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Failure to Provide FAPE; ALJ Orders Compensatory Ed Directed by Parents (CA)

05/06/08
by Wrightslaw

On March 17, 2008, California Administrative Law Judge Lepkowsky issued an OAH Decision in Student v. Redlands Unified School District [OAH Case No(s). N2006100159 & N2007031009].

The ALJ held that the District’s failure to provide appropriate behavioral interventions for three consecutive school years resulted in a denial of FAPE and entitled the child to substantial compensatory education and other services.

 1. 25-hours per week of direct, 1:1, in-home ABA services for one year to be provided by parents’ chosen ABA service provider.

2. 430-hours of after-school, academic tutoring over 2-years to be provided by a B.C.E.T. or a credentialed teacher, trained in autism and behavioral interventions.  Student’s parents were given authority to direct the focus of the academic tutoring on a weekly basis.

3. 390 hours of Lindamood-Bell reading remediation.

4. A “functional analysis assessment” in accordance with Section 3052 of Title 5 of the California Code of Regulations to be conducted by a qualified independent assessor.

Steven Wyner, Esq., of Wyner & Tiffany, represented the Student and his parents.

You can download the case from the Office of Administrative Hearing web site: 

http://www.documents.dgs.ca.gov/oah/seho_decisions/2006100159-2007031009.pdf

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23 responses so far ↓

  • 1 Sharon L. 01/10/11 at 12:27 pm

    Madia – I am assuming that your child is in special ed and on an IEP. If so you need to reconvene a meeting and make sure they are following it. If there are goals that are not in there you need to put them in there. If you have a physician or psychologist that you are working with they can help you put together the goals you need. Also you can join a group like LDA Learning Disabilities Association and they can help provide information. YOu can read the Wright’s books on this subject. Learn as much as you can. Education is the best weapon to deal with the school’s not helping your child.

  • 2 Madia 01/09/11 at 9:11 pm

    My child is not recieving the help that he needs in school, his teachers are not offering after school programs and he has been diagnosed with special needs, I am wracking my brain trying to figure out what I can do to make sure my child succeeds. As of right now he is failing because of the lack of help from the teachers…please help!!

  • 3 annette 09/14/09 at 6:19 pm

    I have a 5 year old autistic son. Our IEP is 9/18/09. We feel that the school is not providing FAPE for our son due to the lack of social skills time with typical peers. The class for autistic children currently has 12 -14 kids, 1 teacher and 3 aids. The mainstream opps. are library, computer class and recess (aides are there but do not implement play with typical peers). At our IEP last May, we requested more “inclusion” time but the IEP team said they couldn’t recommend it now as they didn’t know who the K teachers were going to be and how “accepting” they would be to have our son in their class. All they legally have to do is “allow him into the class, they don’t have to pay special attn. to him or make sure he’s keeping up”. Aid ratio is 2 to 1 and they can’t promise the aid will “be any good”. Is school resp. for private inclu?

  • 4 Michelle 11/06/08 at 6:26 pm

    My student is a special education student with a diagnosis of autism. Last year we filed due process and settled during mediation. One of the agreements was for District to provide a one-on-one aid to accompany my daughter during transition from class to class, during general education classes and during unstructured periods for 2-3 hours per day. Our daughter has responded well to one-on-one aid. Now the District would like to break up the aids time, asking her to “work” for 15 minutes in the morning to get my daughter to regular education class, return to school nearly two hours later for lunch and come back again in the afternoon. This seems to me to completely defy the agreement?

  • 5 David 06/06/08 at 10:11 am

    Shannon,

    The meeting was taped, both Attorneys were present, the Assistant Superintendent was present for the IEP. Less than a week ago, the Special Services coordinator “Emailed us”: asking us to confirm that our attorney and my son’s Dr. were avaialble. There are still compensatory hours how from the Department of Education from 2005 that have not been delivered. The safeguards and IDEA laws that seem to be in place to prevent this sort of thing are pointless given the enforcement that is in place. Is there enforcement other than bringing a lawsuit?

  • 6 Shannon 06/05/08 at 8:21 pm

    David
    Did you tape the meeting when the June 19th date was agreed upon? If so I would politely remind the district that a date was already established at that meeting and you would be happy to provide a transcript if necessary. If there is no repsonse I would send the transcript to the Dept. of Ed.

  • 7 Shannon 06/05/08 at 3:55 pm

    Thank you so much for this website! It was recommended to me by our advocate and I have since let many others know about it. I have bookmarked this case because it seems to address some information I am looking for. However, it is very hard for the average person to decipher all of the legal jargon. I am looking for specific cases that address what constitutes progress under FAPE. We have a CSE meeting next week and are requesting placement outside the district in a state approved school. The foundation of our argument is that his education was not appropriate because of lack of progress, there has actually been regression. I would like to go in there with some cases that support our position.

