Student with Autism Denied Safe Environment at Oak Crest TAP Program

A 12-year-old student with autism, cerebral palsy, and pica transitioned from elementary school to a middle school Transitional Alternative Program (TAP) without a required one-to-one aide, resulting in three unsafe incidents in just five weeks. The ALJ found the district denied the student a FAPE by failing to provide a safe learning environment after the first incident was reported. The family prevailed on the safety issue but not on their preferred placement at their neighborhood school. The district was ordered to conduct a full reassessment and develop a new IEP with appropriate safety supports if the student returned.

What Happened

A 12-year-old student with autism, mild cerebral palsy, apraxia, ataxia, and pica had attended his neighborhood elementary school (Flora Vista) from preschool through sixth grade under an IEP that included a one-to-one aide throughout the school day, a behavior intervention plan addressing his tendency to wander toward custodial equipment and vehicles, and a strict gluten-free/casein-free diet. His family valued the community connection deeply — he walked to school with his twin brother and neighborhood friends. When he was ready to transition to middle school in District, the IEP team met twice (April and May 2015) and offered him a spot in the Transitional Alternative Program (TAP) at Oak Crest Middle School rather than the family's preferred neighborhood school, Diegueno Middle School. Parents objected, citing safety concerns about the Oak Crest campus — including an unfenced parking lot, a nearby construction site, and open access to custodial vehicles — given their son's documented attraction to machinery and tendency to wander.

When seventh grade began on August 25, 2015, the student attended the TAP program without the one-to-one aide his prior IEP required. Within five weeks, three serious safety incidents occurred: he climbed into a custodian's motorized cart and pretended to drive it; he suffered a head injury falling off a yoga ball; and a substitute teacher gave him pizza, a food his medical condition prohibited him from eating. Despite the family notifying the school principal after the first incident, the district took no steps to increase supervision or modify his environment. Parents withdrew the student from Oak Crest on October 7, 2015, and hired a private home teacher while the due process case proceeded.

What the ALJ Found

The ALJ issued a mixed ruling. The district prevailed on Issues 1 and 2 (placement process and LRE); the student prevailed on Issue 3 (unsafe learning environment during the first weeks of seventh grade).

Issues 1 & 2 — District Prevailed: Placement Process and LRE The ALJ found the district properly considered a continuum of placement options across two IEP team meetings, including the family's preferred placement at Diegueno. The evidence showed Diegueno did not have a suitable program for this student, and the district was not required to create a brand-new highly individualized program there when an appropriate program (TAP) already existed at Oak Crest. The family's expert, though experienced, had never visited Diegueno and had not conducted any standardized testing of the student, which undermined the weight of her recommendations. Proximity to the neighborhood school is a factor to consider, but not a legal presumption — the district was not obligated to place the student at his neighborhood school if no appropriate program existed there.

Issue 3 — Student Prevailed: Unsafe Learning Environment

No one-to-one aide was provided. The operative IEP (from Encinitas, dated March 5, 2015) required a one-to-one aide throughout the school day. District instead provided shared "program instructional aides" who worked with the whole class, not the student individually. District never amended the IEP to remove the one-to-one aide requirement before the school year started.
Three safety incidents went unaddressed. After the student climbed into a custodial cart on September 11, 2015, the principal was notified but took no concrete action — no alternate route to art class, no increase in supervision, no communication with the teacher. Two additional incidents (head injury from a yoga ball, prohibited food given by a substitute) followed.
District had all the information it needed. The student's known behaviors — attraction to vehicles and machinery, elopement risk, dietary restrictions — were documented in his prior IEP and behavior plan. District was aware of these needs and failed to translate them into adequate safety measures during the transition.
Reimbursement for private home teacher was denied. Parents hired a private teacher after withdrawing their son, but offered no evidence about what the teacher did, how many hours were worked, or what progress the student made. Without that evidence, reimbursement could not be awarded.
Placement at Diegueno as a remedy was denied. Even though the student prevailed on the safety issue, the ALJ found no evidence that Diegueno would have been safer or more appropriate, so the family's requested remedy of placement there was not granted.

What Was Ordered

Issues 1 and 2: All of the student's requests for relief on the placement process and LRE issues were denied.
Comprehensive reassessment: If parents choose to re-enroll the student in the district, the district must begin assessing the student in all areas of suspected disability within 15 days of re-enrollment. The assessment must include standardized cognitive testing (no standardized testing had been administered in over five years).
New IEP team meeting: Upon completion of assessments, the district must convene an IEP team meeting within the statutory timeframe to review results and develop a new IEP that includes appropriate services and supports in a safe educational environment.
Temporary one-to-one aide: If the student returns to a district school before assessments are completed, the district must immediately provide a one-to-one adult assistant throughout the entire school day to ensure his safety — until a new IEP is in place.
Reimbursement for private teacher: Denied. No sufficient evidence was presented to support this claim.
Placement at Diegueno: Denied. The ALJ found no evidence it would be an appropriate or safer placement.

