ABA legal briefs

This set of legal briefs was contributed by attorney Mary Jane White. She wrote:

IDEA	"Individual with Disabilities Education Act"
IEP	"individual education plan", education and therapeutic services plan for child ages 3 to 22 (IDEA Part B)
IFSP	"integrated family services plan", service plan for child under age 3 (IDEA Part C, formerly Part H)
LEA	"local education authority", responsible for implementing the IEP
SEA	"state education authority", responsible for implementing the IFSP
IU	"intermediate unit", a regional agency or cooperative between the LEA and SEA
ALJ	"administrative law judge", the hearing officer
LRE	"least restrictive environment"
FAPE	"free appropriate public education"
ABA	"applied behavior analysis" (behavioral intervention, behavioral therapy, "Lovaas")
EYSE	"extended year special education", usually meaning Summer programming and services
SLP, OT, PT	"speech language pathologist", "occupational therapist", "physical therapist"

Last update 16 February 1999
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* LEA denied any obligation to reimburse parent for Part H period (issue not reached)

* classified preschool handicapped (before 1990 IDEA amendments adding autism as a federally mandated category)

SIZE OF CASE: 1 past school year + EYSE (Part H) + 1 school year + upcoming school year (Part B); 2 day hearing

* reimbursement issues for past years not addressed in this decision, but will be decided in a separate decision

* 1st Part B year: 10 hrs @ wk in a 6+:2 class + SLP + OT (which parents supplemented with private OT + SLP of which LEA was aware)

* behavior management (to be developed with input from consultant) + parent counseling (to address child's aggressiveness at home) + EYSE (to be developed nearer to summer) + willingness to add more weekly hours of service if regression occurs + outside behavioral consultation of 20 hrs @ yr with adjustment up on the recommendation of the consultant + close monitoring of program success (but less than daily data collection) + all the 1:1 instruction the child needs to be ensured by the LEA

* LEA blended approach rather than strict behavioral approach found appropriate for this child since he is not severely autistic

* LEA attempted to tailor-make a program of the individual child and retained an outside consultant to assist in on- going adjustments

* after only slow progress in LEA placement, parents retained counsel and did not participate in IEP process leading to contested IEP offer

* 2 days of due process hearing held and parents' expert testified, criticizing the then-contested IEP offer

* LEA presented a revised IEP during break in due process hearing, which addressed virtually all of parents' concerns, which parents' expert witness reviewed revised IEP offer and then testified as to continuing concerns; LEA responded with testimony to those concerns

* EYSE was judged under now-illegal regression-recoupment analysis until LEA added EYSE to offer mid-hearing

* LEA blended approach rather than strict behavioral approach found appropriate for this child since he is not severely autistic

* LEA was aware of supplemental private OT and SLP provided by parents and communicated with private therapists to assure consistency, while maintaining its level of services was appropriate

* LEA expected only slow progress from child, and only slow progress was made in LEA placement

* Dr. Jan S. Handleman, parents' expert Union Elementary School District, 16 EHLR 978 (SEA Ca. 1990)

AGE: 4 year old DIAGNOSIS: Autism by 11 of 16 medical criteria + ear tubes + moderate mental retardation

* qualification undisputed, but some LEA staff hesitant to label child autistic because of his young age and because he did not meet [all?] typical criteria of an autistic child

ABA: 40 hrs @ wk ABA/Lovaas at UCLA Clinic + 1 day @ wk of preschool integration + parent training 2x @ wk + weekly team meetings with the parent; program is year round

* LEA ordered to amend IEP to include placement of the child at UCLA ABA/Lovaas Clinic + 1:1 behavioral aide + integration into a regular preschool 1x @ wk + 5 hrs @ wk of parent training + EYSE + airplane transportation of mother, child and sibling to Los Angeles ($150-$250 @ person) at beginning and end of Clinic program, and for vacations to visit home

* LEA ordered to reimburse parents for UCLA Clinic tuition of $3,532.16 @ mo + $895.00 @ mo lodging + utilities in LA + transportation costs from clinic to home, from date UCLA achieved state-certification (a pre-Carter ruling)

* LEA ordered to reimburse parents for independent evaluation costs, since fact that parents sought it is an indication of their dissatisfaction with LEA's assessment which resulted in sparse data, and alternatively on Burlington grounds

* despite possible Ca. regulation suggestion a higher standard (previously construed by federal court to be = Rowley standard)

* LEA first placed child in preschool class for visually impaired 9 hrs @ wk + SLP + EYSE (for 2 mos) of 8 : 1 + 1 (aide visually impaired) + a 1:1 aide for child (initially refused by LEA, later provided); characterized by ALJ as "minimal services" for this child's needs

* LEA next proposed placing child severely handicapped classroom of 8 : 1 + 2, non-verbal children using sign

* after first 3 mos of ABA/Lovaas, LEA next proposed placing child in communicatively handicapped classroom, a highly structured preschool 17.5 hrs @ wk + behavioral intervention by an autism specialist including parent consultation (never accepted or implemented) (LEA staff admitted this would have taken some work to be an appropriate placement for the child)

* 1st IEP LEA and parents agreed to goals and objectives and first placement--visually impaired classroom

* 2nd IEP meeting 2 mos after initial placement with LEA claiming progress, but changed placement--to severely handicapped classroom; parents consented to goals and objectives but requested more intensive services

* child accepted at UCLA clinic and parents requested funding by LEA for UCLA placement; LEA refused on ground that child was no longer an LEA resident and UCLA was not state certified

* LEA SLP assessment verified child's remarkable improvement over last 3 mos at UCLA (disputed by LEA staff)

* IEP meeting reconvened with parents's ABA/Lovaas expert from UCLA, Dr. Tristram Smith who brought records and videotape of child's progress at UCLA, and eligibility was changed to "delays," with subclassification "autistic", PLEP was written, goals and objectives developed, placement recommended to be a highly structured preschool 15 hrs @ wk + daily integration opportunity + 1:1 aide, with no indication of frequency of 1:1 instruction, + behavioral intervention by an autism specialist including parent consultation; parents agreed to goals and objectives and PLEP, but objected to placement and methodology

* at hearing LEA staff claimed child made progress in LEA placements before entering UCLA

* LEA staff testified that it is accepted educational policy for preschool and kindergarten classes not to exceed 3 1/2 hrs @ day; longer program would tire this child (Ca. rules limit group instruction of this age group to 4 hrs @ day)

* in first 3 mos of ABA/Lovaas therapy child made developmental gains of 8-19 mos in various specific skill domains, per objective testing, performed before and after by UCLA evaluators

* child's residence found to be in LEA, since father continued medical practice, owns family home, votes and pays taxes in LEA while mother to whom he is married, without separation or divorce, and child are temporarily housed in apartment in Los Angeles during UCLA treatment periods on weekdays

* LEA estopped to deny child's residence in LEA since it conducted IEP meetings for child after child went to UCLA

* parents observed child failing to participate in LEA visually impaired classroom, even with 1:1 aide

* parents provided only last page recommendations of Dr. Siegel's independent evaluation to LEA, hiding diagnosis of mental retardation

* child regressed dramatically over Christmas break in ABA/Lovaas instruction (after IEP offer)

* evidence of child's continuing improvement in ABA/Lovaas admitted for times after contested IEP offer

* child seen repeated over time at home, in regular preschool by parents' experts

* some parents' experts reviewed LEA written program descriptions; others observed the LEA proposed placement

* UCLA Clinic became certified to provide special education at times after child's initial placement there

* UCLA uses college student therapists supervised by graduate students and Dr. O. Ivar Lovaas, a licensed psychologist

* LEA classroom teacher claimed progress, but admitted child played alone and participated voluntarily only in 1 parachute activity without 1:1 assistance as required by all other tasks

* parents' experts testified child needs 1:1 full time instruction to benefit at all from educational instruction and is not ready for group instruction

* evidence created largely after contested IEP: based on child's current achievements in a 1:1 intervention setting and the persuasive testimony of those witnesses who have expertise in autism and who had observed child most recently, ALJ concluded child required full-time, 1:1 assistance

* final IEP placement offer was admittedly an excellent program for preschoolers, but per parents' experts was not appropriate for this child as too distracting an environment for a this child's limited language and attention skills; also no evidence proposed teacher was trained to work with autistic children

* the evidence establishes that child must first learn appropriate behaviors, socialization, and communication skills in a 1:1 situation and then must learn how to generalize these skills into other environments

Union School District v. Smith and California Department of Education, 20 IDELR 987 (9th Cir. 1994); cert. denied ____ U.S. _____, 115 S. Ct. 428 (1994)

* any failure of the parents to turn over portions of a specialist's report cannot excuse the LEA's failure to procure the same information under 34 CFR Section 300.531. citing W.G .v. Board of Trustees, 960 F. 2d 1479, 1484-85 (9th Cir. 1992) [989]

* state standards that impose a greater duty to educate handicapped children, if they are not inconsistent with federal standards, are enforceable in federal court under IDEA [989]

* an LEA cannot escape its obligation under the IDEA to offer formally an appropriate education placement by arguing that a disabled child's parents expressed unwillingness to accept that placement

* the IDEA explicitly requires written prior notice to parents when an educational agency proposes, or refuses, to initiated or change the educational placement of a disabled child. See 20 USC Section 1415(b)(1)(C). . . .

"We find that this formal requirement has an important purpose that is not merely technical, and we therefore believe it should be enforced rigorously. The requirement of a formal, written offer creates a clear record that will do much to eliminate troublesome factual disputes many years later about when placements were offered, what placements were offered, and what additional educational assistance was offered to supplement a placement, if any. Furthermore, a formal, specific offer from a school district will greatly assist parents in present[ing] complaints with respect to any matter relating to the . . . educational placement of the child." 20 USC Section 1415 (b)(1)(E)." [990]

* attorneys fees and appellate fees are granted, case remanded to district court for determinations of amounts Delaware County Intermediate Unit # 25 v. Martin and Melinda K., 20 IDELR 363 (ED Pa 1993)

* parents entitled to rely on state review panel holding that IU IEP offer was inappropriate and IU estopped to deny parents' right to reimbursement per Burlington

AGE: 5 year old DIAGNOSIS: PDD-NOS per DSM-III, not Autistic Disorder ABA: 40 hrs @ wk ABA/Lovaas + 2 1/2 hrs @ wk of interaction with nondisabled students at school

SIZE OF CASE: ALJ hearing, state review panel, and federal district court bench trial; about 6 hearing days, total

* re: uncertified ABA/Lovaas therapists this is a pre-Carter case--Carter was in 4th Cir. with U.S. Supreme Court cert granted at time

* "Still, though Rowley clearly focused on the procedural aspects of the IDEA, the Supreme court did not espous[e] an entirely toothless standard of substantive review. Rather, the Rowley Court described the level of benefit conferred by the Act as meaningful.'" Polk v. Central Susquehanna Intermediate Unit 16, 853 F. 2d 171, 179 (3rd Cir. 1998) (quoting Rowley, 458 U.S. at 192), cert. denied, 488 U.S. 1030 (1989)." [365]

* "In Polk, the Third Circuit rejected the argument that any educational benefit obtained by a child could be considered meaningful.' Rather, the Third Circuit found that the legislative history of the IDEA, as well as Rowley itself, required educational benefits to be more than trivial or de minimis. See id. at 181-83; see also Board of Educ. v. Diamond, 808 F. 2d 987, 991 (3rd Cir. 1986)." [365]

* "This result stems from either, or both, of two premises. First, since mainstreaming is at issue in this case, the Third Circuit's recent decision in Oberti ex rel. Oberti v. Board of Education, 995 F. 2d 1204 (3rd Cir. 1993), places the burden of proof on the IU at least as to the mainstreaming issue. See id. at 1219 . . . . To the extent that this Court most consider issues other than mainstreaming, it could be argued that Oberti also requires placing the burden of proof on the school for all purposes. See id. at 1218-19." [365]

* 15 hrs @ wk + SLP + OT in Part H class for 1 mo, then a newly created 10 hr @ wk LEA TEACCH program--state review panel and district court found inadequate to meet child's educational needs

* 14-23 hrs @ wk enhanced TEACCH + SLP + OT (never actually offered by IU)--district court found parents entitled to rely on state review panel ruling in their favor

* 4 mos passed from day of 1st IEP meeting with no written IEP offer forthcoming from IU

* IU then issued a written IEP offer, offering newly created 10 hrs @ wk TEACCH + SLP + OT

* district court mediation failed, and IU expanded the IEP offer to 14 hrs @ wk of TEACCH

* IEP offer lacked a satisfactory mainstreaming component; recess not enough; TEACCH method includes some mainstreaming

* LEA's TEACCH and parents ABA/Lovaas are two instructional modes rather divergent in their approach-- ABA/Lovaas stresses behavioral modification techniques, while TEACCH model emphasizes a cognitive approach to learning

* a substantial increase in the intensity of the IU's TEACCH program, combined with a an effective mainstreaming program, might render the battle between TEACCH and Lovaas models a contest between equally appropriate methodologies in future cases, at which point the could would yield to the professional judgment of the IU

* LEA's initial TEACCH IEP offer was of a 10 hr @ wk program, when TEACCh recommends a 30 hr @ wk program

* costs of providing 30 hr @ wk of TEACCH and 40 hr @ wk of ABA/Lovaas are surprisingly comparable

* cost considerations, though not relevant in determining whether a particular program is appropriate, can be considered when choosing between two appropriate programs. Clevenger v. Oak Ridge Sch. Bd., 744 F. 2d 514, 517 (6th Cir. 1984)

* evidence of child's performance in ABA/Lovaas after contested IEP offer was admitted on issue of appropriateness of parent's unilateral placement

* child would suffer significant regression if removed from the ABA/Lovaas program, designed to last for only one more year, supported prospective provision of ABA/Lovaas

* evidence of enhanced TEACCH program was admitted into evidence with respect to consideration of prospective programming

* "if the evidence fairly and rationally supports the agency's findings, and those findings are not cast into doubt by other evidence the agency did not have before it, the district court is justified in deferring to the state education authorities's expertise in deciding what educational program is appropriate for an individual child." Hutchinson, J. dissenting in Fuhrmann v. East Hanover Board of Education, 993 F. 2d 1031 (3rd Cir. 1993) ( a point upon which the majority made no comment)

* additional evidence in federal court may include evidence concerning relevant events occurring subsequent to the administrative hearing. Burlington v. Department of Education, 736 F. 2d 773, at 790-791 (1st Cir. 1984), aff'd, 471 U.S. 359 (1985).

* not surprisingly events occur since the time of the contested IEP offer that affect the circumstances of a case (with respect to fashioning relief) including the creation of new programs by the IU and the home-based education of the child so that the child is not, developmentally speaking, the same child examined by the IU when the IU prepared the IEP offer

* it appears to the Court that the constantly changing educational development of children with disabilities compels periodic review of IEPs even during the pendency of litigation

* " In a concurring opinion that received expressed approval from the majority, see Fuhrmann, at 1040, it was explained that:

Rowley's requirement that a school district's program be reasonably calculated' to enable a child to receive educational benefits is prospective; it is based on an evaluation done by a team of experts prior to the student's placement. At the time of the child's evaluation, the IEP must be reasonably calculated to enable the child to receive educational benefits. Thus I would not view Rowley's test of "appropriateness" as whether the child actually receives educational benefit as a result of his school placement. Instead, the appropriateness of a student's placement must be assessed in terms of its appropriateness at the time it is created and not at some later date when one has the benefit of the child's actual experience."

* in evaluating the IEP offer take the perspective of a "snapshot" taken at the time of the preparation of the IEP. Id. (citing Roland M. v. Concord Sch. Comm., 910 F. 2d 983,992 (1st Cir. 1990), cert. denied, 111 S. Ct. 1122 (1991)

* the question of whether the Court can consider child's progress in Lovaas is more difficult than whether post-IEP offers of programming enhancements, which cannot be considered.

* in this case there were 4 mos of ABA/Lovaas programming before the contested IEP offer, for court to consider (evidentiary issue not addressed, or resolved since IU contested IEP was inappropriate regardless of child's ABA/Lovaas progress)

* re: possible prospective view of appropriateness of ABA/Lovaas: evidentiary issue not resolved, because court concludes that even if child's progress during Lovaas could not be considered at all, Lovaas remained an appropriate [parental] placement for the child. Even when viewed without resort to hindsight, parents' decision to enroll child in Lovaas was appropriate since Lovaas had a proven success record, as verified by a 15 year study conducted by the Lovaas program (the 1993 longitudinal study)

* neither IU nor parents claim that child is ready for regular classroom instruction.

* as relevant to the reimbursement issue, the appropriateness of the home-based ABA/Lovaas program, the parents' videotapes of the ABA/Lovaas home program were admitted as evidence

* Dr. Gary Mesibov of TEACCH, LEA expert at due process hearing and in district court Calaveras Unified Sch. Dist., 21 IDELR 211 (SEA Ca. 1994)

AGE: 4 year old DIAGNOSIS: autism by DSM-III-R ABA: 30-40 hrs @ wk provided by parents at home

SIZE OF CASE: 10 day hearing; attorney for State Department of Education (SEA) observed 2 days of hearing

* awarded reimbursement of costs of ABA/Lovaas home program including consulting, materials, therapists' wages, transportation of the consultant

* reimbursement of mother's babysitting costs of caring for other siblings so she could case-manage the ABA/Lovaas home program denied, for failure to cite authority to support

* reimbursement of parent's cost of transportation to LEA's SLP and Headstart, although LEA made a bus available, due to young age and behavior of child

* ALJ ordered some further amendments to LEA's latest IEP offer to provide needed prospective relief

* by agreement of parties a credentialed psychologist with documented training in behavior analysis and positive behavioral interventions was added, to consult with LEA on future programming

* 1:1 aides (multiple) to ensure no dependency on a single person, but specific ABA/Lovaas training denied (based on Ca. regs)

* having constructed appropriate prospective relief, prospective funding of the UCLA Clinic was denied, as was all reimbursement from the date of the latest IEP offer

* as prevailing party on most issues parents could seek attorney fees in district court

* just access to services which are individually designed to provide educational benefit to the child

* LEA did not discuss with parents, offer or document offer/refusal of a continuum of placements, a substantial procedural violation

* Parents who are entering the educational system for the first time cannot be expected to be aware of the range of opportunities available to them (including home instruction)

* LEA offered IEP of special education class + Headstart + SLP (but did not develop goals and objectives (undisputed fact and a procedural violation))

* IEP goals and objectives must be written before placement. 34 CFR 300.346, Appendix C, Question 42

* Ultimately the LEA has the responsibility to develop the goals and objectives and cannot be relieved of the responsibility to develop an appropriate IEP by placing blame elsewhere, particularly on parents who are coming to the IEP process for the first time.

* LEA agreed to train classroom teacher in autism after parent observed prospective placement and commented

* IEP team's handling of goals and objectives resulted in a loss of child's educational opportunity

* mere parental attendance without participation is not meaningful participation by the parents

* parents enrolled child in UCLA ABA/Lovaas Clinic outreach program, and withdrew child from school services after observation

* before due process hearing, LEA offered special education class 2: 1 ratio + 20 hrs @ wk of 1:1 ABA/Lovaas at home + SLP + fulltime 1:1 aide + parent training + written behavior plan + 1 hr @ day of mainstreaming in Headstart

* this IEP offer with modifications ordered by the ALJ was not procedurally or substantively defective, for the new year

* parents disagreed with some parameters of placement and renewed due process request and request for funding of ABA/Lovaas home program

* not an issue as LEA offer was both procedurally and substantively defective on many points

* prospectively, LEA classroom placement is on developmental model, described at [222]

* LEA sought to excuse failure to write goals and objectives to mother's emotional reaction to LEA diagnosis of autism; mother testified she was not upset, not first time she'd heard autism in connection with child, and that no one mentioned writing goals and objectives at IEP meeting

* LEA sought to excuse 2nd failure to write goals and objectives to absence of therapist who was going to work with student from the meeting, due to uncertainties over placement; parents' expert testified this was no excuse--general goals and objectives should have been written and implementing therapist should have called another IEP meeting if they needed revision

* SLP services were provided to child without written goals and objectives; LEA claimed mother thwarted writing of goals and objectives by hearsay from an LEA SLP who was not called to testify

Dr. O. Ivar Lovaas, UCLA Clinic outreach by Mila Amerine-Dickens and Annette Groen

Dr. Kirchner, private SLP M.A. v. Voorhees Board of Education, _____ IDELR _____ (SEA NJ 1994)

AGE: 4 year old DIAGNOSIS: autism ABA: 40 hrs @ wk in parent's home classroom, using 18 therapists

* parents awarded the consulting assistance of Dr. Bondy and Dr. Margolis to bring their home program into state compliance

* parents awarded an evaluation to be done 1 year hence to help determine how long ABA/Lovaas home program should continue

* prospective continuation of ABA/Lovaas home program "so long as it is educationally appropriate" (beyond 1 year, perhaps, depending on evaluation)

* all past costs of ABA/Lovaas home program to be reimbursed, including but not limited to costs of experts, therapists, and costs of construction of in-home classroom

* Dr. Margolis testified LEA placement was highly restrictive, 3 children in parallel universes (ALJ agreed and found home the LRE)

* new local PECS program, 4 : 1 + 2 ratio; PEC's trained staff with data collection and structured teaching

* during successful educational placement per IEP at Devaraux Foundation, LEA unilaterally determined to create and send child to a new in-district program; parents learned this in a public meeting when school administrator pointed out and identified the parents and their child and the placement

* parents sought to work with LEA to duplicate Deveraux services in the LEA since child had a 1 1/4 hour one-way commute (total 2 1/2 hrs @ day)

* parents enthusiastic about new local program and offered to contribute financially to LEA construction of the classroom

* new local program was moved to a teacher's lounge-small room with no observation booth or one-way glass

* parents contacted Bancroft in February of new school year for an in-home ABA/Lovaas program

* LEA efforts to provide FAPE characterized as "careless" and "shabby" and "missing the boat," and "too little too late"

* ABA/Lovaas home program found appropriate for the front-loading of skills in instruction of child at this most crucial point in his life

* parents' concerns re: observations caused some friction with LEA, which eventually installed video cameras for this purpose

* parents' requests prompted LEA to hire Dr. Bondy for 6-7 hrs @ mo to provide PEC consultation and training, and OT support staff

* LEA lost an extensive parent letter exchange re: status of terms and conditions upon which child was removed from Deveraux School and placed in new local program

* Bondy testified that Lovaas program is frustrating for children with autism, and slow to develop; PECS is Bondy's alternative method

* parents move to ABA/Lovaas in February was motivated by their observation of child's regression--in behavior and eating, biting and kicking, not sleeping, regression in toileting

* mother acknowledged she made upbeat" comments in home school notebook because she does not feel that every problem should have been blamed on or dumped on LEA teacher alone

* Holmes made an independent observation of LEA placement after contested IEP offer date, and after child had been removed from it, admitted into evidence

* Holmes was able to observe classroom without having to use the videocamera system, for 3 hours

* Deveraux had an open door policy re: class observation; LEA restricted observation to 15-45 min @ mo, by video

* ALJ found that child's gains during concurrent programming were attributable to ABA/Lovaas, not to new LEA PECS program

* ABA/Lovaas programming blocks occur from 9 AM to 9 PM, with breaks, and has improved sleeping

* mother was called to school 4-5x when LEA staff could not handle child's tantrums

* LEA had a good opportunity to observe child's ABA/Lovaas home program, and failed to ask; ALJ regretted that Dr. Bondy had not observed it

* parents' special education expert observed child at home and in school 2x for substantial periods of time, and reviewed past educational records

* parents' special education expert testified re: unique needs of this child for consistency, parent training, intensity, lack of LEA classroom structure, cramped LEA classroom when child needs a great deal of muscle movement; child appeared frustrated in LEA class; data collection problems in LEA class; no behavior modification in class; reinforcements used poorly; 2 classmates with maladaptive behavior distracting to child; no attempt to meet socialization goals of IEP; the implemented LEA program was not reasonably calculated to confer educational benefit, but caused distress and stress on family and is highly restrictive of child, and failed to mirror the Bondy program which would be appropriate to the child

* Dr. Andrew S. Bondy of PECS (also an ABA/Lovaas expert), and Lori A. Frost, for LEA

AGE: 4 year, 9 mo old DIAGNOSIS: Autism ABA: 15 hrs @ wk in-home ABA + consultation every 4-6 wks, 46 wks @ yr, paid for by IU; parents provided additional 10 hrs @ wk of ABA, 52 wks @ yr

* compliance relief may be sought not only from Office of Regional Review but also through due process

* since the IU has acceded to the parents' request and delivered a program of instruction which, in part, utilizes Lovaas strategies in Evan's instruction, a request from the parents for the continuation of such therapy will be proper [in upcoming IEP meeting]

* parents admitted progress occurred during weeks when less ABA therapy occurred

* testimony of a nationally recognized expert in childhood autism that the IEP offer was appropriate, unrebutted by any studies that more hours of therapy lead to greater progress

* additional EYSE in the form of assignments for the parents to implement, denying EYSE to 228 days

* granting integration with typical kindergarten peers (with preschool peers denied)

* access to specialized instruction and related services which are individually designed to provide educational benefit per Rowley

LEA PLACEMENT FOUND INAPPROPRIATE: * 3.5 hour 219 (ie. some EYSE) day of discrete trial and computer training at behavioral counseling and research center

* LEA contracts with a private provider of ABA/Lovaas for discrete trial component of program

* the LEA does not seriously dispute that child will benefit from a 6 hour school day

* although parents testified to regression in self-help skills, since specific recommendations for self-help instruction was not made by any independent assessment, no relief in this area granted; teachers observed self-help as good.

