Cupertino District Predetermines IEP and Fails to Implement Home-Hospital Services for Student with Autism

An eleven-year-old student with autism brought two due process complaints against Cupertino Union School District. The ALJ found that the District violated FAPE by issuing a predetermined IEP offer by letter in March 2012 without completing the IEP team meeting, and by materially failing to implement the home-hospital instruction and related services it had agreed to provide in August 2012. The District was ordered to provide extensive compensatory education including ABA therapy, special education teaching, speech-language services, and occupational therapy, delivered during extended school year periods.

What Happened

Student is an eleven-year-old boy with a diagnosis of regressive autism, eligible for special education since February 2011. He was placed in a moderate-to-severely handicapped special day class (SDC) at his elementary school. In April 2012, Student began experiencing serious seizure activity — including a seizure on the school bus — and his Parents removed him from school while he adjusted to new anti-seizure medication. This case involved two consolidated complaints covering three main disputes: whether the District illegally predetermined its IEP offer in March 2012; whether it wrongly refused to place Student on home-hospital instruction in May 2012; and whether it failed to deliver the home-hospital services it had formally agreed to provide starting in August 2012.

The District had begun an annual IEP meeting in February 2012 but never finished it — goals were incomplete, an outside evaluation from a developmental pediatrician had not been reviewed, and no placement offer had been made. When Parents (mistakenly believing that a pending due process complaint required "stay put" and prevented further IEP meetings) declined to return for a continuation meeting, the District responded not by holding the meeting without them, but by sending Parents a letter in March 2012 with a completed IEP attached — written without a proper team meeting. Later, after Student's seizures worsened over the summer of 2012, the District agreed in an August 2012 IEP amendment to provide home-hospital instruction and related services. It then largely failed to deliver those services.

What the District Did Wrong

Predetermination of the March 2012 IEP: Rather than scheduling and holding an IEP team meeting to complete the February 2012 IEP — even if Parents chose not to attend — the District's special education coordinator unilaterally assembled a placement offer and mailed it to Parents as a done deal. The speech-language therapist was simply asked to enter her recommendation into a computer system with no team discussion. The classroom teacher was not consulted at all. The occupational therapist was only asked to "approve" a pre-selected service level. The ALJ found this was a textbook case of predetermination — a "take-it-or-leave-it" offer made outside any IEP team process — that denied Student FAPE from March 29 through May 31, 2012.

Failure to implement the August 2012 home-hospital IEP amendment: After the District agreed in writing to provide home-hospital instruction and related services starting in August 2012, it failed to deliver them. There was no teaching in September or October 2012. Services were completely cut off in January 2013 and not resumed until mid-February. Student received fewer than three hours of speech-language therapy when he was entitled to an hour per week. The occupational therapist failed to consult with Student's actual teacher at any point — a legal requirement under home-hospital rules — which the ALJ found invalidated the OT consultation for the entire period. Taken together, the ALJ found these failures were material and denied Student FAPE from September 10, 2012 through March 28, 2013.

What the District won: The ALJ ruled in the District's favor on the May 31, 2012 home-hospital issue. To place a student on home-hospital instruction, the law requires a physician's report stating the diagnosed condition and certifying that the student cannot attend a less restrictive setting. At the time of that IEP meeting, Parents had not provided a compliant doctor's note. Without it, the District was not required to offer home-hospital placement, and Parents' request was legally unsupported.

What Was Ordered

The District must provide 167 days of ABA therapy (3 hours per day), delivered by the same ABA provider Parents use for their insurance-based services, including all required supervisory and clinic hours.
The District must provide 167 days of home instruction (1 hour per day, combinable to 5 hours per week) from a credentialed special education teacher who must consult with Student's SDC teacher.
The District must provide 68 hours of individual speech-language therapy (2 hours per week for 34 weeks), delivered in the home.
The District must provide 34 hours of individual occupational therapy plus 15 minutes per week of OT consultation for 34 weeks.
All compensatory services are to be delivered during extended school year (ESY) periods, beginning no later than July 25, 2013, and continuing through subsequent ESY periods until completed.
These services do not expire if Student moves out of the District or ages out before completion.

