District Wins: OT During ESY Not Required When Student Functions at Grade Level

A parent of a seven-year-old with autism filed a due process complaint against Paso Robles Joint Unified School District, arguing that the district's 2014 extended school year (ESY) program denied FAPE by not including direct occupational therapy services. The ALJ found that the student's fine motor and sensory processing needs were being adequately met through classroom supports and consultation, and that the student had not demonstrated a pattern of regression in OT-related areas that would require direct services during ESY. The parent's request for direct occupational therapy during ESY was denied.

What Happened

Student is a seven-year-old with autism and a secondary eligibility of speech and language impairment who was in first grade at Paso Robles Joint Unified School District. He had a history of needs in academics, communication, fine motor skills, and behavior, and received a range of supports including a one-to-one aide, direct occupational therapy (OT) during the school year, and ESY services focused on social skills and academics. Parent signed the 2013-2014 IEP but disagreed with one part: the district's decision not to include direct occupational therapy in the 2014 summer ESY program. Parent believed Student needed direct OT during ESY to prevent regression in fine motor skills and to address sensory processing issues that she felt caused him to be inattentive and to have toileting accidents at school.

The district's position was based primarily on the opinion of Student's current occupational therapist, who provided direct OT during the school year for fine motor skills and monthly consultation to classroom staff for sensory needs. The occupational therapist believed Student's needs could be addressed during ESY through consultation with ESY staff before the program began, by providing appropriate materials and fidgets to the ESY classroom, and by sending home materials for Student to use over the summer to maintain fine motor skills. No direct OT sessions were included in the ESY offer.

What the ALJ Found

The ALJ sided with the district on every point. The two expert witnesses Parent brought — an occupational therapist in private practice and a clinical psychologist — were both found to lack credibility on this issue. The private OT's assessment was based on a medical rather than educational model, and she admitted at hearing that she did not have enough information to opine that Student needed OT during ESY. The psychologist was not an OT and was not qualified to give opinions on sensory processing; she also relied heavily on Parent's account of Student's difficulties rather than any school-based observations.

The ALJ found that the school's occupational therapist and first-grade teacher gave credible, consistent testimony that Student's handwriting was at or above grade level, that he did not show signs of sensory dysregulation in the school setting, and that his occasional inattentiveness was no greater than that of other children in the class. The ALJ also found no evidence that Student had failed to benefit from ESY in prior summers when no OT was provided, and that although there was some indication of regression in 2012 after a missed ESY OT session, Student had fully recouped those skills by fall. The ALJ concluded that Student did not meet his burden of proving he would regress in OT-related areas without direct services during the 20-day ESY program.

What Was Ordered

Student's request for direct occupational therapy services during the 2014 ESY program was denied.
The district was found to be the prevailing party on the only issue presented.

Why This Matters for Parents

School-based observations carry significant weight. The ALJ gave much more weight to testimony from Student's actual teacher and school occupational therapist — people who observed him regularly in the school environment — than to private evaluators who never visited the classroom or spoke with school staff. If you are seeking a related service like OT during ESY, make sure your evaluators have school-based information, not just parent reports and clinic-based testing.
The burden of proof is on the parent when you file the complaint. Because Parent filed this case, Parent had to prove — with evidence — that Student would regress without OT during ESY and that he would be unable to recoup those skills when school resumed. General statements that children with autism need ESY, or a private recommendation for more services, are not enough on their own.
Past ESY history matters. The ALJ looked closely at what happened in prior summers. Because Student had received ESY without OT in 2012 and 2013 and there was no evidence he failed to benefit, those years worked against Parent's argument. If your child has shown clear regression in a specific area after a break without services, documenting that regression thoroughly — ideally with data from both school staff and outside evaluators — is critical.
Consultation services are not the same as direct services, but they may be enough. The district offered to consult with ESY staff and provide materials for home use rather than providing direct OT sessions. The ALJ found this sufficient given the evidence. Parents should ask specifically what consultation will look like and how often it will occur — and if a child's needs are more significant, gather evidence showing why consultation alone is inadequate.

What Happened

What the ALJ Found

What Was Ordered

Student's request for direct occupational therapy services during the 2014 ESY program was denied.
The district was found to be the prevailing party on the only issue presented.

Why This Matters for Parents

School-based observations carry significant weight. The ALJ gave much more weight to testimony from Student's actual teacher and school occupational therapist — people who observed him regularly in the school environment — than to private evaluators who never visited the classroom or spoke with school staff. If you are seeking a related service like OT during ESY, make sure your evaluators have school-based information, not just parent reports and clinic-based testing.
The burden of proof is on the parent when you file the complaint. Because Parent filed this case, Parent had to prove — with evidence — that Student would regress without OT during ESY and that he would be unable to recoup those skills when school resumed. General statements that children with autism need ESY, or a private recommendation for more services, are not enough on their own.
Past ESY history matters. The ALJ looked closely at what happened in prior summers. Because Student had received ESY without OT in 2012 and 2013 and there was no evidence he failed to benefit, those years worked against Parent's argument. If your child has shown clear regression in a specific area after a break without services, documenting that regression thoroughly — ideally with data from both school staff and outside evaluators — is critical.
Consultation services are not the same as direct services, but they may be enough. The district offered to consult with ESY staff and provide materials for home use rather than providing direct OT sessions. The ALJ found this sufficient given the evidence. Parents should ask specifically what consultation will look like and how often it will occur — and if a child's needs are more significant, gather evidence showing why consultation alone is inadequate.