* Dr. Byrna Siegel testified as parent's expert re: regression and EYS; year round SLP; against "cognitive therapy" since child was bored; need for integration

* Eve Davision, child's former teacher at the May Center re: need for 6 hour school day; need for integrated play group

* Dr. Louis Falik and David Gottliebo re: "cognitive therapy" Pitt County Bd. of Educ., 2 ECLPR 247 (N.C. 1994)

AGE: 4 year old DIAGNOSIS: mild autism ABA: Parents provided 40 hrs @ wk ABA/Lovaas + private SLP + community integration about time they contacted LEA, but before LEA evaluations

* reimbursement for home-based ABA/Lovaas program, from time of IEP offer until eligible for Kindergarten (or earlier if procedurally correct IEP process occurs to produce FAPE)

* Dr. Mary Jane Weiss testified that goal of ABA/Lovaas is to mainstream a child before age 6

* Dr. Gary Mesibov testified that it is not necessarily the goal of the TEACCH model to get a child into the regular classroom as quickly as possible

* ALJ found "no undue stress" caused by ABA/Lovaas home program to the parents, or to the child "who receives appropriate levels of play during his 40 hrs @ wk of ABA/Lovaas and the other 72 waking hrs @ wk

* IEP team did not discuss the question of long-term mainstreaming, or the child's progressing into first grade, regular school placement

* parents refused to consent to extensive LEA evaluation; later agreed to limited evaluation by LEA;

* LEA failed to offer to limit LEA evaluation to evaluations that would be non-duplicative of existing independent evaluations; the child is entitled to expect that

* although parents did not provide LEA with all existing evaluations and reports re: child, parents failure did not excuse the LEA from its duty to evaluate, nor did it prevent the LEA from attempting to obtain reports LEA knew existed (Social History and Medical History components were withheld until just before hearing; TEACCH evaluation was withheld for a time; MD and SLP evaluations were withheld until just before hearing; Bancroft assessment was withheld until just before hearing); the parents' failure to share all of the test results did not prevent the LEA from taking any action it was required to by law, and the parents were not required to forward all independent evaluations

* the LEA knew, or should have known, that the reports it needed to properly evaluate the child existed and were obtainable

* parent was difficult to reach by phone because phone kept off the hook during ABA/Lovaas instruction

* LEA failed to consider any of the reports, evaluations and other information submitted by the parents (no discussion of these items appears on audiotapes of IEP meetings)

* reasons for refusal to fund home-based ABA/Lovaas program: because there was an appropriate classroom, and all eyes would be on us for future requests, progress in home program acknowledged to have occurred

* as soon as the child was referred to the LEA, the system decided it could not provide in-home services because the system had an appropriate preschool classroom. All of the system's arguments that evaluations were not provided to it by the parents and that certain releases were not signed must be analyzed in the light of this cold, hard fact.

* members of IEP team met without the parent and acknowledged progress in home program, and agreed LEA "could not afford to set a precedent and provide funds for in-home therapy"

* members of IEP team met without the parent to draft responses to letters conveying parental questions re: placement

* at a 4 hour IEP meeting ABA/Lovaas home-program video was shown to IEP team, but ABA/Lovaas option was not considered as an option for placement by the IEP team

* IEP team members represented LEA program as "optional" with the parent, and as a take it or leave it proposition [ie. not required FAPE by federal law] since child not required to attend school until age 6.

* the IEP team did not evaluate the information submitted by the parents, did not focus on the independent evaluations, did not evaluate whether ABA/Lovaas was the appropriate education for the child

* parents also brought preconceived notion, purpose, dedication and singleminded goal of LEA funding of ABA/Lovaas to the IEP process

* the burden for failure to develop an IEP and place the child pursuant to an IEP is on the LEA

* parents' evidence was child had failed to respond to TEACCH, SLP or "play therapy" earlier

* child spent 3 months in a LEAP preschool, 6:3 ratio with only minimal gains (LEA evaluator Betty Smith agreed; parents withheld for a time, an MD letter which claimed improvements due to LEAP)

* LEA described techniques used in preschool autistic classroom to parents, and invited a parent visit

* independent evaluation available to LEA recommended continuation of ABA/Lovaas home program or integration of ABA/Lovaas components into preschool classroom program

* recommendations of Jane Rudick, CANDLE, a parent advocate who had never seen the child were not given any weight

* parent documented by letter all information provided to LEA, of independent evaluations and Bancroft brochure and proposal

* no discussion of independent evaluations, parental input, or the ABA/Lovaas home-program appears on the audiotapes of IEP meetings

* IEP team refused parental request to contract with Bancroft as consultants because their personnel had not been given an opportunity to work with child

* Bancroft in New Jersey, Scott Wright and Dr. Mary Jane Weiss, testified that ABA/Lovaas is not a cure, has been replicated

* Dr. Gary Mesibov testified as TEACCH expert for LEA, and testified critically of ABA/Lovaas and LEAP, but admitted ABA/Lovaas takes a broader developmental approach than TEACCH, asserted that a lot of early intervention is detrimentally stressful to the family; admitted TEACCH has "no comparable data" to ABA/Lovaas

* Dr. John M. Doughtery, wrote as TEACCH expert for LEA, his observations of LEA TEACCH classroom and teacher Tuscaloosa County Bd. of Educ., 21 IDELR 826 (SEA Ala 1994)

AGE: 10 year old DIAGNOSIS: relatively high-functioning autism ABA: by "Louvas" method, funded by public schools previously, with great progress; ABA/Lovaas services provided by parents' business and University of Alabama psychology students (same business provides to other students and LEA; parents benefit financially, but marginally from contracts)

* parents denied reimbursement for private school placement (parents admitted private school was not beneficial to the child)

* Change to "Teach" method implemented by therapists provided by local residential autistic treatment facility

* changes of personnel and methodology did not trigger any procedural safeguards; LEA did not have to provide notice

* LEA technically violated procedure when it allowed an expert witness from the TEACCH facility (not an LEA employee) to observe the child without parental consent, but no specific damage alleged, and expert witness testimony was harmless error (would not change due process outcome)

* methodology change is characterized as "minor" by LEA; accepted by the hearing officer

* LEA offered a primary therapist with substantial past experience working with autistic children, extremely enthusiastic and committed

Fairfax County Pub. Sch., 22 IDELR 80 (SEA Va 1995) and the original hearing officer's typewritten decision

AGE: 4 1/2 year old DIAGNOSIS: PDD and/or autism, undisputed ABA: home-based with consultation by Bancroft, private school in New Jersey, with college student therapists, in the "Louvass" method, concurrently with 1/2 day of LEA programming

* $60,000.00 to $77,000.00 of reimbursement denied for 3 1/2 years of ABA/Lovaas programming, past and prospectively

* for reimbursement, parents would have to prove ABA/Lovaas was the only method appropriate to the child

* of review by review officer is independent decision based upon a preponderance of the entire record, with deference to prima facie correctness of hearing officer who heard witnesses and judged credibility

* reasonably calculated to confer some educational benefit, more than trivial, with progress; but need not be "meaningful"

* it matters not whether some may have the opinion that the progress is too slow or less than optimal

* Congress intended the states to balance the competing interests of economic necessity (costs of ABA/Lovaas) and the special needs of the child when making placement decisions

BURDEN OF PROOF * on the parents to prove by a preponderance of the evidence that the program proposed by the LEA is inappropriate and that the ABA/Lovaas program is appropriate

* group special education instruction in a natural environment with natural reinforcers is a less restrictive environment than ABA/Lovaas in a private school

* full day 30 hrs @ wk non-categorical preschool classroom + SLP + OT, with some parent-training by home visits from LEA autism specialist

* LEA believed ABA/Lovaas is harmful--not a natural environment, fails to generalize skills, not group instruction; causes aggression and requires physical restraint; is stressful and difficult for the child; results are not enduring

* due process hearing officers and courts may not second-guess LEA choice of methodology

* videotape evidence of Bancroft ABA/Lovaas instruction was admitted without objection and considered (ie. evidence created after the LEA offer)

* original hearing officer was offended by ABA/Lovaas instruction as Pavlovian, and not particularly effective

* Bancroft ABA/Lovaas experts testified (ie. evidence created after the LEA offer)

* LEA demonstrated more than trivial progress before ABA/Lovaas introduced, by means of a chart of anecdotal conclusions, and by teacher testimony as to her belief child was progressing and her opinion that child needs to learn in a natural setting, supported by extensive periodic evaluation reports

* LEA teacher did not have extensive specialized training in autism, but had an autism resource specialists available to her

* original hearing officer criticized Bancroft witnesses as administrators, adverse to school systems, and financially self-interested

* Wright would not predict that child would have a successful completion of ABA/Lovaas program

* Dr. Mary Jane Weiss observed the LEA program and found it to be inappropriate, first saw child in preparation for due process hearing (ie. after LEA offer, evidence admitted)

AGE: 4 years 11 months old DIAGNOSIS: autistic, nonverbal ABA: * since current IEP and current program are not in dispute, LEA has offered a full-time 1:1 ABA/Lovaas program prospectively for this child

* parents provided first 9 mos of ABA/Lovaas program at home using college students

* full-time language-based preschool handicapped classroom with no individual SLP, OT or PT until evaluations completed late, or nothing [IEP team would not accommodate even parent-provided concurrent ABA/Lovaas home program]

* teacher had not worked with autistic children before, and did not consult with SLP, except university intern students

* IEP committee earlier recommended Montessori preschool private placement, and let the parents pay for it 4 mos, without reimbursement

* parents were advised of a pilot 1:1 discrete trial behavior modification program, but no IEP offer of this to the child

* IEP offer was made because of transfer in to school district, and before recommended additional evaluations SLP, IQ, OT, psychological and OT, PT were made

* LEA failed to offer SLP as shown to be needed by assessment * filed to implement a program with flexibility so child could benefit from her ABA/Lovaas home program and the LEA placement offer

* LEA was aware of ABA/Lovaas home program, and parents using it to implement agreed upon IEP goals and objectives [an estoppel argument]

* child was offered full-time language-based classroom program or nothing; IEP team would not even accommodate home-based concurrent programming provided by the parents

* late in game LEA began a pilot discrete trial 1:1 behavior modification program, but failed to offer it to child

* the LEA retains jurisdiction over a home education program to verify that the child's needs are met and can request due process review for failure of home program to follow IEP terms

* teacher believed child made progress in her class, but not objective data supports teacher's conclusion

* teacher relied upon her own subjective assessment of child's emerging behaviors

AGE: 4 years 3 mos old DIAGNOSIS: PDD/Autism, with normal hearing (with tubes) and IQ; nonverbal ABA:

* reasonably calculated to deliver reasonable, measurable, and meaningful educational benefit in the LRE

LRE: * parents' home-based ABA/Lovaas + preschool with typical peers was LRE compared to LEA's proposed placement in self-contained class

LEA PLACEMENT FOUND INAPPROPRIATE: * placement in a private preschool program + SLP + OT and very brief consultative visits by the LEA to the private preschool produced minimal progress

* LEA failed to properly assess child in timely manner; autistic symptoms were present and autism should have been suspected and this should have triggered further assessment

* the contested IEP meeting lasted only 1 hour, and was hurried along by LEA personnel without consideration of the parents' request for ABA/Lovaas or EYSE, and with "no meaningful or substantive discussion of [the child's] special education and related services needs; and served to "effectively block meaningful dialogue."

* parents' clear impression was IEP meeting was driven by discussions of 2nd restrictive classroom placement at LEA rather than a good faith effort to develop and appropriate IEP

* LEA failed to offer proper and legally required notice of an IEP meeting at which an IEP offer for OT was developed without the parents

* LEA developed a draft IEP offer without constituting a proper IEP team, and without actually offering it to the parents until 5 days before hearing

* 34 CFR 300.505 refusal notice was insufficiently specific: "Other options were considered and found to be inappropriate." represents a particularly egregious violation of the law . . . . a substantive denial of due process

* parents had no right to require LEA to implement a methodology of the parents' choice

* no direct instruction LEA personnel had specific, intensive, and meaningful training in TEACCH methodology or its educational and philosophical underpinnings

* "A reading of the transcript of the [IEP meeting] can be kindly characterized as chaotic, without order and leadership, disjointed, absent any evidence of an ordered agenda, and a distinct failure to achieve closure. There is little, if any evidence, of a good faith, substantive discussion of [the child's] special education needs and the goals and objectives crucial to meet those needs. The IEP "horse" was in a runaway position distant and far in front of the placement "cart." The entire discussion evidences an overwhelming focus upon placement rather than a mandated discussion of the precise contents of an IEP which would subsequently drive any consideration of the actual placement decision."

* the LEA and private preschool school placement staff observed the home ABA/Lovaas program

* after ABA/Lovaas at home, progress was noted in private preschool placement, showing generalization and enabling child to benefit from LEA offered placement; corroborated by objective assessment measures in speech and language

* the evidence is compelling and conclusive that child achieved significant educational benefit in his placement in private preschool with non-disabled peers and via the ABA/Lovaas home program

* nearly all of the fundamental and substantive program components were put in place as a direct consequence of the initiative and actions of the parents

* only after parents filed for due process did LEA begin a flawed and deficient address of its legal responsibilities

* a prehearing IEP offer of increased services is a tacit LEA admission that the contested IEP offer is inappropriate

CONSULTANT: Ms. Fisher Conejo Valley Unified Sch. Dist., 23 IDELR 1081 (SEA Cal. 1995)

AGE: 7 year old DIAGNOSIS: high-functioning autism ABA: *parents sought an aide appropriately trained in behavior modification techniques

* child treated as a preschooler by Dr. Ivar Lovaas at UCLA, and before kindergarten by Dr. Granpeesheh of CARD

* aide must have knowledge of autism and behavior modification techniques and be able to implement behavioral plan and assist with academics; need not be trained for a specific period, or in a particular type of method; training found sufficient

* prior complaint of failure to mainstream student was resolved before due process hearing

* mainstreamed into 1st grade w/ fulltime 1:1 aide + daily journal of behavior + SLP + resource room

* LEA witnesses testified behavior at school improved as aide acquired training; parents had not visited school to observe more than briefly

* aide has 1 year school experience, none with autism; used behavioral management techniques in business area in private sector management position

* mid-year aide was given considerable in-house training in autism, and given access to in-house consultants who developed a behavior management plan with data collection

* without expert testimony, parents presented no persuasive evidence that aide must have been trained for a specific period of time or in a particular type of behavioral management such as ABA/Lovaas

* none of these experts actually testified at hearing, or observed the child recently; no specific recommendations re: specific aide training

* Dr. Christine Givner re: integration aide needed Rebecca S. v. Clarke County School District, 22 IDELR 883 (D.C.M.D. Ga 1995)

AGE: 13 year old DIAGNOSIS: moderate autism and intellectual impairment ABA: not used, or requested

* parents denied reimbursement for 24 hour residential placement at Heartspring in Kansas

* on the parents re: substance: must show child made no measurable and adequate gains in the classroom

* but a consideration of respite care was necessary, ordered by hearing officer, reversed by review officer (parents requested respite care; LEA failed to respond)

* absence of an administrator or psychologist at some IEP meetings was not fatal

* LEA paid for out-of-state evaluations in California by Dr. Ritvo and Dr. B. J. Freeman

* child made measurable and adequate gains in the classroom under prior year's IEP

* LEA teacher was TEACCH certified + used behavior management plan + daily home-school notebook

* the district court refused to find that child's increasingly intolerable behavior in the home was a manifestation of an inappropriate school program, or that gains in the school setting must translate [generalize] into the home setting

* parent's expert testified inability to generalize was equivalent of no educational benefit

* bad behavior at home occurred as child was removed from LEA's TEACCH classroom

* child was rejected by another out-of-state residential placement because of her behavior

* LEA's TEACCH expert testified that child was high-functioning enough to make residential placement highly inappropriate

* evidence of Heartspring placement (after IEP offer) was admitted and testified to by experts who closely scrutinized this residential placement

* Dr. Edward Ritvo and B. J. Freeman, failed to recommend residential placement, but "a highly structured, behaviorally-based educational program applied by professionals trained to teach autistic children"

AGE: 3 year old DIAGNOSIS: PDD/autism ABA: *41 1/2 hr @ wk at home, using college students, provided by parents at home, concurrently with Part H and Part B public school services + 1 AM @ wk integration in non-disabled preschool w/ a 1:1 aide

*Part H later agreed to the home program during the Part H period, without LEA/IU participation (ALJ rebukes Part H agency for this decision, and holds that LEA/IU need not fund the IFSP created by the Part H agency)

* ALJ reduces integration from 2 days to 1 day upon his finding that the child cannot handle more than 1 day of integration

* reasonably calculated to enable this child to receive educational benefit--prospectively

* Neither the parents nor their expert witnesses were able to dismantle the IEP of its core, namely the goals and objectives and the specially designed instruction

* home is the fifth most restrictive placement in the state-defined continuum of placements

* LEA placement offers inclusion with non-disabled peers, integrated and pull out related services of OT, PT and SLP

* LEA placement with disabled peers significantly higher in language functioning, but child will have a 1:1 aide to compensate

* 4 PM's @ wk (12 hrs @ wk), 12 mos yr, in disabled preschool class + OT + PT; class ratio of 4.25: 1 (does not meet LEA/IU assessment recommendations of class ratio of no more than 3:1)

*LEA/IU did comprehensive evaluations on multiple dates across environments, complete and through and considered materials provided by other professionals (parents' experts), and this protects the substance of the IEP

* outcome might be different in a situation where the LEA is proposing a program based upon a philosophy and this philosophy is not being adhered to properly or previous attempts to educate the child with a particular technique, strategy or methodology has not resulted in the necessary meaningful benefit

* LEA methodology is never identified; question is evaded by ALJ by criticizing parents failure to adhere loyally and pristinely to Lovaas method

* the IEP team was provided an extensive check list of skills which child was taught through ABA/Lovaas home program

* the IEP team was denied access to observe the child in her preschool integration setting

* one cannot assess the adequacy of a student's placement at some later date when one has the benefit of the child's actual experience [3d Cir.] but measure adequacy at the time IEP was offered

* IU's comprehensive evaluation efforts outweigh substantially those of the parents' experts and led to an IEP substantially comporting with the evaluations

* parents did not observe child in Part H classroom setting because child upset by mother's presence

* parents upset with the condition and behavior of child upon returning from Part H classroom

* parents dismayed and displeased with proposed IEP because of perceived failures in previous settings using eclectic approaches rather than a single, unified philosophical base

* ALJ found child made requisite progress in prior Part H setting at 9 hrs @ wk,. so IEP offer of 12 hrs @ wk is reasonably calculated to provide educational benefit

* proposed IEP classroom does not have a unitary philosophy for teaching autistic children

* ALJ criticizes parent's ABA/Lovaas home program for not being "loyal" and "pristine" as Lovaas envisioned

* ABA/Lovaas programming records characterized by ALJ as "less-than-stellar" and "of little value", with no formal evaluations or progress reports by consultants in a condensed fashion

In The Matter of Mr. "___" On Behalf of "E. M.", Infant, _____ IDELR ______ (N. Y. 1995)

AGE: 3 years DIAGNOSIS: Developmental Delay/PDD/Autism ABA: provided by the parents at home, 10-20+ hrs @ wk

* not an issue, Part H ignored recommendations of MD evaluator at their evaluation site

* as supported by and in accordance with substantial evidence that Part H did not provide appropriate services

* 5 hours @ wk of various itinerant services including group social work, instruction, support group, SLP and 1 hr @ wk of 1:1 instruction of the child [found inappropriate]

* did not meet MD evaluator's recommendation for behavior modification as the primary intervention

* 2nd IFSP deleted all services except SLP and recommended continuation of home ABA/Lovaas [provided at parent expense]

* IEP offer was centerbased 12 mo, 5 hrs @ day, 5 days @ wk behavior modification program

* IFSP team agreed with, but failed to implement, MD evaluator recommendations from their evaluation site

* it was incumbent upon Part H providers to help the parents obtain behavior modification services; that was not done

* Part H is responsible to contract for services Part H providers cannot provide

* Part H evaluators, providers and parents agreed [the IFSP team] child needed behavior modification services

* Part H providers were misinformed that they could not provide (or fund) behavior modification services

* Part H providers had no trained, licensed, certified personnel to provide behavior modification services

* M.D. evaluation stated child would benefit from a program which provides intense SLP as well as behavior modification as the primary intervention

* child's ABA/Lovaas progress was documented by written evaluations of experts who recommended continuation

* child's progress is attributable to ABA/Lovaas by parent testimony and expert testimony, including ABA/Lovaas providers and independent evaluators

* Part H conceded that consultant Fisher's services were appropriate and reimbursable

* Part H program was new (not an excuse for error; parents and child not to be penalized)

UPHELD as Still v. DeBueno, 24 IDELR 334 (S.D.N.Y. 1996), aff'd, 25 IDELR 32 (2nd Cir. 1996). Capistrano Unified Sch. Dist., 23 IDELR 1209 (SEA Cal. 1995)

* based on testimony and evidence of child's MD's, ALJ found student did exhibit autistic behaviors under state regulations

* parents withheld MD's diagnosis of autism from LEA to allow LEA to make its own determination of child's needs, and to get an independent second opinion

* Dr. Granpeesheh found to be a credible diagnostician who saw child 3 times, corroborated by CARD senior therapist and case supervisor, by the parents

* parents did not ask independent evaluators to diagnose student as autistic, but, in fact, found this diagnosis very difficult to accept.

* a DSM-IV medical diagnosis of "Autistic Disorder" means as a matter of law that the student exhibits state- regulatorily defined autistic behaviors

* state eligibility category assigned to child was "limited intellectual function" and developmental delays

* LEA claimed label not important to determine unique educational needs; diagnosis at early age difficult and unnecessary to designing placement, may be confused by presence of concomitant disorders; labeling a child autistic may make them more likely to be autistic

* 6 LEA witnesses testified that they did not believe student exhibited autistic-like behaviors, but were not as expert in autism as parents' independent evaluators, although some experience teaching autistic children; 3 LEA witnesses had exposure to student which was limited to evaluation services; 3 other LEA witnesses had regular exposure to student and acknowledged they would not be surprised that independent evaluators disagreed with them and could not say independent evaluators were wrong; teacher disagreed with independent evaluator's autism diagnosis, but stated, erroneously, that autism cannot be diagnosed until age 5, not liking to label a child at an early age

* "The philosophy espoused by the District personnel concerning the problems of labeling children at an early age is not without merit. Certainly, the thrust of federal and state law is to not isolate children as a result of an educational label. Nevertheless, the court in Rowley noted that the Education of the Handicapped Act was passed in response to Congress' perception that a majority of handicapped students were either totally excluded from schools or were sitting idly in regular classrooms awaiting the time when they were old enough to drop out.' Rowley, at 179. The goal of avoiding labels must be tempered by the requirement that a child's program meet their individual needs. [The parents' experts] convincingly testified that the diagnosis of autism at an early age is important in understanding and addressing the unique needs of an autistic child." [at 1217]

* the evidence showed that, in fact, the recognition that the child had autistic-like behaviors would have affected the LEA's evaluation in determining the child's needs for placement

* ALJ finds by a preponderance of evidence that autistic behaviors and medical diagnosis of Autistic Disorder both have a significant implication in determining the child's unique needs

* ALJ also finds that even if child did not meet state regulatory definition of "autistic-like behaviors" as a matter of law, this would not change outcome of the case, since no dispute child is eligible for special education

* LEA claimed to have offered a new pilot program with a discrete trial training component as a placement option, but did not do so in writing as required by 9th Cir.

* prospective award of 25 hrs @ wk ABA/Lovaas at home to be funded for the remainder of extended school year (ie. October to August), being the level of services at which the record showed the child benefitted, and given fact that at present home program was only appropriate placement available

* merely access to specialized instruction and related services which are individually designed to provide educational benefit to the student

* re: autism diagnosis and implications for programming, by a preponderance of the evidence

* LEA argument for self-contained classroom group instruction was it allowed opportunities for child to imitate

* ALJ found that child's imitation skills were limited and that classroom program was not modified to account for this

* self-contained special day class for severe disabilities for 25 hrs @ wk + SLP

* class curriculum was beyond child's abilities and did not meet his unique needs; was not designed to further his development

* all children in class, regardless of disability, received the same instruction

* despite LEA assertions, ALJ found LEA had not offered any other placement options other than self-contained severe disability classroom

* assessment of child continued after classroom placement, by the classroom teacher

* no specific school location for the self-contained class listed in 1st IEP meeting

* 2nd IEP meeting determined placement, before any goals and objectives even written

* 3rd IEP meeting held to discuss goals and objectives, after classroom placement; parents inform school of autism diagnosis and request ABA/Lovaas; LEA presented 5 typewritten pages of goals and objectives; no closure at meeting [LEA contended that parents did agree to goals and objectives--ALJ found this question of fact did not affect the outcome of the hearing]

* 4th IEP meeting: parents agreed to keep child in classroom until next meeting; LEA did not agree to include ABA/Lovaas in IEP

* parents filed for due process and child received 25 hr @ wk in LEA classroom + 15 hrs @ wk ABA/Lovaas at home, concurrently

* Dr. Granpeesheh submitted independent diagnostic evaluation to LEA, supporting diagnosis of Autistic Disorder, and recommending ABA/Lovaas

* MD submitted a 2nd independent diagnostic evaluation to LEA, supporting diagnosis of autistic spectrum disorder, and stating child "clearly not retarded," documenting recent developmental progress since ABA/Lovaas, recommending continuation of ABA/Lovaas and possible placement in preschool with non-disabled, or non-retarded peers.

* LEA offered a non-existent still-in-the-planning-stage program option to the parents at a mediation; not possible for parents to reasonably calculate whether this would be appropriate for child

* LEA offers of other program options were not in writing as required by 9th Cir.: " . . . the requirement that a District make a formal written offer of placement was not a mere technicality, but would serve to avoid factual disputes years later about when placements were offered, what placements were offered, and what additional educational assistance was offered, if any." [at 1223]

* parents were entitled to information so they could make an informed decision as to whether proposed programming was appropriate to their child, including the following critical areas:

* ALJ found child needed 1:1 instruction in a structured environment, extensive language therapy and instruction in social skills

* self-contained severe disabilities classroom was completely inappropriate given those needs

* LEA witnesses acknowledged child's intensive needs, but claimed they were similar to those of other children

* teacher testified that she uses the same curriculum with all of her children, regardless of disability

* student's autistic-like behaviors and/or Autistic Disorder medical diagnosis must be considered as having significant implications in determining his unique and individual needs, and were not so considered by the LEA

* a structured environment in which distractions are managed (not met in the LEA multi-sensory, naturalistic environment classroom with a lot of physical activity)

* 1:1 instruction to focus attention (not met in classroom by use of a high chair to restrain child and try to gain his attention)

* intensive language needs, a critical to inclusion (not addressed by LEA classroom (closest activity is 1:1 instruction of 1/2 hr @ day at centers + some SLP)

* impaired ability to imitate; needs development to benefit from group instruction (contested by LEA) (ALJ found this was not accounted for in classroom design)

* impaired ability to generalized; needs development (not addressed by LEA classroom themes)

* "Parent involvement and training are particularly important for an autistic preschool child because parents cannot reasonably be expected to know the type of behavior management skills that are needed to help an autistic preschool child learn appropriate behavior, and because home services are important to help the student generalize into the home environment the skills they learn at school." [at 1223]

* according to mother's testimony of MD's evaluation, Part H services offered before age 3 were not the right approach and child had not advanced as a result of them

* methodology of self-contained severe disability classroom provided no educational benefit to child

* classroom methodology described as "multi-sensory instruction in a small special day classroom having an exploratory environment;" multidisplinary, with a variety of curriculum and strategies; "cognitive curriculum using mediated learning or [whole] language in a naturalistic environment" "always in the context of a theme,""as opposed to being confined to drill and practice method," "the children are taking part in a regular preschool but [the teacher] is keeping their IEP's in mind and working with them."

