Cupertino District Prevails: Parent Filed Too Early Before IEP Process Was Complete

What Happened

Student is a 10-year-old boy with regressive autism and an intellectual disability who moved with his family from India to the Cupertino Union School District in late 2010. He was placed in a special day class (SDC) for students with moderate to severe disabilities. His IEP included a behavior goal focused on helping him handle objects appropriately and reduce grabbing, biting, and hair-pulling behaviors. Parents had strong disagreements with the District about its educational approach — particularly its refusal to provide one-on-one ABA therapy using discrete trial training (DTT), both during and after school. This dispute had already been litigated in a prior OAH hearing in late 2011, in which the District prevailed on all issues.

In this second case, Parents raised two new claims. First, they argued the District materially failed to implement Student's behavior goal because Student had not achieved it and his behaviors had regressed by early 2012. Second, they argued that at the February 16, 2012 IEP team meeting, District staff had not read a private evaluation report by Dr. Damon Korb that Parents had submitted two weeks in advance, which they claimed amounted to predetermination and a denial of meaningful parental participation. Parents privately enrolled Student in ABA services through CARD (Center for Autism and Related Disorders) at 25 hours per week and sought reimbursement, as well as funding for a private autism placement going forward.

What the ALJ Found

On the behavior goal: The ALJ found that Student could not relitigate whether the District implemented his behavior goal through November 2011, because that issue had already been decided in the prior OAH case. The prior decision found Student made adequate progress on his goals, which implicitly meant the goal was being implemented. For the period after the prior hearing, the ALJ found that while Student experienced some behavioral regression in the SDC in early 2012, he showed continued progress in speech therapy and occupational therapy sessions. The teacher credibly testified that she used ABA strategies daily — including positive reinforcement, redirection, and sensory supports — and the ALJ found her testimony persuasive. The ALJ also noted that Parents had declined the District's April 2011 offer of behavioral consultation and parent training, which limited the consistency of supports across home and school settings. Student's regression alone did not prove a material failure to implement the goal.

On the private evaluation and predetermination: The ALJ found that the District made a genuine administrative mistake — the Korb report was not distributed to IEP team members before the meeting because of a miscommunication between staff. However, when this was discovered during the meeting, the District offered three options to fix it, including stopping and rescheduling. Parents chose to continue the meeting and review the report together in real time. More importantly, the IEP team never finished the meeting — it ran out of time before reaching the agenda item for a formal offer of placement and services. All parties agreed to continue the meeting at a later date. Parents filed their hearing request just six days later, before the IEP process was complete and before any formal offer had been made. The ALJ held that without a formal offer, there was no ripe or actionable dispute — meaning the case was filed too soon.

What Was Ordered

1. Student's requests for relief were denied in their entirety.
2. The District was not required to fund placement at a private autism agency.
3. The District was not required to fund 25 hours per week of ABA services.
4. No reimbursement was ordered for ABA expenses already incurred by Parents through CARD.

Why This Matters for Parents

1. Filing a due process hearing before the IEP process is finished can be fatal to your case. In this case, the IEP team meeting was not complete — no formal offer had been made — when Parents filed their complaint six days later. The ALJ ruled the case was not "ripe," meaning there was no real dispute yet to decide. If you believe the District is heading in the wrong direction, push to complete the IEP process first so you have an actual offer to challenge.

2. A prior OAH decision on the same issues can block you from raising them again. The legal doctrine of collateral estoppel prevented the family from re-arguing whether the District implemented the behavior goal during the period already covered by the 2011 hearing. If you lose a due process case, future hearings may be limited to events that happened after the prior decision.

3. Refusing District-offered services — like behavioral consultation and parent training — can count against you. The ALJ noted that Parents declined the District's April 2011 offer to provide ABA consultation and coordinate home-school strategies. This refusal was cited as a reason why Student may not have made consistent progress, weakening the parent's argument that the District was at fault.

4. A procedural mistake at an IEP meeting does not automatically mean a FAPE violation. The District clearly erred by not distributing Dr. Korb's report before the meeting. But because the District immediately offered to fix the mistake, team members read the report during the meeting, and the team agreed to continue discussions, the ALJ found the violation was cured. Procedural errors matter most when they prevent parents from meaningfully participating — not when the district catches and corrects them in real time.