Modesto District Blocked Parents from Discussing ABA Placement, Ordered to Fund NPA Program

A four-year-old student with autism was denied meaningful participation in his IEP process when Modesto City Schools refused to discuss his parents' request for a one-to-one ABA program at a non-public agency. The ALJ found this was a procedural denial of FAPE and ordered the district to fund an intensive Early Intensive Behavioral Training program for the 2008-2009 school year as compensatory education. The district's functional behavior assessment was also found inadequate, entitling parents to reimbursement for an independent evaluation. The speech-language assessment and services were upheld as appropriate.

What Happened

Student is a preschool-aged child with autism who moved with his family to Modesto during the 2007-2008 school year. The district placed Student in an autism special day class (SDC) at a local elementary school on an interim basis while assessments were completed. From the very first IEP meeting, Parents made clear they wanted Student placed in an intensive one-to-one Applied Behavior Analysis (ABA) program run by a non-public agency (NPA) — the type of 35-40 hour per week program recommended for young children with autism. The district acknowledged this type of program existed through a regional co-funding partnership, placed Student on an interest list, and promised to discuss NPA placement once assessments were complete. However, when the November 2007 IEP meeting arrived, district representatives refused to discuss NPA placement at all, repeatedly shutting down the conversation by saying the SDC was the least restrictive environment and that the discussion needed to stop there. Parents, unable to afford a private program, withdrew Student from the SDC and provided home instruction for the remainder of the school year.

Parents filed for due process, raising multiple issues including the district's refusal to consider NPA placement, the adequacy of the functional behavior assessment (FBA), the quality of the speech-language assessment, and whether they were entitled to reimbursement for an independent FBA they had obtained privately. The district filed its own due process case seeking authority to implement the IEP over Parents' objections.

What the District Did Wrong

Blocking parents from participating in placement decisions. The ALJ found that the district committed a serious procedural violation at the November 20, 2007 IEP meeting by flatly refusing to discuss NPA placement when Parents raised it. The district's special education director told the team they had to "stop there" once the SDC was identified as appropriate, effectively shutting Parents out of the most important decision in the IEP process. This violated Parents' right to meaningfully participate in placement decisions. The ALJ was clear: even if the SDC was substantively appropriate, a district cannot simply end the conversation at the placement it prefers. This procedural violation was a denial of FAPE.

Inadequate functional behavior assessment. The district's school psychologist conducted an FBA targeting biting and non-compliance, but the independent evaluator who reviewed it found significant problems: the FBA lacked sufficient observational data (you need at least three instances of a behavior to establish a pattern), did not clearly identify the function of each problem behavior, and proposed replacement behaviors that were harder for Student to perform than the problem behaviors themselves — which violates basic ABA principles. The district offered no evidence to counter these findings, so the ALJ ruled the FBA was inadequate.

What the district got right. The speech-language assessment and the speech-language services offered were upheld. The district's evaluator spent extensive time observing Student in multiple settings and used appropriate tools. A parent-hired speech-language pathologist observed Student six months later and saw him functioning higher than expected, but the ALJ explained this didn't prove the original assessment was wrong — it simply reflected Student's abilities at a different point in time.

What Was Ordered

The district must reimburse Parents $2,298.75 for the independent FBA conducted by a Board-Certified Behavior Analyst at Imagine Consulting, because the district's own FBA was inadequate.
As compensatory education for the FAPE denial, the district must fund Student's placement in an intensive Early Intensive Behavioral Training (EIBT) program delivered by a state-certified NPA for a minimum of 30 hours per week during the 2008-2009 school year, including the extended school year (ESY). The program may be in-home or center-based and must include data collection, regular staff meetings, qualified staff, aide supervision, and parent consultation.
The district may not be required to fund more than 40 hours per week; the exact hours above 30 are left to the NPA's professionals.
The IEP team must convene within 35 days of the decision to develop Student's 2008-2009 IEP consistent with this order.
Student must begin attending the NPA program within 45 days of the decision.
Parents must cooperate with scheduling, IEP development, and NPA participation requirements.

Why This Matters for Parents

Districts cannot shut down IEP discussions about placement options you request. The law requires IEP team members to come to meetings with an open mind and genuinely consider parent proposals. If a district representative ends the conversation by simply declaring their preferred placement appropriate, that is a procedural violation — even if the placement they chose might have been substantively fine.
Promises made in writing before an IEP meeting matter. The district's own special education director wrote letters to Parents promising that the upcoming IEP meeting would include a discussion of NPA services. When the district then refused to have that discussion, the ALJ specifically noted this broken promise. Keep records of every written communication from your district before IEP meetings.
An inadequate FBA can entitle you to a publicly funded independent evaluation. If your child's district conducts an FBA that doesn't clearly identify the function of problem behaviors, lacks sufficient data, or proposes replacement behaviors that are harder than the problem behavior, that assessment may not meet legal standards — and you may have grounds to request an independent FBA at district expense.
Compensatory education for a procedural violation can include prospective NPA placement. Even though the district's substantive program might have been acceptable, the procedural failure to allow parent participation resulted in an order requiring a full intensive ABA program at public expense. Procedural rights are real rights with real consequences.

What Happened

What the District Did Wrong

What Was Ordered

The district must reimburse Parents $2,298.75 for the independent FBA conducted by a Board-Certified Behavior Analyst at Imagine Consulting, because the district's own FBA was inadequate.
As compensatory education for the FAPE denial, the district must fund Student's placement in an intensive Early Intensive Behavioral Training (EIBT) program delivered by a state-certified NPA for a minimum of 30 hours per week during the 2008-2009 school year, including the extended school year (ESY). The program may be in-home or center-based and must include data collection, regular staff meetings, qualified staff, aide supervision, and parent consultation.
The district may not be required to fund more than 40 hours per week; the exact hours above 30 are left to the NPA's professionals.
The IEP team must convene within 35 days of the decision to develop Student's 2008-2009 IEP consistent with this order.
Student must begin attending the NPA program within 45 days of the decision.
Parents must cooperate with scheduling, IEP development, and NPA participation requirements.

Why This Matters for Parents

Districts cannot shut down IEP discussions about placement options you request. The law requires IEP team members to come to meetings with an open mind and genuinely consider parent proposals. If a district representative ends the conversation by simply declaring their preferred placement appropriate, that is a procedural violation — even if the placement they chose might have been substantively fine.
Promises made in writing before an IEP meeting matter. The district's own special education director wrote letters to Parents promising that the upcoming IEP meeting would include a discussion of NPA services. When the district then refused to have that discussion, the ALJ specifically noted this broken promise. Keep records of every written communication from your district before IEP meetings.
An inadequate FBA can entitle you to a publicly funded independent evaluation. If your child's district conducts an FBA that doesn't clearly identify the function of problem behaviors, lacks sufficient data, or proposes replacement behaviors that are harder than the problem behavior, that assessment may not meet legal standards — and you may have grounds to request an independent FBA at district expense.
Compensatory education for a procedural violation can include prospective NPA placement. Even though the district's substantive program might have been acceptable, the procedural failure to allow parent participation resulted in an order requiring a full intensive ABA program at public expense. Procedural rights are real rights with real consequences.