Independent Sch. Dist. No. 318
State Educational Agency, Minnesota
24 IDELR 1096

August 10, 1996
No. 55-2103-10572-3

Counsel for Parents: Sonja D. Kerr, Esq., Greta Mack, Esq., Melanie Neumann, Inver Grove Heights, MN.
Counsel for District: Susan Torgerson, Esq., Tim Palmatier, Esq., Knutson, Flynn, Deans & Olsen, St. Paul, MN.

Administrative Law Judge: Sara D. Jay.

Findings of Fact, Conclusion and Decision

The above-entitled matter came on for hearing before Administrative Law Judge Sara D. Jay, serving as hearing officer pursuant to Minn. Stat. Sec. 120.17, subd. 3b(e) commencing at 9:30 a.m. on July 10, 1996, and continuing on July 11, 12, 13, 15 and 16, 1996, at the Grand Rapids High School, Grand Rapids, Minnesota. The hearing was open at the election of the Parents in accordance with the provisions of Minn. Rule 3525.4200.

Susan Torgerson, Esq., and Tim Palmatier, Esq., Knutson, Flynn, Deans & Olsen, Suite 1900, World Trade Center, 30 East 7th Street, St. Paul, MN. 55101, are representing the District. Sonja D. Kerr, Esq., Attorney at Law, 5972 Cahill Avenue, Suite 110, Inver Grove Heights, MN. 55076, assisted by Melanie Neumann, Law Clerk (pre-trial) and by Greta Mack, Esq. (at hearing), is representing the Student and Parents.

The record closed on July 25, 1996, upon receipt of the parties' post-hearing submissions. The procedural timelines are discussed at Findings 92-101.

This decision is final and binding upon both parties unless appealed within 30 calendar days of the receipt of this decision, as provided by Minn. Stat. 120.17. Any Notice of Appeal shall be in the form attached to this decision or otherwise in writing and shall be filed with the Commissioner of Children, Families and Learning, with copies sent to all parties.

If the decision is appealed, a written transcript of the hearing shall be made accessible to the parties involved within five calendar days of the filing of the appeal. The hearing review officer shall issue a final independent decision based on an impartial review of the local decision and the entire record within 30 calendar days after the filing of the appeal. The hearing review officer shall seek additional evidence if necessary and may afford the parties an opportunity for written or oral argument.

The decision of the hearing review officer is final unless appealed to the Court of Appeals. The judicial review shall be in accordance with Minn. Stat. Ch. 14.

Statement of Issues

The issues in this case are:

1. Whether the Student's educational program needs to include the Lovaas Therapy program, and a full-time aide trained in Lovaas Therapy.

2. Whether the Student's team needs to include an autism expert, specifically a Lovaas Therapy consultant for a minimum of twelve times per year.

3. Whether the Student's program should include computer training.

4. Whether the Student's program should include daily attendance in a school setting.1

5. Whether the Student's program should include extended school year services.

6. Whether the Parents shall be reimbursed for past Lovaas Services, including direct intervention and consultation services.

Based upon all the proceedings herein, and the stipulations of the parties, the Administrative Law Judge makes the following:

Findings of Fact

1. The Student is a five-year-old boy, born April 23, 1991. (Ex. A-1; Stipulation of Facts ["Stip.]" 1.) He has been a resident of the District since he was under age two. Hearing Transcript ("Tr."). The Student has been diagnosed as having autism.

2. Autism is a complex disorder, currently understood to have a neurological basis. Children with autism are described as having focused inward. They typically lack behaviors such as focusing on others, imitating others, engaging in spontaneous or imaginative play, displaying emotion or affection. Very often, they do not develop, or lose, speech skills, and engage in "self-stimulating" behaviors such as perseverative and apparently purposeless hand-flapping. Children with autism often are easily over-stimulated by their environments, finding ordinary levels of noise and/or visual stimulation overwhelming; many also are disturbed by even minor changes in routine.

3. At the age of approximately 20 months, the Student began losing his ability to use words, to maintain eye contact, and to engage in social interaction. Ex. 62. Despite the assurances of family physicians, the Student's mother remained concerned, and had the Student evaluated at Polinsky Medical Rehabilitation Center in Duluth. His evaluation showed that he engaged in little imitation of tasks presented, limited eye contact, limited social/interactive language, decreased play skills. Ex. 58, 59, 60.

4. The Polinsky Center referred the Student to the District on August 4, 1993. The Polinsky Center evaluation was provided to the District by the Parent.2 The District developed an interim IFSP for the Student on August 11, 1993, Ex. 1, 2, using the Polinsky Center evaluation for its present levels of performance. The Center recommended that the Student receive direct physical therapy 2-3 times per week, 30 minutes per session, Ex. 58, direct speech/language services 2-3 times weekly, Ex. 59, and direct occupational therapy services, Ex. 60. The IFSP provided only for indirect occupational and physical therapy services. Tr. 821, 828.

5. Prior to the IFSP meeting, the Parents had arranged to have the Student evaluated by the University of Minnesota, which issued a report in September 1993. Ex. 62. The University stated that the Student's behavior did not meet the diagnostic criteria for autism at that time, Ex. 62, p. 158; however, no other basis for the Student's regression was stated. Id. The Student has since been diagnosed with autism, and there is no current disagreement about the appropriateness of the diagnosis.

6. Early Childhood Special Education ("ECSE") for two-year-olds may have home-based or center-based components, or both. ECFE is a District program run through community education, and is similar to a regular education program. It is a parent/child program for any young children. Tr. 71.

7. The Student was enrolled in the ECSE and ECFE programs at the District, and commenced attendance in September 1993, two days per week for three hours each day. Tr. 80. The Student was placed in the youngest class, where he remained until transition to the three-year-old program, which transition was begun in the spring of 1994. His first teacher was Connie Katonias ("ECSE-infant teacher" herein).

8. Also in fall 1993, the Student was evaluated by observation by the District's occupational therapist ("OT") and physical therapist then on his IFSP team. Ex. A-8. An annual IFSP was written on November 12, 1993. Ex. A-2. That IFSP set forth two goals:
 

(1) to "consistently use words to interact with others using 2 word phrases";

(2) to "interact with familiar adults and peers." The first goal included an objective of "select[ing] a picture to represent what he wants & give it to an adult 3X/day." Ex. 2.

9. In the fall of 1993, the Student's Parent learned about Lovaas Therapy through a magazine article about Kathryn Maurice's book entitled Let Me Hear Your Voice. The Parent read the book and decided to try to provide this service for the Student. Tr. 843-4. She discussed Lovaas therapy with the ECSE infant teacher.

10. In December, 1993, the Student was evaluated by Lyle Chastain, a psychologist acting as consultant, at the request of the Parents. (Ex. 63, p. 160, "Reason for Referral.") Following that evaluation, a third goal was added to the Student's program, that he "enjoy interaction." Ex. 2, p. 16. Two of the objectives listed under this goal were that the Student learn to follow a point, and that he "consistently take turns with an adult in actions or verbal exchanges."

11. The only other recommendation made by Ms. Chastain which was utilized by the District was use of a picture card of a train to encourage the Student to ask for a train, which was then the Student's favorite toy, to the point of fixation. Ms. Chastain gave the train card as an example of how to begin use of a picture card system, Ex. 63, p. 168. However, the District used only that one card and a blank card to see if the Student was distinguishing the two cards during the 1993-1994 school year. There was no credible evidence that any other cards were used with the Student in school prior to April 1996, nor of any efforts in school to teach the Student the meaning of any individual picture cards prior to or while using them in the classroom. (See recommendations of Lyle Chastain, Ex. 63, at p. 168, "The eventual purpose would be for Cody to be able to pick up the picture of the train and hand it to an adult.. . ." (emphasis added; p. 165) "Whenever new materials are introduced to [Student] it would be helpful to try to set a repeatable pattern so that he can more easily remain involved in the activity,"; at 167: "Unlike most typical children, simply placing an autistic child in a classroom without individual help does not necessarily benefit the child. [Student] will not spontaneously begin to imitate other children nor will he spontaneously begin to participate in parallel play. He needs help in order to learn how to participate appropriately in these kinds of activities. Because of this, I strongly recommend that he have an opportunity to have as much individualized time as possible within the classroom setting." Ms. Chastain also noted that story time was likely to be inappropriate for the Student, as it required verbal receptive skills, rather than allowing him to participate through visual cues which are his strong point.)

12. The Parents contacted UCLA regarding Lovaas therapy. The Student was placed on a waiting list. Tr. 850. In the interim, they ordered tapes prepared by Dr. Lovaas and his book, entitled the "Me Book." Tr. 850. At the Student's third birthday party, he did not respond to his mother's requests to look at her. Tr. 852; Ex. O-2. At that time, he engaged in "self-stimulatory behavior," Tr. 849, as is typical of autistic children.

13. Shortly after the Student's third birthday, the Parents began a home program of Lovaas-based therapy, applied behavior analysis with discrete trial training. For guidance, they used the "Me Book" and the other materials from Dr. Lovaas. Throughout the Student's home program, the Parents have purchased manuals and treatises, as well as puzzles, photographs, and record-keeping items at their own expense.

14. The Parents informed the school staff about the home program at a periodic review meeting held on April 28, 1994, and informed the staff that a consultant from the Young Autism Project would be coming to observe them and teach them how to administer the program on June 16. Ex. A-15. The Parent did not think the district staff seemed open to working with the program. Tr. 859; see Finding No. 27, below. Payment for the home-based therapy was not discussed. Tr. 47, 50, 106, 109. The ECSE infant teacher was aware that the family had arranged for personal care attendants ("PCA" herein) through the TEFRA program. Tr. 109. The family was referred to TEFRA by the ECSE infant teacher. Tr. 844-5.

15. At the periodic review meeting, the Student's status with regard to goals and objectives was reviewed. The Student largely ignored the picture card, and climbed shelves to get the train. Tr. 128. The Student had not met his goals. The Student's program was continued unmodified. Ex. 2, pps. 14-16.

16. An additional session was added to the Student's program in April 1994, resulting in total time of 7.5 hours per week. Tr. 41-42, Ex. 16, p.38. The Student began attending some of the ECSE three-year-old classes, to ease the transition to that classroom and new teachers. He met the speech clinician who would work with him in the fall.

17. Between September 1993 and April 1994, the ECSE infant teacher observed that Student's classroom behavior changed slightly, in that he would allow other children to play near him ("parallel play"). Also, he sometimes responded to his name by looking. A few times, he gave an adult the train card to indicate that he wanted the train, Tr. 115, although he largely ignored the card, Tr. 128. Lastly, he attempted bringing an adult to the door to help him leave the classroom at unscheduled times less often, Tr. 104, 118. No other progress was observed. Tr. 104.

18. In September 1993, prior to beginning the ECSE program, the Student was vocalizing occasionally when he explored an unfamiliar environment. He was intermittently responsive to his name. Ex. 62, pps. 155-6. The Student sought physical contact, and watched other children play. Ex. 62, p. 158. The Student's IFSP noted that, as of August 1993, the Student understood daily routine and what comes next. Ex. 2, p. 11, 13.