  • 8 David 06/05/08 at 9:00 am

    I am having difficulty getting our district to provide IEP invitations that have at least a seven day notice so we can arrange to attend. Historically, we get less than forty eight hours notice and the Department of Education has warned the district in a previous investigation into my son’s educaitonal provisions.
    During a May IEP while all parties were present, we established that June 19th was a good time to meet to discuss summer services. We were contacted on last night (June 4th) and asked if we could meet on June 10th instead.
    One date for the last week of June was provided and we were told that we would be refusing summer services if we did not accept the 10th or the 24th. What do you do when it seems that continued efforts are being made to make it difficult for parents to participate in IEP decisions?

  • 9 David 05/30/08 at 7:54 pm

    14Mary,
    As equal participants of the IEP team, my wife and I found it necessary to stop the discussion to clarify things like who is the ‘go to’ person?, what is the crisis plan in the event discipline decisions are being considered?, and so on.
    We would include what our understanding of the meeting was in a thank you letter. We eventually invited the Director of Special Services to our IEP meetings who was able to establish a ‘go to’ person for us. Though we never actually had to go where she recommended, this did eventually lead to better educational services for my son.

  • 10 MARY 05/28/08 at 5:57 pm

    PARENT-SCHOOL RELATIONSHIP
    I am studying to be an educational advocate , starting with your training OF COURSE. At this time we are fighting for a smaller school with more time for each student as our child ‘s PTSD does not usually bother his scholastic endeavors until now. There have been so many miscommunications between staff, there is no “go to” person in our situation. It is almost like playing whisper down the lane at which point once we get the information it is not even recognizable (the original problem ). Are any other parents having this issue no HEAD person to deal with , stories being told in five different ways?? Our son’s IEP has not been followed , when he misbehaves unfortunately the IEP dissappears and it’s whatever the Reg Ed Teacher deems applicable? Yes , we are frustrated but HOPEFUL as we are now educating ourselves and plan to help educate all parents in our area once we know what we are actually doing lol! But I really would like some input on other families dealing wth communication lack shall we say? Blessings , Mary

  • 11 David 05/27/08 at 9:05 pm

    My son’s school district has committed to pay for a private placement beginning next fall and up until he graduates high school. We have been asked by their attorney and the director of Special services to withdraw my son from the district.
    The IEP team will meet in a few weeks to discuss the district’s willingness to provide a highly qualified teacher to assist with the online courses that my wife has assisted him with.
    My question is Do we have to withdraw my son from the district to take advantage of their offer to pay for the private placement? Can this be written in his IEP?

  • 12 Mckenzee 05/20/08 at 10:05 pm

    Help!!! Our school district–Texas–will NOT approve any IEP for my son, 9, Asperger’s because he demonstrates ” no educational need”. He gets straight A’s yet cries/meltsdown weekly. I have had a meeting–services denied. PLEASE someone help me. I cannot work fulltime because I have to be on call in case something happens. I do not know what to do.

  • 13 Melissa 05/19/08 at 4:10 pm

    I don’t know if I’m in the right are, but out of all of the posting choices, this one seemed to relate the closest. My daughter has a cognitive impairment and is in the 3rd grade. She will be going into the 4th grade this fall and the school district is concerned with her social interactions with her peers. They feel it is best for her to be placed in a self-contained classroom and instead of focusing on academic skills start teaching her life skills. Is this right?

  • 14 Wrightslaw 05/13/08 at 8:08 pm

    Natalie:

    IDEA does not require parents to sign before an IEP can be implemented. Regulations about whether a parent’s signature on the IEP is required vary from state to state. In some states, a parent’s signature is not required at all. In other states, the parent’s signature means they were present, or that they approved the IEP.

    You ask if the school can implement an IEP without consensus. Yes.

    The school is responsible for providing each qualifying child with free, appropriate public education (FAPE), regardless of whether the parents are involved or absent, regardless of whether the parents approve or disapprove. When there is clear disagreement with a parent, the school may request a reverse due process hearing against the parent, and ask the hearing officer or ALJ to find that their proposed IEP is appropriate. You don’t want to go there.

    You describe problems with at least two IEPs. Did you put your concerns about these IEPs in writing? You say you requested mediation but the school said “no.” Did you put your request for mediation in writing? When the school said “no” to your request for mediation, did you write a letter that documented their refusal?

