District Failed to Offer Home Instruction During Surgeries, Owes 105 Hours of Tutoring

A student with spina bifida and orthopedic impairments missed nearly six months of school due to two separate foot surgeries, and Tehachapi Unified School District never properly offered him home hospital instruction either time. The ALJ found this was a procedural violation that denied the student a FAPE, ordering 105 hours of compensatory tutoring. The district prevailed on a second claim that the student's IEPs failed to address his mobility and access needs on campus.

What Happened

Student is a child with spina bifida, hydrocephalus, Arnold-Chiari malformation, and bilateral club foot. He uses a walker, foot orthoses, and a ventriculo-peritoneal shunt to manage his conditions. He is eligible for special education under the category of orthopedic impairment and has average to above-average cognitive functioning. Student transferred into Tehachapi Unified School District from New York and was initially placed in a special day pre-kindergarten class.

Student underwent two separate surgeries on his feet — one in October 2013 and another in October 2014 — each requiring him to be out of school for weeks before and after the procedures. In both instances, the district was aware in advance that Student would miss significant school time. Neither time did the district make a proper written offer of home hospital instruction, which is a service California law requires districts to offer when a student with disabilities misses more than five consecutive school days due to a medical condition. Parent also raised concerns that Student's IEPs failed to adequately address his mobility needs, including access to the changing table, campus, classroom, playground, and school bus.

What the ALJ Found

The ALJ found that the district violated the IDEA on both home instruction claims. Under California law, when a student with exceptional needs misses more than five consecutive school days due to a health condition, the district must inform the parent of the availability of home instruction and convene an IEP team to determine appropriate services. The district knew as early as September 2013 that Student would undergo surgery and miss at least six weeks of school — yet it never made a written offer of home instruction. The district argued it made a verbal offer at an October 31, 2013 IEP meeting that Parent declined, but the ALJ found this claim not credible: the IEP form had a specific checkbox for home/hospital instruction that was left blank, the school psychologist herself said she could not confirm the offer was made, and the district's key witness had serious credibility problems due to poor memory.

For the fall 2014 surgery, the district attempted to avoid responsibility by claiming Parent had voluntarily withdrawn Student from school after a phone call to the school secretary. The ALJ rejected this argument. The record showed Parent consistently sought to complete an IEP meeting and stated in writing that she had not withdrawn Student. The district's own school psychologist immediately questioned whether the withdrawal was genuine and advised getting written confirmation — advice the district's special education director claimed she didn't read for nearly a week due to a family birthday. The ALJ found the district's position unworthy of belief.

On the mobility and access claims, however, the district prevailed. The ALJ applied the "snapshot rule," which means IEPs are judged based on what the team knew at the time the IEP was written — not in hindsight. The ALJ found that the district's IEPs appropriately addressed Student's mobility needs through aide support and physical therapy. Specific complaints about the play kitchen, wood chips on the playground, and lack of adapted tricycles were either not raised with the IEP team at the right time or not proven to have denied Student access to his education.

What Was Ordered

District must provide 105 hours of academic tutoring as compensatory education, calculated at five hours per week for the 21 weeks Student was improperly denied home instruction (deducting one week from each absence period since the duty to offer home instruction only triggers after five missed days).
Tutoring must be provided by a District special education teacher or, if unavailable, a certified non-public agency of Parent's choosing.
If District uses a non-public agency, it must reimburse Parent for round-trip mileage at the then-current federal reimbursement rate.
Services may be used during school breaks and must be used by June 23, 2017.
Student's requests for relief on the mobility and access claims (Issue 2) were denied.

Why This Matters for Parents

Districts must proactively offer home hospital instruction in writing — not just mention it. California law requires a written offer when a student with disabilities misses more than five consecutive school days for medical reasons. A vague email saying it "might be helpful to talk" or an undocumented verbal mention at a meeting does not satisfy this obligation. If your child is missing school for surgery or illness, put your request in writing and ask the district to respond in writing.
A school secretary's phone call cannot substitute for a formal withdrawal. The district tried to claim Student had been dis-enrolled based on a single phone call to a school secretary. The ALJ rejected this because there was no written withdrawal request and Parent's emails consistently showed she intended for Student to remain enrolled. Always follow up verbal communications with an email to create a clear written record of your actual intent.
Document everything — the district's own failure to document hurt its case. The district claimed it verbally offered home instruction at an IEP meeting, but because the checkbox on the IEP form was left blank and no meeting notes reflected the offer, the ALJ found it didn't happen. The lesson cuts both ways: parents should also keep their own notes and follow up meetings with a written summary of what was (and was not) discussed.
IEPs are judged on what the team knew at the time, not what problems emerged later. The ALJ applied the "snapshot rule" to dismiss several of Parent's access claims because the specific problems — like the play kitchen and wood chips — were not clearly raised as access barriers at the IEP meeting when the plan was written. If you have concerns about your child's ability to physically access parts of the school environment, raise them explicitly at the IEP meeting and make sure they are recorded in the meeting notes.

What Happened

What the ALJ Found

What Was Ordered

District must provide 105 hours of academic tutoring as compensatory education, calculated at five hours per week for the 21 weeks Student was improperly denied home instruction (deducting one week from each absence period since the duty to offer home instruction only triggers after five missed days).
Tutoring must be provided by a District special education teacher or, if unavailable, a certified non-public agency of Parent's choosing.
If District uses a non-public agency, it must reimburse Parent for round-trip mileage at the then-current federal reimbursement rate.
Services may be used during school breaks and must be used by June 23, 2017.
Student's requests for relief on the mobility and access claims (Issue 2) were denied.

Why This Matters for Parents

Districts must proactively offer home hospital instruction in writing — not just mention it. California law requires a written offer when a student with disabilities misses more than five consecutive school days for medical reasons. A vague email saying it "might be helpful to talk" or an undocumented verbal mention at a meeting does not satisfy this obligation. If your child is missing school for surgery or illness, put your request in writing and ask the district to respond in writing.
A school secretary's phone call cannot substitute for a formal withdrawal. The district tried to claim Student had been dis-enrolled based on a single phone call to a school secretary. The ALJ rejected this because there was no written withdrawal request and Parent's emails consistently showed she intended for Student to remain enrolled. Always follow up verbal communications with an email to create a clear written record of your actual intent.
Document everything — the district's own failure to document hurt its case. The district claimed it verbally offered home instruction at an IEP meeting, but because the checkbox on the IEP form was left blank and no meeting notes reflected the offer, the ALJ found it didn't happen. The lesson cuts both ways: parents should also keep their own notes and follow up meetings with a written summary of what was (and was not) discussed.
IEPs are judged on what the team knew at the time, not what problems emerged later. The ALJ applied the "snapshot rule" to dismiss several of Parent's access claims because the specific problems — like the play kitchen and wood chips — were not clearly raised as access barriers at the IEP meeting when the plan was written. If you have concerns about your child's ability to physically access parts of the school environment, raise them explicitly at the IEP meeting and make sure they are recorded in the meeting notes.