Valentin-Marrero et al v. Commonwealth of Puerto Rico et al
Filing
260
OPINION AND ORDER: DENYING IN PART Plaintiffs' Motion for Summary Judgment at Docket No. 167 ; GRANTING IN PART Defendants' Motion for Summary Judgment at Docket No. 184 , and awarding reimbursement of private school costs and compensator y education. The parties are ORDERED to meet and approve the 2020-2021 IEP by September 8, 2020. If the parties fail to reach agreement, then they shall exhaust administrative remedies. Plaintiffs SHALL file an itemized claim for their attorney's fees within fourteen (14) days. Judgment shall be entered accordingly. Signed by Judge Raul M. Arias-Marxuach on 8/19/2020. (mrr)
Case 3:18-cv-01286-RAM Document 260 Filed 08/19/20 Page 1 of 57
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JOSE VALENTÍN MARRERO, EMERITA
MERCADO ROMAN, PERSONALLY, AS
MEMBERS OF THEIR CONJUGAL
PARTNERSHIP AND ON BEHALF OF
THEIR SON GAJVM
CIVIL NO. 18-1286(RAM)
Plaintiffs
v.
COMMONWEALTH OF PUERTO RICO;
DEPARTMENT OF EDUCATION OF THE
COMMONWEALTH OF P.R.
Defendants
OPINION AND ORDER
RAÚL M. ARIAS-MARXUACH, U.S. District Judge
Pending before the Court are (1) José Valentín-Marrero and
Emerita Mercado-Roman’s, (collectively, “Plaintiffs” or “Parents”)
Motion for Summary Judgment and (2) the Commonwealth of Puerto
Rico and the Department of Education of the Commonwealth of Puerto
Rico,
(“collectively,
Defendants”)
Cross-Motion
for
Summary
Judgment (Docket Nos. 167 and 184 respectively). Having considered
the parties’ briefs, the evidence on the record and the applicable
law, the Court hereby DENIES in part Plaintiffs’ Motion for Summary
Judgment at Docket No. 167 and GRANTS in part Defendants’ Motion
for Summary Judgment at Docket No. 184.
Case 3:18-cv-01286-RAM Document 260 Filed 08/19/20 Page 2 of 57
Civil No. 18-1286(RAM)
I.
2
PROCEDURAL BACKGROUND
On May 11, 2018, Plaintiffs brought the present action against
the Commonwealth of Puerto Rico and the Department of Education of
the Commonwealth of Puerto Rico (“DOE”) on behalf of their son
GAJVM.
They sought injunctive relief, reimbursement of costs,
and attorney’s fees for alleged violations of the Individuals with
Disabilities Education Act (“IDEA” or “Act”), 20 U.S.C. §§ 100 et
seq.
(Docket
No.
1).
Particularly,
Plaintiffs
requested
an
injunction ordering the DOE to prepare a 2018-2019 Individualized
Education Program (“IEP”) for GAJVM, a minor registered with the
DOE as a student with disabilities, that incorporates Applied
Behavior Analysis (“ABA”) services.1 Id. at 3, 11-13. That same
day,
Plaintiffs
filed
a
Motion
for
Preliminary
Injunction
reiterating this request. (Docket No. 2).
Defendants filed two motions to dismiss for failure to exhaust
administrative remedies before filing their Complaint and
lack of
jurisdiction. (Docket Nos. 11 and 35). The then presiding District
Judge rejected DOE’s arguments and denied both motions. (Docket
No. 63).
1
“Applied Behavior Analysis (ABA) is a type of therapy that focuses on improving
specific behaviors, such as social skills, communication, reading, and academics
as well as adaptive learning skills, such as fine motor dexterity, hygiene,
grooming, domestic capabilities, punctuality, and job competence. ABA is
effective for children and adults with psychological disorders in a variety of
settings, including schools, workplaces, homes, and clinics. It has also been
shown that consistent ABA can significantly improve behaviors and skills and
decrease the need for special services.”
See Applied Behavior Analysis,
Psychology Today, https://www.psychologytoday.com /us/therapy-types/appliedbehavior-analysis (last visited on August 17, 2020).
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Civil No. 18-1286(RAM)
3
Following a Preliminary Injunction Hearing held on September
13, 2018, a Magistrate Judge issued a Report and Recommendation
(“R&R”)
granting
in
part
Plaintiffs’
request
for
injunctive
relief. (Docket No. 55). Plaintiffs timely objected to the R&R.
(Docket No. 58). On November 13, 2018, the Court issued an Order
adopting the R&R’s background and conclusion but setting aside its
conclusion
and
granting
Plaintiffs’
Motion
for
Preliminary
Injunction. (Docket No. 62). Specifically, the Court ordered the
parties to “convene a COMPU meeting on or before December 14, 2018
and prepare a new IEP for the remainder of the 2018-2019 school
year
designed
by
an
ABA-certified
provider
that
applies
ABA
services throughout the educational process.” Id. at 7.
On December 19, 2018, Plaintiffs filed a Motion in Compliance
with Order and Request for Finding of Contempt, in which they
alleged that the DOE did not comply with the Court’s November 13,
2018 order and requested that Defendants be found in contempt of
Court. (Docket No. 66). Additionally, Plaintiffs presented an
Urgent Motion Requesting Order seeking that GAJVM be placed at the
Government’s expense at Starbright Academy, a private school in
Ponce, Puerto Rico. (Docket No. 69).
On January 28, 2019, the Court issued an order (1) holding in
abeyance
Plaintiffs’
request
for
contempt
and
(2)
denying
Plaintiffs’ request that GAJVM be placed at Starbright Academy.
(Docket No. 80). The Court ordered the parties to convene another
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Civil No. 18-1286(RAM)
4
COMPU meeting by February 25, 2019 and prepare a new IEP for the
remainder of the 2018-2019 school year. Id. Subsequently, both
parties filed separate motions notifying the Court of the DOE’s
compliance, or lack thereof, with the Order at Docket No. 80.
(Docket Nos. 88 and 90). On May 30, 2019, Plaintiffs filed an
Urgent Motion Requesting Order requesting that the Court order the
DOE to fully implement the 2017-2018 IEP prior to drafting an IEP
for 2019-2020 or to design a new IEP (for either 2018-2019 or 20192020) under the Court’s supervision and in compliance with previous
orders. (Docket No. 101 at 8).
This case was reassigned to the undersigned on June 20, 2019.
(Docket No. 103). Pursuant to this Court’s order, Plaintiffs filed
an Amended Complaint on September 6, 2019 (Docket No. 115) and
Defendants filed their Answer to the same on December 24, 2019
(Docket No. 138). The Court held various settlement conferences
with the parties hoping that an agreement could be reached and
GAJVM could receive an academic placement for the remainder of the
2019-2020 academic year. (Docket Nos. 142; 143). The Court also
cautioned the parties that a reasonable settlement was the most
expedient and efficient way to resolve the dispute. The settlement
negotiations proved to be unsuccessful. Accordingly, the Court set
a bench trial date for July 15, 2020, to resolve the case at bar
prior to the commencement of the 2020-2021 academic year. (Docket
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Civil No. 18-1286(RAM)
5
No. 183). That trial date was rescheduled for the month of August
5, 2020 at Plaintiffs’ request. (Docket No. 202).
On June 15, 2020, Plaintiffs filed their Motion for Summary
Judgment.
(Docket
No.
167).
Defendants
filed
a
Response
in
Opposition (Docket No. 187) on June 29, 2020 and Plaintiffs filed
a Reply to Defendants’ Response in Opposition (Docket No. 206).
Subsequently, Plaintiffs filed a Motion Supplementing Request for
Relief, clarifying their request for compensatory services to be
extended under IDEA until GAJVM is 22 years old. (Docket No. 243).
Defendants in turn filed their own Motion for Summary Judgment
on June 29, 2020. (Docket No. 184). In response, Plaintiffs filed
an Opposition (Docket No. 221) and a Motion Supplementing Response
in Opposition (Docket No. 231). Defendants also filed a Reply to
Plaintiff’s [sic] Response Statements of Uncontested Material
Facts
and
Response
to
Additional
Statements
of
Uncontested
Material Facts (Docket No. 239) and Plaintiffs filed a Sur-Reply
(Docket No. 250).
The Court ultimately vacated the bench trial due to the
dispositive motions and the parties’ view that a trial was not
necessary. (Docket No. 248).
II.
APPLICABLE LAW
A. The Individuals with Disabilities Education Act
The IDEA allocates federal funding to States in exchange for
their
commitment
to
provide
a
“‘free
appropriate
public
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6
education’—more concisely known as a FAPE—to all children with
certain physical or intellectual disabilities.” Fry v. Napoleon
Cmty. Sch., 137 S. Ct. 743, 748 (2017) (citing 20 U.S.C.A. §
1412(a)(1)(A)). See also C.G. ex rel. A.S. v. Five Town Cmty. Sch.
Dist., 513 F.3d 279, 284 (1st Cir. 2008) (“Five Town”) (“Congress
designed the IDEA as part of an effort to help states provide
educational services to disabled children.”).
The Act defines a FAPE as:
[S]pecial education and related services that-(A) have been provided at public expense, under
public supervision and direction, and without
charge;
(B) meet the standards of the State educational
agency;
(C) include an appropriate preschool, elementary
school, or secondary school education in the
State involved; and
(D) are
provided
in
conformity
with
the
individualized education program required […]
20 U.S.C.A. §§ 1401(9). In other words, a FAPE encompasses “both
‘instruction’
sufficient
tailored
‘supportive
to
meet
a
child's
services’
to
‘unique
permit
the
needs’
and
child
to
benefit from that instruction.” Fry, 137 S. Ct. at 748–49 (quoting
20 U.S.C.A. §§ 1401(9), (26), (29)) (emphasis added).
“The primary vehicle for delivery of a FAPE is the child's
[Individualized
Education
Plan
or]
IEP.”
Lessard
v.
Wilton
Lyndeborough Coop. Sch. Dist., 518 F.3d 18, 23 (1st Cir. 2008).
States are tasked with “the obligatory creation of an IEP for each
student, reviewed annually and revised when necessary.” Nickerson-
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Civil No. 18-1286(RAM)
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Reti v. Lexington Pub. Sch., 893 F. Supp. 2d 276, 285 (D. Mass.
2012), aff'd (June 19, 2013) (citing Bd. of Educ. of Hendrick
Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176,
181-82
(1982)).
including
the
IEPs
are
“created
student's
parents
by
a
and
team
of
individuals
teacher,
designated
specialists, and a representative of the school.” Id. (citing 20
U.S.C.A. § 1414 (d)(1)(B). The Supreme Court has emphasized that
the core of the IDEA is the cooperative and collaborative IEP
process that it establishes between parents and schools. See
Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005).
