Berkeley Unified Failed to Educate Deaf-Blind Student for Four Months

A medically fragile, deaf-blind student with cerebral palsy and epilepsy received virtually no special education services from August through December 2005 after Berkeley Unified failed to implement his IEP. The district could not get required equipment working, lacked a qualified deaf-blind teacher and intervener, and attempted to shift services to the student's home without a proper IEP process. The ALJ ordered immediate IEP implementation, comprehensive assessments, and transportation reimbursement, while retaining jurisdiction to determine compensatory education.

What Happened

The student in this case was a nine-year-old boy with a profound and complex set of disabilities: he was classified as deaf-blind (cortically blind and cortically deaf), medically fragile, and also lived with cerebral palsy, epilepsy, fluctuating muscle tone, and temperature regulation problems requiring use of a wheelchair. His May 27, 2005 IEP, developed unanimously by the full IEP team, called for placement in a classroom specifically designed for augmentative and alternative communication (AAC), medically fragile students, and deaf-blind children. The district, however, refused to implement that placement and instead tried to place him in a different classroom — one the team had not agreed on and that his mother had specifically rejected.

When the 2005–2006 school year started on August 31, 2005, the district's plan fell apart almost immediately. The nurse and transportation did not show up at the student's home. When the mother visited the proposed classroom, she found no curriculum for her son, no intervener, broken equipment, unpacked AAC and Braille devices, a broken lift (because her son weighed too much for staff to safely lift manually), and a room temperature of 80 degrees — dangerous for a child with temperature regulation issues. The student never attended school that fall. For the entire period from August 31 through December 31, 2005, the only services the district provided (and paid for) were physical and aquatic therapy. This was the second time this family had prevailed against Berkeley Unified — a prior decision (OAH No. N2005070046) had already found FAPE denials stretching back to 2003.

What the District Did Wrong

Failed to implement the agreed-upon IEP. The May 27, 2005 IEP was developed by a unanimous team and called for a specialized classroom for AAC, medically fragile, and deaf-blind students. The district instead tried to use a general-education-blended placement that the mother — and the rest of the IEP team — had rejected.
Used the wrong "stay put" placement. Rather than implement the May 2005 IEP, the district insisted on reverting to the March 2004 IEP as "stay put." A prior ALJ had already rejected this position. The district also moved the student to a new school (Oxford Elementary), which itself constituted a placement change inconsistent with stay put.
Failed to have required equipment, personnel, and supports ready. On the first day of school, the classroom lacked a working lift, functioning AAC and Braille devices, a qualified deaf-blind teacher, and an intervener — all of which were required by both the 2004 and 2005 IEPs.
Attempted an unlawful home placement without an IEP. When the district could not get the equipment working at Oxford, it tried to shift services to the student's home without convening an IEP meeting. Shifting a student's placement requires a new IEP process — the district did not do this.
Left the student without meaningful education for four months. From August 31 through December 31, 2005, the student received no classroom instruction, no qualified teacher, no intervener, and none of the supports identified in his IEP.

What Was Ordered

Immediate IEP implementation. The district was ordered to immediately provide the educational placement and services in the May 27, 2005 IEP, including placement in a classroom designed for AAC and to accommodate a medically fragile, deaf-blind child.
Comprehensive assessments. The district was ordered to assess the student in all areas of suspected disability — communication, cognition, vision, academics, self-help, gross and fine motor ability, and orientation and mobility — including written classroom observations by assessors. Reports were due by April 28, 2006.
IEP meeting to determine compensatory education. No later than May 19, 2006, the district was required to convene an IEP team meeting (with the student's attorney invited) to review the assessment results and develop an agreed-upon compensatory education award. OAH retained jurisdiction to schedule further hearings if the parties could not agree.
Transportation reimbursement. The district was ordered to reimburse the mother $363.88 (675 miles at $0.385/mile) plus $104 in tolls for driving the student to physical and aquatic therapy sessions — the only services he actually received.
Assessment reimbursement denied. The mother's request for reimbursement of privately obtained assessments was denied. The ALJ found that the district had never refused to assess the student and had made reasonable efforts to obtain signed consent. Because the mother did not engage with the district's revised assessment plan, the district was not responsible for funding private assessments.

