Fenichel classroom, Ms. Reise specifically discussed the
benefits ofcombining a structured classroom during the first ponion of Student's day with an
inclusive classroom for the second half of her day Conversely, Student '5 mother, her
attorney, the Coyne representative, Ms. Whitney. Ill1d the Hanna Fenichel Director. all
believed that Student had demonstrated signifIcant progress during the year. They believed
that Student'S interactions with peers was Increasing, that she was reqUlnng less prompting
from her aides, thllt 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 IE? team agreed on Student's goals
However, the JEP team did not reach any decision regarding Student'S educational placement
for the next year lind did not spend more than inCIdental time discussing Student's need for
continued ABA therapy. The District did not make an offer of placement and services at the
meeting. Rather, the team agreed that the District would submit a wrinen offer of placement
and services for Student [0 her parents after the meeting. based upon the agreed-upon goals
and objectives. rather than meeting in person Illter.
Based upon advice oflegal counsel, the District decided to hold another
formallEP team meeting to present its offer of placement and services to Student's mother
ratherthan to submit the offer by mall. 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 Lovema~. Ms. Blackwood, Ms.
Ryder, Ms. Allison, Ms. Nest, and Jonathan Read, artorney for the Dlstncl No one from the
team invited Dr. Schreibman to the meeting.
ot 46Page 41 .I
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Page 16 of 48
.
After discussion of fhe need to complete Student's vision assessment, Ms.
Nest revIewed the lEP notes from the pre~lOus meeting. The team then reviewed the speclttl
factors page of th.e lEP documen.t. and revIewed the accommodations and supports that
Student requIred In a classroom In order to access her education. The team then discussed
Dr. Schreibman's recommendations for a more structured classroom placement, such as the
District's SDC In comparison to the recommendations made by the Coyne representatives.
Student's mother pointed out that rhere was no dispute between the paT1les that certain
interventions should take place to redirect Student's mappropriate behaViors. Rather, the
dispute concerned In what type of setti ng Illese interventIons should occur..
The District then made its otTer of placement and services, which Ms. Nest
presented. The District made Its offer based upon the Input of Dr, Schreibman, the
observations of Ms Loveman and Ms. Reise, Coyne's progress report, and inplit from
Student's mother and educatIOnal consultant. Based upon all discussion and review of all the
reports, the District otTered a placement to Student. The otTer consisted of placement of
fltudent for two hours in the morning in the District's SDC on 11s preschool campus for four
days a week. Student would then transition to a District general education preschool class.
where she would spend two hours a day, four days a week, accompanied by a one-an-one
aide. The District also otTered to provide Student with one-an-one ABA therapy at the
District school site for two hours a day, five days a week. The District also otTered Student
two 45· minute sessions a week of speech and language therapy, one 60-minute session of
grolJpsocial 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 lind five typically developing children so that Student would be educated wllh
typical peers for most of her day.
The District's offer differed from the otTer made to Student tile 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. !t provided for a one-on-one aide to accompany Student
In the general education class The otTer also included a group social skills class that the
District had not otTered the previous year The District's otTer took into consideration the
recommendation of its consultan~ Dr. Schreibman and statTmembers Ms. Loveman and Ms
Reise. that Student required the structure of a SDC for at least part of her day. Jt also took
into consideration the recommendations of Student's mother, the Coyne representatives. and
Ms, Whitney, that Student was ready for inclusion in a general educalion setting, The offer
did not consist of a filII placement of Student in an SOC; rather, the District based its ofTer
upon consideration oCal1 recommendations concerning Student. District stafTsincerely
believed that they considered a II ill put and considered all of SIud en!' s needs, and believed
that DIstrict classrooms could meel those needs!
I
The DI&lflCl's offer of speech and language services, CX:ClJpaltOnal therapy consul131lon. and group SOCial
skills seSSion,
IS
nol 81 issue Page 42 Case 3:08-cv-00622-W-POR
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Although Ms Nest's comments during her conversatIons with Student's
mother apparently contributed to the tension between the paTties, the weIght of the evidence
does not support Student's contention that the DlstrICl predetermined Student's educational
placement Ms. Nest may have had her own idea of what was appropriate for Student, as
each team member, including Student's mother, may have had. However, there is no
evidence that Ms. Nest's superiors directed her to offer a specific placement or to refuse to
consider Hanna Fenichel. Nor does the weight of the evidence support an inference that Ms.
Nest pressured her staff to make a specific recommendation or to refuse to con sider any
placement, including one at Hanna Fenichel The team spent considerable time at the rEP
meetings revlcwing all recommendations, heanng everyone's comments, considering Ihe
benefits and drawbacks of each type of place men t, and di sc ussi ng Student'S needs. TI1 e
Distnct made its offer based upon all these conSideration, nol on a preconceived notion of
what Student needed..
Especially credible was the testimony of school psychologist Ms. Loveman.
By the time she testi tied at the hearing, Ms Loveman had retired. Therefore, any bias or
loyalties that may be argued 10 influence statTmembers 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 rEP meetings or any reason 10
color her testimony at hearing. ff anything, her long-term personal relationship with
Student's family would argue for an inference thaI Ms. Loveman would be more apt to want
to skew her recommelldations toward the desires of Student's family
.
Ms Loveman, however, gave credil7le testimony that her recommendatIon that
Student requi red a SDC placement for at least a portIon of her school day, was based upon
her observations of Student as corroborated by the observation s of Ms. Reise and Dr.
Schreibman, Ms Loveman specifically stated that the District's offer was not
predetermined. 'me weight of the evidence supports this contention with regard to the
District's ofTer 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
made its olTer of placement. 'me fact that Ms Nest met with different staff mem bers to
discuss their observations and a possible recommendation for STUdent does nOI lead to the
conclUSIOn that the District as a whole had predetermined what the placement should be.
FIrst, not all District fEP team mem bers attended the meetings. Second, the purpose of the
meetmgs was to dISCUss the different observations staff made of Student in preparation for
As prnlou~ly ,taled, Hanna Fenlchel I~ not a certl(led "IPS Howeyer, thcre was no merlllon by the
IEP meetings or IClllmony by D1S~lCt st6(( at the hcaTing that tne lack o( Nf'$ statU$ was the
re~on th~ District tlid not o((er 10 place Studenllhere
DIIUICI Bt any o(lhe Page 43 ~
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the IE? meeling ThIrd, the evidence indicales that District team members did not a/l
initially have the s~me recommendation for placement and that II District did not develop a
consensus concerning placement for Student untJlafter the IEP meeting held May II, 2007,
The fact that the Di strict did not agree with Student's request for placement at Hanna
Fenlchel merely reflected that the parties had a good faith disagreement regarding the
appropriate placement, not thatlhe Districl predetermined Student's pro(Xlsed placement and
was not willing to consider her mother's request
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 meamngfully in the IEP process The District leam members fully considered all
comments and recommendations at all IE? meetings these individuals attended, They all
asked questions, gave their opinions, voiced theIr concems, and gave general input to their
belief that Student did not belong in a 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 Districl prevented Student or her representatives from meaningfully panicipating 10 the
JEP process,
Furthermore, the weight of the evidence does not support the inference that the
decisIon 10 offer a District placement rather than a placement at Hanna Fenichel, or any other
private school, was the result of a District-wide poltcy against private placements, Likewise,
Sludent ofTered no evidence that any District administrator or policy-maker higher up the
school hierarchy than the DIstrict IEP team members was dictating placement decisions for
special education students or for Studenllll particular, Nor did Student present any evidence
that cost factors were the driving force behind the placement offer made by the District. In
sum, the only tangible evidence that Student presents to support her predetermination claim
is 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 otTer Student a placement
at a private preschool does nol compel the conclusion that the offer was predetermined.,
Student has failed to produce persuasi\le evidence that the District
predetermined her educational placement prior to the June 13,2007 IEP team meeting. No
procedural violation occurred.
The llJ1el lysis conceming the District's otTer to Student of ABA therapy for 10
hours a week at Ihe District school 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 rneetings 'O indicates that there was meaningful discussion of Student's need for
Intensive OTle-on-one ABA therapy and discussion betweell the parties as to where the
thempy should occur, The parties specifically discussed the recommendations made by
The ALl llslened to the full recordmg or both mec!lngs
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Coyne. Student's mother stated that Coyne recommended that Student continue to receive a
total of30 hours a week of ABA services." She clan lied that the ABA services at home
~ould significantly decrease.the f~lIowing school year while there would be a corresponding
Increase In school ABA servIces since the time an ABA aide would accompany Student to
school would increase..
In response \0 the concerns raIsed by Snlden t's attorney and by her mother
District school psychologist Sharon Loveman stated that she felt Student was ready to ha~e
her discrete trial training moved from the home to school. There is no evidence that the
District attempted to foreclose Student's mother or anomey from voicing their opinions or
concerns about what they considered appropriate for Student's ABA therapy and no evidence
that discussion was stifled To the conlrary, Student's mother spellt considerable time
voicmg her opinion as to what she thought was proper level and type of services. Although
Srudent's mother also voiced a strong opinion at the IEP meeting that the District had
predetermine(! Student's ABA services, the weight of the evidence does not support this
contention. District statT gave reasoned e)(planations to Student's mother as 10 why they felf
Student's ABA services should be moved from the home to school There is no compelling
evidence that the recommendation to so was based on a District policy against in· home
services or that school officials higher up in school hierarchy had instructed either Ms Nest
or other school starr that in-home servIces shou Id 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 e)(pressive and bet1er
grammatically at home Both noted to the rEP teRm that Student's social skills and responses
to her envIronment were stronger at home than at skill. In addition, both believed that
because Student's skills were stronger at home and that because she was not generalizing her
skills from home to the school environment, the better course of action was to provide
Studenl's ABA services at school..
The core of the disagreement With regard to the ABA services at the rEP
meeting therefore was where tile services should be dell vered and by whom The District's
ofTer of 10 hours of one~on-one ABA services corresponded substantially to the 12 hours
Student'S mother stated that Coyne would be providing based upon Coyne's
recommendation. The District listened to the arguments advanced by Coyne, Student's
mother, and Student's anomey that ABA services be <:ontinued in Student's home. There
simply was 8 disagreement as to whether in-home services were necessary to meet Student's
n~s. That the District was not persuaded by the arguments advanced by Coyne and
Student's mother and attorney does not mean that the District predetermined that it would
only otTer ABA services at the school site..
The weight of the evidence therefore fai!s to support Student's c
the District either predetcrmi ned the amount and location of ABA therflpy offered Lo Student
II
Coyne's report aclually recommend:; 8 total of 25(0)0 hours oflOUlI ABA services
ot Page 45 ~
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at the J~ne 13,2007 IEP team meeting and or made thc offer without considering Ihe input of
Student s mother or the Coyne representatives There was thus no procedural violation of
Student's right to a FAPE.
Adequacy of Ihe District's Offer of Placement and ABA Sen1ices,
A school district provides a FAPE to a student if it designs its program or
placement to address Ihc student's unique educational needs and provides a program and
services reasonably calculated 10 prOVIde some educational benefit to the Student in the leasl
restrictive environment. A school district is also reqlllred to provide a student with special
needs a program, including support services, designed to address the child's unique needs,
rrthe school district's program met the substantive factors, then it provided a FAPE. even if
the student's parents preferred another program and even if his or her parents' preferred
program would have resulted in greater educational benefit to the student than the program
offered by the district. The district's program must provide some educational benefit; it need
nol maximize the student's potential. 12
Studtml's Unique Needs
The parties do not dispute that Student does not have weaknesses in the area of
cognition, where assessments IOdicate that she is in the normal range of mental development
for her age. Rather, Student's weaknesses are in the areas of socialization and expressive
language. She continues to demonstrate traits typIcally associated with autism, She stili
needs prompting to focus on topics and still needs prompting to interact with other children;
Student does not always engage with other children spontaneously in the classroom,
Studenl's expressive and pragmatic language In the classroom is still below normal
developmental level although her language is much more expressive when she is conversing
in her home Srudent still requires the assistance of a one-on-one aIde in the classroom to
prompt Sl\ldentto follow instructIons, to redirect her actiVIties or inappropriate behavior, and
to assist her in inillating interactions with peers. Sl\ldent also continues to show anxiety
when she is in large group settings such as restaurants and church Sunday school, requi ring
family support and assIstance to assiS1 her in functIOning in these environments.
Inadequale Offer ofIntensnJe ABA therapy Se",ices
. Student contends that she requires approximately) 7 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. Srudent contefld5
I~ Contrll.J\ l1u~ standlll'd with the applicable slandard under Calt(orJllO'S Lanlerman Developmental
DISabilities Services Act (Weir & ln~l Code. § 4501 et seq) Which slate~ thai "11 IS the rnlc:nI of the Legls/ature that
regional centers ILlml pe~ons wllh developmenlal diubdltle~ nnd their families In lecU1ing those services !II1d
supports whIch ma>uml ze opponunilits and chOIces for" Vlng, working, learrung. !II1d recreal1ng In the community"
(Weir. & Inst Code, § 4640 7 ) Page 46 wJ
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the program sho~ld have been offered in her home. which is a more naturalistic setting for a
four-year·old child She also contends thaI the program offered to her IS not scientifically
based and supported by peer-reviewed research as requIred by the reauthorized IDEA. The
District contends thaI Student has not met her burden of proving that the program it oITered
will not provide alleast 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, Chat
Student needs some 17 hours a week of one-on-one ABA services, Indeed, Jessica
Komeder,IJ 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 of30
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 Sfudent participated in A classroom,
and abollt 12 hours of intensive ABA therapy 10 Student's home. With regard to the nllmber
of ABA hours needed by Sf\ldent, the Distnct's otTer Iherefore is very close to that
recommended by Ms. Korneder. The DistriCt's otTer Includes ]0 hours of one-on-one ABA
therapy and one hou r of a facil itated group social skills session (which Studen t is not
presently receiving) for a total of 11 hours. There is simply no evidence that Snldent will not
be able 10 access her education or will be unable to progress in the curriculum with one less
hour of services that thaI recommended by M~. Korneder. While additional hours of ABA
certainly might provide additional benelil to Student, the Districlls not reqUired to maximize
her potential.. Additional suppot1 for the District's positIon that its offer of 10 hours of ABA
is sufficient to meet Studenl's unique needs is found In the dcx;umentary and lestimonial
evidence Student provided in support of her contention thaI she does not require placement in
a SDC, As will be discussed ill more detail below, Student presenled many witnesses whose
testimony all corroborate the facl that Student has progressed extraordinarily well in the two
years she has been receivins intensive ABA therapy Her autistic-I ike beha viors have
significantly decreased, and her receplive and expressive language abilities have increased.
Student's mother wrote in the JEP noles that Student often uses complete sentences to ask for
things, 10 comment on her surroundings, to sing songs, to communicate with others and to
describe how she is feeling. Student'S mother also noted that in a year's time, Stlldent had
b«:ome another person Her autistic-like behaviors had been extinguIshed to a good extent,
Studenl inleracted with peers in and out of school, and she could now engage 10 long
sessions oflmaginalive play. Ms Woodall corroborated the observations of Student's
mother, sUlting at hearing Student had made extreme progress. Dr. Joseph Morrow,l ~ one of Ms. Komeder hilS II MaSlers degree In Behavl<1r Analysis from Westem Michigan Unlver~ily. and IS a
Board Cen/fled BehaVior Malys\ She has been working 31 Coyne for Bbou\ IWO years and IS one of iL~ Regional
DlreclOI1l Ms Komeder hR~ almost :0 yeal1\ of e~penence working In the arc a of ABA. w,th ,ncreaslng
responsibility over lhe years [or superVISion of ABA progran\s
\. Dr Morrow obtained a Doctorate degree Irom WashIngton Slale Unlvem1y in experimental
psychology He hilS spent over {ony years worklng in the area of behaVior analySIS He IS a professor emeritus al Page 47 wi
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Studenl's e"lperts who observed her in her home, stated that he might not be able to identify
Student as a child With auhsm If not told 10 advance of her diagnosIs TIlese comments about
Student do not lead to a conclusIon that she requires more than 10 hours of ABA therapy In
order 10 obtain benefit from her education
There is more dispute as to where Student'S ABA services should take place.
Dr. Bailey, Il Dr. Levin, 16 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 ase They believe that Student needs to learn at horne and then generalize this
knowledse to other settings, such as school. Student points to literature shoWing that autistiC
sludents received the mosl benefit from in-home programs, However, as discussed above,
the standard is not where a srudent :will benefit the most from a par1icular 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 II finding that Srudent 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
thaI Student's language abilities and social interactions were much more in evidence at home
than al school. Ms. l.oveman noted that Student was much more spontaneous and
independent. Because of the dlscrepallcles between Studenl's demonstrated abilities at home
as compared to school, Both Ms. Loveman and Ms, Reise believe, and the eVIdence
substantiales, that Student will benefit from moving her ABA instruction to the school
settmg. The evidence supports the Dlstnct's contention that Srudent will benefil froln
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 II seneral education Kindergarten for the 2008·2009 school year.
Stude"1 also contends that the ABA program olTered by the District is nol
scientifically based or supported by peer-reviewed research first, the Distrtct in its closing
bnefcorrectly points to the Uni ted Stutes Department of Education's commentary to the new
federal regulations implementing the reauthonzed IDEA. That commentary states "[T]here
Csliforrtla Stale University, S~rementD. a licensed psychologist, and a Board Cenlr,cd Behavior Analyst Dr
Morrow rounded, and IS presently the plesldent of. Applied 8ehavior Consultanu, a cenlr,ed NPS ror students with
aullsm, which also provides ABA therapy 10 children IItld ~odd'ers
II Dr Bailey received her l)oClOrale degree In CIInICRI psychology and developmental psychology from tlle
L'nivmity of Southern Califomia In 200" She is presently an aSSIStant professor at Cahromla Slate UnIversity,
Fullerton She IS nol a licensed psychologist of Board Certified BehaVIOr Analyst, although she has signifleunl
Ir8Jnlllg and educallon In rsychology and learning dl\~hill\lcs
" Dr LeVin, Coyne's ClmlCal Dlreclor, recclvcd hiS [)oct orale degree In Clinical PsyCholosy from the
Slate Universllyo[ New York In 1996 He has a sIgnl[lcanc ~moun[ 01 experIence working With aU!Jstlc chIiclren,
and' number of publications to his credll Page 48 wJ
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is nOlhing i~ 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 rAPE. The final
decision about the special educallon and related servIces, and supplementary aIds and
services that are 10 be provided 10 a child must be made by the child's fEP Team based on
the child's indivIdual needs" (71 Fed.Reg 46665 (August )4.2006).)
.60,. Mor~ si8nitic~ntJy, th~re .IS no evidence that the District proposed using
behaVIoral instruction that differed sIgnlficnntly from that provided by Coyne. District
behavior specialist Jodi Reise credibly testified that the behavior program that she supervised
was based upon tradliional 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 tnal training principles
.
Dr. Schreibman corroborated the use ofdifTerent methodologies to influence a
child's behavior, stating, as did Dr. Levin, that different methods work with dilTerent
children. Dr. Schreibman, who was a student of Dr 0 Ivar LovaasI' at the University of
California, Los Angeles, was a knowledgeable and persuasive witness who credibly testified
that researchers are constantly exploring new methods of behavioral analysis in order to
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 stra tegies that have been researched and validated, all of which prove
beneficial to some child ren These strategies include discrete trial training, pivotal response
training, Illcidental teaching, and the picture exchange communication. Dr, Schreibman
explained thlllt ABA is a research technology, not a specific treatment. Rather. there are a
number oflreatments 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 Irial training, and thlll others do not respond to
pivotal response tralOm8· Therefore, a program must be developed to respond to the ch ild' s
specific needs, Dr. Schreibman is acquainted with Ms Reise and believes that she is capable
ofirnplemenfillg an appropriate behavioral intervention program for Student
Student provided significant evidence that the ABA intervention program she
receives from Coyne is excellent and that the service prOViders, in particular Ms. Komeder,
are extremely well trained and qualified. Dr Schreibman agreed that Coyne prOVIdes a
quality service. Student's evidence also demonstrated that Coyne's program is more
structured and beller supervised than the District's ABA program, that it keeps beller
records. and that its supervisor, Ms, Komeder, has stronger educational qualifications and
more behavior intervention experience than does Ms, Reise. However, the facl that Student's
" Dr L.ovaas IS the alJlhor or Lhe seminal study or ~ehanor analysIs In aIJ1Isl'c children. "BehavIoral
Treatmenlsnd Normal FidUC3\lonalsnd [nlc/lec!ual Functioning ,n Young AullSliC Chlldlen" (Journal or Consulting
and Clinical Psychology (I ?8 7) ) Page 49 ~
nation
->949 856 0168
Page 24
present ,program may be bener than the one offered by the District does not mean that the
District s program will not provIde Student wIth a FAPE The District lleed not provide the
best program; II only need provide a program that offers more than minimal 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 S\IPports 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 interven tion. Student has
presented no compelling evidence that she will not receive some educational benefit from the
IQ·hour program offered by the District. She has not met her burden of proof to Show that
the ABA program otTered by the District is not based on appropriate ABA principles
Student has therefore failed to meet her burden that the District's ABA program denies her a
FAPE,
Special Day Class offered hy D,strict.
Student contends that the SDC at the District's preschool does not incorporate
adequate ABA principles, fails to include peers with compallble instructional needs. and is
not the least 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 SOC teacher Denise Gomez all testified that the composition oCthe
SDC was approximatelY seven special needs children and five typically developing children.
The class was specifically designed 10 integrate typically developing children with the
special needs children so th9tthe special needs children could model their behavior on the
typical children and so that t he typical children could learn to appreciate and learn from the
special needs children. There was very little eVidence presented aboulthe disabilities and
instructional levels of the 5pecial needs children presently enrolled in the SOC. However,
even assuming thal they al\ have a lower cognitive level and more deficits than does Student,
tne inclusion of the typIcal peers would balance the compositIon of the class Indeed, Dr.
Schreibman noted that when she observed the SDC she had dlf'ficulty determining which
children had identiGed disabitities and which were typically developing children, Nor has
Student demonstrated that Student would not obtain educational benefit from the SOC class
merely because her instructional needs are not identical to every child in the SOC class. The
weighl of the evidence presented by the District is that the SDC teacher leac hes to the needs
ofevery student in her class and that, therefore, the SDC class would be able adequately to
meet Student'S instructional needs.
Student neX1 posits that the instruction in the SDC does not mcet her unique
needs, as it does not incorporate ABA principles into the structure of the class. Student also
questions the abilities of the SDC teacher, Denise Gomez. Ms, Gomez has a bachelor's
degree in communications from San Diego State University and an early childhood spetial
education credential from the same school She is bettcr educated than are most general
of 48Page 50 ".J
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education preschool teachers She has had classes In ABA techniques, inclusion training,
and ~urse work In autlsm. Ms. Gome, recognizes that each child is unique, and that some
special needs children need more structure and visual cues than do others. Ms. Gomez
stressed that the strategies she uses in her classroom as those consistent with traditional
behavior intervention methodologies. She focuses on skill acquisition and reduction of
inappropriate behaviors. Ms. Gomez is familiar with discrete trial training and knows how to
keep data with regard to the discrete trials. !-Ier classroom incorporates ABA methodologies
such as dIscrete tnals, behavIor management, structuring of the class 10 meet the needs of the
students. The classroom also incorporates sensory Integration strategIes. Ms Gomez is
willing and capable of implementmg Student's goals and objectives In her classroom. The
evidence thus demonstrates that Student's concerns about Ms. Gomez's capabilities are
unfounded. Further, the weight of the evidence does not support Student'S belief that the
SDC would not adequately address her educational needs..
Finally, Student asserts that the SOC is not the least restrictive environment
(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 tile
nature of the disability. or its severity, education in a reglilar class cannot be achieved
satisfactorily even with the use of supplementary aids and services Four factors are
evaluated and balanced to determine whether a placement is in the LRE: (I) the academIC
benefits of placement in a general education setting, with any supplementary
paraprofessionals and services that might be appropriate; (2) the non-academic benefits of a
general education placemen t, SUC~l as language and behavior models provided by non
disabled students; (3) the negative effects the student's presence may have on th e teacher and
other students in the general education sertlOg; 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 on Ii general education teacher or the other students in a
general education classroom. To the contrary, when the IE? meetings were held in May and
June of2007, Student had spent approXImately Iline months in a general education classroom
without incident. Sharon HillJer, the Director of the Hanna Fenlchel school. who observed
Studenl a couple of times a we~k in Student's preschool class. commented to the IE? 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
Student's aide. AJthough the observations of Student by District witnesses Dr. Schreibman,
Ms. Loveman, and Ms Reise all noted that Student did not often initiate interaction with her
classmates lllld still had deficits in her language skills, none observed any negative impact by
Student on either her teacher or classmates.
AdditionallY, there is little eVidence that Studen1 would not benefit from
incl\lSion in a general education classroom. The observations by Ms. Loveman, Ms. Reise,
and Or. Schreibman did not focus on the benefit Student was receiving in her general
education classroom at Hanna Fenic hel Rather, their observations focllscd on the fact thatPage 51 ...J
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Student was not initiating social interaction without prompting. However, upon questioning
from Siudent's counsel at ~eanng. all agreed that a teacher or an aide in a general education
classroom could easIly redIrect the type of autistic-like behaviors, which the three had
obse~ed in Student. All parties, including thc District, noted the positive aspects of
inclusion, including the fact thai typIcally developing peers would provide excellent roll
models for Student with regard to her language and SOCIal skills. For these reasons the
District's offer proposed that Student spend half of her classroom time in a general'
education.
.
The focus of the inqu iry with regard 10 whether the SDC is the LRE for
Student therefore is on factor onc· the academic benefits to Student of a general education
class as contrasted with the academic benefits to her ora SDC In syntheSIS, the inquiry is
whether Student was ready for full inclUSion III II general educfltion class when her fEP team
met or whether she would have been unable to participate in the academiC environment even
with support and accommodations..
TIle District correctly points Oul in its closing brief that much of the
testimonial evidence that Student presented at hearing of her readiness for fu II Inclusion
came from witnesses who had not observed Student al the time the rEP team met Therefore,
their observations could not be relevant to whether Student was ready at that tIme. Dr
Morrow observed Student JUst days before the hearing, some six months after the rEP team
meeting. Dr. Bailey observed Student In late September and early October 2007, four
months after the IEP meeting. Dr. Patricia Schneider-Zioga ll also observed Studen1 mere
days before the hearing in this maner. Although their testimony was useful in presenting lU1
overview of Student's present levels of language Wld social interaction, it was not relevant to
whallhe parties knew, or should have known, when developing Student's IEP six months
before the hearing took place Four to six months I~ a sisnificant amount of ti me in the life
of any four-year-old child, it l~ a particularly slgnlflcant amount of time for Student as the
evidence indicated she has consistently made remarknble progress over bncfperiods
The DIstrict believes, based on the recommendations of its expert, Dr.