* scheduled activities include greeting, free play, job chart, circle, putting color-shape associated names in a jar, themes, snack, flag salute, centers work on IEP goals within the theme for about 15 minutes each with different adults; music, adaptive PE, group speech, bathroom, recess, group sharing activity, bean bag activities to teach 2 step commands, lunch, interactive structured play time, clean up, silent reading or looking or licking books, putting away of names and readiness to leave on bus

* LEA claimed classroom was designed to accommodate a considerable range of developmental levels and that particular activities may be above or below an individual child

* although LEA witnesses defended this classroom as adhering to routines and schedules, it was acknowledged that the structure might not be recognizable to a lay person

* parents' educational expert did not see any pattern of learning going on in the LEA classroom

* the person who needed to recognize and respond to the LEA classroom structure was the child. "If an adult layperson' could not discern the structure of [the child's] class, then it is not likely to be recognized by an autistic three-year old." [at 1221]

* child benefitted from his individually designed home-based ABA/Lovaas program (supported by parents, therapists, consultant and independent medical and educational evaluators)

* LEA discretion to make decision concerning methodology is still limited by the requirement that the school district provide an appropriate public education. Therefore, methodology not at issue in this case. [at 1225]

* ALJ accepted evidence of Dr. Granpeesheh of CARD re: autism diagnosis with significant implications re: unique needs of child; re: ABA/Lovaas research results and early intervention window of opportunity before age 5

* ALJ found evidence of unique needs in Dr. Granpeesheh's testimony, in LEA assessments, parent testimony, ABA/Lovaas therapy team.

*ALJ accepted LEA witness' description of structure and substance of LEA classroom placement

*ALJ accepted mother's observation that classroom instruction was beyond the child's level

*ALJ accepted parent's educational expert's observations over 2 hours that classroom instruction was beyond child's level and that very little instruction was going on in classroom; that child spoke 1 word in 2 hours, and was not reinforced

* LEA witnesses testified that children were placed in classrooms based on their chronological age and intensity of need (mild v. severe), rather than on their level of development

* evidence of student playing by himself or engaging in self-stimulatory behavior showed LEA classroom placement to be inappropriate

* LEA argued that child benefitted from LEA classroom placement in that he "adjusted to classroom schedule and appeared to enjoy himself"; ALJ characterizes this as "marginal at best" and "not geared toward readiness for kindergarten and later school success"

* LEA argued that parents interfered with LEA classroom placement and prevented child from fully benefitting, by being over anxious, by not accepting fact that child may be mentally retarded, by disrupting classroom by bringing in observers, by creating stress for teacher due to phone calls and messages, by pulling child out of class at odd times, and before year's end; mother needed a support group and to leave teacher "alone with my children." ALJ saw this as evidence of failure to provide parent training and accommodate parent involvement.

* LEA assessment evidence praised the mother's skill in focusing her child, and there was evidence mother's involvement was interested and appropriate

* ALJ attributed child's language gains to ABA/Lovaas rather than concurrent LEA classroom placement

* independent educational evaluator/observer In The Matter of Peninsula School District, _____ IDELR ______ (WA 1995)

* LEA category was developmentally handicapped/disabled * children's MD-child neurologist not yet comfortable with PDD diagnosis; his written report provided to LEA by parents, but LEA did not follow up, nor did MD testify at hearing

* LEA reliance on this MD report ignores the LEA's affirmative duty to evaluate the child's disability

* LEA assessment/evaluation team suspected autism, but did not secure an evaluation from a person qualified to make a definitive diagnosis and programming recommendations

* parents obtained 2nd MD-child neurologist opinion--PDD diagnosis, gave written report to LEA, but LEA did not follow up, nor did MD testify at hearing

* parents obtained 3rd diagnosis of autism, LEA was informed with no impact on IEP or programming

* original MD-child neurologist now confirms autism diagnosis and rules on generic developmental disorder, supports ABA/Lovaas + greater individualized attention in LEA preschool environments; report provided to LEA; no LEA follow up to this MD

* parents obtained independent evaluation of Dr. Bryna Siegel who recommended ABA/Lovaas at 40 hrs @ wk for next 12-18 mos

ABA: provided by parents, in-home, at their expense, 25 hr @ wk, concurrently with 10-12 hr @ wk LEA placement; parents later withdrew children from LEA placement due to lack of consistency; in-home program then climbed to 40 hr @ wk + community integration

SIZE OF CASE: 7 days; involves autistic twins, 2 children who were substantially similar; 2 years of IEPs

* reimbursement of costs of ABA/Lovaas home instruction, consultants, therapists and materials

* likely to derive meaningful, or more than minimal for trivial, educational benefit, considering the child's unique characteristics

* re: meaningful: standard not met even though genuine progress in several important areas, when limited progress in expressive language communication given extent to which child was capable

* some gains may not be meaningful, when sufficient progress is not made in important areas in which the student is capable of learning

* cannot be met by providing mere generalized assertions of appropriateness or unpersuasive categorical assertions of progress

* ABA/Lovaas will likely allow children to be educated in LRE's throughout the remainder of their school careers

* if LEA IEP offer is implemented it is likely that children will never acquire the necessary skills to be educated in a group setting

* inclusive preschool of 6 delayed and 6 typical with teacher, aide, SLP and OT at all times, for 10 hrs @ wk

* confidential outside consultant to LEA was critical of LEA programming as not meeting needs of children with autism, made specific recommendations for improvement, including increasing intensity to a minimum of 24 hrs @ wk; this information not shared with the parents

* as result of new autism diagnoses and independent recommendations for 30-40 hrs @ wk of ABA/Lovaas, LEA offered modified goals and 12-13 hrs @ wk of classroom programming, consultation in the home and 1:1 aide split between the twins

* LEA failed to propose 1:1, adult-directed behavioral instruction at a sufficient level of intensity, and thus denied FAPE to these children

* LEA assessment/evaluation teams included psychologist, nurse, OT, special ed teacher, SLP as team leader, but no individual with significant expertise in autism/PDD

* LEA assessment/evaluation team suspected autism, but did not secure an evaluation from a person qualified to make a definitive diagnosis and programming recommendations

* LEA assessment/evaluation team unable to evaluate cognitive abilities of children with autism, which can be done by a professional with reasonable expertise in evaluating children with autism

* LEA assessment did not identify expected levels of performance, or describe discrepancy between actual and expected performance, and therefore provided insufficient information for IEP team to use in determining the rate of progress to be expected and reflected in IEP goals and objectives

* LEA assessment did not set forth nature and extent of services children needed, recommending only the LEA classroom program, as currently available, and as contrary to persuasive expert opinions of parents' experts

* LEA assessment did not address EYSE needs, despite evidence of regression over recent break in schooling (due to transfer to district)

* LEA assessment failures constituted a substantial procedural violation of the IDEA, which alone warrants conclusion IEP offer was inappropriate

* after 2nd and 3rd MD autism/PDD diagnoses, parents requested ABA/Lovaas at home, LEA refused on grounds that LEA program was appropriate with additions of a few goals (10 hrs @ wk), and direction from special education director-decision-maker limiting the parents and IEP team staff to consideration of existing programs only

* LEA denied the children EYSE, based on staff judgment of no regression over short breaks during school year, and ignoring evidence of past regression over longer summer breaks

* EYSE need supported by parents' expert witnesses, and meets childrens'' need for intensive instruction before preschool years are gone

* re: intensity alone: "even if District staff had the intent and training to provide a suitable instructional approach, and could ensure the provision of one-on-one instruction, the level of intensity proposed (of 13 hrs @ wk) would be insufficient."

* rate of expected progress reflected in IEP goals, as revised, was so far below the children's capabilities and what would be expected in their home program, that the LEA proposed progress would be deemed minimal and inadequate if it could be achieve in LEA placement (parents' experts' testimony)

* IEP would cause children to lose skills, acquire no meaningful language, become dependent and socially isolated; IEP would harm children (parents' experts' testimony)

* LEA staff did best they could in LEA placement, cared and worked hard, but children had complex individual needs

* although procedural violations were found, ALJ also went on to find substantive violations of the IDEA

* IDEA requires progress be measured against performance criteria outside the typical classroom setting (requires generalization)

* LEA staff maintained they did not deem it necessary to instruct the children in the adult-directed approach [ABA/Lovaas], thus the requisite consistency between home and school cannot be provided by the LEA

* LEA expert witness preferred a child-directed approach, "incidental teaching" in a naturalistic context

* LEA failed to use an effective instructional approach for these children, therefore, not a methodological choice case

* if the views of school personnel regarding an appropriate educational placement for a disabled child were conclusive, then administrative hearings conducted by an impartial decisionmaker would be unnecessary.

* parents' ABA/Lovaas experts testified based on their actual experience with numerous autistic children and a review of empirical studies

* evaluation and videotape of ABA/Lovaas consultant made about time of LEA refusal of ABA/Lovaas funding was admitted into evidence to show children's low level of skill after history of special education for at least 1 year by LEA

* father repeatedly observed children to be without consistent adult supervision, wandering around room, failing to interact with peers in LEA placement

* father concerned that lack of consistency in LEA placement was undercutting benefits of home ABA/Lovaas

* parents experts observed children; and one of them observed the home program several times, and visited the LEA placement proposed

* ALJ accepted parents' experts' view of window of opportunity for ABA/Lovaas, time of the essence

* ABA/Lovaas consultant Wolff testified to progress children made in ABA/Lovaas after IEP offers made

* although LEA staff testified children made progress, this was largely unsupported by their own records; functioning levels remained unchanged, or deteriorated over 2 years

* LEA expert witnesses had not met the children and had more limited experience than parents' experts, and failed to support their opinions with the same depth and specificity as parents' experts

* LEA expert witnesses cited to unpublished literature of Dr. Geraldine Dawson, criticized by parents' expert as an unscientific review

* parents' expert witness criticized literature relied upon by LEA expert witness re: incidental teaching in a naturalistic environment

* parents' expert witness had substantially greater experience with young autistic children that LEA expert

* parents' expert witnesses afforded greater weight than LEA experts and LEA staff witnesses

* none of LEA staff witnesses have any significant expertise in the education of preschool aged autistic children

* an EYSE period during which there was no LEA programming allowed the ALJ to attribute progress made during that period, and thus generally throughout, to the ABA/Lovaas home instruction

* experience of child in previous LEA programs is relevant to determining the efficacy of educator's policy choices

* mere adjustments to a program, or belated increases in services, may be rejected as inadequate in light of past difficulties with the LEA

* several years of inadequate IEP offers may support denying the LEA the opportunity to replicate the ABA/Lovaas program in an LEA placement

AGE: 5 years 7 mos old, at time of decision DIAGNOSIS: Autism ABA: * LEA had provided private placement out-of-district, with transportation, at Allegro School of 10 hrs @ week of ABA/Lovaas + OT + SLP in an autistic classroom 4:1, with a personal 1:1 aide + 6 wks of EYSE, and parents had provided 30 hrs @ wk of ABA/Lovaas on weekends at home (total of 40 hrs @ wk of ABA/Lovaas) which produced significant progress but little generalization to home where child's behavior was dangerous. The private placement became unavailable.

SIZE OF CASE: 5 days + late receipt of experts reports after a 4 week long residential evaluation + 3 more days of hearing after failed settlement attempts, all over 10 months time (December to October)

* parents sought residential placement long-term, or short-term residential placement followed by ABA/Lovaas home-based for 70 hrs @ wk

* LEA ordered to fund ABA/Lovaas home-based program of 10 hrs @ day, 7 days @ wk (total of 70 hrs @ wk of ABA/Lovaas), year round, with gradual introduction into public school system of no more than 1 hour at a time

* reimbursement for all past direct costs of ABA/Lovaas home program, despite failure of parents to inform LEA of when the home program began

* failure of generalization of educational benefit to the home under a prior IEP justified the parents in providing supplementary home programming which was appropriate, and thus must be reimbursed

* LEA actions may not be accorded a presumption of correctness [by NJ state regulation]

* is home, with Bancroft ABA/Lovaas instruction, certain to succeed, as past performance has taught

* previous IEP was not LRE, because LEA has not shown generalization in the home of the benefit gained at Allegro school

* mainstream kindergarten with ABA/Lovaas trained teacher (trained by the mother) to be child's 1:1 aide + related services + a few hours of ABA/Lovaas instruction at home

* parents requested LEA funding for 40 hr @ wk ABA/Lovaas home-based program, with parent training, to be supervised by Bancroft, and would have accepted kindergarten placement offered by LEA, in addition

* LEA superintendent refused above request on grounds that child was progressing at Allegro ABA/Lovaas @ 10 hrs @ wk

* after above refusal, parents began ABA/Lovaas home program with Bancroft @ 30 hrs @ wk which physically and financially exhausted them

* parents notified LEA of independent evaluations and that they would pursue Bancroft ABA/Lovaas home program of more intensity

* parents did begin Bancroft ABA/Lovaas home program of more intensity without prior approval of LEA

* parents had to request parent training and a home behavior management plan; LEA could not be involved and recommended ineffective remedies, particularly for behavioral refusal to eat

* parents complained that 10 hrs @ wk of ABA/Lovaas at Allegro was insufficiently intense

* LEA autism expert Handleman found progress as a result of Allegro ABA/Lovaas and home-based Bancroft ABA/Lovaas components of prior programming, and recommended at least 30 hours of ABA/Lovaas, preeminently at school, but also with a concurrent, intensive home-based component as essential

* disputes as to consistency (lack of coordination between school ABA/Lovaas and home ABA/Lovaas programs run by different consultants)

* child exhibited self-injurious and aggressive behavior at home, choking 3 year old sister breathless, throwing her over railings and down stairs, biting her; sister now depressed and suffering from voluntary mutism; child is large and strong for age

* parents sent 3 year old sister to daycare and hire a caretaker for sister at night, in their home, for her protection

* parents' expert Gerenser opined that parents' effort had subjected them to stresses which would eventually be intolerable

* mother testified that her health had been impaired and father had left his job as a result of efforts necessary to put together Bancroft ABA/Lovaas home program

* parents' expert Gerenser relied on aggressive and eating behaviors which she personally observed in the home, and value of uninterrupted consistency to support recommendation for residential placement * parents' expert Gerenser opined that in absence of Bancroft ABA/Lovaas home program, child would regress

* video of aggressive, explosive behavior at home provided to LEA expert Handleman

* LEA autism expert Handleman did not have sufficient data to determine whether residential placement was needed

* LEA autism expert Handleman opined that intensity of intervention is critical from ages 2-7, although autism is a lifelong concern

* LEA autism expert Handleman recommended a 4 week long residential evaluation by Seashore House to determine whether residential placement or an intensive home ABA/Lovaas home supplement was necessary to cope with behavioral challenges

* before hearing, LEA refused to pay for Seashore House evaluation; apparently it was undertaken, mid-hearing, to assist in failed settlement effort

* Seashore House evaluators concluded that residential placement was not appropriate because child was too high- functioning; recommended the 10 hr @ day, 7 day @ wk ABA/Lovaas program and slow introduction to school of no more than 1 hour @ day with a 1:1 ABA/Lovaas shadow eventually ordered by the ALJ;

* ALJ clearly considered evidence created and acquired after the IEP offer under consideration in judging appropriateness of that offer and in formulating appropriate relief for the child

* parents' expert Gerenser opined that 10 hr @ wk Allegro school could not offset regression if Bancroft ABA/Lovaas home program were discontinued; Allegro 10 hr @ wk program had not fully tapped child's potential and progress at Allegro school could be traced to Bancroft home program

* LEA had available through Allegro, a more intensive, Lovaas-method pilot class, in existence about 1 year, which ran in-home programming, whose instructors were trained by Bancroft

* oddly, Allegro administration testified they would not direct child's education unless location of instruction was at Allegro school

* mother testified that when Allegro school closed for 1 month of summer, child regressed within 48 hours to choking his sister

* during last days of hearings Allegro administration came to testify for the parents in support of Bancroft ABA/Lovaas home program as a necessity, a change of opinion occasioned by their first opportunity to see the child at home where they were shocked by child's aggressiveness; warned against introducing child to public school's mainstream kindergarten

* LEA superintendent was aware of Allegro costs, and residential placement costs, but added that cost has never been a consideration

* parent's Bancroft expert recommending home-based, more intensive ABA/Lovaas for at least first year or two for this child; school not relevant, and not contacted

* Bancroft's Mary Jane Weiss and Ronald Wright (for consultation to home-based program)

* Jan S. Handleman (expert for LEA) In re Child with Disabilities, 23 IDELR 471, 2 ECLPR 160 (SEA Conn. 1995)

* ALJ finds MD diagnosis "consistent with the diagnosis as established for use under federal education law guidelines for educational exceptionality"; citing to 34 CFR Section 300.7(b)(1)

* there was a continuing underlying disagreement as to the proper diagnosis, which prevented LEA from accepting parents' experts' recommendations which were consistent with recommendations of an evaluation they sought by due process and obtained by mediation

* parents sought independent evaluation by neurologist (about 10 months into ABA/Lovaas home programming, ie. mid-recovery)

* neurologist reported: "While it is certainly understandable that a group could be confused by [the child's] spontaneous language and warm interaction with his parents it must be appreciated that autism is a spectrum, that there are children who have the full constellation of symptoms and other children who have portions of the symptoms and not others. This does not make them any more or less autistic. The term autism should be seen as a neuro-developmental disorder which implies [exceptionalities] in learning style and therefore, implies the need for specialized programming."

ABA: parents provided ABA/Lovaas at home at their expense + 9 hrs @ wk in parochial preschool (requested LEA to provide 1:1 aide, LEA denied)

* reimbursement of past ABA/Lovaas home program of 11 months and ongoing until LEA can duplicate ABA/Lovaas services at school

* LEA directed to employ the services of a knowledgeable ABA/Lovaas consultant/monitor with at least master's degree level of training who has designed and implemented programs for autistic children and can engender trust from both parents and teachers, even if parents' consultant is not available, to provide leadership so LEA can duplicate ABA/Lovaas services at school in an LRE in the future, and make the ultimate decisions on transitioning

*no reimbursement for parochial school tuition, since LEA offered an appropriate classroom socialization opportunity in the IEP, which the parents did not use

* LRE takes on slightly different dimensions when applied to a pre-school child because most pre-school age children by definition are not eligible to attend a public school program

* because the LEA failed to provide an appropriate 1:1 discrete learning program combined with an appropriate social milieu, the home-based program, when combined with the day care program for non-disabled children conducted by the mother, constituted the LRE for this child

* 34 CFR Section 300.551 lists home instruction as one of the options on the continuum of alternative placement that must be available to meet the needs of children with disabilities

* LEA must fund ABA/Lovaas home program until LEA is prepared to offer ABA/Lovaas program in a LRE--one of the LEA's elementary schools

* 9 hrs @ wk "at risk" pre-kindergarten program (15 children, 10 at risk, 5 require special education) + SLP by a school psychologist + transportation (parent request for bus aide denied) + necessity for additional OT and comprehensive medical center evaluations need to be completed

* during last year and 1/2 parents and LEA have reached tentative agreements re: FAPE and placement, however, each time, due to mutual distrust, the agreements have failed; hence both parties requested due process

* LEA filed first request for due process to obtain evaluations, and reasonable access to the ABA/Lovaas home program parents had begun after rejecting IEP offer

* ALJ found that LEA insistence on these more extensive evaluations before [ABA/Lovaas + OT + SLP] services would be provided was simply not necessary

* mediation resulted in an agreement that if evaluation requested found that ABA/Lovaas home program was benefitting child then LEA will reimburse for 7 months, pay for 1 month prospectively, and attempt to develop a school- based ABA/Lovaas program with parents' consultants

* evaluation was supportive of ABA and mainstreaming for child, concurring with parents' expert Dr. Michael Powers who apparently first recommended ABA/Lovaas to family + OT + SLP

* ALJ found that there is no apparent reason why these recommendations and the resultant program could not have been implemented by the LEA at this time, or at time of child's referral to LEA

* IEP meeting followed, without closure; LEA offered a summer recreational EYSE, which parents rejected

* parents sought an independent evaluation by a neurologist who confirmed autism diagnosis

* parties extended the time-span of the mediation agreement funding the ABA/Lovaas home program

* ALJ found the LEA to be bound by this mediation agreement so that the child had the benefit of "stay-put"; holding LEA required to continue to pay for ABA/Lovaas home program until resolution by judicial determination

* LEA complained they were not getting information re: progress of child in ABA/Lovaas home program, meetings to plan for transition to school at beginning of next school year not going well in spring, so LEA requested due process

* ALJ found that LEA insistence that parents' consultant must share ABA/Lovaas program schedule with the LEA before LEA could implement an appropriate school-based ABA/Lovaas program was not necessary

* "The Board has continually taken a reactive posture in response to G.'s educational needs, while the parents have been dynamically proactive in organizing and implementing a sophisticated home-based program which the Board staff members still do not appear to understand or appreciate. It is not the parents' responsibility or role to educate the Board's staff or to provide consultants. If the parents could unilaterally research and establish a successful behavior modification program for G., so could the Board, but it failed to do so."

* the fact that LEA recommends an course of action does not mean the IEP team so recommends unless the parents concur; parents must have concurred in IEP for stay-put to be invoked

* LEA failed to consider the nature and needs of a child with autism in terms of the intensity of instruction and socialization

* A child with autism cannot be successfully placed in a pre-school program unless such a program is expertly and carefully tailored to his needs with continuous and consistent behavioral programming. There is no evidence the options offered were so tailored.

* almost any reasonably bright, patient person with training and supervision, can conduct ABA/Lovaas discrete trial learning sessions

* a video of the child at the outset of the ABA/Lovaas home program (occurred after parents rejected IEP offer at issue) and of the child at time of hearing was admitted and showed that child benefitted greatly from ABA/Lovaas home program

* Dr. Michael Powers (about time ABA/Lovaas home program began, recommending it) Kalamazoo City Pub. Sch. and Kalamazoo Valley ISD, 2 ECLPR 180 (SEA Mich. 1996)

ABA: LEA agreed to provide discrete trial training during settlement of a previous due process hearing concerning EYSE and this IEP; several weeks into the IEP, and into the due process hearing, the parties disagreed on the number of hours of discrete trials and the nature of those trials

SIZE OF CASE: 14 hearing sessions; 18 witnesses, open hearing; 6 areas of disagreement

* parent denied reimbursement for cost of her preferred ABA/Lovaas provider over past EYSE

* parent denied reimbursement for cost of home-based ABA/Lovaas after withdrawing child for 3 days from stay- put agreed-school-placement during due process hearing

* ALJ ordered child to receive 1:1 discrete trials for 1/2 time of AI class + 2 hours @ day on Saturday and Sunday; all other discrete trials to be in small group setting

* ALJ formulated a communication plan for parent and LEA (ordered immediately during hearing, with ALJ retaining jurisdiction to assure completion of plan)

* ALJ deferred decision on the issue of upcoming EYSE configuration, but retained jurisdiction to decide this issue if the parties could not after a spring IEP meeting

* mid-hearing LEA discovered it had failed to evaluate child for OT, agreed to provide evaluation and services; ALJ retained jurisdiction to address this matter, if necessary

* ALJ ordered parent and LEA to mutually agreed on an outside expert, to be paid by LEA, to provide neutral advice, and strongly suggested Jan Handleman since he appears on both the LEA and the parent lists created during due process (ALJ reserves right to appoint an expert, if no agreement)

* ALJ order parties to report in writing any violations of decision or special education laws in future for his expedited resolution

* ALJ warns and cites to Bd of Ed of Comm Consolidated Sch Dist No 21 v. Illinois Stat Bd of Ed, 18 IDELR 43 (7th Cir. 1991) finding that irreconcilable differences developed between parents and LEA due primarily to parent's actions causing hostility among LEA staff, resulted in finding that LEA programming could not provide educational benefits to the child, such having been poisoned by the relationship between the parents and the LEA, and resulted in a remedy that the LEA was ordered to educate the child privately.

*MI state standard, higher than federal IDEA standard is programming must be "designed to develop a student's maximum potential" which neither legislature nor case law has yet defined, but ALJ and LEA interpreted as "whether the programs and services set forth in the IEP reasonably and continually challenged the student to meet his or her goals and objectives.'"