Why This Matters for Parents

Your child's current IEP travels with them — even during a school transition. When a student moves from one district to another (or from elementary to middle school in a new district), the existing IEP remains legally binding until a new one is developed and agreed upon. The district could not simply swap out a one-to-one aide for shared aides without amending the IEP. If your child has specific supports in their IEP, document whether those supports are actually being provided on Day One of the new school year.
Report safety incidents in writing immediately — and demand a written response. The parent in this case called and emailed the principal after her son climbed into a custodial cart. The principal spoke to the aide but took no further action. Had the parent followed up in writing demanding specific safety changes (a different walking route, increased supervision, a formal IEP amendment), there would have been a documented record of the district's failure to respond. Always follow up verbal reports with a written email or letter and ask for a written plan of action.
A district does not have to place your child at the neighborhood school if no appropriate program exists there — but it must actually look. The law requires districts to consider whether your child can attend their neighborhood school, but it does not guarantee that placement. What matters is whether an appropriate program is available there. If your district says the neighborhood school "doesn't have the right program," ask them to explain specifically what program elements are missing and whether those could be added — and get that explanation in writing.
If you unilaterally place your child privately, you must document everything to recover costs. Parents who remove their child from a district program and hire private services may be entitled to reimbursement — but only if they can prove the private placement was appropriate and their child made meaningful progress. Keep detailed records: the teacher's or provider's credentials, session logs, hours worked, invoices paid, and evidence of your child's progress. Without that documentation, a judge cannot award reimbursement even if the district was clearly in the wrong.
Outdated assessments weaken your case and your child's program. In this case, no standardized cognitive testing had been done in over five years, which limited what the IEP team actually knew about the student's abilities and needs. Outdated or incomplete assessments also undercut expert witnesses who rely on them. Parents have the right to request a new assessment at any time if they believe the existing one no longer reflects their child's needs. If a district refuses, parents can request an Independent Educational Evaluation (IEE) at district expense.

What Happened

What the ALJ Found

Issue 3 — Student Prevailed: Unsafe Learning Environment

No one-to-one aide was provided. The operative IEP (from Encinitas, dated March 5, 2015) required a one-to-one aide throughout the school day. District instead provided shared "program instructional aides" who worked with the whole class, not the student individually. District never amended the IEP to remove the one-to-one aide requirement before the school year started.
Three safety incidents went unaddressed. After the student climbed into a custodial cart on September 11, 2015, the principal was notified but took no concrete action — no alternate route to art class, no increase in supervision, no communication with the teacher. Two additional incidents (head injury from a yoga ball, prohibited food given by a substitute) followed.
District had all the information it needed. The student's known behaviors — attraction to vehicles and machinery, elopement risk, dietary restrictions — were documented in his prior IEP and behavior plan. District was aware of these needs and failed to translate them into adequate safety measures during the transition.
Reimbursement for private home teacher was denied. Parents hired a private teacher after withdrawing their son, but offered no evidence about what the teacher did, how many hours were worked, or what progress the student made. Without that evidence, reimbursement could not be awarded.
Placement at Diegueno as a remedy was denied. Even though the student prevailed on the safety issue, the ALJ found no evidence that Diegueno would have been safer or more appropriate, so the family's requested remedy of placement there was not granted.

What Was Ordered

Issues 1 and 2: All of the student's requests for relief on the placement process and LRE issues were denied.
Comprehensive reassessment: If parents choose to re-enroll the student in the district, the district must begin assessing the student in all areas of suspected disability within 15 days of re-enrollment. The assessment must include standardized cognitive testing (no standardized testing had been administered in over five years).
New IEP team meeting: Upon completion of assessments, the district must convene an IEP team meeting within the statutory timeframe to review results and develop a new IEP that includes appropriate services and supports in a safe educational environment.
Temporary one-to-one aide: If the student returns to a district school before assessments are completed, the district must immediately provide a one-to-one adult assistant throughout the entire school day to ensure his safety — until a new IEP is in place.
Reimbursement for private teacher: Denied. No sufficient evidence was presented to support this claim.
Placement at Diegueno: Denied. The ALJ found no evidence it would be an appropriate or safer placement.

Why This Matters for Parents

Your child's current IEP travels with them — even during a school transition. When a student moves from one district to another (or from elementary to middle school in a new district), the existing IEP remains legally binding until a new one is developed and agreed upon. The district could not simply swap out a one-to-one aide for shared aides without amending the IEP. If your child has specific supports in their IEP, document whether those supports are actually being provided on Day One of the new school year.
Report safety incidents in writing immediately — and demand a written response. The parent in this case called and emailed the principal after her son climbed into a custodial cart. The principal spoke to the aide but took no further action. Had the parent followed up in writing demanding specific safety changes (a different walking route, increased supervision, a formal IEP amendment), there would have been a documented record of the district's failure to respond. Always follow up verbal reports with a written email or letter and ask for a written plan of action.
A district does not have to place your child at the neighborhood school if no appropriate program exists there — but it must actually look. The law requires districts to consider whether your child can attend their neighborhood school, but it does not guarantee that placement. What matters is whether an appropriate program is available there. If your district says the neighborhood school "doesn't have the right program," ask them to explain specifically what program elements are missing and whether those could be added — and get that explanation in writing.
If you unilaterally place your child privately, you must document everything to recover costs. Parents who remove their child from a district program and hire private services may be entitled to reimbursement — but only if they can prove the private placement was appropriate and their child made meaningful progress. Keep detailed records: the teacher's or provider's credentials, session logs, hours worked, invoices paid, and evidence of your child's progress. Without that documentation, a judge cannot award reimbursement even if the district was clearly in the wrong.
Outdated assessments weaken your case and your child's program. In this case, no standardized cognitive testing had been done in over five years, which limited what the IEP team actually knew about the student's abilities and needs. Outdated or incomplete assessments also undercut expert witnesses who rely on them. Parents have the right to request a new assessment at any time if they believe the existing one no longer reflects their child's needs. If a district refuses, parents can request an Independent Educational Evaluation (IEE) at district expense.