Specifically, the IEP must include: (1) the child’s levels of
academic achievement and functional performance; (2) academic and
functional goals; (3) a description of how the child’s progress
towards said goals will be measured; (4) the special education and
related services that will be provided; and (5) any applicable
accommodations. See 20 U.S.C.A. § 1414 (d)(1)(A).
If the parties cannot agree to a sufficient IEP, “the child's
parents may challenge either the school system's handling of the
IEP process or the substantive adequacy of the IEP itself by
demanding
an
administrative
due
process
hearing
before
a
designated state educational agency.” D.B. ex rel. Elizabeth B. v.
Esposito, 675 F.3d 26, 35 (1st Cir. 2012) (citing 20 U.S.C. §
1415(f)(1)(A)). Likewise, the public-school system can “test the
validity of a proposed IEP or […] challenge an existing IEP as
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Civil No. 18-1286(RAM)
8
over-accommodating.” Id. (citing Schaffer, 546 U.S. at 53). In
either
case,
the
burden
of
persuasion
“lies
with
the
party
challenging the IEP.” Id. (emphasis added).
While there is “no mechanical checklist by which an inquiring
court can determine the proper content of an IEP […] [o]ne thing
is clear: the substance of an IEP must be something different than
the normal school curriculum and something more than a generic,
one-size-fits-all
program
Lessard, 518 F.3d at 23.
that
an
IEP
calculated
must
to
consideration
be
confer
with
for
children
with
special
needs.”
The First Circuit has repeatedly held
individually
a
designed
and
meaningful
educational
student’s
particular
the
“reasonably
benefit”
in
needs
and
circumstances. See Johnson v. Bos. Pub. Sch., 906 F.3d 182, 194–
95 (1st Cir. 2018) (quoting D.B. ex rel. Elizabeth B., 675 F.3d at
34) (emphasis added).
However, “the obligation to devise a custom-tailored IEP does
not
imply
that
a
disabled
child
is
entitled
to
the
maximum
educational benefit possible.” Lessard, 518 F.3d at 23. In other
words, the IEP need not provide “an ideal level of educational
benefit, in
order
to
survive
judicial
scrutiny.” Id.
at
24.
Instead, “[t]he Act sets more modest goals: it emphasizes an
appropriate, rather than an ideal, education; it requires an
adequate, rather than an optimal, IEP.” Lenn v. Portland Sch.
Comm., 998 F.2d 1083, 1086 (1st Cir. 1993) (emphasis added).
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B. Private School Placement
To comply with IDEA’s requirements, states are authorized to
place children with disabilities in private schools so that they
can receive special education and related services in accordance
with their IEP, at no cost to the parents. See 2000 U.S.C.A. §
1412(a)(10)(B)(i). Nevertheless, this does not mean that local
governments must, or even should, bear the expense of private
school placement at the request of the student’s parents. The Act
specifies that local educational agencies are not required to pay
for the cost of special education and related services at a private
school “if that agency made a free appropriate public education
available to the child and the parents elected to place the child
in such private school or facility.” Id. § 1412(a)(10)(C)(i)
(emphasis added). On the other hand, if a court or administrative
hearing officer “finds that the school district did not make a
FAPE available to the child in a timely manner, IDEA allows parents
to place their disabled child in a private school and receive
reimbursement.” Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21,
26 (1st Cir. 2002) (citing 2000 § U.S.C.A. 1412(a)(10)(C)(ii)).
Therefore, parents would be “entitled to reimbursement only if a
federal court concludes both that the public placement violated
IDEA and that the private school placement was proper under the
Act.” Florence Cty. Sch. Dist. Four v. Carter By & Through Carter,
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Civil No. 18-1286(RAM)
10
510 U.S. 7, 15 (1993) (“Carter”). Private school placement is
considered proper under the IDEA “when a public school system has
defaulted on its obligations under the Act” and “the private school
is reasonably calculated to enable the child to receive educational
benefits.” Id. at 11. (internal quotations omitted). In accordance
with Carter, “plaintiffs are entitled to reimbursement of private
school tuition if (1) the IEP was not ‘reasonably calculated to
enable the child to receive educational benefits,’ (2) ‘the private
schooling obtained by the parents is appropriate to the child's
needs,’ and (3) equitable considerations support the plaintiffs'
claim.” D.B. v. New York City Dep't of Educ., 966 F. Supp. 2d 315,
327 (S.D.N.Y. 2013) (quoting T.Y. v. New York City Dep't of
Educ., 584 F.3d, 412, 417 (2d Cir. 2009)).
The
Supreme
Court
has
cautioned
that
“parents
who
unilaterally change their child's placement during the pendency
of review proceedings, without the consent of state or local school
officials, do so at their own financial risk.” Sch. Comm. of Town
of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359,
373–74 (1985) (emphasis added). Notably, even when reimbursement
is proper, the amount can be “reduced or denied […] upon a judicial
finding of unreasonableness with respect to actions taken by the
parents.”
added).
2000
U.S.C.A.
§
1412(a)(10)(C)(iii)(III)
(emphasis
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Civil No. 18-1286(RAM)
11
C. Compensatory Education
Compensatory education is another remedy available for an
insufficient
IEP.
The
First
Circuit
has
defined
compensatory
education as “a surrogate for the warranted education that a
disabled child may have missed during periods when [their] IEP was
so inappropriate that [they were] effectively denied a FAPE.” Five
Town, 513 F.3d at 290 (citing Me. Sch. Admin. Dist. No. 35 v. Mr.
& Mrs. R., 321 F.3d 9, 18 (1st Cir.2003)). Even under such
circumstances
“compensatory
education
is
not
an
automatic
entitlement but, rather, a discretionary remedy for nonfeasance or
misfeasance in connection with a school system's obligations under
the IDEA.” Id. (citing Pihl v. Mass. Dep't of Educ., 9 F.3d 184,
188 (1st Cir.1993)).
D. Judicial Actions and Summary Judgment under the IDEA
The IDEA establishes terms for presenting an administrative
complaint under the Act and creates a right to bring a civil action
for
any
party
aggrieved
by
administrative proceedings.
the
findings
or
decision
of
the
See 20 U.S.C.A. §§ 1415(b)(6)(a),
1415(i)(2)(A). In any civil action brought pursuant to IDEA, the
presiding
court:
“(i)
shall
receive
the
records
of
the
administrative proceedings; (ii) shall hear additional evidence at
the request of a party; and (iii) basing its decision on the
preponderance of the evidence, shall grant such relief as the court
determines is appropriate.” 20 U.S.C.A. § 1415(i)(2)(C).
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Civil No. 18-1286(RAM)
Because
administrative
the
12
Act
authorizes
record
and
courts
ultimately
to
rule
supplement
the
based
the
on
preponderance of evidence, “judicial review in IDEA cases differs
substantially
from
judicial
review
of
other
agency
actions.” Sebastian M. v. King Philip Reg'l Sch. Dist., 685 F.3d
79,
85
(1st
Cir.
2012)
(quoting
Ojai
Unified
Sch.
Dist.
v.
Jackson, 4 F.3d 1467, 1471 (9th Cir. 1993)); see also Kerkam v.
McKenzie, 862
F.2d
884,
887
(D.C.Cir.
1988).
Accordingly,
a
district court’s decision in an IDEA claim may be aptly described
as a “judgment on the record.” Loren F. ex rel. Fisher v. Atlanta
Indep. Sch. Sys., 349 F.3d 1309, 1313 (11th Cir. 2003) (quoting
Beth B. v. Van Clay, 282 F.3d 493, 496 n. 2 (7th Cir. 2002)). See
also Ojai, 4 F.3d at 1472 (finding that in IDEA cases, district
courts “essentially conduct[] a bench trial based on a stipulated
record”); Morales v. Puerto Rico, 2005 WL 8168437, at *3 (D.P.R.
2005) (holding that instead of a jury trial, “plaintiffs’ IDEA
claims will be decided by the court based upon the administrative
record.”).
In IDEA cases, “[i]nstead of dispute resolution, a motion for
summary judgment can serve as an aid to the court within a
statutory scheme whose purpose is to ensure that children with
disabilities receive the educational benefits to which they are
entitled.” T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 418
(2d
Cir.
2009).
Therefore,
“a
motion
for summary judgment in
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Civil No. 18-1286(RAM)
13
an IDEA case is simply a vehicle for deciding the relevant issues,
and the non-moving party is not entitled to the usual inferences
in its favor.” Sebastian M., 685 F.3d at 84–85 (citing Lillbask ex
rel. Mauclaire v. Conn. Dep't of Educ., 397 F.3d 77, 83 n. 3 (2d
Cir. 2005)) (emphasis added). Moreover, the presence of disputed
issues of fact does not preclude the award of summary judgment.
Id. at 85. See also Loren F. ex rel. Fisher, 349 F.3d at 1313
(holding that in IDEA cases, summary judgment is “appropriate even
when facts are in dispute and is based on preponderance of the
evidence.”).
III. FINDINGS OF FACT
To make findings of fact, the Court analyzed the totality of
the case record, including Plaintiffs’ Statement of Uncontested
Facts in Support of Motion for Summary Judgment (Docket No. 1671), Defendants’ Response to Plaintiffs’ Statements of Uncontested
Material Facts in Support of Motion for Summary Judgment (Docket
No. 187-1), Defendants’ Statement of Uncontested Material Fact in
Support of Motion for Summary Judgment (Docket No. 184-1) and
Plaintiffs’ response to Defendants Statement of Uncontested Facts
in Support of Motion for Summary Judgment and Additional Statements
of Uncontested Facts (Docket No. 221-1). After only crediting
material facts that are properly supported by the record, the Court
makes the following findings of fact:
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Civil No. 18-1286(RAM)
14
A. Plaintiffs’ Administrative Complaint
1.
GAJVM is a minor registered with the DOE as a student with
disabilities with registration number 0000-2302 in the DOE
Arecibo District. (Docket Nos. 167-1 ¶ 1; 184-1 at 2).
2.
GAJVM has been diagnosed with autism and is not able to
perform
socially
or
educationally
without
extensive
assistance and guidance. (Docket No. 167-1 ¶ 2).
3.
José Valentín (“Mr. Valentin”) is the father of GAJVM and
his legal guardian. Id. ¶ 3.
4.
Emerita Mercado (“Ms. Mercado”) is the mother of GAJVM and
his legal guardian. Id. ¶ 4.
5.
As a student with disabilities under the IDEA, GAJVM is
qualified by federal and state law to participate
in
the academic and related services programs of the public
education system administered by the DOE. Id. ¶ 5.
6.
As a recipient of federal funding, the DOE is responsible
for providing a free appropriate public education suited
to GAJVM’s particular needs. Id. ¶ 6.
