District Must Offer APE and OT for Student with Cerebral Palsy, But Wins on Assessments and Home Instruction

What Happened

Student was an 18-year-old with spastic diplegia cerebral palsy, a condition that severely affected his movement, balance, coordination, and fine motor skills. Despite average cognitive abilities — he had passed the California High School Exit Exam on his first try in 10th grade — Student had accumulated only 50 of the 220 credits needed to graduate, largely because anxiety, depression, and school avoidance led to 142 absences during the 2013-2014 school year. Student also experienced suicidal ideation documented by his private psychiatrist and psychologist. Neither Parent nor Student had consented to any IEP since 2007, and the district had never completed a full reassessment of Student; the last one had been done by a different district when Student was in fifth grade.

Desert Sands Unified School District filed two due process complaints — one in March 2014 and one in May 2014 — seeking orders to implement its December 2013 IEP (as amended in April 2014), its April 2014 home-hospital instruction offer, and its February 2014 triennial reassessment plan, all without Student's or Parent's consent. Student objected to the IEPs as inadequate, refused to be assessed unless he could audio-record the testing, and insisted on remaining at his current school rather than transferring to a continuation high school.

What the District Did Wrong

The ALJ found that the December 3, 2013 IEP — as amended on April 9, 2014 — denied Student a free appropriate public education (FAPE) in two key ways.

No adapted physical education (APE). The district's own assessment from November 2012 had found that Student needed APE and had been providing it. The district's APE specialist testified that Student was still making progress and still needed the service as of December 2013. Yet the December 2013 IEP team eliminated APE entirely — not because Student's needs had changed, but because staff wanted to focus on credit recovery. The ALJ found no causal link between receiving APE and Student's credit deficiency (which was caused by absences, not by attending PE), and found that dropping APE focused on accommodation rather than developing Student's independence — contrary to the purpose of special education.

No occupational therapy (OT). The district's occupational therapist found Student seriously delayed in fine motor skills and manual dexterity, yet recommended no OT services. At hearing, she admitted she would never recommend OT for a 16-year-old with cerebral palsy — regardless of test results. The ALJ found this constituted predetermined decision-making, not an individualized assessment. Her testimony was also internally inconsistent, describing Student's deficits as both "mild" and "seriously delayed." The ALJ credited Student's own testimony that OT would help him write more independently and reduce his reliance on an aide.

What Was Ordered

1. The December 3, 2013 IEP (as amended April 9, 2014) is found to have denied Student a FAPE.
2. The April 22, 2014 IEP offering home-hospital instruction constituted a FAPE and may be immediately implemented.
3. Desert Sands may conduct triennial reassessments pursuant to the February 2014 assessment plan without Student's consent.
4. Student may not audio-record any assessments.
5. Desert Sands must provide Student 14 days' written notice of the date, time, and place of each assessment.
6. If Student refuses to cooperate with the reassessment process, Desert Sands may terminate special education services upon prior written notice, without a further hearing.

Why This Matters for Parents

1. Dropping a service requires proof that needs have changed. The district had its own data showing Student needed APE — and removed it anyway based on unrelated concerns about credit recovery. If a service is in your child's IEP because it was assessed as necessary, the district cannot simply eliminate it at the next meeting without new evidence that your child no longer needs it.

2. An assessor who has already decided what they will recommend before testing is not giving your child a fair evaluation. The OT assessor in this case testified she would never recommend OT for a student with cerebral palsy at age 16 — no matter what the tests showed. That kind of blanket policy is predetermination, and the ALJ refused to accept her findings. If an evaluator seems to be reaching a conclusion before looking at your child's individual needs, you can challenge it.

3. Refusing all assessments can put your child's services at risk. If a family withholds consent for required triennial reassessments — or imposes conditions like audio-recording that invalidate the tests — a court can order the assessments to proceed. And if the student still refuses, the district can legally terminate special education services. Protecting your rights matters, but so does maintaining the district's ability to document your child's needs.

4. A student's placement preference does not override the district's authority to offer an appropriate placement. Student wanted to stay at his current school and believed he had the right to choose. The ALJ clearly stated that an IEP does not have to match a parent's or student's wishes — it has to be appropriate. If you disagree with a placement, the path forward is to show why it is inappropriate, not simply to assert a preference.