    If you did, you created a paper trail that will support your position. You may want to consider a consultation with an attorney who has expertise in special education. Be prepared to answer this question: “What do you want?” ~ Pam

  • 15 Natalie 05/13/08 at 11:22 am

    I have had problems where the last 2 IEPs for my daughter were implemented without my approval. The first one was done by vote and the second one I asked if they would be willing to go to mediation and they said “NO”. The first one they knew I had additional information to present to the team but they implemented it anyway. The ’97 regs had the Appendix A to refer to about voting an IEP into place. What can a parent do with the new regs? Can the rest of the team put an IEP in place without consensus?

  • 16 Wrightslaw 05/09/08 at 2:51 pm

    Araminta: If I understand the situation, your son was enrolled in a public school program. He has Asperger’s Syndrome and ADHD. I don’t know if he had an IEP or 504 Plan. You describe many incidents of mistreatment by an aide. You and your husband withdrew him from that school and are homeschooling him. You want to know how you can ensure that this aide will not mistreat him if you enroll him in the public school again.

    While he was in schooI, I hope you wrote letters about the aide’s behavior and treatment. Any letters you send to the school should be factual and businesslike, not emotional. (That’s why we decided to name our parent advocacy book “From Emotions to Advocacy”). In your letters, you need to describe what you saw and state what you want.

    You can also use a Problem Report to resolve many problems – for example, if a child is being bullied repeatly.

    We published a newsletter about how to create paper trails a few months ago – just click this link:

    http://www.wrightslaw.com/nltr/08/nl.0226.htm

    Putting things in writing at the time they happen is the best way to (1) resolve problems before they get out of hand and (2) protect a child from further mistreatment. ~ Pam

  • 17 Araminta 05/09/08 at 2:23 am

    My husband and I have a son, who we pulled out of school to home school him due to the constant harressment he recieved by a poorly trained aid, We were told we had no jurisdiction over who worked with our child while he was in school custody; this aid was actually causing more problems then he started with. She would stalk him to the bath room and yell in at him to hurry up while he had a bowl movement, she would tell him he had to quickly finish his lunch, embarressing him inf front of peers. When he cried expressign that he felt none of the teachers cared for him, this person would play a pretend violen and say , “boo hoo, I do not want to hear your whinning story lines.” This infuriateded me. He was trying to reachoout for help and he was down palyed and ignored unless he acted out. he is 8 years old. He has Asbergers and ADHD My husband and I chose to home school him to remove him from the hostile learnig envionment, what recourse do we have if we ever want to put him back into a public school that she may migrate to. She focused so much on his negative behaviors that she woudl tell him daily he was bad and disrespectful; writing a 217 page diary of him “bad behaviors ” in less than a 2 month period while completly ignoring his positive and proactive behaviors; she admitted that I was not the boss of her and that she did not have to focus on his good behaviors just the bad ones. I was appauled at this and told her it was no wonder he was acting out, it was what had become expected of him. So I just need some advice on how to assure that she will not harm him emotionally if I ever do put him back in the district.

  • 18 nancy 05/07/08 at 11:41 pm

    thanks for your web site —

  • 19 mj 05/07/08 at 2:11 pm

    Congrats on 10 years of excellence. I think it is absolutely great that you have started this blog. I’ll be subscribing to your RSS feed and passing the word on to others.

  • 20 Sarah 05/07/08 at 1:10 pm

    I appreciate all the information provided on your website, too but I seem to get stuck on how to apply the information to my son who is an academic blind child. Our main problem is that he does not receive instructional materials on time and they are often of poor quality. We’ve been told “it’s just too difficult to provide the materials.” The school does not use textbooks so everything he does get is created at the last minute. I think this denies him a FAPE but it doesn’t seem to be specifically addressed anywhere.

  • 21 Wrightslaw 05/07/08 at 11:53 am

    Trish, Mary – Thank YOU for your comments. We appreciate your telling others about the Wrightslaw Way – it offers a different way to communicate with people who have questions. We also want it to become a place where people who have problems can get help and develop creative solutions to their problems. ~ Pam

  • 22 Mary 05/07/08 at 11:20 am

    Thank you to this website. My son has graduated high school. Early I might add and the information I received from this website was so valuable in obtaining the wonderful private school he attended during his high school years. The guidance I followed in mastering the IEP process was the key to our and my son’s success. Thank you….

  • 23 Trish 05/06/08 at 2:16 pm

    Thank you for starting this wonderful blog. I will definitely be passing it on to all my friends! I recently shared your books during a series of blog posts on autism resources for autism awareness month.