7.
On
August
22,
2017,
Plaintiffs
filed
an
a d m i n i s t r a t i v e complaint, Claim No. 2017-040-006, with
the Special Education Administrative Forum of the DOE
requesting that the DOE provide GAJVM with educational
services through a private entity. Id. ¶ 7).
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8.
15
On February 12, 2018, Administrative Judge Rodríguez Arbona
issued a Resolution and Order requiring the following:
1. The Department of Education is hereby ordered to
purchase educational and related services to
benefit the complainant student for the time
remaining in school year 2017-2018 at the private
educational institution. Said purchase must be
carried
out
by
immediately
including
the
complainant student in the existing contract
between the educational agency and the private
school.
2. The Department of Education is hereby ordered
to, on or before February 22, 2018, coordinate a
Programming and Placement Committee Meeting at the
private school. The purpose of the Programming and
Placement Committee Meeting will be to review the
student's IEP for school year 2016-2017, prepare
the IEP for school year 2017-2018, and analyze and
discuss any matter that may be necessary regarding
the provision of educational and related services
that the student may require to receive a free,
appropriate, public education.
3. The Department of Education is hereby ordered to
hold a Programming and Placement Committee Meeting
at the private school on or before April 6, 2018,
in order to prepare the complainant student's IEP
for school year 2018-2019 and evaluate possible
placement alternatives for its implementation.
4. The Complaint herein is hereby CLOSED AND FILED.
(Docket Nos. 167-1 ¶¶ 8-12; 184-1 ¶ 5; 184-2 at 8).
9.
GAJVM attended the private school CADEI Bilingual School
(“CADEI”) during part of the 2017-2018 academic year and
was at CADEI when the administrative Resolution and Order
was issued on February 12, 2018. (Docket No. 184-1 ¶ 8).
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Civil No. 18-1286(RAM)
10.
16
After the administrative complaint number 2017-040-006 was
closed and filed, there is no record of any other complaint
filed by GAJVM with the Associate Secretariat of Special
Education. (Docket No. 184-1 ¶ 7)
B. The preparation and approval of the 2017-2018 IEP
11.
The approval of the IEP for 2017-2018 was delayed. (Docket
No. 167-1 ¶ 13).
12.
However, pursuant to the administrative Resolution and
Order,
the
Programing
and
Placement
Special
Education
Committee (“COMPU” for its Spanish acronym) held meetings
to discuss GAJVM’s 2017-2018 IEP on February 22, March 8,
March 15 and March 21, 2018. (Docket Nos. 184-1 ¶¶ 16, 2112).
13.
At each COMPU meeting, Mr. Valentín and Ms. Marrero were
given the Parents’ Rights in Compendium and were read their
rights, including that:
(5) You have the right to participate in meetings
with respect to the identification, placement
and/or evaluation or provision of free appropriate
public education for the child; […] (16) You have
the right to participate in the preparation of your
child’s IEP; […] (18) You have the right to accept
or reject all or part of your child’s IEP or
placement in the Special Education service; (19)
You have the right to have your child placed in a
private school, at the expense of the government,
when it is found that the public education system
does not have an educational alternative that meets
your child’s needs […]
(Docket Nos. 184-1 ¶ 17; 211-2; 184-6; 211-3; 184-8).
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Civil No. 18-1286(RAM)
14.
17
At the March 8, 2018 COMPU meeting, GAJVM’s parents handed
in several of GAJVM’s evaluations to be reviewed, namely:
(1) occupational therapy, dated November 12, 2016; (2)
psychometric, dated May 11, 2017; (3) functional of the
behavior, dated April 29, 2016; and (4) psychological,
dated January 19, 2012. GAJVM’s parents requested that said
evaluations be copied and incorporated into his student
file. (Docket No. 184-1 ¶¶ 22-23).
15.
GAJVM’s parents were informed that neither the CADEI School
nor the DOE have occupational therapists who are certified
in sensory focus. Therefore, occupational therapy with
sensory focus must be provided through provisional remedy.
(Docket Nos. 184-1 ¶¶ 24-25; 184-6 at 3).
16.
The COMPU agreed that occupational therapy with sensory
focus shall be provided through the Provisional Remedy
Office. (Docket Nos. 184-1 ¶ 27; 184-6 at 5).
17.
At the March 15, 2018 COMPU meeting, Dr. Amones-Gaud, the
Center of Services of Special Education (“CSEE”) Arecibo
Director, stated that she consulted the Assistant Secretary
of the Special Education Program, who recommended that the
procedures for requesting technical assistance be followed
and that form 07-B be filled out. (Docket Nos. 184-1 ¶ 36;
211-3 at 4).
Case 3:18-cv-01286-RAM Document 260 Filed 08/19/20 Page 18 of 57
Civil No. 18-1286(RAM)
18.
18
The parties ultimately approved the 2017-2018 IEP for GAJVM
at the March 21, 2018 COMPU meeting held at the CSEE
Arecibo. (Docket Nos. 167-1 ¶¶ 13, 29; 184-1 ¶ 38).
19.
The minutes of the March 21, 2018 COMPU meeting reflect
that the parties added a description of GAJVM’s diagnoses,
medical services and functioning to the 2017-2018 IEP.
(Docket Nos. 184-1 ¶¶ 44-45).
20.
The participants at said COMPU meeting discussed that CADEI
Bilingual School where GAJVM was enrolled did not comply
with the facilities, services and trained staff required
by the 2017-2018 IEP. (Docket Nos. 167-1 ¶ 19; 184-8 at
4).
21.
The need for ABA services was recorded in the minutes of
the March 21, 2018 COMPU meeting. The participants of said
meeting, which included DOE representatives, accepted that
GAJVM’s special education record required ABA services.
(Docket No. 167-1 ¶¶ 15-16).
22.
At
the
COMPU
meeting,
the
parties
reached
several
agreements, including that the recommended placement for
GAJVM consists of “an individualized education service
(1:1), by a special education teacher, specialized in
autism, with services assistant and with a focus of Applied
Behavior Analysis (ABA-Applied Analysis of the Conduct),
Case 3:18-cv-01286-RAM Document 260 Filed 08/19/20 Page 19 of 57
Civil No. 18-1286(RAM)
19
in the educational and theraputical [sic] area.” (Docket
Nos. 167-1 ¶ 28; 184-8 at 5; 184-1 ¶ 51).
23.
The
2017-2018
IEP
identifies
that
in
accordance
with
GAJVM’s diagnosis, the Applied Behavior Analysis (“ABA”)
therapeutic focus is the strategy or method that shall be
utilized. (Docket No. 167-3 at 2).
24.
Specifically, the 2017-2018 IEP, which was approved by all
the parties, states the following:
A. If the student shows inappropriate conduct that
prevents his learning and progress and that of
others:
1. Describe the conduct to be modified: GAJVM
presents difficulty to follow the routine of the
classroom, principally by rejecting activities that
are not of his interest, like those of reading,
writing and mathematics. He manifests to be
bothered with his situation by means of aggressive
conducts such as: hitting an adult, pinching,
pushing the hand, throwing materials, breaking
materials, biting, kicking, squeezing others, etc.
He avoids grabbing the pencil, crayons and other
materials for writing, drawing or tracing. Utilizes
the maladaptive conduct to avoid activities that
are not of his interest. He may hit his fellow
students.
2. Describe the strategies or methods that shall be
utilized to modify the identified conduct: It’s
necessary
to
utilize
strategies
based
on
specialized models, in accordance to the diagnosis
presented by [GAJVM]. The ABA focus shall be
applied, designed by a certified specialist, in
addition to integrating visual schemes, such as
PECS. The plan to be followed shall be designed, by
means of discrete steps, in the work of maladaptive
conduct
presented
by
[GAJVM].
Structured
activities, with visual-concrete keys that provide
the necessary guide to [GAJVM] so that he
understands what is expected of him, shall be used.
There shall be utilized constant supervision,
Case 3:18-cv-01286-RAM Document 260 Filed 08/19/20 Page 20 of 57
Civil No. 18-1286(RAM)
20
modeling,
consistent
redirection,
verbal
reinforcements, verbal and tangible reinforcements
and loss of privileges/reinforcements. GAJVM can
select the reinforcements. There shall be utilized
the strategy of work by means of discrete steps
that guide and mold his conduct, utilizing
immediate reinforcement to the desired conduct.
GAJVM shall be exposed to activities of poor
interest by means of discrete steps and utilizing
tasks which e masters, increasing the difficulty
bit by bit. Work shall be done with strategies to
improve
communications,
lower
his
level
of
frustration and keep him with a positive attitude
regarding school and learning. Concrete and
different strategies and activities hall be used.
Tasks that GAJVM likes will be combined with others
of greater challenge. The application of the ABA
must be applied throughout the entire educational
process (with backing from a professional certified
in ABA). In the application of the ABA, the progress
and change in [GAJVM] shall be reviewed by means of
the specific measurement of his conduct, which
shall establish the basis to re-define the goals
drawn and the strategies utilized, every time that
it
is
necessary.
It’s
necessary
that
the
psychologist offer the necessary consulting to the
teacher and assistant, in addition to participating
in the development of the applied ABA. Among the
objectives to be worked, the development in [GAJVM]
of self-control, expression, handling of emotions
and others must be included. It’s important to work
in the development of adaptive behaviors that
replace the maladaptive ones. The process is begun
with a functional analysis of the conduct. It’s
directed toward functionality, spontaneity and the
generalization.
(Docket No. 167-3 at 3) (emphasis in original).
25.
Section
V(a)
of
the
2017-2018
IEP,
which
details
the
services program states that for the Socio-Emotional area,
“a variety of strategies, including specialized ones, such
Case 3:18-cv-01286-RAM Document 260 Filed 08/19/20 Page 21 of 57
Civil No. 18-1286(RAM)
21
as ABA” shall be used. (Docket Nos. 184-1 ¶ 47; 211-4 at
4).
26.
Recommendations made in the 2017-2018 IEP were based in
part on the Functional Evaluation of Conduct prepared by
Mrs. Marta Riviere (“Mrs. Riviere”). (Docket No. 167-1 ¶
25).
27.
The Functional Evaluation of Conduct Report prepared by
Mrs. Riviere for GAJVM, dated May 1, 2016, recommends that
“[d]ue to the seriousness of the behaviors, ABA therapies
are
recommended
on
a
full-time
basis
(8-2:00
pm)
at
school.” (Docket Nos. 167-1 ¶ 26; 167-5).
28.
GAJVM’s parents accepted the 2017-2018 IEP in part because
they
understand
that
ABA’s
therapeutic
focus
must
be
specifically included. (Docket No. 184-1 ¶ 53).