* ALJ does have jurisdiction to consider equitable and other factors and to fashion equitable forms of relief, citing OSEP authority

* on the parent to show LEA personnel were not fully qualified before parent could be reimbursed for costs of her expert witness

* on the parent to show IEP offer was inappropriate, before reimbursement can be ordered (not that parent actions were reasonable)

* 1/2 day in AI class + 1/2 day in regular class using ABA/Lovaas method at school

* ALJ found no 34 CFR 300.504 refusal notice violations, and accepted IEP offer generated during due process at his direction to be sufficiently specifically written

* LEA offered EYSE of 5 full days, 27.5 hrs @ wk, 1:1 discrete trial instruction + SLP + 10 hrs @ wk in home discrete trial instruction to be provided by the parent, with support from LEA to insure consistency

* parent wanted to accept portions of EYSE IEP, but LEA took an all or nothing approach

* before hearing LEA and parent agreed to YMCA preschool + 9 hrs @ wk of discrete trials by private program programs + 5-10 hrs @ wk home instruction [by ABA/Lovaas], as a result of parent complaint to the state department of education informally

* before hearing, at direction of ALJ, LEA and parent agreed on next year's IEP which is contested in this case

* given circumstances of IEP being developed at request of ALJ before hearing, it would not be granted that deference typically granted an IEP developed in accord with IDEA procedural protections

* mid-hearing LEA discovered it had failed to evaluate child for OT, and performed an evaluation, and agreed to add OT to IEP offer and stay-put agreement

* during the hearing and the direction of the ALJ the parties entered discussions and agreed to IEP goals and objectives, to the meaning of "discrete trial," to 27.5 hrs @ wk of classroom placement + 1:1 SLP + 1:1 oral praxis exercises daily + observation and input by parents' ABA/Lovaas expert, and later on to the nature of adult assistance to be provided in the regular education setting

* after all these agreements, the parent removed the child from a portion of the "stay-put" school placement to provide ABA/Lovaas at home

* parties agreed at hearing that child needed EYSE, but could not agree how instruction should be configured (ALJ deferred this issue)

* evidence re: LEA's success in integrating autistic students was basically hearsay

* ALJ did not have the data to reach substantive decisions, and directed the creation of a data collection system to drive ABA/Lovaas programming substantive decisions every 2-4 weeks

* issue: how many hours of discrete trial (either 1:1 or small group) should be provided @ wk in addition to 1/2 day of regular kindergarten placement

* parent's expert conceded 40 hr @ wk total instruction would be appropriate, leaving issue of whether 12.5 more hours of discrete trial should be provided at home

* issue: should discrete trials be provided 1:1 or in small group * parent want 1:1

* LEA's choice of method is small group; and LEA has the choice * parent also argued for increased intensity based on compensatory arguments and child's advancing age

* this child was making progress and continually being challenged to meet goals and objectives at lower levels of intensity, and had developed imitative repertoire and language skills

* appropriate levels of intensity and 1:1 or small group configuration should be established by collection and review of data concerning rate of skill acquisition; such data collection is feasible and imperative in a school setting, and will allow for program adjustment every 2-4 wks; to rely on "observations" to make these decisions is too subjective, and unacceptable

*LEA's current data collection procedures were found clearly inadequate to make these programming decisions re: hours and settings of discrete trial

*ALJ found LEA was ready to implement all aspects of IEP program it developed during due process proceedings

* LEA was going to use college practicuum students as ABA/Lovaas therapists at school, and used an administrative committee to provide ABA/Lovaas consulting and curriculum development

* parent's expert criticized the consulting-committee for failing to include a licensed (clinical) psychologist to supervise the therapy--ALJ rejected this contention (but did require LEA to hire a consultant, not necessarily an licensed, clinical psychologist)

* parent moved to preclude LEA from introducing any evidence re: what LEA believed was FAPE for the contested school year because LEA intentionally chose not to offer a school year IEP at the spring IEP meeting [ie. snapshot argument]; since LEA failed to offer any program for contested school year at the time of the spring IEP meeting on appeal, parent contended LEA should not be able to do so at hearing

* ALJ pressed parent to concede that "given the ultimate goal of the hearing process by way of a remedy is to determine the appropriate program for the child, evidence of both the parent and the Districts regarding programming options for the child, whether raised at the May 1995 [IEP] or not, was admissible for this purpose." [of forming remedy]

* ALJ ruled that evidence of procedural violations surrounding the IEP meeting would not be accepted inasmuch as the parent agreed that procedural violation evidence would not change the relief parent was requesting (but might be subject of complaint for damages in another forum)

* evidence of very little communication, if any, between various person providing services to child at school and at home, which all parties agreed was not in the child's best interests

* mid-hearing LEA discovered it had failed to evaluate child for OT, and performed an evaluation, and agreed to add OT to IEP offer and stay-put agreement

* evidence created during and even after the hearing by the ALJ (letters and evaluations he directed) was admitted into the hearing record

* evidence gleaned by the ALJ from observing the child in the LEA placement during the hearing was considered

* this child was making progress and continually being challenged to meet goals and objectives at lower levels of intensity, and had developed imitative repertoire

* LEA experts unwilling to accept "window of opportunity" but many agreed that it was clearly better to provide more intensive programming to children with autism in the preschool years--teach them the right way before they become too good at being autistic

* each parties experts at various times acknowledged to some degree the validity of the opposing party's position, but most "generally" and not relating to child individually

* possible reason for behaviors occurring only at home and not at school which experts from both sides notes was phenomenon known as "behavioral contrast," i.e., a child just explodes or lets go in a different environment as a release

* conduct of LEA at IEP meetings and prior, caused parents and parents' expert allies and therapists to gain the clear and understandable perception that LEA was being dilatory and retaliatory given parent's demands in involvement with her preferred ABA/Lovaas consultant

* during due process ALJ directed parent and LEA each to generate lists of qualified ABA/Lovaas consultants nationwide, and these lists were admitted into evidence

* Dr. Patricia Meinhold, parent expert and consultant who also consults with LEA, and provided some input to this LEA Kalamazoo Valley ISD and Sch. Dist. of the City of Kalamazoo, 2 ECLPR 209 (SEA Mich. 1996)

AGE: 2 years 10 mos. old DIAGNOSIS: autism with mental retardation and seizures (on anti-seizure medication) * LEA categorized as "autism"

ABA: LEA IEP offer included full-time ABA/Lovaas * parent wanted in-home ABA/Lovaas of 40 hrs @ wk and a specific ABA/Lovaas consultant

* ALJ did order LEA to hire and train therapist to provide the 10 hr @ wk in-home ABA/Lovaas component of their IEP offer to be delivered after-school and 4 hours on Saturdays for 1 calendar year into the future

* to maximize potential [MI's higher state standard], interpreted by MI case law as "does not mean utopian or the best education possible"

* LEA suggests: "reasonably calculated to enable child to develop his maximum potential"

* neither reasonableness of parental reaction, rational foundation of parental fears, nor lack of trust or confidence in LEA staff meets parents' burden of proof to show inappropriateness

* school placement of ABA/Lovaas program would provide constant, pervasive, daily professional-level monitoring of ABA/Lovaas discrete trials

* natural environment of home not relevant to highly structured nature of ABA/Lovaas instruction

* placement in a preprimary impaired classroom with 25 hrs @ wk ABA/Lovaas-type discrete trial method of instruction for 5 full day @ wk + SLP [27.5 hrs @ wk at school] + an 10 hr @ wk ABA/Lovaas in-home component [total of 35 hrs @ wk ABA/Lovaas] + transportation, to be implemented within 14 days of IEP offer

* in-home ABA/Lovaas component was not clearly defined at time of IEP offer, and ALJ had distinct impression that true level of LEA's commitment was limited to 26 hrs @ wk ABA/Lovaas at school

* IEP meeting in which parents requested in-home ABA/Lovaas supervised by Dr. Meinhold was suspended because the administrative representative of the LEA claimed to lack the authority to commit funds (this procedural violation not addressed by ALJ)

* at reconvened IEP meeting, LEA made the school-based ABA/Lovaas offer found appropriate by the ALJ

*ALJ found LEA substantively complied with IDEA procedures for notice and content of IEP offer

* parents and parents' expert insisted on use of parent expert as consultant (denied)

* LEA prepared to constantly collect data, monitor trials, use inter-observer reliability protocols and adjust program as driven by data

* LEA teacher had considerable university-level behavioral consultation available to her

* videotape of child at home, taken after 1st IEP meeting refusal to fund, was admitted into evidence, as was another videotape of in-home program well after contested IEP process

* LEA submitted videotapes of the proposed ABA/Lovaas classroom placement (presumably created after IEP meeting)

* by agreement of parties, ALJ observed the proposed ABA/Lovaas classroom placement during the hearing and found it vibrant, highly organized, richly staffed setting

* parents' expert consultant wrote a proposal to the LEA for an in-school ABA/Lovaas program for the LEA, as invited by the LEA

* while due process pending, parents allowed LEA to observe the in-home ABA/Lovaas program, and these observations were admitted into evidence

* 2 complete book-length documents on behavioral practices were admitted into evidence and reviewed by the ALJ

* LEA was willing to radically alter a preprimary impaired classroom to provide 1:1 ABA/Lovaas programming at school, including hiring more staff, and forming 3 support committees, use of college practicuum student therapists

* state review officer upheld ALJ's decision for the district Board of Educ. of the City Sch. Dist. of the City of NY, 24 IDELR 199 (NY 1996)

* erroneous classification issue not raised by the parent at the hearing, and not addressed by the review officer

ABA: parent provided concurrently with LEA prior programming * LEA offer adopted ABA/Lovaas method

SIZE OF CASE: 1 day hearing; parent represented by lay advocate; after hearing newly retained parent attorney requested to reopen the record to address procedural issues; ALJ declined to do so

* to remedy procedural violation of failure of teacher to attend IEP meeting, IEP team ordered to reconvene to write goals

* parent failed to show private ABA/Lovaas school placement offered an appropriate program, report of school did not reveal what services had been provided, so reimbursement denied

* on the district to show appropriateness of IEP offer and procedural compliance (LEA failed to meet either)

* on the parent to show appropriateness of her unilateral private ABA/Lovaas school placement (virtually no evidence offered by parent, just private evaluation recommending the private ABA/Lovaas school placement by an evaluator who had not seen the private school, and before child entered the school, and a post-hearing evaluation of the child by his private school teacher which failed to describe services provided)

* parent request for remand to develop the record on this last point was denied because she did not offer a compelling reason

* self-contained 6: 1 + 2 classroom year-round + OT + SLP+ 1:1 aide, incorporating ABA/Lovaas method

* dissatisfied with LEA preschool program, parent sought out ABA/Lovaas consultation for an in-home ABA/Lovaas program

* parent obtained private evaluation, diagnosed with mild autism and mild mental retardation, recommended full- day ABA/Lovaas

* ALJ found this IEP meeting and recommendation made a nullity because IEP team was not validly constituted due to teacher's absence

* apparently placement decision was made by IEP team before annual goals were written (not addressed by ALJ)

* EYSE was not offered until July 27 of the summer through mid-August of the summer, and rejected by parent as late, and inappropriate

* ABA/Lovaas recommended in a written letter from the Eden Institute, who did observe the child's first in-home ABA/Lovaas program

* school psychologist reported observing child in classroom sitting alone looking at book, inattentive to group lesson, distracted and out of seat, as did other LEA witnesses

* in view of limited record before the ALJ, the review officer accepts additional documentary evidence from both parent and LEA

* the Eden Institute San Bruno Park Elementary Sch. Dist., 2 ECLPR 200 (CA 1996)

SIZE OF CASE: LEA wanted to assess child; parents refused; LEA filed for due process (parent had filed an earlier due process petition alleging denial of FAPE, and seeking reimbursement, which had been withdrawn for mediation); both sides moved for summary judgment on assessment issue

* assume that civil procedure standards for summary judgments applies, but neither motion met standards

* parents contend that child should not be subjected to an additional evaluation solely for the LEA to prepare for hearing on the parents' due process complaint

* parents contend LEA has not alleged any change in circumstance to warrant a new assessment

* an LEA must obtain the parent's written consent to assessment prior to beginning assessment

* parents consented to earlier assessments before several IEP meetings re: their requests for ABA/Lovaas

* parents want child to be assessed by Bryna Siegel (pro-Lovaas) Flour Bluff Indep. Sch. Dist., 25 IDELR 1121 (SEA Tx. 1997)

AGE: 4 year old DIAGNOSIS: PDD-NOS + speech impairment + seizure disorder ABA: ? hrs @ wk, in-home, provided by parents

SIZE OF CASE: prehearing conferences to accommodate LEA outside assessment (2) + 4 day hearing, 8 witnesses

* LEA failed to implement EYSE for 1 summer, and for that summer parents were reimbursed for the ABA/Lovaas home program (less a period = to school's Christmas break)

* although IEP offer was found substantively inappropriate due to no 1:1 aide, reimbursement relief was denied, and the ALJ fashioned appropriate relief of adding a 1:1 aide to LEA classroom setting

* parent has the burden of proof that LEA program will not confer an educational benefit

* as to home-based versus school-based programs, this ALJ has repeatedly concluded that school programs offer students with autism opportunities to socialize with peers, generalize mastered skills, and participate in typical childhood activities in a manner not possible in the home-based programs

* it will rarely be appropriate to require school districts to pay the entire cost of home-based programs, absent a student's inability to attend to school or to tolerate a school setting

* 6 hrs @ day (in 2 classrooms) + SLP + OT + assistive technology + classroom modifications + EYSE + in-home training

* 1st IEP agreed to by parents included 3 hrs @ day in LEA classroom program + behavior management plan + transportation + family therapy + SLP + EYSE ( + OT added later in year)

* at 2nd IEP parents requested an ABA/Lovaas program to supplement the LEA programming; LEA denied on grounds that ABA/Lovaas not age appropriate, too intensive, and potentially stressful for the child

* several more IEP meetings, without parental agreement, developed some of the contested IEP offer

* parents filed for due process and took child out of school after about 1 year of concurrent programming

* LEA sought an outside evaluation, by Vineland, the recommendations of 1:1 instructional ratio for new skills

* another IEP meeting to add assistive technology, EYSE, peer tutoring, behavior management and parent training to the IEP offer, but still no 1:1 aide

* the social benefit of classroom placement is not sufficient, standing alone, if the student has shown the ability to master more complex academic skills and if, as here, the IEP that experts agree is appropriate requires a broad range of academic skills. It is not enough that the experts agree the IEP is appropriate. It is further required that there be demonstrated means for the student to master the IEP goals, considering his strengths and the unique characteristics of his disability. In the absence of a demonstrated "gateway to mastery," it is impossible to conclude that the IEP developed by the IEP committee is a reasonably calculated to enable the child to receive educational benefits. As the professional literature suggests, 1:1 instruction in new skills is necessary for young children with autism ot make educational progress.

* per LEA experts, ALJ finds: there is no documentary evidence that any method of addressing the unique needs of students with autism which does not include a behavioral emphasis, family participation, 1:1 instruction, integration with normal children when the child is ready, a comprehensive approach, not just addressing the language deficit, and over 20 hrs [@ wk] of intensive training for at least the first 6 mos, is effective in providing a means for students with autism to acquire the skills necessary for them to gain an educational benefit from preschool and classroom situations

* if both LEA and parent methods effective, ALJ would have to deny reimbursement and prospective relief

* LEA is entitled to chose any educational methodology that confers an educational benefit

* ALJ effectively finds 1:1 aide is the equal, methodologically, of ABA/Lovaas: "The mastery that [] has achieved in his home-based Lovaas program will not be repeated in the classroom setting unless he has someone to assist him from moment to moment in attending to his educational program."

* prehearing conference resulted in continuances to allow LEA to perform additional assessments and for parents to review the same

* LEA classroom teacher was experienced autism teacher, claimed child made progress, and evidenced flexibility in tailoring classroom to this child

* parents attribute child's progress to vitamin B6 therapy and ABA/Lovaas, but ALJ found it was not reasonable to assume that child's advancements were not partially attributable to LEA classroom

* LEA classroom logs documented nonacademic skill progress, but little preacademic skill progress

* ABA/Lovaas data logs documented academic skill progress as a result of 1:1 instruction

* mother observed LEA classroom that in absence of 1:1 instruction child's behavior was inattentive, non- participatory and inappropriate

* evidence of all observing the child was that ABA/Lovaas home program and vitamin B-6 therapy produced improvements for child

* LEA's outside evaluator recommended: a high degree of structure, encouragement of pretend play, a 1:1 instructional ratio for new skills, a reward system of reinforcers, chaining behavior analysis, encouragement of pointing to communicate, peer tutors, SLP, consideration of a nonverbal communication system, parent training, family therapy and EYSE

* Vineland is a parent interview, and parent expectations can change thereby affecting scoring

* ALJ acknowledge ample evidence that home-bases ABA/Lovaas program conferred an educational benefit

* no evidence as to how child would be able to acquire skills and access supplementary services without a 1:1 aide

* LEA logs showed child did little more than accept the school routine and avoid being overly disruptive without 1:1 assistance; even with 1:1 his ability to attend varied

* Dr. Glen O. Sallows, Wisconsin Early Autism Project, parents' ABA/Lovaas consultant

Board of Educ. of the Greenwood Lake Union Free Sch. Dist., 23 IDELR 1032, ( SEA NY 1996)

AGE: 6 years old DIAGNOSIS: PDD and cerebral palsy, premature birth, respiratory distress, hydrocephalus and seizures at birth, now controlled; paralysis on one side, microencephaly, mentally retarded

ABA: as a 5 year old, child was provided an in-home ABA/Lovaas program funded by the LEA and Medicaid

* parents requested continuation of ABA/Lovaas, with LEA backup funding in case Medicaid discontinued funding, year round, with parents to select child's teacher + an integration opportunity

* LEA allowed to meet again to revise IEP to add shortterm objectives, and apparently excused for failure to address mainstreaming issue

* TEACCH was LRE as providing a group setting to develop social skills (with disabled peers)

* change of placement from in-home ABA/Lovaas funded by LEA, to a new placement in TEACCH program with 6:1+2 ratio + SLP + PT + OT

* parents were invited, but did not attend 2nd IEP meeting to determine which TEACCH classroom child would be placed in

* TEACCH program was highly structured instruction in basic skills, needed to achieve IEP goals

* TEACCH methodology limited 1:1 instruction to 30 min 2x @ day (ALJ found by subtracting breaks in ABA/Lovaas 1:1 instruction of prior year, that comparable amount of 1:1 instruction offered)

*ABA/Lovaas is not the only methodology by which this child could benefit from instruction

* evaluations of child before and after IEP meeting at issue recommended continuation of ABA/Lovaas

* parent's expert had seen child once and not seen LEA TEACCH placement, but was concerned about regression, too noisy environment, lack of enough 1:1 instruction

* concern for possible regression dismissed by ALJ as speculative, and thus not a basis for finding LEA offer inappropriate

* ALJ cited child's SLP progress in prior year when instructed in non-ABA SLP methods as showing that ABA/Lovaas was not required (concurrent ABA/Lovaas instruction with this SLP)

* MD Wolff, neurologist recommended ABA/Lovaas San Bruno Park Elementary Sch. Dist., 2 ECLPR 201 (CA 1996), related ruling at 2 ECLPR 200

AGE: 4 years old DIAGNOSIS: PDD with autistic-like behaviors ABA: 20 hrs @ wk, and later provided by LEA via mediation

SIZE OF CASE: LEA seeking to assess student; 1 day hearing with 4 witnesses + 1 additional witness by telephone later

* child had been in home-based ABA/Lovaas more than a year, so LEA allowed to assess child to determine how much progress child had made and what current PLEP is

* increase of programming from 20 hrs @ wk to 40 hrs @ wk constituted a significant change in programming which triggered LEA's right to assess student

* child is at an age when significant change can occur over a short period of time

* LEA has right to select assessor of its own choosing, even one who does not support ABA/Lovaas methodology

* on district to establish that conditions warrant assessment sooner than 3 years

* LEA wants to administer Vineland, Bayley and have special education teacher and psychologist observe

* LEA witness admitted B. J. Freeman, who has observed LEA's early childhood program, does not believe in ABA/Lovaas method, and unsure whether Dr. Bryna Siegel could be impartial

* LEA is attempting to gain an expert opinion in preparation for the due process hearing requested by the parents on the issues of placement and reimbursement (an after-IEP-created exhibit which LEA must think would be admissible)

* LEA staff have continued to monitor child's progress by observation of in-home program; parents gave access

* LEA expert assessor: B. J. Freeman Watertown Pub. Schs., 24 IDELR 92 (SEA Mass. 1996)

* LEA did not have a program option available to meet child's intensive needs, therefore child placed in program requested by parents

* attending 2 separate 1/2 day LEA programs with different peers would be inappropriate for child (who needs consistency)

* child's readiness skills for inclusion were not yet sufficiently developed for progress to occur in an inclusion setting (parents' expert)

* LEA IEP offer at issue is: 20.5 hrs @ wk of integrated preschool (15 students, 7 of whom may be disabled) + SLP + OT + 6 hrs @ wk home component to be provided by the May Center (an ABA./Lovaas provider)

* LEA placement prior to dispute: integrated preschool program of 15 students, 10 hrs @ wk, using a transactional/interactional behavioral approach + 12 hrs @ wk of in-home ABA/Lovaas

* LEA IEP offer at issue is: 20 hrs @ wk of preschool + SLP + OT + 6 hrs @ wk home component

* child required a small classroom with an experienced teacher, an intensive, consistent program throughout the day and a corresponding home component (based on testimony of several experts)

* LEA program does not provide for sufficient intensive interaction that child requires

* IEP offer failed to conform to evaluations and recommendations of earliest LEA evaluators and later independent medical evaluations secured by the parents

* LEA program does not identify any specific type of behavioral approach to meet child's behavioral needs

* LEA IEP offers only 35 min @ day were not in large group setting * LEA did not have a full-day program option available to meet child's intensive needs, therefore child placed in program requested by parents

* child's last summer program had 3 different classrooms, teachers and groups of peers

* the parents were repeatedly misled or misinformed about the methods of behavior modification used in the LEA classroom

* child was permitted to "stim" in the LEA classroom for up to 13 minutes at a time without serious intervention

* during at-home component child was not permitted to "stim," was required to perform non-preferred tasks

* placement in LEA classes caused increased "stimming" at home and resistance to home instruction

* LEA was aware of the set up for failure of the at home instruction by ABA/Lovaas because of the conflict between methodological approaches at school and in home, and failed to remedy the problem

* League school, parent's placement proposal, can immediately provide for intensive full day, full year program with consistent staffing and peers; teacher have extensive PDD experience; class size is 6-8: 2 and would be consistent with in-home component

* parent's alternative placement proposal is residential placement at the New England Center for Autism

* earliest preschool evaluations of child recommended small, structured, language-based preschool with strong behavioral components, full day, full year program to manage tantrums + home care component + 1:1 aide in any large group

* no member of LEA IEP team reviewed child's medical records or earliest evaluations and recommendations above

* child experienced regression when only LEA integrated preschool programming was provided, including "stimming" and aggression toward younger sister

* parents independent evaluators saw the child, but did not observe the LEA classes or talk to LEA teacher, but saw a videotape made by the LEA and observed child to be "stimming" at school, judged his progress over last year of LEA programming to have been minimal, and recommended ABA/Lovaas full day, 11 mos @ yr + home component

* parents' expert witness, Dr. Levine, observed child in LEA setting--group too large; child not engaged; instructional techniques not current; instructional language of teachers too advanced for child's receptive language level; many missed opportunities; child not benefitting from presence of peers

* LEA witnesses claimed child made significant progress in LEA's integrated preschool setting: bonding, 30 words, loved school

* LEA's own autism training seminars recommended intensive full day programming + EYSE, beginning at age 3, in class of 2:1 ratio;

* early intervention provided by The May Center Board of Educ. of the City Sch. Dist. of the City of White Plains, 25 IDELR 872 (SEA NY 1997)

ABA: LEA provided 26 hrs @ wk of ABA/Lovaas + 4 hrs @ wk of itinerant services + SLP

* ALJ below ordered LEA to provide 40 hrs @ wk ABA/Lovaas prospectively, but denied reimbursement to parents for supplemental ABA/Lovaas to this level in the past

* this state review officer held for the LEA, that its IEP offer was appropriate

* reasonably calculated to allow the child to receive meaningful educational benefits

* LEA provided 26 hrs @ wk of ABA/Lovaas + 4 hrs @ wk of itinerant services + SLP

* student made progress with 25 hrs @ wk of ABA/Lovaas (with concurrent, supplemental parent-provided ABA/Lovaas at home--ALJ could not assume that student would not have made progress without the supplemental home program)

* agreement of LEA and parents on ABA/Lovaas, disagreement on how much this child needs

* child was privately evaluated by a psychologist to document progress with ABA/Lovaas instruction

* both child's neurologist and psychologist recommended child receive 40 hrs @ wk of ABA/Lovaas

* appears that LEA was guided by a policy of no more than 25 hrs @ wk of service, which was reconsidered when ALJ below ordered EYSE of 30 hrs @ wk during pre-hearing proceedings

* LEA contract provider of ABA/Lovaas recommended child receive 40 hrs @ wk of ABA/Lovaas

* LEA special education director cited to JADD article recommending at least 15 hrs @ wk of ABA/Lovaas for children with autism between ages 2-4, and that 40 hrs @ wk no better results than 25 hrs @ wk; no personal knowledge of this child

* both parties submitted research articles: ALJ was not persuaded that a program of ABA instruction cannot be effective unless it is given to a child for at least 40 hrs @ wk

AGE: 6 year old DIAGNOSIS: moderate to severe autism (undisputed) ABA: 3 years of a combination of school based program and 15-20 hrs @ wk of in-home ABA/Lovaas + EYSE provided at LEA expense

SIZE OF CASE: formal prehearing conference to address procedural, evidentiary and legal matters, including subpoenas + 3 day hearing

* ALJ ruled that 34 CFR 30.508(a)(4) does not provide for issuance of subpoenas duces tecum, only for witnesses, but required LEA to include subpoenaed documents in its document production for exchange with the parents

* LEA raised issue of estoppel/laches for past years of reimbursement claimed since parents signed the IEPs; also claims not timely; ALJ ruled that objection to IEP's from earlier years which were accepted at the time was not timely and those previous IEP's would be accepted as agreed to by the parents and thus not subject to attack, citing to Phillips v. The Board of Education of the Hendrick Hudson School District, (U.S.D.C. So. NY 1997) as authority

* parents could however, contest implementation of past IEP's on the merits, and LEA motion for summary judgment on reimbursement was denied

* placement in regular education kindergarten with a 1:1 aide + 15 hrs @ wk of in-home ABA/Lovaas + SLP

* during IEP implementation, conflicts arose between parents and LEA re: the kindergarten placement and parents moved child unilaterally to a private preschool while continuing to accept in-home ABA/Lovaas component

* conflicts related to parental request for further ABA/Lovaas training for LEA staff and the devotion of a particular LEA staff member to child's in-home ABA/Lovaas component, requests to which the LEA agreed

* parents later became disenchanted with this LEA staff member and wanted another particular LEA staff member; this produced LEA confrontation (nearly explosive, apparently physical)

* not a procedural violation for LEA to enforce a policy of no IEP meetings with parents counsel without LEA counsel present; parents had notice of this LEA policy

* currently contested IEP was appropriate because child made progress under it and over all prior years

* ALJ accepted LEA expert testimony that on one method has been determined to be better than another with autism and that principles of ABA are used in all autism methods

* parents brought ABA/Lovaas methodology to the LEA and LEA warily agreed to fund it; conflict was inevitable and fact that it took 3 years to develop is a tribute to parents and LEA

* LEA, not parents, entitled to control provision of FAPE ( holding that parents are not equal IEP partners in this respect)

* parents not entitled to attend weekly ABA/Lovaas staffings, or be provided with daily reports of child's progress

* parents failed to produce evidence of the appropriateness of the unilateral private preschool placement (child regressed socially and behaviorally in this placement)

* parents are both US Army intelligence officers with Top Secret clearances (mother quit job to run in-home ABA/Lovaas program)