19. The Parent recruited high school psychology students through their teacher, a friend of hers, to work with the Student using the Lovaas-based therapy. The family has consistently provided the Student with approximately 35 hours per week of programming. Tr. 1080.

20. When the Student's first PCA began to work with him in April 1994, the Student had a hard time staying on task. Tr. 1587. However, the Student began to learn certain "commands" or directions, such as responding appropriately to the direction to "look." Ex. H-I, p.1. He also worked on a simple matching game, but his skills were inconsistent. Tr. 853-4; Ex. H-I, pps. 1-2. His parents and home therapists observed that he was doing well on trying to learn to clap and rewarded him for babbling. Ex. H-I, p. 18.

21. Initially, the Student "hated imitation" exercises. Tr. 854. It is necessary for children to be able to imitate in order to learn from their environments, as stated or assumed by all experts testifying.

22. If the Student resisted the home-therapy, by whining, kicking or crying, the therapy was continued until the Student made one successful attempt to complete the activity being requested. Tr. 871. The Student was not spanked, hit, nor moved harshly by his family or PCAs in the course of therapy. Tr. 872, 1567. However, the Parents and PCAs found it important that the Student continue to work through the resistance, because if he were allowed to abandon the effort at the first protest, "then he would just do that all the time." Tr. 878, 1587. The Student was "punished" only in the sense of being given negative reinforcement through use of the word "no," which is regarded as a "punishment" in the behavioral use of the word. (Testimony of Dr. Larsson).

23. The home therapy consists of two daily two-and-one-half hour sessions (inclusive of frequent breaks), during which the Student works on several drills. Each drill lasts until the Student has accomplished what is expected; the Student plays while the therapist sets up the next drill. Currently, the Student plays with toys, interacts with his siblings, makes puzzles, jumps on his trampoline, or engages in similar activities during breaks. Tr. 1595, 1139.

24. From April 1994 until the June 1994 visit from Stein Lund, the Student made progress in the home-based therapy. He began enjoying some of the drills, especially the matching. The Student came willingly to the table, and responded more easily to the direction to "sit down." The Student was successful with much of the matching, and attempted imitation. Tr. 872-3.

25. On June 16, 1994, Stein Lund provided an initial workshop on Lovaas-based therapy to the family at their home. Mr. Lund structured a curriculum for the Student based on the Student's lack of basic imitation skills, difficulty with expressive and receptive language, and interfering behaviors. Ex. K-4.1. Mr. Lund was then associated with the Bancroft Young Autism Project, which is an intensive applied behavior analysis program based on the work of Ivar Lovaas. The program uses "discrete trial" training in drills. A "discrete trial" signifies an attempt to split up the environment in small discrete pieces and introduce those instructions in an environment that's free from distractions so the child will be able to understand and respond to the instructions.

26. The program utilized in the therapy is referred to by the family and others as Lovaas therapy. It is based on the techniques of behavior analysis/behavior modification used by Ivar Lovaas in research studies which are well-known in the field. Mr. Lund's program for the Student is designed to ensure success: initially, the Student is physically guided, if necessary, in accomplishing the skill requested of him. For example, he is told to "sit down." If the Student does not comply, he is physically guided to sit, and then is praised or reinforced for sitting. The physical guidance or "prompt" is "faded," or gradually lessened until the Student is accomplishing the skill independently. After the Student masters the activity, a "no-no-prompt" sequence is used, which means that if the Student fails to perform the activity on three requests, he is told "no" the first two times, and on the third failure, he is helped to succeed. Tr. 885-86.

27. School staff were to be at the June workshop, to meet Mr. Lund and get information about the program, but no school staff attended. Tr. 233.

28. Following the visit from Mr. Lund, the family continued the therapy. The Student was taught to put a block in a bucket, and set it on the table. Ex. H-I, p. 21, 23, 25, 33; Tr. 877, 887. The purpose of this activity was to teach the Student how to play with toys appropriately. Tr. 887. In the classroom at ECSE, the Student sometimes threw toys not intended for throwing, and often did not use toys for their intended purpose. Tr. 116.

29. In home therapy, the Student was taught to throw a ball, with two therapists. Ex. H-I, Sec. 1, p. 26, 33, 35. This activity involved taking turns, as earlier suggested by consultant Lyle Chastain. The Student also learned the receptive (oral) directive to "come here," responding from various distances, to a person not visible, and when an obstacle was in his way. Ex. H-I, Sec. 2, p.2. The Student had greater difficulty with directions to "raise arms," "clap hands," and "slap table." However, he mastered "come here," "stand up" and "sit down" without such difficulties.

30. During the summer of 1994, the Student also learned drills with blocks, building various shapes in imitation, stacking by color and randomly. Ex. H-I, Sec. 1 at pps. 158, 159, 161, 162, Sec. 2 at p. 8; Tr. 892-3. The Student learned to manipulate simple objects by imitation, both practical objects and toys such as drums and ring-stacking. Ex. H-I, Sec. 2, p.25. The Student also continued matching objects to objects, as well as picture matching. He worked on ball play activities.

31. In August 1994, the Student's occupational therapist and another District staff member visited the Student's home to observe the home therapy. Tr. 156, 1474; Ex. O-4. The District speech clinician did not ask to view the tape, and did not see it until after the hearing had commenced.

32. Also during the spring and summer of 1994, a private speech and language therapist worked with the Student. That therapist began using American Sign Language signs with the Student. By September 1994, the Student could independently sign "more" and "eat." Ex. 105, p. 6, 7; Tr. 105. The Student continued working with the private speech therapist until May 1995.

33. The Parents were concerned about having only monthly consultative services from the District during the summer, Ex. 15, p. 36. The Parents had expressed a desire for more programming, but perceived the District's unwillingness to vary their program, Tr. 862, 959, and accepted the program of three monthly consultations for one-half hour each, six sessions of ECSE and two family days.

1994-1995 School Year

34. In the fall of 1994, the Student continued the ECSE program in the three-year-old classroom with a new teacher, Jean Marinucci ("ECSE teacher"). The Parent provided a list of directions the Student could follow to the school staff, as well as the sign for "more." Ex. 91. The Parent also provided all of the additional reading material on autism used by the ECSE teacher. Tr. 154. Members of the Student's ECSE team each had worked with a few autistic children, other than the Student, and had attended some workshops dealing with autism, among other subjects. The S/L teacher attended a workshop at which the Parent was a presenter. Tr. 384. The Parent explored connections with ECSU, and the ECSE teacher spoke to one of the District's ECSU autism consultants L. Suomi at the request of the Parent. Tr. 183.

35. The ECSE classroom used a multimember team approach, providing special services within the classroom. There were six or fewer students in the classroom, and at least two adults, the ECSE teacher and a paraprofessional. Also, the speech clinician was often in the classroom, as well as the OT. All children in the ECSE classroom have disabilities.

36. The speech clinician, in both the 1994-95 and 1995-96 school years, worked with the Student when he was in the classroom, frequently for short periods on a one-to-one basis. The OT worked with the Student for about one-half hour per week. The Student, with the rest of the classroom, was given an opportunity to participate in such activities as following directions, building with blocks, shape- and object-matching. Tr. 1479-1482. When the Student did not participate without guidance, he was led to the activity with a physical prompt. The speech clinician, the OT, and other adults in the classroom worked with the Student on a one-to-one basis as well as in a group.

37. Mr. Lund provided a workshop for the Student's parents and PCAs on September 21, 1994. He noted that the Student had made progress in the areas of compliance and attention, imitation and adaptation to the instructional setting. Difficulties with identical matching and receptive language were noted, and new teaching strategies were tried in those areas. Ex. K-4.1.

38. At the request of the Parents, the Bancroft Young Autism Project developed goals and objectives in the fall of 1994 ("Bancroft IEP"). The Bancroft IEP had sixteen goals, each with specific objectives. Ex. 20. The goals were in the following areas:
 

imitative behavior (non-verbal imitation) [actions]

non-verbal imitation (object manipulation)

play skills (blocks)

matching [pictures, objects, non-identical items]

receptive language [five goals]: following directions, labels, body parts, comprehension of colors, shapes;

abstract concepts (categories);

expressive language [two goals]: imitating speech; object identification and labelling;

communication (appropriately expressing desires);

daily living skills (chores);

play skills (puzzles);

abstract concepts (comprehension of prepositions).

The Bancroft IEP was provided to school staff during planning for the Student's school IEP.

39. The District wrote an initial IEP for the Student in October 1994, which contains three goals: (1) to improve the Student's ability to attend and demonstrate cognitive and motor skills from current level of little interest to participation in a variety of activities; (2) to improve self-help and interactive skills from current level of requiring assistance to increasing independence; (3) to use one-word utterances to obtain want and needs from a present level of nonverbal communication. Ex. 22.

40. The District IEP "Adaptation" section states: "Student will require assistive technology such as computers to allow for greater participation in the classroom. At the request of his parents, he will receive training utilizing techniques from the from the Bancroft Young Autism Project as they can be incorporated into the classroom setting (see attached goals from this program)." Ex. 22, p. 68 (emphasis added). This was in accord with the team recommendation to establish goals and objectives "using Lovaas as it can be incorporated into the classroom," and the staff's agreement to use some Lovaas systems and materials in the ECSE program. Tr. 299, 351; Ex. 21.

41. At the District IEP planning meeting on October 3, 1994, the Parents asked that someone at the District be trained in the methods that were being used at home. Ex. 21; Tr. 235.

42. In the fall of 1994, Stein Lund visited the school in order to assist the school staff in learning about the Lovaas-based therapy. The Student, his mother, his maternal grandmother, and the PCA who has continued with him since the inception of the program also attended. The District's occupational therapist and one other woman from the school staff attended most of the session. Tr. 1485, 1534. The speech clinician may have entered the room at the end of the session. Tr. 1488.

43. The OT was upset by and uncomfortable with Mr. Lund's approach, although she felt the PCA's approach was appropriate. The OT, speech clinician, paraprofessionals and ECSE teacher discussed the Lund session at a weekly ECSE staff meeting, and decided not to follow Lund's approach or strategies. Tr. 1511-12, 1513-14. This decision was not communicated to the Parents. Tr. 1514.

44. The techniques used in the Student's home therapy program were not implemented at school, nor were the goals, objectives or measurements from the Bancroft IEP. During the 1994-1995 school year, no picture system was used for the Student. Tr. 236-7. The IEP called for computer assistance; a few attempts were made by the OT to introduce the Student to the computer. However, the attempts were ceased when the Student focussed on the keyboard rather than the screen. The school staff used a few signs with the Student, as introduced to him by the private speech therapist: the signs for "more" and "eat." A sign for "toilet" was also used with the Student.

45. During the 1994-1995 school year, the Student did not meet the goals in his District IEP. Tr. 218, 221. The Student did not make progress towards most of the objectives in his District IEP by the time of the periodic review, May 22, 1995. Tr. 220-231. He had begun to do some imitation of fingerplays (gestures accompanying songs) and was displaying more interest in classroom activities. His interactions with adults had increased. Occasionally, he waved good-bye.