Schreibman, and staff members Ms. Loveman and Ms. Reise that Student was nOl ready for
full inclusion at the time 1he IEP team met. The Districl argues that Student needs to be in an
environment where she leams independently to navigate a classroom and where activities are
teacher-directed rather than student-directed as preparation for the structure of a typical
Kindergarten closs. Dr Schreibman, who IS well known In the field of autism, specJfically
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-
I'
I'
Dr Schnelder.Zloga has a doctorate degrec IlngulSllCS from the Unll'erS\ly of California at Los
Angeles She IS presently a full lime lecturer at California ~\atc 'Jnlver.nty. r'"llertonPage 52 Page 27 of 48
trained SDC teach?r could focus on eXlinguishlng Student's inappropriate behaviors.
increasing Student s language skills, and teaching her navIgate a classroom without an aide.
However, the District's arguments in favor of the SDC placement improperly
focus on the whether Student's access to her education would be maximized in that setting
rather than on rocuslIlg on whether Student would be able to progress academically in a
general education classroom. The inquiry is not whether the SOC is best for Student.
Rather, the inquiry is whether Student should be removed the general education environment
because the nature and seventy of her disabilities IS such that education in regular classes
with the USe of supplementary aids and services can not be achieved satistac torily. Therefore,
even ifit is not the best academic sening for a Student, a general education classroom is
appropriate if the child can receive a satisfactory education there.
.
The District's contention that the lEP team did not have enough evidence
when it met in May and June 2007 to determine that Student cOlild be satisfactorily educated
in a general education class is not persuasive Hanna Fenichel Director Sarah Hillier
indicated the progress Student had made in her prescl1oo1 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. Komeder, and the Coyne progress report,
corroborated Ms Hillier's observations Coyne noted that Student had achieved many of her
IE? goals earlier than projected, had made significant gains in the areas of speech and
language, social interaction skills, generalizahon, and compliance. As of March 2007,
Student was beginning to comment to, respond to, and initiate interaction with her
classmates. Coyne noted that while Student still required an aide to assist in the acquisition
ofpeer·interaclion skills and to support her anending to and compliance with her teacher's
directives, for a large part of the school day Student was indistinguishable from her peers, In
addition, the weight of the evidence supports Student's contention that she did not need the
structure of the SOC classroom In order to obtam benefit from or access her ed'.cation. The
evidence showed that Student does not need tightly controlled activities, adult initiation ofall
her social activities, or a visual schedule, the core components of tile District's SOC, in order benefit from her education..
Dr. Schreibman. Ms. Loveman and Ms Reisc based their recommendations
for a SOC placement on their observations of Student at school However. the total amount
of time spent on those observations was approximately Ii ve hours. Conversely, Ms. Hi 11 ier
and Ms. Komeder 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 leaming to Interact with peers Additionally, the
main rallonale 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 educatlon, could be eXlinguished.
The District offers 110 legal authority that supports the contention that el(tinguishing nOll
interfering behaviors is, or should be, the basis for a child's placement in a SDC Student has
therefore met her burden of proof that she can, at {he least, make satisfactory progress in aPage 53 ,.,J
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o! Jan 2008 \l;ax i na t 1on
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general education cla~5room. and has therefore. met her burden of proof that a general
educallon classroom IS the least restnctl ve en vlronment for her. The District' 5 offer to
Student of placement in a SDC class for a por1lon of her school day therefore substantively
denied her a FAPE
General Education Classroom Component of the Dlstricl 's Offir
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 wjth the
early morning SDC placement, the offer required Student to transition through too many
areas of the school campus, through too many different activities, a.nd to have to interact with
too many different classmates.
.
AIIIEP team members agreed that full time placement in a general education
class at the CDC would be too overwhelming for Student. Dr Schreibman specilically stated
in her observation repor1 that the CDC classroom, which she believed consisted of 24
children instructed by two teachers, was too much for Student to handle, She recommended
lhat any inclusive classroom for Studen~ even after she transitioned from the recommended
SOC, should only contain a few students Dr. Schreibman believed that the Hanna Fenichel
class, orone with a similar amount of students, would be an appropriale inclusion model for
Student..
In fact. tJle total number of classmates with whom Student would need to
interact in the CDC class was actually closer to 30 since a different core groLlp of students
attended class on different days The structure orthe CDC class in late morning during the
tirne 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 par1icipsted in opening activities and circle time.
During the time Student would be participating in the general educlltlon class. the children
were divided into two groups of 12, with one group engaging in pre·academ ic type aClivities
in the classroom and the other group participating In outside activities centering on gross
motor skills. The two groups switched after approXJmately twenty minutes. The children
who made up each group changed on a daily basis. '9 After these activities, the 24 children
reunited in the classroom for activities such IlS singing and story time before engaging in
closing day activities and transition to lunch and playground time 10
" DI$lnct witnesses dId Indicate that they could possibly arrange for l,e group composilion to remain
conslant, however, the District did not COnrm" thiS by memorialiZing il as 8 part of Ihe wnnen [EP offer In fllCl, the 01 stnel' s offer would rcqulre Studcnt \0 have \0 ,nlcract wllh ~bou\ 42 children each d~y.
counllng the chIldren from the SOC and Ihc children In the BMernl education class Th\\ dlTeelly contradiCts Dr
Schteltlman's recommendation thai an inclUSIon cla~s for Studenl orUy contain a small amourl of <;\i\3~maleS
becBIlSC she did nO\ belieye Student was ready
\0
handle \nler~Cltng With a large numbcr of peer~ al a one lime
of Page 54 ->948 856 0168
Page 29 of 46
.
Neither District expert Dr. 8ch reibman, the Coyne representatives, nor
Student's family believed that Student was ready to handle a classroom with the number of
students in the SOC class Indeed, the IE? document references the obsen'alion of Student's
mother that Student still demonstrated anxiety In large groups and thallhe Student still had
difficulty at church and in Sunday school due to the large groups there While the District
stafTappeared truly to believe that Student would be able to handle the large group of peers
found at the CDC, there does not appear to be allY concrete basis for this belief. Ms. Ryder
testified thaI she believed the CDC classroom was appropriate for Student; however, as
Student's speech and language provider, Ms Ryder had only observed Stlldent in a one-on
one sening or interacting wlIh perhaps one other child. Ms Loveman and Ms. Reise also
believed that Student could easily adapt to the large amount of children in the CDC setting,
but they had only observed Student at school for a total of 3 hours between the two
observations. ll On the other hand, the beliefofthe 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 Sl\ldent 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 II SDC class because
she in not engaging enough with her classmates and is dependent on her aide for initialing
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 transitiomng between two groups ofsrudents in two very different classes.
The District'S arguments in support of Its position are unpersuas1ve II
The AU finds thatlhe Student has met her burden of proof that the CDC
classroom was not an appropriate instructional set1mg for her and therefore the District's
offer substantively denied her a FAPE.
Failure
(0
Provide StaffAdequately Trained (0 Implement Srudent's IEP
.
Student's contends that the District staff IS not adequately trained. Although
not specified in her stated issues for l1earing. 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 SOC leacher, could implement Student's IEP. As
discussed above, Studen t has not met her burden of proof in either regard.
II Although 810n8 lime family rnend. there IS no eVidence (hat Ms Lovemen had observed Student outSIde
the context of hcr formal observallons In preparation for Ihe IEP meellngs
II CDC Director Sur.anne Blackwood and CDC leacher Jody Gallagher discussed the general educatIon
program and c1a$HoomUI the CDC Their accounts credibly suppOr1 the DistriCt'S POSitIon lJ1allhc Dlstnct ofeers a
qua/llypreschool education. ThiS DeclslDnJust rinds thallhc program did not meet the needs Df the student In thiS
cll3e Page 55 ~
Jan 2008,~X1nat1on
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Page 30 Of 48
.84
Denise Gomez has a bachelor's degree,. a certi~cate In early childhood special
education, and experience, al.belt ~o( extensive, teaching special needs preschool childrell.
S~e also has the support of aides In her classroom as well liS qualified special education
Dlstnct staff shou Id she need to consult about Student or the implemen\.ation of Student's
lEP. Although not a Board Cel1ified Behavior Analyst (BCBAl, Ms. Reise has extensive
eXJX1nence with autistic children both as a credentialed special education teacher and as a
supervisor at a NPA, which offers ABA services similar to those of Coyne. ~ the DistTict
points out in its closing brief, there is no legal or ethical requirement that a BCBA supervise
an ABA program; Dr. Morrow Indicated that his NPA often hires supervisors who are not
Board certifIed. Student has therefore failed to meet her burden thal District staff is not
qualified to supervise her ABA program or that District staff could not implemem Student's
IEP.
Appropnareness ofrhe Dlsrrict 's Assessments and Reimbursement ofStudent 's ft"E
8S
A parent has the right to obtain an !F:E if the parent disagrees with a district's
assessment. When a parent makes a request Jor all fEE, a district must either fund the fEE 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 cond uct assessmen ts The tests and assessment materials
must be validated for the specific purpose for which they are used, and musl be selected and
administered so as not 10 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 pro"ided by the parent. Reassessment ofa child may
occur if a district believes that the child's needs warrant reassessment or if the child's parents
orteacher requests reassessment Unless other requested, reassessment shall not occur more
than once a year, but must occur at least every three years. As pan of any reassessment, the
lEP learn and other appropriate professionals are required to review eXIsting assessment data
or observation data for the student and receive input from the student's parents to establish if
the team needs furtJler 1n format Ion to detennine Ihe student's conttnued eligibilIty for special
education services and what his or her present needs are
.
The District administered a multidisciplinary initial assessment to Student in
the spring of2006, in preparation for her IniliallEP. The assessment included an evaluation
ofSludent's health and development. The District also administered a Iransdisciplinary 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 Inventorres.
Student'S IEP team met on February 16, 2007, in order to start the process of
fonnulating her fEP 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 fonnal, standardized assessment was not necessary in order to determine Student'S Page 56 ~
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present academic achievement. Instead, the IE? determined that Student's SDC teacher and
a Distric~ behavior specialist .would dctennine Student's academic achievement through
observatIons of her and a revIew of her records. likewise, the team determined that a
formal, standardizedassessment in tne area ofcogOltive functioning was nOl necessary.
Rather, the team desIgnated the school psychologist to observe Student and review her
rewrds to determine Student's needs In this area The team also agreed that the District
would contract with an outside evaluator who would also conduct an observation of Student
and report on her findings The consultant and District sratTmembers were also going to
observe Student's social adaptive behavior The team ultimately determined that a more
fonnal speech and language assessment was needed for Student as was more formal vision
testing. These laner formal assessments were eventually completed. They are not at issue in
this hearing,
As discussed above, school psychologist Ms, Lovemen, 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 meelings held May II and June 13,2007
On April 7, 2007, Student'S parents wrote to Ms. Nest, informing her that they
would be unilaterally placing Student lit Hanna Fenichel for the 2007·2008 school year,
They also informed Ms. Nest that they were going to obtain lEEs for Student because they
specifically disagreed with the recommendallons of the District's olltside consultant (Dr,
Schreibman) that Student required placement in an SOC, Student's parents infonned Ms.
Nest that they would be seeking reimbursement from the District of the lEEs, indicating that
they were considering lEEs by an educational psychologist, a speech and language
pathologist, an ABA expert, and an expert on educational inclusion for srudents with autism.
Srudent's anorney confirmed to the Distnct's attomey that Student was seeking an lEE at
public eKpense. 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 lEE. 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 Bnd language pathologist Lisa Ryder
over eight days in March and April 2007 did not meet legal standards or was in any way
improperly administered.
The only "assessment" ultimately obtained by Student's parents was from Dr,
Caroline Bailey. As stated above, although she has BDoctorate degree in psychology, Dr
Bailey is not a licensed psychologist. She is not licensed to administer standardiled tests to
adults or children, and she did not do so with Student Rather, Dr. Bailey spent numerous
hour5 observing Student in Student's horne, school, and church. numerous hours reviewing
Student's records and researching issues concerning Student's autisn1, and numerolls hours Page 57 ."J
Page 32 of 48
PBreparing her extensive report concerning her findings and recommendations of Student. Dr.
ailey's bill, and the reimbursement 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 observahon sand
r~ommendatjons 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 falls 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 st\ldents That Student disagreed with what Dr. Schreibman observed and
recommended does not result in finding that she is entitled to an lEE. 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 assessmen~ with standardized testing,
was warranted for her, she should have made such a request. She did not. Nor did Student's
parenL~ obtain an lEE that met the legal standard of being adm inistered by someone
competent 10 perfonn the assessment, since Dr Bailey is nol licensed to administer
standardiZed tests and did not, in facl, administer any. She, like Dr. Schreibman, only
observed Student Student fails to demonstrate in what way Dr Bailey's observations,
review, and researcn, 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 lEE that met the legal standards indi~ated in paragraph above. The evidence thus supports the District's contention thaI its observations of
Student were appropriate, that there is no specific standard by wh!c~ to measure
.
observations, and that Student's lEE met a standard that the District 5 observations did not
meet. Student is therefore not entitled to reimbursement for the costs of Dr Bailey's
servi~s.
Appropriate Remedies. A school district may be required to reimbun;e a parent for the costs of private
school tuition and other related sel"'ices if the district failed to make a FAPE available to the
child. Reimbursement is an equitable remedy thai is determined 011 the facts of each case.
As determined in Factual Fi ndi ngs 76 and 82. the District failed to offer Student a FAPE forPage 58 ..J
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->949 856 0188
Page 33 of 48
the 2007·2008 school year by not offering her a placement in the leasl restrictive
environment. and by offering her a placement In the District's CDC general education class
which failed 10 meet Sludent's unique needs..
Reim~ursement fo~ the cost of a private school may be reduced or denied if the
parents dId not provIde notIce, pn~r to removing the child from the public school, that rejects
tnc proposed placement. states their concerns. and expresses the Intent to enroll the student in
a private school. As determined in Factua) Finding 89, Student's parents provided the
DIstrict the required notice prior to unilaterally placing her at Hanna Fenichel..
There is no statutory prohibition against an AU ordering reimbursemenl of a
student's eltpenses incurred at either a private school Or a private service agency that has not
been certified by the State of California However, California law specifically prohibits ll1l
ALJ from rendering a decision whose result is the placement of a special needs student 10 a
nonpublic school or a nonpublic agency that has not been certi fred by the State of California.
While the parties do not dIspute Ihat Coyne is a certified NPA., Student admits that Hanna
Fenichel is not a certified NPS.
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 amoun~ of reimbursement to be ordered: the effort parents
expended in securing alternative placements; the availability of other more suitable
placements; and the cooperati ve or uncooperative position of the school district or of the
sludent'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 hilS made while
attending that school Nor does the DIstrict point to any equitable reasons 10 deny
reimbursement to Student's parents of the l\Jition they have paid for Student's schooling at
Hanna Fenichel Nor is there any evidence of allY other suitable placements for Student.
The ALJ has found that the District's olTerofplacement denied Student a rAPE as its SOC
did not constitute the LRE for Student and its CDC general education class was not
appropriate for her. Therefore, Student is entitled 10 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 AU is prohibited by statute from
ordering prospective placement at the school since it is not a certified NPS. If the 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 arc 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 59 ...J
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Page 34 of 46
The AU finds that Hanna Fenichel is an appropriate placement for Student and that there is
no evidence in the record of any other placell1entlhat would be suitable for her. The ALl
also finds that there IS no eVidence that Student's parents did not adequately cooperate with
the DIstrict during the IE? process and [hal the eVidence supports the assertion of Student's
parents that they were reqUIred to prepay a fLlII year's tUition Therefore, the AU finds
Student's parents are entitled to reimbursement of the full year's tuition at Hanna Fenichel,
for $6, 100,. Student further requests that the ALI order retroactive and prospective
payment of the costs of the Coyne one-on-one ABA aide that Student needs in order [0 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 AU 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 shalilherefore order that the District provide an appropriate aide to
Student in her class at Hanna Fcnichel. The aide shall have been specifically trained In ABA
principles and specifically trained to work with autistic children. Should the District decided use an aide other than one from Coyne. the District wiil arrange for an IE? team meeting
to detennine an appropriate plan to transition Student from her Coyne aides to the aide(s)
selected by the Di slTic l. Zl. 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
contention of Student's mother that she is qualified to provide ADA services to Student, or to
anychild in need of such services. After Student was diagnosed with autism, her mother
began researching treatments and theories C011Cerning autism Student's moth er later
obtained a graduate certificate in AB A from Pennsylvania State University that qualities 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 ill 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 facte:; of thIs case
Additionally, since the AU 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 add itional hours of ABA services provided to her
by her mother in order for her to receive a FAPE. Finally, the AU notes that implementation
of ABA concepts in an autistic child's home after the child's parents have received training,
appears \0 be one of the foundations of ABA therapy. Indeed. Dr Morrow testified that the
II In any case, Student hu not presenled eVidence of what the Cosl of thc Coyne one·on·onc aide IS or If
Sl\ldenl's parents have paid any or all of lhe pa.sl costs of thaI sCrvlces Page 60 .J
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->949 SS6 016a
Pa.ge 35 of 48
one of the key components of the ABA program his NPA had begun with toddlers is the
conceplthal the chIldren's parents would receive training so that they could continue the
ABA therapy the child received in Dr. MOlTow'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
spenl supplementing Student's ABA therapy.
CONCLUSIONS OF LAW
Burden ojProoj
I.
Student, a."i the petitioning party seeking relief in issues A( I) th rough 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. Wenst (2005) 546 U S. 49 [126 S.Ct. 528, 163
L.Ed.2d 387])
Did the Dlstrie! predetermine its offer ojplaeemenr and related services in its IEP offer jor
lhe 2007·2008 school year.?
.
Pursuant to the !ndividuals with Disabilities In Education Improvement Act
(IDEJA), effective July 1.2005, and California speclI~1 education law, children with
disabilities have the TIght to a fAPE that emphasiles specII11 education aIld 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
standa.rds, include an appropriate school education In the state involved, and conform the
child's IEP. (20 U.S C. § 1402(9).)
'0
.
TIlere are two parts to the legal analysis of whether a school dIstrict com plied
with the IDEA The first examines whether the district has complied with the procedures set
forth in the roEA. The second examines whether the IEP developed through those
procedures was reasonably calculated 10 enable the child [0 receIve educationaj benefit. (Bd
ojEduc. oj/he Hendrick Hudson Central Sch Dis! v Rowlp.y( 1982) 4S8lJ S. 116 fl 02
S.C\. 3034, 73 L.Ed,2d 690] (hereafter Rowley).).
The JDEA requires that a dlle process decision be based upon substantive
grounds when determining whether the child received a FAPE. (Ed Code, § 56505, subd.
(l)(J).) A procedural violation therefore only requires a remedy where the procedural
vlolalion impeded the child's right to a FAPE, signdicantly 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.SC § 1415(f)(J)(E);
Ed. Code. § 56505, sllbd U)', Rowley. supra. 458 U.S. at pp. 206·07', see also AmandaJ II.
Clark CounfySeh. Dlst, (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' oppommity to partIcipate In the IEP formulation process are
insufficient to Supp0r1 a finding that a p\lpil has been denied a free and appropnate publicPage 61 .;
Monday 07 of Jan 2008~AXi nation
->949 858 0188
Pago 36 of 48
education. (W.O. v, Bd. ofTrustees ofTarget Range Sch. Dlsl. No. 23 (9th Cir, 1992) 960
F2d 1479, 1483 (hereafter Targe'Range),) Procedural errors during the IE? process are
subject to a harmless error analysis, (M.L.. et al.. v, Federal Way Sch. Disl. (9th Cir. 2004) FJd 634,)
S.
In determining the educa~ional placement ofa disabled student, the public
agency m~st ensure that the p!acement IS b~sed on the child's IE? (34 CFR. § 300.116,)
PredeterminatIOn or a student s placement IS a procedural violation that deprives a student or
a FAPE in those Instances where placement is determined without parental involvement ill
developing the I EP. {Deal v. Hamilton Caunry Bd of£duc, (6th Cir. 2004) 392 F.3d 840
(hereafler Deal)', Bd ofEduc, o/Township High School Dist. No.2 II v. Lindsey Ross (7th
Cir. 2007)486 FJd 267.) However, merely pre-writing proposed goals and objectives does
not constitute predetermination; nor does prOViding a wrinen offer to a Student before her
parents have agreed to it. (Doyle v, Arlington COWTty Sell Bd. (E,D Va. 1992) 806
F,Supp.1253, 1262.) Indeed, a district has an obliga,tion to make a fonnal written offer in the
IEP that clearly iden ti ties the proposed program. (Union Sch. Di.Tt, v Smilh (9th Cir, 1994)
I5FJd IS19. 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
needs; IDEA does not empower parents 10 make unilateral decisions about programs funded
by the public. (See, N,R. v. San Ramon Valley Unified Sch. Dist. (N D.Cal 2007) 2007 U.S,
Disl. Lexis 9135; Slama ex reI. Slama y Indep. Sch. Disl No. 2.580 (D. Minn, 2003) 259 F.
Supp.2d 880, 885; 0 'Dell v. Special Sch Dist (E, 0 Mo 2007) 47 IDELR 216) Nor must
an IE? conform to a parent's wishes in order to be sufficient or appropriate. (Shaw v. Dis'. oJ
Colombia (D.D,C. 2002) 238 F.Supp,2d 127. 139 [lDEA does not provide for an
"educalion .. ,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 sen'ices for Student at its preschool SDC and
preschool general education class, Although Ms Nest expressed concerns to Student's
mother prior to Ihe 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 otTer to place Student Although
Ms. Nest discussed the upcoming IE? team meeting with other District staff members, she
did so only to obtain an understanding of what each had obsen'ed of Student and what each
might be recommending as a placement.,
There is also no evidence that Ms. Nest cllher directed District IE? team
members to refuse to consider a particular placement or that she anempted to influence their
recommendations in any way. Unlike the circumstances in the Deal case, the Student
presented no compelling evidence that the District here had a,PoliCY ot"refusing ~o place
special education students at private schools or gIve students Ill-home ABA services If such
was necessary and appropriate Nor has Student proven that high-level District officials werePage 62 Page 37 of 46
dictating placement decisions concerning special education students. Unlike the school
district in DeC/I, the District here provided many 0ppol1unllies for the DIrector of [he privale
school (Hanna Fenlchel) and the pTlvale ABA provider (Coyne) to otTer their opinions and
recommendations. Contrary to the circumstances in Deal, District IEP team members not
only permitted, but also encouraged, Student's mother and her ed ucational consultant, as
well as her attorney, private school Director, and provide ABA providers, to contribute to the
disc~ssio~s con~ernin8 pla~ement and services. There was no evidence of District attempts stlfledlscussJon concerning placement at Hanna Fenichel. To the contrary, a review of the
IEP meetings indicates thaI many different IEP members and consulllUlts 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 meeti ngs that it
would never consider a private school placement for Student,
Pursuant to Factual Findings 12 through 46, and Conclusions of Law 2
tnrougn 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 DistTlct encouraged discussion ofa placement at Hanna Fenichel as
compared to a placement in its classrooms None of the CMes cited above or cited by Student
in her closing briefs stand for the proposition that a district is required to offer a placement
fhat is suggested by a student, or that the faIlure to accept a student's suggested placement
means, ipso/acto, 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 vi olated her rights under the IDEA with regard to her
classroom placement.
Did the District/ail to consider all relevan' data concerning Studenr, including input/rom
her parenls, he/ore making an offer a/placement and related services?.
In order to fulfill the goal of parental participation in the fEP process, the
school district is required to conduct, not just an IEP meeting, but also 8 meaningful IE?
meeting. (Targe'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,
auends the rEP meeting, expresses her disagreement regarding the IE? team's conclusions,
and requests revisions in the IE? (NL. 1'. Knox County Schools. (6th Cir. 2003) 3I 5 FJd,693; Fuhrmann Y. East Hanover Bd. o/Educ. (3d Clr. 1993) 993 F,2d 103],1036
lparent wno has an opportunity to discuss a proposed IE? and whose concerns are considered
by the IE? team has participated in the IEP process in a meaningful way]) "A school
district violates IDEA procedures if it independently devclops an IEP, without meaningful
parenlal participation, and then simply presents the IEP to the parent for ratification." (Ms.
S. ex reI G v. Vashon Island School Distr;c, (91h Cir 2003) 337 f.3d 1115. 1\} I.) The test
is whether the school district comes to the IEP meeting with l1Jl open mind and several
options, and discusses and considers the parents' placement recommendations and/or Page 63 ...,
Montlay 07' of Jan 2008, ~inatiOn
->949 SSS 0168
Page 38 of 48
concerns before the IE? learn makes a final recommendation. (Doyle v. Arlington County
School Board, supra, 806 FSupp at p. 1262; Denl. supra, 392 FJd at p. 857.)
II.
Based upon Factual Findings 12 through 46 and ConclUSions of Law 2 through, Student h~s 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 infonnation concerning StUdent, with
regard to her placement or services. A review oflhe rEP team meetings held on May 11 and
June 13, 2007, support a finding that there was significant discussion by all aNendees
concerning the benefits and drawbacks ofdifTerent placements for Student. Student's mother
and ABA providers gave long and detailed descripllons of their views of Student's
capabilities as well as what they considere
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 vlolate
Student's mother or her service providers
Did the District/ail to offer an ABA therapy program tnaf meets Sfudenr 's unique needs
because If Is nol scIentifically based and supported by pee r· reviewed research, to the extent
practicable, Is not o./fired in a home environment, lInd/arls to proVide a suffiCient amount 0/
thempy hours'
.
As stated above, in the Rowley case tlle United States Supreme Court
addressed the level of instruction and services that must be provided to a student with
disabilities to satisfy Ihe substantive requirements of the IDEA. (Rowley, 458 U.S at p. 200.)
The Court detennined that a student's IE? 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. (lei al pp. 198·200.) The Court stated that
school districts are required to provide only a "basic noor ofopporrunity" that consists or
access to specialized instruction and related services which are indiVIdually designed to
provide educational benefit to the student. (ld. at p. 20 I) As long as a school district
provides 8 FAPE. the type of methodology employed," providing a rAPE is left to the
district's discretion. (Id. 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.
DiJt. (9th Cir. 1987) 811 F.2d 1307, 1314 (hereafter Gregory K.).) If the district's program
was designed to address the studenl' s un ique educational n~s, was reasonably calculated to
provide him some educational benefit, and comported with his IE?, then that district
provided 8 FAPE. even if the student's parents preferred another program which would have
resulted msreatereducationaJ benefit. (2QU.S.C § J412(a)(5XA); 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 relatedPage 64 .tJ
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->949 856 0168
Pa.ge 39 of 48
services to enable them to benefit from such specially designed instruclion (Ed. Code. §). Related services may be referred to as deSIgnated Instruction and services (DIS)
(Ed. Code, § 56363, subd. (a).)
.
I S.
Title 34 Code of Federal Regulations, pan 300.320(a)(4) states J EPs shall
a statement of the special education and related services and supplementary aids and
services, based on peer-revtewed research to the extent p'-aclicable. The language "to the
extent practicllble" regarding the usc 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 alllEP Team meetings to incl ude a focused discussion on research-based methods or
require public agencies to provide prior wnnen notice when an rEP Team refuses to provide
documentation of research-based methods, as we believe such requirements are unnecessary
and would be overly burdensome" (71 Fed.Reg. 46663 (August 14,2006»
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. 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. ofEduc,
(E.D.Tenn 2006) 2006 U.S. Disl LEXIS 27570. pp. 51·57; Rocklm Unified School District
(OAH, May 25,2007) 48 IDELR 234. 107 LRP 31811,20 US.C. § 1414(d)( I XIV); 34
C.F.R. §300J20; Ed. Code, § 56345, subd (aX4).)
jncl~de
.