* some evidence that attempt to integrate child into regular kindergarten produced behavioral regression, also perhaps attributable to father's travel and conflict between LEA and parents

* parents' witnesses better trained and more experienced in ABA/Lovaas than LEA witnesses who had better experience and training in broader spectrum of special education, included ABA/Lovaas

* LEA used a TEACCH expert to testify Columbia Regional Programs and Portland Sch. Dist., 24 IDELR 96; 2 ECLPR 199 ( SEA Ore. 1996)

* original MD diagnosis was developmental delay although child exhibited behaviors consistent with autism

ABA: * concurrent with Part H programming parents provided and paid for an 10-15 hr @ home-based ABA/Lovaas program, and provided and paid for private sensory integration therapy

* During Part B period, parents provided in-home ABA/Lovaas at 20 hr @ wk, and eventually up to 35 hrs @ wk

* child to be placed in parents home-based ABA/Lovaas program of 40 hrs @ wk at LEA expense prospectively for 1 year (change in placement now would be detrimental to this child; LEA offer found inappropriate by this ALJ)

* reimbursement to parents for cost of independent evaluation which diagnosed dyspraxia (a major contributing factor to child's difficulties)

* Part H does not require FAPE 20 USC Section 1471 to 1485, only reasonable and individualized goals, objectives and services

* outcome is fact-specific re: whether LEA proposed IEP meets the substantive standard

* Part H LRE is "natural environments, including the home, and community settings" in which non-disabled children participate

* ECSE class was inappropriate because it used methods beyond the child's abilities and required a level of self- sufficiency which exceeded the child's capabilities

* home instruction falls within the 34 CFR 300.17 federal definition of continuum of placements, and must be available to children as one of the alternatives

* parents experts testified that goal of ABA/Lovaas was to move child into a school setting, but present LRE is home

* home, parents and family are most important place and people child needs to generalize skills to (outside of therapy hours)

* LEA expert admitted that for a child with developmental age of 2, home is a more natural setting

* autism services, SLP consultation, family consultation, home visits, participation in a toddler group, placement in an ECSE class 15 hrs @ wk + OT + SLP (tailored) + 1:1 aide

* based on child's needs and parents' request there would be an emphasis on 1:1 instruction

* Part H services were home visits, service coordination, autism evaluation, nurse consult, OT assessment for sensory integration and SLP consult

* 45 days from referral to evaluate, assess and formulate IFSP 34 CFR 303.321(e); Part H complied with this deadline with an oral offer in a meeting, although written offer to parents came 6 mos later

* IFSP written offer of services was sufficient to meet Rowley standard; was not accepted by parents

* parents consulted with Part H coordinator to learn about the resources and interventions they purchased, but did not accept free Part H services because they were using ABA/Lovaas provided by PACE

* parents set child to toddler group 4-5 times, discontinued then as they believed child was not benefitting

* LEA evaluations at end to Part H services by objective assessment instruments showed child still experiencing very severe delays--3 years old, some skills at 6 mo level

* LEA subjective evaluations by SLP claimed "significant progress" under Part H services

* LEA evaluations were by multidisciplinary team that included people knowledgeable about child and about autism

* 45 day rule after referral was extended by agreements, but Part B IEP team did not reach agreement on a plan, some technical time violations did not delay the IEP offer

* at IEP meeting parents requested 40 hrs @ wk of ABA/Lovaas and the LEA refused

* Dr. Sikora evaluations by objective assessment instruments showed child making 3-6 mos developmental progress in 8 mos time * another IEP meeting, without agreement

* parents requested standardized intelligence testing by the LEA, but then obtained testing privately

* parents asked LEA to wait for private evaluations before formulating SLP offer; then asked LEA to rely on its own earlier evaluations however

* another IEP/EYSE meeting held and parents again requested 40 hrs @ wk ABA/Lovaas + sensory integration therapy and LEA agreed to prepare a written response

* another IEP meeting held, and parents postponed further discussions pending completion of private evaluations

* another IEP meeting held; EYSE offered and refused as of inadequate intensity; further discussions postponed pending receipt of private evaluation reports

* private evaluation by Dr. Siegel recommended 6-9 mos of ABA/Lovaas @ 30-35 hrs @ wk

* private evaluation by Dr. Tristram Smith recommended ABA/Lovaas @ 40 hrs @ wk, year round

* given the private evaluations, the LEA offered 6 hrs @ wk of EYSE services, an increase

* LEA issued a notice of IEP placement meeting; parents declined to attend on advice of counsel

* IEP team met without parents and agreed to accept all proposed parent goals and objectives, but did not agree to use ABA/Lovaas method

* Part B IEP plan as written was not implemented because parents did not agree with it; LEA never noticed the parents of a particular placement (needed to complete the offer)

* IEP team failed to consider in-home program as a placement option, but this is not a violation of 34 CFR 300.552

* IEP team failed to issue appropriate change/refusal notices per 34 CFR 300.504

* IEP team must make an explicit, written offer of services which puts the parents on notice as to what the LEA is prepared to provide per 34 CFR 300.504, which may be in the form of a letter in the context of mediation (and added to 7 mos later to add proposed placement), rather than on IEP forms

* LEA's 34 CFR 300.504 notice included a list of tentative LEA classroom placements

* LEA's 34 CFR 300.504 notice did not include all the matters set forth in the regulation

* failed to include what placements were rejected (non-prejudicial, since parents knew what LEA was offering and LEA knew what parents wanted)

* failed to include notice of parental rights (non-prejudicial, since parents knew what LEA was offering and LEA knew what parents wanted)

* IEP team failed to reach agreement even on interim services because parents would only accept a placement in- home using ABA/Lovaas by PACE over 9 separate IEP meetings and 3 canceled meetings

* parents requested due process earlier, and withdrew it (LEA reasonably relied and delayed filing for due process itself)

* ALJ thus moves to substantive consideration of whether LEA placement was appropriate

* isolated failure to implement aspects of an IEP or Part H IFSP do not constitute a denial of FAPE; there were regular Part H contacts, although some visits were missed due to exigent circumstances or cancellations or changes by the parents

* LEA's ECSE class was inappropriate because it used methods beyond the child's abilities and required a level of self-sufficiency which exceeded the child's capabilities; these skills would be developed in child only by ABA/Lovaas (parents' experts)

* as a whole, LEA offer was inadequate because it failed to address the child's needs

* LEA was provided with new information from the parents and independent evaluations which pointed out the need for intensive 1:1 intervention, and offered additional services, but still an inadequate amount to meet the needs of this child

* LEA's classroom was not out of line with best practices or accepted practices used in public school programs (Dr. Tristram Smith concurred)

* children in class should be closer to child's developmental level (Dr. Siegel)

* visual communication devices in classroom were too abstract for child (Dr. Siegel) (disputed by LEA, claiming a range of systems and levels available in classroom)

* visual systems inappropriate for children who have ability to speak (Dr. Siegel and Dr. Smith) (disputed by LEA, claiming to teach speech)

* parents' and LEA experts agreed that parent training component was crucial part of package for autistic children, and ALJ cited to several cases to that effect, finding LEA offer inadequate on this point

* when ABA/Lovaas instruction was reduced to 10 hr @ wk in August, child regressed, therefore EYSE offer of 3-6 hrs @ wk of EYSE was inadequate to meet this child's needs

* All experts agreed there is no consensus that ABA/Lovaas is the only effective autism methodology for preschool children

* Dr. Siegel testified ABA/Lovaas is a "jump start" to prepared this child for public school

* ABA/Lovaas targets some 500 skills, 1:1, intensely, through a normal developmental sequence, first at home, then in school gradually to generalize, after about 1 year

* Dr. Schuler testified for LEA re: interactive methods in group settings rather than exclusively teacher-directed discrete trial formats and that language, social skills and imitation should be learned in a social context to encourage generalization

* instructional approach proposed by LEA is not effective, and insufficient to meet child's needs

* however, methodological disagreements do not open the door to parent's right to an independent evaluation at public expense when LEA multidisciplinary team included an autism specialist who diagnosed the child's autism

* parents experts testified that parents' home-based ABA/Lovaas program was appropriate and providing benefit

* 5 day rule: the purpose of the rule is to provide a more orderly hearing process and eliminate surprises between the parties . . . not intended to act as a penalty or impediment to the hearing process or to tie the hearing officer's hands in developing a full and fair record. Continuances can provide an opportunity for [further exchanges of evidence] and hearing officer had the latitude to accept exhibits prior to each scheduled segment of the hearing

* parents, not IDEA agencies, researched autism and discovered ABA/Lovaas option

* LEA witnesses refused to use ABA/Lovaas method with child because of belief that use of it results in failure of the child to generalize skills

* Dr. Bryna Siegel observed child 2x, in July and November, and found child had improved with ABA/Lovaas (2nd observation after contested IEP offer)

* Dr. Tristram Smith testified child would not benefit from being placed in a classroom because child had not developed the requisite communication and attentive skills to benefit from interaction with teachers or other children

* Dr. Tristram Smith testified there was some question this child would be likely to advance to a regular classroom with non-disabled peers

* Dr. Tristram Smith observed the LEA classroom sites [after contested IEP offer]

* Dr. Kirchner-SLP diagnosed child's speech-motor problems privately (LEA expert Schuler concurred), concurred with Dr. Smith re: no value to this child of placement in LEA classroom, and opined that child could develop; requisite skills to be placed in a classroom via ABA/Lovaas therapy and that it was only therapy that will allow this child to progress because it addresses both his dyspraxia and his autism; characterized LEA offer of SLP services for this child as meager (30 min @ wk) in his area of largest deficit with upcoming year crucial time for this child's ability to develop language

* Dr. Schuler, LEA expert, observed child in-home, the LEA preschool classrooms, reviewed child's assessments and parents' videotape [4 mos after the contested IEP offer] and then opined that earlier IEP offer was appropriate

* Oregon statewide autism specialist testified for LEA that offer of 15 hrs @ wk of service for a 3 year old with autism was generally reasonable; witness also observed child, reviewed school file, assessments, observed LEA proposed placements and parents' video of in-home program [4 mos after the contested IEP offer]

*Dr. Schreibman, LEA expert, former associate of Lovaas, testified in accord with Dr. Schuler's views, but did not observe child or see parents' video of in-home program; did review all written assessments of the child

* parents and parents' experts testified to child's progress with ABA/Lovaas, and after reviewing school records, opined that progress was attributable to ABA/Lovaas, not school

* LEA experts objected to more than 15 hrs @ wk of service to this child because 3 year old children in general need time to be a kid

* LEA witnesses claimed that other young children with autism have made good progress in LEA ECSE settings

* parents private sensory integration OT testified that OT goals and objectives could not be achieved with LEA offer at 30 min @ wk; this child's would need for 3-5 hrs @ wk of 1:1 OT to achieve IEP goals, and goals did not meet this child's unique needs

* Dr. Smith testified that IEP goals and objectives underestimated what this child could acquire in 1 year's time

* parents' expert recommendations were tailored to this child, and generally parents' experts indicated flexibility-- ABA/Lovaas not needed by all children with autism

* expertise of parents' witnesses and the greater depth of reasoning they supplied in support of their positions persuaded ALJ to give greater weight to their opinions that to those of LEA witnesses (including Oregon statewide autism specialist)

Multnomah Educ. Serv. Dist., Columbia Regional Programs and Portland Sch. Dist.' Oregon Dept. of Educ., 2 ECLPR 233 (Or 1996)

* LEA sought to add IU and SEA as defendant parties (probably to obtain their participation in reimbursement) who were included as parties in the case (not clear if they participated in due process, except that statewide autism consultant testified for LEA)

* SEA moved to limit reimbursement to times after Part H and the child's 3rd birthday

* parents sought order precluding LEA from modifying the ABA/Lovaas home program until end of EYSE of school year

Malkentzos v. DeBueno, 923 F. Supp. 5050, 2 ECLPR 217 (S.D.N.Y 1996) * federal court action for mandatory preliminary injunction to provide ABA/Lovaas services and/or reimburse parent for same under Part H

* NY Part H services are responsibility of DMH (which has yet to publish any regulatory guidelines)

* "Much has been made by the defendants of New York State's decision to allocate responsibility between two agencies based upon the age of the child . . . . Review of the record and of IDEA yields no support for the argument that Congress intended to substantially differentiate among disabled infants, toddlers, and children. Cf. 20 USC Section 1413(a)(14); 20 USC 1476(b)(13)

* "Although early intervention services are provided pursuant to Part H of IDEA, 20 USC section 1471 et seq., such services are expressly deemed the equivalent of the "free appropriate public education" available to older children under 20 USC Section 1400 et seq. See 20 USC Section 1483(2)."

* Part H eligibility category was "generalized developmental delay" and did not realize that child is autistic

* Part H defendants seem to fatally underestimate their obligation to meet child's needs on a substantive and personal level; this means recognizing his difference as an autistic child and addressing it

* autistic individuals are unlike other developmentally delayed individuals in that they lack the skills to begin rudimentary forms of learning; a highly relevant distinction

* first IFSP devised before child properly diagnosed as autistic; thus can hardly be contended that it was appropriate

* parents provided 9 mos in-home at their expense, beginning with 20 hrs @ wk, increasing to 40 hrs @ wk, with limited contribution by Part H of 8 1/2 hrs @ wk (3-4 actual) under first amended IFSP

SIZE OF CASE: 2 years IFSP; claims $21,000.00 of expenses; 2 day due process administrative hearing

* a mandatory preliminary injunction for the payment of money (equitably), akin to equitable reimbursement in Burlington or for the provision of 40 hrs @ wk of ABA, at Part H defendants' option

* federal court standard of review: review of due process administrative record + additional evidence upon request of either party with power to grant any relief it deems appropriate. 20 USC Section 1415(e)(2)

* due weight must be given due process record with care to avoid imposing court's view of preferable educational methods, leading to an independent review by a preponderance of the evidence

* education under Part H IDEA must meet the unique needs of the child and the family, including the frequency, intensity and the method of delivering services. 20 USC Section 1477(d)(4)

* hearing officer failed to consider the Carter decision holding that as a matter of law, the use of uncertified personnel alone does not defeat parents' claims for reimbursement

* hearing officer never reached the issue of appropriateness because he erroneously relied on the Part H excuse of no trained ABA personnel available

* on preliminary injunction: irreparable harm in the absence of an injunction + a likelihood of success on the merits or + a sufficiently serious question to make a fair ground for litigation and a balance of the hardships tipped decidedly in favor of the party seeking injunction

* on mandatory injunction: + heightened standard of clear, substantial and strong showings when injunction will alter, rather than maintain, the status quo

* probable irreparable harm by injury that is imminent and cannot be fully remedied by money damages

* compelling evidence has been presented to support the contention that in cases of autistic child adequate education must be provided ASAP, which defendants do not dispute

* child's future mental and personal development is in jeopardy; difficult to imagine more grave harm

* 4 wks of placement allowed child's negative behaviors of incessant crying and avoidance of human contact to continue, characterized by district court as "regression"

* first amended IFSP 8 1/2 hrs @ wk of ABA (3-4 actual) + 2 1/2 hrs of other services

* second IFSP offer of 23 hrs @ wk of structured play at a special education facility, with no ABA (offered without observation or evaluation of child)

* Part H inaccurately evaluated child at a structured-play facility which resulted in a substantively inappropriate IFSP offer

* child's pediatrician suspected autism and referred child to pediatric neurologist who diagnosed autism and recommended a minimum of 20 hrs @ wk of ABA, later 40 hrs @ wk

* parents took autism diagnosis to Part H to request revised IFSP to include 40 hrs @ wk of ABA; Part H refused due to a lack of ABA therapists

* at no time during IFSP development was parent told ABA was illegitimate or that 40 hrs @ wk was excessive; these arguments surfaced post hoc in hearing, and were undercut by state licensure and approval of ABA programs for children exactly like this child (clearly news to the defendants)

* Part H amended IFSP to include 8 1/2 hrs @ wk of ABA (6 in-home and 2 1/2 at a hospital; but only 3-4 hrs @ wk are actually spent in providing ABA) + 3 1/2 hrs @ wk of other services

* parents privately obtained evaluation by psychologist, who concurred with diagnosis and recommendations of pediatric neurologist and based upon extensive progress child showed in first 3 mos of ABA

* Part H has prepared a new annual IFSP without further observation or evaluation of child, offering 23 hrs @ wk of structured play in a special education facility

* initial due process ruling favored Part H defendants on the ground that there was a shortage of qualified ABA personnel and refusing to reimburse parent for use of uncertified college student therapists' wages

* initial due process ruling failed to address whether first amended IFSP offer was appropriate under the IDEA

* federal district court expedited the appeal due to the time-sensitive nature of the claim and with consent of all parties

* federal district court took testimony of 3 witnesses, all Part H administrators and personnel re: local ABA program availability

* local Part H currently has no Part H program specifically designed to help autistic children

* only services available are those created for otherwise developmentally disabled children, as expedient

* serious questions exist about whether any benefit whatsoever is derived from placing autistic children in the sort of structured-play environment routinely used with disabled children; such placement ignores the special difficulties of autistic infants and children and an harm their development

* State Part H does offer some ABA programs to autistic children, but only on a first-come, first-serve basis

* first amended IFSP of 8 1/2 hrs @ wk of ABA inappropriate given recommendations of independent diagnostician and evaluators

* second IFSP with no ABA is clearly inappropriate due to failure to evaluate and use of methodology harmful to an autistic child

* that ABA providers are not available does not prove or address the issue of whether IFSP offers were or will be appropriate

* the problem is that, in Part H universe, what is appropriate to the child's needs is being defined by the program rather than defining the program

* essential that autistic children receive appropriate education ASAP, ideally, upon diagnosis as infants

* there are several educational modalities for autistic children, but ABA is the only one that enjoys any quantifiable success

* ABA is not administered indefinitely; usually after 2-3 years the child acquires learning skills and can proceed to more traditional education

* "Studies have shown that 47% of autistic children who receive 40 hours per week of this therapy no longer need any special education at all by the time they are of school age. No other form of education enjoys an equivalent record with autistic children."

* parents' witnesses who personally met and evaluated child are far better positioned to discern what is appropriate for him as opposed to Part H administrators who object that ABA/Lovaas is controversial and 40 hrs @ wk is an arbitrary prescription

* testimony of treating physician and opinions are binding unless contradicted by substantial evidence, and are to be given some extra weight in resolving conflicts in evidence

* if child lived in Westchester and there was a space open in one of the Westchester programs, child would be receiving ABA therapy right now through a state-certified program

*Dr. Regina DeCarlo, pediatric neurologist (diagnosis and recommendation of ABA)

* Dr. Ira Cohen (concurring in diagnosis and recommendation of ABA by Dr. DeCarlo)

* retrospective reimbursement of money for ABA/Lovaas home program was improper relief under preliminary injunction (v. availability of this remedy under permanent injunction)--remanded for determination by district court of the merits of whether unlicensed ABA/Lovaas therapists' wages could be reimbursed (a ruling for the parents then a foregone conclusion under 2nd Cir. ruling in Still v. DeBuono)

* injunctive relief for prospective reimbursement and/or provision of ABA/Lovaas services was moot since by time of 2nd Circuit ruling child had aged out of Part H eligibility--2nd Circuit does not reach merits (ie. allows district court to treat entire time period as a matter for retrospective reimbursement)

* 2nd Cir reviews district court entry of preliminary injunction for abuse of discretion--for errors of law, fact, substance and form of order

Inland Regional Center/San Bernadino County Superintendent of Schools, 2 ECLPR 243 (CA 1996); related ruling at 2 ECLPR 244

AGE: 2 years 11 mos old DIAGNOSIS: mildly autistic ABA: 20 hrs @ wk, and later 40 hrs @ wk in-home, provided by parents

* child's parents are not obliged to personally conduct the ABA/Lovaas program as therapists, but should be responsible for generalization into daily life

* child's parents should be reimbursed for costs of in-home ABA/Lovaas (not limited to state regulatory rates),but exclusive of meals to therapists, transportation, meals and lodging for consultant, and materials and supplies

* LEA and IU agencies ordered to share these costs, given their joint responsibility for Part H

* first IFSP services were weekly home visits of 2 hrs @ wk + centerbased program + referral to Foundation program of 2 1/2 hr @ wk of 1:1 instruction on how parents can do ABA and other behavioral interventions + sibling group (if funding approved, and if later 10 hr evaluation--within 8 wks time-- justified)

* parents requested ABA/Lovaas of 40 hrs @ wk and Part H stated this was not a service it could offer; parents' request was not even noted on IFSP forms; parents were advised of a staffing procedure to request special funding but felt they had to go through administrative "hoops" by trying the first program offered, so parents signed IFSP

* parents' request for ABA/Lovaas of 40 hrs @ wk was not taken by IFSP to the funding procedure; only IFSP services were taken up for funding consideration

* due to child's low level of functioning IU believed there were only a limited number of activities and areas which could be worked on and that a 20-40 hr @ wk ABA program would be excessive and too academic

* the maximum the LEA could provide (without IU Foundation program) was 3 hrs @ wk home visits + center- based toddler program

* after 2 mos parents discontinued service under first IFSP in favor of their own ABA/Lovaas in-home program (both LEA and IU were aware of home program)

* although LEA was aware of parents' desire for a 40 hr @ wk ABA/Lovaas program, LEA did nothing to dissuade family or attempt to show how modifications to LEA and IU components can be accomplished to meet child's and his family's needs

* IU is considered lead agency, by LEA has joint responsibility to provide instruction

* the LEA, having knowledge of a change which would affect IFSP implementation cannot react with indifference and wait for IU lead agency to take action or call an IFSP meeting

* LEA and IU were not working together collaboratively; IU apparently criticizing LEA components to the parents; LEA overcome with anger, suspicion and betrayal

* both LEA and IU reacted to parents' concerns with a denial of further responsibility, choosing to seek fulfillment of child's needs with the resources of the other agency [LEA arguing that ABA/Lovaas is behavior, and thus responsibility of IU; and IU arguing that ABA/Lovaas is academic, and thus the responsibility of the LEA]

* parents requested IU directly to fund 40 hr @ wk ABA/Lovaas program, but IU failed to call an IFSP meeting to discuss this request with parents and LEA, but responded with a written refusal reasoning that based in child's age and current functioning level IU would not typically recommend a program of that intensity; that such an academic program should be provided by LEA

* IU then visited parents' home program and parents visited the Foundation program, and following these visits funding was denied

* IU has an advocacy responsibility: "Advocacy and case management means more than seeking services from other generic resources. Advocacy and case management includes locating services, ensuring those services are appropriate, and promoting those services to the family and promoting the consumer to the service provider." (re: family's visit to Foundation program)

* LEA and IU had an opportunity to develop an appropriate program and did not; once child responded to ABA/Lovaas, LEA and IU should have reconsidered their prior assessment that child was too low-functioning to benefit from a more intensive program

* implementation failure: Part H made little effort to persuade the family of the merits of the Foundation program until apparent that matter was proceeding to due process and parents had begun their own ABA/Lovaas home-based program

* Foundation program could have been an avenue for family to receive an ABA/Lovaas home-based program but this was not fully discussed with family, nor offered

* frequent breaks which child needed cut into the very limited amount of instructional time under the first ISFP offer

* IU apparently had no quarrel with ABA/Lovaas or discrete trial as a method, and were instructing in this method in Foundation program (but ALJ found them blinded by their own educational bias)

* ALJ acknowledge controversy re: ABA/Lovaas claims of "cure" or "recovery"; and 40 hr @ wk prescribed for everyone, but found the techniques employed are not new or experimental

* mother played a major role in coordinating ABA/Lovaas program and filled in as a therapist

* original ABA/Lovaas consultant no longer available; new ABA/Lovaas service provider will cost $4000.00 @ mo (ALJ limited prospective charges to state regulated rates)

Inland Regional Center/San Bernadino County Superintendent of Sch., 2 ECLPR 244 (CA 1996), related ruling at 2 ECLPR 243

* A clarification issued that ALJ decision should not be construed as an endorsement of the new ABA/Lovaas service provider (at $4,000 @ mo). However, to enable the child to continue his home-based program while the parties were implementing the prior order by IEP process, the parents were not to be precluded from employing qualified persons who may be affiliated with the new provider (at state vendor rates)

* Family's reimbursement is not pre-conditioned upon the signing and amending of the IEP; LEA and IU are responsible for past reimbursement and for prospective funding of the in-home program until the IEP is in place, modification by appeal, or by agreement of the parties Allamakee Community Sch. Dist. and Keystone AEA 1, 24 IDELR 516 ( SEA Ia. 1996)

AGE: 5 year old DIAGNOSIS: Autism--PPD-NOS, specific language disorders/Aspergers ABA: LEA, IU and parent providing ABA over last 1 1/2 years, funded by a mediation agreement + private insurance funding, which left EYSE unaddressed

* dispute over amount of 1:1 ABA in final year of programming--20 vs 12 hrs @ wk

SIZE OF CASE: 3 pre-hearing motions; 4 day hearing; numerous witnesses, sequestered; open hearing

* EYSE offer required the addition of a written PLEP to identify critical skills and structured play component to address social skill needs--community-based program for interaction with peers would be low cost to LEA and IU

* compensatory claim for failure of school year integration services of 18 hours was met by summer integration ordered by ALJ

* claim for 20 hrs of ABA/Lovaas 1:1 instruction was denied because 12 hrs @ wk of ABA/Lovaas was based on what child had over regular school year

* the legal basis including the procedural and substantive requirements for EYSE derive from the concept of FAPE for the school year IEP; eligibility is determined by individual need, guided by the multi-faceted criteria for an appropriate education

* "some educational benefit" will not be met by the provision of de minimis, trivial learning opportunities; must be meaningful benefits, but need not be optimal or maximum

* state-imposed limits on the length of the school year precluded the proper determination of FAPE

* EYSE must be necessary (not merely beneficial) to permit the child to benefit from his instruction to avoid significant jeopardy to benefits accrued during the regular school year in critical skill areas

* identification of critical skill areas is necessary to regression-recoupment analysis (required by Iowa EYSE rules); but regression-recoupment analysis has been criticized in federal courts as unduly restricting child's right to FAPE and in a guidance document from Iowa SEA directing more multifaceted analysis

* federal courts have required the consideration of predictive data based on professional opinion in consultation with the parents and consideration of the circumstances of the child's individual situation at home and in the community

* the required standard for EYSE involves a) determination and identification of critical skills and b) determination of the appropriateness of EYSE via a multifaceted analysis utilizing empirical and qualitative data in retrospective and predictive contexts