Why This Matters for Parents

Document everything when a district fails to deliver services on day one. The mother's visit to Oxford Elementary on August 31, 2005 — and what she observed — was central to the ALJ's findings. If your child's classroom is missing required equipment, staff, or supports, write it down immediately, take photos if possible, and follow up in writing. That documentation becomes your evidence.
A district cannot quietly shift to a "home program" without a new IEP. Changing where a child receives services is a change in placement and requires a proper IEP meeting with parental participation. If a district suggests home services as a workaround for logistical problems, ask for a formal IEP meeting before agreeing to anything.
"Stay put" means the last agreed-upon placement — not the one the district prefers. The district tried twice to use an older, less appropriate IEP as "stay put." Courts and ALJs have consistently rejected this tactic. Know your child's stay put rights and push back if the district tries to use stay put as an excuse to roll back services.
Compensatory education is not automatically "day-for-day." The ALJ made clear that one-for-one makeup hours are not the legal standard. Compensatory education must be "reasonably calculated to provide the educational benefits that likely would have accrued" from proper services. This means the remedy should be tailored to your child's specific needs — which is why comprehensive assessments were ordered first.
Sign (or formally respond to) assessment plans promptly — even if you have objections. The mother lost her reimbursement claim for private assessments because the district had never formally refused to assess and had tried to accommodate her corrections. If you disagree with an assessment plan, respond in writing with your specific objections and request a revised plan — but stay engaged. Silence or unavailability can cost you reimbursement rights later.

What Happened

What the District Did Wrong

Failed to implement the agreed-upon IEP. The May 27, 2005 IEP was developed by a unanimous team and called for a specialized classroom for AAC, medically fragile, and deaf-blind students. The district instead tried to use a general-education-blended placement that the mother — and the rest of the IEP team — had rejected.
Used the wrong "stay put" placement. Rather than implement the May 2005 IEP, the district insisted on reverting to the March 2004 IEP as "stay put." A prior ALJ had already rejected this position. The district also moved the student to a new school (Oxford Elementary), which itself constituted a placement change inconsistent with stay put.
Failed to have required equipment, personnel, and supports ready. On the first day of school, the classroom lacked a working lift, functioning AAC and Braille devices, a qualified deaf-blind teacher, and an intervener — all of which were required by both the 2004 and 2005 IEPs.
Attempted an unlawful home placement without an IEP. When the district could not get the equipment working at Oxford, it tried to shift services to the student's home without convening an IEP meeting. Shifting a student's placement requires a new IEP process — the district did not do this.
Left the student without meaningful education for four months. From August 31 through December 31, 2005, the student received no classroom instruction, no qualified teacher, no intervener, and none of the supports identified in his IEP.

What Was Ordered

Immediate IEP implementation. The district was ordered to immediately provide the educational placement and services in the May 27, 2005 IEP, including placement in a classroom designed for AAC and to accommodate a medically fragile, deaf-blind child.
Comprehensive assessments. The district was ordered to assess the student in all areas of suspected disability — communication, cognition, vision, academics, self-help, gross and fine motor ability, and orientation and mobility — including written classroom observations by assessors. Reports were due by April 28, 2006.
IEP meeting to determine compensatory education. No later than May 19, 2006, the district was required to convene an IEP team meeting (with the student's attorney invited) to review the assessment results and develop an agreed-upon compensatory education award. OAH retained jurisdiction to schedule further hearings if the parties could not agree.
Transportation reimbursement. The district was ordered to reimburse the mother $363.88 (675 miles at $0.385/mile) plus $104 in tolls for driving the student to physical and aquatic therapy sessions — the only services he actually received.
Assessment reimbursement denied. The mother's request for reimbursement of privately obtained assessments was denied. The ALJ found that the district had never refused to assess the student and had made reasonable efforts to obtain signed consent. Because the mother did not engage with the district's revised assessment plan, the district was not responsible for funding private assessments.

Why This Matters for Parents

Document everything when a district fails to deliver services on day one. The mother's visit to Oxford Elementary on August 31, 2005 — and what she observed — was central to the ALJ's findings. If your child's classroom is missing required equipment, staff, or supports, write it down immediately, take photos if possible, and follow up in writing. That documentation becomes your evidence.
A district cannot quietly shift to a "home program" without a new IEP. Changing where a child receives services is a change in placement and requires a proper IEP meeting with parental participation. If a district suggests home services as a workaround for logistical problems, ask for a formal IEP meeting before agreeing to anything.
"Stay put" means the last agreed-upon placement — not the one the district prefers. The district tried twice to use an older, less appropriate IEP as "stay put." Courts and ALJs have consistently rejected this tactic. Know your child's stay put rights and push back if the district tries to use stay put as an excuse to roll back services.
Compensatory education is not automatically "day-for-day." The ALJ made clear that one-for-one makeup hours are not the legal standard. Compensatory education must be "reasonably calculated to provide the educational benefits that likely would have accrued" from proper services. This means the remedy should be tailored to your child's specific needs — which is why comprehensive assessments were ordered first.
Sign (or formally respond to) assessment plans promptly — even if you have objections. The mother lost her reimbursement claim for private assessments because the district had never formally refused to assess and had tried to accommodate her corrections. If you disagree with an assessment plan, respond in writing with your specific objections and request a revised plan — but stay engaged. Silence or unavailability can cost you reimbursement rights later.