46. During the 1994-1995 school year, the Student continued home-based therapy. He worked on skills through imitation, including gross motor nonverbal skills, block building, finger play (not with song), and object manipulation. The Student also worked on practical skills such as dressing, which he could do independently by February 1995 except that he needed help with socks and shoes. He also worked on sorting and matching by colors and shapes, matching three-dimensional objects to pictures, and self-correcting activities including puzzles. The Student worked on receptive sound discrimination and blowing. The Student attained the objectives for the foregoing skills.

47. In home therapy, he also worked on receptive labels for objects, but had great difficulty with verbal labels. Another approach to language acquisition was attempted: having the student match printed words with objects and pictures. Signing was also taught; the Student could imitate signs, but did not use them easily or spontaneously. Ex. H-II. Those working with the Student in the home and elsewhere agree that verbal and receptive language present the greatest difficulty for the Student.

48. All of the areas in which progress was noted at school were areas in which the skill had been introduced in the home program, and reinforced at school.

49. The Parent had worked on preparation of a United Way grant request, at the suggestion of the District, in order to access funds to pay for the Student's home-based program. The District had suggested this method of accessing funds at the October IEP meeting. Tr. 898-901. In March 1995, the District informed the Parent that the District would not be submitting the grant application. Ex. M-10.

50. In February and August 1995, Mr. Lund came to Minnesota to work with the Student (and others). On each occasion, the Student's status was reviewed, and changes were made in his program as appeared appropriate.

51. In the summer of 1995, the Student was offered and accepted the District's standard summer program. Ex. 28.

52. In July 1995, the Parents independently sought evaluation for Landau-Kleffner Syndrome by the Childhood Aphasia Program at Thomas Jefferson University in Philadelphia. (Landau-Kleffner is a neurologically-based disorder which can cause autistic-like manifestations. It is associated with a specific EEG abnormality. Tr. 684; Ex. K-1; Ex. 96, pps. 443-45.) The Philadelphia program concluded that the Student's patterns did not fit Landau-Kleffner, but noted some anomalies in brain wave patterns similar to Landau-Kleffner. Although the program suggested concern about dysgenesis of interhemispheric pathways as a primary cause of developmental delays, Ex. K-1.3, not associated with Landau-Kleffner, the program did note isolated EEG spiking and therefore suggested a medication trial of spike suppressants. The program also recommended "Behavioral management approaches should be implemented in school and at home. At least 30-40 hours per week of discrete trial training would be most beneficial." Speech/language therapy augmented by sign language was also recommended. Ex. K-1.

53. The Minnesota Epilepsy Foundation, where the Student was first seen on May 24, 1995, evaluated the Student with similar results, and placed the Student on a medication trial. Ex. 96, pps. 443-445. The Foundation report suggests that there were some "subtle positive changes" in comprehension and speech with the use of Prednisone, although the Parent did not note such changes. Tr. 51-52. The Foundation noted that the Student's patterns did not fit Landau-Kleffner, but were similar enough to justify the medication trial. The medication was discontinued, tapering in August 1995.

54. In August 1995, Dr. Eric Larsson, an expert in autism and Lovaas therapy, evaluated the Student. He recommended continuation of the home therapy program, but recommended discontinuing sign language as ineffective and instead using the Picture Exchange Communication System ("PECS"). He explained how to integrate PECS in the Lovaas-based therapy. Ex. B-66. Dr. Larsson, and in his August visit, Stein Lund, recommended the use of PECS rather than sign. However, the Parents chose to continue using sign, believing that sign language would make his adult life easier than a PEC system. Tr. 975.

55. Also in August 1995, the Student was taught in home therapy how to indicate yes and no by shaking or nodding his head. Ex. H-II, p. 117. As of August 1995, the Student was able to comply with novel instructions in novel environments from a previously unknown adult. Tr. 1372-73.

1995-1996 School Year

56. The Student's annual review was conducted in October 1995. Ex. 35, p. 91. The Student's progress in following directions, taking turns, dressing himself and toilet training were noted. As decided in the spring of 1995, the Student continued in the three-year-old classroom.

57. All of the areas in which progress was noted, (with the possible exception of toilet training), were areas which were introduced and taught in the home program, and reinforced at school.

58. The District wrote a new IEP for the Student, provided to the Parents on or about October 11, 1995. Ex. 39; Ex. 36. That IEP contains four goals. The first goal is very similar to the Student's 1994 goal, to improve attending, cognitive and motor skills to the level of increased participation without requiring assistance. The previous goal had aimed for an improvement in level of "little interest to participation." The 1995 second goal aimed for improvement in "functional and interactive skills from current levels of little interest to increased awareness of peers and routine." 1994's second goal had looked for improvement from the "level of requiring assistance to increasing independence"; the 1995 goal apparently begins from a lower level, and expects a lower level. The third goal in 1994 had anticipated expressive communication; the 1995 communication goal was written to encompass only responsive language, but included gestural communication as well as verbal. (One of the short-term objectives does anticipate spontaneous expressive communication by the Student to indicate needs or desires through sign language). A fourth goal was added in 1995, regarding safe and appropriate use of play equipment; the objectives relate to large muscle equipment such as a tricycle, climbing, and balls.

59. The Student's 1995 IEP provides for transportation. It does not provide for computer training, but states that such training will be made available if it becomes appropriate. The 1995 IEP does not refer to incorporation of the Bancroft IEP or the home-based program.

60. The District continued to use signs for communication until April 1996. The District did not make an independent decision regarding the appropriateness of the use of signing for an autistic child. Rather, the speech clinician adopted the Parents' program without independent investigation or research into appropriateness and utility.

61. Through the 1995-1996 school year, and continuing through the time of the hearing, the Student continued in his home therapy program under the guidance of Stein Lund. In addition to the picture system described below, the Student has worked on written word matching activities, Ex. H-II, p. 175, Ex. H-III, p.83. He worked on sorting by category (animals, foods, household items, transportation). Ex. H-II, p.1. He continued to work on block building, copying from two dimensions. Ex. H-II, p. 219. He began working on drawing lines in November, Ex. H-II, p. 254, on spelling, and on verbal imitation. He was also taught to point in response to questions. Ex. H-III, p. 38. He learned to match upper to lower case letters, beginning in the spring of 1996, and has mastered all letters through X, (except for some confusion between "d" and "p." Ex. H-III, p. 307.

62. In November 1995, the Parent obtained the Mayer Johnson picture card treatise and the PECS developed by Frost and Bundy. Tr. 975. These are generally accepted resources in the field, and the District's speech clinician was familiar with the Mayer Johnson pictures from his training. Tr. 404-5. The Parent discussed this change in the Student's program with the District. Tr. 976. The Parent received direction in how to use the PECS from Mr. Lund, who had become affiliated with Rutgers University, and a colleague at the same University.

63. The Student initially learned to use PECS to ask for food. Next, he practiced matching the pictures to objects, and written words to pictures. Beginning in January 1996, the Student was taught in steps to point to the picture of the item he wanted. At the same time, he was introduced to verbal imitation of individual sounds. The Student mastered some sounds, and was encouraged in any attempt to produce verbalizations of words. Ex. H-III. The Student was working on specific verbal imitations as well. The Student has learned cards for actions, for rooms/household objects, for animals, and has learned to combine the cards to make short sentences, such as "I want swing," "I see turtle." Ex. H-III, Ex. O-2. He has also learned to demonstrate action words and has worked on practical skills such as locating his clothing. Tr. 995-996, Ex. O-2. The Student has also begun using PECS independent of drills, for spontaneous communication at home.

64. The PECS approach has been successful for the Student, and the general speed of his learning in Lovaas-based therapy has increased in recent months. Dr. Larsson finds this a positive sign of the Student's likelihood of continuing, more rapid progress, based on past studies of children with autism in this therapy. Tr. 340-41.

65. The Parent provided the PECS to the District's speech clinician. He borrowed the Parent's materials in order to copy the pictures, and began using PECS at school on or about April 16, 1996. Initially, he felt that the Student was not succeeding with PECS. However, after discussion with the Parent, it appeared that he was using the the PECS in a different manner from that which the Student had learned, which was confusing the Student. Following clarification from the Parent on how to use the PECS, the Student experienced some success in using the PECS in the school setting. Tr. 319.

66. In March 1996, Mr. Lund came to Minnesota and provided a workshop with the family. The District's special education director (as of the 1995-96 school year) attended the workshop, and taped it with assistance of one district staff member, Ex. O-4, with Parent permission. Ex. 44.

Current Dispute

67. Shortly thereafter, the Parent wrote to the Special Education Director, asking that the Student's program for the following year include daily kindergarten and implement the Lovaas-based therapy with two half-time paraprofessionals trained in the therapy, taking the Student out of the classroom to work one-to-one with him for four hours of his day, and assisting him to participate in activities during the day. The Parent also asked that the District use Mr. Lund as a consultant, having him visit every three months at the expense of the District. Ex. M-8. The Parent noted that the family was seeking legal counsel.

68. The Director discussed these requests with school staff members of the Student's team prior to the IEP Periodic Review meeting scheduled for May 1, 1996. Based on those discussions, he decided that the Parent's requests for Lovaas-based therapy would not be adopted. Ex. O-1.

69. At the May 1 Periodic Review meeting, the Student's program for the 1996-97 school year was discussed. It was agreed by all on the team that the Student could go to kindergarten beginning in the fall, and would need a full-time paraprofessional to do so. Options for transition to kindergarten were discussed. The Director offered to have a paraprofessional trained in the use of applied behavior techniques, but refused the Parents' request for training of the paraprofessional or any staff in, and implementation of, the Lovaas-based therapy used in the home program. Tr. 550-552; Ex. O-1. The Director presented the Parent with a periodical's summary of a recent Pennsylvania special education case in which a hearing review officer had affirmed a hearing officer's denial of reimbursement for past Lovaas-based services, finding that the school district involved in the case had offered an appropriate program. Ex. M-4.2.

70. The meeting ended in disagreement, and the Parents were informed about mediation, conciliation and due process hearing rights. Ex. 50.

71. Later contacts were made regarding summer services. Ex. 46-48, pps. 114-116; Tr. 197-98. Agreement was not reached on the form of summer services, and the Student continued in his home program.

72. In approximately mid-May 1996, Stein Lund developed a proposed 1996 IEP for the Student. Tr. 1252. The IEP contains numerous goals and objectives. Ex. J-5. Among those are: that the Student "will use PECS consistently across a wide variety of settings and people (e.g. school)"; that the Student will learn to use for desired activities and items in the context of discrete trial instruction and then in the natural environment; and that the Student will successfully and without verbal prompts complete a 10-step photo schedule. Id. Another goal is for the Student to ask the question "where is __"? using a sentence strip. The purpose of this goal was to allow the Student to ask for help in finding something not placed in its usual position. The 1996 Lund IEP also contains verbal imitation, commenting/labelling, and pre-academic goals (writing and reading), as well as receptive language goals.