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. Srudent argues that she requires some 17 hours
of ABA therapy and th at the therapy must be provided jn 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 thai she requires 17 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 of25
to 30 hours of combined ABA services. Since Coyne provides an ABA aide to Student at her
pres<:hool for appro,umately J 8 hours a week. Its recommendation for onc-on-one intensive
ABA therapy amounted to only 7 to J2 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 schoo', 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 sening. Fmally, as stated In factual
Findings 59 fhrough 64, and Conclusions of Law'S. St\ldcnt has faded to meet he~ bU~den of
proof that the District' s ABA program is not based upon methodologies that are sClentllicallyPage 65 Page 40 of 46
based and SUppOl1ed 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 Coyn.e providers. ar~ more highly trained, are better at record keeping, and may be
bener SUpervised than DIstrICt staff does nol SUppol1 a cont/usion that the District's program
does not meet legal standards. The District's offer of 10 hOUTS of ABA therapy 10 be
provided at the District's school sile therefore did not deny Student a FAPE.
Did ,he District's offer of placementfor a portion ofStudml 's school day In a special day
clew deny her a FAPE because it does not incolporate adequate ABA principles, fails to
include peers with compatible instructional needs, and is not the least restric';ve
em/ironment for Student?.
To determine whelher a school district substantively offered FAPE to a
student, the adequacy of the school district's proposed program must be determined
(Gregory K.. supra. 811 F. 2d at p. 1314) Under Rowley and state and federal statutes, the
slandard for determining whether a district's prOVIsion of services substantIvely and
procedurally provided a f APE involves four factors: (J) the sen'ices must be designed to
meet the student's unique needs; (2) the sen/ices must be reasonably designed to provide
some educational benefit; (3) the servi ces must conform to tne lEP af; writ1en; and, (4) the
program offered must be designed to provide the student with the foregoing In the least
restrietive environment,
Both federal and state law requIres school districts to provide a program in the
LRE 10 each special education student (See 34 C.F.K §§ 300 I J 4/ e1 seq.) A special
education snldent must be educated with nondisabled peers "[1]0 the maximum extent
appropriate," and may be removed from the regular education environment only when the
nature and severity of the student's disabilillcs ;s such that education in regular classes with
the use of supplemenlary aids and services "cannol be achieved satisfactonly." (Ed. Code.
§§ 5600\, subd. (g), 56345, sub,!. (a)(5), 20 LJ.SC. § 1412(a)(5)(A); 34 CF.R. §.1 14(a)(2Xi), (ii).) A placement musl foster maxjmum interaction between disabled
students and their nondisabled peers "in a manner that is appropriate to tJle needs of both"
(Ed. Code, § 56031; see also 20 U.SC. § 1412 (aX5XA)~ Rowley. supra, 458 U.S. at p 181,
fn. 4; Poolalt' v. Bishop (9th Cir. 1995) 67 FJd 830,834.)24,
When determining whether a placement is In the leasl restrictive environment
(LRE), fOllf factors must be evaluated and balanced (l) the academic benefits of placement
in a mainstream setting, with any supplementary paraprofessionals and services thaI 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)
H The lerms "reguhll education" And "general education" mean the same lhlng ~ ! I relates to the IDEA,
and are onen used mlerchangeably by the parties hm Page 66 .,J
MOllday 0.7 of Jan 200e,~Xination
->949 856 0166
Page U of 48
F.3d II J5, 1136-) J 37; Sacramento City Unlj1edSchool District v. Rachel H (9th Cir)14 FJd J398. 1404 (hereafter, Rachel
If»
,
As stated in Factual Finding 66, and based upon Conclusion of Law 17
St~dent has fai led to meet her burden of showing that the SOC proposed did not meet' her
umque needs because the class was composed or students whose instructional needs were
incompatible with those of Student. As stated in Factual Finding 67 and l>ased upon
Conclusion of Law 17, Student has also failed to meet her burden of proof that the methods
of instruction in the proposed SOC class failed to meet her unique needs.,
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
is clear thai Student could. at the very least, be satisfactorily educated in a general education
classroom as long as she had aide support. There is linle evidence that Student would not
benefit from full Inclusion in a general education sening 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 H8I1na Feniche1. 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 Siudent was disruptive in class or that cost factors influenced the
District's determination that Its SOC was the proper placement for Student. As stated in
Conclusion of Law J 8. the IDEA, the CalifornIa Education Code, and federal regulations
place a heavy emphasis on educating special education students 111 the regular education
environment, even If supports and accommodations are required. Removal of 0 special
education child from the general education should occur 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 J 8 note, full inclusion is not
possible or practical for every special needs student. Student'S experts acknowledge as
much. Dr. Morrow runs an NPS in which he enrolls only special needs students. Ms.
Komedertestified thai she recommends SDC placement for students where appropriate. Dr.
Bailey testified that she too would indicate if a SDC placement is appropriate; in fact, Dr
Bailey was herselfll student in a SDC. However, in 81udent's case, she has persuasively
shown that a SDC is not the LRE for her. Therefore, the District's offer of placement in its
SOC substantively denied her a FAPE.
Did lhe District's offer of placement in a {)iSlricl general education classroom for a portion
o/Sllldent's school dcry deny Irer a FAPE because il ;s nor an appropriale i~JStrucfional
seiling/or her and because Ihe placement creales a school day Ihat includes 100 many
transitions between classroom seflings? Page 67 ...,
ass 0166
Pa.ge 42 of 48
As stated in Factual Findings 77 through 82, and based upon Conclusion of
Law 17, the eVidence supports StlJdel1~'s contention that the District's general education
placement lit Its CDC was not approprtate for her. The District's el
Schreibman, had observed the classroom and found that Its composition of 24 students would
overwhelm Student. Although a portion of class time that the District proposed Student
spend in this class would only conSISt of 12 students, such was (rue for on Iy apprmomately minutes of the two hours Student would be in the class. AdditioMlly, 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 srudents enrolled in the class on different days.
The District's position that Sl1.Ident 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 sening at whIch they observed Student - the preschool
class at HalUla Fenichel - was significantly different from the CDC class proposed by the
District. Student's \:Iass at Hanna Fenichel was composed of only six to eight children and
lhere were at least two adult instructors in the class, in addition to Student's one·on-one aide.
Additionally, Student's mother had informed the IEP team at the IEP meeting in May 2007
that Studenl continued to be overwhelmed and show anxiety in large group settings.
Therefore, the District's argument that this type ofclass would not overwhelm Student is not
persuasive. The District's position that Student would not have difficulty in transitioning
between multiple classroom senings is Iik.ewise not persuasive for the same reasons indicated
above, Student therefore met her burden of proof that the District's CDC class was an
inappropriate sening for her because it did not meet her unique needs, and therefore denied
hera FAPE.
Did the District's placement offir derry Student a FA PE because the District /ailed to provide
stajfcapable o/implemenOng the offer.?,
As determined in Factual Findings 83 and 84. and based upon Conclusions of
Law 6 and 17, Student has fai led to meet her burden of proof that District staff members
were incapable of implementing allY 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 Di:;trict statTcould not meet Student's educational needs.
Are the Dlstrfct's assessments a/Student with regard to her educational placement
appropriate and. iJnot. is Student entitled to reimhursement/rom the District/or the
independent assessment conducted by Dr. Caroline Bailey?
.
Prior to making a determination of whether a child qualifies for special
education services, a school dislrict must assess the child. (20 U.S.C. § 1414(a), (b); Ed, Page 68 -"
Pa.ge 43 of 48
->849 866 018e
Code. §§ 56320, 56321 )H The request for an Initial assessment to see if a chi Id qualifies for
special education and related services may be made by a parent of the child or by a slBte or
I~al,ed\lcational agency, (20 U,SC. § J4J4(a)(1 XB),) After the mitial assessment, a school
dlstnct 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, 5ubd. (a)(2).) 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 perfonn assessments and reassessments according to
slnct statlltory guidehnes that prescribe both the content of the assessment and the
qualifications oftne 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.$,C § l414(b)(3XA)(i); Ed. Code, § 56320, subd, (a).) The assessment Inaterials must
be valid and reliable for the pllrposes for which the assessments are used, (20 U.S.C. §\4(bX3XA)(iii); Ed. Code, § 56320, subd, (b)(2),) They must also be sufficiently
comprehensive and tailored to evaluate specifiC areas ofeducational need. (20 US.C, §(bX3)(C); Ed, Code, § 56320, subd. (c).) Trained, knowledgeable and competent
district personnel must administer special education assessments. (20 U,S,C. §(bX3XA)(iv); Ed. Code. §§ 56320, subd. (b)(3), 56322,) A credentialed school
psychologist must administer psychological assessments nnd individually administered teste;
ofintellectual or emotional fUllctioning. (Ed Code, §§ 56320, subd. (bX3), 56324, subd,
(8).) 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
lind service providers. (20 USC § J 414(c)( J XA)', Ed. Code, § 56381, subd, (bX J ).) Based
upon such review, the district must idelltify any additional information that is needed by the
IEP team to determine the presem 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(cX\ )(8); Ed Code, § 56381, subd,
(bX2).) The district must perform assessments that are necessary to obtain such information
concerning the student (20 U,S.C. § J414(~X2); Ed, Code, § 56381, subd, (c).).
The procedural safeguards of the IDEA provide that under certain conditions a
student is entitled 10 obtain an lEE at public expense (20 U.S.C. § 1415(bX 1),34 C.F,R. §.502(aXl); Ed. Code, § 56329, subd. (b) [incorporating 34 C.F.R. § 300,502 by
reference]; Ed. Code, § 56506, subd. (c) [parent has the right to an lEE as set forth in Ed,
Code, § 56329; see also 20 U.S,C, § 1415(d)(2) [requiring procedural safegua~ds notice to
parent' to include information abollt obul1ning all lEE!,) "Independent educatIOnal
assessment means an assessment conducted by a qualified examiner who is not employed by
II The Cederal code uses the lenn "evaluallon" InsteAd oC the wm "assessmenl" used by CalifornIa law. bill
the two terms have lhe same meanmg for these purposes Page 69 ....,
Monday 0-7 Of Jan 200e~x1na.tion
->949 856 0168
Pa.ge 44 of 48
the public age~cy responsi?le for the education of the child in question." (34 C.F.R. §.502(aX. 3X1).) To obtam all lEE, the student must disagree with an assessment obtained
by the publIc agency and request M lEE. (34 C.F.R § 300502(bXl) & (b)(2).).
The provision of a~ lEE is not automatic. Code of Federal Regulations, title, part 300.~02(b)(2). provlde~, In relevant part, that following the student's request for an
lEE, the public agency must, wIthout unnecessary delay, either:
(i) File a due process complaint to request a hearing to show that its
assessment IS appropriate; or
(ii) Ensure that on independent educational assessment is provided at public
expense, unless the agency demonstrates in a hearing pursuant to §§ 300J07
through 300.5! 3 that the assessment obtained by the parent did not meet
agency criteria
(See also Ed. Code, § 56329. sub,j (c) [providing that a 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
services of Dr. Bailey. Except for its speech and language assessments and vision
assessments, the Dist rict chose not to re-assess Srudent using formal, standardized tests in
spnng 2007. The law does not require 'hat it do ~o. 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 staNtory 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 Stlldent's contention that the
District's observations did not comply with evalualion and reporting requirements. No such
standards exist. In fact, the lEE oblained by Student did not include standardized tests either.
Dr. Bailey's lEE 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 ad minister
stal\dardi~ed tests. Student disagreed with what the District assessors observed and
disagreed with their conclusions and recommendations concerning Student's pla(:ement.
However, such disagreement does not support a contention that Student i::; legally entitled toPage 70 ...J
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Page 45 of 48
an lEE, The weight of the evidence therefore suppor1s the District's contention that its
assessments were proper and Ihat Student IS not enlltled to reImbursement of her lEE at
public expense 16
Detennlnatlon ofRelief
The court has long recognized that equitable considerations arc appropriate
when fashioning relief for violations of the IDEA, (Parents o/Student W. \I, Puyallup Sch.
Dist" No.3 (9th Cir 1994) 31 FJd 1489, 1496 (hereafter Puyallup School), citing School
Committee ofBurlington v. Department 0/ Education (1985) 471 U.S 359. 374 [105 SCt.
1996J.) Compensatory education is an equitable remedy; it is not a contractual remedy.
(Puyallup School, supra, 3) F.3d at p. \497,) Relief is appropriate if it is designed to ensure
that the student is appropriately educated within the meaning of the IDEA. (ibid.) The
award must be reasonably calculated to provide the educational benefits that likely would
have accrued from specia 1 education services I he ~chool district should have su pplied, (Reid
ex reI. Reid\l. Dlstriet o/Colllmbia (DDC Cir, 2005) 401 FJd 5I(" 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 10 the child. (20 U,SC §(aXIO) (CXii); 34 C F.R § 300. I48(c); Ed. Code, § 56175,) Factors to be considered
when determining the amount of reimbursement include the existence of other, more SUitable
placements, the etTort expended by the parent in securing alternative placements and the
general cooperative or uncooperative pOSItion oflhe school district (Ta,-get Range, supra, F,2d at p. 1487; Glendale Unified Sch. Dtsl v. Almast, (C.D, Cal. 2000) 122 F.Supp.2d, 1109.),
Additionally, a student is only entitled to reimbursement of private school
tuition ifit is determined that the placement at the private school was appropriate for the
student. The placement does not have to meet the standard of 8 pUblic school's offer of
FAPE: it must, however, address the stlJdent's needs and prOVide educational benefit to him
or her, (Florence Cormly School Dist. l'. Carle,. (1993) 510 U.S. 7, 131114 S.Ct. 361, 126
LEd 2d 284] (hereafter C(lrter)~ Alamo He/ghts Independent Sen. Disl v State Bd 0/
Educallon(5th Cir, 1986) 790 F.2d 1153,1161: 34 CFR. § 300.)48,) Court decisions
subsequent to Burlington have also extended relief in the form of compensatory eduC8tlon to
5tudents who have been denied a FAPE. (See. eg, Lester Ii. v. K. Gilhool ,rnd the Chester
Upland School Dtsrricl (3d Cir 1990) 916 F,2d 865; lvl/ener v. State o/Missourl (8th CiT.) 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 AL] notes thaI the bi II for sel"'ices tendered by Dr Bailey IS extraordinarily high The ALl
reviewed a siJmpilng of aDO\l1 IS pnor Call romls SdJ1l1nlstrallVC declSlons In which thc Student's parents requested
reimbunemem for an mE lhe AU did not rind any relmbursemenl order for over $~,500 Page 71 wi
->949 856 0188
Page 48 o£ 48
designed to ensure that the Student is appropriately educated within the meaning of the
IDEA." (Puyallup Schoof. supra, 31 F3d at p, 1497 ).
There
IS
broad discre.tlon to consider equitable factors when fashioning relief.
(Caf1er, supra, 510 US. at p. J 6) fhe conduct of both panies 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 vlolattons must rely 011 an individualized
assessment, just as an IEP focu ses on the individual student's needs, (Retd ex reI. Reid v.
Dtstrici o/Columbla (DD.C. C~r, 2005) 40] FJd 516, 524.) The award must be "reasonably
calcula.ted to prOVIde the educa~lOnal benefits that lik.ely would have accrued from special
educallon services the school distrICt should have supplied in the tirst place." Ubid.).
Therefore, under appropriate circumstances, a co un (and an ALJ) has the
discretion to award prospective relie f. However, in Cali fornia, the Education Code limits the
prospective relief that an AU may order. By statute, an AU may not render a decision that
results in tne 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 Stale of
California pursuanl 10 the Education Code (Ed Code, § 565052, subd. (a).).
Based upon Factual Findings 68 through 82 and 96 through 100 and
Conclusions of Law l7. 18, 19, 21, 22, 23, and 32 through 36, Student is entitled to relief
based upon the AU's finding that the District's ofTer of placement ill its SOC and CDC
general education classes denied Student a FAPE. Hanna Fenichel met the legal
requirements of an a ppropriate placement for Student Nor is there any evidence that
Student'S parents unduly failed to cooperate in the IEP process. Srudent's parents are thus
entitled to reimbursement for the costs ofruition all-Janna 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
~o the full amount of tuition they have paid, il1 the amount of $6, I 00.
.
However, as noted in Conclusion of Law 37, California statute prohibits the
ALJ from ordering that the District prospectively place Student at Hanna Fenichel and the
ALJ is not making such an order now. The AU's order thai 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 ofSludent 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 onc-on-one aide at school. As stated in Factual
Finding 10 I, however, Student is not entitled 10 her chOice of aide provider. Therefore, the
AU orders thatlhe District provide an appropriate aide to Student in her class at Hanna
fenichel. The aide shall be specifically trained in ABA principles and sJX:cifically trained to
work with autistic children Should the District decided 10 lise an aide other than one from
Coyne, the Districl will arrange for an IEP leam meeting to determine an appropriate plan to
transition Student from her Coyne aides to the aide(s) selected by the District Page 72 Page 47 Of 48
,
Based upon Factual Findings 85 through 9S 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
the law nor the facts of this case, Student cItes to no authority requiring a District to pay a
parent a salary for educating his or her child 8t home, Student cites to one case, Bucks
County Department a/Mental liealllvMental RetardaTion v, Commonwealth o/Pennsylvania
(3d Clr. 2004) 379 fJd 61, In which a court awarded a parent monetary compensation for
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 lind
another service provider to furnish services to her child, The court limited its holding to a
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 throllgh 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 beneftt from
her education. Student's request that her mother be reimbursed for providing supplement
t\i3A services is therefore denied. n
,to
ORDER
I.
Within 30 days of this order. the DIstrict shall pay $6, 100 to Student's parents
to reimburse them for the costs of lUitlon they paid to the Hanna Fenichel School.
Within 30 days of this order, the District shall provide a one-an-one aide 10
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 totontract with Coyne, the District shallarrangc for an IEP meeting with Student'S
parents and the District team members to detennine an appropriate plan for transitioning
Student from her present Coyne aide(s) to the aide(s) selected by the District. The oroer 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 lhis 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.
I' Student has not prOVided any Olner eVidence or l:oslS e)(pended by her parents ror Coyne sCTVlces She
has therefore failed to show enlltJemenllo any reimbursement olher than that ordered here Furthermore, since the
ALl hIlS found thaI DlStnct slaff" competent to prOVide ABA servlC'cs. Student is not entitled to relmpursemenl for
lhe costs of her Coyne one-on-one Bide ilt school Page 73 Page 46 o£ 46
,
If Student wishes to receive intensive ABA services from the District, she
musl agree to the 10 hours of ABA services Btthe District school site, as offered in tne June, 2007 IEP,,
Student's other requests for relief are denied,
PREVAlUNG PARTY
Education Code section 56507, subdivision (d), requires that this Decision indicate
lhe eK1ent to which each party prevailed on each issue heard and decided in this due process
molter. pursuanllo lhls mandate, it is detennined that the Student substantially prevailed on
Issue I(D) and fully prevailed on Issue l(E), The District fully prevailed on Issues l(A),(8), l(C), I(F~ and Issue 2. The District minimally prevailed on Issue 1(0),
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 coUr! of com petent jurisdiction within ninety (90) days of receipt.
DATED: January 7, 2008
y~Administra Ive aw Judge
Office of Administrative Hearings
Special Education Division
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Maureen R. Graves (SBN 145979)
John G. Nolte, (SBN 233966)
Law Offices of Maureen Graves
34 Schubert Court
Irvine, CA 92617
Phone: 949-856-0128
Fax: 949-856-0168
maureen@maureengraves.com
john@maureengraves.com
Attorneys for Plaintiffs
Ka.D., by her mother, Ky.D.,
as her next friend; Ky.D., and B.D.
8
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
9
10
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Ka.D., a minor, by her mother, Ky.D.,
as her next friend; Ky.D. and B.D.
12
Plaintiffs,
13
14
v.
SOLANA BEACH SCHOOL DISTRICT.
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16
Defendant.
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2fl
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FIRST AMENDED COMPLAINT
20 U.S.C. § 1415 et.seq.
42 U.S.C. § 12101 et seq.
29 U.S.c. § 794
Cal. Ed. Code § 56000 et. Seq.
JURY TRIAL DEMANDED
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 filed under
seal contemporaneously with the original COMPLAINT in this matter) allege as follows:
INTRODUCTION
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1.
Plaintiff Ka.D, a five year old girl with a disability, files this civil action against
Defendant Solana Beach School District (hereafter SBSD or the "District"), alleging
violation ofthe Individuals with Disabilities Education Act ("IDEA") 20 U.S.c. 1400 et seq.,
the Americans with Disabilities Act (" ADA"), 42 U.S.c. §12101 et seq., and Section 504 of the
Rehabilitation Act ("Section 504"), 29 U.S.c. § 794 and each statute's implementing
regulations. Plaintiffs allege that Defendant SBSD violated Ka.D.'s and her parents'
substantive and procedural rights under IDEA. Plaintiffs further allege that Defendant
SBSD, largely through the actions of its special education director Mary Ellen Nest,
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1
unlawfully retaliated against them and coerced them by making educational decisions about
2
Ka.D and depriving her of the full range of educational options based on her parents'
3
advocacy and opposition to unlawful practices, by depriving her and her parents of
4
participation in programs on the same terms as it is provided to others also based on her
5
parents' advocacy and opposition to unlawful practices, by failing to offer an educational
6
program that afforded her the same opportunity to benefit as did students whose parents
7
were not engaged in disability-related advocacy and activism, by refusing to offer an
8
adequate educational program unless the family accepted it in a confidential mediation, and
9
by restricting her parents' participation with educators and other professionals in the
10
development of Ka.D. 's educational programs. Nest's retaliatory acts were based on Ka.D. 's
11
parents' advocacy on her behalf and their advocacy and activism on behalf of other similarly
12
situated children.
13
2.
In violation of these statutes, the Defendants have intentionally, knowingly and
14
consistently refused to recognize and fulfill their obligations to allow Ka.D. to be educated in
15
natural settings for a preschooler (i.e., in preschool alongside nondisabled peers and in her
16
home and community), failed to design an appropriate educational program, and excluded
17
Ka.D. and her parents from equal, non-discriminatory and non-retaliatory participation in
18
District services. Instead, the District decided early that Ka.D. was to be educated in a
19
segregated special education classroom, and it has ignored both substantive and procedural
20
legal requirements in the service of that plan, and has punished the D. family for their use of
21
IDEA's procedures to resist that plan, as well as for their more general activism and
22
advocacy.
23
3.
In July 2007, Plaintiffs requested a due process hearing against the District from
24
the California Office of Administrative Hearings - Special Education Division (OAH), in
25
accordance with 20 U.S.C. §1415(f). The District also filed for hearing to demonstrate the
26
adequacy of its assessment of Ka.D. Following a due process hearing which began on
27
October 29 and concluded on November 19,2007, a decision was issued on January 7,2008
28
and received on that date. Although Plaintiffs prevailed as to significant portions of the
2
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decision and were awarded much of the relief sought in the due process hearing, portions of
2
the decision were in favor of the District. Plaintiffs allege, as to those portions of the
3
decision, that the hearing officer's decision failed to properly interpret federal and state law
4
and their requirements, is contrary to law, is unsupported by the evidence, and is clearly
5
erroneous.
6
7
8
4.
Plaintiffs, being aggrieved by the due process hearing decision, bring 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
9
for attorneys' fees pursuant to the Individuals with Disabilities Education Act, 20 U.S.c. §
10
1400 et seq. (hereinafter "IDEA"). Through this action, Plaintiffs challenge certain aspects of
11
the decision by OAH in the cases numbered N2007070255 and N2007090146, cases initiated
12
by the family against the District and by the District against the family, respectively.
13
Plaintiffs allege that the challenged portions of the Administrative Law Judge's decision
14
failed to properly interpret and apply applicable law or to appropriately weigh evidence. A
15
copy of the decision is attached hereto as Exhibit A and incorporated by reference herein.
16
Plaintiff brings this action pursuant to 20 U.S.c. §1415(i)(3)(B) of the Individuals with
17
Disabilities Education Act ("IDEA") in order to secure additional relief for Ka.D. and
18
because, as prevailing party in an underlying administrative IDEA hearing, plaintiff is
19
entitled to an award of attorneys' fees in connection with the underlying administrative
20
hearing involving the same parties and the resulting IEP process. As to the portions of the
21
decision which Plaintiffs do not challenge, Plaintiffs seek attorneys' fees as prevailing parties
22
in the underlying administrative action.
23
6.
Plaintiffs bring claims for discrimination and retaliation under Section 504 of the
24
Rehabilitation Act of 1973 ("Section 504") and the Americans with Disabilities Act (42 U.S.c.
25
§ 12101), seeking injunctive relief to prevent further violations of these statutes as well as
26
compensatory damages to compensate for past violations.
27
28
7.
Plaintiffs bring claims for denial of a free appropriate public education in the least
restrictive environment under Section 504 and the ADA because SBSD, as a public entity
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and recipient of federal funds, was required to provide an educational program to plaintiff
2
without unnecessary segregation and without discriminatory provisions relating to program
3
access and parent involvement. Plaintiffs are seeking injunctive relief to prevent further
4
violations of these statutes as well as compensatory damages to compensate for past
5
violations.
6
8.
With respect to the IDEA matter, Plaintiffs have prevailed for the most part, and
7
request attorney's fees pursuant to 20 U.S.c. § 1415(i)(3) for the due process proceeding and
8
for attendance at the IEP meeting convened to transition Ka.D.'s program in accordance
9
with OAD's order. To date, the District has refused to pay such fees. With respect to the
10
other matters, Plaintiffs hope to prevail and to become entitled to attorney's fees pursuant to
11
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
12
and 42 U.S.c. § 12101 et seq., and this action requests such fees.
JURISDICTION AND VENUE
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14
15
16
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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 seq. and 28 U.S.c. § 1331.
10.
Venue is proper in this Court. All of the events that are the subject ofthis
complaint took place within the Southern District of California.
11.
There is a present and actual controversy between the parties to this action. To
19
the extent required by law, Plaintiffs have exhausted their administrative remedies as to the
20
issues in this litigation.
PARTIES
21
22
12.
Plaintiff Ka.D. is a five year old girl with a disability. She was born on April 24,
23
2003 in San Diego, California and resides with her parents, sister, and maternal
24
grandparents in Solana Beach, California. Ka.D. is eligible for special education services due
25
to her autism. Ka.D. is fully and successfully included in a typical community preschool,
26
requiring the assistance of a skilled one to one behavioral "shadow aide" to facilitate her
27
participation with typically developing peers. Ka.D. is, and has been at all times relevant
28
hereto, entitled to the full protections of IDEA, including the right to be provided by SBSD
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with a free appropriate educational program made available, to the maximum extent
2
appropriate, alongside nondisabled peers. She is a "child with a disability" within the
3
meaning of IDEA, 20 U.S.c. §1401(3) and is a qualified individual with a disability within
4
the meaning of the ADA and the Rehabilitation Act. 42 U.S.C. Section §12131(2) and 29
5
U.S.C. Section 794.
6
13.
The full name of Ka.D. is known to Defendant and is contained in an Application
7
for Appointment of Guardian ad Litem, which was filed under seal at the outset of this
8
matter.
9
14.
