Fremont USD Ordered to Reimburse $24K After Failing to Address Autism Student's Behavior Needs

What Happened

Student is a child diagnosed with autism spectrum disorder and mental retardation who began receiving Early Start services through Regional Center of the East Bay at age two. When Student turned three, Fremont Unified School District conducted an initial special education assessment and held its first IEP meeting in October 2007. The IEP placed Student in an autism special day class (SDC) five hours a day, five days a week, with occupational therapy (OT) and speech-language services twice weekly. Although Student immediately began dropping to the floor 15 to 20 times per day at school — behaviors that witnesses agreed interfered with his learning — the District did not conduct a behavioral assessment, did not include behavioral goals in the IEP, and did not develop a behavior support plan (BSP).

In February 2008, a school aide moved Student across the floor by his backpack strap after he dropped in front of a doorway. Parent witnessed the incident and was deeply upset, withdrew Student from school that day, and never returned him to Glankler School. The District held follow-up meetings in March, April, and June 2008, offering to conduct a functional behavioral assessment (FBA) and proposing an emergency safety protocol — but never offering interim behavioral supports in the meantime. Parent ultimately placed Student privately at Pacific Autism Center for Education (PACE) and I Can Too Learning Center, then filed for due process seeking reimbursement and other relief.

What the ALJ Found

The ALJ found that the District committed several real but limited violations of FAPE. Most significantly, the District failed to assess Student in the area of behavior from the start — the behavioral assessment box in the October 2007 assessment plan was left blank, despite clear evidence that Student's tantrum and floor-dropping behaviors were related to his autism and were impeding his learning. Because a behavioral assessment must be conducted where the behavior occurs (in the SDC classroom), the ALJ calculated that behavioral goals realistically could not have been in place until approximately 75 days after Student started school — meaning the FAPE denial for missing behavioral goals and supports did not begin until late January 2008, not October 2007.

The ALJ also found that the District predetermined its position at the December 2007 IEP meeting about winter break services, failing to genuinely consider Parent's input — a procedural FAPE violation. The District also failed to deliver OT and speech-language services separately as the IEP required (instead delivering them concurrently), which materially failed to implement the IEP. After the February 2008 incident, the District's offer to return Student to the SDC without any additional behavioral supports — while the FBA was pending — also denied FAPE.

However, the ALJ rejected many of Parent's other claims. The District's speech-language and OT services were found substantively appropriate. The District was not required to conduct a Functional Analysis Assessment (FAA) — a higher California-law standard requiring a "serious behavior problem" — because Student's behaviors, while disruptive, did not meet that legal definition. The District's IEP goals (other than behavior) were found appropriate. The District did not predetermine its positions at any IEP meeting other than the December 2007 one. The IEE conducted by Parent's expert (Dr. Fineman) was denied reimbursement because it did not include a behavioral assessment — the only area where the District's own assessment was found deficient.

What Was Ordered

1. The District must reimburse Parent $24,260.50 for educational expenses at PACE and I Can Too within 45 days of the order.
2. All other claims for relief — including additional compensatory education, prospective private placement at PACE or I Can Too, and reimbursement for Dr. Fineman's independent evaluation — were denied.

Why This Matters for Parents

1. A district must assess behavior as an area of need for students with autism, even without a parent request. The ALJ found that the District should have recognized behavior as a related area of disability from the outset, given the student's documented tantrums. If your child's behaviors are interfering with learning, insist that behavior be listed as an area of assessment in writing on the assessment plan.

2. California's FAA requirement and the federal FBA requirement are different tools with different thresholds. An FAA (leading to a BIP) is only required when a student has a "serious behavior problem" as legally defined — meaning self-injury, assault, or severe property damage. For most autism-related behaviors like tantrums or floor-dropping, the District's obligation is to conduct an FBA and develop a BSP, not necessarily a full FAA/BIP. Parents should understand which tool applies to their child's situation.

3. When a district cannot yet complete a behavioral assessment, it must still offer interim supports. The ALJ found that while the District couldn't finish the FBA until the student was back in the classroom, it still had to offer some behavioral support in the meantime — such as a one-to-one aide. A "we're working on an assessment" answer is not enough if your child is in school without adequate supports right now.

4. Reimbursement for private placement can be awarded even if the private program isn't the "perfect" placement, as long as it addressed the child's needs. The ALJ reimbursed PACE and I Can Too costs despite finding the student didn't need the full intensive program recommended by Parent's expert. If a district fails to provide FAPE and you find a private program that addresses your child's needs, keep detailed records of all expenses — they may be recoverable.

5. Predetermination requires proof that the district refused to genuinely consider alternatives. The ALJ found predetermination only at one meeting (December 2007 winter break services), where staff incorrectly believed they had no legal authority to offer services. At all other meetings, the District was found to have genuinely considered Parent's input. Simply disagreeing with what the district offered is not the same as predetermination.