73. In response to the Parents' requests for Lovaas therapy, the District denied the Parents' request, stating that it did not have information to support the need for the program based on the Student's progress at school. Ex. M-1.4. On May 21, 1996, the District proposed an early reevaluation of the Student. Ex. 48, 49. The District later proposed an expanded reevaluation, using not only District personnel, but also autism consultants Peg Ferguson (from ECSU) and Sheila Merzer, a private psychologist with expertise in autism. Ex. 56, pps. 132-135. Ms. Merzer offices with Lyle Chastain, the consultant used by the District in its 1993 discussion of the Student, and Ms. Merzer and Ms. Chastain have collaborated on various projects. Ms. Merzer does not use Lovaas-based therapy.

74. Following receipt of the Parents' request for due process hearing, a conciliation conference was held on June 27, 1996. The District's conciliation conference memorandum, Ex. 93, pps. 243-245, proposes a comprehensive evaluation, with computer training, reimbursement for past Lovaas treatment, utilization of future Lovaas methods, and full-time vs. part-time kindergarten attendance to be addressed following the District's assessment, and in accordance with its conclusions. The District memorandum proposes a full-time aide to be trained by "various autism consultants." The proposed consultants are not named, identified or described. However, the proposal does include provision of collaborative training for all instructional staff by a "collaborative program" including "at least one person trained in Lovaas." The proposal also includes provision of summer services in June and July "in a functional and interactive setting," three to four half-days per week, in an inclusive setting with a 1:1 aide, subject to modification following assessment. Id. Also, an additional three weeks on the same schedule at the Stepping Stone program was proposed if the Student was to attend kindergarten in the fall. Id.

75. The District's assessment team summary report was completed on July 8, 1996. Ex. 100 (internally numbered). The report notes that regarding the Student's levels of performance that he continues to have limited social interaction, and that his play continues to be solitary or parallel. Some improvement in ability to comprehend verbal directions within familiar routines was noted, particularly if verbal language is accompanied by visual and contextual cues. Some spontaneous production of speech was also noted. The Student's PLS-3 age equivalent was 1 year 2 months, a light increase over prior scores. Ex. 100, pps. 1-2. His Peabody age equivalent was 27 months; gross motor skills were noted as being an area of relative strength. Sensory checklists completed for home and school indicated some difficulty tolerating and processing tactile stimuli and excessive visual stimuli, as well as self-stimulatory behavior, all of which are consistent with autism. Id.

76. As part of the assessment, the ECSE teacher observed the Student in the ECSE classroom, where he was the only child present. On observation, most of his play with objects consisted of throwing them. However, he did use a toy train and blocks consistently with their intended purposes, when those items were given to him. He did play with shaving cream for approximately thirty minutes, and imitated utterances while doing so. He also spontaneously demonstrated affection for his mother, and used adults as helpers. Also as part of this assessment, the ECSE teacher included review of the Student's goals 1 and 2 and associated objectives. Ex. 100, p. 8.

77. The OT portion of the assessment expresses the following educational concerns: "low muscle tone, inconsistent visual attention, difficulty following directions and imitating, avoidance and withdrawal behaviors, mouthing of materials, and immature fine motor skills."

78. A District speech therapist who does not normally work with the Student performed the speech assessment and observed the Student with the ECSE teacher on June 27, 1995. She noted that the Student responded to the familiar simple command "come here" independently and with a visual cue, but did not always come when requested apparently in a different manner. He did imitate approximations of the words "ball" and "mommie," "cookie," "clap," "cup" and "block." Ex. 100, p. 20, 29; see Ex. H-III. His attendance to task and response to objects and pictures was noted to be inconsistent; however, he did attempt a newly learned task successfully. Id.

79. The ECSU autism consultant and the private psychologist evaluated the Student, observing and working with him in his home on June 29, 1996. Each completed a separate report. The ECSU consultant's assessment relies on information provided by school staff but includes an informal observation of the Student in the home on June 29. In the home, she noted that the Student played appropriately with materials and toys without prompting, and then threw various parts on the floor. Throwing did not occur when he was involved with one of the adults. Some self-stimulatory behavior was also observed--jumping and flapping of hands. The ECSU consultant also observed that the Student did not use eye contact for communicative purposes, but did make eye contact with the person speaking or the items presented when encouraged to do so by verbal and/or physical prompts. Largely, the Student complied with verbal directives without a prompt such as a tap to the table or chair.

80. The ECSU consultant's report contains specific recommendations. First, she suggests that the Student's day be highly structured and predictable, and that a picture schedule be used to provide the student with visual as well as verbal cues that the activity is about to change, and to assist him in breaking down steps of activities as needed. Second, she suggests that activities with peers not be language-based, such as story time, but instead include activities such as musical games or songs. (The Parent had expressed concern in October 1994 that the Student was not benefiting from circle time. Ex. 21. Staff response was that Student "benefitted from being with the group.") During story time or other times when the Student will not be with the peer group, she suggests that the "techniques that are currently being utilized during the drills in the home-based program could be replicated and expanded during this time to assist in teaching these skills," 1:1, alternating a paraprofessional and a special education teacher, either in or out of the classroom. As an example, she suggests adding explanation of the reasons for incorrectness to the "no-no-prompt," to assist the Student in understanding the meaning of the task. She also suggested gradually adding peers and adults to the group to assist in generalizing the drill-based skills and practicing interactional skills (turn-taking). She also recommends incorporating the PECS in the school setting, on a gradual basis in case of confusion. She notes that "The pictures appear to assist some [autistic students] in organizing their environment, as well as providing them with an opportunity to actively participate with another individual, including their peers." Ex. 100, p. 35. She also recommended including an autism expert on the Student's team. Summarily put, the ECSU consultant recommends using the Lovaas-based techniques and PECS materials in the Student's school program, with slight variations.

81. The private psychologist selected by the District also evaluated the Student in his home on June 29, 1996. Prior to creating her report, the Psychologist also reviewed videotapes (Ex. O-2, O-3) and the Student's home therapy journals (Ex. H-I, II, III.)

82. In her testimony and in her report, the Psychologist stated that the home program was "very appropriate" for the Student, and characterized the PEC system as used at home as "extremely appropriate to [the Student's] needs and learning style." Ex. 100, p. 47. Despite some criticisms of Lovaas-based therapy in general and for the particular needs and interests of this Student, the Psychologist's report agrees that he has benefited from the predictability introduced into the environment by the drill format, and has learned to focus his attention on task and attempted many tasks which were difficult for him, which is important because autistic children normally "tune out" any tasks which are difficult or frustrating. She reported that she was "quite impressed" with the content and teaching style of the home program. Ex. 100, p. 59-60. She stated that the "Lovaas-based programming is doing an excellent job of teaching him communication, imitation, organization of attention and a range other prerequisite learning skills."

83. The Psychologist found certain elements present in the Student's home program to be of critical importance in his program formulation for school purposes: a clear visual organizing structure, presented in such a way that the Student is able to understand what is being asked of him and is experiencing success; his positive relationships with his therapists; meaningful scope and sequence of curriculum and thoughtful planning of the sequencing of teaching; thorough and detailed documentation of what is and is not effective with the Student. Tr. 662; Ex. 100, p. 60.

84. The District at no time provided a visual organizing structure for the Student, at no time kept detailed documentation of strategies used with the Student, at no time presented activities in such a way that the Student was able to experience success for most of his day and understand what was being asked of him, at no time planned and sequenced curriculum and teaching activities based on the Student's individual needs and interests.

85. In the Recommendation section of her report, the Psychologist repeatedly stated that she supported continued use of the PECS system, as it is currently being taught in the home. She did have additional suggestions as to how it could be utilized in the school setting to support verbal learning and to allow successful participation in activities. One of those suggestions is a picture schedule. She strongly urges use of computer-based instructional activities, to teach to the Student's strong visual memory, paired with simultaneous three-dimensional activity to promote generalization, and (continued) use of printed words as an alternative to verbal communication, as well as attempting to use music paired with vocalization. She also had specific suggestions for peer group activities based on visual imitation with or without accompanying verbalizations, to help the Student learn how to relate to peers. (Nos. 3, 7.) She also recommends teaching the Student strategies for asking for help, for asking for breaks, and for asking to stop an activity. This Finding over-simplifies the recommendations, which are directed at how the Student's program should be conceptualized, as well as suggesting specific strategies and examples of activities.

86. The Psychologist recommended sequencing one-to-one teaching of skills, later expanding to small groups, and still later to larger groups, depending upon the Student's ability to comprehend the activity. She noted the Student's ability to imitate as an area of strength. Tr. 670. She recommended continuing "the drills because he learns well in those." Tr. 677 (in context of PECS). She further suggested using PECS to break down activities into steps for the Student, in individual and group situations.

87. The Psychologist testified about many different methods currently being used with autistic children. She stated her view that no specific therapy is best for any given child, and that Lovaas methodology is "just applied behavior analysis." She believes the method is positive in that it helps children focus, organize input from the environment, and benefit from the interventions. She also testified that "Intensity is good," although 40 hours per week was not an invariable need. Tr. 691-92. Again, summarily stated, the Psychologist agreed that the Lovaas methodology should be included in the Student's school program with some additions and variations. Tr. 745.

88. All of the experts testifying (Mr. Lund, Dr. Larsson, Ms. Merzer) agreed that the Student's greatest strength is his visual memory, and his program should be tailored to that strength. Continued and expanded use of PECS is part of that tailoring. All of the experts agreed that it was important to break tasks into small steps for the Student, so that he could comprehend what was being asked of him. Mr. Lund and Dr. Larsson testified, and Ms. Merzer assumed, that imitation is a crucial skill for acquiring any new skills. Tr. 1176, 1332.

89. Dr. Larsson, Mr. Lund and Ms. Merzer agreed that Lovaas therapy is simply applied behavior analysis, used intensively in a one-to-one teaching situation. Applied behavior analysis is one of many strategies used for teaching children. The published research of Ivar Lovaas has shown that the strategy can be effective for many children. Other researchers in the field have disagreed with the research on a variety of bases, primarily in the research design. There is no agreement in the field that any particular method guarantees success; however, Lovaas-based therapy has significant support. Most important, the Lovaas-based therapy provided for this Student has provided many benefits allowing the Student to learn from his environment and to begin to communicate.

90. All of the experts testifying agreed that consistency and predictability are important for a child with autism. All of the experts agreed that one-to-one assistance in learning new tasks was necessary, and that drills based upon incremental steps are an appropriate method for an autistic child to learn. All of the experts indicated that the Student would benefit from having peers added to mastered activities or drills, and from joining large group activities for activities which he had mastered, with assistance available from an aide who could provide prompts or cues to assist the Student in focusing on and participating in group activities. Tr. 755.

91. Mr. Lund, Ms. Merzer and the ECSU consultant all recommended creating a picture schedule for the Student, with various supplementary uses. All agreed that pictorial breakdown of tasks on the picture schedule would be beneficial for the Student.

