Charter Oak Failed to Provide IEP or Comparable IFSP Services When 3-Year-Old Transitioned from Regional Center

What Happened

A three-year-old boy with autism had been receiving early intervention services through a regional center under an Individualized Family Service Plan (IFSP) since March 2019. His IFSP included 18 hours per week of Applied Behavioral Analysis (ABA) therapy, specialized instruction with an ABA component for 6 hours per week, physical therapy, occupational therapy, and speech and language services. When a child turns three, responsibility for services shifts from the regional center to the local school district, which must either adopt the child's IFSP or develop an IEP. The regional center notified Charter Oak Unified School District in December 2019 that the student would be turning three in June 2020 and would need a transition to school district services.

Despite nearly six months of advance notice, Charter Oak never developed an IEP by the student's third birthday on June 24, 2020. The district cited COVID-19 restrictions and delays in receiving the parent's signed assessment consent as reasons for the delay. However, when the parent consented to the assessment plan in early June 2020, the district sent a letter saying it could not complete the process in time — but framed its offer of interim services as contingent on the parent providing additional written consent, which is not a legal requirement. No formal written interim IEP was ever provided to the parent before the due process complaint was filed on October 7, 2020. The parent filed the hearing request seeking compensatory services in ABA, physical therapy, occupational therapy, speech-language, and assistive technology.

What the ALJ Found

The ALJ issued a mixed ruling. The student prevailed on several issues but did not succeed on all claims.

Issues the Student Won:

1. Failure to develop a timely IEP (Issue 1a): Charter Oak acknowledged it did not hold an IEP team meeting by the student's third birthday or have any IEP in effect by the start of the school year on August 14, 2020. The district cited COVID-19 and delayed parental consent, but provided no legal authority excusing these obligations. This was a clear procedural violation.

2. Failure to provide comparable IFSP services — ABA and physical therapy (Issue 1d): Charter Oak's only legal defense was that it offered services comparable to the student's IFSP. The ALJ rejected this defense. The district never made a formal written offer of interim services. Its June 16, 2020 letter was merely "an offer to make an offer," which is legally insufficient. The IFSP included 24 hours per week of ABA support; Charter Oak offered none. The district's witnesses argued the preschool program had sufficient "ABA components," but the ALJ found this testimony unpersuasive.

3. Failure to provide written offer of related services (Issue 1f): Because Charter Oak never made a formal written interim IEP offer, the ALJ found the district denied FAPE in the areas of physical therapy, occupational therapy, speech-language, and ABA. The district cannot defend a FAPE denial by pointing to services informally provided without a written offer giving the parent the opportunity to meaningfully participate.

Issues the District Won:

4. Assistive technology recommendation (Issue 1b): The parent could not establish exactly when a private assistive technology report by Nancy Tsubokawa was delivered to the district. The law requires IEP teams to consider independent evaluations, but no IEP meeting was held during the relevant period. Because no IEP meeting occurred, the student could not prove the district failed to consider the report within the required process.

5. Auditory and visual processing needs (Issue 1c): The student did not present sufficient evidence that his auditory and visual processing difficulties rose to the level of an educationally-related need under the IDEA. The evidence presented addressed IFSP services, not educational needs, and no formal assessment in this area had been completed.

6. Requiring CARD as the specific ABA provider (Issue 1e): A school district has the legal right to choose its service providers. Parents cannot compel a district to contract with a specific agency, even if that agency previously provided services under an IFSP. The ALJ noted this is similar to a student transferring between districts — the district must provide comparable services, but not through the same vendor.

What Was Ordered

1. 35 hours of compensatory ABA services: The ALJ awarded 35 hours of ABA therapy as compensatory education, covering the period from August 14 through October 7, 2020, when the student received no ABA services through either the district or the regional center. No additional compensatory services were awarded for physical therapy, occupational therapy, or speech-language because the regional center had continued providing those services through a separate due process order.

2. Parent selects provider: The parent may choose CARD or a comparable provider to deliver the 35 hours of ABA services. The parent must notify Charter Oak of the selected agency.

3. District must contract within 30 days: Within 30 days of being notified by the parent, Charter Oak must contract with the selected non-public agency to provide the 35 hours of ABA services.

4. Flexible service location: The compensatory ABA services may be used in the home, in the community, or at school.

5. Services expire June 30, 2022: Any unused compensatory ABA hours are forfeited after June 30, 2022.

6. All other relief denied.

Why This Matters for Parents

1. "An offer to make an offer" is not enough. The district's letter saying it would develop an interim plan if the parent provided written consent was legally insufficient. Districts must make a real, written offer of services — not place conditions on the parent before they will act. If your district is stalling without a formal written offer, document it and know that this is a FAPE violation.

2. When your child turns three, the district must act — even during COVID. The transition from regional center IFSP services to school district IEP services is a legal deadline tied to your child's third birthday. Pandemic conditions did not excuse Charter Oak's failure to develop an IEP. If your child is approaching age three, contact the school district at least six months before the birthday and get the process in writing.

3. You cannot demand a specific provider, but you can demand specific services. The ALJ confirmed that parents cannot force a district to contract with a particular ABA provider. However, the amount and type of services in the IFSP must be matched in the interim plan. Fight for the services, even if you cannot always control who delivers them.

4. Independent evaluations matter — but timing and delivery matter too. The parent obtained a private assistive technology report but lost on that issue because it was unclear when the report was given to the district. Always provide outside evaluations to the district in writing, request a receipt or written acknowledgment, and specifically request that the IEP team discuss the report at the next meeting.

5. Partial wins still result in real relief. Even though the student did not prevail on every issue, he won on the most important ones and received 35 hours of compensatory ABA. A mixed outcome is not a failure — it is a tool. Filing a due process complaint forced the district to finally provide services and created an enforceable legal order. If your district has failed to act, do not assume you have to win everything to make filing worthwhile.