29.
The minutes of the March 22, 2018 meeting reflect that the
COMPU, including Mr. Valentín and Ms. Mercado, understood
and accepted all the matters discussed and agreed upon.
Id. ¶ 54.
C. The Proposed 2018-2019 IEP
30.
Pursuant to the administrative order mandating that the
2018-2019 IEP be prepared by April 6, 2018, a COMPU meeting
was held on April 5, 2018 at the CSEE Lares. (Docket Nos.
167-1 ¶ 20; 184-1 ¶ 55).
Case 3:18-cv-01286-RAM Document 260 Filed 08/19/20 Page 22 of 57
Civil No. 18-1286(RAM)
31.
At
the
April
22
5,
2018
COMPU
meeting,
the
DOE’s
representatives presented a draft of the IEP for 2018-2019
and requested that said proposal be discussed with GAJVM’s
parents. (Docket Nos. 167-1 ¶ 21; 184-1 ¶¶ 61-62).
32.
Mr. Valentín and Ms. Mercado request that the behavioral
area approved in the 2017-2018 IEP, where it is established
that
ABA
Therapeutic
Focus
would
be
applied
in
the
educative and therapeutic areas, be annexed to the 20182019 IEP. The DOE rejected that it be annexed, and instead
offered to provide the stipulated behavior modification
plan in the IEP proposal. (Docket No. 184-1 ¶ 63).
33.
DOE representatives offered a one-on-one classroom at the
Angelita Delgado Sella School with a teacher specialized
in
autism,
a
transportation
special
services
provided
by
assistant
carrier,
and
for
GAJVM,
comprehensive
therapy in the classroom as a provisional remedy. (Docket
Nos. 167-8 ¶ 27; 211-5 at 5).
34.
Ms.
Mercado
indicates
that
said
placement
had
been
previously offered and rejected in a previous, August 24,
2017 meeting. (Docket No. 167-8 ¶ 28).
35.
GAJVM’s parents, their expert psychologist and advocate
opposed
the
totality
of
DOE’s
proposed
2018-2019
IEP
because it was not appropriate for the student’s needs and
demanded that a new one be prepared incorporating ABA
Case 3:18-cv-01286-RAM Document 260 Filed 08/19/20 Page 23 of 57
Civil No. 18-1286(RAM)
23
services in a location with suitable facilities. (Docket
Nos. 167-1 ¶ 24; 167-8 ¶¶ 29, 7; 184-1 ¶ 68).
36.
The draft of the 2018-2019 IEP was never approved by the
COMPU and never became a valid or enforceable document.
(Docket No. 167-1 ¶ 18).
D. Plaintiffs’ Civil Action
37.
On May 11, 2018, Plaintiffs filed the present Complaint
requesting, among other things, that the Court:
1.Issue a preliminary injunction ordering defendant
to immediately prepare an IEP 2018-19 which is
compliant with the law and provides the services
that the DOE has previously accepted, including ABA
educational services and therapies.
2.
Issue
a
preliminary
injunction
ordering
defendant to refrain from recommending locations
for services that do not presently comply with the
recommended ABA services. Instead, defendants
should be ordered to only choose services currently
complaint with these ABA requirements, including
private providers with qualified personnel, whose
costs shall be borne by the DOE as provided by law.
[…]
(Docket No. 1 at 11-12).
38.
At the time the Complaint was filed, May 11, 2018, GAJVM
was receiving educational services at CADEI School. (Docket
No. 184-1 ¶ 3).
39.
On October 4, 2018, the Hon. Magistrate Judge Bruce J.
McGiverin issued a Report and Recommendation finding that
preliminary injunctive relief should be granted in part
and recommended that the Court order Defendants:
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Civil No. 18-1286(RAM)
24
(1) to place GAJVM in the Star-Link program at the
Angelita Delgado Sella School in Lares; (2) to
convene a COMPU meeting on or before November 1,
2018 at the School in order to analyze and discuss
any matter that may be necessary regarding the
provision of educational and therapeutic services
that GAJVM may require to receive a free
appropriate public education; (3) to prepare at
that COMPU meeting a new IEP for the remainder of
the 2018–19 school year to be submitted to this
court on or before November 15, 2018; (4) to ensure
that GAJVM’s instructors are furnished with
information on how to request support from the
Star-Link program director as well as the names and
contact information for Star Autism support members
who are Board Certified Behavior Analysts.
(Docket No. 55 at 11).
40.
On October 11, 2018, the DOE summoned the plaintiffs for a
COMPU meeting. On October 19, 2018, Ms. Mercado responded
via e-mail that she consulted with her attorney, Attorney
Borrés, and he instructed her to postpone the COMPU meeting
because he was going to object to the Magistrate Judge’s
R&R. (Docket No. 184-1 ¶ 73).
41.
Plaintiffs
filed
their
objections
to
the
Report
and
Recommendation on October 18, 2018. (Docket No. 58).
42.
On November 13, 2018, the Court entered an Order adopting
the R&R’s Background and Discussion but setting aside its
conclusion, finding that “[b]y proposing an IEP for the
2018-2019 school year without ABA services it agreed were
necessary to provide plaintiff’s child a FAPE just two
weeks before, the DOE materially failed to implement the
Case 3:18-cv-01286-RAM Document 260 Filed 08/19/20 Page 25 of 57
Civil No. 18-1286(RAM)
25
child’s IEP and violated IDEA.” (Docket Nos. 184-1 ¶¶ 7475; 62 at 6-7).
43.
Accordingly, the Court ordered:
[T]he parties to convene a COMPU meeting on or
before December 14, 2018 and prepare a new IEP for
the remainder of the 2018-2019 school year designed
by an ABA certified provider that applies ABA
services throughout the educational process. If
there are no ABA certified professionals available
in Puerto Rico to design plaintiff’s IEP for 20182019, the DOE SHALL provide one at its expense. In
designing the new 2018-2019 IEP, the DOE may
propose that the ABA certified professional use
services
it
currently
provides
to
disabled
students. But the DOE is admonished that the final
plan must be designed by an ABA certified
professional, apply ABA services, and count with
the professional’s backing throughout the education
process so that plaintiffs’ child may receive a
FAPE.
(Docket Nos. 184-1 ¶ 78; 62 at 7).
E. December 2018 Meetings to prepare the 2018-2019 IEP
44.
On December 6, 2018, GAJVM’s parents were invited for a
COMPU meeting to develop an IEP and were offered three
dates: December 12, 13, or 14 at the Angelita Delgado
Sellas school in Lares. (Docket No. 184-1 ¶ 79).
45.
On December 7, 2018, the multidisciplinary team met at the
Angelita Delgado Sellas school to attend to GAJVM’s case,
prepare
the
Behavior
Intervention
Plan
and
align
the
student’s IEP with ABA. Id. ¶ 80.
46.
The participants of the multidisciplinary team are: Joan
M. Rivera-Toro (Board Certified Behavior Analyst BCBA),
Case 3:18-cv-01286-RAM Document 260 Filed 08/19/20 Page 26 of 57
Civil No. 18-1286(RAM)
26
Kiomary Ramos Bonilla (Star/Links coach), Yajaira Rivera
Muñiz (Special Education Teacher-Autism), Maribel Méndez
Rodríguez (Special Services Assistant for the student),
María Lugo (Social Worker), and Mildred Acevedo-Concepción
(Special Education Facilitator for the Municipality of
Lares). Id. ¶ 81.
47.
At the meeting, the team evaluated the strategies and
curriculum of the DOE, including the LINKS curriculum, and
an adaptation was made to GAJVM’s needs aligning them in
the subject matters of Mathematics, Spanish, Science and
English. (Docket No. 184-1 ¶ 82; 184-14).
48.
In addition to developing and discussing the techniques
and strategies for the handling of GAJVM’s behavior in
alignment with the ABA program and LINKS, the 2018-2019
IEP
was
modified
based
on
the
recommendations
of
the
multidisciplinary team. (Docket No. 184-1 ¶ 83; 184-14).
49.
On December 12, 2018, the DOE invited GAJVM’s parents to a
COMPU meeting scheduled for December 13, 2018 at the CSEE
Arecibo at 9:30 a.m. (Docket No. 184-1 ¶ 84).
50.
On December 13, 2018, a COMPU meeting was held at the CSEE
Arecibo
to
discuss
the
draft
IEP
prepared
by
the
multidisciplinary team on December 7, 2018. (Docket No.
184-1 ¶¶ 85-86; 211-6).
Case 3:18-cv-01286-RAM Document 260 Filed 08/19/20 Page 27 of 57
Civil No. 18-1286(RAM)
51.
27
GAJVM’s parents objected claiming they were not invited to
the
multidisciplinary
meeting
and
that
there
was
representation from the Star Link program, namely Prof.
Kiomary Ramos. (Docket No. 184-1 ¶ 87; 211-6 at 1-3).
52.
The Parents were given a copy of the minutes of the
multidisciplinary meeting held on December 7, 2018 along
with the Behavioral Intervention Plan and the IEP aligned
with ABA. (Docket No. 184-1 ¶ 90; 211-6 at 2).
53.
ABA-certified
Toro”)
was
specialist
available
for
Joan
the
M.
Rivera-Toro
December
13,
(“Rivera-
2018
COMPU
meeting via telephone. However, the Parents did not agree
to discuss the IEP draft because they believed that as the
specialist, Rivera-Toro should be present at the meeting.
(Docket No. 184-1 ¶ 89; 211-6 at 3).
54.
GAJVM’s parents state that they consider Starbright Academy
in Ponce as an alternative placement that addresses the
student’s needs. (Docket No. 184-1 ¶ 93; 211-6 at 3).
55.
The DOE reiterates that they believe the draft IEP prepared
by ABA-certified specialist Rivera-Toro provides a free
and appropriate public placement and complies with the
Court’s order.
56.
(Docket No. 211-6 at 3).
Following the December 13, 2018 COMPU meeting, Plaintiffs
filed a motion requesting that Defendants be found in
contempt of Court for proposing Star Link services and for
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Civil No. 18-1286(RAM)
28
holding a COMPU meeting without the presence of an ABAcertified specialist. (Docket No. 66 at 14-15).
57.
Plaintiffs filed an additional motion asking the Court to
order
the
DOE
to
provide
GAJVM
with
an
educational
placement at the Starbright Academy. (Docket No. 69).
58.
On January 28, 2019, the Court held in abeyance Plaintiffs’
request that the DOE be found in contempt stating:
The parties are ORDERED to convene another COMPU
meeting NO LATER THAN FEBRUARY 25, 2019 on a date
when both Joan Rivera Toro (“Mrs. Rivera”) and
plaintiffs can physically attend the same. During
the meeting, the IEP team SHALL prepare a new IEP
for the remainder of the 2018-2019 school year
designed by Joan Rivera Toro, that applies ABA
services throughout the educational process, in
conjunction with plaintiffs as they are essential
members of the IEP team. Mrs. Rivera SHALL evaluate
GAJVM and conduct a functional analysis on conduct
before a new IEP is designed.