Procedural Findings

92. On May 31, 1996, the District received the Parents' request for due process hearing. On June 4, 1996, the Commissioner of the Department of Children, Families and Learning was notified that the parties had been unable to agree upon a hearing officer. On June 5, 1996, the Commissioner appointed the Office of Administrative Hearings to conduct a special education due process hearing in the above-entitled case, and notified the parties that Administrative Law Judge Sara D. Jay had been appointed as hearing officer.

93. An initial prehearing conference scheduling conference was convened by the hearing officer on June 7, 1996. Pleadings ("PI.") Ex. 3a (transcript). The Student moved for continuance of the thirty-day period for hearing based on conflicts in scheduling. The motion was granted, continuing the time for hearing for ten days.

94. Counsel for the District moved the hearing officer to order an evaluation. Counsel for the Student did not object to the District's conducting an evaluation according to its plans, provided that the hearing was not delayed. On that basis, the hearing officer granted the motion by telephone conference call on June 19, 1996.

95. On June 26, 1996, counsel for the District moved for continuance in order to allow an IEP meeting regarding the completed evaluation. On June 23, 1996, counsel for the Student moved that the District be ordered to provide a summary of testimony of its witnesses, and a more definite statement of its Responses to Objections, including a description of the educational methodology used with the Student. The request for continuance was denied; the District was ordered to provide summaries of witness testimony and a description of the educational methodology used with the Student; the request for more definite responses was otherwise denied. Pl. Ex. 21. Neither summaries of witness testimony nor a description of educational methodology were provided by the District to the Student pursuant to the ruling.

96. The hearing was held as scheduled on July 10, 11, 12, 15 and 16, with an additional day (Saturday, July 13) of hearing in order to allow completion of testimony.

97. Continuance from the thirty days in which the record is to be closed was requested by counsel for the District at the close of testimony, in order to allow time for submission of post-hearing briefs. The continuance was granted, and post-hearing briefs were timely received on July 25, 1996.

98. On Saturday, July 20, 1996, by facsimile, counsel for the Student requested permission to submit an affidavit from an additional witness. For reasons detailed in the correspondence, the request was denied. Pl. Ex. 33, 38.

99. On July 23. at 6:00 p.m., counsel for the Student by facsimile asked that the hearing officer decide the stay-put and Student's placement for the fall of 1996. The hearing officer asked that the parties include the issue in their post-hearing briefs. Pl. Ex. 37, 38.

100. Correspondence from both parties' counsel was received following July 25, 1996, relating to matters arising following the hearing regarding the Student's status for fall 1996. The hearing officer advised the parties that if additional testimony and evidence were needed, a motion to re-open the record should be made. Pl. Ex. 45-47. No motion to re-open has been received from the parties.

101. The law anticipates that hearings will be completed within 30 days of the request for hearing, and that decisions will be rendered fifteen days after close of record. The close of record in this case, based on continuances granted and receipt of post-hearing submissions, was July 25, 1996. This decision is issued as soon as reasonably possible thereafter, and within 15 days from the close of the hearing process.

Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:

Conclusions

1. The Administrative Law Judge, the School District and the Commissioner of the Department of Children, Families and Learning have jurisdiction in this matter pursuant to Minn. Stat. Sec. 120.17, subd. 3b(d), 14.55, and Minn. Rule Part 3525.4000.

2. Independent School District No. 318, Grand Rapids, Minnesota, as the district of residence, has the primary responsibility for providing an appropriate program of special education for the Student.

3. The notice of hearing in this matter was proper in form and content, and the District has complied with all relevant procedural requirements of statute and rule.

4. This decision has not been rendered within 45 calendar days from the date of receipt of the parents' request for a hearing for purposes of Minn. Stat. Sec. 120.17. Continuances were granted in accordance with law, as described in Findings of Fact No. 92-101, to the thirty-day period permitted for completion of hearing and close of record.

5. The Student is a five-year-old child with disabilities as defined in Minn. Stat. Sec. 120.03, subd. 3, who is entitled to special education services appropriate to his needs pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. 1401, et seq., and regulations enacted thereunder, and Minn. Stat. Sec. 120.17 and regulations enacted thereunder.

6. Minn. Stat. 120.17, Subd. 3a(1), in pertinent part, requires all school districts "to ensure that all students with disabilities are provided the special instruction and services which are appropriate to their needs." "Appropriate" has been defined by courts to mean a program of education which provides the student with more-than-trivial educational benefit.

7. Among the fundamental expectations of a district in providing an appropriate program is that it implement the IEP as written.

8. Minn. R. 3525.1325, Subp. 1, defines "autism" and states: "Because of the low incidence and complexity of this disability, professionals with experience and expertise in the area of autism need to be included on the team determining the disability and educational program."

9. Where a district has failed to offer an appropriate program, and the parents have made an appropriate private placement, the parents are entitled to be reimbursed for the cost of the private placement. CASES.

10. The burden of proof is on the District to show that its actions are appropriate, by a preponderance of the evidence.

11. The District has not shown by a preponderance of the evidence that its programs were appropriate, in that it did not present a program reasonably calculated to provide the Student with educational benefit. Specifically, the October 1994 IEP was not appropriate as implemented, even if appropriate as written.

12. The District has not shown by a preponderance of the evidence that the October 1995 IEP was appropriate, in that it did not provide a program specifically tailored to the Student's individual needs, reasonably calculated to provide some educational benefit to the Student.

13. The District has not shown that its denial of parent request or its offered services in May 1995 were appropriate, in that the District's actions were not based on the Student's individual needs, nor calculated to provide the Student with educational benefit.

14. The burden is on the Parents to show that the private program was appropriate. The Parents have shown by a preponderance of the evidence that the Lovaas-based therapy provided to the Student commencing in April 1994 was appropriate, and resulted in significant educational benefit to the Student.

15. Parents must provide a district with notice of dissatisfaction with an IEP or proposed placement, and allow a district the opportunity to rectify the problem before reimbursement will be granted. Evans v. District No. 17 of Douglas County, 841 F.2d 824, 1987-88 EHLR 559:381, 386 (8th Cir. 1988)

16. The Parents provided the District with adequate notice of their desire for the school to use Lovaas-based therapy in the Student's educational program, and of their disagreement with any announced decisions to do otherwise. The District failed to provide the Parents with notice of its abandonment of the agreement to incorporate Lovaas therapy into the Student's program during the 1994-1995 school year.

17. The Parents are entitled to reimbursement for proven expenses of the Lovaas-based therapy between April 1994 and May 1996.

18. The District has not shown by a preponderance of the evidence that it is capable of providing an appropriate program for the Student without the elements requested by the Parents in their Statement of Objections. The elements requested by the Parents are required for the Student's program to be appropriate.

Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:

Decision

1. The District shall contract with Stein Lund to provide services as a consultant, trainer, and full member of the Student's IEP team on an ongoing basis for the duration of the IEP to be developed pursuant to this Decision. If Mr. Lund is unavailable, the District shall contract with an outside consultant identified by Mr. Lund as having equal or greater expertise in autism and Lovaas-based therapy (applied behavior analysis/discrete trial training).

2. The Student's IEP team shall be convened as soon as feasible following issuance of this Decision, and shall include at least the following individuals, in addition to the Parents:

a. Stein Lund for consultant with equal or greater specific expertise as described in Paragraph 1 herein);

b. Kindergarten regular education teacher who will be assigned to work with the Student;

c. Paraprofessional(s) to be trained to work with the Student;

d. Local (i.e., from Minnesota and easily accessible to team) professional with expertise and experience in autism and behavior modification with discrete trial training. If the District and Parents agree, Dr. Larsson may serve as this expert. If the District and Parent are do not agree, or if Dr. Larsson is unable to serve, the District and Parents shall select a mutually acceptable autism professional with the qualifications described in this sub-paragraph. If the District and Parent are unable to agree on an individual, each shall select an appropriately-trained local autism professional; however, such individually-selected professionals shall act only as consultants to the team, at district expense, and not as full team members.

The team shall include other individuals as required, such as administrative designee, and elementary speech/language teacher.

3. The Student's IEP team shall convene as soon as feasible following issuance of this Decision, in compliance with the requirements set forth above, but no later than August 25, 1996. The Student's ECSE teacher/case manager shall be invited to the meeting.

4. As soon as reasonably possible, the team shall create an IEP incorporating at least the following elements:

a. Providing for discrete trial training during times the Student will not be participating with the class in group activities appropriate to his needs (particularly such as story time) as identified by the team with assistance from the kindergarten teacher. The autism consultants) shall determine criteria for deciding whether/when discrete trial training within the classroom is more beneficial to the Student than pull-out;

b. Providing for full time, one-to-one aide(s) trained in Lovaas-based therapy, assigned specifically and exclusively to the Student;

c. Providing for consultations with the team's autism experts on at least a monthly basis, or more frequently, in order to monitor and adjust the Student's daily instruction as needed;

d. Providing for computer training;

e. Providing for extended school year services on an intensive basis as a continuation of his program, with an appropriately-trained aide, to include activities with non-disabled peers;

f. Providing for daily attendance in the school setting, and placement in a regular education kindergarten class.

Training specific in Lovaas-based therapy shall be provided for any staff who will be working with the Student, as well as general training and information about autism and strategies or methods for facilitating active participation by the Student in group and peer activities.

5. The District shall pay to the Parents the amount of $3,535.96, as reimbursement for expenses incurred by them for his Lovaas-based therapy as of the date of hearing.

6. The Parents' motion to alter the Student's stay-put placement to provide for kindergarten placement pending appeal is denied.

Notice

It is respectfully requested that the Commissioner of the Department of Children, Families and Learning serve a copy or the Hearing Review Officer's decision, resulting from any appeal of this decision, upon the Administrative Law Judge.

Memorandum

The Individuals with Disabilities in Education Act, 20 U.S.C. Sec. 1400 et seq., requires school districts to offer children with disabilities a free appropriate public education ("FAPE") in the least restrictive environment appropriate to the child's needs ("LRE"). The Act does not require a school district to maximize the child's educational potential, but only to provide "some educational benefit." Bd. of Ed. v. Rowley, 102 S.Ct. 3034 (1982).

Some children, due to the extent of their handicaps, will never be able to perform at grade level and will require several years to achieve what would be to a non-handicapped child a year's worth of progress." Conklin v. Anne Arundel County Bd. of Ed., 946 F.2d 306, 316 (4th Cir. 1991).

This is not true for all students, however, and school districts are not free to assume that any student is incapable of progress, or that lack of progress is due to the nature of the disabling condition rather than poor program design. Whether educational benefit has been provided must be judged on an individual basis, in terms of the student's disabling condition and educational needs, and the program actually offered to the student.

Lovaas Therapy (Issues 1, 2, 5 and 6)

The dispute between these parties in large measure has focussed on Lovaas therapy. The disagreement about approach affects not only the content and intensity (amount of time) of the Student's program, but also the training of his proposed aide, the design of his summer services, and the potential for reimbursement.