* LEA and IU violated 34 CFR 300.504 procedural notice requirements in notice proposing to initiate an EYSE IEP component, by failing to include

* information about procedural safeguards * description of proposed program * evaluation procedures used to develop proposed program * description of factors considered when formulating proposal

* LEA and IU failed to consider relevant information from independent evaluator and from regular education teacher as these people were not noticed of the EYSE IEP meeting

* LEA and IU violated 34 CFR 300.345 meeting notice requirements by failing to advise parent who was expected to attend the EYSE IEP meeting

* there must be some rational basis to believe that the procedural inadequacies compromised the child's right to FAPE, seriously hampered the parent's opportunity to participate in the formulation process or caused a deprivation of educational benefits (to amount to a denial of FAPE)

* re: parent participation: parent made 12 separate written requests for information concerning EYSE via child's home-school notebook to which LEA and IU failed to respond

* clear that EYSE was an ongoing and established concern of the parent, an area of confusion and misunderstanding since child's first IEP; parent wanted to meaningfully participate in EYSE IEP meeting

* parent prepared to attend EYSE IEP meeting, but decided, on advice of legal counsel, not to attend the day of the meeting, due to hostility (not a waiver of procedural rights)

* procedural inadequacies of notice and frustration of parent participation by withholding information seriously hampered parent's opportunity to participate in the formulation process

* LEA and IU failed to consider vital information concerning child's needs at EYSE IEP meeting through clerical errors and failing to reconvene when missing information was found and inquiries concerning it were answered (even though missing information and recommendation were similar to parental request and earlier advice of consultant); LEA and IU had a duty to consider Dr. Granpeesheh's recommendations

* other vital missing information was current reports from child's 2 regular education teachers

* LEA and IU failed to identify child's critical skills at inception of IEP; ie failed to write a complete PLEP

* LEA and IU failed to include "structured play" in EYSE despite need for social interaction opportunities

* since integration was an integral component of child's IEP, the absence of the regular education teachers (2) is significant

* theory of mind or perspective-taking skills are advanced, critical skills which ABA/Lovaas addresses in integration settings

* the final year of a 2-3 year ABA/Lovaas program involves social skill instruction and integration, moving from 1:1 discrete trials to loosely structured play activities

* ABA/Lovaas integration therapist must be highly skilled (know when to prompt in a social situation, the child's developmental level, and how to get the child to interact with other children); more difficult work that 1:1 ABA/Lovaas drill, and ideally only senior therapists are used as integration therapists, failing the ideal, then someone familiar with the child and with good behavioral skills

* child's first year of EYSE was provided by parent, and reimbursed by LEA and IU via mediation

* child's first year of EYSE process included the identification of critical skills, in which parent participated

* many different independent evaluations of child historically recommended integration with more nonhandicapped peers to meet his needs

* LEA and IU contracted with parent to provide child's 1:1 ABA/Lovaas instructor-aide

* evidence re: child's social skill needs was highly conflicting as between parent testimony and LEA and IU witness testimony--although child's social skills have improved remarkably to the point he is one of the gang in nursery school, social interaction has been a priority goal and require EYSE continuation

* parent won reimbursement of for 20 hr @ wk ABA/Lovaas in a state administrative proceeding against Part H DMH agency. Part H agency took appeal to state court; parent removed the appeal to federal court; Part H sought remand to state court and parent sought dismissal of the appeal altogether

* legal issue on appeal re: reimbursement for wages of unlicensed ABA/Lovaas therapists was resolved by Carter and Malkentzos cases, so appeal dismissed for failure of Part H agency to state a claim

* this case was consolidated with Malkentzos, and incorporates the Malkentzos decision in its entirety

AGE: infant age 0-3 DIAGNOSIS: Autism ABA: 20 hrs @ wk, in-home, provided by parent

* LEA placement found inappropriate was 5 hrs @ wk at a centerbased program (undisputed on appeal)

* sole legal issue was the Carter issue of reimbursing unlicensed ABA/Lovaas therapists

* relying on the remedial purposes behind the IDEA to read an exception into the provision that services must be provided by qualified personnel in cases where the services were not delivered due to a shortage of licensed providers in the state--allowing parent reimbursement

* argument rejected that reimbursement would expose LEA to financial liability--court found this could be avoided by providing services in the first instance

* Part H categorized child as "pre-primary impaired," that is, non-categorically, by the name of the placement offered--itinerant services which produced no benefit

* Part B evaluated child for autism and found he met the categorical criteria for autism

* Part B also first categorized child as "pre-primary impaired," non-categorically, at the parents' request to avoid labelling him, and with specific LEA assurance that child would receive same services regardless of eligibility classification

* when LEA identified child as having autism, it made some adjustments to programming, from itinerant services to 12 hrs @ wk classroom + SLP

* parents then had child privately evaluated and obtained confirmation of the autism diagnosis, advised the LEA, and sought a change of child's categorization to "autism"

ABA: some ABA/Lovaas in contested LEA offer, supplemented by parents in-home ABA/Lovaas program; parents withdrew child from school and then provided 40 hrs @ wk ABA/Lovaas at home + private gym + private swimming + Sunday school and community activities

* parents' initiation of ABA/Lovaas apparently prompted the LEA to make substantial changes in LEA programming for the future

* parents also awarded reimbursement for start-up expenses of $3,416 incurred before the disputed IEP was offered, because these expenses would have been incurred whenever the home program started

* parents awarded reimbursement for an independent educational evaluation because LEA failed to appropriately assess child

* prospectively parents were awarded 1:1 ABA/Lovaas by properly trained persons, 35-40 hr @ wk , in-home (with perhaps some at school), at LEA expense (prospective costs estimated at $2,000 @ mo) and under LEA supervision, 52 wks @ yr, with continuing review of the components and length of programming and a plan to transition child to school with gradual integration into a regular preschool with a 1:1 behaviorally trained aide

* LEA is directed to train or engage an ABA/Lovaas consultant, and parent's expert is suggested

* LEA is directed to develop in writing a data collection procedure, including trial by trial data, anecdotal observations, videotaping, and such other information deemed relevant to serve as a basis for review of programming

* ALJ retains jurisdiction to resolves disputes related to prospective implementation of programming over next calendar year

* IU is charged with responsibility to endure implementation of this order, also

* MI has established a higher substantive standard, namely programming must be "designed to develop a student's maximum potential."

* higher standard applies since as a state standard it is incorporated into the federal IDEA as an element of FAPE. 34 CFR 300.4(g) + case citations

* parents failed to agree to ALJ's proposed gloss of "whether LEA offer reasonably and continually challenge the student to meet his or her goals and objectives" as "somewhat circuitous inasmuch as the basis for the establishment of goals and objectives should be to develop the student's maximum potential."

* MI legislators left the maximum potential standard undefined "so that educators and other experts in the field would have broad discretion in applying it to the unique facts and circumstances of each case" Brimmer v. Traverse City Area Pub. Sch., 22 IDELR 5 (USDC Mich. 1994)

* proof in favor of parents' positions was so strong, no legal allocation of burden of proof was necessary

* "Interesting in this regard is the District's attempt to apply least restrictive environment (LRE) requirements of IDEA as an argument that increased hours of discrete trial training would be more restrictive' than the [District's proposed special education classroom placement]. No authority is cited in support of the proposition that LRE principles should be a factor in determining the size of the group in which a student with disabilities should be instructed, when all in the group are students with disabilities. The LRE requirement generally mandates instructing students with disabilities to the maximum extent appropriate with students without disabilities where, with the use of supplementary aids and services, educating the child can be satisfactorily achieve. 34 CFR 300.550."

* LEA's IEP failed ot include any opportunities for child to be integrated with non-disabled peers

* ECSE classroom 20 hrs @ wk, including discrete trial training using up to 1 3/4 hrs @ day (7 hrs @ wk), either 1:1 or 1:2 format + SLP + OT + IU consultation to classroom teacher 4x @ yr

* numerous procedural violations by LEA, all of which contributed to a substantive denial of FAPE

* IEP defects not cured by LEA document describing the classroom which was not in existence at time of IEP meeting, and was never provided to the parents

* without these details, LEA staff did not make the required individual assessment of the student to determine his programming needs, and rather, improperly determined those needs based on what would fit into the LEA class schedule

* parents advised LEA of their intention to begin ABA/Lovaas at home, and requested a 1:1 LEA classroom aide, which LEA agreed to do, but hired late; both parents and LEA agreed aide proved unsatisfactory, but for different reasons

* LEA requested child, parent and ABA/Lovaas therapist to come to school and demonstrate methodology, and be videotaped--immediately afterward parent was asked to sign a new IEP placing child in new LEA discrete trial classroom--for 1 mo only, for LEA to determine PLEP for revision of goals and objectives, but not to determine amount of 1:1 ABA/Lovaas child needed

* believing child was getting 1:1 ABA/Lovaas in school, parents reduced amount of home programming, and child's behavior deteriorated and regressed

* when LEA perceived that it was the intention of the parents by participating in the planning and coordination of the home and school program to basically have the LEA replicate the home program [in an IEP offer], discussions [in the IEP process] broke down

* EYSE came up in IEP process to extent that EYSE would be a component, but was otherwise undefined

* once it became evident that it was not possible to agree on an IEP, LEA took position that it was not going to include parent-requested elements, because LEA did not believe parent requests were necessary to provide FAPE, and were contrary to staff recommendations

* LEA filed for due process in order to refuse the parents' request for an independent evaluation

* goals and objectives were not in dispute at hearing, with the LEA adopting at hearing the proposed goals of the parents and their ABA/Lovaas expert

* substance of IEP offer was adversely affected by procedural error, in many respects (see procedure, above)

* prehearing, the LEA requested the ALJ to rule as to whether "methodology" was a hearable issue

* "Where a district is providing a free appropriate public education (FAPE) and the only dispute is between two competing methodologies, then the district has the discretion to choose one and the methodology issue is not hearable. But, where as a practical and legal matter one cannot determined whether the district is offering a FAPE until after a hearing is held, during which competing methodologies may very well become involved, the dispute must proceed to a hearing."

* "In fact, many hearing officer and court decisions declare that a district has discretion to pick methodology--but do so only after a hearing was held and it was found the methodology proposed by the district (as well as possible one proposed by the parent) provided the student a FAPE."

* parents raise many questions in this case about LEA's planned utilization of a particular (agreed-upon) LEA approach--ABA/Lovaas

* at hearing LEA placed on record both expert testimony (Mesibov-TEACCH + 2 others) and various literature criticizing Lovaas

* LEA's new classroom has components from many approaches including discrete trial training and there are no studies supporting its combination' approach (a near estoppel)

* before the hearing the parents successfully objected to admission of LEA documents created or submitted post hoc, to enhance or supplement the contested IEP officer; nevertheless these after-created documents were later admitted during the hearing not for the purpose objected to by the parents, but solely with regard to their possible relevance to equitable considerations relating to the parents' claims for reimbursement

* during the due process prehearing period parents' independent evaluation was conducted and report created (and later admitted into evidence)

* historically, LEA's Part H itinerant programming and Part B 1st IEP programming of 12 hrs @ wk classroom + SLP failed to produce progress for the child in parents view (disputed by LEA); ALJ found clearest and most accurate descriptions of primarily non-verbal child showed his skills to remain "virtually unchanged"

* parents and LEA teacher observed child made many gains during ABA/Lovaas home program period, which could be attributed to the home program, and some also could be attributed to LEA program

* LEA teacher testified that LEA 1:1 aide made child aide-dependent [aide not doing discrete trials]

* LEA teacher so encouraged by child's progress, she believed that ABA/Lovaas home program should continue over the summer

* summer program consisting of ABA/Lovaas alone produce progress, with no regression as a result of loss of LEA classroom programming

* a 2 week interruption of ABA/Lovaas in August resulted in behavioral deterioration and loss of learned preacademic skills

* parents' expert evaluated child face to face, repeatedly, over life of ABA/Lovaas home program and documented progress and generalization of skills, with no detrimental effects

* this child's progress in ABA/Lovaas home program prompted LEA reexamination of programming options by special committee to break preschool classes into 3 separate levels, with use of some discrete trial training, but failing to implement recommendations to use college therapists and consult with parents' ABA/Lovaas expert

* LEA assessment team included no autism expert, and failed to consult with any autism expert

* even if LEA assessment team had included an autism expert, significant here is the facet that they did not access child's needs and recommend the programming components (including amount of ABA/Lovaas ) necessary to address them

* amount of ABA/Lovaas to offer child was determined by what would fit into classroom schedule

* when parents placed child in school ABA/Lovaas class and reduced home programming hours, the child's behaviors regressed (agreement of teacher and parents) and the child's preacademic skills may have regressed (disputed)

* fact that LEA staff had received very little training in ABA/Lovaas must be factored into their perceptions as to whether progress or regression was occurring and why they believed progress was occurring

* after contested IEP offer, parents withdrew child from school and testified that afterward there was no deterioration of child's skills, but, rather, continued progress

* LEA expert Mesibov had never seen child personally or on videotape and had not observed LEA classroom

* LEA inflexible reliance on recommendations of a national preschool association and assessment team's general experience was misplaced in determining length of school day; length of school day should be individually tailored to child's needs

* parent's expert's recommendation of 40 hrs @ wk ABA/Lovaas was based upon research + clinic experience + past observations of child + reviewing videos, ABA/Lovaas home program data + interview of parents and home tutors + more recent observations at home and of LEA classroom (after the contested IEP offer date)

* videos covering child's ABA/Lovaas performance over an extended period of time (presumably after the contested IEP offer date) was admitted

* state-level review officer reversed this case in an unpublished decision, In the Matter of Martin Renner v. Ann Arbor Public Schools, (unpublished decision Case No. H-0293-96 State Hearing Review Officer Sosnowsky, September 14, 1996) on methodological choice grounds [this further review is described in West Bloomfield, 3 ECLPR 17 (SEA Mi. 1996)

Parchment Pub. Sch./Kalamazoo Valley Intermediate Sch. Dist., 2 ECLPR 259 (SEA Mi. 1996)

* initial eligibility was pre-primary impaired, albeit autism was highly suspected

ABA: ABA of unspecified amount a part of LEA's offer, parents prefer an home-based program of 40 hrs @ wk

SIZE OF CASE: 4 day hearing, open; 8 witnesses + stipulated evidence from earlier ABA/Lovaas programming cases in Mi of 8 witnesses

* by agreement no evidence was submitted re: future programming; rather, after this decision, parties would hold an IEP meeting with this ALJ retaining jurisdiction to resolve any future disputes

* parents awarded only 1/2 of claimed in-home ABA/Lovaas costs based on equal partnership, and equitable considerations, based on parents adamant insistence on in-home placement and use of a specific ABA/Lovaas consultant

* LEA also took totally wrong legal positions and so must reimburse the parents for 1/2 of claimed in-home ABA/Lovaas costs

* the parties agreed that the higher Mi standard of "develop the maximum potential" means "whether the programs and services being proposed by either party reasonably and continually changes the child to meet his goals and objectives"

* a full day, 230-day classroom program dedicated solely to providing 1:1 discrete trial training (27.5 hrs @ wk of ABA/Lovaas orally), a home-school component (of 10-15 hrs @ wk of ABA/Lovaas, orally--unclear whether at parent cost, or not)to ensure consistency and participation in an integrated preschool program as well as various related services, SLP, adapted PE and transportation

* Part H reconvened when child identified as having autism, but no program changes proposed by Part H

* Part H reconvened to place child in 12 1/2 hr @ wk autism class program + SLP + adapted PE; parents continued to provide 15+ hrs @ wk of ABA/Lovaas concurrently

* after about 1 semester, parents withdrew child from most Part H placements and provided 40 hr @ wk ABA/Lovaas at home + regular preschool at YMCA (LEA paid for this preschool and an aide there), using school only 1 AM @ wk

* contested IEP process began (3 meetings) and resulted in the IEP offer of discrete trial at school + preschool + related services + home component for consistency

* LEA relied on old assessments and evaluations and failed to ask for more recent private assessments in formulating the contested IEP offer

* a comprehensive evaluation of a child is required before taking any action which constitutes a significant change in placement under Section 504 and the IDEA

* parents rejected IEP offer because they wanted 40 hr @ wk in-home program and use of a specific ABA/Lovaas consultant and a 1:1 aide to accompany child to integration site at preschool which LEA refused to provide; LEA also refused to reimburse for past in-home programming

* nearly a year passed before due process hearing was held (to allow for hearing to be rendered in 2 other Mi ABA/Lovaas programming cases in Kalamazoo)

* parents sought to disqualify the hearing officer alleging bias against their expert witness as expressed in other Mi ABA/Lovaas programming case; ALJ denied request

* parents waived earlier contentions that LEA's ABA/Lovaas program was not in place and that LEA lacked expertise to properly implement ABA/Lovaas

* the IEP document contains no express statement as to the number of hours child would be in school, the number of hours he would receive 1:1 discrete trial training or the hours of at-home programming or commitment re: who would pay for at-home services; these details also missing re: related services

* LEA and parents agree on ABA/Lovaas methodology; dispute is over amount and location of services

* by stipulation, testimony of 8 witnesses from earlier ABA/Lovaas due process litigation was admitted

* parties agreed that while evidence concerning child's present program and his progress or lack thereof was not admissible with regard to the determination of whether the contested IEP offer of a certain date here on appeal was appropriate, such evidence was admissible to show that the child had benefitted as a result of the parents' in-home program and with respect to the possible effects a transition from home to school programming would have upon the child educationally (assuming the parents proved the IEP was inappropriate)

* by agreement no evidence was submitted re: future programming; rather, after this decision, parties would hold an IEP meeting with this ALJ retaining jurisdiction to resolve any future disputes

* in the IEP process, parents were fairly adamant about in-home placement and use of a specific ABA/Lovaas consultant to the point of having little, if any interest in the LEA's ABA/Lovaas program

* as a result of the parents' request and those of other parents of preschool children with autism, the LEA and IU decided to substantially revise their program offerings for preschool-aged children with autism to include a full day extended year program of 230 days dedicated solely to providing 1:1 discrete trial training

* all experts agreed number of hours per week of ABA/Lovaas should be data driven

* LEA failed to seek copies of private evaluations or review in-home ABA/Lovaas data before making the contested IEP offer

* LEA only sought copies of private evaluations and ABA/Lovaas home data for purpose of assessing parents' funding request, not to assess the child's needs or to determine number of hours of 1:1 ABA/Lovaas this child needed, or whether placement should be at home or in school

* LEA decisionmakers clearly felt LEA should not be providing programming in the home

* greatly increased offers of ABA/Lovaas programming did not follow upon evaluation of the child, but upon development of the program at the LEA

* LEA's contested IEP offer description did not provide sufficient information for the parents to choose as to whether it was acceptable or not

* this LEA staff clearly has the requisite qualifications and expertise to implement an ABA/Lovaas program, including assessments and determining extent of child's needs and placements (but failed to do so here)

* review officer reversing ALJ decision below which found LEA offer to be appropriate

AGE: toddler DIAGNOSIS: Autism/PDD and developmental delay, nonverbal ABA: 30-35 hrs @ wk of ABA/Lovaas provided by the parents

SIZE OF CASE: 1 day hearing + appeal to review panel (pre-review requests for recusal of 2 panel members denied) with 5 more days of hearing

* LEA moved to dismiss on account of family moving out of state--held that prospective issues were mooted by this, but reimbursement issues remained alive for resolution in this state's due process forum

* awarding reimbursement of costs of ABA/Lovaas home program for 9 mos of time child lived in LEA (without interest--noting no provision for interest)

* refusing to reimburse parents for cost of TEACCH evaluation because parents planned to obtain this evaluation in any event, and thus did not seek private evaluation out of parental disagreement with LEA evaluation

* refusing to reimburse parents for OT evaluation; request untimely raised in the post-hearing memo (no opportunity for LEA response)

* parties may present new evidence, both documents and witnesses, at state level hearings

* appropriate does not mean the best possible education the LEA could provide if given access to unlimited funds

* appropriate means personalized instruction with sufficient support services reasonably calculated to permit the child to benefit educationally by meeting the unique needs of the child

* not address, due to substantive inappropriateness of LEA offer with respect to intensity

* child attended LEA placement for about 2 mos before parents began ABA/Lovaas at home

* after ABA/Lovaas began at home, LEA teacher noticed recent gains and improvements

* transition began due to child's 3rd birthday, resulted in no change in LEA offer of services; fact that parents signed IFSP/IEP does not excuse LEA from meeting the requirements of IDEA (substantively)

* parents sought TEACCH evaluation in NC, where autism was diagnosed (before parents got LEA assessment)

* new LEA offer resulted in no change in LEA offer of services, and no EYSE offer, although parents requested reimbursement of ABA/Lovaas programming costs--LEA agreed to follow-up this parent concern

* third IEP meeting resulted in no agreement on reimbursement request; LEA offered to have its autism consultant evaluate the child, parents declined and indicated they would pursue due process

* 3 hrs @ wk was not significant enough offer to be reasonably calculated to provide FAPE, given the severity and nature of the child's disability--autism (based on expert witness testimony)

* "While it is certainly reasonable to expect families of disabled children to be supportive and reinforce what is learned at school in the home, it is the school system's responsibility to provide a free appropriate public education."

* "Due to the nature of the Child's disability and the intensity of individual therapy the Child was receiving, it is apparent that a break in services at the end of the school year until fall would have resulted in substantial regression of learned skills."

* responsibility for choosing method lies with SEA and LEA in cooperation with the parents, citing Rowley, at 3052

* after ABA/Lovaas began at home, LEA teacher noticed recent gains and improvements that review panel found to be substantial and dramatic

* "We are persuaded by a Third Circuit case which decided that the measure and adequacy of an IEP can only be determined as of the time it is offered to the student, not at some later date.' Fuhrmann v. East Hanover Bd. of Educ., 993 F. 2d 1031, 1040 (3rd Cir. 1993). A concurring opinion in that case explained this rationale as follows: Rowley's requirement that a school district's program be "reasonably calculated" to enable a child to receive educational benefits is prospective; it is based on an evaluation done by a team of experts prior to the student's placement. At the time of the child's evaluation, the IEP must be reasonably calculated to enable the child to receive educational benefits. Thus I would not view Rowley's test of appropriateness' as to whether the child actually receives educational benefit as a result of his school placement. Instead, the appropriateness of a student's placement must be assessed in terms of its appropriateness at the time it is created and not at some later date when one has the benefit of the child's actual experience. Id. at 1041. The First Circuit has also followed this approach by characterizing the IEP as a snapshot, not a retrospective. Roland M. v. Concord School Committee, 910 F. 2d 983, 992 (1st Cir. 1990). The IEP must take into account what was objectively reasonable at the time the IEP was drafted. Id. at 992."

* review panel: "we must look to the expert witnesses for guidance" (as to what was objectively reasonable at the time of the IEP (meaning given the child's unique characteristics at that time--not what the LEA subjectively knew or claims it subjectively knew)

* experts brought into case after contested IEP offer testified as to whether it was appropriate at the time it was made

* 2 hrs of 1:1 @ wk was less than virtually any program expert witness had heard of

* LEA's own expert stated that 10 hrs @ wk was not enough for this child, and under misimpression that 2 hrs @ wk was parent training that would blossom into many hours of intervention performed by the parents throughout the day

* LEA administrator testified that if LEA's own expert had evaluated this child before the IEP offer and recommended a higher level of service and the IEP team had agreed, a revised program would have been developed and implemented swiftly

CONSULTANT: In the Matter of Cody Francisco v. Independent School District No. 318, 2 ECLPR 268 (MN 1996)

* early MD evaluations of child stated that child's behavior did not meet diagnostic criteria for autism, but autism was diagnosed later with no current disagreement on this issue

ABA: began by parents just after child's 3rd birthday, at home, 35 hrs @ wk, funded in part by Medicaid and by private health insurance

SIZE OF CASE: 6 days, open hearing, 3 years time, both Part H and Part B periods

* awarded reimbursement for 25 mos of home-based ABA/Lovaas therapy (but not therapy materials, as parents would continue to own them)

* because LEA failed to show it is capable of providing FAPE for the child without elements requested by the parents, ALJ ordered LEA to contract with ABA/Lovaas consultant to become member of IEP team, and orders an IEP meeting and shall create and IEP with at least the following elements

* on the parents to show that private program was appropriate, by a preponderance

* ALJ moved ABA/Lovaas method into school setting (after 2 years of in-home programming of this child by parents)

* although child had not met previous IEP goals, IEP was continued unmodified, after periodic review meetings

* EYSE was 3x 1/2 hr consultations + 6 ECSE sessions + 2 family days--parents requested more service, but perceived the LEA's unwillingness to vary LEA program and accepted EYSE as offered

* ABA/Lovaas consultant documented progress over time, and drafted a proposed IEP, which parent provided to LEA, w/ 16 goals, each with objectives

* LEA's initial Part B IEP contained only 3 goals, included use of a computer, and committed to "using Lovaas as it can be incorporated into the classroom"

* parents' ABA/Lovaas consultant came to school to try to train staff; not all attended (SLP), and OT was upset by training

* ECSE teacher, OT, SLP and classroom aide met in the absence of the parents and decided not to use ABA/Lovaas in the classroom; this decision was not communicated to the parents

* LEA did not implement any picture exchange system in the classroom either, as recommended by Chastain

* LEA OT failed to be able to implement IEP commitment to use a computer with the child

* LEA SLP reverted to use of sign with child, but only added 1 sign to child's sign vocabulary

* LEA suggested parent seek funds from United Way, parent wrote grant for LEA, but LEA told parent LEA would not submit the grant application

* parents privately evaluated child for Landau-Kleffner syndrome, with some EEG findings, resulting in recommendation of at least 30-40 hrs @ wk of ABA/Lovaas + SLP (sign); also epilepsy evaluation resulting in a trial of medication

* parents privately evaluated child with Dr. Eric Larsson (local ABA/Lovaas consultant) who recommended Picture Exchange System rather than SLP (sign), as did Stein Lund of Bancroft, but parents preferred sign for adult life to be easier; PEC + ABA/Lovaas proved very successful with child

* new IEP continued child in same LEA classroom placement, with 4 goals, adding a PE goal to goals similar to, or retrenched from prior year's IEP goals

* parent finally requested ABA/Lovaas in school of 4 hrs @ day, use ABA/Lovaas consultant and advised family was seeking legal counsel

* LEA's special education director met with child's IEP team (without the parents) and decided that parents requests for ABA/Lovaas therapy would not be adopted at an upcoming IEP meeting

* at IEP meeting, special education director convey her decision and showed parent a summary of a PA decision denying parental reimbursement for ABA/Lovaas when the LEA there had offered an appropriate program

* parents had ABA/Lovaas consultant prepare a proposed IEP with goals and objectives

* LEA denied parent's request for ABA/Lovaas IEP, stating it did not have information to support need for ABA/Lovaas based on child's progress at school and contacted Chastain/Merzer for early reevaluations of child. Merzer does not use ABA/Lovaas.