Defendants are warned that they cannot solely
implement the Star-Link program or adjust/align the
program
to
GAJVM.
However,
plaintiffs
are
admonished that Mrs. Rivera may propose the use of
services currently provided by the DOE to disabled
students in designing the new IEP, including those
used in the Star Link program.
(Docket No. 80 at 5).
59.
Furthermore, the Court denied Plaintiffs’ request that
GAJVM be placed at Starbright Academy at the Government’s
expense, finding that:
The Department of Education’s definition of
‘placement’ in 34 C.F.R. § 300.116(a)-(b) “indicate
that the school district must, in some fashion,
approve of the placement decision and that the
Case 3:18-cv-01286-RAM Document 260 Filed 08/19/20 Page 29 of 57
Civil No. 18-1286(RAM)
29
parents cannot unilaterally decide upon which
school will serve as the child's ‘placement.’” N.W.
ex rel. J.W. v. Boone Cty. Bd. of Educ., 763 F.3d
611, 617 (6th Cir. 2014) (finding that a private
school not approved by school district does not
qualify as the ‘current educational placement’ and
reversing order requiring school district to
reimburse parents for costs of placing child in
said school).
Id. at 4.
F. Rivera-Toro’s Functional Behavior Assessment Report
60.
On February 12 and 15, 2019, Rivera-Toro, Board Certified
Behavior Analyst (“BCBA”) evaluated GAJVM and prepared a
Functional Behavior Assessment Report. (Docket Nos. 184-1
¶ 99; 184-17).
61.
To prepare said report, Rivera-Toro reviewed BCBA Mrs.
Riviere’s Functional Behavior Assessment of GAJVM dated
April 29, 2016. (Docket Nos. 184-1 ¶ 100; 184-17 at 1).
62.
To
conduct
sessions
the
of
report,
February
12
GAJVM
and
attended
15,
2019
two
at
evaluation
the
Special
Education Center. According to the report, Rivera-Toro
tried to coordinate with Ms. Mercado that the second part
of the evaluation be conducted in a neutral environment
where
the
child
could
spend
time
in
his
educational
facilities, but it was not possible “because he is not
currently attending school and his home was not fit to
receive visitors because it is under construction.” (Docket
Nos. 184-1 ¶ 103; 184-17 at 2).
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Civil No. 18-1286(RAM)
63.
Therefore,
30
Rivera-Toro
prefaces
her
report
that
“the
results of this evaluation may not show [GAJVM’s] typical
execution” and they may be “unable to identify treatments
that at the present have proven to be useful.” (Docket No.
184-17 at 2).
64.
Rivera-Toro
concludes
her
report
with
various
recommendations including the following:
1. [GAJVM] needs a structured and individualized
program 1:1 for a 4-hour direct instruction,
including one hour daily with small groups to work
on social skills, increasing compliance, and group
instructional control and independent life with an
assistant. It must include functional, social,
leisure, and adaptive behavior/self-care goals and
objectives.
2. Including a behavior analysis (ABA) in his IEP
3-6 hours weekly, individually and/or with his
teacher to assist in the management of aggressive
behaviors, maladaptive behaviors, and prosocial and
verbal behavior, as well as for guidance and
alignment of the educational curriculum design.
3. The following strategies will be used to teach
replacement
behaviors:
intensive
direct
instruction, prompt fading, teaching without errors
using error correction procedures, presentation of
tasks and instructions until independent response
is achieved, teaching/practicing fluency (# of
correct responses in X amount of time), teaching
replacement behaviors (asking for help, asking for
breaks, first "x", then ''y'', and saying "I don't
know"), visual schedules and itineraries, and
presentation of quick and interspersed tasks.
4. Provide Skinner's Verbal Behavior Training to
his teachers to enable them to carry out the
behavior modification plan and to increase verbal
operants (mand, tact, echoic, intraverbal). Using
the Verbal Behavior Milestones Assessment Placement
Case 3:18-cv-01286-RAM Document 260 Filed 08/19/20 Page 31 of 57
Civil No. 18-1286(RAM)
31
Program (VMBAPP) which is a curriculum guide, to be
integrated in the IEP to identify the student's
strengths and weaknesses through a variety of
critical skills for language and learning. It may
guide the verbal behavior, social, play and leisure
skills plan. This assessment program is based on
the applied behavior analysis focused on Skinner 's
verbal behavior analysis.
(Docket Nos. 184-1 ¶¶ 104-106; 184-17 at 8-9).
G. February 2019 Meetings to Prepare the 2018-2019 IEP
65.
On February 19, 2019, a COMPU meeting was held to discuss
the Functional Behavioral Assessment Report and the 20182019 IEP design. (Docket Nos. 184-1 ¶ 107 and 184-19 at
1).
66.
According
to
the
Minutes,
a
copy
of
the
Functional
Behavioral Assessment Report prepared by Rivera-Toro was
given to the Parents at the February 19, 2019 meeting.
(Docket Nos. 184-1 ¶¶ 108-109 and 184-19 at 2).
67.
According to the Minutes, GAJVM’s parents require the
appropriate time to analyze and evaluate the report prior
to discussing it. (Docket No. 184-19 at 2).
68.
According to the Minutes, the discussion of the Function
Behavioral Assessment Report and the 2018-2019 IEP will
resume on February 22, 2019. (Docket Nos. 184-1 ¶ 110 and
184-19 at 4).
Case 3:18-cv-01286-RAM Document 260 Filed 08/19/20 Page 32 of 57
Civil No. 18-1286(RAM)
69.
The
Parents
32
refused
to
sign
the
Minutes
because
they
disagree with them. (Docket Nos. 184-1 ¶ 111 and 184-19 at
4).
70.
A COMPU meeting was held on February 22, 2019. (Docket No.
184-20).
71.
The Parents presented evidence of medical documents but do
not furnish a copy to the DOE. (Docket No. 184-1 ¶ 114).
72.
Ms. Glenda Méndez (“Ms. Méndez”), the Parents’ intercessor,
states that GAJVM is currently at home without receiving
ABA treatment in the educational area and therapies agreed
to at the March 21, COMPU. Id. ¶ 117.
73.
Rivera-Toro provides a summary and explanation of the
Functional Behavior Assessment of GAJVM. (Docket Nos. 1841 ¶ 119; 184-20 at 4).
74.
GAJVM’s
Behavior
parents
reject
Assessment
the
dated
results
of
the
Functional
February
12
and
15,
2019,
prepared by specialist Rivera-Toro. Ms. Mercado expressed
the
reason
for
her
rejection
by
reading
a
previously
prepared document, which she provided to the DOE. (Docket
No. 184-1 ¶¶ 121-122).
75.
The DOE states that it disagrees with the document because
it finds that Rivera-Toro’s evaluation was conducted as
ordered by the Judge and her recommendations are consistent
with the student’s needs. Further, the DOE believes it can
Case 3:18-cv-01286-RAM Document 260 Filed 08/19/20 Page 33 of 57
Civil No. 18-1286(RAM)
33
provide a free appropriate public education placement.
(Docket No. 184-1 ¶¶ 123-124).
76.
Rivera-Toro states that she believes that certain tools of
the Star-link Program and the Verbal Behavioral Milestones
Assessment and Placement Program may be applied because
they are based on ABA. Id. ¶ 126.
77.
GAJVM’s parents request a copy of the draft 2018-2019 IEP
and it is provided to them. (Docket Nos. 184-1 ¶ 119; 18420 at 3).
78.
The draft 2018-2019 IEP prepared for the February 2019
COMPU meetings states the following regarding the use of
ABA techniques:
2. Describe the strategies or methods that shall be
utilized to modify the identified conduct:
It’s necessary to utilize strategies based on
specialized models, in accordance to the diagnosis
presented by [GAJVM]. The ABA focus shall be
applied, designed by a certified specialist, in
addition to integrating visual schemes, such as
PECS and LINKS. […] The application of the ABA must
be applied throughout the entire educational
process (with backing from a professional certified
in ABA). In the application of the ABA, the process
and change in GAJVM shall be reviewed by means of
specific measurement of his conduct, which shall
establish the basis to redefine the goals drawn and
the strategies utilized, every time that it is
necessary. It’s necessary that the psychologist
offer the necessary consulting to the teacher and
assistant, in addition to participating in the
development of the applied ABA.
[…]
Case 3:18-cv-01286-RAM Document 260 Filed 08/19/20 Page 34 of 57
Civil No. 18-1286(RAM)
34
Utilization of techniques and strategies based on
ABA specialized models, according to the diagnosis
presented by [GAJVM]. ABA focus shall be applied,
designed by a certified specialist, integrating
visual schemes, teaching techniques without error
during discrete trials which alternate simple and
complex short activities with longer ones in
schedules with variable reinforcements beginning at
VRI up to progression to aboard with chips, and
error correction procedures shall be utilized.
(Docket No. 100-1 at 2-3),
79.
The proposed IEP also states that as to the Socio-Emotional
services to be given to GAJVM, the student needs “varied
strategies, including the specialized ones, such as ABA.”
Furthermore, the draft 2018-2019 IEP lists as a measurable
goal that during the school year, GAJVM “by means of the
use of the ABA methodology […] shall improve his responses
for adaption, regulation, social skills, play and emotions
that allow him to perform and interact in an adaptive
manner in the social environment.” Id. at 5.
80.
GAJVM’s parents inform the parties that after reviewing
the draft 2018-2019 IEP and consulting with their attorney,
they reject the same because it does not comply with the
Order issued by the Court nor with their child’s needs.
Id. ¶ 127.
81.
The DOE officials state that the deadline for completing
the IEP is February 25, 2019. Id. ¶ 128.
Case 3:18-cv-01286-RAM Document 260 Filed 08/19/20 Page 35 of 57
Civil No. 18-1286(RAM)
82.
35
GAJVM’s parents reiterate that they want the language of
the
2017-2018
IEP
approved
on
March
21,
2018
to
be
included. Id. ¶ 129.
83.
GAJVM’s parents did not sign the Minutes of the meeting
because DOE officials would not sign the ones prepared by
Ms. Méndez. Id. ¶ 130.
84.
On
February
Concepcion
25,
2019,
(Special
Municipality
of
Rivera-Toro,
Education
Lares),
Yajaira
Mildred
Facilitator
Rivera-Muniz
Acevedofor
the
(Sepcial
Education Teacher), and Yadira Padilla-Rodríguez (Social
Worker of Arecibo SESC) held a meeting at the Special
Education Service Center of Arecibo to draft a 2018-2019
IEP proposal. (Docket Nos. 184-1 ¶ 137 and 184-22).