It is clear that professionals in the field of autism have not reached a consensus on the best method for assisting children with autism. The proliferation of methodologies alone gives ample evidence of the lack of consensus: experts testifying at this hearing identified: drug therapy, vitamin therapy, cognitive therapy, sensory integration training, auditory processing training, the TEACCH program, and applied behavioral analysis.

The District has posited that this disagreement is solely one of terminology: it characterizes the Student's program as being "applied behavioral analysis," rather than "Lovaas." However, it is also clear from the District's actions, comments at the May 1, 1996, meeting, and testimony at hearing, that the District disagreed with the discrete trial training and careful documentation which the Student's expert witnesses regard as essential elements of the program, and are part of the Lovaas approach.

While Mr. Lund is not currently associated with Dr. Lovaas, and refers to his program as "intensive applied behavior analysis," the approach used in the Student's training did not change when Mr. Lund left Bancroft, a Lovaas facility, for Rutgers, which is not a Lovaas implementation site. The hearing officer therefore refers to the Student's program as "Lovaas-based" rather than "Lovaas." Nonetheless, it is clear that the program which the Parent referred to as "Lovaas" is the program which the District explicitly refused to implement in May 1996, and did not implement in the 1994-1995 school year. The dispute is not solely one of terminology; rather, the Parents and the staff working with the Student disagreed over appropriate teaching methods.

Generally, choices among appropriate methodologies are left to educators. Chester County Intermediate Unit, 23 IDELR 723 (SEA Pa. 1995); Rowley. There are many cases upholding school districts' refusal to implement or continue Lovaas therapy. In those cases, the programs offered by the districts were determined to be appropriate. See, e.g., Rebecca S. v. Clarke County Sch. Dist., 22 IDELR 883 (M.D. Ga. 1995) (Lovaas therapy not required; appropriate TEACCH program in place); Conejo Valley Unified Sch. Dist., 23 IDELR 1081 (SEA Cal. 1995) (Lovaas training for aide not required, sufficient to be trained in behavior intervention techniques, autism and be able to follow plan); Bd. of Ed. of Greenwood Lake Union Free Sch. Dist., 23 IDELR 1032 (SEA N.Y. 1996) (change to TEACCH program at BOCES was permitted, from Lovaas used in prior years); Fairfax County Public Schools, 22 IDELR 80 (SEA Va. 1995) 025114 Lovaas not required; full day of appropriate program offered); Tuscaloosa County Bd. of Ed., 21 IDELR 826 (SEA Ala. 1994) (changing program from Lovaas to TEACCH was appropriate).

In many other cases, however, Lovaas therapy has been ordered, following a finding that the district's program was inadequate. See, e.g., Union Sch. Dist. v. Smith, 15 F.3d 1519 (9th Cir. 1994), cert. denied __ U.S. __, 115 S.Ct. 428 (1994); Malkentzos v. DeBuono, 923 F.Supp. 505, 2 ECPLR 217 (S.D.N.Y. 1996); Delaware County Interm. Unit No. 25 v. Martin K., 831 F.Supp. 1206, 20 IDELR 363 (E.D. Pa. 1993); Columbia Regional Programs and Portland Sch. Dist., 24 IDELR 98 (SEA Ore. 1996); Watertown Public Schools, 24 IDELR 92 (SEA Mass. 1996); Frederick County Public Schools, 2 ECPLR 145 (SEA Md. 1995); In re Child with Disabilities, 23 IDELR 471 (SEA Conn. 1995); Capistrano Unified School Dist., 23 IDELR 1209 (SEA Cal. 1995); Calaveras Unified Sch. Dist., 21 IDELR 211 (SEA Cal. 1994); Mill Valley Elem. Sch. Dist., 2 ECPLR 43 (SEA Cal. 1994).

Districts have sponsored Lovaas-based programs and schools: see Delaware Co. Intermediate Unit No. 25, supra (N.Y.C. district apparently unaware that N.Y.S. sponsored several Lovaas schools); Allamakee County Sch. and Keystone, 2 ECPLR (SEA Ia, 1996); Kalamazoo Sch. Dist., 2 ECPLR 180 (SEA Mich. 1996, Hearing Officer Lynwood Beekman); Kalamazoo Sch. Dist., 2 ECPLR 209 (SEA Mich. 1996, Hearing Officer Calmon); Central Susquehanna Interm. Unit. No. 16, 2 ECPLR 109 (SEA Pa. 1994).

Clearly, Lovaas-based methods have been found effective, not only in scientific studies but also as an educational tool in school districts.

However, it is important to note that this decision does not purport to determine whether Lovaas is the only acceptable approach for young children with autism, or even if it is the best approach.3 This decision pertains only to this child, and the programs provided by this District and these Parents. The question for determination is not whether Lovaas therapy is the best method. Rather, the question framed in terms of IDEA is first, whether the District's program offered an educational benefit to the Student, and second, if it did not, whether the alternative program is appropriate. These questions apply to reimbursement of past expenses, and also to the Student's future program.

Appropriate Program

As noted above, the Rowley case sets a minimal standard: the program must be shown to be reasonably calculated to provide only "some educational benefit" to a student. "While a trifle might not represent 'adequate' benefits, [citation omitted], maximum improvement is never required." J.S.K. v. Hendry County School Board., 18 IDELR 143, 148 (11th Cir. 1991). "Appropriate education" has been defined as making measurable and adequate gains in the classroom." Id. at 149. Passing from grade to grade is one indication of educational benefit. Progress toward IEP goals also indicates educational benefit.

According to the evidence in this case, the Student did not pass from grade to grade. He was retained in the three-year old classroom for a second year, because the team (including the Parent) agreed in spring 1995 that he would not benefit from the more challenging activities of the older group.

More important for a young child than advancing to the next grade, the Student did not make more than trivial progress towards his IEP goals. The progress claimed by the District in the 1994-95 school year is that the Student accepted the classroom routine and tolerated children playing parallel to him. The Student's ECSE teachers both agreed that he did not meet his goals, and did not make progress on most of his objectives, if any, during the years he attended the District's ECSE program. In fact, the evidence is compelling that the Student failed to progress in the first two years he spent in the District's programs, as of April 1995. In recognition of this failure to progress, the District continued the Student's program, largely unchanged or with lowered or differently-phrased expectations, through the 1994-5 and 1995-6 school years.

More of the same unsuccessful strategy is not likely to provide FAPE. Brown v. Wilson County School Bd., 747 F.Supp 436, 16 EHLR 718, 721 (M.D. Tenn. 1990). For this Student, it did not, as was evident from the credible testimony of the ECSE infant and three-year old classroom teachers. The speech/language teacher asserted that the Student had made progress as a result of the school program. However, for reasons discussed further below, the speech/language teacher's testimony was not credible. As of May 1996, the Student's peer relations in school remained at the April 1994 level of tolerating parallel play. Tr. 520.

An examination of the strategies used in the school program, and of those discarded, offers an explanation of his failure to progress. The team did not include an autism professional, who could have assisted staff in designing a program for an autistic child within the ECSE classroom. See Minn. R. 3525.1325, subp.1. When a consultation with an autism expert was obtained, many of the recommendations were either not implemented, or were implemented only briefly and then abandoned. Particularly striking was the speech/language teacher's testimony regarding the picture cards use in spring 1994. He testified variously that only one picture card, that of a train, was used, and that many toy pictures were used. He abandoned the attempt to use the train picture, or any picture system, after only one month in spring 1994 because the Student did not understand it. There was no evidence whatsoever of structured attempts to teach the Student to associate the train card with getting the toy train prior to expecting him to make use of the card, which was the teaching strategy outlined by the autism consultant.

This is but one example of opportunities missed because of misunderstanding the nature of the Student's disability and needs. Tasks were not broken down into small units which the Student could understand and follow, apparently based on the S/L's belief that the Student only learns in large meaning units, not in small steps. That belief, repeatedly expressed at hearing, was not echoed, and in fact was directly contradicted, by the District's experts, both those testifying at hearing and those whose opinions appear in documents, as well as by the Parent's expert witnesses.

The S/L teacher also felt that Student had failed to "generalize" his learning because he was unable to answer color questions about a story read to him at circle time. The autism professionals, including expert witnesses at hearing, agreed that story time was an inappropriate activity in which to include the Student, because of his verbal receptive difficulties. Put simply, the Student would not be able to comprehend a story presented to him only verbally, and would "tune out" the information he was unable to understand. Concluding that he did not generalize his color drills because he was unable to answer a listening comprehension question demonstrates a fundamental misunderstanding of the nature of the Student's disability. Unfortunately, that misunderstanding results in not capitalizing on the Student's agreed area of strength - his visual memory.

The District did not provide a clear picture of the methodology or combination of methodologies or strategies it was using with the Student. Contrast Rebecca K., supra. The District's strategy apparently was to work on the Student's goals and objectives in the context of the general classroom instruction. This strategy was used despite the 1993 outside consultant's statement, representative of expert consensus in testimony, that the nature of the Student's disability was such that he could not just be put in the general special education program and expected to progress. See Malkentzos v. DeBuono, 923 F. Supp. 505, 2 ECPLR 217 (S.D.N.Y. 1996) (finding "serious questions exist about whether any benefit whatsoever is derived from placing autistic children in the sort of structured play environment routinely used with disabled children," finding district had defined needs by existing program rather than program by needs, granting injunctive relief for Lovaas therapy.)

In a similar case, a teacher described her approach as a "cognitive whole language approach in a naturalistic environment." Capistrano Unified School District, 23 IDELR 1209 (SEA Cal. 1995). District witnesses admitted that the approach was difficult to describe. The hearing officer concluded, "If an adult 'layperson' could not discern the structure of Student's class, then it is not likely to be recognized by an autistic three-year old." Id.

The Capistrano school district claimed its program had provided benefit to the student, in that he had "adjusted to the classroom and appeared to enjoy himself," similar to the benefits described by the district herein. The Capistrano hearing officer, however, attributed the improvements to the student's home program, Lovaas-based therapy. Finding that the district did not provide benefits in terms of the student's needs to learn to attend, imitate, generalize, or develop language, the hearing officer found that the school's program was not appropriate, and that the Lovaas therapy was appropriate.

In this case, the same conclusion must be drawn from the evidence. The home therapy was provided for 35 hours per week, commencing in spring 1994, with occasional, brief vacation breaks. The school program was provided for less than ten hours per week, almost entirely during the regular school year. Based on intensity alone, the Lovaas therapy must be given the major portion of the credit for teaching the Student to attend, and to imitate (noted as an area of strength by Ms. Merzer in 1996, where it was a clear weakness at the Student's evaluations prior to beginning home therapy). Further, the Student made progress at school only on specific tasks which had been included in drills in the home therapy.