Plaintiff Ky.D. is Ka.D.'s mother. She resides in the City of Solana Beach in San
10
Diego County, California. The full name ofKy.D. is known to Defendants and is contained
11
in an Application for Appointment of Guardian ad Litem which was filed under seal at the
12
outset of this matter. As an advocate on her daughter's behalf, and a parent-activist
13
regarding special education matters within the District, Ky.D. is within the zone of the
14
interest of the Rehabilitation Act's requirements, including its prohibitions on disability-
15
related discrimination and on retaliation for disability-related advocacy and is protected by
16
the ADA's prohibitions against retaliation and discrimination.
17
15.
Plaintiff B.D. is Ka.D. 's father. He resides in the City of Solana Beach in San
18
Diego County, California. The full name of B.D. is known to Defendants and is contained in
19
an Application for Appointment of Guardian ad Litem, which was filed under seal at the
20
outset of this matter. As an advocate on his daughter's behalf, B.D. is within the zone of the
21
interest of the Rehabilitation Act's requirements, including its prohibitions on disability-
22
related discrimination and on retaliation for disability-related advocacy, and is protected by
23
the ADA's prohibitions against retaliation and discrimination.
24
16.
Defendant SBSD is a governmental agency organized and existing under the laws
25
of the State of California and is located within San Diego County. Defendant is required by
26
federal and California law to provide students such as Plaintiff with a free appropriate
27
educational program. Defendant is a "local educational agency" within the meaning of 20
28
U.S.C. § 1401(15), a recipient of federal funds subject to Section 504 of the Rehabilitation Act
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of 1973, and a governmental entity subject to the Americans with Disabilities Act (42 U.S.C.
2
§ 12101). Defendant hires staff, such as its superintendent and special education director,
3
who are well aware of their obligations to students with disabilities, and yet repeatedly
4
violated those obligations with respect to Ka. D. and her family. For instance, special
5
education director Mary Ellen Nest is employed by the SBSD and was so employed
6
throughout the 2006-07 and 2007-08 school years. Beginning in or around August 2005, she
7
became Director of Pupil Services for the SBSD. In that capacity she would have been, and
8
was, aware of the requirements IDEA imposes on school districts, the rights it confers upon
9
students and their families, and the importance of those rights. Similarly, she would have
10
been, and was, aware of the rights Section 504 and the ADA confer upon students and their
11
families, including the rights to non-discrimination, freedom from unnecessary segregation,
12
and freedom to exercise of statutory rights without retaliation or coercion.
STATEMENT OF FACTS
13
14
17.
Plaintiff Ka.D. is a five year old girl who was diagnosed in summer 2005, shortly
15
after her second birthday, with moderate to severe autism. At that time, Ka.D. demonstrated
16
severe cognitive delays and profound receptive and expressive language delays as well as a
17
complete lack of functional social skills and delays in self-help skills. She qualifies for special
18
education under federal and state law under the autism category, which applies to students
19
with specified "autistic-like characteristics." She also has optic nerve atrophy and
20
strabismus, which require intermittent eye patching.
21
18.
Ka.D. received early intervention services starting at approximately age two and a
22
half. When the responsible local agency delayed in beginning services, her mother began a
23
long path of becoming extremely well informed and skillful in providing the intensive
24
applied behavior analysis services that Ka.D. needed. She has since worked collaboratively
25
with professionals to provide a program of very high quality, from which Ka.D. has
26
benefited enormously. Upon beginning early intervention, Ka.D. immediately began to
27
demonstrate dramatic gains.
28
19.
Upon turning three in April, 2006, Ka.D. became eligible for special education
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services under Part B of IDEA, and since that point, has been and remains entitled to have in
2
place an Individualized Education Program (hereafter "IEP") setting forth, inter alia, the
3
nature of her disabilities and the unique educational needs arising from those disabilities. To
4
ensure that an appropriate program is provided for the student, the IEP was, and is,
5
required to set forth what is hoped to be accomplished with the student over the course of the
6
year. In order to ensure full understanding of what is to be accomplished, the IEP was, and
7
is, required to contain baseline levels of performance and measurable annual goals. Further,
8
the IEP was, and is, required to contain a description of the specific program and services to
9
be provided to the student in order to appropriately address the goals and objectives. The
10
IEP is required to be developed during a meeting of an IEP "team" including and consisting
11
of the student's parents, teachers, related service providers and other appropriate
12
participants. The student is entitled to the provision of a free and appropriate public
13
education (FAPE) in the least restrictive environment (LRE), a term indicating that the
14
program is to be provided to the maximum extent appropriate alongside nondisabled peers.
15
20.
When Ka.D. first came to the attention of SBSD, her mother was informed that
16
the District had a special day class program for students like her. She was also informed by
17
District staff that SBSD would not provide in-home applied behavior analysis services.
18
Ka.D's mother nonetheless requested that a full range of options be considered for Ka.D.
19
21.
At a series of IEP meetings in spring 2006, SBSD declined to provide in-home
20
services, and insisted that if Ka.D.'s parents wished for her to receive publicly funded special
21
education services, most of her program would need to occur in a class composed largely of
22
students with autism, and entirely of students with disabilities. Opportunities for contact
23
with nondisabled students were described vaguely. Since Ka.D. was doing very well with
24
existing services, and was viewed by her parents and ABA provider as being ready for
25
inclusion in a typical preschool program, Ka.D. did not enter the program recommended by
26
SBSD. Instead, her parents filed for due process in May 2006, and in September 2006,
27
shortly before a hearing was scheduled to occur, the parties entered into a confidential
28
settlement arrangement regarding the 2006-07 school year.
7
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While financial details are confidential, the educational bottom line was that from
2
June 2006 until August 2007, when the agreement expired of its own terms, Ka.D. continued
3
to receive in-home ABA services from Coyne & Associates (Coyne), a nonpublic agency
4
certified by California to provide services for students with disabilities, and attended a
5
community preschool with natural proportions of students with and without disabilities,
6
supported by a behaviorist employed by Coyne. Beginning in approximately October 2006,
7
she has also received speech and language and occupational therapy services from SBSD.
8
Following the expiration of the settlement agreement in August 2007, Ka.D.'s family
9
continued to ensure in-home ABA services and school "shadow aide" ABA services through
10
Coyne & Associates. In February 2008, after OAH ruled that Ka.D. should be placed in
11
general education but permitted the District to use its own personnel to support her, Ka.D.'s
12
direct and supervisorial applied behavior analysis services began to be provided by SBSD
13
employees.
14
23.
At some point, Ky.D. inquired as to the availability of a slot in the District's Child
15
Development Center (CDC) but was told that that option would be available to Ka.D. only if
16
it were provided for as a "mainstreaming" placement in her IEP. In contrast, typical
17
children are allowed to enroll in CDC without such limitations. In fact, CDC actively
18
discourages families of children with disabilities from enrolling them in the program outside
19
of the IEP process.
20
24.
As the spring 2007 annual review for Ka.D.'s IEP approached, Ky.D. and B.D.
21
hoped that the District would recognize that given her excellent progress, she should
22
continue to receive a similar program, combining 1:1 instruction with educational inclusion.
23
Ky.D.'s discussions with District staff regarding Ka.D.'s outstanding progress left her and
24
her husband hopeful that the District would finally honor Ka.D.'s right to be educated in an
25
inclusive rather than segregated environment. While they hoped that the District would not
26
resist letting Ka.D. complete her time in preschool at her existing preschool with her highly
27
competent supports, they realized that the District might propose increasing reliance on
28
District staff to provide supports, and did not necessarily oppose such a transition.
8
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The District, however, showed signs early on that their intent was to remove Ka.D.
2
from her community preschool placement and put her in its own largely segregated,
3
disorganized and fragmented program. In February 2007, the district held an IEP to
4
develop an assessment plan in which it would bring in several of its own staff as well as an
5
outside autism expert to observe Ka.D. in her current placement, ahead of the annual IEP.
6
26.
Before the IEP team even met to discuss placement and services for the upcoming
7
year, Nest, SBSD's special education director, telephoned Ky.D. to let her know that the
8
District was going to be proposing more "structure" for Ka.D., and that since she did not
9
expect the parents to agree, she hoped they would agree to an "informal mediation" rather
10
than invoking due process rights. By this time, Nest had contacted an outside expert to work
l I o n this case because of what she characterized to that expert as a dispute with the family.
12
Nest also told an educational consultant who was assisting the family through the San Diego
13
Regional Center that the District would be open to continuing the previous year's settlement
14
arrangement; the consultant responded that this was not likely to work, since the length of
15
Ka.D.'s school week would be increasing substantially. In response to protests by Ky.D. that
16
she did not want her daughter's placement offer predetermined before her IEP team even
17
met, SBSD convened an in-person meeting, at which the same message was reiterated: that
18
the parties were expected to disagree at the IEP level, but that the District hoped to stay out
19
of due process. Nest asked Ky.D. not to make comments during the IEP meeting that might
20
upset staff.
21
27.
While the bottom line-that there would be no in-home services and no agreement
22
for Ka.D. to remain in her community preschool and that the District would demand
23
"structure" in the form of a segregated special day class-was clear from the outset, details
24
emerged mainly during two IEP meetings in May and June 2007, though some did not
25
emerge until the due process hearing in October and November 2007. The first IEP meeting,
26
on May 11, was attended by the District's expert, who was not invited back for the second
27
meeting, on June 13, at which the District's proposal was actually set forth. The District
28
proposed to remove Ka.D. from her inclusive preschool and to terminate in-home services,
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1
replacing her research-validated and highly successful program with a convoluted mix of
2
readily available placements and services. Under its program, Ka.D. 's program would have
3
three major components: a special day class composed mainly of students with autism and a
4
few nondisabled peers (which, as the family learned through the District's evidence
5
submissions for the due process case, was based on a rigid formula ostensibly based on
6
"general" characteristics of students with autism); "mainstreaming" time in the Child
7
Development Center, a large, chaotic preschool/day care program operated by SBSDj and
8
additional instruction, which was poorly specified, through the District's in-house applied
9
behavior analysis program. She would also be pulled out of some of these settings for speech
10
and language services.
11
28.
Although Ka.D. had clearly been showing progress for nearly a year in the typical,
12
general education preschool, and even though the District's own expert determined that the
13
CDC was inappropriate for Ka.D., Nest and the District deliberately ignored the
14
information (as well as the clearly established least restrictive environment mandates of
15
IDEA and Section 504) and proposed a more restrictive setting nonetheless.
16
29.
Ka.D. 's family filed for a special education due process hearing. At that point, an
17
early resolution session became mandatory unless both sides agreed to waive. The family
18
agreed to do so, at the District's suggestion that the parties proceed directly to mediation.
19
Unfortunately, SBSD abruptly cancelled mediation, which is voluntary for each party,
20
shortly before it was to occur.
21
30.
The District assessed Ka.D. during several observations by its psychologist,
22
behavioral specialist and Dr. Laura Shreibman, an outside consultant, in March and April
23
2007. Unfortunately, the District appears to have misrepresented to Dr. Schreibman what
24
she had been shown: at hearing she testified that she had come to understand that the large
25
chaotic environment she had seen, which she had indicated was not suitable for Ka.D.,
26
actually consisted of two classes oddly combined. Given her updated understanding, she
27
believed that the class would be appropriate after all. In fact, the program she had seen did,
28
as other testimony made clear, constitute one class of students. Student's parents disputed
10
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the observations and placement recommendations of District assessors. On August 7, 2007,
2
Ka.D.'s parents wrote to Nest informing her that they were going to obtain Independent
3
Educational Evaluations for Ka.D. The District did not indicate its agreement to fund the
4
lEE; however, it also did not file a request for due process contesting the request for an lEE
5
at public expense until September 7, 2007. In the interim, Ka.D.'s parents arranged to have
6
Dr. Caroline Bailey conduct a more thorough and comprehensive observation of Ka.D..
7
8
9
31.
SBSD obstructed insofar as possible, observations of its programs by the
independent educational observer. Ultimately, that observation did occur, in October 2007.
32.
In fact, the District unduly restricts access to its preschool special education
10
programs by not only evaluators, but even by parents. The District's undue restriction on
11
observation of its special education preschool program is in sharp contrast to its open door
12
policy for parents of nondisabled children. Nest has informed the family that they are
13
allowed to visit the site for a maximum of 30 minutes once a month and must be escorted by
14
an administrator. Each visit must be arranged by appointment only. In contrast the CDC
15
materials given out to parents of general education preschoolers clearly state that parents are
16
welcome any time to observe their child.
17
33.
On October 29, 2007, a due process hearing began. The Administrative Law
18
Judge rendered a decision in which each party partly prevailed, as more fully discussed
19
below.
20
34.
The ALJ correctly determined that the District's offer of placement denied Ka.D.
21
a free appropriate public education as its special day class ( a group composed primarily of
22
students with autism) did not constitute the least restrictive environment for her, its CDC
23
general education class was not appropriate for her, and there was no evidence of any other
24
suitable placements for her. As the hearing officer recognized, Ka.D. was making progress
25
in her general education preschool program, and thus removing her into a group composed
26
primarily of students with autism (the District's proposed placement) would violate her right
27
to be educated to the maximum extent appropriate with nondisabled peers; the CDC general
28
education preschool placement the District offered was inappropriate for Ka.D. as it was too
II
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large; and the educational placement offered, as a whole, was not appropriate, in that it
2
would have required Ka.D. to manage interactions with an excessively large number of
3
children, and multiple transitions between activities, settings and groups of classmates. Since
4
Ka.D. 's parents had been required to, and had, paid tuition for the year, the District was
5
ordered to reimburse this expenditure. The District was not ordered to reimburse for
6
applied behavior analysis support services which had already been provided to Ka.D. at her
7
preschool, because the parents had not proven out-of-pocket costs for providing these
8
services (which were supported by the San Diego Regional Center and the family's Tri-Care
9
insurance through the Marine Corps). The hearing officer incorrectly neglected to consider
10
the impact of the use of private insurance on the family's access to other medical care
11
services, of particular concern given Ka.D. 's eye disorder and the fact that her father was
12
recovering from a serious wound suffered in Iraq, and failed to make an explicit finding
13
regarding the appropriateness of the Coyne aide, although such finding is implicit in the
14
determinations that Ka.D. required an aide in her preschool, and that during the period in
15
which Coyne provided ABA services to Ka.D. she progressed extremely well, to the point that
16
most of her standardized scores reached the average and above average ranges and she is
17
increasingly able to demonstrate abilities independently in a variety of natural settings.
18
35.
Although the ALJ correctly determined that the special day class placement was
19
not appropriate, she failed to recognize the overwhelming evidence that the classroom, in
20
addition to not being the least restrictive alternative, was also lacking appropriate methods
21
of instruction, including adequate applied behavior analysis services, and did not include
22
peers with compatible instructional needs.
23
36.
The ALJ concluded that there "is no dispute that Student requires [a one-to-one
24
ABA] aide in a general education classroom," and ordered the District to provide an aide
25
(using either District or Coyne staff, at the District's discretion) at Hanna Fenichel
26
Preschool. However, the ALJ's order required only that the District provide the aide
27
"within 30 days of this order" so that no provision was made to provide or fund an
28
admittedly essential service in the interim. An appropriate order would have provided not
12
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only a deadline for the District to make the election between Coyne or district staff and
2
arrange for a transition plan, but also interim services and funding for the Coyne aide and
3
funding for any necessary supervision and consultation as well as attendance at IEP meetings
4
during the transition. The failure to do so deprived Ka.D. of a free appropriate public
5
education in that the program ordered did not require the District to provide all of the
6
services Ka.D. required to receive educational benefit in her general education classroom. As
7
a result, family was required to, and did, fund interim behavioral services for Ka.D.
8
addition, though the District was ordered to convene an IEP team meeting to discuss
9
transitioning Ka.D. to its own service providers, should it choose to do so, the District refused
10
to fund attendance at that meeting by Coyne & Associates staff. Instead, the District held the
11
required transition meeting without the presence or input from Coyne & Associates staff,
12
over the objections of the family. When the family requested to convene a second IEP
13
meeting, in order to allow input from Coyne staff, the district refused to pay for Coyne
14
attendance, so the family subsequently withdrew their request for the additional meeting. In
15
addition, the District was obliged to, and did not offer to, fund attendance by Ka.D. 's special
16
education attorneys at the transition meeting.
17
37.
In
Contrary to the ALJ's decision, the Independent Educational Evaluation
18
conducted by Dr. Caroline Bailey should be reimbursed. The family gave the District notice
19
of its disagreement with District evaluations and requested information as to the District's
20
criteria for lEEs. The District failed to provide such information and did not request a due
21
process hearing to defend the appropriateness of its assessments "without unnecessary
22
delay." In fact, its assessments were deficient as they failed to recognize that Ka.D. would
23
not be appropriately placed in the District's SDC or in the CDC preschool and that
24
placement in a small, typical preschool with one to one aide support was the appropriate
25
placement and in that they failed to accurately identify the elements of an appropriate
26
program for Ka.D. Dr. Bailey's evaluation came to radically different conclusions than did
27
the District's. This is not surprising as the District's piecemeal observations were flawed in
28
their failure to sufficiently observe Ka.D. across relevant settings, in their vague and cursory
13
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descriptions of observed behaviors and environments, in their failure to take into account
2
Ka.D. 's strabismus in evaluating the relationship of her gaze to "autism," and in their failure
3
to synthesize findings into a report which linked and cross-checked observations and other
4
information, including relevant research findings. The ALJ's decision imposing essentially
5
no requirements on districts which use observational rather than standardized testing
6
techniques in evaluating students not only encourages overly subjective approaches, but also
7
undermines one of the essential purposes of the lEE right, which is to provide families with
8
"access to an expert who can evaluate all the material that this school must make available,
9
and who can give an independent opinion" so that families "are not left to challenge the
10
government without a realistic opportunity to access the necessary evidence, or without an
11
expert with the firepower to match the opposition." Schaffer v. Weast, 126 S. Ct. 528, 532
12
(2005). Having failed to promptly to seek a hearing to defend against payment, and having
13
chosen instead to discourage a full and comprehensive evaluation, SBSD should have been
14
required to fund the assessment which the family had obtained unless it demonstrated
15
during the due process hearing that the lEE did not meet agency criteria it had provided to
16
the family. The District did not, in response to family inquiries as to criteria for the lEE,
17
provide monetary, credentialing, or other guidelines. In fact, its primary concern seemed to
18
be placing limits on the amount of time Dr. Bailey would be allowed to observe the District's
19
programs. The District also did not establish that the lEE did not meet agency criteria.
20
38.
The ALJ incorrectly concluded that District staff was adequately trained to
21
implement Ka.D. 's IEP. The decision ignored the importance of the significant evidence of
22
problems with the District's behavioral program's design, implementation, and record-
23
keeping, and made numerous factual and legal errors in concluding that District staff were
24
capable of implementing the research-based behavioral program required to continue
25
Ka.D. 's progress across environments. The hearing officer improperly trivialized differences
26
between Ka.D.'s current providers and District staff by describing the current providers as
27
"even better trained" and "more diligent in keeping records," but failing to acknowledge
28
District's staffers' lack of commitment to inclusion, their limited training and technical
14
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understanding, and their ambivalence regarding, and refusal to commit to using, research2
based educational strategies. Unfortunately, once Ka.D.'s parents consented to allow
3
services to be provided by District staff, her program rapidly deteriorated, to the point that
4
in June 2008 they gave notice of their intention to, and did, remove consent for ABA services
5
by District staff. In August 2008, Ka.D.'s parents explained that in light of her regression
6
following the District's takeover of services, and the District's kindergarten plans, Ka.D.
7
would be remaining in preschool and continuing to receive ABA services during the
8
upcoming year. The family has indicated their request for reimbursement of these services,
9
and in the absence of a global settlement in the near future, will file for hearing to seek
10
reimbursement for their costs trying to reverse Ka.D.'s recent regression and restore her
11
previous very positive trajectory.
12
39.
The ALJ incorrectly determined that the District's offer of 10 hours per week of
13
ABA services delivered at the District's location and by its staff was adequate. In fact, Ka.D.
14
required no less than 12 to 15 hours of in home services delivered by a highly skilled
15
provider in a coherent, well-designed and supervised ABA program; and the appropriate
16
locations for this service were in Ka.D. 's home, neighborhood and broader community, not
17
in a special education cubicle convenient for SBUSD.
18
District staff did not, and would not in Ka.D. 's case, deliver ABA services in accord with
19
research based methodologies as to location, program design or intensity, or in a manner
20
reasonably calculated to allow Ka.D. to participate successfully in general education and
21
access the general curriculum alongside nondisabled peers. Indeed, the District has not even
22
been willing to let Ka.D. 's ABA program be driven by her goals and objectives, insisting on a
23
preacademic orientation which is not appropriate given her relative strengths in that area,
24
her age, and gaps in underlying language and social abilities.
25
40.
In fact, the evidence established that
In finding District staff and services adequate, the ALJ ignored extensive evidence
26
(including the District's disregard of Ka.D. 's history of progress in the appropriate preschool
27
setting and its disregard of IDEA's requirement that students with disabilities be educated to
28
the maximum extent appropriate alongside nondisabled peers).
15
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Moreover, the ALJ incorrectly required the family to justify reimbursement for
2
each component of the educational program with which they replaced the District's
3
inadequate offer. Having rejected the District's offer, the family is entitled to reimbursement
4
if the program it selected was itself proper. The evidence overwhelmingly supports the
5
conclusion that the combination of community preschool with aide and ABA home program
6
provided to Ka.D. in place of the District's offer was in all ways sound and beneficial.
7
Nothing in IDEA requires parents presented with a blatantly inappropriate and overly
8
restrictive service offer to "mitigate damages" by discerning what pieces of a district's offer
9
might be defensible, and to plan their child's program and schedule around accessing that
10
specific component.
11
42.
The ALJ also improperly fashioned the remedy provided so as to leave Ka.D., in
12
the event of a subsequent dispute, with no appropriate "stay-put" placement. Concerned
13
with the state statutory prohibition against an ALJ ordering placement in a school that is not
14
a state-certified non-public school, the ALJ, rather than ordering placement in a classroom
15
with the necessary features (as she attempted to do in making a specific description of the
16
type of aide to be provided), ordered reimbursement but declared the placement for which
17
reimbursement was offered not to be the "stay put" placement. In fact, the question of
18
whether the placement for which reimbursement is offered becomes the stay put placement is
19
determined by federal law, and the ALJ had no authority to override this protection.
20
43.
Throughout the decision, the ALJ's conclusions and findings that are adverse to
21
Plaintiffs are incorrectly decided and are contrary to the evidence presented during the
22
hearing.
23
44.
The ALJ's findings, conclusions and orders were completely inconsistent with the
24
overwhelming evidence that the District predetermined that it would not provide Plaintiff
25
with placement at a community preschool and would not provide her a home ABA program.
26
In fact, Nest made clear to Plaintiff Ky.D. that she knew that the District's offer would not
27
include the community preschool or a home program well in advance of the IEP meeting.
28
45.
Although Nest clearly informed Plaintiffs prior to the relevant IEP meetings, that
16
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1
the options she believed the parents were likely to request would not be offered, the ALJ
2
incorrectly concluded that the parents were provided sufficient "participation" in the IEP
3
process. The ALJ appears to have misapplied the burden of proof, noting that the family
4
failed to provide "compelling" evidence of predetermination even though the preponderance
5
of the evidence standard was applicable.
6
46.
Although the evidence clearly indicated that Ka.D. has been able to successfully
7
participate in general education preschool with supports in the form of a one to one
8
classroom aide and a quality ABA home program consistent with sound research, the ALJ
9
failed to acknowledge the role the ABA program plays in Ka.D.'s successful inclusion with
10
nondisabled peers and incorrectly concluded that the admittedly less qualified District staff
11
were sufficient and that the family had failed to demonstrate that the District's program
12
lacked a sound research base.
13
47.
The ALJ made numerous other factual and legal errors, as well generally ignoring
14
inconsistencies and contradictions in District staffers' versions of events, indulging
15
unwarranted inferences in favor of the District, ignoring and in many cases excluding the
16
great weight of published research supporting Plaintiff's claims, and misapplying IDEA's
17
standards.
18
48.
Rather than ensuring that continuous aide services and a smooth transition occur,
19
OAH failed to require an essential service (the one-to-one aide) for a month following the
20
decision. The District, for its part, did not voluntarily supply the service in the interim,
21
although the ALJ had determined it to be necessary for Ka.D.'s successful participation in
22
her preschool environment, and delayed transition planning to the maximum extent allowed
23
by OAH's order, predictably resulting in failure to complete the transition planning process
24
within the 30 day gap improperly created by OAH. Moreover, during the period from the
25
end of the due process hearing until the present, the District has refused to include or solicit
26
input from Coyne & Associates in planning the transition ordered by the ALJ, instead
27
creating a plan with no input on Ka.D.'s present levels, current needs or potential problems
28
that could arise as the district transitions from Coyne support to the District's. When Ka.D. 's
17
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parents requested that Coyne be included, Nest refused to pay for any Coyne involvement in
2
3
the IEP to plan the ordered transition.
49.
The ALJ incorrectly concluded that Ka.D.'s mother was not entitled to
4
compensation for her time supplementing her in-home ABA program. Ky.D. was not merely
5
participating in her child's therapy in the manner of "parental participation" models but
6
was providing skilled services an NPA would have provided if funding had been available.
7
Nor was the therapy Ky.D. provided in excess of Ka.D.'s needs.
8
50.
The District has failed even to comply with the portions of Ka.D.'s IEP on which
9
there is agreement, the speech and occupational therapy programs. The District failed and to
10
some extent refused, until after a formal complaint was lodged with the California
11
Department of Education, to comply with the speech and OT provisions of Ka.D.'s IEP.
12
51.
The hearing officer gave insufficient weight to the procedural dimensions of the
13
District's failures with respect to Ka.D, viewing it as sufficient that family members were
14
allowed to speak and irrelevant that their statements were rarely answered and had no
15
bearing on the District's decision making. In fact, the record reveals IEP "discussions" in
16
which the District staff members allowed the family to voice their wishes but in which the
17
family's proposed placement was never really on the table. The attempt to circumvent the
18
IEP process and come to agreements outside of the process had real, harmful effects for
19
Plaintiff. The cost-sharing plan envisioned in the District's "informal mediation" scenario
20
was not one which would have been developed by an IEP team, it would not necessarily have
21
included stay put protections so that Ka.D. could continue to receive publicly funded services
22
in the event of future disputes, and it reflected the District's negotiating posture rather than
23
Ka.D.'s needs or her or her parents' rights under state and federal law. Moreover,
24
relegating these discussions to a confidential mediation setting would have limited Ky.D.'s
25
ability to share with other parents the nature of the discussions and probably certain details
26
about the arrangements.
27
28
52.
The hearing officer drew conclusions about Ka.D.'s needs and options which were
not supported by the evidence.
18
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The ALJ's finding that the District properly assessed Ka.D. was factually
2
incorrect. Clearly, the District's assessment failed to identify the appropriate placement for
3
Ka.D. Moreover, the ALJ improperly raised and adopted criteria based on objections to Dr.
4
Bailey's assessment that the Distrtict had not articulated to the family.
5
54.