85.
According to the Minutes of said meeting, Rivera-Toro
states that she is offering ABA intervention, training,
and technical assistance. Further, she recommends keeping
some applicable areas of the LINKS Curriculum in the draft
IEP
because
certain
LINKS
tools
are
based
on
ABA’s
empirical evidence. Lastly, Rivera-Toro indicates that she
would include the Verbal Behavior Milestones Assessment
and
Placement
Program
(“VBMAPP”)
curriculum
guide
for
teaching verbal behavior. (Docket Nos. 184-1 ¶ 138 and 18422 at 2).
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Civil No. 18-1286(RAM)
86.
36
The Parents did not show up at the Special Education
Service Center of Arecibo. Thus, pursuant to the Court’s
order, the DOE, could not resume the preparation of the
IEP 2018-2019. (Docket No. 184 ¶ 139).
H. The proposed 2019-2020 IEP
87.
On June 5, 2019, a COMPU meeting was held at the CSEE
Arecibo to present a draft proposal of the 2019-2020 IEP.
(Docket Nos. 184-1 ¶ 141 and 211-8 at 1).
88.
Mildred Acevedo-Concepción (“Acevedo-Concepción”) informed
GAJVM’s parents of their rights, as established in the
Special Education Procedures Manual, specifically those
regarding
the
preparation
of
an
IEP
for
their
child.
(Docket Nos. 184-1 ¶ 142 and 211-8 at 2).
89.
Acevedo-Concepción
asks
the
Parents
if
they
have
any
questions regarding their rights and they state that they
do not. However, the Parents refused to sign the Receipt
and Discussion Document on Parents Rights. (Docket Nos.
184-1 ¶¶ 143-144 and 211-8 at 2).
90.
Dr.
Amones-Gaud
explains
that
the
DOE
has
the
responsibility to continue with the process established in
the Circular Letter on Drafting Individualized Education
Programs dated February 27, 2019 for students receiving
Special
Education
in
2019-2020.
It
is
the
DOE’s
responsibility to prepare a draft of the proposed 2019-
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Civil No. 18-1286(RAM)
37
2020 IEP. Accordingly, as a sound practice, the COMPU may
develop a draft or proposal of the IEP before the meeting
to
facilitate
the
discussion.
Lastly,
Dr.
Amones-Gaud
clarified that the DOE must comply with the IDEA and its
internal public policy regardless of the pending federal
case. (Docket Nos. 184-1 ¶ 145 and 211-8 at 2-3).
91.
According to the Minutes, Dr. Amones-Gaud states that none
of
the
participants
in
the
COMPU,
including
GAJVM’s
parents, are allowed to be disrespectful. (Docket Nos. 1841 ¶ 146 and 211-8 at 3).
92.
Ms.
Méndez, on behalf of GAJVM’s parents, emphasizes that
the student requires ABA services and that the Parents are
currently paying for him to receive said services at the
Starbright
Academy
in
Ponce.
Thus,
GAJVM’s
parents
requested that the Court order DOE to reimburse them for
these services. Ms. Méndez also reiterated the Parents’
request that GAJVM be placed at Starbright Academy. (Docket
Nos. 184-1 ¶¶ 147, 151 and 211-8 at 3).
93.
Dr. Amones-Gaud states that the DOE has an appropriate
public free placement for GAJVM where the IEP can be
implemented. (Docket Nos. 184-1 ¶ 153 and 211-8 at 4).
94.
Ms. Méndez claims that some officials have been cruel with
GAJVM because he has not been provided a placement at
Starbright
Academy
with
equal
conditions
like
other
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Civil No. 18-1286(RAM)
38
students who have been placed at said school. (Docket Nos.
184-1 ¶ 154 and 211-8 at 4).
95.
In response, a DOE representative states that they have
offered a placement with the necessary resources to provide
an ABA specialist, a teacher who is specialized in Autism
and certified in LINKS, a one-on-one classroom, and a
service assistant. (Docket Nos. 184-1 ¶ 155 and 211-8 at
4).
96.
Mr.
Valentín
returned, Ms.
left
the
meeting
at
10:57
a.m.
When
he
Méndez says that GAJVM’s parents do not feel
well enough to continue the meeting and then they left to
consult with their attorney. (Docket Nos. 184 ¶ 156 and
211-8 at 4).
97.
When the Parents returned after consulting their attorney,
they indicate that they were adjourning the meeting at
11:46 a.m. because they believed the purpose of the meeting
was to determine GAJVM’s placement. (Docket Nos. 184 ¶ 157
and 211-8 at 4).
98.
The Parents requested not to sign the Minutes of the June
5, 2019 meeting. (Docket Nos. 184 ¶ 158).
99.
According to the Minutes that were prepared, the Parents
did not allow said Minutes to be read nor did they discuss
the draft proposal of the IEP prepared for the meeting.
(Docket No. 211-8 at 4)
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Civil No. 18-1286(RAM)
39
100. A copy of the draft IEP for the 2019-2020 academic year
was given to the Parents. (Docket No. 184-1 ¶ 161).
101. The proposed 2019-2020 IEP prepared by Rivera-Toro provides
the following regarding the application of ABA:
2.Describe the strategies or methods that will be
used to modify the identified behavior:
1. Use techniques and strategies based on
specialized ABA models, according on [sic] the
diagnosis of [GAJVM]. The ABA approach, designed
by a certified specialist, will be applied. In
addition, visual cures, errorless teaching
techniques, through discrete trials alternating
simple and complex activities and short and long
activities in variable reinforcement schedules
starting VRI and progressing to token boards and
error correction procedures will be used.
(Docket Nos. 184-1 ¶¶ 162-163, 166 and 211-9 at 2-3).
102. Additionally, the draft 2019-2020 IEP states that as to
the Socio-Emotional services to be provided, GAJVM needs
ABA strategies. (Docket No. 184-1 ¶ 166).
103. On
July
17,
2019,
the
DOE,
through
attorney
Melissa
Massheder, sent Plaintiffs a Proposal for Individualized
Education Services School Year 2019-2020. (Docket No. 1841 ¶ 168).
104. Part V of said Proposal, describes the following Education
Services to be offered to GAJVM:
a. The Special Education Program is organized
through placement alternatives created as the
students’ education needs are identified. A
modified
self-contained
secondary
special
education Autism classroom in One to One modality
is created for G.J.V.M, candidate for Alternative
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Civil No. 18-1286(RAM)
Certification with special education teacher. Said
teacher must hold the certifications awarded by the
Department of Education of Puerto Rico in the
Special Education K-12 and Special Education in
Autism categories. The teacher will receive
training in the LINKS curriculum specialized in
Autism, with training in Applied Behavior Analysis
(ABA) strategies as well as in Crisis Management
and Intervention (CPI). The identified classroom is
spacious and will be divided and structured by
service area according to the TEACCH method. Space
will be provided in the classroom for the child to
receive integrated therapy services provided by
Provisional Remedy. The therapeutic services to be
received in the school setting include speech and
language therapy, occupational therapy, physical
therapy, oral motor therapy, and psychological
therapy. G.J.V.M will receive individualized
instruction with reasonable accommodation, task
modification, with emphasis on language, directed
tasks with manipulatives, daily schedules, space
for developing social skills, functional routines,
and behavior strategies integrating ABA strategies
and possibilities that develop independent living
skills.
b. Among the educational strategies are:
i. Evidence-based practices such as: ABA
principles,
task
analysis,
Discrete
Trial
Training or DT, differential reinforcement
system,
visual
supports,
augmentative
communication, modeling, peer teaching, pivotal
response training or PRT, functional routines,
intervention, and support to reinforce positive
behavior, among others.
ii. Intervention Program-based practices such
as: structured teaching, strategies based on
specialized ABA models.
1. ABA Approach
a. Variable reinforcement schedules, visual
supports and schedules, errorless learning
strategies during discreet trials alternating
simple and complex activities in variable
40
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Civil No. 18-1286(RAM)
41
reinforcement schedules, use of token boards,
error correction procedures, and use of Social
Stories,
b. Use of positive and negative reinforcement
consequence
techniques,
differential
reinforcement and behavior measurement,
c. Help transfer techniques (prompts)
d. Use of task analysis strategies, the LINKS
curriculum, and the Verbal Behavior Milestone
Assessment and Placement Programs (VBMAPP)
e. Verbal Behavior Training (Skinner, 1959),
such as Mand, tact, echoic and intraverbal and
textual to promote teaching based on language
and reducing behavior problems.
f.
Use
of
response
interruption
and
redirection of interfering behavior in order
to reinforce and replace negative behavior
with appropriate behavior.
g. Cooperation and tolerance of waiting
training.
h. Functional Communication Training.
iii. G.J.V.M requires services and support that
will be provided by a level 1 Special Services
Assistant in the areas if mobility, hygiene,
diet,
and
communication
assistance.
The
assistant must be trained to work with students
with Autism. In addition, the assistant must have
training on Crisis Management and Intervention
(CPI), First Aid, and must accompany the child
at all times.
iv. Teacher will receive advice on ABA-based
teaching strategies, weekly classroom visits by
a behavioral specialist 4 to 6 hours a week.
(Docket Nos. 184-1 ¶ 169 and 184-26 at 2-3).
105. On July 31, 2019, Plaintiffs, through their legal counsel
Attorney
Borrés,
sent
an
electronic
communication
to
Attorney Massheder informing their decision to decline the
DOE’s Proposal for Individualized Education Services for
the 2019-2020 School Year. (Docket No. 184-1 ¶ 171).
Case 3:18-cv-01286-RAM Document 260 Filed 08/19/20 Page 42 of 57
Civil No. 18-1286(RAM)
42
106. Said electronic communication explains that:
Plaintiffs are required to decline the service
proposal submitted on July 17, 2019 since there is
no indication that it was designed by an ABA
professional specifically for GAJVM, does not
provide ABA services throughout the educational
process, does not provide ABA backing throughout
the educational process, and applies the Links
program. In fact, the educational services section
of the proposal states that the professor will be
trained in Links, which, apparently, includes some
training in ABA strategies. Among the educational
strategies that are described as available are:
evidence
based
practices
incorporating
ABA
principles; other practices based on intervention
programs, allegedly based on ABA, including the use
of the Link curriculum, and consulting for the
teacher on how to teach strategies with ABA focus.
None of these ‘strategies’ amount to ABA services
designed and supervised by an ABA professional for
GAJVM provided throughout the educational process.
(Docket No. 184-1 ¶ 172).