The evidence clearly indicates that the Student was introduced to certain American Sign Language signs, including "more," and to the concept of signing with speech, by the private speech therapist whose services were obtained privately by the Parent. The S/L teacher claimed he had begun the use of signing with the Student, after having previously testified that he began using signing at the Parent's request without determining whether signing was appropriate for an autistic student. These inconsistencies, and others, in the testimony of the S/L teacher, as well as the witness's demeanor, lead the hearing officer to find that the S/L, teacher's testimony generally was not credible. Specifically as to the introduction of signing, the Parent's credible testimony that signing was introduced in private speech therapy is further supported by the note which was sent at the beginning of the 1994 school year describing directives the Student could follow, and providing a drawing of the American Sign Language sign for "more."

When the Student did not progress well in learning signs, the home therapy switched to the Picture Exchange Communication System, as recommended by Mr. Lund, Dr. Larsson, and in 1993 (although not from a specified resource) by consultant Lyle Chastain. The Student has made progress in using this system, not only in his use of PECS spontaneously and in drills, but in his accompanying verbalizations.

PECS was adopted in the school at the Parent's initiation, and was instituted late in the 1995-96 school year. The Parent provided the District with the technical material needed to institute the system, the Mayer Johnson picture book, in order to copy pictures to use with the Student. Earlier in the Student's career with the District, the Parent provided reading materials and brought the District into contact with autism experts.

Nearly all of the fundamental and substantive program components were put in place as a direct consequence of the initiative and actions of Mr. and Mrs. F," the parents. Frederick County Public Schools, 2 ECPLR 145 (SEA Md. 1995) (parents have no right to dictate methodology, but reimbursement for Lovaas granted; district developed meaningful IEP including TEACCH program only after parents filed for hearing); see also In re Child with Disabilities, 23 IDELR 471 (SEA Conn. 1995) ("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 program which the Board staff members still do not appear to understand or appreciate"; continuing Lovaas ordered.)

Notably, the District's expert witnesses who evaluated the Student in July 1996 suggested continuation of the Student's home program in the school environment. Specific suggestions were made by the consultants for additions to the program, and to adapt it to the classroom. However, both found it appropriate as administered; in fact, Ms. Merzer appeared quite enthusiastic about the program. Neither of the District's expert evaluators suggested substituting a different program. Witnesses also agreed that the Lund IEPs were appropriate, with some modifications. Tr. 1467.

It is recognized that Ms. Merzer would describe the program similarly to Mr. Lund, as intensive applied behavior analysis, with a PECS component. However, despite disagreement over the name for the home program, the hearing officer finds it particularly significant that Ms. Merzer's recommendations appear to rely on continuation of significant time spent in 1:1 teaching, and of drill instruction, precisely the aspects which District staff found objectionable. It is also noteworthy that neither Ms. Merzer nor any other autism expert offered a positive opinion regarding the Student's program in the District.

The District may argue that its conciliation conference proposal, coupled with Ms. Merzer's report, is essentially the same program ordered herein. However, most of the District's proposal components were made contingent or dependent on the results of the three-year evaluation. Thus, the District's proposal was not an offered program. If it had been a true offer, one district court has held that the appropriateness of a district's program proposed after a hearing request may not be used to determine if FAPE was offered. Rose v. Chester County Intermediate Unit, 24 IDELR 61 (E.D. Pa. 1996). Despite the conclusion that the District did not offer an appropriate program, or any program at all, prior to hearing, the District is to be commended for its willingness to consider altering its stance if the evaluation justified the change.

In fact, the evaluation does justify the change to the type of program requested by the Parent. The evaluation, along with the greater weight4 of the evidence submitted herein, supports continuation of the Student's home therapy program in the school environment. The evidence herein clearly demonstrates that the District did not offer, and has not yet offered, a clear program which would provide educational benefit to the Student. The program requested by the Parent has been conceded by all to be "very appropriate" for the Student, with adjustments expected by the Parent (Ex. O-1) to make it appropriate for a kindergarten environment, and to add goals relating to OT and adaptive physical education.

In sum, the District has not offered an appropriate program, in that the program did not lead to progress, nor was the program as implemented reasonably calculated to lead to educational benefit. The Parent's program could, and did, provide educational benefit. Therefore, continuation of the Lovaas-based therapy is appropriate.

Autism Expert, Training of Aide

The parties have agreed that a full-time, one-to-one aide will be needed. Disagreement occurred only in relation to the training of the aide.

Hearing officers generally do not have authority to order the employment of specific individuals, as opposed to other qualified individuals. See Tuscaloosa, supra.

However, it is readily apparent that the training of an aide must be appropriate to the program being offered. Particularly for this Student, since his verbal skills are tentative, the aide will have to be knowledgeable about the PECS and able to guide or prompt the Student in using the PECS, as well as working with him on increasing his PECS vocabulary. The aide will need to be able to guide the Student through a school day in such a way that he is able to benefit from being with a group, and from 1:1 services, in order to develop new skills and generalize the skills he does have to a new environment. In order to do this, it is common sense that the aide will need to be able to recognize strengths and areas of difficulties, and the way in which Student demonstrates his learning, which is most often nonverbally.

Theoretically, it is possible that a person not trained in Lovaas-based therapy could successfully serve as an aide for the Student. For example, Ms. Merzer could doubtless meet the Student's needs using what could be denominated a developmental-cognitive approach. However, it is highly unlikely that an aide without substantial prior years of experience working with autistic children or without knowledge of the methodology to which the Student is accustomed and its long-term goals would be able to assist the Student in maintaining and generalizing his skills, as well as acquiring new skills. Even the caring and experienced ECSE teachers were not able to provide appropriately for the Student, drawing only from their general training and prior experience with a few students having this low incidence disorder. Cf. Midland Intermediate School Dist., Richard Roy N., IDELR 401:386 (SEA Tex. 1989) (student moved from Lovaas program into MR class, behavior deteriorated, residential placement ordered).

The hearing officer traces some of this problem to the lack of an autism professional as a full member of the Student's team on an ongoing basis. Minnesota law clearly required an autism professional to be included on the Student's team. This decision therefore requires that addition. Based on the Parents' preference and endorsement by Ms. Merzer, Ex. 100, Stein Lund is determined to be needed.

The parties apparently agree that more than one autism professional would be helpful, and a local professional would be helpful. Dr. Larsson is suggested, as requested by the Parents in their post-hearing brief, subject to agreement of the District. If Dr. Larsson is forced on the District over objection, as well as Mr. Lund despite the District's earlier hostility, it is likely that the team will become unable to function. Thus, the parties may select mutually agreeable autism experts trained in applied behavior analysis. Ms. Ferguson may be such a person: her background is not known, but she is obviously supportive of the Student's current program, Ex. 100, and is locally located.

However, the autism professional(s) added to the Student's team will not be in the classroom on a daily basis. While the autism professionals will doubtless be able to make helpful suggestions for curriculum and project implementation, they will not be able to provide guidance to cover all of the contingencies which may arise in the Student's day. Primarily, on a moment-to-moment basis, it will be the aide who will integrate the Student in the classroom, judge when the Student is no longer benefiting from a group activity, and prompt the Student's interactions with peers in situations which cannot be anticipated. The aide will need to avoid inadvertently repeating such problems as requiring the Student to sit through purely verbal group times without visual cues, and to avoid assuming that the Student does not understand because he cannot verbalize his understanding. The aide's training should include Lovaas-based training so that the Student's program will be implemented in a manner which is consistent and predictable to him. See Ash v. Lake Oswego Sch. Dist. 7J, 776 F. Supp. 852 (D. Ore. 1991) (consistency emphasized in residential placement for autistic student).

Extended School Year

As with the aide, the parties did not disagree that extended school year services were needed. From testimony and correspondence of the parties, it appears that the actual disagreement was as to the form of the services, i.e., the method and intensity.

Generally, intensity has been found important in working with autistic children. Thirty hours per week is generally regarded as a minimum in both the TEACCH program and the Lovaas program. See Delaware County Intermediate Unit v. Martin K., 831 F. Supp. 1206, 20 IDELR 63 (E.D.Pa. 1993) (only 10 hours of TEACCH offered, not in accordance with TEACCH recommendations; Lovaas therapy ordered); Mill Valley Elementary School District, 2 ECPLR 43 (SEA Cal. 1994) (six hours of instruction per day needed, 219 school days sufficient, but maintenance program ordered, cognitive therapy not required in addition to Lovaas therapy from aide); testimony and studies herein.

The Parents did not request a specific number of hours of summer services, despite the recommendations of their experts that 30-40 hours per week of Lovaas training is preferred. The Parents did not present a rigid number, which is in accord with IDEA's requirement that need be individually determined. Kalamazoo School District, 2 ECPLR 180 (SEA Mich. 1996, H.O. Beekman).

It is clear that the amount of summer service offered by the District in the past has been inadequate for maintenance of the Student's skills. The Student's October 1995 IEP did not contain any suggestion that services proposed for summer 1996 would be any different, or more intense, than previous services. No increase was proposed until the conciliation conference. See Rose, supra. The District's conciliation conference memorandum proposed services in a pre-school for an uncertain number of weeks in June and July, and in a kindergarten transition program for three weeks, accompanied by an aide, all for a limited number of half-days per week, and all subject to cancellation if the assessment so suggested. Again, this proposal shows willingness to consider, but also continues to allow the District to withdraw its proposal or change its services at any time, on the basis that the District believes the offered services to be inconsistent with the assessment.

Parents are not required to allow regression to occur in order to prove eligibility for summer service. Allamakee Community School District and Keystone, 2 ECPLR 220 (SEA Ia. 1996), and cases cited therein. Predictive data and expert opinion are similarly appropriate for use in deciding the needed amount of services to prevent regression.

Here, all predictive data indicates that the Student needs a much more intensive summer program than has been provided to him by the District in the past. The only reliable data on this Student is the data from his own summer program. Calendars within those programs show that the Student's program continued at much the same rate during the summer, with a week of vacation in August 1994. However, there was little testimony relating to the issue of time of summer services. Thus, the hearing officer defers the precise amount and place of ESY services to the team, with the provisos that summer services should be sufficiently continuous to allow the Student to continue to find his environment and learning predictable, and that services and the training of the aide should be consistent with his school year program.

Daily School Attendance

A need for daily school attendance has been asserted by the Parents. There was no credible evidence that the Student would benefit by having weekdays without school services. In fact, it would be impossible to present sufficient services in less than five days to meet the Student's needs for intensity.

At the May 1, 1996 conference, the Parent suggested daily attendance in a school setting. She did not insist that all days be in kindergarten, but suggested reserving the days on which the rest of the class did not attend for discrete trial training. The Parents and their experts have not suggested all of the Student's time should be spent in 1:1 drills. Rather, the Parents and all the experts agreed that the Student should have drills to learn an activity and to establish relationship with various staff, only until he is at the point where he can engage in the same activities as peers with only occasional prompts. Tr. 1389-90.

The parties, prior to and during hearing, did not seem to be seriously at odds regarding the Student's daily attendance, and kindergarten placement. Rather, the only questions evident at that time were how to introduce the Student to kindergarten. Possibilities included the Student's starting immediately in a full-time kindergarten placement, or starting the Student in kindergarten three days per week, with two days at his prior ECSE placement as a transition.