During the relevant time period, Ky.D. has been a tireless advocate not only for
6
her daughter, but also for other children with special needs. She has, in addition to
7
advocating for the programs Ka.D. needs, helped other parents in their struggles against
8
SBSD. Ky.D. started a support group for parents of children in SBSD special education
9
programs, is a vocal opponent of the District's highly segregated approach to special
10
education, has communicated directly with the School Board superintendent regarding
11
Ka.D. 's case, and has informed parents of inadequacies in the programs she has observed.
12
For parents involved in IDEA disputes with school districts, the ability freely to share
13
information with one another about experiences with school staff and administrators,
14
District responses to family requests, and the fair opportunity to observe District programs
15
are crucial. The District, and Nest specifically, were aware of Ky.D. 's activities. The family
16
also advocated for Ka.D.'s and their own rights specifically, and successfully, by filing for
17
due process during the 2006-2007 school year. Ky.D., as a result of her experience and
18
abilities, is a forceful advocate for competent early intervention, inclusion, and the due
19
process system. Nest and the District were aware of her activities and the assistance and
20
support she provided to other members of the community.
21
CLAIMS FOR RELIEF
22
-COUNT ONE-
23
Individuals with Disabilities Education Act
24
and Implementing California Statutes-Attorneys' Fees
25
55.
Plaintiffs reallege paragraphs 1 through 54.
26
56.
The educational opportunity created by IDEA is protected by an administrative
27
hearing and judicial process that is available to a parent or student dissatisfied with the
28
identification, assessment, or educational program offered by the local educational agency.
19
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20 U.S.c. § 1415. The parents of a student who prevails in such administrative hearing are
2
3
entitled to an award of attorneys' fees.
57.
Plaintiffs largely prevailed in the due process proceeding involving OAH Case
4
Nos. N2007070255 and N2007090146 and are entitled to an award of attorneys' fees as
5
prevailing party in that matter and for attending the transition IEP meeting which resulted
6
from that proceeding, and to such attorneys' fees as may be necessary to secure the
7
underlying award of attorneys' fees. The District has failed and refused to pay the fees
8
incurred in this matter.
9
-COUNT TWO-
10
Individuals with Disabilities Education Act
11
and Implementing California Statutes-Appeal ofAdministrative Decision
12
58.
Plaintiffs reallege paragraphs 1 through 57.
13
59.
The educational opportunity created by IDEA is protected by an administrative
14
hearing and judicial process that is available to a parent or student dissatisfied with the
15
identification, assessment, or educational program offered by the local educational agency.
16
20 U.S.c. § 1415. A party aggrieved by the decision of the administrative tribunal is entitled
17
to judicial review of that decision.
18
60.
Portions of the decision in OAH Case Nos. N2007070255 and N2007090146 were
19
incorrectly decided and Plaintiffs seek reversal of those portions of the hearing officer's
20
decision decided in favor of the District.
21
22
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.
23
-COUNT THREE-
24
Violation of § 504 ofRehabilitation Act of 1973
25
62.
Plaintiffs reallege paragraphs 1 through 61.
26
63.
The District by its actions and inactions set forth above, has violated and
27
continues to violate Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.c. §
28
794 (Section 504), and the regulations promulgated thereunder, 34 C.F.R. Part 104, by
20
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discriminating against Plaintiffs on the basis of Ka.D.'s disability, excluding plaintiffs from
2
the participation in or denying plaintiffs the benefits of, or subjecting plaintiffs to
3
discrimination under a program or activity receiving Federal financial assistance, violating
4
IDEA's requirements, and violating Section 504's least restrictive environment
5
requirements. Defendant further violated Section 504 by retaliating against Plaintiffs for
6
actions protected under Section 504, including but not limited advocating on behalf of a
7
child's education, community leadership, advocacy, and activism regarding rights of
8
children with disabilities, and exercise of due process rights. These retaliatory acts included,
9
but were not limited to, refusal to let Ka.D.'s case enter a mode of normal educational
10
planning, predetermining the outcome of the IEP process and relegating her family to a
11
requested process of "informal mediation" even before a dispute had arisen, refusing to offer
12
the clearly appropriate program except in a process that did not provide the full panoply of
13
IDEA rights (essentially coercing a waiver of rights), limiting access to District programs on
14
the same terms as those offered to families of children who have not taken protected actions
15
in furtherance of their statutory rights, and pressuring the parents to refrain from speaking
16
freely regarding their concerns during the IEP process.
17
64.
As a direct and proximate result of the District's violation of Section 504, Plaintiffs
18
Ky.D. and B.D. have suffered and continue to suffer injuries, pain, humiliation, anxiety,
19
mental anguish, emotional distress, lost earnings, out-of-pocket costs, and damage to
20
reputation, social and educational development and personal relations, in an amount to be
21
ascertained according to proof at trial. The District's actions in violation of Section 504 were
22
intentional and constituted deliberate indifference to Plaintiffs' rights under that statute.
23
65.
The District's actions in response to Plaintiffs' protected activities had an adverse
24
impact on Plaintiffs. As a direct and proximate result of the actions and events described
25
above, Plaintiffs have suffered injuries including pain, suffering, humiliation, anxiety, mental
26
anguish, out-of-pocket costs, lost earnings, and emotional distress, all in an amount subject to
27
proof at trial.
28
66.
Plaintiffs were forced to hire counsel to represent them in this matter and have
21
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incurred attorneys' fees and costs, and if they prevail they are entitled to their reasonable
2
attorney fees pursuant to 29 U.S.c. § 794a(b).
3
-CQUNTFQUR
4
Violation 0/ the Americans With Disabilities Act (ADA)
5
67.
Plaintiffs reallege paragraphs 1 through 66.
6
68.
The Americans with Disabilities Act prohibits discrimination based on disability
7
by governmental entities. It also prohibits retaliation, coercion or threats (by governmental
8
entities and others) against people who engage in protected activities under the ADA.
9
69.
The District's acts described above, which were inflicted upon Plaintiffs, violate
10
the Americans with Disabilities Act and its implementing regulations, by discriminating
11
against Plaintiffs on the basis of Ka. D.'s disability, excluding plaintiffs from the
12
participation in or denying plaintiffs the benefits of, or subjecting plaintiffs to discrimination
13
under a governmental program or activity, violating IDEA's requirements, and disregarding
14
the mandate that governmental educational programs be offered in the least restrictive
15
environment. Defendant further violated the ADA by retaliating against Plaintiffs for
16
actions protected under the ADA, including but not limited Ky.D. 's and B.D. 's advocacy on
17
behalf of their child's education, community leadership, advocacy, and activism regarding
18
rights of children with disabilities, and exercise of due process rights. These retaliatory acts
19
included, but were not limited to, refusal to let Ka.D. 's case enter a mode of normal
20
educational planning, predetermining the outcome of the IEP process and relegating her
21
family to a requested process of "informal mediation" even before a dispute had arisen,
22
refusing to offer the clearly appropriate program except in a process that did not provide the
23
full panoply of IDEA rights (essentially coercing a waiver of rights), limiting access to
24
District programs on the same terms as those offered to families of children who havoe not
25
taken protected actions in furtherance of their statutory rights, and pressuring the parents to
26
refrain from speaking freely regarding their concerns during the IEP process.
27
28
70.
The Defendant's actions in response to Plaintiffs' protected activities had a readily
foreseeable adverse impact on Plaintiffs. The District's provision of crucial programs was
22
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threatened, delayed and interrupted and, as a direct and proximate result of Defendants'
2
violation of the ADA, Plaintiffs have also suffered and continue to suffer injuries. The
3
District's actions in violation of the ADA were intentional and constituted deliberate
4
indifference to Plaintiffs' rights under that statute.
5
71.
As a direct and proximate result of the actions and events described above,
6
Plaintiffs have suffered injuries including pain, suffering, humiliation, anxiety, mental
7
anguish, lost earnings, out-of-pocket costs, and emotional distress all in an amount subject to
8
proof at trial.
9
72.
Plaintiffs were forced to hire an attorney to represent them in this matter and
10
have incurred attorneys' fees and costs, and if they prevail they are entitled to their
11
reasonable attorney fees pursuant to the ADA.
12
-COUNT FIVE-
13
Injunctive Relief
14
73.
Plaintiffs reallege paragraphs 1 through 72.
15
74.
Plaintiffs request that this Court enter a preliminary injunction ordering that
16
Ka.D. remain in the last agreed-upon educational placement for the pendency of this
17
litigation (in effect, that it provide the "stay put" rights which would have been clearly
18
available pursuant to 20 U.S.c. § 1415(j) but for the ALJ's specific indication that her
19
decision created no stay put rights). Because the hearing officer's determination that Ka.D. 's
20
placement in her community preschool was reimbursable it constitutes an agreement
21
between the state and Plaintiffs as to that placement, and Ka.D. is entitled to the continuation
22
of the placement for which reimbursement was ordered pending the final outcome of this
23
judicial action, absent contrary agreement of the parties. Such an order would place the
24
parties in appropriate bargaining positions as Ka.D. approaches critical school years. In the
25
absence of such relief, the District may again insist that if Ka.D. 's parents want special
26
education services, these will only be provided in a program which is overly segregated
27
and/or fragmented and full of unnecessary and detrimental transitions. Indeed, in June and
28
July 2008, the District attempted quietly, without notifying Ka.D.'s parents, to place Ka.D.'s
23
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program under the supervision of its consultant Erin Ring, who has previously attempted to
2
steer Ka.D. into low-intensity, ineffective programs which, rather than individualizing
3
services, rely on crude and, in Ka.D.'s case, inaccurate stereotypes about autism.
4
75.
Plaintiffs further request that the District be ordered to refrain from violating
5
Plaintiffs' Section 504 and the ADA rights and further be ordered to provide an educational
6
program to Ka.D. without unnecessary segregation and without discriminatory provisions
7
relating to program access and parent involvement.
8
PRAYER FOR RELIEF
9
10
WHEREFORE, Plaintiff respectfully requests that this Court enter judgment on her
behalf and enter preliminary and permanent injunctive relief and declaratory relief as follows:
11
1.
Reverse OAH's findings as to Issues lA, 1B, iC, IF, and Issue 2.
12
2.
Order the District to provide Ka.D. a quality, research-based, home ABA
13
program, reimbursement for Ky.D. for her hours spent working as Ka.D.'s tutor, payment
14
for the cost of Dr. Caroline Bailey's Independent Educational Evaluation, compensation for
15
any costs or missed services due to the gap in service, and compensation for the adverse
16
impact on family medical benefits of the diversion of such coverage to fund necessary
17
educational services for Ka.D.
18
3.
Order the District to reimburse any costs the family has borne, and compensate
19
any providers which have yet to be compensated or which provided services which were the
20
responsibility of SBSD.
21
4.
Award Plaintiffs damages in an amount to be determined at trial.
22
5.
Award Plaintiffs' costs, disbursements and reasonable attorneys' fees in the
23
24
underlying administrative matter, at the transition IEP Meeting, and in this proceeding.
6.
Order the District to refrain from violating Plaintiffs' Section 504 and ADA rights
25
and further order the District to provide an educational program to Ka.D. without
26
unnecessary segregation and without discriminatory provisions relating to program access
27
and parent involvement; and
28
7.
Grant such other relief as this Court may deem just and proper.
24
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DEMAND FOR JURY TRIAL
2
Plaintiffs hereby demand a jury trial as to all matters so triable.
3
4
5
Respectfully submitted 13 August 2008,
MAUREEN GRAVES
Counsel for Plaintiffs
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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Page
DEFORE TIlE
OFFICE OF ADMINISTRATIVE HEARiNGS
SPECIAL EDUCATION DIVISION
STATE OF CALIFORNIA
In the Maner of
!
I
STUDENT,
Ot\H CASE NO, N2007070255
Petitioner.
v.
SOLANA BEACH SCHOOL DISTRICT,
Respondent,
SOLANA BEACH SCHOOL DISTRICT,
OAH CASE NO. N2007090146
Petitioner.
v.
STUDENT,
Responden 1,
DECISION
Darrell Lepkowsky, Administrative Law Judge (ALJ), Office of Administrative
Hearings (OAH), Special Educalion DiviSIOn, State ofCalifoTnl8, heard this maneT on the len
business days between October 29,2007, and November 9, 2007, with the eleventh and final
day of hearing held on November 19. 2007, at the offices of the Solana Beach School District
in Solana beach, California I The hearing was open to the publi c, 81 Ihe request of Student's
parents,
I
The hearing
Wil.l
originally scheduled
County, the hearIng W~5 postponed a week
10
begin on October 22,2007 Due to the fires
In
San nlego
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~tlorneys Maureen R. Graves and john G, Nolte represented Snlden, and her parents,
Student s mother was present throughout tJle hearing Student's father was occasionally
prescnt.
Attorney Jonathan P Read. of Fagen. Friedman & Fulfrost, LLP, represented the
Solana Beach School District (Dlstnct), Mary Ellen Nest, the District's Director of Pupil
Services, was present throughout the hearing
Student frIed a request for due process on July 10.2007, The Distnct filed a request
for due process on September 7,2007 The Distnct's unopposed motion 10 consolidate the
two 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 rem8i~ open in order
for the parties to sllbmlt post-hearing clOSing briefs and reply brief's Both parties tImely
filed their closing brIefs on December 17,2007 Student timely fi led her reply brief on
December 24,2007 The District tiled its reply brier on December 26,2007, The AU
closed the record and deemed the matter submitted as of December 26, 2007. The parties
stipulated to tolling the time In which a deciSion WIlS due until January 7, 2008
ISSlJES 1
I,
Whelher the DIstrict denied a free appropriate public education (rAPE) to
Student for the 2007 ·2008 school year and 2008 extended school year by,
A.
Predetermining its offer of placement and related services
B
[-'lliling to consider all relevant data concerning Student, including input
from her rorents, before mak Jng an ofTer of placement and related servIces
C
Failing to otTer an applied behavior analysis (ABA) Iherapy program
that meets Student's unique needs because It is not scientifically based and supported
I
DUl'lng the hearing, Studen! Withdrew as a separate Issue her contention that Ihe Dlslrlct denied her a
FAPE by failing to ensure Dr 1.aura Schreibman's presence at al! of Sl'~denl's Individualized educ~\lonal plan learn
meetlngl durlIlg \.he time In question AdOillonaliy, Student onglnally rOlsedthe Issue, In her cC1mplaml and aLthe
prehe,ring conference, of the DistrICt's alleged failure LO develop an appropnate plan to transil Ion Student from her
current educational program ICl the program offered by Ihe Dlstnct However Student did nC1! present any eVidence
add/elling thIS Issue al heanng and Student does not address II In her clOSing hrlef The only reference to a
transilion plan In Siudent's bnef IS a ()ne-sentence reference ',0 the facllhatthe DISlIICI'S proposal for two hours of
consultatIon belween Its staff and Siudent's presenl prOViders C1fapplied behaVioral analySIS serVices IS insuffiCient
Thislssl.It iltherefore not addressed In thiS deciSion Finally, the Issues have been rcstRted In accord Wllh \.he
evidence presented at hCRrlng and Ihe argtlments offered bv Student In her briefs
2
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by peer-reviewed research, to the eX1en\ practicable, IS not offered In a home
enVironment, and falls to provide a sumcient amount of therapy hours
[)
Offering a placement for a portion of Student's school day in a special
day class tha.t 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 placernenl In a District general education classroom for a
portion of Studenr's school day that is an inappropriate instructional sening for her
and whose addition to Student's program creates a school day that includes too many
transitions between classroom senings.
.
F
Fail ing to provide staff capable of implementing the individualized
educational plan (I EP) olTered by the Distric I
2.
Are the DI stnct' s assessments of Student WI til regard to her educational
placement appropriate and, if no~ is Student entitled to reimbursement from the Dislnct for
the independent assessment conducted by 1)1 Caroline Bailey?
REMEDIES SOUOIIT BY STUDENT
Student seeks District funding of34 hours per week of direct ABA therapy,
lhrouah her present provider, Coyne &. ASSOCiates (Coyne), with the hours to be divided
between student's private preschool, her horne and in the communit)'. Student also seeks /6
hours per month of ABA supervision. also through Coyne, and payment for two hours per
month of ABA clinics, al1el1ded by Student's educators, aides, and ABA providers Student
also sovovks 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 2007-200R school year, which has already been paid by her
parents, along with an order for prospective placement at Hanna Fenichel with one-on-one
RIde support from Coyne for all hours Studenl IS In anendance. 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 prepanng her report
CONTENTIONS OF THE PARTIES
The main thrust of the dispute between Student and the District in this case is where
Student should be educated in order to preparc her for entering a general education
Kindergarten class In the fall of 2008, The partIes do not dispute that Student should spend
at least some of her ti me I n a preschool cl aSsroom with typically developi ng peers. They do
dispute, however, whether a District placement is appropriate to meet Student's unique
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needs. With regard to the provision of one-on-one ABA se"'lces, the parties do not dispute
that Student presently requIres an aide dunng allY tIme she spends in a typical gcneral
education class. Nor do they dispute tllar Student requires at/east some direct individual
ABA therapy. Rather, they dispute wh~ IStO prOVIde the ABA aide and servIces, the amount
of dlrec1 services Student requires, and If direct services should be provided at Srudent's
home or at the Distnct's preschool campus.
Student contends that the Distnct commitled procedural violations Of1hc reauthorized
Individuals with Disabilities Educ8tionaiAct (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
contends that the Distnct failed to consider all relevant dala conceming Student, Including
inpul from her parents and Coyne, before making an offer of school placement and related
services, and fai led to offer a program that is scientifically based and supported by peer
reviewed research, to the eXlent practicable Student further contends that the fEP offer is
substantively defective beclluse it fads to meet her unique needs, Student contends that the
Districl 's offer docs not include pro viSloll for sullic ienl direct AB AJ instruction, fails to
include peers with compatible Instructional needs, and includes too many transitions between
classroom settings Stlldent further assert.'> thaI the District'S offer ofpJacement for pal1 of
her day In a special day class (SDC) is not the least restrictive environment (LRE) for her
She also con tends that the offer of placemen t in the DIstrict's general ed ucatl on classroom
for the other portion of Student's school day is inappropriate due to the structure of the class
and, in particu lar, the amount of students In It Student further contends that District staff is
not capable of implementing the District's proposed fEP Finally, Student contends that the
District failed to assess her appropriately and that she is therefore entitled to reImbursement
for the servICes of Dr Caroline Dalley, Including all time spent on observations, revIew of
records, research, and for preparation of Dr Bailey's e>-1enslve report,
The District contends that it did not commit any procedural or suhstantive viola lions
of the rDEA lt asserts that the evidence fails 10 Sllpport Srudent 's contenllOn that the
l PJ explained by DistrIct expert L>r Laura Schreibman, AHA, as an intervenllon for the treMment of
autism, IS onen assocl8led With speclrlc behaVIOral methods, such as discrete tnal trlllning (DTT), IntenSive
behavioral mterventlon, Incidental teaching, pi votalresponse lralnlng, and verbal behaVior anAlysis. A discrete Inal
IS a llngle cycle of a behaViorally-based instruction rout inC A particular trial may be repealed severllilimes In
SUcceSSion, several limes a day, ovcr several days (or even longer) until Ihe skill IS mastcred
The method and technique of ABA therary requires thai tare,~\ed t>eh~vIO~ be reduced 10 their most baSIC
elemems, and Ihal the child IS then trained by repetitiOUS dJ~liJng In Ihe redirected behaViors deSired Contextual
factors, established operations, antecedent stimuli, POSitive reinforcers, and other consequences are used. based on
Identified functional relationships With the enVironment, I~ order tQ produce prActICAl behaVior change. Negallve
be~aviors are generally q;nored. Prompts or other assistance Are limed and prOVided 10 assure correcl responses, and
then gradually "faded' to eSlabilsh inderendence The child 1$ then urged 10 repeat each task until II has been
learned Overall, the treatment focuses rrlmarily on developln~ language, Increasing SOCial behAVior, and promoting
cooperalive play With peers along \\'Ilh Indcpendcnl and appropriate toy play Concurrently, SUbS\anllol efforts are
dIrected at decreasing excessive rituals, WlnlN1TlS And aggressive hehavlor
4
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DIstrict predetermined its offer of placement 10 her or failed 10 consider relevant Information
about Student from her parents or other sources. It further contends that the educatioTlaJ
program offered to Student at the June 13, 2007 fEP team meeting provides Student with
educational benefits and permits her to progress In the curriculum. The District contend th
the teac~ersl lildes, and service provider~ on its stafT are capable of addressing all of
s at
Student s ~ducatlonal needs. The DIstrict further asserts that its offer of placement for part
ofSludenl s day In Its SDC, and for part Student's day in one of its genera! educahon
preschool classes, was an appropriate otTer for Student and was the least restrictive
environment for her. The District further contends thaI Student does not require more than
10 hours a week of ABA therapy Finally, the District asserts that Student is not entitled to
relmbu~e~ent for I,he services of Dr. Bailey The District asserts that Student's parents
failed to dTsagrce wrth the assessments conducted by the District, a prerequisite to their
entitlement to an Independent educational evaluation (lEE) In the alternative, the District
otTers that its assessments all met appropriate legal standards. The District therefore denies
lhal it violated Student's rights under the IDEA or that she is entitled 10 any of the remedies
she has requested.
or
FACTUAL fTNDlNGS
Backgrcn.md Information
Student's presently just over four·and·a-halfyears old. She was born on April
24,2003 At alltirnes relevant to the allegations in thiS case, she resided with her parents
within the District's boundaries Student is eligible for special education and related services
based upon a diagnosis of autism. Her eligibility for special education services is not at issue
in this case
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 norma! 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
10 the San Diego Regional Center. The Regional Center eventually evaluated Student,
determined that she suffered from developmental delays, including speech and language
delays, and found Student eligible to receive services. Observations by the Regional Cenler
noted thai Student faded 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, e,
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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 WoodRII Foundation. 4 The
foundation evaluates children for autism and recommends treatments and sources of
aS~lSlance for parents. Tracey Woodall runs the Foundation, which is based in Texas.
Student and her morher new to Texas in Ausust of 2005, Ms. Woodall administered the
Assessment of BaSIC Language and Learning Skills to Student to assess Student's prescnt
developmental levels and to assIst Il\ educational planning for Student. The assessment
indicated that Student demonstrated severe cognitive delays. However, the assessment and
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 dela~'s in self-help skills, as well as self
stimulatory behaViors stercotypical of autism, such as wiggll ng hcr Ii ngers
4
Dunng 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 10 the therapy, progressing
more in the four days than expected. Ms. Woodall recommended that Student recei ve at
least 30 hours per week of one-on-one direct ABA therapy services.
5,
Aflhough the Regional Center did not agree 10 fund the 30-hour a week
program recommended by Ms Woodall, II did contract with Coyne to provide approximately
12nOllrs a week ofrn-home ABA ser"lccs to Student starting in September 200S. Except for
the number of recommended hours, the Coyne services mirrored the recommendatIons made
by Ms. Woodall Coyne provided a parcnt tralnillg component as well. Within a shon 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 111 the four months or so that Student had been
receiving ABA services. Student's speech and langUllge skills had progressed exceptionally
well, rising in jusl four months from profoundly severe to moderately severe.
7,
Planning for Student's transition from early start servIces to ed ucational
services to be provided by the District occurred in the spring of 2006. Prior to the meeting,
Student was assessed by the Di~;(nct in the areas of pS'r'l:ho-motor development/perceptual
function, language/speech/communication development, cognit,"e functiOning,
•
H\~
Widow, Tracey Woodal', founded the 8ren\ Woodall Foundalion In hiS memory after he WRS killed
lhe World Trade Towcl'$ on September I I, 200 I Student's molher was drawn to the websJle because she had
known Brent WOOdRll1O college
6
In
7 of
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social/emotional adaptive behavior, and health, Coyne also did its own psychological
assessment of Student about the same lime the DIstrict conducted its assessments of her as
part of tile Regional Center's ongoing provision of servIces 10 S[Udellt,~
,
8
Student's inltlallEP with the District was held on March 31, 2006 The IEP
learn noted that Student was highly responsive 10 B slructured environment. She was
beginning to show strong pre-academic skills (she was oble to COllnt to 12), and could answer
basic questions about herself and her family, such as her name and her sister's name,
However, the assessments indicated, and the [EP team 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,6 Although Student was approximately 34 months old attne time sne was
assessed, the assessmencs i nd icated she had a vocabulary com prehension of a ch ild between
the ages of 15 and 16 months, At a level of between 20 lind 21 months, Student's expressive
vocabulary was also significantly below her actual age level. Student also demonstrated
significant social/emotional deficits, Tile IEP team noted that she fell overwhelmed in large
groups ll!ld would withdraw. Student continued to demonstrate neeting and limited eye
conlatt, and was noted to wIthdraw dUring group activities with peers. The fEP 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 grou p Instruction,
9,
As a resu It of Studen t's assessments and diSCUSSions with the JEP team on
March 31, 2006, the District offered Student the foJlowrng placement and sen'ices:
placement in a District specia I day class for 240 minutes a day, )20 minutes of which would
be individualized direct instruction, individualIzed direct insl!'1lction for an additional two
hours per day, five days a week, speech and language services three tImes a week for 30
mmutes each session~ and occupational therapy/speech group one tIme a week for a 45·
minute session, The District also proposed up to 25 hours of consu ltation between Coyne
and District stafTto transition Student's ABA program to the District Student'S parents
agreed with the JEP team's determination of Student's present levels of performance, and
with most of the goals developed for her However, they did 110t agree 'vith the District's
proposed placement and proposal for provision of ABA sen'ices, SpeCIfically, Student's
parents believed that StlJdent did not belong in a SDC and believed Ihat Coyne should
continue providing A13A services to Student in their home
10
Coyne referred Student's parents to the Hanna Fenichel preschool Hanna
Fenichel is a com'munlty preschool serving typically developing preschool students, The
state of California has not certified it as a non-public school (NPS), Student's parents were
, On April 21,2006, the Regional (enter
plvase~
founc1th~1
Studenl wnl,nued to he eliSlhie for
liS
services
I American Ilenlage DICllonary defines echolalia as the Immediate and InvolunlaIy repel Ilion of words or
lust spoken by others, oflen a symptom of aUl15m
7
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very impressed by the school and decided that they would enroll Student there beginning in
the fall of2006.. They also filed a due process complaInt against the DiSITict based upon their
dIsagreement with the placement offered by the DIStTlct The panies 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 /9 hours a week of direct instruction ill
Student's home and six hours per week of a one-on-one aide for Student wh iJe she attended
Hanna Fcnichel two days a week. The settlement agreement also provided for supervision of
the ADA program at home and at Student's preschool Additionally, Stud ent received two
45·minue sessions of speech and language thera.py at the District preschool site as well as an
hour a month of occupational therapy consultation between Studenl'S mOlher and a District
occupational therapiSt. At hearing. the parties did not enter into evidence this settlement
agreemenl II is also unclear from the te~imony at heanng exactly who funded the
placement and services
II.
After signing of the settlement agreement, Srudent's parents had little conlact
with the District until February 16, 2007, when Student's IEP team first met to begin the
proem 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 Jt is the offer made to
Student by the District as a culmmation of these meetings, the events leading to that offer,
and observatIOns conducted of Student 10 help the District determine Its offer, which form
the basis of the complaints that are at issue in this hearing.
