District Must Provide Eye-Tracking Device After Successful Trial, But Wins on Most Other Claims

A student with severe cerebral palsy and intellectual disabilities won a partial victory after Capistrano Unified School District conducted a successful trial of an eye-tracking communication device in May 2013 but failed to provide the device for over two years. The ALJ found this delay denied the student a free appropriate public education and ordered 21 hours of assistive technology training and funding for a follow-up communication assessment. The district prevailed on all other claims, including occupational therapy, physical therapy, speech-language services, vision assessment, and placement.

What Happened

Student was a 10-year-old fourth grader with severe orthopedic and intellectual disabilities resulting from a birth injury that caused brain damage, spastic quadriplegia, cerebral palsy, dystonia, and sensory integration deficits. Student required a one-on-one aide for all daily living activities, used a wheelchair for mobility, and could not communicate reliably without assistive technology. Student attended a special day class for severely handicapped students at the district's R.H. Dana Exceptional Needs Facility from 2010 onward. Parents consistently identified communication as their top priority, asking the district to explore high-tech devices that could give Student a real voice.

In May 2013, the district conducted a trial of an eye-tracking, voice-output communication device — a Tobii — and Student successfully used it to select people she wanted to see from a field of four picture symbols. Despite that successful trial, the district did not provide the device to Student or hold an IEP to discuss the results. For more than two years, Student continued to rely on a simple low-tech eye-gaze board that limited her to communicating about six concepts at a time, while Parents repeatedly asked the district to act. The district finally agreed to order a Tobii device in September 2015, only after Student obtained a private augmentative communication assessment and filed a due process complaint. Parents challenged the district's provision of assistive technology, occupational therapy, physical therapy, adapted physical education, speech-language services, vision assessment, and placement across four school years from 2012 to 2015.

What the ALJ Found

On assistive technology — Student won. The ALJ found that once the district conducted a successful trial of the eye-tracking device in May 2013, it had the information it needed to provide the device and failed to do so. Student's inability to communicate effectively was not a minor inconvenience — communication affects every part of a child's education. Waiting more than two years after a successful trial, without explanation, denied Student a meaningful educational benefit.

On occupational therapy and physical therapy — District won. California Children's Services (a state medical program) provided Student's occupational and physical therapy until July 2014. When Children's Services stopped, the district was responsible for any educationally necessary therapy not already covered. However, the ALJ found that Student did not present sufficient evidence that those therapies were educationally necessary after Children's Services stopped, or that the district's eventual therapy offers in the 2015 IEP were inadequate. Student's neurologist offered opinions about what Student medically needed, but did not evaluate Student's educational needs in the school setting, and his opinions were not enough to carry the case.

On speech-language services, vision, and placement — District won. Student's speech-language expert focused entirely on the assistive technology issue, not on the district's direct speech-language services, so that claim was not supported by evidence. On vision, Student's own expert actually testified that Student's vision was adequate for using the Tobii device, and no expert testified that the district should have suspected a vision impairment affecting Student's education. On placement, Student's counsel confirmed Student was not challenging her classroom setting, only the combination of supports — and except for the assistive technology failure, no evidence showed those supports were inadequate.

What Was Ordered

The district must reimburse Parents for 21 hours of direct and/or consultation assistive technology services with Student's private augmentative communication specialist (or an equally qualified clinician chosen by Parents), to be used for training Student, Parents, staff, and service providers in the use of Student's eye-tracking, voice-output communication device. These hours must be used within 12 months of the decision date.
The district must fund a follow-up private augmentative communication assessment of Student by the same specialist, at her usual rate up to $3,000, to be completed and presented to Student's IEP team at the 2017 annual IEP meeting.

Why This Matters for Parents

A successful device trial creates an obligation to act. When a district tries out an assistive technology device and the student demonstrates they can use it, that success matters legally. The district cannot conduct a promising trial and then quietly shelve the results. If your child succeeds with a device in a trial, document it, put it in writing, and follow up at the next IEP meeting demanding a decision.
Medical opinions alone are not enough to win on therapy services. Student's neurologist testified that Student needed intensive physical and occupational therapy — but because his opinions were based on medical needs rather than educational needs in the school setting, and he had not observed or tested Student in her school environment, the ALJ gave them little weight. If you believe your child needs more therapy, get evaluations that specifically address educational functioning at school, not just medical status.
You must present evidence on every claim you make. Parents raised many issues — vision assessment, speech-language services, placement — but the evidence at hearing focused almost entirely on assistive technology. Claims without supporting evidence will be denied. Before filing a due process complaint, make sure you have expert testimony or strong documentation for each specific issue you plan to raise.
Even a partial win can result in meaningful relief. Although Student lost most claims, the ALJ ordered training hours and a funded assessment as compensatory education for the assistive technology failure. When a district delays providing an important communication tool, the remedy can include not just the device but also the training needed to make it effective — for the student, the family, and school staff alike.

What Happened

What the ALJ Found

What Was Ordered

The district must reimburse Parents for 21 hours of direct and/or consultation assistive technology services with Student's private augmentative communication specialist (or an equally qualified clinician chosen by Parents), to be used for training Student, Parents, staff, and service providers in the use of Student's eye-tracking, voice-output communication device. These hours must be used within 12 months of the decision date.
The district must fund a follow-up private augmentative communication assessment of Student by the same specialist, at her usual rate up to $3,000, to be completed and presented to Student's IEP team at the 2017 annual IEP meeting.

Why This Matters for Parents

A successful device trial creates an obligation to act. When a district tries out an assistive technology device and the student demonstrates they can use it, that success matters legally. The district cannot conduct a promising trial and then quietly shelve the results. If your child succeeds with a device in a trial, document it, put it in writing, and follow up at the next IEP meeting demanding a decision.
Medical opinions alone are not enough to win on therapy services. Student's neurologist testified that Student needed intensive physical and occupational therapy — but because his opinions were based on medical needs rather than educational needs in the school setting, and he had not observed or tested Student in her school environment, the ALJ gave them little weight. If you believe your child needs more therapy, get evaluations that specifically address educational functioning at school, not just medical status.
You must present evidence on every claim you make. Parents raised many issues — vision assessment, speech-language services, placement — but the evidence at hearing focused almost entirely on assistive technology. Claims without supporting evidence will be denied. Before filing a due process complaint, make sure you have expert testimony or strong documentation for each specific issue you plan to raise.
Even a partial win can result in meaningful relief. Although Student lost most claims, the ALJ ordered training hours and a funded assessment as compensatory education for the assistive technology failure. When a district delays providing an important communication tool, the remedy can include not just the device but also the training needed to make it effective — for the student, the family, and school staff alike.