* conciliation conference was attempted, and LEA offered evaluation, computer training, reimbursement for past ABA/Lovaas, some future use of ABA/Lovaas with other methods, some services levels to be determined after evaluation-- perhaps fulltime kindergarten with 1:1 aide and some summer services

* LEA evaluation was done and autism expert on team recommended using Lovaas-based techniques and PECS materials at school, with slight variations, as did a private psychologist selected by the LEA

* "Parents must provide a district with notice of dissatisfaction with an IEP or proposed placement, and allow a district the opportunity to rectify the problem before reimbursement will be granted. Evans v. District No. 17 of Douglas County, 841 F. 2d 824, 1987-88 EHLR 559:381 (8th Cir. 1988), and parents in this case did so adequately

* LEA failed to provide the parents with notice of its abandonment of the agreement to incorporate Lovaas therapy into the child's program per the written IEP

* LEA at no time provided a visual organizing structure for child, at no time kept detailed documentation of strategies used with child, at no times presented activities in such a way that the child was able to experience success for most of his day and understand what was being asked of him, at no time planned and sequenced curriculum and teaching activities based on the child's individual needs and interests

* during pre-hearing time LEA was ordered by ALJ to provide summaries of witness testimony and a description of the educational methodology used with the student, but these were not provided

* the LEA did not provide a clear picture of the methodology or combination of methodologies or strategies it was using with the child

* LEA staff were supposed to attend parents' ABA/Lovaas initial workshop, but did not

* LEA staff later visited parents' home to observe ABA/Lovaas program; SLP did not ask to view, or view ABA/Lovaas home program videotape

* parent provided all additional reading material on autism used by child's new LEA classroom teacher

* concurrent ABA/Lovaas home programming continued, with all of the areas in which progress was noted at school being areas in which the skill had been introduced in the home program, and reinforced at school

* parent provided information re: PECS to LEA SLP, and corrected LEA use of PECS to remedy confusing inconsistency of instruction

* LEA and parent experts agreed child's greatest strength is visual memory, and PECS serves him well

* LEA and parent experts agreed Lovaas is ABA used intensively and 1:1, and has benefitted this child

* LEA and parent experts agreed that consistency and predictability are important to child

* LEA and parent experts agreed this child needs 1:1 instruction to gain new skills, peer integration with mastered skills, and 1:1 integration aide

* at prehearing conference LEA sought an evaluation to be completed before, and used as evidence in the hearing and ALJ granted this LEA request

* during pre-hearing time LEA was ordered by ALJ to provide summaries of witness testimony and a description of the educational methodology used with the student, but these were not provided

* based on intensity alone, the Lovaas therapy must be given the major portion of the credit for teaching the student to attend and imitate

* child made progress at school only on specific tasks which had been included in drills in the home therapy

* Lyle Chastain (independent evaluator for parents, prior to their interest in ABA/Lovaas), and Shelia Merzer (LEA expert)

* Bancroft Young Autism Project, Stein Lund, and locally Dr. Eric Larsson Cobb County Sch. System, 24 IDELR 875, 2 ECLPR 261 (SEA Ga. 1996)

* initial LEA evaluation found mild speech delay, with some red flags that speech was not the only suspected problem

* later, further LEA evaluation resulted in severe autism diagnosis (written report of which was not prepared or delivered for 6 mos), which was also medically confirmed

* awarded reimbursement of home-based ABA/Lovaas program for 1 year past (annual cost is $39,479)

* ordered that LEA convene an IEP annual review and create an IEP that provides FAPE for the future in a timely manner, and that parents participate in good faith

* adequacy of progress must be determined on a case-by-case basis in light of that child's individual needs

* LRE will not become relevant until such time as the LEA may offer an appropriate program (home placement is by default)

* LEA failed to develop a timely IEP after eligibility established (had 30 days to do so, took 5 mos)

* summer intervened, as did large number of referrals (not a legal excuse, rather an admission of violation)

* LEA failed to include administrative level special education personnel or any individual with direct knowledge of student's evaluation at first IEP meetings; no special education teacher

* IDEA violation when, after autism diagnosis, LEA failed to conduct an IEP meeting in order to revise IEP in accord with new diagnosis (delay of 6 mos in writing up the diagnosis and changing categorization--shocking)

* most of 1st school year was lost while LEA continued to treat child as one with significant developmental delays rather than the distinctly different and far more serious diagnosis of autism

* LEA failed to call in LEA's in-house autism expert (until due process imminent, to prepare for adversary hearing, not to prepare child's IEP), or include LEA's evaluator who diagnosed child's autism on the next IEP team

* teachers present during 2nd IEP process did not have administrative authority to agree to services beyond the usual pre-school program

* administrator with authority rejected parents' request for ABA/Lovaas at reconvened IEP meeting, and offered an IEP similar to past year's IEP, later negotiating an additional 8 hr @ wk instructional time

* parents sent child to school for additional 8 hr @ wk for 3 days and found that the details of the education offered had not been worked out and the teacher was unprepared to make use of the added time

* IEP offer did not provide enough instruction time, or tailor instructional time beyond the normal offer until parents requested ABA/Lovaas--LEA then upped offer from 11 hrs @ wk to 19 hrs @ wk with no clear plan as to how time would be used--teacher to stay 1:1 with child after school with no objectives

* some progress documented on 7-11 objectives, judged minimal by ALJ, and attributed to home effort or were mastered previous to IEP implementation

* child's pre-educational echolalia was not used aggressively to develop receptive-expressive speech

* "The instant case, however, is not about selection of the better or best program from two competing methodologies. Where, as here, the school system has failed to adhere to procedural safeguards and has failed to provide an appropriate program, the parents are free to make a unilateral placement in a program of their own choosing and then seek reimbursement from the school system."

* testimony must be weighted in the context of contemporaneous documents; LEA teacher defensive and contradicted by the documents

* mother observed LEA classroom 2x and was shocked by child's lack of participation in regular class room and in planned performance (documented by video)

* parent videos of child before ABA/Lovaas and just prior to due process hearing admitted into evidence on issue of child's progress in home program

* child's impressive gains in ABA/Lovaas documented by parents expert in testing [PEP]

* Dr. Deanna Luscre Board of Educ. of the Syosset Cent. Sch. Dist., 2 ECLPR 257 (SEA NY 1996)

AGE: 4 year old DIAGNOSIS: autism ABA: 30 hrs @ wk, centerbased, provided by LEA

* parents wanted an additional 25 hrs @ wk ABA/Lovaas in home to supplement 30 hrs @ wk at school [total 55 hrs @ wk]

* reasonably calculated to allow the child to receive educational benefits in the LRE

* 30 hrs @ wk, 12 mos @ yr, in 6 : 1 + 2 classroom using ABA/Lovaas about 15 hrs @ wk in 1:1 or 2:1 settings + SLP + OT + parent training

* Part H had provided 20 hrs @ wk of ABA/Lovaas which parents supplemented with 20 hrs @ wk of ABA/Lovaas at their own expense

* LEA refused parental request for an additional 25 hrs @ wk ABA/Lovaas in-home on legally erroneous ground that it could not legally recommended a supplemental instructional program for a child who was enrolled fulltime

* LEA provided FAPE; additional ABA/Lovaas services were not needed for child to meet IEP goals, and no evidence the child's skills would regress without supplemental in-home ABA/Lovaas

* although LEA is using ABA/Lovaas, LEA called a witness to cast substantial doubt upon the validity of the results of Lovaas' research

* child's private neurologist opined that a child was at risk of regressing unless he remained in a full-day program with as much 1:1 participation as possible

* evaluations show child is remediating his developmental delays very nicely (with supplemental home programming)

* psychologist opined it was possible that child would not continue to gain skill, or would begin to lose skills, if supplemental home program did not continue

* LEA teacher reported that child changed from a non-verbal to a verbal child during the 18 mos of supplemental home programming, and attributed this gain to home programming (ALJ discounted this testimony as aimed at maximization of child's potential)

* evidence of administrative efforts to place a blanket or rigid limit on the amount of services was dismissed by ALJ

* LEA's expert was allowed to testify re: child's needs and appropriateness of IEP offer, based on a paper review as the factual basis, despite fact she had not met the child

* reasonably calculated to afford a disabled child a basic floor of opportunity to make educational progress or confer educational benefit upon the disabled child

* intent of IDEA was more to open the door of public education on appropriate terms than to guarantee any particular level of education once inside

* but no universal measure of some educational benefit; each case to be reviewed upon its merits in light of the child's individual needs

(by thus lowering the substantive standard, the ALJ concluded the LEA's offer met it)

* ALJ cannot order the LEA to do more than IDEA case law requires and ALJ cannot be guided by emotion

* on the party attacking placement (ie. parent) to show inappropriateness of IEP

* issue was raised by parents that LRE was home for this child; ALJ rejected, despite parents' community integration component of home program

* 15 hrs @ wk centerbased program of 8: 1+1; + SLP + OT + home visit @ 6 wks + autism consultation 1 @ mo not using ABA, but using otherwise accepted teaching methodology for developmentally delayed children

* ALJ found parents' complaints of procedural violations to be unfounded in totality of circumstances (excusing time violation, due to summer break, delays occasioned by parental demands and waiver)

* parents began in-home ABA/Lovaas during IEP process involving several IEP meetings

* LEA evaluation concluded child would benefit most from a highly structured learning environment with behavioral elements

* 1st IEP meeting not completed so parents could observe LEA proposed placement and because of disagreement over specific goals and criteria for mastery (ALJ found parents' objections were limited to criteria for mastery)

* 2nd IEP meeting foundered on same issues and produced commitment for OT evaluation by LEA

* child's developmental pediatrician testified a public school program could be appropriate for this child

* parents objected to Rifkin chair (not to be used with this child) and decor of the classroom (which LEA could modify if necessary to be less distracting)

* LEA using otherwise accepted teaching methodology for developmentally delayed children

* parents ABA/Lovaas expert witness had not seen child or his home ABA/Lovaas program, nor LEA proposed placement

* parents developmental pediatrician recommended only a minimum of 20 hr @ wk of ABA/Lovaas and admitted an autistic child can make educational progress in a public school classroom

Dr. Stephen Luce, parents ABA/Lovaas consultant Board of Educ. of the Lawrence Union Free Sch. Dist., 2 ECLPR 281 (SEA NY 1996)

* parents claimed bias of non-lawyer ALJ based on earlier NY ruling denying similar request (Syosset) and intemperate remarks, 5 days into the hearing

* ALJ held for district and state review officer upheld this result, as same state review officer did in Syosset

* on the parents to establish the child's need for additional 25 hrs @ wk of ABA/Lovaas

* while state review officer recognized that the child has received a home-based program during all the time that he has been in LEA classroom, it is nevertheless a matter of pure speculation to conclude that he must have the home-based program in order to continue to make progress in his LEA program (disagreeing with parents' expert and LEA teacher)

* 30 hrs @ wk (about 15 hours @ wk of ABA/Lovaas in 1:1 or 1:2 setting) in 6: 1+ 2 classroom, 12 mos @ yr + SLP + OT

* per LEA written policy, noticed to them, the parents must comply with request to let LEA know in advance if they are bringing legal counsel to an IEP meeting so that LEA legal counsel can also attend

* both parent and LEA agreed ABA/Lovaas is appropriate method, disagreement is on amount of ABA/Lovaas and location

* parents objected to testimony of LEA expert, based on fact that child was evaluated after contested IEP offer date, without parental consent; review officer held consent was not necessary, but notice was, and was not given; therefore LEA's observations of child were excluded from consideration on review, but experts testimony re: PDD and ABA were considered

* parents objected to evidence of child's progress in LEA program after the contested IEP offer date, and state review offer upheld ALJ's decision to admit this evidence as clearly relevant to the FAPE issue

* child was not allowed to engage in manipulative or self-stimulatory behavior in the LEA classroom

* parents did not dispute child made progress on IEP goals (during concurrent programming)

* LEA teacher supported parents request for additional home-based ABA/Lovaas programming--she could not predict what would happen (regression) if home programming discontinued

* LEA did not violate parents' procedural rights when it did not change the students eligibility category from preprimary impaired to autism immediately following autism diagnosis as the change did not affect the child's needs or the resulting program offer

* considerable time and testimony during hearing was directed towards whether the LEA had obtained medical records via the parents and whether they might have been used to alter program efforts

* pre-primary impaired, as defined, means a child through 5 years of age; while not precluding identification of a child through other criteria, the [MI state] Rules doe not require it either

ABA: LEA orally agreed to an IEP providing for 30 hrs @ wk of ABA/Lovaas + 5 hrs @ wk of regular education, provided by 2-3 aides, all ABA/Lovaas trained, weekly meetings with the parents + EYSE + transition to school of a prior home-based program, but failed to put agreement in writing

* LEA bound by promissory estoppel (but absent that finding, LEA violated parents' procedural rights by meeting without them)

* LEA ordered to implement the orally proposed ABA/Lovaas IEP to which the parents agreed

* parent request for reimbursement prior to date of orally proposed ABA/Lovaas IEP is denied because parents could not prove prior LEA programming was inappropriate

* on the parents to first show procedural violations by preponderance of evidence, and if they did, then burden of proof on appropriateness would shift to the LEA

* LEA gave timely notice to parents of their procedural rights, orally and in writing, which parents acknowledged in writing

* no dispute LEA failed to invite the parents to 2 meetings, one of which was even referred to as an IEP; more importantly parents were not invited or present when major changes in IEP were proposed and made

* LEA have characterized these no-parent meetings as routine to address programmatic issues; however ALJ cannot ascribe to that characterization, since significant changes materialized/emanated from the no-parent meetings!

* LEA official with administrative authority promised ABA/Lovaas to parents and their counsel and then failed to put agreement in writing (proof by audiotape of the IEP meeting)

* what currently constitutes FAPE should not be compromised by linkage to issues of reimbursement for past expenditures

* LEA held several meetings regarding the child's IEP without including the parents and then offered a different written IEP than the IEP plan parents had agreed to

* ALJ found there were violations regarding parental involvement in the IEP process--thus shifting the burden of proof of appropriateness of IEP to the LEA

* parents videotaped child in LEA classroom to document their concerns about its inappropriateness

* parents videotaped child's ABA/Lovaas home program and took comparative videotapes, home and school, to IEP meetings

* MI Report of the Committee on Lovaas Style' Interventions was admitted into evidence

* LEA's backtracking may have occurred due to Ann Arbor ABA/Lovaas due process litigation being on-going

* Dr. Gary Mesibov of TEACCH--LEA critic of ABA/Lovaas West Bloomfield Sch. Dist., 3 ECLPR 17 (SEA Mi. 1996)

* pre-hearing, the ALJ suggested and parties agreed to a publicly funded independent evaluation to settle the question of diagnosis

SIZE OF CASE: a Part H and Part B case; 4 day hearing, closed, sequestered witnesses; 22 + witnesses

* "Lest there be any doubt, the Hearing Officer makes special notes that he should assert supplemental jurisdiction for Part H decision-making authority along with the authority under the Michigan special education law, in the interests of judicial (Hearing Officer) economy' and proximity of the issues to be decided. (footnote 15: In asserting supplemental authority to decide Part H issues, this Hearing Officer is mindful of the specific procedural safeguards drafted as an approved attachment to the State of Michigan's P. L. 102-119 Part H interagency agreement for Eligible Infants and Toddlers and Their Family, agreement endorsed by the heads of four state agencies on February 22, 1996, at page 14, Section 5.10. Those safeguards envision several differences in the administrative hearing process compared to the state's special education hearings, but no substantive limitations, in the opinion of this Hearing Officer. The facts and Petitioner's claims in this case are distinguishable from those cases cited for denial of Section 504 relief as not applicable when relief is available under IDEA to remedy the denial of services (cit. omitted). This case employs pertinent sections of the IDEA itself, and doesn't add Section 504 claims to the relief sought.) That the parents in a special education/Part H case should have to file two requests for a hearing to resolve both sets of early intervention services claims is unnecessary."

* LEA and IU were parties, but SEA was not so parents' arguments re: duty of SEA to disseminate and implement promising research 34 CFR 300.382(c) were deferred although there is 1 decision applying this state-training duty/standard (re: EYSE procedure) to an LEA: Ruesch v. Fountain, 21 IDELR 1107 (D. Md. 1994)

* awarding reimbursement of in-home ABA/Lovaas costs from ISFP meeting date (parents first request for funding)

* awarding reimbursement of in-home ABA/Lovaas costs from the IEP meeting date (held at ALJ request, pre- hearing)

* awarding prospective relief of 35-40 hrs @ wk of in-home ABA/Lovaas programming to be funded for 52 wks, then transition to regular preschool class at beginning of next school year with a 1:1 aide + SLP; LEA has discretion to hire a ABA/Lovaas consultant of its choice; parents have option to continue with their ABA/Lovaas consultant, Autism Partnership, at LEA expense, limited to quarterly visits and minimal telephone consultation

* even under the federal Rowley standard, many cases of enhanced services have required based detailed consideration of the child's individual needs, citing a long passage from Weber, Mark C., LRP Publication, Horsham, PA (Supp. 3, Oct. 1995)

* on the parents to show , by a preponderance, that the LEA failed to develop its IFSP and/or its IEP in a manner compliant with state and federal procedure

* on the parents to show, by a preponderance, that the LEA failed to offer FAPE, substantively

* on the parents to show, by a preponderance, that what they provided unilaterally was appropriate

* Part H IFSP offer: 2 hrs @ wk in early intervention toddler group + SLP (parents refused to agree, suspecting autism)

* 1st IEP offer of 12.5 hrs @ wk in LEA preschool autistic program (about 20 min @ day of 1:1) + additional unspecified time in a pre-primary impaired class, + SLP, which parents refused

* Part H filed to complete evaluation and IFSP before the 45 day federal time limit, or before the 30 day state time limit (not "timely and comprehensive" evaluation when Part H failed to obtain relevant past evaluations of the child and initially failed to conduct a comprehensive autism evaluation)

* parents refused 1st IFSP offer, suspecting autism, and requesting funding of ABA/Lovaas in-home (parents already had an attorney)

* another procedural violation occurred when Part H refused to discuss the parents' request for use of ABA/Lovaas method with this child

* pre-hearing, the ALJ agreed with parents' suggestion of a publicly funded independent evaluation to settle the question of diagnosis

* pre-hearing, the ALJ ordered the IEP team to convene and formulate 1st IEP offer of 12.5 hrs @ wk in LEA preschool autistic program + additional unspecified time in a pre-primary impaired class, + SLP, which parents refused

* Part B procedural violation found when IEP failed to address whether the child would be provided ABA/Lovaas instruction

* 2nd Part B procedural violation found when IEP failed to note the extent of time child would be placed in pre- primary impaired classroom

* by revising its offer of services upward in the IEP offer, the LEA conceded that its IFSP was inappropriate

* "The real individualization institutionalized in to the highly regulated planning process comes with the opportunity to produce truly unique goals and objectives, based on a comprehensive understanding of the student's present levels of educational performance, and in determining the mixture, amount, frequency and duration of placement in programs and services, as well as the number of hours in the school day spent in special education. The facts in this case find little disagreement over goals and objectives. The issues of frequency, duration and intensity, as expressed in the number of hours of service and length of school day in individualized instruction, are in dispute."

* the methodological deference to educators passage in Rowley so often cited was written in 1982, 4 years before Congress amended the IDEA to add Part H re: infants and toddlers.

* it is also noteworthy that in some states the SEA is not the lead agency under Part H, so that in those states, non-educators would not be likely to be given the deferential treatment that public school educators are given under Rowley

* federal regulatory description of Part H IFSP requires an address of "methodology" and thus it is a hearable issue at due process, superseding any contrary direction in Mi state rules for committees not to address methodology in IFSP written plans

* other state hearing officers who have deferred to educators on choice of methodology do write binding precedent, and have failed to make clear what dangers' are involved in adding parental rights concerning choice of instructional methodology to the Mi state's maximum potential standard

* the interests of parents concerning their infant's or toddler's early development and in the appropriate nature of early intervention services are of a different quality than those of parent or preschool or school aged parents who must by necessity entrust more of their child's care and development to virtual strangers, in an institutional environment

* LEA and IU were committed to TEACCH methodology and limiting programming for children of this age to 12 1/2 hrs @ wk, ordinarily (the amount offered in the IEP)

* LEA and IU TEACCH program did not meet TEACCH program intensity of 30 hrs @ wk

* child evidenced early symptoms of autism which child's pediatrician took a wait and see attitude towards

* mother exposed child to other children over a summer and attended a mother-toddler playgroup at her Temple with no effect on child's development

* child's hearing tested within normal range, privately, but SLP private evaluation suggested severe auditory processing disorder accompanied by symptoms suggestive of PDD--child was referred to LEA to have a school psychologist rule out PDD

* Part H evaluators gave the parent detailed explanations of language disorders as a possible reason for some of the child's autistic behaviors, but no IU autism evaluation was done, and parents may not have been told such an evaluation procedure was available

* parents objected to admission of IEP offer created during pre-hearing period on the "snapshot" theory that the appropriateness of an IEP can only be determined as of the time it is offered, and that what was offered in this case, and contested, was the IFSP

* the IEP was admitted for the limited purpose of proving the LEA mistook the child's diagnosis

* proposed LEA teacher not state certified to teach autistic impaired students, except under emergency waiver

* C. Maurice book Behavioral Intervention for Young Children With Autism, Lovaas' description of UCLA model, and Mi DOE s Report on Lovaas-Style Interventions were admitted into evidence

* ALJ reserves jurisdiction to address amount and/or reasonableness of reimbursement (parents presented no actual evidence of costs)

* sua sponta ALJ ordered prospective LEA funding of the ABA/Lovaas home program until child is of age to enter kindergarten, and evaluation at public expense (to determine if necessary to continue until child is of age to enter first grade)

* the amount of appropriate advancement will vary depending on the abilities of the individual student. In re Conklin, 946 F. 2d 306, 314-316 (4th Cir. 1991)

* LEA program was not going to get the child there in time; ABA/Lovaas was more effective in pursuing this mutual LEA/parent goal

* LEA objected that in-home ABA/Lovaas was more restrictive than proposed LEA placement, and prevented generalization--ALJ responded that "it is undeniable that a child cannot generalize what has not been learned in the first place" and child was in fact generalizing

* ABA/Lovaas home program included other children who are in and around child's home at various times

* given child's need to learn 1:1 or 3:1 as described by the LEA teacher, ABA/Lovaas may well represent the LRE for this child

* in private, unilateral placements parents are not bound by same LRE requirements to which LEA must conform

* LEAP class is 3-5 disabled children with no more than 5 non-disabled peers (up to 8 disabled children with 1 teacher + 1 aide, and up to 10 disabled children with 1 teacher + 2 aides), 12 hrs @ wk + 1 hr @ mo home visit

* child spent 1 school year in an LEA LEAP program, a modification of a University of Pittsburgh autism program, also used for other disabled children

* despite progress, LEA called in an experienced LEA autism teacher to evaluate child, who recommended "intense instruction" in 1:1 or 3:1 settings of 1 hr @ day, clear task definition and attention to generalization of skills to home

* parent then began in-home ABA/Lovaas (with LEAP concurrently until end of school year of 3 mos)

* LEA IEP goals and objectives are based on PLEP and each area of identified need is represented by at least 1 goal and objective, thus goals and objectives pass IDEA muster

* PLEP, however, failed not note that child was unable to learn in group of more than 2 students

* LEA autism evaluators "very modest proposals" for IEP change were not included in the IEP; failure to include them (whether alone they would have risen to the level of appropriateness) was fatal

* "[I]t does not seem that the LEAP Program, as implemented by the LEA, was producing as much success with this student as he was capable of achieving. Learning six one-step commands in six months time does not reflect a pace which would enable Student to enter a mainstream kindergarten in one years time or in the foreseeable future. Further, such a rate of learning might be adequate if that were all of which Student was capable. However, Student's classroom teacher and the LEA's Autism Itinerant teacher were of the opinion that Student had greater capabilities than he was exhibiting. This opinion also appears to have confirmed by his later progress in the Lovaas Program. For these reasons, it is my conclusion that as to this student, the LEAP Program as actually implemented, allowed him to make gains which were inadequate to his true abilities. Consequently, I find that as to him, the progress was inappropriate and permitted him to make only trivial gains."