Procedural Violattons That May Cons1ttute a Denial ofFAPE
12
A school district must comply both procedurally and substantively with the
IDEA. While not every procedural naw constitutes a denial of FAPE. procedural flaws that
inhibit a student's right to receive a FAPE, significantly Inhibit a parent's opportunity to
participate in the IEP process. or cause a deprivation of educatIOnal benefit to a student will
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 learn members, or refuses to consider the Input ofa 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
concerns a parent has concernIng the child's placement However, participation by the
parents must not be mere form over substance; participation in the fEP process mllst be
meaningful.
13.
A school district is also required to make El formal written offer that clearly
identifies its proposed program. However, it IS proper for district IEP team members to
discuss among themselves the parameters of programs available to a student and to write II
draft ofa program they rnay want to discuss with a student's parents. Furthermore, parents
do not ha"e a right to their chOice of placemen 1 or choice of service providers, as long as tile
district's choice of program or providers offers 11 FAPE to the student.
8
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0/ Educatrona I Placement
. 14.
Student contends that the Pistri~\ had al~eady predetermined to place her in a
specIal day class at lIs preschool before It participated In, the IEP meeting on May 11,2007,
and therefore de~led her parents an opportunIty to par1Jclpate In the IEP process, resulting in
a demal of FAPE to her Studen t bases her asser1lon on conversations Student's mother had
with District DireClor of Pupil Services Mall' EllenNesl prior to the May 11 meeting on the
fact I.hat District witnesses ackno~ledged having discussed Student's rEP before the May II
meeting, and based upon Student s assertion that the DIstrICt refused to consider continued
placement for her at Hanna Fenichel.
15
The IEP team considered the meeting the parties held On february 16,2007, to
be 8 "pre-meetrng." The main purpose of tile meeting was to determine whIch assessments
rhe Distnct would administer to Student and to arrange observations of her. At this meeting,
the Di:l\riCt prepared an asiiessment plan for Srudentthat included forma 1assessment~ 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 thaI 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 all her
intera~tl0n with peers Student did not comply with her teacher's prompts to go to circle
lime; 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
observed thaI Student was able to choose activities independently and remain engaged in
them. Ms Reise's observatIon noles did nol make any recommendations about placement or
related services for St udent
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 or questions
when asked by her one-nn-one ABA aide who was giving Student 0 session dunng Ms.
Reise's obserVation The aide al~o worked WIth Student on recalling detailed information,
Ms Reise noted thaI Student knew all the upper case letters and was working on leaming the
lower case leners Student WllS attentIve while Iistening to a story and answered questions
about it thaI her aide posed 10 her. Ms. Reise observed that Student could rote COllnt to IS,
could answer social questions, such as ones about her parents' names, and could identify
some words by sight. Ms. Reise's obser;ation noles ofSludent while at Student's home also
did not make any recommendations concerning Student'S educational placement or proVIsion
of related sel"'lces
9
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. 18, Dr. Laura Schreibman: II distinguished professor at the University of
CailforOla, 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. Scho~1
psychologist Sharon Loveman obscrved Student for an hour and II half at her school on April
3,2007, and for an hour llI1d 45 minutes at Student's home on April 19,2007. Ms Reise and
Ms. Loveman hand-wrote theIr observations but did Aot make any specific recommendations
concerning Student In their observation reports Dr. Schreibman reduced her observations to
a Ictt,er written to Ms, Nest in which she also gave her recommendations concerning what she
conSIdered an appropriate placement for Srudent Dr. Schreibman, who had also observed
both a Dislrict preschool SDC and a District general education preschoo I class, found that the
District's general education class was then beyond Student's capabilities She also found
that behaviors sne observed in Sl\Jdent counseled against continued full Inclusion of Student
in her present placement at Hanna Fenichel. Rather, Or. Schreibman recommended a
placement for Student in the District's SOC. whIch also enrolled a number of typically
developing peers along with the special educallon students The District provided copies of
all three of these reports to Student's parents
19.
Dlslrict School psychologist Sharon Loveman observed Student for two and a
naIf hours at her preschool on Apnl 3, 2007 She observed that Student's general demeanor
was relaxed, happy, engaged and alert. However, Ms. l,oveman also noted that Student had
limited interaction with her peers and, while she played alongside them, Student did not
mimic their play and seemed unaware of her peers' shift to rlay that is more complex. Ms,
Loveman noted that Student'S response to her instructor's attempts to get Student to Initiate
interaction with her ~ers 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 thaI she overheard and was able to express emotion and intent, Ms.
Loveman also observed that Student was anenllve during Circle time, was able to choose
books to look at and knew thaI the book was supposed to be read page by page. Student also
appeared to understand the routines In the classroom, and did not have difficulty transitioning
between activities in the class or from classroom to playground. Ms. Loveman did not make
any recommendations in her observation notes concerning placement or services for Student,
20
Ms Loveman observed Student at Student's home for an hour and forty-five
mmuteson April 19,2007 Ms. Loveman observed that ST1.1dent 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 inronnation and demonstrated an extensive and varied vocabulary as it related to a
dinosaur book. Ms. Loveman noted that Student at times did take a lot of tIme to respond 10
questions, but that Student's expressive languagc did include the use of adjectIves and
pronouns. She noted (as later confirmed by Ms Reise) that Student's ~erbal exp~ession was
significantly more spontaneous at home than at school Ms. Loveman s observallon notes of
Student al home did notlllclude any recomrn~ndations concerning placement or servIces for
Student.
10
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21
After receiving Dr Schreibman's letter, a~ well as the observations ofMs
Loveman and Ms. Reiss, Ms Nest discussed Dr Schreibman's rccommclldations with both
Ms. Lovemlll1 and Ms ReIss, as well as with Dlstnct 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 ~e vel of prompting Student was receiving
at Ihe school, as observed by ~s, Loveman. Ms, ReIss, and Dr. Schreibman. While Ms. Nest
and the other staff members discussed supports and services Student was presently receiving,
and what possible supports and semces they each believed Student needed, they never
discussed or compared progrnm costs, and never discussed whether the District should refuse
to consider continuing Student's placement at Hanna Fenichel. Ms. Nesl did not direct any
of the staff members to take a partIcular pOSitIOn on placement nor did she direct Ihal they
refuse to consider a placement al Hanna fenlchel.
22.
Coyne also prepared a progress report regarding Student, dated May 1, 2007,
in anticipation of Shldent 's annual JEP. The report recommended Ihal 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 edUl.:al10n be In n fully
included general education class rather than In a SDC, In dlrec! ~ontradiction to the
recommendatIOn made by Dr Schreibman
23. Studenl's mother agreed with Coyne's recommendations. Since they were
contrary to the recommendation of Dr SchreibmlUl, who Student's mother knew to be a well
known authority on autism, Student's mother became concerned about tIle confllCIs in the
two recommendations and how the District would react to the recommendatIons made by
Coyne, She was very concerned that the Districl would not consider Coyne's
rCtommendations and that the District would refu~e to conSider placing Student at Hanna
Fenichel for Ihe upcoming school year, She therefore telephoned Jane Whitney, her
educational consultant from the Regional Center, and aske
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Schreib~an's recommendation that, Student be ~Iaced In the District's SOC Ms, Nest told
Student s mother that she agreed With Dr. Schreibman's recommendation for a SDC
placement although she was not specific during thiS conversation as to why she agreed with
It. Th,~ prompted a diSCUSSion between the two about the concept of placemen t in the least
restnctlveenvlronment, and the opinIOn of Student's mother that an inclUSive placement was
more approp~late for Student. M,~' Nest commented that she wlUlted the fEP meeting to be
non·adversanaland they snould agree to dIsagree" Ms, Nest ended the conversation by
Slating that lfthere \Vas no agreement at the IEP meeting the parties could meet afterward
and perhaps try to media te their ditferences Ms, Nest did 110t discuss what opinions other
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 placemenr at Hanna Fenichel. She called Ms, Whitney to
VOice her concerns and, ultimately, wrote 10 the District's Superintendent to express her
concem that the District had predetermined Student's placement for the following school
year, The Superintendent never responded to the lener Ms, Nest did not discuss options for
Student's placement with the Supenntendent
27
Concerned about the tenor of the conversations between Student's mother and
Ms. Nest and the concern of Student's mother that the fEP meeting would be a charade, Ms.
WhItney contacted Ms Lovernan to sel up a meetmg prior to the scheduled IEP meeting,
Ms. Loveman agreed that a meeting would be helpful to try to restore truSl and confidence
between Student's mother and Ms Nest. Ms. [~overnan 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 Lovernan, Ms,
Ryder, and Ms Nest. Student's mother expressed her concerns about the District following
Dr Scnreibman's recommendations and concerns that the District would inSISt that Student
an\:nd the Distr;<:t's SDC the following school year According to Ms Whitney, Ms Nest
was defensive about the District's programs and her stalTand stated that she wanted to
ensure ~lat Student's mother did not criticize the stalTor their programs during the YEP
meeting the next day. However. Ms. Nest also listened to what Student's mother had to say
and did not state that she had been directed by her superiors to refuse to consider anything
other than a DistTlct placement for Student Nor did Ms. Ryder or Ms. Lovemen express an
opinion at this meeting about the benefits or disadvantages of any particular placement for
Student. The meetmg did not resolve any or discord between Student's mother and Ms. Nesl
nor did it alleviate any of the concerns Student's mother had that the District had
predetermined Student's placement for the upcommg school year.
29
The JEP team meeting took place as scheduled on May I 1,2007. Present at
the meeting were Student's mother, Coyne & Associates ABA supervisor Jessica Komeder,
Hanna Fenichel school Direclor Sarah Hillier, viSion specialist Amy Nangel, and Student's
anorney Maureen Graves AJso present were Regional Center educational consultant Jane
Whitney, District school psychologist Sharon Lavernan, Child Development Center Director
12
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Suza~ne Blackwood,7 speech and language pathologist Lisa Ryder. behavior specialist Reise,
Dlstnct Director of Pupil Servlc~s Mary Ellen Nest. District preschool SDC teacher Tracy
Allison and OCCuplitlollalrheraplst Karen Peterson Dlstnct corlsUl!ant Dr. Laura Schreibma
Joined the meeting about an hour after It started
n
30.
The team reviewed Student's present levels of performance (the review had
begun during the previous meeting on February 16, 2007) and Student's goals. Student's
mother had preViously met With Ms. Ryder, the speech and language pathologist, to draft
spee~h and hUIguage goals The vision specialist had not been able to observe Student prior
10 thIS IEP meettng and wanted to do bOth the observation of Student and specific vision
assessments of her, to which Student's mother agreed There was no disagreement between
the members of the IEP team regarding Student's present levels of performance, the
significant progress Student had made during the school year. or what Student's goals for the
next year should be.
31.
The IEP team spent a considerable amount of time durin g the meetin g
reviewing Coyne's progress report of Student and the observations of Student by Ms. Reise.
Ms. Loveman. and Dr Schreibman. Hanna Fenlchel DireclOr 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 Srudent needed In order
to ma~e 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 school year.
Ms. Reise and Ms. Loveman discussed their obsen'ations 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. Schrei bman arrived at the meeting, the team focused on her report
and recommendations Dr Schreibman was concerned that Student was still exnibiting
perseverating ~haviors. For example, she had observed Student's tixation with one lype 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 SOC, although she anticipated that Student would
, The Child !)eyelOpmenl Center (CDC) IS a seml·autonomous unit within the District II IS a self.
fee·for.serYlces preschool open to lhe publiC There IS no requirement thaI 8 student must be 8 DIHrlct
r~ldent to all end the COC COC employees are D'slrlct emrrovec~. although the CDC IS funded from sludent
el\l'ollmen\ fees The DlstllC!', general educallon preschool clCl.5ses ale In the CDC. The lJ,SITrCl'S preschool SOC
clas,es, however, are operated outside the CDC lJJ1der direct DISITlcl control ChJldIen With speCial education
eligJhillty whose lEP teams place them :n a CDC CIRSS do not h~ve 10 pay lhe enroJlm~n\ fees
SUpporting
13
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~oon be IIbl e ,to transi,tlon t? a general education class If It had
II
Page 15
small number of students in
It. Dr SchreIbman dId IOdlcllte, nowev,er, thaI she believed a possible placement for Student
could be a combinatIon of the Districts SDC and the Hanna Fenichcl class
33
Dr Schreibman's comments prompted a long discussion between the IEP team
members a~ut the benefits and drawbacks of both the District's SOC classroom and the
H~nna Femchel classroom, Unfortunately. at the time of the IEP meeting, no one from the
District had been able to obse"'e the four-year-old cIlIss at Hanna Fenichel where Student
would attend the following school year was she to be placed then:. Ms. Hillier discussed the
differences between the three-year-old class and the four-year-old class: students anended
the latter five days a week rather than two days a week. and the four-year-old class was less
pillyobased and focused more on kindergarten readiness than did the three-year-old class.
34
There was a marked disagreement between the panies as to the import of the
observations of Student by the District obse"'ers. Ms. Loveman, Ms. Reise. and Dr.
Schreibman believed that the behaviors they observed of Student at sch 001 were signi ticant
and could best be addressed and extinguished in a SDC setting, although they did see many
ofthe benefits of the Hanna Fenichel classroom, Ms. Reise specifically discussed the
benefits ofcombining a structured classroom during the first ponion of Student's day with an
inclusive classroom for the second half of her day Conversely, Student '5 mother, her
attorney, the Coyne representative, Ms. Whitney. Ill1d the Hanna Fenichel Director. all
believed that Student had demonstrated signifIcant progress during the year. They believed
that Student'S interactions with peers was Increasing, that she was reqUlnng less prompting
from her aides, thllt 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 IE? team agreed on Student's goals
However, the JEP team did not reach any decision regarding Student'S educational placement
for the next year lind did not spend more than inCIdental time discussing Student's need for
continued ABA therapy. The District did not make an offer of placement and services at the
meeting. Rather, the team agreed that the District would submit a wrinen offer of placement
and services for Student [0 her parents after the meeting. based upon the agreed-upon goals
and objectives. rather than meeting in person Illter
36.
Based upon advice oflegal counsel, the District decided to hold another
formallEP team meeting to present its offer of placement and services to Student's mother
ratherthan to submit the offer by mall. 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 Lovema~. Ms. Blackwood, Ms.
Ryder, Ms. Allison, Ms. Nest, and Jonathan Read, artorney for the Dlstncl No one from the
team invited Dr. Schreibman to the meeting.
14
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37.
After discussion of fhe need to complete Student's vision assessment, Ms.
Nest revIewed the lEP notes from the pre~lOus meeting. The team then reviewed the speclttl
factors page of th.e lEP documen.t. and revIewed the accommodations and supports that
Student requIred In a classroom In order to access her education. The team then discussed
Dr. Schreibman's recommendations for a more structured classroom placement, such as the
District's SDC In comparison to the recommendations made by the Coyne representatives.
Student's mother pointed out that rhere was no dispute between the paT1les that certain
interventions should take place to redirect Student's mappropriate behaViors. Rather, the
dispute concerned In what type of setti ng Illese interventIons should occur.
38.
The District then made its otTer of placement and services, which Ms. Nest
presented. The District made Its offer based upon the Input of Dr, Schreibman, the
observations of Ms Loveman and Ms. Reise, Coyne's progress report, and inplit from
Student's mother and educatIOnal consultant. Based upon all discussion and review of all the
reports, the District otTered a placement to Student. The otTer consisted of placement of
fltudent for two hours in the morning in the District's SDC on 11s preschool campus for four
days a week. Student would then transition to a District general education preschool class.
where she would spend two hours a day, four days a week, accompanied by a one-an-one
aide. The District also otTered to provide Student with one-an-one ABA therapy at the
District school site for two hours a day, five days a week. The District also otTered Student
two 45· minute sessions a week of speech and language therapy, one 60-minute session of
grolJpsocial 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 lind five typically developing children so that Student would be educated wllh
typical peers for most of her day.
39
The District's offer differed from the otTer made to Student tile 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. !t provided for a one-on-one aide to accompany Student
In the general education class The otTer also included a group social skills class that the
District had not otTered the previous year The District's otTer took into consideration the
recommendation of its consultan~ Dr. Schreibman and statTmembers Ms. Loveman and Ms
Reise. that Student required the structure of a SDC for at least part of her day. Jt also took
into consideration the recommendations of Student's mother, the Coyne representatives. and
Ms, Whitney, that Student was ready for inclusion in a general educalion setting, The offer
did not consist of a filII placement of Student in an SOC; rather, the District based its ofTer
upon consideration oCal1 recommendations concerning Student. District stafTsincerely
believed that they considered a II ill put and considered all of SIud en!' s needs, and believed
that DIstrict classrooms could meel those needs!
I
The DI&lflCl's offer of speech and language services, CX:ClJpaltOnal therapy consul131lon. and group SOCial
skills seSSion,
IS
nol 81 issue
15
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40
Although Ms Nest's comments during her conversatIons with Student's
mother apparently contributed to the tension between the paTties, the weIght of the evidence
does not support Student's contention that the DlstrICl predetermined Student's educational
placement Ms. Nest may have had her own idea of what was appropriate for Student, as
each team member, including Student's mother, may have had. However, there is no
evidence that Ms. Nest's superiors directed her to offer a specific placement or to refuse to
9
consider Hanna Fenichel. Nor does the weight of the evidence support an inference that Ms.
Nest pressured her staff to make a specific recommendation or to refuse to con sider any
placement, including one at Hanna Fenichel The team spent considerable time at the rEP
meetings revlcwing all recommendations, heanng everyone's comments, considering Ihe
benefits and drawbacks of each type of place men t, and di sc ussi ng Student'S needs. TI1 e
Distnct made its offer based upon all these conSideration, nol on a preconceived notion of
what Student needed.
41.
Especially credible was the testimony of school psychologist Ms. Loveman.
By the time she testi tied at the hearing, Ms Loveman had retired. Therefore, any bias or
loyalties that may be argued 10 influence statTmembers 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 rEP meetings or any reason 10
color her testimony at hearing. ff anything, her long-term personal relationship with
Student's family would argue for an inference thaI Ms. Loveman would be more apt to want
to skew her recommelldations toward the desires of Student's family
42.
Ms Loveman, however, gave credil7le testimony that her recommendatIon that
Student requi red a SDC placement for at least a portIon of her school day, was based upon
her observations of Student as corroborated by the observation s of Ms. Reise and Dr.
Schreibman, Ms Loveman specifically stated that the District's offer was not
predetermined. 'me weight of the evidence supports this contention with regard to the
District's ofTer 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
made its olTer of placement. 'me fact that Ms Nest met with different staff mem bers to
discuss their observations and a possible recommendation for STUdent does nOI lead to the
conclUSIOn that the District as a whole had predetermined what the placement should be.
FIrst, not all District fEP team mem bers attended the meetings. Second, the purpose of the
meetmgs was to dISCUss the different observations staff made of Student in preparation for
As prnlou~ly ,taled, Hanna Fenlchel I~ not a certl(led "IPS Howeyer, thcre was no merlllon by the
IEP meetings or IClllmony by D1S~lCt st6(( at the hcaTing that tne lack o( Nf'$ statU$ was the
re~on th~ District tlid not o((er 10 place Studenllhere
9
DIIUICI Bt any o(lhe
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the IE? meeling ThIrd, the evidence indicales that District team members did not a/l
initially have the s~me recommendation for placement and that II District did not develop a
consensus concerning placement for Student untJlafter the IEP meeting held May II, 2007,
The fact that the Di strict did not agree with Student's request for placement at Hanna
Fenlchel merely reflected that the parties had a good faith disagreement regarding the
appropriate placement, not thatlhe Districl predetermined Student's pro(Xlsed placement and
was not willing to consider her mother's request
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 meamngfully in the IEP process The District leam members fully considered all
comments and recommendations at all IE? meetings these individuals attended, They all
asked questions, gave their opinions, voiced theIr concems, and gave general input to their
belief that Student did not belong in a 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 Districl prevented Student or her representatives from meaningfully panicipating 10 the
JEP process,
45
Furthermore, the weight of the evidence does not support the inference that the
decisIon 10 offer a District placement rather than a placement at Hanna Fenichel, or any other
private school, was the result of a District-wide poltcy against private placements, Likewise,
Sludent ofTered no evidence that any District administrator or policy-maker higher up the
school hierarchy than the DIstrict IEP team members was dictating placement decisions for
special education students or for Studenllll particular, Nor did Student present any evidence
that cost factors were the driving force behind the placement offer made by the District. In
sum, the only tangible evidence that Student presents to support her predetermination claim
is 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 otTer Student a placement
at a private preschool does nol compel the conclusion that the offer was predetermined.
46,
Student has failed to produce persuasi\le evidence that the District
predetermined her educational placement prior to the June 13,2007 IEP team meeting. No
procedural violation occurred
47.
The llJ1el lysis conceming the District's otTer to Student of ABA therapy for 10
hours a week at Ihe District school 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 rneetings 'O indicates that there was meaningful discussion of Student's need for
Intensive OTle-on-one ABA therapy and discussion betweell the parties as to where the
thempy should occur, The parties specifically discussed the recommendations made by
10
The ALl llslened to the full recordmg or both mec!lngs
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Coyne. Student's mother stated that Coyne recommended that Student continue to receive a
total of30 hours a week of ABA services." She clan lied that the ABA services at home
~ould significantly decrease.the f~lIowing school year while there would be a corresponding
Increase In school ABA servIces since the time an ABA aide would accompany Student to
school would increase.
48.
In response \0 the concerns raIsed by Snlden t's attorney and by her mother
District school psychologist Sharon Loveman stated that she felt Student was ready to ha~e
her discrete trial training moved from the home to school. There is no evidence that the
District attempted to foreclose Student's mother or anomey from voicing their opinions or
concerns about what they considered appropriate for Student's ABA therapy and no evidence
that discussion was stifled To the conlrary, Student's mother spellt considerable time
voicmg her opinion as to what she thought was proper level and type of services. Although
Srudent's mother also voiced a strong opinion at the IEP meeting that the District had
predetermine(! Student's ABA services, the weight of the evidence does not support this
contention. District statT gave reasoned e)(planations to Student's mother as 10 why they felf
Student's ABA services should be moved from the home to school There is no compelling
evidence that the recommendation to so was based on a District policy against in· home
services or that school officials higher up in school hierarchy had instructed either Ms Nest
or other school starr that in-home servIces shou Id 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 e)(pressive and bet1er
grammatically at home Both noted to the rEP teRm that Student's social skills and responses
to her envIronment were stronger at home than at skill. In addition, both believed that
because Student's skills were stronger at home and that because she was not generalizing her
skills from home to the school environment, the better course of action was to provide
Studenl's ABA services at school.
50.
The core of the disagreement With regard to the ABA services at the rEP
meeting therefore was where tile services should be dell vered and by whom The District's
ofTer of 10 hours of one~on-one ABA services corresponded substantially to the 12 hours
Student'S mother stated that Coyne would be providing based upon Coyne's
recommendation. The District listened to the arguments advanced by Coyne, Student's
mother, and Student's anomey that ABA services be <:ontinued in Student's home. There
simply was 8 disagreement as to whether in-home services were necessary to meet Student's
n~s. That the District was not persuaded by the arguments advanced by Coyne and
Student's mother and attorney does not mean that the District predetermined that it would
only otTer ABA services at the school site.
51.
The weight of the evidence therefore fai!s to support Student's c
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at the J~ne 13,2007 IEP team meeting and or made thc offer without considering Ihe input of
Student s mother or the Coyne representatives There was thus no procedural violation of
Student's right to a FAPE.
Adequacy of Ihe District's Offer of Placement and ABA Sen1ices
52,
A school district provides a FAPE to a student if it designs its program or
placement to address Ihc student's unique educational needs and provides a program and
services reasonably calculated 10 prOVIde some educational benefit to the Student in the leasl
restrictive environment. A school district is also reqlllred to provide a student with special
needs a program, including support services, designed to address the child's unique needs,
rrthe school district's program met the substantive factors, then it provided a FAPE. even if
the student's parents preferred another program and even if his or her parents' preferred
program would have resulted in greater educational benefit to the student than the program
offered by the district. The district's program must provide some educational benefit; it need
nol maximize the student's potential. 12
Studtml's Unique Needs
53
The parties do not dispute that Student does not have weaknesses in the area of
cognition, where assessments IOdicate that she is in the normal range of mental development
for her age. Rather, Student's weaknesses are in the areas of socialization and expressive
language. She continues to demonstrate traits typIcally associated with autism, She stili
needs prompting to focus on topics and still needs prompting to interact with other children;
Student does not always engage with other children spontaneously in the classroom,
Studenl's expressive and pragmatic language In the classroom is still below normal
developmental level although her language is much more expressive when she is conversing
in her home Srudent still requires the assistance of a one-on-one aIde in the classroom to
prompt Sl\ldentto follow instructIons, to redirect her actiVIties or inappropriate behavior, and
to assist her in inillating interactions with peers. Sl\ldent also continues to show anxiety
when she is in large group settings such as restaurants and church Sunday school, requi ring
family support and assIstance to assiS1 her in functIOning in these environments.
Inadequale Offer ofIntensnJe ABA therapy Se",ices
54. Student contends that she requires approximately) 7 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. Srudent contefld5
I~ Contrll.J\ l1u~ standlll'd with the applicable slandard under Calt(orJllO'S Lanlerman Developmental
DISabilities Services Act (Weir & ln~l Code. § 4501 et seq) Which slate~ thai "11 IS the rnlc:nI of the Legls/ature that
regional centers ILlml pe~ons wllh developmenlal diubdltle~ nnd their families In lecU1ing those services !II1d
supports whIch ma>uml ze opponunilits and chOIces for" Vlng, working, learrung. !II1d recreal1ng In the community"
(Weir. & Inst Code, § 4640 7 )
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the program sho~ld have been offered in her home. which is a more naturalistic setting for a
four-year·old child She also contends thaI the program offered to her IS not scientifically
based and supported by peer-reviewed research as requIred by the reauthorized IDEA. The
District contends thaI Student has not met her burden of proving that the program it oITered
will not provide alleast 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, Chat
Student needs some 17 hours a week of one-on-one ABA services, Indeed, Jessica
Komeder,IJ 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 of30
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 Sfudent participated in A classroom,
and abollt 12 hours of intensive ABA therapy 10 Student's home. With regard to the nllmber
of ABA hours needed by Sf\ldent, the Distnct's otTer Iherefore is very close to that
recommended by Ms. Korneder. The DistriCt's otTer Includes ]0 hours of one-on-one ABA
therapy and one hou r of a facil itated group social skills session (which Studen t is not
presently receiving) for a total of 11 hours. There is simply no evidence that Snldent will not
be able 10 access her education or will be unable to progress in the curriculum with one less
hour of services that thaI recommended by M~. Korneder. While additional hours of ABA
certainly might provide additional benelil to Student, the Districlls not reqUired to maximize
her potential.
56. Additional suppot1 for the District's positIon that its offer of 10 hours of ABA
is sufficient to meet Studenl's unique needs is found In the dcx;umentary and lestimonial
evidence Student provided in support of her contention thaI she does not require placement in
a SDC, As will be discussed ill more detail below, Student presenled many witnesses whose
testimony all corroborate the facl that Student has progressed extraordinarily well in the two
years she has been receivins intensive ABA therapy Her autistic-I ike beha viors have
significantly decreased, and her receplive and expressive language abilities have increased.
