ABA legal briefs

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"

Briefs updated 16 February 1999
Return to ABA Resources
This page is rsaffran.tripod.com/briefs.html

G.F. v. East Hanover Board of Education, 16 EHLR 141 (SEA NJ 1989)

* 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

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

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)

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

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

* 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

Central Susquehanna Intermediate Unit 16, 2 ECLPR 109 (PA 1994)

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

Mill Valley Elementary School District, 2 ECLPR 43, (SEA Cal. 1994)

* 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

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)

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

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)

Michelle Drucker v. Broward County School Board, ____ IDELR ____, (Fla 1995)

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

Frederick County Public Schools, 2 ECLPR 145 (SEA Md. 1995)

* 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

Unified Sch. Dist., 23 IDELR 1081 (SEA Cal. 1995)

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

Rebecca S. v. Clarke County School District, 22 IDELR 883 (D.C.M.D. Ga 1995)

* 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"

M.C. v. Chester County Intermediate Unit, 24 IDELR 723 (PA 1995)

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)

* 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

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

High Bridge Bd. of Educ., 24 IDELR 589 (N.J. 1995)

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)

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