District Wins Most Issues But Must Provide ABA Therapy for Autism Student's FAPE Denial

What Happened

Student was a young boy with autism who began receiving special education services from Corona-Norco Unified School District when he turned three years old. District assessments confirmed he had severe deficits across communication, socialization, daily living, and fine motor skills — with language functioning assessed at the level of a child between six months and one year old. He was nonverbal, could not imitate sounds or words, and lacked the foundational "pre-communication" skills needed to benefit from traditional speech therapy. District placed him in a preschool special day class (SDC) and provided ABA services, but Parents grew increasingly concerned that his program was not intensive enough and that he was not making meaningful progress.

Parents believed Student could benefit from — and belonged in — a general education classroom with appropriate supports. After attending a seminar about autism education, Father pushed for a general education placement for kindergarten. District's March 2006 transition IEP, however, had already been filled out before the meeting took place, recommending placement in a kindergarten special day class. Parents also requested an IEP meeting on June 15, 2006, but refused to tell District the purpose of the meeting in advance. When Parents stopped communicating with District after that meeting and withdrew Student from school entirely, District was unable to move forward with any revised programming. Parents filed for due process in August 2007, seeking 40 hours per week of in-home ABA therapy as compensatory education.

What the ALJ Found

The ALJ found that District did deny Student a FAPE for both school years — but only on the issue of speech and language services. The core problem was that Student received too little intensive, one-on-one ABA therapy: just 15-30 minutes per day, which the ALJ found was not enough to provide more than minimal educational benefit given the severity of Student's needs. Student remained nonverbal and without any functional communication system after more than a year in the preschool SDC, and the small-group classroom setting did not fill that gap.

On the other major issues, the District prevailed. The ALJ found no violation for the failure to include a general education teacher at the June 15, 2006 IEP meeting, because District had no reason to know a general education placement would be requested — Parents had agreed to the SDC placement just weeks earlier and refused to disclose the meeting's purpose. The ALJ also found no problems with the District's occupational therapy services, its behavior management approach (the classroom teacher credibly testified Student's behaviors were manageable without a formal behavior plan), or its failure to conduct a functional analysis assessment. For the 2006-2007 school year, the ALJ found that District's proposed kindergarten PALS program — a structured autism program with some general education exposure — was actually the least restrictive appropriate environment for Student given his significant deficits in focus, attention, and communication.

Critically, the ALJ also reduced the compensatory education award because of Parents' own conduct. After June 15, 2006, Parents refused all communication with District and would not participate in any further IEP process. The ALJ found it inequitable to award full compensatory services when Parents themselves prevented District from correcting its program.

What Was Ordered

1. District must provide Student with intensive in-home ABA therapy through Autism Behavior Consultants for 30 hours per week for 16 weeks as compensatory education.
2. The program must include an additional 3 hours of supervision and 1 hour of clinical direction per week throughout the 16-week period.
3. At the end of the 16 weeks, an evaluation of Student's progress must be conducted and a new IEP Team meeting convened to review results and plan next steps.

Why This Matters for Parents

1. Insufficient ABA hours can be a FAPE violation, even when other services are adequate. The ALJ found that 30 minutes per day of one-on-one ABA was not enough for a student with Student's level of need. If your child requires intensive, individualized instruction to make progress, a small amount of pull-out time may not be sufficient — and you can challenge this.

2. You must stay engaged in the IEP process, even when you disagree. Parents' decision to stop communicating with District after June 2006 significantly reduced the compensatory education award. Courts and ALJs consider whether parents cooperated in good faith when deciding how much relief to grant. Walking away can hurt your case.

3. Predetermination is a real violation, but it must significantly affect your ability to participate. The ALJ noted that District had filled out the March 2006 transition IEP form before the meeting took place — a serious concern. However, because Parents ultimately signed the IEP and the general education discussion had not yet been raised, this did not rise to a denial of FAPE. Document everything at IEP meetings, and object in writing if you feel a decision was made before the meeting started.

4. General education placement is not automatically the least restrictive environment for every student. The law requires placement with non-disabled peers to the maximum extent appropriate — but "appropriate" depends on the individual student. For Student, whose attention span was two to three minutes and who lacked basic communication skills, the ALJ found that a structured special day class was actually the right setting. LRE arguments require evidence about the specific student's needs, not just a general preference for inclusion.