Student's mother wrote in the JEP noles that Student often uses complete sentences to ask for
things, 10 comment on her surroundings, to sing songs, to communicate with others and to
describe how she is feeling. Student'S mother also noted that in a year's time, Stlldent had
b«:ome another person Her autistic-like behaviors had been extinguIshed to a good extent,
Studenl inleracted with peers in and out of school, and she could now engage 10 long
sessions oflmaginalive play. Ms Woodall corroborated the observations of Student's
mother, sUlting at hearing Student had made extreme progress. Dr. Joseph Morrow,l ~ one of
11 Ms. Komeder hilS II MaSlers degree In Behavl<1r Analysis from Westem Michigan Unlver~ily. and IS a
Board Cen/fled BehaVior Malys\ She has been working 31 Coyne for Bbou\ IWO years and IS one of iL~ Regional
DlreclOI1l Ms Komeder hR~ almost :0 yeal1\ of e~penence working In the arc a of ABA. w,th ,ncreaslng
responsibility over lhe years [or superVISion of ABA progran\s
\. Dr Morrow obtained a Doctorate degree Irom WashIngton Slale Unlvem1y in experimental
psychology He hilS spent over {ony years worklng in the area of behaVior analySIS He IS a professor emeritus al
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Studenl's e"lperts who observed her in her home, stated that he might not be able to identify
Student as a child With auhsm If not told 10 advance of her diagnosIs TIlese comments about
Student do not lead to a conclusIon that she requires more than 10 hours of ABA therapy In
order 10 obtain benefit from her education
57
There is more dispute as to where Student'S ABA services should take place.
Dr. Bailey, Il Dr. Levin, 16 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 ase They believe that Student needs to learn at horne and then generalize this
knowledse to other settings, such as school. Student points to literature shoWing that autistiC
sludents received the mosl benefit from in-home programs, However, as discussed above,
the standard is not where a srudent :will benefit the most from a par1icular 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 II finding that Srudent 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
thaI Student's language abilities and social interactions were much more in evidence at home
than al school. Ms. l.oveman noted that Student was much more spontaneous and
independent. Because of the dlscrepallcles between Studenl's demonstrated abilities at home
as compared to school, Both Ms. Loveman and Ms, Reise believe, and the eVIdence
substantiales, that Student will benefit from moving her ABA instruction to the school
settmg. The evidence supports the Dlstnct's contention that Srudent will benefil froln
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 II seneral education Kindergarten for the 2008·2009 school year
59.
Stude"1 also contends that the ABA program olTered by the District is nol
scientifically based or supported by peer-reviewed research first, the Distrtct in its closing
bnefcorrectly points to the Uni ted Stutes Department of Education's commentary to the new
federal regulations implementing the reauthonzed IDEA. That commentary states "[T]here
Csliforrtla Stale University, S~rementD. a licensed psychologist, and a Board Cenlr,cd Behavior Analyst Dr
Morrow rounded, and IS presently the plesldent of. Applied 8ehavior Consultanu, a cenlr,ed NPS ror students with
aullsm, which also provides ABA therapy 10 children IItld ~odd'ers
II Dr Bailey received her l)oClOrale degree In CIInICRI psychology and developmental psychology from tlle
L'nivmity of Southern Califomia In 200" She is presently an aSSIStant professor at Cahromla Slate UnIversity,
Fullerton She IS nol a licensed psychologist of Board Certified BehaVIOr Analyst, although she has signifleunl
Ir8Jnlllg and educallon In rsychology and learning dl\~hill\lcs
" Dr LeVin, Coyne's ClmlCal Dlreclor, recclvcd hiS [)oct orale degree In Clinical PsyCholosy from the
Slate Universllyo[ New York In 1996 He has a sIgnl[lcanc ~moun[ 01 experIence working With aU!Jstlc chIiclren,
and' number of publications to his credll
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is nOlhing i~ 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 rAPE. The final
decision about the special educallon and related servIces, and supplementary aIds and
services that are 10 be provided 10 a child must be made by the child's fEP Team based on
the child's indivIdual needs" (71 Fed.Reg 46665 (August )4.2006).)
.60,. Mor~ si8nitic~ntJy, th~re .IS no evidence that the District proposed using
behaVIoral instruction that differed sIgnlficnntly from that provided by Coyne. District
behavior specialist Jodi Reise credibly testified that the behavior program that she supervised
was based upon tradliional 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 tnal training principles
61.
Dr. Schreibman corroborated the use ofdifTerent methodologies to influence a
child's behavior, stating, as did Dr. Levin, that different methods work with dilTerent
children. Dr. Schreibman, who was a student of Dr 0 Ivar LovaasI' at the University of
California, Los Angeles, was a knowledgeable and persuasive witness who credibly testified
that researchers are constantly exploring new methods of behavioral analysis in order to
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 stra tegies that have been researched and validated, all of which prove
beneficial to some child ren These strategies include discrete trial training, pivotal response
training, Illcidental teaching, and the picture exchange communication. Dr, Schreibman
explained thlllt ABA is a research technology, not a specific treatment. Rather. there are a
number oflreatments 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 Irial training, and thlll others do not respond to
pivotal response tralOm8· Therefore, a program must be developed to respond to the ch ild' s
specific needs, Dr. Schreibman is acquainted with Ms Reise and believes that she is capable
ofirnplemenfillg an appropriate behavioral intervention program for Student
Student provided significant evidence that the ABA intervention program she
63
receives from Coyne is excellent and that the service prOViders, in particular Ms. Komeder,
are extremely well trained and qualified. Dr Schreibman agreed that Coyne prOVIdes a
quality service. Student's evidence also demonstrated that Coyne's program is more
structured and beller supervised than the District's ABA program, that it keeps beller
records. and that its supervisor, Ms, Komeder, has stronger educational qualifications and
more behavior intervention experience than does Ms, Reise. However, the facl that Student's
" Dr L.ovaas IS the alJlhor or Lhe seminal study or ~ehanor analysIs In aIJ1Isl'c children. "BehavIoral
Treatmenlsnd Normal FidUC3\lonalsnd [nlc/lec!ual Functioning ,n Young AullSliC Chlldlen" (Journal or Consulting
and Clinical Psychology (I ?8 7) )
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present ,program may be bener than the one offered by the District does not mean that the
District s program will not provIde Student wIth a FAPE The District lleed not provide the
best program; II only need provide a program that offers more than minimal 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 S\IPports 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 interven tion. Student has
presented no compelling evidence that she will not receive some educational benefit from the
IQ·hour program offered by the District. She has not met her burden of proof to Show that
the ABA program otTered by the District is not based on appropriate ABA principles
Student has therefore failed to meet her burden that the District's ABA program denies her a
FAPE,
Special Day Class offered hy D,strict
65.
Student contends that the SDC at the District's preschool does not incorporate
adequate ABA principles, fails to include peers with compallble instructional needs. and is
not the least 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 SOC teacher Denise Gomez all testified that the composition oCthe
SDC was approximatelY seven special needs children and five typically developing children.
The class was specifically designed 10 integrate typically developing children with the
special needs children so th9tthe special needs children could model their behavior on the
typical children and so that t he typical children could learn to appreciate and learn from the
special needs children. There was very little eVidence presented aboulthe disabilities and
instructional levels of the 5pecial needs children presently enrolled in the SOC. However,
even assuming thal they al\ have a lower cognitive level and more deficits than does Student,
tne inclusion of the typIcal peers would balance the compositIon of the class Indeed, Dr.
Schreibman noted that when she observed the SDC she had dlf'ficulty determining which
children had identiGed disabitities and which were typically developing children, Nor has
Student demonstrated that Student would not obtain educational benefit from the SOC class
merely because her instructional needs are not identical to every child in the SOC class. The
weighl of the evidence presented by the District is that the SDC teacher leac hes to the needs
ofevery student in her class and that, therefore, the SDC class would be able adequately to
meet Student'S instructional needs
67.
Student neX1 posits that the instruction in the SDC does not mcet her unique
needs, as it does not incorporate ABA principles into the structure of the class. Student also
questions the abilities of the SDC teacher, Denise Gomez. Ms, Gomez has a bachelor's
degree in communications from San Diego State University and an early childhood spetial
education credential from the same school She is bettcr educated than are most general
23
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education preschool teachers She has had classes In ABA techniques, inclusion training,
and ~urse work In autlsm. Ms. Gome, recognizes that each child is unique, and that some
special needs children need more structure and visual cues than do others. Ms. Gomez
stressed that the strategies she uses in her classroom as those consistent with traditional
behavior intervention methodologies. She focuses on skill acquisition and reduction of
inappropriate behaviors. Ms. Gomez is familiar with discrete trial training and knows how to
keep data with regard to the discrete trials. !-Ier classroom incorporates ABA methodologies
such as dIscrete tnals, behavIor management, structuring of the class 10 meet the needs of the
students. The classroom also incorporates sensory Integration strategIes. Ms Gomez is
willing and capable of implementmg Student's goals and objectives In her classroom. The
evidence thus demonstrates that Student's concerns about Ms. Gomez's capabilities are
unfounded. Further, the weight of the evidence does not support Student'S belief that the
SDC would not adequately address her educational needs.
68.
Finally, Student asserts that the SOC is not the least restrictive environment
(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 tile
nature of the disability. or its severity, education in a reglilar class cannot be achieved
satisfactorily even with the use of supplementary aids and services Four factors are
evaluated and balanced to determine whether a placement is in the LRE: (I) the academIC
benefits of placement in a general education setting, with any supplementary
paraprofessionals and services that might be appropriate; (2) the non-academic benefits of a
general education placemen t, SUC~l as language and behavior models provided by non
disabled students; (3) the negative effects the student's presence may have on th e teacher and
other students in the general education sertlOg; 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 on Ii general education teacher or the other students in a
general education classroom. To the contrary, when the IE? meetings were held in May and
June of2007, Student had spent approXImately Iline months in a general education classroom
without incident. Sharon HillJer, the Director of the Hanna Fenlchel school. who observed
Studenl a couple of times a we~k in Student's preschool class. commented to the IE? 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
Student's aide. AJthough the observations of Student by District witnesses Dr. Schreibman,
Ms. Loveman, and Ms Reise all noted that Student did not often initiate interaction with her
classmates lllld still had deficits in her language skills, none observed any negative impact by
Student on either her teacher or classmates
70.
AdditionallY, there is little eVidence that Studen1 would not benefit from
incl\lSion in a general education classroom. The observations by Ms. Loveman, Ms. Reise,
and Or. Schreibman did not focus on the benefit Student was receiving in her general
education classroom at Hanna Fenic hel Rather, their observations focllscd on the fact that
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Student was not initiating social interaction without prompting. However, upon questioning
from Siudent's counsel at ~eanng. all agreed that a teacher or an aide in a general education
classroom could easIly redIrect the type of autistic-like behaviors, which the three had
obse~ed in Student. All parties, including thc District, noted the positive aspects of
inclusion, including the fact thai typIcally developing peers would provide excellent roll
models for Student with regard to her language and SOCIal skills. For these reasons the
District's offer proposed that Student spend half of her classroom time in a general'
education.
71.
The focus of the inqu iry with regard 10 whether the SDC is the LRE for
Student therefore is on factor onc· the academic benefits to Student of a general education
class as contrasted with the academic benefits to her ora SDC In syntheSIS, the inquiry is
whether Student was ready for full inclUSion III II general educfltion class when her fEP team
met or whether she would have been unable to participate in the academiC environment even
with support and accommodations.
72.
TIle District correctly points Oul in its closing brief that much of the
testimonial evidence that Student presented at hearing of her readiness for fu II Inclusion
came from witnesses who had not observed Student al the time the rEP team met Therefore,
their observations could not be relevant to whether Student was ready at that tIme. Dr
Morrow observed Student JUst days before the hearing, some six months after the rEP team
meeting. Dr. Bailey observed Student In late September and early October 2007, four
months after the IEP meeting. Dr. Patricia Schneider-Zioga ll also observed Studen1 mere
days before the hearing in this maner. Although their testimony was useful in presenting lU1
overview of Student's present levels of language Wld social interaction, it was not relevant to
whallhe parties knew, or should have known, when developing Student's IEP six months
before the hearing took place Four to six months I~ a sisnificant amount of ti me in the life
of any four-year-old child, it l~ a particularly slgnlflcant amount of time for Student as the
evidence indicated she has consistently made remarknble progress over bncfperiods
73
The DIstrict believes, based on the recommendations of its expert, Dr.
Schreibman, and staff members Ms. Loveman and Ms. Reise that Student was nOl ready for
full inclusion at the time 1he IEP team met. The Districl argues that Student needs to be in an
environment where she leams independently to navigate a classroom and where activities are
teacher-directed rather than student-directed as preparation for the structure of a typical
Kindergarten closs. Dr Schreibman, who IS well known In the field of autism, specJfically
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-
I'
I'
Dr Schnelder.Zloga has a doctorate degrec IlngulSllCS from the Unll'erS\ly of California at Los
Angeles She IS presently a full lime lecturer at California ~\atc 'Jnlver.nty. r'"llerton
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trained SDC teach?r could focus on eXlinguishlng Student's inappropriate behaviors.
increasing Student s language skills, and teaching her navIgate a classroom without an aide
74.
However, the District's arguments in favor of the SDC placement improperly
focus on the whether Student's access to her education would be maximized in that setting
rather than on rocuslIlg on whether Student would be able to progress academically in a
general education classroom. The inquiry is not whether the SOC is best for Student.
Rather, the inquiry is whether Student should be removed the general education environment
because the nature and seventy of her disabilities IS such that education in regular classes
with the USe of supplementary aids and services can not be achieved satistac torily. Therefore,
even ifit is not the best academic sening 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 lEP team did not have enough evidence
when it met in May and June 2007 to determine that Student cOlild be satisfactorily educated
in a general education class is not persuasive Hanna Fenichel Director Sarah Hillier
indicated the progress Student had made in her prescl1oo1 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. Komeder, and the Coyne progress report,
corroborated Ms Hillier's observations Coyne noted that Student had achieved many of her
IE? goals earlier than projected, had made significant gains in the areas of speech and
language, social interaction skills, generalizahon, and compliance. As of March 2007,
Student was beginning to comment to, respond to, and initiate interaction with her
classmates. Coyne noted that while Student still required an aide to assist in the acquisition
ofpeer·interaclion skills and to support her anending to and compliance with her teacher's
directives, for a large part of the school day Student was indistinguishable from her peers, In
addition, the weight of the evidence supports Student's contention that she did not need the
structure of the SOC classroom In order to obtam benefit from or access her ed'.cation. The
evidence showed that Student does not need tightly controlled activities, adult initiation ofall
her social activities, or a visual schedule, the core components of tile District's SOC, in order
10 benefit from her education.
76.
Dr. Schreibman. Ms. Loveman and Ms Reisc based their recommendations
for a SOC placement on their observations of Student at school However. the total amount
of time spent on those observations was approximately Ii ve hours. Conversely, Ms. Hi 11 ier
and Ms. Komeder 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 leaming to Interact with peers Additionally, the
main rallonale 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 educatlon, could be eXlinguished.
The District offers 110 legal authority that supports the contention that el(tinguishing nOll
interfering behaviors is, or should be, the basis for a child's placement in a SDC Student has
therefore met her burden of proof that she can, at {he least, make satisfactory progress in a
26
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general education cla~5room. and has therefore. met her burden of proof that a general
educallon classroom IS the least restnctl ve en vlronment for her. The District' 5 offer to
Student of placement in a SDC class for a por1lon of her school day therefore substantively
denied her a FAPE
General Education Classroom Component of the Dlstricl 's Offir
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 wjth the
early morning SDC placement, the offer required Student to transition through too many
areas of the school campus, through too many different activities, a.nd to have to interact with
too many different classmates.
78.
AIIIEP team members agreed that full time placement in a general education
class at the CDC would be too overwhelming for Student. Dr Schreibman specilically stated
in her observation repor1 that the CDC classroom, which she believed consisted of 24
children instructed by two teachers, was too much for Student to handle, She recommended
lhat any inclusive classroom for Studen~ even after she transitioned from the recommended
SOC, should only contain a few students Dr. Schreibman believed that the Hanna Fenichel
class, orone with a similar amount of students, would be an appropriale inclusion model for
Student.
79.
In fact. tJle total number of classmates with whom Student would need to
interact in the CDC class was actually closer to 30 since a different core groLlp of students
attended class on different days The structure orthe CDC class in late morning during the
tirne 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 par1icipsted in opening activities and circle time.
During the time Student would be participating in the general educlltlon class. the children
were divided into two groups of 12, with one group engaging in pre·academ ic type aClivities
in the classroom and the other group participating In outside activities centering on gross
motor skills. The two groups switched after approXJmately twenty minutes. The children
who made up each group changed on a daily basis. '9 After these activities, the 24 children
reunited in the classroom for activities such IlS singing and story time before engaging in
closing day activities and transition to lunch and playground time 10
" DI$lnct witnesses dId Indicate that they could possibly arrange for l,e group composilion to remain
conslant, however, the District did not COnrm" thiS by memorialiZing il as 8 part of Ihe wnnen [EP offer
10 In fllCl, the 01 stnel' s offer would rcqulre Studcnt \0 have \0 ,nlcract wllh ~bou\ 42 children each d~y.
counllng the chIldren from the SOC and Ihc children In the BMernl education class Th\\ dlTeelly contradiCts Dr
Schteltlman's recommendation thai an inclUSIon cla~s for Studenl orUy contain a small amourl of <;\i\3~maleS
becBIlSC she did nO\ belieye Student was ready
\0
handle \nler~Cltng With a large numbcr of peer~ al a one lime
27
of
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80.
Neither District expert Dr. 8ch reibman, the Coyne representatives, nor
Student's family believed that Student was ready to handle a classroom with the number of
students in the SOC class Indeed, the IE? document references the obsen'alion of Student's
mother that Student still demonstrated anxiety In large groups and thallhe Student still had
difficulty at church and in Sunday school due to the large groups there While the District
stafTappeared truly to believe that Student would be able to handle the large group of peers
found at the CDC, there does not appear to be allY concrete basis for this belief. Ms. Ryder
testified thaI she believed the CDC classroom was appropriate for Student; however, as
Student's speech and language provider, Ms Ryder had only observed Stlldent in a one-on
one sening or interacting wlIh perhaps one other child. Ms Loveman and Ms. Reise also
believed that Student could easily adapt to the large amount of children in the CDC setting,
but they had only observed Student at school for a total of 3 hours between the two
observations. ll On the other hand, the beliefofthe 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
8\
AdditIonally, there appears to be no concrete basis for the District's position
that Sl\ldent 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 II SDC class because
she in not engaging enough with her classmates and is dependent on her aide for initialing
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 transitiomng between two groups ofsrudents in two very different classes.
The District'S arguments in support of Its position are unpersuas1ve II
82
The AU finds thatlhe Student has met her burden of proof that the CDC
classroom was not an appropriate instructional set1mg for her and therefore the District's
offer substantively denied her a FAPE.
Failure
(0
Provide StaffAdequately Trained (0 Implement Srudent's IEP
83.
Student's contends that the District staff IS not adequately trained. Although
not specified in her stated issues for l1earing. 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 SOC leacher, could implement Student's IEP. As
discussed above, Studen t has not met her burden of proof in either regard.
II Although 810n8 lime family rnend. there IS no eVidence (hat Ms Lovemen had observed Student outSIde
the context of hcr formal observallons In preparation for Ihe IEP meellngs
II CDC Director Sur.anne Blackwood and CDC leacher Jody Gallagher discussed the general educatIon
program and c1a$HoomUI the CDC Their accounts credibly suppOr1 the DistriCt'S POSitIon lJ1allhc Dlstnct ofeers a
qua/llypreschool education. ThiS DeclslDnJust rinds thallhc program did not meet the needs Df the student In thiS
cll3e
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.84
Denise Gomez has a bachelor's degree,. a certi~cate In early childhood special
education, and experience, al.belt ~o( extensive, teaching special needs preschool childrell.
S~e also has the support of aides In her classroom as well liS qualified special education
Dlstnct staff shou Id she need to consult about Student or the implemen\.ation of Student's
lEP. Although not a Board Cel1ified Behavior Analyst (BCBAl, Ms. Reise has extensive
eXJX1nence with autistic children both as a credentialed special education teacher and as a
supervisor at a NPA, which offers ABA services similar to those of Coyne. ~ the DistTict
points out in its closing brief, there is no legal or ethical requirement that a BCBA supervise
an ABA program; Dr. Morrow Indicated that his NPA often hires supervisors who are not
Board certifIed. Student has therefore failed to meet her burden thal District staff is not
qualified to supervise her ABA program or that District staff could not implemem Student's
IEP.
Appropnareness ofrhe Dlsrrict 's Assessments and Reimbursement ofStudent 's ft"E
8S
A parent has the right to obtain an !F:E if the parent disagrees with a district's
assessment. When a parent makes a request Jor all fEE, a district must either fund the fEE 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 cond uct assessmen ts The tests and assessment materials
must be validated for the specific purpose for which they are used, and musl be selected and
administered so as not 10 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 pro"ided by the parent. Reassessment ofa child may
occur if a district believes that the child's needs warrant reassessment or if the child's parents
orteacher requests reassessment Unless other requested, reassessment shall not occur more
than once a year, but must occur at least every three years. As pan of any reassessment, the
lEP learn and other appropriate professionals are required to review eXIsting assessment data
or observation data for the student and receive input from the student's parents to establish if
the team needs furtJler 1n format Ion to detennine Ihe student's conttnued eligibilIty for special
education services and what his or her present needs are
86.
The District administered a multidisciplinary initial assessment to Student in
the spring of2006, in preparation for her IniliallEP. The assessment included an evaluation
ofSludent's health and development. The District also administered a Iransdisciplinary 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 Inventorres
87.
Student'S IEP team met on February 16, 2007, in order to start the process of
fonnulating her fEP 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 fonnal, standardized assessment was not necessary in order to determine Student'S
29
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present academic achievement. Instead, the IE? determined that Student's SDC teacher and
a Distric~ behavior specialist .would dctennine Student's academic achievement through
observatIons of her and a revIew of her records. likewise, the team determined that a
formal, standardizedassessment in tne area ofcogOltive functioning was nOl necessary.
Rather, the team desIgnated the school psychologist to observe Student and review her
rewrds to determine Student's needs In this area The team also agreed that the District
would contract with an outside evaluator who would also conduct an observation of Student
and report on her findings The consultant and District sratTmembers were also going to
observe Student's social adaptive behavior The team ultimately determined that a more
fonnal speech and language assessment was needed for Student as was more formal vision
testing. These laner formal assessments were eventually completed. They are not at issue in
this hearing
88,
As discussed above, school psychologist Ms, Lovemen, 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 meelings held May II 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 lit Hanna Fenichel for the 2007·2008 school year,
They also informed Ms. Nest that they were going to obtain lEEs for Student because they
specifically disagreed with the recommendallons of the District's olltside consultant (Dr,
Schreibman) that Student required placement in an SOC, Student's parents infonned Ms.
Nest that they would be seeking reimbursement from the District of the lEEs, indicating that
they were considering lEEs by an educational psychologist, a speech and language
pathologist, an ABA expert, and an expert on educational inclusion for srudents with autism.
Srudent's anorney confirmed to the Distnct's attomey that Student was seeking an lEE at
public eKpense. 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 lEE. 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 Bnd 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 BDoctorate degree in psychology, Dr
Bailey is not a licensed psychologist. She is not licensed to administer standardiled tests to
adults or children, and she did not do so with Student Rather, Dr. Bailey spent numerous
hour5 observing Student in Student's horne, school, and church. numerous hours reviewing
Student's records and researching issues concerning Student's autisn1, and numerolls hours
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PBreparing her extensive report concerning her findings and recommendations of Student. Dr.
ailey's bill, and the reimbursement 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 observahon sand
r~ommendatjons 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 falls 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 st\ldents That Student disagreed with what Dr. Schreibman observed and
recommended does not result in finding that she is entitled to an lEE. 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 assessmen~ with standardized testing,
was warranted for her, she should have made such a request. She did not. Nor did Student's
parenL~ obtain an lEE that met the legal standard of being adm inistered by someone
competent 10 perfonn the assessment, since Dr Bailey is nol licensed to administer
standardiZed tests and did not, in facl, administer any. She, like Dr. Schreibman, only
observed Student Student fails to demonstrate in what way Dr Bailey's observations,
review, and researcn, 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 lEE that met the legal standards indi~ated in paragraph
85 above. The evidence thus supports the District's contention thaI its observations of
Student were appropriate, that there is no specific standard by wh!c~ to measure
.
observations, and that Student's lEE met a standard that the District 5 observations did not
meet. Student is therefore not entitled to reimbursement for the costs of Dr Bailey's
servi~s.
Appropriate Remedies
96. A school district may be required to reimbun;e a parent for the costs of private
school tuition and other related sel"'ices if the district failed to make a FAPE available to the
child. Reimbursement is an equitable remedy thai is determined 011 the facts of each case.
As determined in Factual Fi ndi ngs 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 leasl restrictive
environment. and by offering her a placement In the District's CDC general education class
which failed 10 meet Sludent's unique needs.
97.
Reim~ursement fo~ the cost of a private school may be reduced or denied if the
parents dId not provIde notIce, pn~r to removing the child from the public school, that rejects
tnc proposed placement. states their concerns. and expresses the Intent to enroll the student in
a private school. As determined in Factua) Finding 89, Student's parents provided the
DIstrict the required notice prior to unilaterally placing her at Hanna Fenichel.
98.
There is no statutory prohibition against an AU ordering reimbursemenl of a
student's eltpenses incurred at either a private school Or a private service agency that has not
been certified by the State of California However, California law specifically prohibits ll1l
ALJ from rendering a decision whose result is the placement of a special needs student 10 a
nonpublic school or a nonpublic agency that has not been certi fred by the State of California.
While the parties do not dIspute Ihat Coyne is a certified NPA., Student admits that Hanna
Fenichel is not a certified NPS.
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 amoun~ of reimbursement to be ordered: the effort parents
expended in securing alternative placements; the availability of other more suitable
placements; and the cooperati ve or uncooperative position of the school district or of the
sludent'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 hilS made while
attending that school Nor does the DIstrict point to any equitable reasons 10 deny
reimbursement to Student's parents of the l\Jition they have paid for Student's schooling at
Hanna Fenichel Nor is there any evidence of allY other suitable placements for Student.
The ALJ has found that the District's olTerofplacement denied Student a rAPE as its SOC
did not constitute the LRE for Student and its CDC general education class was not
appropriate for her. Therefore, Student is entitled 10 reimbursement of her tuition for the past
school semester at Hannah fenichel.