Part of the reason for suggesting transitioning was to allow both the new and the old team to participate in the three-year re-evaluation then scheduled for fall 1996, which would have served as a basis for the new IEP. That re-evaluation has now been performed, and the new IEP is "written" in some measure by this decision.

The IEP will certainly need to be finished and made more concrete, and training for staff and aides will be needed. But that will be true whether Student is attending both kindergarten and ECSE or only kindergarten. The Student will not have been in the ECSE classroom for several months as of the start of school. The "transition" option requires the Student to reacquaint himself with the ECSE environment, with a new group of peers, while simultaneously attempting to adjust to an entirely new kindergarten setting with another group of peers. Even to the inexpert hearing officer, this plan appears to bear a significant risk of confusing and over-stimulating the Student. Further, there are logistical difficulties presented by moving the PECS daily, or creating duplicate sets. Ex. O-1. The team is urged to follow the advice of the autism professional in deciding whether a transition period would be helpful or counter-productive.

During the last moments of hearing, and in several exchanges of correspondence thereafter, concerns were raised regarding the District's potential refusal to place the Student in kindergarten at the beginning of the year, whether or not this decision is on appealed. The Student moved the hearing officer to determine or change the stay-put to require placement of the Student in kindergarten as of the commencement of the school year. The District responded to the motion.

The Student's "stay-put" placement is determined by IDEA. That "stay-put" is the last agreed-upon IEP prior to the request for due process hearing, 20 U.S.C. 1415(e)(3)(A). In this case, that is the October 1995 IEP.

This decision determines that IEP to be inappropriate. Assuming this decision is appealed, as is likely based on the nature of the issue and the current practice in this state, the Student's stay-put places him under an IEP determined to be inappropriate, in a classroom which the parties gave every appearance of having agreed was no longer appropriate, and without contact with non-disabled peers. See Pocatello School Dist. 25, 18 IDELR 83 (SEA Idaho 1991) (mainstream placement with full-time aide appropriate).

It would be unfortunate indeed if the parties were unable to agree upon interim measures which would allow the Student to join his regular education peer group in introductory activities. Further, the District takes the risk that it will have to continue paying for private services provided by the Parents if this decision is ultimately upheld, and possibly even if it is not, if the reasoning of Delaware County Interm. Unit No. 25 v. Martin K., 831 F. Supp. 1206, 20 IDELR 363, supra, is adopted. In that case, the District Court of the Eastern District of Pennsylvania held that parents may rely on an administrative ruling requiring private placement pending appeal.

These circumstances do not justify finding a de facto change in the "stay-put." Thus, the Student's motion to decide that the stay-put placement is or shall be changed to regular kindergarten must be denied.

The District argued persuasively at hearing, in relation to evidentiary issues, that planning for the Student's education the day before hearing is not part of settlement but part of the ongoing IEP process. The District asserted in its responsive memorandum that discussion of interim placement is settlement, rather than part of educational planning. Depending upon the parties' focus, ongoing educational planning is always involved when a team is considering future services. The parties are urged to focus on the needs of the Student in discussing interim placement.

Use of Computer

Expert testimony was in agreement that use of a computer should be included in the Student's educational program; there was no credible testimony that computer use would not be appropriate. Thus, computer training shall be included in the Student's IEP.

There was evidence that the district had briefly attempted computer use, but abandoned it when the Student did not easily understand the use of the keyboard. However, there was no evidence of any systematic introduction to the computer parts, or to cause-and-effect relationships between the keyboard and the screen. Certainly, no task analysis was used. Perhaps a newly-constituted IEP team, with guidance from autism professionals, will be in a better position to design an appropriate introduction to the computer for the Student, so that he will be able to do more than bang the keyboard.

Reimbursement

If a school district falls to offer an appropriate educational placement to a child with a disability, the district may be required to reimburse parents for a private school placement. Florence County School District Four v. Shannon Carter, 114 S.Ct. 361 (1993). Reimbursement is available only if the private school placement was proper under IDEA. Id. at 365; see Burlington School Committee v. Department of Education of Massachusetts, 471 U.S. 359 (1985).

As concluded above, the District failed to offer an appropriate placement or program, between April 1994 and continuing through the present. The program did not provide educational benefit. As also concluded above, the private services were appropriate.

A "school district should be on notice of disagreements and given an opportunity to make a voluntary decision to change or alter the educational placement of a handicapped child.. . ." Evans v. District No. 17 of Douglas County, 841 F.2d 824, 1987-88 EHLR 559:381, 386 (8th Cir. 1988). In Evans, the Eighth Circuit upheld the denial of reimbursement to parents. The Evanses did not object to the current placement, stating only that they were considering a private placement before removing the student from the district. Because their failure to object, formally or informally, deprived the district of the opportunity to make changes, reimbursement was denied.

In contrast, the Parents in this case did notify the District of their desire to include Lovaas-based therapy in the Student's school program, and had reason to believe that the District had agreed to include the Lovaas-based methods. At the spring 1994 periodic review, the District agreed to observe the first Lund training session. However, District representatives failed to show up.

The Parent opened her home to District representatives in August, in order to demonstrate the program. District representatives arrived and taped a training session. In the fall of 1994, the team agreed that Mr. Lund would present a workshop at school. However, for unidentified reasons, few of those working with the Student actually attended the workshop. The team also included the Bancroft IEP as part of the 1994 District IEP, and credible testimony establishes that the school staff did agree to include Lovaas methods and materials in the school-based program. At that point, the Parents had no reason to disagree with the District: to all appearances, the District had agreed to include the home-based therapy program.

However, the occupational therapist did not like Mr. Lund's strategies because they were "harsh." (See Ex. 62, University of Minnesota evaluation at p. 159; "When Student is called by name, or when commands to stop an activity are given, it will be important to pair these commands with physical interruption of [student's] actions in order to refocus Student on auditory input through consistent pairing.)

It became apparent at hearing that school staff had discussed reactions to the home-based therapy amongst themselves, and decided that the home-based program would not be utilized. The Student's IEP stated that the Student would "receive training utilizing the techniques from the Bancroft Young Autism Project as they can be incorporated into the classroom setting." Ex. 22. School staff apparently decided that this language permitted them to determine that the techniques could not be incorporated into the classroom setting, and to drop any attempt at such coordination.

This decision was made without consultation with the Parents and was not conveyed to the Parents. The Parents eventually realized that the techniques were not being utilized; however, no formal decision was presented to them so that they could object and make their disagreement known. Parents cannot be held to a requirement that they make formal objection to a change in program of which they are not informed.5

Each time that the Parents requested the District to take specific action to work with the Lovaas-based therapy prior to May 1996, the District agreed. However, the agreement was illusory, in that the therapy was not incorporated even when the IEP clearly provided that it would be. The District asserts that the Parents knew that Lovaas-related services would not be provided, without having been explicitly informed; the Parents could equally well assert that the District knew that the Parents wanted Lovaas services without being explicitly informed in October 1995.

Parents may understandably feel that they must walk a fine line. Parents like these, who attempt to work with a district despite concerns and dissatisfaction, are told that they did not adequately notify the district of their objections. On the other hand, if parents become assertive, they may be accused of undermining the district's placement. See Capistrano Unified School District, supra, 23 IDELR 1209 (SEA Cal. 1995).

Neither the Parents nor the District was willing to provoke a confrontation regarding Lovaas services before May 1996. Since a positive relationship between families and the district is important, this avoidance of confrontation is understandable on both sides. However, the Parents' failure to object to the October 1995 IEP could be interpreted as acquiescence in the District's elimination of reference to the Bancroft IEP and techniques, until the Parent's notice in April 1996 that she wanted modification of the Student's program. Thus, reimbursement is inappropriate for that period of time. Compare Rapid City School District, 17 EHLR 276 (8th Cir. 1990) (reimbursement awarded; adequate notice given, district acquiesced in need for private placement); see also Melody McD. v. Fort Bend Indep. Sch. Dist., IDELR 401:408 (SEA Tex. 1989).

Reimbursement of costs of the Lovaas therapy program is proper for the period during which the District appeared to be willing to incorporate the therapy into the Student's program and silently failed to do so, the period from April 28, 1994 through September 1995.

Proof for some of the incurred expenses was not sufficient to allow reimbursement. While itemized receipts are not necessarily required for proof of an expense, there must be sufficient documentation of the cost, and sufficient explanation of the nature of the expense incurred, its purpose, and its use exclusively as an educational tool for the Student. Similarly, mileage expenses were not explained, but only presented as a total number.

On the evidence presented, the Parents would be entitled to reimbursement for materials in the amount of $1,158.84 for treatises and similar materials. However, it is assumed that the Parents wish to continue to own these materials, and that reimbursement is therefore inappropriate. The Parents are entitled to $1,903.96 for expenses incurred and not covered by insurance for Lund workshops of June 1994, November 1994, February 1995, August 1995, and July 1996 (billed as of time of hearing) (September 1995 workshop paid by District).6

Parents are also entitled to reimbursement for additional therapist hours not paid by TEFRA in the amount of $1,632.00. The Parents have not requested reimbursement for many of the other expenses obviously incurred in obtaining services for the Student, such as evaluations, private speech therapy, long-distance phone calls to consult with Mr. Lund, and attending and presenting at autism workshops. Reimbursement is for Lovaas-based therapy, as requested, in the amount of $3,535.96.

The hearing officer wishes to thank the parties for their patience with hearing days extending into weekends. It is hoped that the parties will work together with open minds in planning for the Student's educational future, despite disagreements and any appeals of this Decision. The hearing officer also thanks counsel for their organized and thorough presentations.

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1 Also considered as part of this issue is the Student's motion for alternation or determination of "stay-put."

2 The Student's father has been involved in and supportive of the Student's needs and therapies, and was present throughout the hearing. However, he did not testify at hearing; thus, references herein to the "Parent" are to the Student's mother, who did testify.

3 Several research studies were received as evidence and reviewed by the hearing officer. From those studies, it appears that Lovaas therapy has been effective. Critics of Lovaas therapy point to problems in the design of his research. However, no comparable research of other methods was presented on other methodologies, if any exists, and the defense of the final results--90% of the Lovaas study subjects functioning well in educational programs with no or moderate special education services seems a sound basis for concluding that the program offers benefits to many autistic children.

4 The hearing officer notes that the "weight" of the evidence is not meant to be taken literally. Volume is not helpful in proving a fact; credible evidence is. Credible, reliable, first-hand evidence is evidence with "heft," even if only one witness testifies to the fact.

5 Parents note in their post-hearing brief that this is a procedural violation of IDEA of which they were uninformed prior to hearing. Assuming this is correct, and assuming that the procedural violation resulted in harm to provision of services and/or significant impairment of parental involvement, the hearing officer believes that the relief awarded herein is already appropriate to the violation. Thus, there is no need for separate consideration of this issue.

6 The Parent also paid the cost of lodging and travel for that visit. It became apparent at hearing that the institution receiving payment should have but has not reimbursed the Parent. The District offered to provide a copy of its records to assist the Parent in obtaining reimbursement, and the hearing officer assumes that this has been done.

 

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