District Wins: In-School Behavior Support and No ESY Upheld for Student with Autism

What Happened

Student was a 12-year-old girl with autism attending sixth grade in a general education setting at Manhattan Beach Middle School. She was bright and hardworking — earning a 3.91 GPA and ranking in the top 97 out of 457 students — but she struggled with social skills, reading non-verbal cues, staying on task, and navigating peer relationships in the complex middle school environment. She had previously been served under a settlement agreement that included a private non-public agency (NPA) providing behavior intervention case management (BICM) supervision at school and at home, plus a six-hour-per-week home behavior program.

When the settlement agreement expired in late 2011, the district held an IEP meeting and offered to continue Student's full-time teacher support assistant (TSA) in school, but proposed that its own BCBA — rather than the private NPA — would supervise the behavior program for four hours per month. The district did not offer a home behavior program or extended school year (ESY) services for summer 2012. Parents disagreed, arguing Student needed the private NPA supervisor, a six-hour weekly home program, and ESY to prevent social skills regression over the summer. The district filed for due process to confirm its IEP was appropriate.

What the ALJ Found

The ALJ ruled entirely in the district's favor on both disputed issues.

On behavior services: The ALJ found the district's offer of a full-time TSA supervised by its own BCBA four hours per month was appropriate and provided Student a FAPE. The district's behaviorist, Ms. Cheng, was highly credentialed (BCBA with 18+ years of experience), had observed Student, reviewed all behavioral data collected by the private NPA, and worked collaboratively with the NPA to develop Student's nine behavioral goals. The ALJ found that all nine goals could be meaningfully addressed during the school day in the school setting — the very setting where Student needed to practice and generalize her social skills. There was no evidence that a home behavior program was clinically necessary, as Student's behavioral challenges were primarily in peer interactions at school, not at home. Critically, even the parents' own private providers never criticized Ms. Cheng's qualifications or disputed her ability to provide the supervision.

On predetermination: Parents argued the IEP was illegitimately "predetermined" because the district arrived with draft goals already written. The ALJ rejected this, noting that preparing draft goals in advance is legally permissible — what matters is whether parents had a genuine opportunity to participate. Here, parents attended both IEP meetings, brought their private providers, had their input incorporated into the final goals, expressed disagreement, and requested revisions. The draft goals were actually revised at the meeting based on the NPA supervisor's input.

On ESY: The ALJ found the district was not required to offer summer ESY services because the evidence did not show Student would significantly regress without them. Multiple educators — Student's special education teacher, general education teacher, speech therapist, and school psychologist — all testified credibly that Student's academic and social skills were strong enough that a summer break would not cause meaningful regression. The parents themselves acknowledged they were not seeking a traditional academic ESY program, but rather an aide to accompany Student to a summer camp of their choosing — a request that exceeded what FAPE requires.

What Was Ordered

1. The district's November 2, 2011 and June 7, 2012 IEPs were found to offer Student a FAPE.
2. The district was authorized to implement both IEPs without parental consent.
3. Student's requests for NPA behavior supervision, a home behavior program, and ESY services were denied.

Why This Matters for Parents

1. A district can replace a private NPA with its own qualified staff, as long as that staff is genuinely qualified. The law does not require districts to use parents' preferred providers. What matters is whether the district's own personnel have the credentials and capacity to deliver appropriate services. If your district proposes switching providers, ask specifically about the qualifications and availability of the proposed staff member — and get that in writing.

2. Preparing draft IEP goals in advance is not predetermination — but a "take it or leave it" attitude is. Districts are allowed to come to IEP meetings with proposals already drafted. What they cannot do is refuse to consider parent input or treat the meeting as a formality. Document your participation carefully: bring your own providers, submit written concerns, and make sure your input is reflected in the IEP notes.

3. ESY is not a substitute for summer activities or community-based social opportunities. ESY is legally required only when a student is likely to significantly regress over the summer and cannot recoup lost skills in a reasonable time. If your child is performing well academically and socially, and teachers credibly believe skills will hold over the summer, ESY may not be legally required — even if your child has autism and social challenges.

4. Expert reports that are never presented to the IEP team carry very little weight in a hearing. Parents obtained a neuropsychologist's report supporting their position, but because the report was written after the hearing was filed and was never shared at an IEP meeting, the ALJ gave it almost no weight. If you have an independent evaluation or outside report, present it to the IEP team before or during the IEP meeting — not just at a hearing.