101. Student also requests prospective reimbursement for costs at Hanna Fenichel
for the remainder of the 2007·2008 school year The AU is prohibited by statute from
ordering prospective placement at the school since it is not a certified NPS. If the 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 arc 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 AU finds that Hanna Fenichel is an appropriate placement for Student and that there is
no evidence in the record of any other placell1entlhat would be suitable for her. The ALl
also finds that there IS no eVidence that Student's parents did not adequately cooperate with
the DIstrict during the IE? process and [hal the eVidence supports the assertion of Student's
parents that they were reqUIred to prepay a fLlII year's tUition Therefore, the AU finds
Student's parents are entitled to reimbursement of the full year's tuition at Hanna Fenichel,
for $6, 100,
102. Student further requests that the ALI order retroactive and prospective
payment of the costs of the Coyne one-on-one ABA aide that Student needs in order [0 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 AU 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 shalilherefore order that the District provide an appropriate aide to
Student in her class at Hanna Fcnichel. The aide shall have been specifically trained In ABA
principles and specifically trained to work with autistic children. Should the District decided
10 use an aide other than one from Coyne. the District wiil arrange for an IE? team meeting
to detennine an appropriate plan to transition Student from her Coyne aides to the aide(s)
selected by the Di slTic l. Zl
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
contention of Student's mother that she is qualified to provide ADA services to Student, or to
anychild in need of such services. After Student was diagnosed with autism, her mother
began researching treatments and theories C011Cerning autism Student's moth er later
obtained a graduate certificate in AB A from Pennsylvania State University that qualities 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 ill 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 facte:; of thIs case
Additionally, since the AU 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 add itional hours of ABA services provided to her
by her mother in order for her to receive a FAPE. Finally, the AU notes that implementation
of ABA concepts in an autistic child's home after the child's parents have received training,
appears \0 be one of the foundations of ABA therapy. Indeed. Dr Morrow testified that the
II In any case, Student hu not presenled eVidence of what the Cosl of thc Coyne one·on·onc aide IS or If
Sl\ldenl's parents have paid any or all of lhe pa.sl costs of thaI sCrvlces
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one of the key components of the ABA program his NPA had begun with toddlers is the
conceplthal the chIldren's parents would receive training so that they could continue the
ABA therapy the child received in Dr. MOlTow'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
spenl supplementing Student's ABA therapy.
CONCLUSIONS OF LAW
Burden ojProoj
I.
Student, a."i the petitioning party seeking relief in issues A( I) th rough 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. Wenst (2005) 546 U S. 49 [126 S.Ct. 528, 163
L.Ed.2d 387])
Did the Dlstrie! predetermine its offer ojplaeemenr and related services in its IEP offer jor
lhe 2007·2008 school year.?
2.
Pursuant to the !ndividuals with Disabilities In Education Improvement Act
(IDEJA), effective July 1.2005, and California speclI~1 education law, children with
disabilities have the TIght to a fAPE that emphasiles specII11 education aIld 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
standa.rds, include an appropriate school education In the state involved, and conform the
child's IEP. (20 U.S C. § 1402(9).)
'0
3.
TIlere are two parts to the legal analysis of whether a school dIstrict com plied
with the IDEA The first examines whether the district has complied with the procedures set
forth in the roEA. The second examines whether the IEP developed through those
procedures was reasonably calculated 10 enable the child [0 receIve educationaj benefit. (Bd
ojEduc. oj/he Hendrick Hudson Central Sch Dis! v Rowlp.y( 1982) 4S8lJ S. 116 fl 02
S.C\. 3034, 73 L.Ed,2d 690] (hereafter Rowley).)
4.
The JDEA requires that a dlle process decision be based upon substantive
grounds when determining whether the child received a FAPE. (Ed Code, § 56505, subd.
(l)(J).) A procedural violation therefore only requires a remedy where the procedural
vlolalion impeded the child's right to a FAPE, signdicantly 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.SC § 1415(f)(J)(E);
Ed. Code. § 56505, sllbd U)', Rowley. supra. 458 U.S. at pp. 206·07', see also AmandaJ II.
Clark CounfySeh. Dlst, (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' oppommity to partIcipate In the IEP formulation process are
insufficient to Supp0r1 a finding that a p\lpil has been denied a free and appropnate public
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education. (W.O. v, Bd. ofTrustees ofTarget Range Sch. Dlsl. No. 23 (9th Cir, 1992) 960
F2d 1479, 1483 (hereafter Targe'Range),) Procedural errors during the IE? process are
subject to a harmless error analysis, (M.L.. et al.. v, Federal Way Sch. Disl. (9th Cir. 2004)
394 FJd 634,)
S.
In determining the educa~ional placement ofa disabled student, the public
agency m~st ensure that the p!acement IS b~sed on the child's IE? (34 CFR. § 300.116,)
PredeterminatIOn or a student s placement IS a procedural violation that deprives a student or
a FAPE in those Instances where placement is determined without parental involvement ill
developing the I EP. {Deal v. Hamilton Caunry Bd of£duc, (6th Cir. 2004) 392 F.3d 840
(hereafler Deal)', Bd ofEduc, o/Township High School Dist. No.2 II v. Lindsey Ross (7th
Cir. 2007)486 FJd 267.) However, merely pre-writing proposed goals and objectives does
not constitute predetermination; nor does prOViding a wrinen offer to a Student before her
parents have agreed to it. (Doyle v, Arlington COWTty Sell Bd. (E,D Va. 1992) 806
F,Supp.1253, 1262.) Indeed, a district has an obliga,tion to make a fonnal written offer in the
IEP that clearly iden ti ties the proposed program. (Union Sch. Di.Tt, v Smilh (9th Cir, 1994)
I5FJd IS19. 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
needs; IDEA does not empower parents 10 make unilateral decisions about programs funded
by the public. (See, N,R. v. San Ramon Valley Unified Sch. Dist. (N D.Cal 2007) 2007 U.S,
Disl. Lexis 9135; Slama ex reI. Slama y Indep. Sch. Disl No. 2.580 (D. Minn, 2003) 259 F.
Supp.2d 880, 885; 0 'Dell v. Special Sch Dist (E, 0 Mo 2007) 47 IDELR 216) Nor must
an IE? conform to a parent's wishes in order to be sufficient or appropriate. (Shaw v. Dis'. oJ
Colombia (D.D,C. 2002) 238 F.Supp,2d 127. 139 [lDEA does not provide for an
"educalion .. ,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 sen'ices for Student at its preschool SDC and
preschool general education class, Although Ms Nest expressed concerns to Student's
mother prior to Ihe 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 otTer to place Student Although
Ms. Nest discussed the upcoming IE? team meeting with other District staff members, she
did so only to obtain an understanding of what each had obsen'ed of Student and what each
might be recommending as a placement.
8,
There is also no evidence that Ms. Nest cllher directed District IE? team
members to refuse to consider a particular placement or that she anempted to influence their
recommendations in any way. Unlike the circumstances in the Deal case, the Student
presented no compelling evidence that the District here had a,PoliCY ot"refusing ~o place
special education students at private schools or gIve students Ill-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 DeC/I, the District here provided many 0ppol1unllies for the DIrector of [he privale
school (Hanna Fenlchel) and the pTlvale ABA provider (Coyne) to otTer their opinions and
recommendations. Contrary to the circumstances in Deal, District IEP team members not
only permitted, but also encouraged, Student's mother and her ed ucational consultant, as
well as her attorney, private school Director, and provide ABA providers, to contribute to the
disc~ssio~s con~ernin8 pla~ement and services. There was no evidence of District attempts
10 stlfledlscussJon concerning placement at Hanna Fenichel. To the contrary, a review of the
IEP meetings indicates thaI many different IEP members and consulllUlts 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 meeti ngs that it
would never consider a private school placement for Student
9,
Pursuant to Factual Findings 12 through 46, and Conclusions of Law 2
tnrougn 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 DistTlct encouraged discussion ofa placement at Hanna Fenichel as
compared to a placement in its classrooms None of the CMes cited above or cited by Student
in her closing briefs stand for the proposition that a district is required to offer a placement
fhat is suggested by a student, or that the faIlure to accept a student's suggested placement
means, ipso/acto, 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 vi olated her rights under the IDEA with regard to her
classroom placement.
Did the District/ail to consider all relevan' data concerning Studenr, including input/rom
her parenls, he/ore making an offer a/placement and related services?
10.
In order to fulfill the goal of parental participation in the fEP process, the
school district is required to conduct, not just an IEP meeting, but also 8 meaningful IE?
meeting. (Targe'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,
auends the rEP meeting, expresses her disagreement regarding the IE? team's conclusions,
and requests revisions in the IE? (NL. 1'. Knox County Schools. (6th Cir. 2003) 3I 5 FJd
688,693; Fuhrmann Y. East Hanover Bd. o/Educ. (3d Clr. 1993) 993 F,2d 103],1036
lparent wno has an opportunity to discuss a proposed IE? and whose concerns are considered
by the IE? team has participated in the IEP process in a meaningful way]) "A school
district violates IDEA procedures if it independently devclops an IEP, without meaningful
parenlal participation, and then simply presents the IEP to the parent for ratification." (Ms.
S. ex reI G v. Vashon Island School Distr;c, (91h Cir 2003) 337 f.3d 1115. 1\} I.) The test
is whether the school district comes to the IEP meeting with l1Jl open mind and several
options, and discusses and considers the parents' placement recommendations and/or
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concerns before the IE? learn makes a final recommendation. (Doyle v. Arlington County
School Board, supra, 806 FSupp at p. 1262; Denl. supra, 392 FJd at p. 857.)
II.
Based upon Factual Findings 12 through 46 and ConclUSions of Law 2 through
10, Student h~s 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 infonnation concerning StUdent, with
regard to her placement or services. A review oflhe rEP team meetings held on May 11 and
June 13, 2007, support a finding that there was significant discussion by all aNendees
concerning the benefits and drawbacks ofdifTerent placements for Student. Student's mother
and ABA providers gave long and detailed descripllons of their views of Student's
capabilities as well as what they considere
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services to enable them to benefit from such specially designed instruclion (Ed. Code. §
56031). Related services may be referred to as deSIgnated Instruction and services (DIS)
(Ed. Code, § 56363, subd. (a).)
.
I S.
Title 34 Code of Federal Regulations, pan 300.320(a)(4) states J EPs shall
a statement of the special education and related services and supplementary aids and
services, based on peer-revtewed research to the extent p'-aclicable. The language "to the
extent practicllble" regarding the usc 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 alllEP Team meetings to incl ude a focused discussion on research-based methods or
require public agencies to provide prior wnnen notice when an rEP Team refuses to provide
documentation of research-based methods, as we believe such requirements are unnecessary
and would be overly burdensome" (71 Fed.Reg. 46663 (August 14,2006»
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. 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. ofEduc,
(E.D.Tenn 2006) 2006 U.S. Disl LEXIS 27570. pp. 51·57; Rocklm Unified School District
(OAH, May 25,2007) 48 IDELR 234. 107 LRP 31811,20 US.C. § 1414(d)( I XIV); 34
C.F.R. §300J20; Ed. Code, § 56345, subd (aX4).)
jncl~de
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. Srudent argues that she requires some 17 hours
of ABA therapy and th at the therapy must be provided jn 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 thai she requires 17 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 of25
to 30 hours of combined ABA services. Since Coyne provides an ABA aide to Student at her
pres<:hool for appro,umately J 8 hours a week. Its recommendation for onc-on-one intensive
ABA therapy amounted to only 7 to J2 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 schoo', 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 sening. Fmally, as stated In factual
Findings 59 fhrough 64, and Conclusions of Law'S. St\ldcnt has faded to meet he~ bU~den of
proof that the District' s ABA program is not based upon methodologies that are sClentllically
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based and SUppOl1ed 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 Coyn.e providers. ar~ more highly trained, are better at record keeping, and may be
bener SUpervised than DIstrICt staff does nol SUppol1 a cont/usion that the District's program
does not meet legal standards. The District's offer of 10 hOUTS of ABA therapy 10 be
provided at the District's school sile therefore did not deny Student a FAPE.
Did ,he District's offer of placementfor a portion ofStudml 's school day In a special day
clew deny her a FAPE because it does not incolporate adequate ABA principles, fails to
include peers with compatible instructional needs, and is not the least restric';ve
em/ironment for Student?
17.
To determine whelher a school district substantively offered FAPE to a
student, the adequacy of the school district's proposed program must be determined
(Gregory K.. supra. 811 F. 2d at p. 1314) Under Rowley and state and federal statutes, the
slandard for determining whether a district's prOVIsion of services substantIvely and
procedurally provided a f APE involves four factors: (J) the sen'ices must be designed to
meet the student's unique needs; (2) the sen/ices must be reasonably designed to provide
some educational benefit; (3) the servi ces must conform to tne lEP af; writ1en; and, (4) the
program offered must be designed to provide the student with the foregoing In the least
restrietive environment
18,
Both federal and state law requIres school districts to provide a program in the
LRE 10 each special education student (See 34 C.F.K §§ 300 I J 4/ e1 seq.) A special
education snldent must be educated with nondisabled peers "[1]0 the maximum extent
appropriate," and may be removed from the regular education environment only when the
nature and severity of the student's disabilillcs ;s such that education in regular classes with
the use of supplemenlary aids and services "cannol be achieved satisfactonly." (Ed. Code.
§§ 5600\, subd. (g), 56345, sub,!. (a)(5), 20 LJ.SC. § 1412(a)(5)(A); 34 CF.R. §
300.1 14(a)(2Xi), (ii).) A placement musl foster maxjmum interaction between disabled
students and their nondisabled peers "in a manner that is appropriate to tJle needs of both"
(Ed. Code, § 56031; see also 20 U.SC. § 1412 (aX5XA)~ Rowley. supra, 458 U.S. at p 181,
fn. 4; Poolalt' v. Bishop (9th Cir. 1995) 67 FJd 830,834.)24
19,
When determining whether a placement is In the leasl restrictive environment
(LRE), fOllf factors must be evaluated and balanced (l) the academic benefits of placement
in a mainstream setting, with any supplementary paraprofessionals and services thaI 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)
H The lerms "reguhll education" And "general education" mean the same lhlng ~ ! I relates to the IDEA,
and are onen used mlerchangeably by the parties hm
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337 F.3d II J5, 1136-) J 37; Sacramento City Unlj1edSchool District v. Rachel H (9th Cir
1994)14 FJd J398. 1404 (hereafter, Rachel
If»
20,
As stated in Factual Finding 66, and based upon Conclusion of Law 17
St~dent has fai led to meet her burden of showing that the SOC proposed did not meet' her
umque needs because the class was composed or students whose instructional needs were
incompatible with those of Student. As stated in Factual Finding 67 and l>ased upon
Conclusion of Law 17, Student has also failed to meet her burden of proof that the methods
of instruction in the proposed SOC class failed to meet her unique needs.
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
is clear thai Student could. at the very least, be satisfactorily educated in a general education
classroom as long as she had aide support. There is linle evidence that Student would not
benefit from full Inclusion in a general education sening 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 H8I1na Feniche1. 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 Siudent was disruptive in class or that cost factors influenced the
District's determination that Its SOC was the proper placement for Student. As stated in
Conclusion of Law J 8. the IDEA, the CalifornIa Education Code, and federal regulations
place a heavy emphasis on educating special education students 111 the regular education
environment, even If supports and accommodations are required. Removal of 0 special
education child from the general education should occur 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 J 8 note, full inclusion is not
possible or practical for every special needs student. Student'S experts acknowledge as
much. Dr. Morrow runs an NPS in which he enrolls only special needs students. Ms.
Komedertestified thai she recommends SDC placement for students where appropriate. Dr.
Bailey testified that she too would indicate if a SDC placement is appropriate; in fact, Dr
Bailey was herselfll student in a SDC. However, in 81udent's case, she has persuasively
shown that a SDC is not the LRE for her. Therefore, the District's offer of placement in its
SOC substantively denied her a FAPE.
Did lhe District's offer of placement in a {)iSlricl general education classroom for a portion
o/Sllldent's school dcry deny Irer a FAPE because il ;s nor an appropriale i~JStrucfional
seiling/or her and because Ihe placement creales a school day Ihat includes 100 many
transitions between classroom seflings?
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23
As stated in Factual Findings 77 through 82, and based upon Conclusion of
Law 17, the eVidence supports StlJdel1~'s contention that the District's general education
placement lit Its CDC was not approprtate for her. The District's el
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Code. §§ 56320, 56321 )H The request for an Initial assessment to see if a chi Id qualifies for
special education and related services may be made by a parent of the child or by a slBte or
I~al,ed\lcational agency, (20 U,SC. § J4J4(a)(1 XB),) After the mitial assessment, a school
dlstnct 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, 5ubd. (a)(2).) 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 perfonn assessments and reassessments according to
slnct statlltory guidehnes that prescribe both the content of the assessment and the
qualifications oftne 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.$,C § l414(b)(3XA)(i); Ed. Code, § 56320, subd, (a).) The assessment Inaterials must
be valid and reliable for the pllrposes for which the assessments are used, (20 U.S.C. §
14\4(bX3XA)(iii); Ed. Code, § 56320, subd, (b)(2),) They must also be sufficiently
comprehensive and tailored to evaluate specifiC areas ofeducational need. (20 US.C, §
1414(bX3)(C); Ed, Code, § 56320, subd. (c).) Trained, knowledgeable and competent
district personnel must administer special education assessments. (20 U,S,C. §
1414(bX3XA)(iv); Ed. Code. §§ 56320, subd. (b)(3), 56322,) A credentialed school
psychologist must administer psychological assessments nnd individually administered teste;
ofintellectual or emotional fUllctioning. (Ed Code, §§ 56320, subd. (bX3), 56324, subd,
(8).) 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
lind service providers. (20 USC § J 414(c)( J XA)', Ed. Code, § 56381, subd, (bX J ).) Based
upon such review, the district must idelltify any additional information that is needed by the
IEP team to determine the presem 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(cX\ )(8); Ed Code, § 56381, subd,
(bX2).) The district must perform assessments that are necessary to obtain such information
concerning the student (20 U,S.C. § J414(~X2); Ed, Code, § 56381, subd, (c).)
28.
The procedural safeguards of the IDEA provide that under certain conditions a
student is entitled 10 obtain an lEE at public expense (20 U.S.C. § 1415(bX 1),34 C.F,R. §
300.502(aXl); Ed. Code, § 56329, subd. (b) [incorporating 34 C.F.R. § 300,502 by
reference]; Ed. Code, § 56506, subd. (c) [parent has the right to an lEE as set forth in Ed,
Code, § 56329; see also 20 U.S,C, § 1415(d)(2) [requiring procedural safegua~ds notice to
parent' to include information abollt obul1ning all lEE!,) "Independent educatIOnal
assessment means an assessment conducted by a qualified examiner who is not employed by
II The Cederal code uses the lenn "evaluallon" InsteAd oC the wm "assessmenl" used by CalifornIa law. bill
the two terms have lhe same meanmg for these purposes
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the public age~cy responsi?le for the education of the child in question." (34 C.F.R. §
300.502(aX. 3X1).) To obtam all lEE, the student must disagree with an assessment obtained
by the publIc agency and request M lEE. (34 C.F.R § 300502(bXl) & (b)(2).)
29.
The provision of a~ lEE is not automatic. Code of Federal Regulations, title
34, part 300.~02(b)(2). provlde~, In relevant part, that following the student's request for an
lEE, the public agency must, wIthout unnecessary delay, either:
(i) File a due process complaint to request a hearing to show that its
assessment IS appropriate; or
(ii) Ensure that on independent educational assessment is provided at public
expense, unless the agency demonstrates in a hearing pursuant to §§ 300J07
through 300.5! 3 that the assessment obtained by the parent did not meet
agency criteria
(See also Ed. Code, § 56329. sub,j (c) [providing that a 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
services of Dr. Bailey. Except for its speech and language assessments and vision
assessments, the Dist rict chose not to re-assess Srudent using formal, standardized tests in
spnng 2007. The law does not require 'hat it do ~o. 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 staNtory 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 Stlldent's contention that the
District's observations did not comply with evalualion and reporting requirements. No such
standards exist. In fact, the lEE oblained by Student did not include standardized tests either.
Dr. Bailey's lEE 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 ad minister
stal\dardi~ed tests. Student disagreed with what the District assessors observed and
disagreed with their conclusions and recommendations concerning Student's pla(:ement.
However, such disagreement does not support a contention that Student i::; legally entitled to
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an lEE, The weight of the evidence therefore suppor1s the District's contention that its
assessments were proper and Ihat Student IS not enlltled to reImbursement of her lEE at
public expense 16
Detennlnatlon ofRelief
32
The court has long recognized that equitable considerations arc appropriate
when fashioning relief for violations of the IDEA, (Parents o/Student W. \I, Puyallup Sch.
Dist" No.3 (9th Cir 1994) 31 FJd 1489, 1496 (hereafter Puyallup School), citing School
Committee ofBurlington v. Department 0/ Education (1985) 471 U.S 359. 374 [105 SCt.
1996J.) Compensatory education is an equitable remedy; it is not a contractual remedy.
(Puyallup School, supra, 3) F.3d at p. \497,) Relief is appropriate if it is designed to ensure
that the student is appropriately educated within the meaning of the IDEA. (ibid.) The
award must be reasonably calculated to provide the educational benefits that likely would
have accrued from specia 1 education services I he ~chool district should have su pplied, (Reid
ex reI. Reid\l. Dlstriet o/Colllmbia (DDC Cir, 2005) 401 FJd 5I(" 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 10 the child. (20 U,SC §
1412(aXIO) (CXii); 34 C F.R § 300. I48(c); Ed. Code, § 56175,) Factors to be considered
when determining the amount of reimbursement include the existence of other, more SUitable
placements, the etTort expended by the parent in securing alternative placements and the
general cooperative or uncooperative pOSItion oflhe school district (Ta,-get Range, supra,
960 F,2d at p. 1487; Glendale Unified Sch. Dtsl v. Almast, (C.D, Cal. 2000) 122 F.Supp.2d
1093, 1109.)
34,
Additionally, a student is only entitled to reimbursement of private school
tuition ifit is determined that the placement at the private school was appropriate for the
student. The placement does not have to meet the standard of 8 pUblic school's offer of
FAPE: it must, however, address the stlJdent's needs and prOVide educational benefit to him
or her, (Florence Cormly School Dist. l'. Carle,. (1993) 510 U.S. 7, 13 1114 S.Ct. 361, 126
LEd 2d 284] (hereafter C(lrter)~ Alamo He/ghts Independent Sen. Disl v State Bd 0/
Educallon(5th Cir, 1986) 790 F.2d 1153,1161: 34 CFR. § 300.)48,) Court decisions
subsequent to Burlington have also extended relief in the form of compensatory eduC8tlon to
5tudents who have been denied a FAPE. (See. eg, Lester Ii. v. K. Gilhool ,rnd the Chester
Upland School Dtsrricl (3d Cir 1990) 916 F,2d 865; lvl/ener v. State o/Missourl (8th CiT.
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
16 The AL] notes thaI the bi II for sel"'ices tendered by Dr Bailey IS extraordinarily high The ALl
reviewed a siJmpilng of aDO\l1 IS pnor Call romls SdJ1l1nlstrallVC declSlons In which thc Student's parents requested
reimbunemem for an mE lhe AU did not rind any relmbursemenl order for over $~,500
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designed to ensure that the Student is appropriately educated within the meaning of the
IDEA." (Puyallup Schoof. supra, 31 F3d at p, 1497 )
35.
There
IS
broad discre.tlon to consider equitable factors when fashioning relief.
(Caf1er, supra, 510 US. at p. J 6) fhe conduct of both panies 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 vlolattons must rely 011 an individualized
assessment, just as an IEP focu ses on the individual student's needs, (Retd ex reI. Reid v.
Dtstrici o/Columbla (DD.C. C~r, 2005) 40] FJd 516, 524.) The award must be "reasonably
calcula.ted to prOVIde the educa~lOnal benefits that lik.ely would have accrued from special
educallon services the school distrICt should have supplied in the tirst place." Ubid.)
36.
Therefore, under appropriate circumstances, a co un (and an ALJ) has the
discretion to award prospective relie f. However, in Cali fornia, the Education Code limits the
prospective relief that an AU may order. By statute, an AU may not render a decision that
results in tne 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 Stale of
California pursuanl 10 the Education Code (Ed Code, § 565052, subd. (a).)
37.
Based upon Factual Findings 68 through 82 and 96 through 100 and
Conclusions of Law l7. 18, 19, 21, 22, 23, and 32 through 36, Student is entitled to relief
based upon the AU's finding that the District's ofTer of placement ill its SOC and CDC
general education classes denied Student a FAPE. Hanna Fenichel met the legal
requirements of an a ppropriate placement for Student Nor is there any evidence that
Student'S parents unduly failed to cooperate in the IEP process. Srudent's parents are thus
entitled to reimbursement for the costs ofruition all-Janna 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
~o the full amount of tuition they have paid, il1 the amount of $6, I 00.
38.
However, as noted in Conclusion of Law 37, California statute prohibits the
ALJ from ordering that the District prospectively place Student at Hanna Fenichel and the
ALJ is not making such an order now. The AU's order thai 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 ofSludent 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 onc-on-one aide at school. As stated in Factual
Finding 10 I, however, Student is not entitled 10 her chOice of aide provider. Therefore, the
AU orders thatlhe District provide an appropriate aide to Student in her class at Hanna
fenichel. The aide shall be specifically trained in ABA principles and sJX:cifically trained to
work with autistic children Should the District decided 10 lise an aide other than one from
Coyne, the Districl will arrange for an IEP leam meeting to determine an appropriate 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 9S and Conclusions of Law 2 through
31. Student's request for reimbursement for the cost of Dr Bailey's services is denied,
41,
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
the law nor the facts of this case, Student cItes to no authority requiring a District to pay a
parent a salary for educating his or her child 8t home, Student cites to one case, Bucks
County Department a/Mental liealllvMental RetardaTion v, Commonwealth o/Pennsylvania
(3d Clr. 2004) 379 fJd 61, In which a court awarded a parent monetary compensation for
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 lind
another service provider to furnish services to her child, The court limited its holding to a
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 throllgh 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 beneftt from
her education. Student's request that her mother be reimbursed for providing supplement
t\i3A services is therefore denied. n
,to
ORDER
I.
Within 30 days of this order. the DIstrict shall pay $6, 100 to Student's parents
to reimburse them for the costs of lUitlon they paid to the Hanna Fenichel School
2.
Within 30 days of this order, the District shall provide a one-an-one aide 10
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 totontract with Coyne, the District shallarrangc for an IEP meeting with Student'S
parents and the District team members to detennine an appropriate plan for transitioning
Student from her present Coyne aide(s) to the aide(s) selected by the District. The oroer 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 lhis 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.
I' Student has not prOVided any Olner eVidence or l:oslS e)(pended by her parents ror Coyne sCTVlces She
has therefore failed to show enlltJemenllo any reimbursement olher than that ordered here Furthermore, since the
ALl hIlS found thaI DlStnct slaff" competent to prOVide ABA servlC'cs. Student is not entitled to relmpursemenl for
lhe costs of her Coyne one-on-one Bide ilt school
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3,
If Student wishes to receive intensive ABA services from the District, she
musl agree to the 10 hours of ABA services Btthe District school site, as offered in tne June
13, 2007 IEP,
4,
Student's other requests for relief are denied,
PREVAlUNG PARTY
Education Code section 56507, subdivision (d), requires that this Decision indicate
lhe eK1ent to which each party prevailed on each issue heard and decided in this due process
molter. pursuanllo lhls mandate, it is detennined that the Student substantially prevailed on
Issue I(D) and fully prevailed on Issue l(E), The District fully prevailed on Issues l(A),
1(8), l(C), I(F~ and Issue 2. The District minimally prevailed on Issue 1(0),
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 coUr! of com petent jurisdiction within ninety (90) days of receipt.
DATED: January 7, 2008
y~Administra Ive aw Judge
Office of Administrative Hearings
Special Education Division
47
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