I. Private Placement and the Starbright Academy
107. The
DOE’s
“Manual
of
Special
Education
Procedures”
establishes the following:
When the COMPU determines that the child’s district
of residence does not count with the service that
the child needs, the zone supervisor or designated
functionary in the school district shall request in
writing the service in another district of the
educational region, or of another region, to be
able to place the student in the adequate service.
If after having explored all the alternatives, in
accordance to your knowledge, you find that the
available services are not appropriate, you shall
request in writing the technical assistance of the
personnel for the educational region sending copy
of the application for Technical Assistance for the
Placement of Students (EE-07b) at the Central
Level.
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Civil No. 18-1286(RAM)
Faced with this request, a Supervisor from the
Central Level and the personnel placed in the
region may:
(a)
(b)
(c)
advise the COMPU about possible alternatives
that were ignored and which should be
considered;
justify the necessary resources to create the
adequate service to take care of the student’s
need; or
Evaluate the purchase of educational services
as alternative to serve the student.
When it is determined that it is necessary to
request technical assistance for the placement of
the student, it shall be clearly established in any
form or certificate related to this matter, that
said request does not constitute a commitment to
purchase of purchases until it has not been
established, with the help of personnel from the
Central Level, that the Department of Education
does not have available an appropriate public
placement for the student.
On the other hand, the purchase of services at the
private level is a determination that shall be
revised annually, with each revision of the IEP.
When the situation that originated the purchase of
services has varied, When the situation that
originated the purchase of services has varied,
whether because the student’s needs are not the
same or because the school district has managed to
identify an appropriate alternative for placement
at the public level, this shall be considered by
the COMPU to determine the student’s future
placement.
The purchase of a private service shall require the
authorization of the Associate Secretary for
Special Education. The school district shall be
responsible for evidencing that the institution
that is selected counts with:
•
•
An appropriate curriculum at the child’s level
of performance
An appropriate physical structure that permits
the child’s mobility
43
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Civil No. 18-1286(RAM)
•
•
44
Willingness to accept monitor visits
Established procedures for the offering of the
special education services in conformity with
the parameters required by the Agency
[…]
If the father is not in agreement with the placement
recommended for his son and a consensus is not
reached, the father or the Department of Education
may request an administrative hearing.
(Docket Nos. 167-1 ¶¶ 31-32, 36; 167-7 at 11-13; 184-1 ¶ 167).
108. The DOE, pursuant to the Parents’ request, completed a
Request
for
placement
Technical
alternatives
Assistance
that
have
07-B
been
with
offered
all
the
to
the
student. However, said Request was not sent to the DOE’S
central offices because GAJVM’s parents did not present a
Proposal from a private institution. (Docket No. 167-1 ¶
35).
109. On
the
first
week
of
November
2018,
GAJVM’s
parents
enrolled him at Starbright Academy for two hours of daily
services with ABA therapeutic focus. (Docket No. 184-1 ¶
11).
110. Until January 2019, GAJVM received services at Starbright
under a specialized and individualized program prepared
and
supervised
by
BCBA-D
Iris
H.
Pons
under
ABA
methodology, for two hours a day, Monday through Friday.
(Docket No. 184-30).
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Civil No. 18-1286(RAM)
45
111. From November 2018 through December 2019, GAJVM’s parents
paid $14,820.00 for private ABA services at Starbright
Academy. (Docket No. 167-11).
112. For the second semester of the 2019-2020 school year, GAJVM
did
not
receive
services
at
any
place,
due
to
the
earthquakes in Puerto Rico and the Global Pandemic. (Docket
No. 184-1 ¶ 12).
113. The DOE had a Contract in effect until June 30, 2020 with
Starbright Academy to provide ABA services to special
education
students
for
whom
the
DOE
did
not
have
a
placement in any of its schools. (Docket Nos. 167-1 ¶ 38;
226-3).
114. Pursuant to the forty-fourth section of Contract that was
in effect between Starbright Academy and the DOE, the
parties:
[A]cknowledge that the services that will be
offered by means of this contract do not constitute
the functions of apposition available at this time
in the effective classification and retribution
plans of the existing regular personnel, since the
Department does not count with sufficient human
resources with the necessary academic preparation
and professional experience, [sic] to offer the
services to be contracted at this time.
(Docket No. 226-3 at 6.)
115. The DOE does not have a contract with Starbright Academy
for the 2020-2021 school year. Id.
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Civil No. 18-1286(RAM)
46
116. There are eighteen (18) special education students for whom
the
DOE
had
no
placement
and
are
instead
placed
at
Starbright Academy. (Docket Nos. 167-1 ¶ 39-10 ¶ 14).
IV.
As
discussed
above,
ANALYSIS
the
Court
has
previously
rejected
Defendants’ repeated contention that Plaintiffs failed to exhaust
administrative remedies. (Docket No. 63). Thus, the Court need not
readdress the issue at this juncture. Furthermore, the Court
necessarily has jurisdiction to determine whether the parties
complied with its previously issued orders.
A. The proposed 2019-2020 IEP would provide GAJVM a FAPE
Despite the extensive factual and procedural background of
the case at bar, the essential question before the Court is whether
the latest proposed IEP for the 2019-2020 school year complies
with the IDEA and with this Court’s previous orders at Docket Nos.
62 and 80. Specifically, the Court faces the following fundamental
“two-fold
inquiry:
Whether
the
state
has
complied
with
the
procedures of the Act, and whether the IEP developed through those
procedures is ‘reasonably calculated to enable the child to receive
educational benefits.’” Kathleen H. v. Massachusetts Dep't of
Educ., 154 F.3d 8, 11 (1st Cir. 1998) (quoting Board of Educ. v.
Rowley, 458 U.S. 176, 206–07 (1982)). See also T.Y., 584 F.3d at
418.
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Civil No. 18-1286(RAM)
47
Since the filing of the Complaint, Defendants have scheduled
and held numerous COMPU meetings in hopes of approving an IEP.
(Facts ¶¶ 50, 65, 70, 84, 87). Furthermore, the DOE retained the
services
of
ABA-certified
specialist
Rivera-Toro
to
evaluate
GAJVM, prepare a Functional Behavior Assessment Report and assist
in the design of IEP proposals. (Facts ¶¶ 46, 53, 60-64). Although
Plaintiffs objected to a wide range of specific occurrences at
said COMPU meetings, as well as the findings of Rivera-Toro’s
Report, the preponderance of the evidence shows that Defendants
complied with the procedures required by the IDEA and the Court
for the development of an IEP. See Gonzalez v. Puerto Rico Dep't
of Educ., 969 F. Supp. 801, 809 (D.P.R. 1997) (quoting Amann v.
Stow Sch. Sys., 982 F.2d 644, 652 (1st Cir. 1992))(holding that a
procedural infraction only constitutes a violation of the IDEA
when there is "some rational basis to believe that procedural
inadequacies
education,
compromised
seriously
the
pupil’s
hampered
the
right
to
parents’
an
appropriate
opportunity
to
participate in the formulation process or caused a depravation of
educational
benefits.”).
Plaintiffs
have
not
provided
any
arguments, case law, or statutes to establish such procedural
inadequacies in this case. In fact, it was Plaintiffs who refused
to
continue
with
the
collaborative
IEP
process
in
various
instances. (Facts ¶¶ 53, 80, 86, 95, 97). “The law ought not to
abet parties who block assembly of the required team and then,
Case 3:18-cv-01286-RAM Document 260 Filed 08/19/20 Page 48 of 57
Civil No. 18-1286(RAM)
48
dissatisfied with the ensuing IEP, attempt to jettison it because
of problems created by their own obstructionism.” Roland M. v.
Concord Sch. Comm., 910 F.2d 983, 995 (1st Cir. 1990). Therefore,
“it would be improper to hold [the] School District liable for the
procedural violation of failing to have the IEP completed […] when
that
failure
was
the
result
of
[the
parents']
lack
of
cooperation.” MM ex rel. DM v. Sch. Dist. of Greenville Cty., 303
F.3d 523, 535 (4th Cir. 2002).
Plaintiffs’
singular
substantive
critique
to
the
latest
proposed IEP is its supposed insufficient incorporation of ABA
services
in
accordance
with
this
Court’s
previous
orders.
Specifically, on November 13, 2018, the Court granted Plaintiffs’
request for a preliminary injunction and specified that the final
IEP must be “designed by an ABA-certified professional, apply ABA
services, and count with the professional’s backing throughout the
education process so that plaintiffs’ child may receive a FAPE.”
(Fact ¶ 43). On January 28, 2019, the Court reiterated said
requirements when it ordered the parties to prepare a new IEP
“designed by Joan Rivera Toro [a certified ABA professional], that
applies ABA services throughout the educational process.” (Fact ¶
58).
The proposed 2019-2020 IEP, requires that the teacher receive
training and advice in ABA strategies as well as “weekly classroom
visits by a behavioral specialist 4 to 6 hours a week.” Id.
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Civil No. 18-1286(RAM)
49
Moreover, it details the specific nature of the ABA approach to be
used considering GAJVM’s diagnosis and specific needs. Id.2 An
analysis of Plaintiffs’ filings evinces that they have erroneously
interpreted the Court’s orders as requiring that an ABA-certified
professional directly provide ABA services to GAJVM at all times.
In Plaintiffs’ own words, their position is that:
Including ABA (behavior analysis) in the IEP for a
few hours implies that, the IEP would not provide
ABA throughout the educational process, that it
would be limited to a few hours weekly, and that
ABA would be to attend the behavior a few hours a
week and not the entire process. Other than the few
hours a week, there is no indication that the
specialist would be available to provide back up
throughout the education process.
(Docket No. 221-1 ¶ 99). Albeit with GAJVM’s best interest at
heart, Plaintiffs have mistakenly inserted additional, onerous
conditions that are simply not required by the plain text of the
order nor supported by the IDEA. See Lessard, 518 F.3d at 24.
(finding
that
an
IEP
need
not
provide
“an
ideal
level
of
educational benefit, in order to survive judicial scrutiny.”).
The proposed 2019-2020 IEP which was offered to Plaintiffs on July
17, 2019 was (1) designed by ABA-certified specialist Rivera-Toro;
(2) details how ABA services will be implemented; and (3) specifies
Notably, throughout the IEP process, Plaintiffs have reiterated that they want
the language of the 2017-2018 IEP approved on March 21, 2018 to be included
into any future IEPs. (Fact ¶ 82). However, a comparison of the draft IEPs for
2018-2019 and 2019-2020 shows that much of the same language was included in
the latest proposed versions (Facts ¶ 24, 78, 101). In comparison, the latest
proposed 2019-2020 IEP furnished to Plaintiffs on July 17, 2019 goes even
further than the previously approved IEP. (Fact ¶ 104).