Why This Matters for Parents

A district cannot skip the IEP meeting just because a parent refuses to attend. If a parent declines to come to an IEP meeting — even for the wrong reasons — the district still must hold the meeting with the rest of the team, send proper notice, and give the parent one last chance to show up. Mailing a completed IEP by letter is never a legal substitute for an actual team meeting.
Disagreeing with the district's procedures does not mean you have to stop participating. In this case, Parents mistakenly believed "stay put" meant no IEP meeting could be held while a complaint was pending. That misunderstanding, while understandable, allowed the District to argue Parents were uncooperative. If you have concerns about the process, consult a special education advocate or attorney before declining to attend an IEP meeting.
To place your child on home-hospital instruction, you need a qualifying doctor's note — and it must say specific things. California law requires a physician's written report stating the diagnosed condition and certifying that the condition prevents the student from attending a less restrictive setting. A general excuse note or a hospital discharge form is not enough. Get this documentation before or during the IEP meeting where you request home-hospital placement.
When a district agrees to provide services in an IEP, it is legally bound to actually deliver them. A signed IEP amendment is a legal commitment. In this case the District's repeated failures to provide agreed-upon teaching, therapy, and consultation — taken together — amounted to a denial of FAPE even though any single gap might have been excused. Keep detailed records of every session provided and every session missed.
Compensatory education is based on your child's individual needs, not just a simple hour-for-hour calculation. The ALJ awarded more intensive services than Student's IEP had previously specified because Student's severe needs demanded it. When seeking compensatory education, document your child's current skill levels and regression — this evidence directly shapes what a hearing officer can order.

What Happened

What the District Did Wrong

What Was Ordered

The District must provide 167 days of ABA therapy (3 hours per day), delivered by the same ABA provider Parents use for their insurance-based services, including all required supervisory and clinic hours.
The District must provide 167 days of home instruction (1 hour per day, combinable to 5 hours per week) from a credentialed special education teacher who must consult with Student's SDC teacher.
The District must provide 68 hours of individual speech-language therapy (2 hours per week for 34 weeks), delivered in the home.
The District must provide 34 hours of individual occupational therapy plus 15 minutes per week of OT consultation for 34 weeks.
All compensatory services are to be delivered during extended school year (ESY) periods, beginning no later than July 25, 2013, and continuing through subsequent ESY periods until completed.
These services do not expire if Student moves out of the District or ages out before completion.

Why This Matters for Parents

A district cannot skip the IEP meeting just because a parent refuses to attend. If a parent declines to come to an IEP meeting — even for the wrong reasons — the district still must hold the meeting with the rest of the team, send proper notice, and give the parent one last chance to show up. Mailing a completed IEP by letter is never a legal substitute for an actual team meeting.
Disagreeing with the district's procedures does not mean you have to stop participating. In this case, Parents mistakenly believed "stay put" meant no IEP meeting could be held while a complaint was pending. That misunderstanding, while understandable, allowed the District to argue Parents were uncooperative. If you have concerns about the process, consult a special education advocate or attorney before declining to attend an IEP meeting.
To place your child on home-hospital instruction, you need a qualifying doctor's note — and it must say specific things. California law requires a physician's written report stating the diagnosed condition and certifying that the condition prevents the student from attending a less restrictive setting. A general excuse note or a hospital discharge form is not enough. Get this documentation before or during the IEP meeting where you request home-hospital placement.
When a district agrees to provide services in an IEP, it is legally bound to actually deliver them. A signed IEP amendment is a legal commitment. In this case the District's repeated failures to provide agreed-upon teaching, therapy, and consultation — taken together — amounted to a denial of FAPE even though any single gap might have been excused. Keep detailed records of every session provided and every session missed.
Compensatory education is based on your child's individual needs, not just a simple hour-for-hour calculation. The ALJ awarded more intensive services than Student's IEP had previously specified because Student's severe needs demanded it. When seeking compensatory education, document your child's current skill levels and regression — this evidence directly shapes what a hearing officer can order.