* courts must be careful to avoid imposing their view of preferable educational methods; left to SEA and LEA in cooperation with parents to choose the educational method best suited to the child's need. Rowley at 3051

* once a student is making good progress in a particular program, a change must be viewed with a great deal of caution because changes in placement are inherently disruptive. The relatively short time remaining until a program will end is also an appropriate consideration. Visco ex rel Visco v. School District, 684 F. Supp. 1310, 1315-1316 (W.D. Pa. 1988)

* LEAP is a functional skills curriculum in a structured environment and is behaviorally based flexible methods including direct teaching, cueing, prompting and positive reinforcement, with most of time devoted to group instruction

* since children rotated activities throughout the day, the LEAP program would seem to offer sufficient flexibility to accommodate any teaching method or objectives which would be appropriate for the student; problem lies not with LEAP program itself, but with the goals and objectives which should be in the IEP, but are not (ie. 1:1 to 3:1 instruction, task definition)

* parents' in-home Lovaas program is consistent with LEA's own goals and teaching recommendations (of autism evaluator) for 1:1 and eventual mainstreaming

* child at 3 yrs: parallel play; responded to name 50%; noncompliant; did not maintain attention or eye contact; unable to draw a circle or use scissors; echolalic

* after 6 mos of LEAP placement, child had showed progress: pointed to body parts, matched colors and shapes, rote count to 19, make circles, use scissors, work 6-7 piece puzzle, use 3 word phrases, 5 min attention span in group, wash hands, hang coat and backpack; still mostly echolalic speech + gestures; small block tower, not toilet trained + 6 one-step commands + noun and action labels + making one word choices (ample evidence of this progress undisputed by parents)

* LEA evaluated the child with another teacher who had 8 years experience at an autism training center who recommended "intense instruction" in group of 3 or less students + 1:1 and noted that child had capabilities which hadn't been fully understood or developed

* LEA LEAP classroom teacher reported to LEA evaluator that child was incapable of learning in a group of more than 2 students

* parents' pediatric psychologist documented child's significant gains after 7 mos of ABA/Lovaas (with 3 mos concurrent LEA LEAP)

* parents presented no specific ABA/Lovaas cost evidence, but ALJ provided that if dispute arose over reasonableness a new hearing could be requested by either party on that issue

AGE: 7 year old DIAGNOSIS: PDD + seizure disorder example of ABA for a child with a seizure disorder controlled by medication ABA: in preschool child had ABA in school

SIZE OF CASE: 4 days, 370 documents, 10 witnesses 3 years of IEP's are challenged

self-contained class 16 1/2 hr @ wk SLP/PT/OT embedded in classroom some contact with typical peers no specific program methodology, ie. language-based + behavioral

* failure to meet CFR: failure to specify expected annual outcome [102]; the 12 month potential [99-100]; set specific benchmarks and milestones; language of IEP too broad; objectives not evaluated more often than annually; "How can we know if progress is made if we are unsure what progress we hoped to make?" [102]; "The parents are entitled to know what outcomes are expected and how those outcomes will be assessed on an annual basis." [102]

No reasonable calculation of benefit possible under the state of the conflicting evidence, due to procedural flaws

"Preferences for one instructional approach over another could easily mire parents and schools into lengthy legal and philosophical battles well beyond reason at the risk of a child's program. It is for this reason that the courts have deferred the methodology question to schools. However, in having this control over methodology, schools have a responsibility and obligation to document progress and lack of progress made by the student using the methodology they have chosen. Short term objectives tied to the selected methodology must have standards of measure to make this determination. It is not enough when there is disagreement over methodology for schools to simply assert by teacher observation that progress toward the stated objectives are being met. " [101]

* "overreliance on anecdotal description" [100] * need for corroboration from "objective measures" [100]

"It is impossible to tell on an annual basis or from one year to the next from these [school] documents if A. H. made progress. If one relies only on the Battelle Inventory [an objective measure], there is progress but it has decreased [in rate] dramatically from 1994-95 to 1995-96. If one relies only on observed progress the school convincingly cites specific areas where growth has occurred and the parent cites equally convincingly specific areas where a lack of growth or regression has occurred. In the absence of solid, reliable objective data conclusions regarding growth or lack of growth cannot be determined with certainty. Therefore, no conclusions that A. H.'s program has afforded her educational benefit can be made." [101-102]

Board of Educ. of the North Rose-Wolcott Central Sch. Dist., 26 IDELR 325 (N.Y. 1997)

AGE: 7 year old DIAGNOSIS: autism, born prematurely, breathing difficulties, cerebral hemorrhage, intracranial shunt, tubes in ears ABA: parents requesting, but not providing upfront

*review officer held prospective ABA + SLP and OT remedy is not supported due to failure of record to include completed evaluations SLP/OT [329]

*holding of review officer who is not persuaded there is a single method is contrary to Malkentzos (S.D.N.Y.), and does not address this controlling authority

* LEA given 20 days to complete evaluations and implement an intensive home-based program with LEA choice of method

LRE: * review officer moved child from school to home for more intensive instruction + related services at an appropriate location

* review officer ruled there can be discussion of classification and placement without the parents (who were asked to leave) [328]

* insufficient PLEP re: communication level; no SLP evaluation; audiology info not collected from parents; no OT evaluation

* parents appear not to have had the benefit of expert witness testimony. School psychologist testified that ABA was useful in teaching some baseline skills, but that it was less appropriate for teaching more complex skills, and for prompting social interaction. [329]. Petersham Pub. Schs., 26 IDELR 703 (MA 1997)

AGE: 6 year old DIAGNOSIS: PDD/autism spectrum disorder ABA: integrated preschool 2 AM's @ wk + in-home Lovaas ABA provided by LEA @ 40 hr @ wk + SLP, OT and PT in-home

*Before integration placement change, LEA must assess, observe, modify, communicate, train and develop a comprehensive supported mainstreaming plan

*"Current integration placement is familiar, meeting the Student's need for consistency and continuity; the peers are familiar with the Student and know how to use her communication system, thus increasing opportunities for promoting socialization; the Kindergarten space is quite and well organized visually, with physically defined learning centers which is important for cuing and organizing the Student; and the staff is familiar with the Student and has a history of working successfully with [ABA/Lovaas] consultants." [704].

* "On the other hand, Dr. Robbins recommended against the Student's placement in Petersham as he found: limited space required that two tables be used for multiple purposes which would prove confusing to the Student; the class was noisy, visually distracting, and poorly organized, and the staff had not had a history of working successfully with consultants." [704-705].

* proposal to change integration placement; ABA/Lovaas in-home is not at issue, as provided by LEA

*Lovaas/PECS chosen as a part of prior school-funded program and produced satisfactory progress for a nonverbal child

*Parents' expert testified that change of integration placement would be detrimental based on comprehensive reports, consistent testimony, involvement with student over extended period, stressing importance of history of current placement working successfully with [ABA/Lovaas] consultants

*LEA principal failed to observe student, failed to attend weekly team meetings, failed to discuss program with integration consultant

*Special ed director recommended many services which were not included in IEP--data collection and assessment techniques which are the cornerstones of any discrete trial program [705]

CONSULTANT: John McEachin, Autism Partnership * parent and consultant in some dispute

Mr. X. v. New York State Education Department, New York City Board of Education, and Community School District 2, 26 IDELR 854 (S.D.N.Y. 1997)

* "This court has previously held in Malkentzos v. DeBuono, 923 F. Supp. 505 (S.D.N.Y. 1996) (Motley, J.), remanded on other grounds, 102 F. 3d 50 (2d Cir. 1996) that the educational agencies' satisfaction of the obligation under IDEA of meeting the educational needs of a disabled child on a personal and substantive level means recognizing [the child's] differences as an autistic child and addressing it . . . Distinction between autistic children and otherwise developmentally disabled children [is] highly relevant." Id. at 515." [860].

ABA: 40 hrs @ wk in-home, provided by the parents + music classes and playgroup with typical peers

* claim for $250,000.00 attorney fees and punitive damages to be addressed later

* "When a party moves for summary judgment in an IDEA action, the court does not make the traditional inquiry into whether there are disputed material issues of fact, but rather, whether the administrative record and any additional evidence shows that there has been compliance with IDEA's procedure and that the IEP has addressed the child's educational needs. Wall v. Mattiuck-Cutchogue School District, 945 F. Supp. 501, 508 (E.D. N. Y. 1996), see, Briggs, 882 F.2d at 693." [858]

* Compliance with state plan does not resolve the FAPE issue: "The Court noted that this inquiry will require a court not only to satisfy itself that the State has adopted the state plan, policies and assurances required by the Act, but also to determine that the State has created an IEP for the child in question which conforms with the requirements of [the Act].' Rowley, 458 U.S. at 207 n. 27. . . . . In the matter before the court, since the [SEA] remains responsible for the final decision on review,' the court finds that [the SEA] is a proper defendant in this action considering whether plaintiff's son was denied access to a beneficial state education due to the [A.L.J.'s] denial of plaintiff's [parent's] appeal." [858]

* "The Second Circuit has not decided on this issue of who bears the burden of proof in administrative appeals and the courts in this Circuit are split on the issue." [858].

* "The Second Circuit has noted . . . that some disabled children must be educated in segregated facilities either because of their disruptive behavior in a regular educational setting or because the gains from mainstreaming is marginal as compared to segregated instruction and concluded that the presumption in favor of mainstreaming must be weighted against the importance of providing an appropriate education to disabled children. [cit. omitted]." [861].

* "E's home based ABA instruction may also seem contrary to the mainstreaming objective since E is removed from a regular educational setting with non-disabled children. However, the court notes that note of the expert evaluations recommended complete mainstreaming as appropriate for or beneficial to E's educational development but most concluded that E's home based ABA instruction supplemented with his three classes with non-disabled children several times a week was the appropriate and beneficial program for E given his unique needs." [861].

* 34 CFR 300.504 refusal notice gave no reason, or legally erroneous reason, ie. in-home placements not state- approved

* LEA erroneously relied on evaluations made before child's autism diagnosis [860]

* "ABA has been recognized as the only method with any real success in the remediation of autistic symptoms." [855]

* lack of LEA understanding of ABA--trying to provide it intermittently in the classroom, or in group activities [861]

* LEA decisionmaker had not interviewed student personally, therefore their opinions carry less weight than the evaluators who have personally met him [856; 860].

* Extensive history of independent medical evaluations was made available to the IEP team [858-859]

* Evidence of a written expert opinion was admitted at hearing which was not submitted to the IEP team, and relied upon by the federal district court in deciding that the LEA offer was inappropriate. [863, n. 20]

* Snapshot: "The IEP cannot be a snapshot' for E's development at that point in time if [the IEP team] ignored or failed to give due weight to these [ABA/Lovaas expert] evaluations. At [the IEP meeting] the [IEP team] was aware of the marked improvement E had made since undergoing ABA . . . . Moreover, at the hearing, Mr. X submitted a voluminous detailed log of E.'s progress . . . since the home based program. . . . There was, therefore, ample opportunity in this case to construct an IEP that was reflective of E's level of development." [863, n. 21].

CONSULTANT: Tomorrow Learning Center, Dr. Perry, Dr. Cohen Shoreline Sch. Dist., 26 IDELR 923 (WA 1997)

AGE: 3 year old DIAGNOSIS: Autism/PDD [924] ABA: currently provided by parents, in-home

* "some educational benefit" "more than minimal or trivial progress in a placement considering the student's unique characteristics" [930]

* developmental classroom, center-based, AM and PM; 12 1/2 hrs @ wk; 7: 1+ 1 [925]

* Dawson/Osterling article introduced and used to judge LEA offers appropriateness

* sufficient LEA progress was documented by video [931] Azle Indep. Sch. Dist., 26 IDELR 931, 3 ECLPR 87 (TX 1997)

* re: failure to assess for autism under a noncategorical early childhood program: child's father stated that the family pediatrician had recommended child be seen by a psychiatrist to rule out autism. Also teacher noted symptoms of autism. This constituted "explicit notice to the [IEP team] that autism was suspected." [932-933; 937].

* six month delay between notice that autism was diagnosed and IEP team review of fact of diagnosis as impacting programming [935]

ABA: 25-30 hrs @ wk by parents for 2 years past and 1 year future, concurrently with LEA IEP's

* awarded ABA/Lovaas reimbursement back to inception of home program (about 1 year)

* for new school year at least 10 hrs @ wk ABA + full preschool day + mainstreaming opportunities, with consultation

* the LEA must provide an education that is reasonably calculated to provide the child a program that is meaningful and is likely to produce progress rather than regression or trivial educational advancement [3rd Cir.] [937].

* special education preschool classroom, self-contained, severe; 10: 1 + 1 to 8: 1+ 1

* EYS of 3 hrs @ day for 24 days + SLP + OT w/ trained autism teacher [slightly more progress]

* child attended about 2/3rd of school day, missed group activities and rest time [to accommodate home ABA program] [936]

* offer to fund 10 hrs @ wk ABA prospectively as compensation for acknowledged procedural errors of past years (rejected)

* mediation offer to fund 4 hrs @ wk of ABA prospectively as per LEA's choice of outside evaluator (rejected)

* connected to substance: led to 2 years failure to provide an IEP to address autism, including in-home training and parent training

* failure to provide all SLP services promised in past IEP's, due to shortage of SLP's, loss of 18 hours of service

* failure to provide adequate 1:1 instruction in current IEP offer of 1/2 hour @ day 1:1 from an ABA/TEACCH trained, skilled and dedicated teacher: "the small amount of 1:1 attention . . . was not enough, in and of itself, to produce reasonable progress in a child with the degree of communication and socialization deficits that [child] had at that time, especially in light of her need for remediation and compensatory services. . . . Despite the best efforts of [the LEA teacher], her 1:1 time with [child] was limited, and the record indicates that [child] would have continued to make only trivial progress [in the upcoming year] had she not concurrently been receiving intensive 1:1 therapy at home and private speech therapy at home." [936]

* classroom teacher had TEACCH training and ABA/Lovaas training, skilled, dedicated, and complimented by parents

* student made little progress toward her IEP goals under past IEP's, yet once ABA/Lovaas began she demonstrated increased, excellent progress, rate of progress is 10 months gain in 10 months time [936]

* little progress: of 26 goals and objectives, only scribble, 6 block tower, and open/close scissors and cut paper were achieved; partial progress on 5 other; minimal progress on 17; the value of the 4 accomplished goals is undermined by [objective] assessments that she could do these tasks before LEA instruction, and parent testimony [934]; trivial [936]; slightly more with autism-trained teacher [936]

* "The experts at hearing agreed that it is critical that deficits in communication and socialization in children with autism be addressed in intensive, early intervention in the preschool years." [935; 937]

* Numerous journal articles in the field of autism were submitted by the parties. [936]

* "The evidence indicates that the in-home ABA therapy benefitted [the child], complemented her public school program, and help her benefit from it, at a time when the district was offering inadequate amounts of 1:1 instruction and speech therapy." [937]

AGE: now 6 year old, rising kindergarten student DIAGNOSIS: Autism/PDD-NOS, meeting 5 of 12 DSM-IV criteria

* later diagnosis of Autistic Disorder using DSM-IV criteria by Dr. Bryna Siegel

ABA: approximately 2 yrs of in-home ABA/Lovaas had been provided by parents at time of hearing + integration into 2-3 different preschools with a 1:1 aide + private assessments + private SLP

* number of 1:1 discrete trial hours were being reduced over time and being replaced by integration with typical peers, facilitated by 1:1 ABA/Lovaas trained aide

* LEA assessments were appropriate, therefore parents not entitled to reimbursement for private assessments

* parents awarded reimbursement for costs of 2 years of past in-home ABA/Lovaas + private 1:1 SLP + private preschool tuition + costs of 1:1 aide for 2 of 3 preschool placements found appropriate

*basic floor access to specialized instruction and related services which are individually designed to provide educational benefit to the child

* seems ot be on the parents to show appropriateness of all unilateral placements

* many IEP offers did not include exposure to any regular education peers, or insufficient detail about mainstreaming offers

* transitional kindergarten proposed integrated placement appropriateness was not supported by sufficient evidence

* 1st IEP offer: 3 hrs @ wk + SLP consult + transportation + EYSE (rejected by parents)

* 2nd IEP offer: LEA special education for 12 hrs @ wk non-categorical, developmental curriculum classroom of 7- 12 students : 1 teacher + LSP, + adaptive PE + OT (all related services provided in classroom, collaboratively) (with no mainstreaming) (used by parents who observed regression in child during placement and over winter break--parents then investigated ABA/Lovaas)

* 3rd IEP offer: LEA special education preschool + Head Start preschool (uncertain how much time) + SLP + OT + adaptive PE + EYSE of 3 hrs @ wk + transportation (parents refused and began ABA/Lovaas)

* 4th IEP offer: LEA transitional kindergarten class of 15 students using a preschool curriculum with no integration + 20 hrs @ wk of an aide (first offered at hearing, according to mother) + OT + home consult of 1 hr @ wk + adaptive PE collaboration 1 hr @ wk + SLP consultation and 40 min @ wk 1:1 (parents agreed to goals and objectives, but not to placement)

* IEP goals and objectives were general and failed to address cognitive and behavioral needs for 3 years of IEPs

* goals and objectives developed by a teacher who neither assessed the child nor attended the IEP meeting, that were general and simply called for the student to improve in a given area

* only minimal IEP goal and objective revisions were made after LEA received independent evaluation and assessment information from the parents

* goals and objectives in IEPs failed to address all identified areas of deficit per LEA and independent assessments and evaluations

* child's identified needs for 1:1 related service delivery were met with offers of collaborative related service deliver

* family involvement was not addressed in IEP offers (despite family training opportunities on various topics and home visit schedule)

* written reporting to the family of the child's progress at school was not individualized

* LEA use of group PECS was not individualized to various children in LEA classrooms

* LEA used a Head Start Hi Scope curriculum and child-led methodology that had not been modified to meet this child's needs as a young child with autism

* LEA witnesses saw child as a sweet child who is trying hard to please the adults in his life, who needs time to play and rest, and needs [lower] expectations that he can meet

* parents experts opined that a child led' program was not appropriate for this autistic child

* child's pediatrician observed child's progress after ABA/Lovaas in-home programming began

* parents experts repeatedly evaluated the child over ABA/Lovaas in-home programming periods; child met or exceeded all expectations of parents experts for progress (rate of development was 2 years in 1 chronological year, across all domains)

* child's progress and LEA placements inappropriateness corroborated by ABA/Lovaas tutors, integration aide, and private SLP (initially skeptical, found child's response to ABA/Lovaas astounding')

* LEA's SLP claimed ABA/Lovaas home program was uncalled for because child had begun to make social contact, imitate play with peers and follow classroom directions; expressed concern that speech taught in home program was rote

* LEA expressed concern about use of aversives to mother; ALJ found this LEA concern "totally unfounded" with respect to ABA/Lovaas

* Head Start follows the Hi Scope curriculum, a child-centered, child-directed curriculum whereby students flow through the classroom and participate in open-ended activities set up by the teachers and has served 3 students with autism in 7 years

* parents experts opined child would be in "high outcome" group because of higher cognitive functioning and less severe autism symptoms

* LEA teacher admitted to several failings in being prepared for individual student, visiting at home, use of hand- over-hand instruction, a gate to prevent student escape, and circle time in-lap, and informal data collections

* LEA teacher claimed progress in tolieting and self-help areas and minimal preacademic skills; claimed child did not need 1:1 aide

* LEA's administrative decisionmaker was concerned about limited nature of ABA/Lovaas program and claimed LEA currently has two former students with autism who are employed in the community and live in the community with roommates (supported community living)

* LEA called an outside educational expert to testify on the issues of appropriateness; significantly she suggested the addition of a 1:1 aide for this student, and was willing to consider the ABA/Lovaas home program as an appropriate supplement to the contested IEP offer

* LEA school psychologist criticized procedures used by parent's expert Dr. Siegel, and attacked Dr. Lovaas' research, Dr. Siegel's research, and Dr. Smith's critique of the TEACCH program

* parents had videotapes of child's level of participation in the LEA placements used

* LEA principal objected to ABA/Lovaas artificial environment, food reinforcers, child's incessant laughing, jargoning and funny noised during therapy as indicative of child stress

* LEA special education director offered philosophical disagreement with funding ABA/Lovaas when LEA placements were available

* some LEA assessments and evaluations required 1:2 ratio to obtain performance from the child

* for a year LEA claimed child progressed, ALJ found by review of serial assessments by LEA that if any change occurred, it was that child's autistic-like behaviors increased (corroborated by change of medical diagnosis from PDD-NOS to Autistic Disorder under the DSM-IV) (ie regression attributed to LEA programming, not child's intestinal parasite illness)

* child was observed to exhibit self-stimulatory behaviors in LEA placements, without interruption by staff

* Behavioral Intervention Associates, Annette Groen, parents ABA/Lovaas consultant

* Dr. Bryna Siegel, parents' independent diagnostician, evaluator and observer of LEA placements

AGE: 4 1/2 year old DIAGNOSIS: Autism (undisputed), hyperlexic in a bi-lingual home ABA: LEA agreed to fund 40 hrs @ wk ABA/Lovaas in-home for 4 mos

* after 4 mos LEA wanted to change placement to a special education preschool for students with autism + only 20 hrs @ wk of ABA/Lovaas in-home with LEA staff rather than existing in-home staff

* parents then provided 40 hrs @ wk ABA/Lovaas in-home + integration into a private regular education preschool with a 1:1 aide

* pre-hearing stayput order for child to remain in 40 hr @ wk in-home ABA/Lovaas program provided for in the IEP sought by parent and agreed to by LEA

* the specific amount of 1:1 in-home ABA/Lovaas to be provided was not decided by the ALJ, as this determination was best made by the ABA/Lovaas consultant working with the student in accordance with his progress (ie. data driven)

* ALJ required the LEA to contract with the parents' in-home ABA/Lovaas and integration site providers [CARD] and develop a new IEP with CARD's participation

* parent withdrew past reimbursement issue at hearing and thus mooted question of whether LEA IEP offer was appropriate or not

* parent was protected by the stay-put order and received reimbursement for the stay-put period

* basic floor of opportunity, access to specialized instruction and related services which are individually designed to provide educational benefit to the child in the LRE

* on the LEA to show a compelling reason to change the ABA/Lovaas providers to LEA staff

* by prehearing motion the burden of proof was shifted to the LEA as the party proposing a change in the IEP

* LEA's proposed group placement in a special education class was more restrictive than the parents' group placement of the child in a private regular education preschool

* LEA's expert would not expect child to mainstream into kindergarten after completing proposed LEA preschool placement in this state of the art autism classroom

* parent's expert would expect child to mainstream after completion of ABA/Lovaas

* a special education preschool for students with autism + only 20 hrs @ wk of ABA/Lovaas in-home with LEA staff rather than existing in-home staff

* parent and legal counsel requested an IEP to make formal funding request for existing in-home ABA/Lovaas program at which LEA agreed to pay for much of the program, but the agreement was never finalized

* 2nd IEP meeting was called by parents and legal counsel and LEA agreed to pay for 4 mos of ABA/Lovaas while CARD trained LEA staff; parents agreed to waive about 9 mos of past expenses for the in-home program and to visit an LEA classroom placement for autistic children; CARD wrote IEP goals and objectives and PLEP; parents agreed to keep the terms of the IEP confidential

* child began integration with a 1:1 aide in a regular preschool per CARD advice

* parent visited LEA preschool special education class for children with autism and rejected that placement as inappropriate for this child

* 3rd IEP meeting held--LEA agreed to reimburse parents for costs of in-home ABA/Lovaas program, and CARD, when paid by LEA, to refund to the parents; the contested IEP offer was then made by the LEA; to which parents dissented

* LEA's proposed placement changes would have significantly reduced child's exposure to regular education peers

* LEA continued to include 20 hrs @ wk of in-home ABA/Lovaas conducted by LEA staff in the contested IEP offer, but LEA staff used a different methodological approach than ABA/Lovaas

* LEA special education placement, part of the contested IEP offer, but LEA staff used a different methodological approach than ABA/Lovaas (described by LEA expert as having some discrete trial, but also other methodologies, state of the art autism classroom)

* LEA expert witness characterized ABA/Lovaas as just a methodology and limiting (had not seen or assessed student; did a paper record review)

* parents' evidence packet was admitted into evidence 1 day late because it was received 1 day late

* LEA expert Bryna Siegel was allowed to testify by telephone, certifying that she was alone in a room with parties' exhibits available for reference

* child's native language at home is Farsi (Dr. Granpeesheh, ABA/Lovaas consultant is originally from Persia); under ABA/Lovaas is acquiring bi-lingual speech in Farsi and English (same as other family members)

* child's first placement was in 20 hrs @ wk LEA special education class where mother remained on campus daily and child cried a lot, mother afraid child was being hurt; child experiencing separation anxiety; child played with feces and picked nose at home, made no progress at school and parent withdrew him from this placement

* LEA claimed progress in this first placement, but evidence that child bit another

* parent initiated contact with ABA/Lovaas providers at CARD, and notified the LEA that in-home ABA/Lovaas would begin (LEA did not consider this a formal request for funding)

* after in-home ABA/Lovaas child's IQ rose to superior range (on nonverbal IQ test) while significant language delay was still evident; adaptive behaviors per the Vineland were remediating nicely; child is also hyperlexic

* LEA expert Dr. Siegel largely supported contentions of the parents after paper review of child's educational record, recommending continuation of in-home ABA/Lovaas CARD program and appropriate integration with regular peers (not the LEA autism preschool classroom)

* parent expert concurred with LEA expert Siegel that LEA autism preschool was inappropriate for this child, and sounded very different from an ABA/Lovaas program

* parent expert did not recommend PECS for this student since he had enough prerequisite skills to develop speech

* parent expert opined that changing child's entire ABA/Lovaas staff to LEA staff would produce regression in the child

* LEA admitted in post-trial brief that in the six months since the contested IEP offer the LEA autism classroom placement had become inappropriate for the child, given the child's current advances in in-home ABA/Lovaas programming during the stay-put period

* LEA failed to offer any updated LEA IEP offer to meet child's current placement needs at the time of hearing

* Dr. John McEachin, Autism Partnership, LEA's ABA/Lovaas contract provider Douglas EDS/Oregon Dept. of Educ., 3 ECLPR 124 (SEA Or. 1997)

* reimbursement is not an available remedy unless the parents have put the LEA on notice of the parents' dissatisfaction with the IFSP

* ALJ rejects parents' citation to 2nd Cir authority to the contrary, ie. Malkentzos

* 12 1/2 hours of 1:1 instruction with substantial but not exclusive employment of discrete trial activities

* after parents dissatisfied with implementation of IFSP, they consulted Dr. Tristram Smith who recommended 40 hr @ wk ABA/Lovaas

* ALJ seems to estop the parents to claim reimbursement since they failed to request public funding during the IFSP process

* IFSP was reasonably developed based on information available to the IFSP team, including information from the parents, and taking into account the age of the child and his tolerance for a full day program

* Part H team refused to write ABA/Lovaas or discrete trial training into the IFSP, wanting not to be limited to this method

* parents and home program staff felt child was bored with LEA 1:1 instruction, and that LEA staff had slacked off and were using inconsistent ABA/Lovaas techniques

* LEA staff failed to attend parent-sponsored PACE training in ABA/Lovaas (parents offered to pay them to attend)

* at least 4 member of evaluation team formulating the IFSP had never seen the child or met him only once

ABA: parent provided in-home ABA/Lovaas for about 1 year, first at 10-12 hrs @ week, later at 20-25 hrs @ wk

* parental reimbursement for 1 year of in-home ABA/Lovaas denied ($14,000 by a single parent, waitress)

* due to impasse during IEP process, IEP was never written to address LEA acknowledgment that child needed some 1 : 1 instruction; ALJ orders parties to reconvene IEP and strongly suggests the LEA incorporate some ABA/Lovaas 1:1 instructional techniques

* IEP included a communication system, involved the parent, and addressed the child's behaviors

* since methodology decisions are left to LEA, the LEA was not required to use ABA/Lovaas; could choose TEACCH

* parent's California out-of-state expert was less than impressed with Nevada state-wide programming for children with autism; apparently offended the ALJ

* for 4 mos LEA and in-home programming were provided concurrently; ALJ uncertain how to attribute progress