2
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Civil No. 18-1286(RAM)
50
the nature and hours of the weekly professional support the ABAcertified-specialist will provide in compliance with this Court’s
orders. (Fact ¶ 104). The 2019-2020 IEP proposal also contains the
fundamental requirements imposed by the IDEA and the applicable
case law. See 20 U.S.C.A. § 1414 (d)(1)(A).
Further, the Court finds that the prior draft IEP for 20182019 discussed at the February 22, 2019 COMPU meeting also complied
with previous Court orders and the IDEA. (Fact ¶ 78). Said draft
IEP was prepared by ABA-certified specialist Rivera-Toro after
having personally evaluated GAJVM and conducting a Functional
Behavior Assessment Report with recommendations for his specific
needs. (Facts ¶¶ 60-64).
Throughout the process, Plaintiffs have insisted that all
IEPs contain the language regarding ABA services that was approved
for the 2017-2018 IEP at the March 21, 2018 COMPU meeting. (Fact
¶ 82). The following is a side-by-side comparison of the ABA
requirements established by the approved 2017-2018 IEP and the
proposed 2018-2019 IEP:
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Civil No. 18-1286(RAM)
51
The 2017-2018 IEP approved at
the March 21, 2018 COMPU
meeting (Fact ¶ 24)
The ABA focus shall be
applied, designed by a
certified specialist […] The
application of the ABA must
be applied throughout the
entire educational process
(with backing from a
professional certified in
ABA). […] It’s necessary that
the psychologist offer the
necessary consulting to the
teacher and assistant, in
addition to participating in
the development of the
applied ABA.
Evidently,
the
draft
The draft 2018-2019 IEP
prepared for the February 22,
COMPU meeting (Fact ¶ 78)
The ABA focus shall be
applied, designed by a
certified specialist […] The
application of the ABA must
be applied throughout the
entire educational process
(with backing from a
professional certified in
ABA). […] It’s necessary that
the psychologist offer the
necessary consulting to the
teacher and assistant, in
addition to participating in
the development of the
applied ABA. […] Utilization
of techniques and strategies
based on ABA specialized
models, according to the
diagnosis presented by
[GAJVM]. ABA focus shall be
applied, designed by a
certified specialist.
2018-2019
IEP
not
only
included
identical provisions requiring ABA services throughout GAJVM’s
education but even went further than the previous year’s IEP.
Therefore, by February 22, 2019, the DOE had complied with its
procedural and substantive obligations under the IDEA by crafting
an IEP that would provide GAJVM with a FAPE. Moreover, the DOE
continued with a collaborative IEP process for the 2019-2020 school
year, providing even more detail regarding ABA services.
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Civil No. 18-1286(RAM)
52
B. Limited Reimbursement and Compensatory Education are
Warranted
The
First
“unilateral
Circuit
choice
to
has
held
abandon
that
the
when
parents
collaborative
make
IEP
the
process
without allowing that process to run its course […] [they are]
precluded from obtaining reimbursement for the costs of private
school placement.” Five Town, 513 F.3d at 289–90. In this case,
there is ample evidence on the record to suggest that the failure
of both the 2018-2019 and 2019-2020 proposed IEPs to provide FAPE
for GAJVM is attributable to Plaintiffs unilateral abandonment of
the collaborative process and their “ABA/Starbright Academy or
nothing” approach.
However,
the
initial
draft
2018-2019
IEP
offered
to
Plaintiffs on April 5, 2018, i.e. prior to the filing of the
Complaint, failed to adequately address GAJVM’s need for ABA
services. (Facts ¶¶ 31-36). In other words, from April 2018 through
February 2019 the DOE did not comply with its obligation to provide
GAJVM with a FAPE as required by the IDEA. In the absence of a
FAPE, on the first week of November 2018, Plaintiffs enrolled GAJVM
in Starbright Academy. (Fact ¶ 109). Despite having been offered
an appropriate IEP by February 22, 2019, Plaintiffs maintained
GAJVM
enrolled
at
Starbright
Academy
until
December
2019.
Accordingly, Plaintiffs may only receive reimbursement for private
school costs during the period of time in which the DOE had
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Civil No. 18-1286(RAM)
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provided an insufficient IEP, specifically from November 2018
through February 2019.
Similarly, GAJVM is only entitled to compensatory education
for the period in which he was “effectively denied a FAPE.” Five
Town, 513 F.3d at 290 (citing Me. Sch. Admin. Dist. No. 35 v. Mr.
& Mrs. R., 321 F.3d 9, 18 (1st Cir.2003)). Thus, GAJVM shall
receive eleven (11) months of compensatory education to recompense
for the period from April 2018 through February 2019 in which he
was effectively denied a FAPE.
C. Private School Placement
Plaintiffs’
Starbright
request
Academy
is
for
not
private
school
supported
by
placement
law,
fact,
at
the
or
any
administrative record. Private school placement is only considered
proper
“when
a
public-school
system
has
defaulted
on
its
obligations under the Act.” Carter, 510 U.S. at 11. Thus, although
private school placement is certainly an alternative in some
circumstances, neither the IDEA nor the DOE’s internal regulations
create a right to private school placement. See 2000 U.S.C.A. §
1412(a)(10)(B)(i); Fact ¶ 108. Plaintiffs allege that the DOE’s
contract with Starbright Academy is evidence of its inability to
provide full-time ABA services. (Docket No. 231). The contract,
which is no longer in effect, does state that Starbright Academy
will provide services the DOE cannot because it lacks “sufficient
human
resources
with
the
necessary
academic
preparation
and
Case 3:18-cv-01286-RAM Document 260 Filed 08/19/20 Page 54 of 57
Civil No. 18-1286(RAM)
professional
54
experience,
[sic]
to
offer
the
services
to
be
contracted at this time.” (Facts ¶¶ 115-116). However, it is a
leap to interpret this clause as meaning that the DOE is incapable
of providing any of the contracted services. Plaintiffs’ have thus
failed to establish that (1) the DOE cannot provide GAJVM ABA
services;
(2)
the
Starbright
Academy
is
the
only
viable
alternative; and (3) GAJVM has a right to be placed at said school.
Notably, the Court had previously denied Plaintiffs’ request for
private school placement on January 28, 2019 and cautioned that
parents cannot unilaterally select their child’s placement under
the IDEA. (Fact ¶ 59).
Lastly, Plaintiffs request for a “stay put” order requiring
the DOE to pay for services at Starbright Academy is equally
unsubstantiated. (Docket No. 115 at 19). The IDEA requires that:
[D]uring the pendency of any proceedings conducted
pursuant to this section, unless the State or local
educational agency and the parents otherwise agree,
the child shall remain in the then-current
educational placement of the child, or, if applying
for initial admission to a public school, shall,
with the consent of the parents, be placed in the
public school program until all such proceedings
have been completed.
20
U.S.C.A.
educational
§
1415(j).
placement”
for
In
GAJVM
this
case,
would
be
the
CADEI
“then-current
School,
not
Starbright Academy. (Facts ¶¶ 9 and 38). The record shows that the
parties have not reached an agreement regarding a placement for
Case 3:18-cv-01286-RAM Document 260 Filed 08/19/20 Page 55 of 57
Civil No. 18-1286(RAM)
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GAJVM at Starbright Academy. Therefore, a stay put order requiring
Plaintiffs’ preferred placement is improper.
D. Attorneys’ Fees
The IDEA gives courts the discretion to award reasonable
attorneys’ fees to the parent(s) of a child with disabilities when
they are a prevailing party. 20 U.S.C.A. § 1415(i)(3)(B). To be
considered a prevailing party, the party must have obtained “at
least some relief on the merits of [their] claim.” Gonzalez, 969
F. Supp. at 816 (D.P.R. 1997) (quoting Farrar v. Hobby, 506 U.S.
103, 111 (1992)). Because the Court has granted in part Plaintiffs’
request for reimbursement and compensatory education, Plaintiffs
have
“received
some
relief
for
a
significant
issue
in
this
litigation” and are thus entitled to reasonable attorneys’ fees.
V.
CONCLUSION
“Jurists are not trained, practicing educators.” Roland, 910
F.2d at 989. Accordingly, “[c]ourts should be hesitant to impose
their views of what constitutes proper educational practice” on
the state. Gonzalez, 969 F. Supp. at 814 (citing Rowley, 458 U.S.
at 208). For the foregoing reasons, the Court finds that the
proposed
2019-2020
IEP
would
provide
GAJVM
with
a
FAPE
in
compliance with the IDEA and the Court’s previous orders but
declines to determine appropriate placement for GAVJM for the 20202021 school year. The Court DENIES IN PART Plaintiffs’ Motion for
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Civil No. 18-1286(RAM)
56
Summary Judgment at Docket No. 167 and GRANTS IN PART Defendants’
Motion for Summary Judgment at Docket No. 184
As a new school year is upon on us, a new IEP must be drafted.
Given the time that has elapsed, the insufficient record and the
constraints caused by the Covid-19 pandemic, the Court is not in
a position to determine an appropriate placement for GAJVM, even
on an interim basis. The Court GRANTS IN PART Plaintiffs’ request
for permanent injunction as follows:
•
The parties are hereby ORDERED to meet and approve a
2020-2021 IEP for GAJVM by September 8, 2020 that
incorporates
ABA
services
and
is
devised
with
the
assistance of an ABA-certified professional. If the
Department does not have an ABA-Certified professional
on hand, then it shall contract with one.
•
If the parties are unable to agree on an IEP or an
appropriate
placement
for
GAJVM
for
the
2020-2021
school year, the parties are ORDERED to exhaust the
administrative remedies available under the IDEA. See
20 U.S.C.A. § 1415.
Given the health and safety concerns posed by the Covid-19
pandemic, any evaluations and meetings may be held by video or
telephonic conference.
See 34 C.F.R. § 300.328. The parties are
called to set aside their differences and reminded of their
obligation to collaboratively and expeditiously prepare a 2020-
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Civil No. 18-1286(RAM)
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2021 IEP that meets GAJVM’s needs in compliance with the IDEA and
the DOE’s regulations.
Additionally, the DOE is hereby ORDERED to:
•
Reimburse
incurred
Plaintiffs
from
for
November
the
2018
private
through
school
February
costs
2019
totaling Three Thousand Twenty Dollars ($3,020.00); and
•
Provide eleven (11) months of compensatory education
corresponding to the period from April 2018 through
February 2019 in which GAJVM was not offered an IEP that
would provide him with a FAPE.
Lastly, Plaintiffs SHALL file an itemized claim for their
attorney's fees within fourteen (14) days.
Judgment shall be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 19th day of August 2020.
S/ RAÚL M. ARIAS-MARXUACH
United States District Judge
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