Valentin-Marrero et al v. Commonwealth of Puerto Rico et al

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 COMMONWEALTH OF PUERTO RICO; DEPARTMENT OF EDUCATION OF THE COMMONWEALTH OF P.R.

Defendants

AMENDED OPINION AND ORDER

(NUNC PRO TUNC) 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. 2 Civil No. 18-1286(RAM) 2

I. 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). 3 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 4 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 2019- 2020) 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 5 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 6 Civil No. 18-1286(RAM) 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’ tailored to meet a child's ‘unique needs’ and sufficient ‘supportive services’ to permit the 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- 7 Civil No. 18-1286(RAM) 7 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)). IEPs are “created by a team of individuals including the student's parents and 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 8 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 for children with special needs.” Lessard, 518 F.3d at 23. The First Circuit has repeatedly held that an IEP must be individually designed and “reasonably calculated to confer a meaningful educational benefit” in consideration with the student’s particular 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). 9 Civil No. 18-1286(RAM) 9

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, 510 U.S. 7, 15 (1993) (“Carter”). Private school placement is 10 Civil No. 18-1286(RAM) 10 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.” 2000 U.S.C.A. § 1412(a)(10)(C)(iii)(III) (emphasis added). 11 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 the findings or decision of the administrative proceedings. 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). 12 Civil No. 18-1286(RAM) 12

Because the Act authorizes courts to supplement the administrative record and ultimately rule based on the 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 13 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. 167- 1), 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: 14 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). 15 Civil No. 18-1286(RAM) 15 8. 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). 16 Civil No. 18-1286(RAM) 16 10. 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, 211-

2). 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). 17 Civil No. 18-1286(RAM) 17 14. 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). 18 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), 19 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, 20 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 21 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). 22 Civil No. 18-1286(RAM) 22 31. At the April 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 2018-

2019 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 special services assistant for GAJVM,

transportation provided by carrier, and 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 23 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: 24 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 25 Civil No. 18-1286(RAM) 25

child’s IEP and violated IDEA.” (Docket Nos. 184-1 ¶¶ 74-

75; 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 2018-

2019, 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), 26 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). 27 Civil No. 18-1286(RAM) 27 51. 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 specialist Joan M. Rivera-Toro (“Rivera-

Toro”) was available for the December 13, 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. (Docket No. 211-6 at 3). 56. 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 28 Civil No. 18-1286(RAM) 28

holding a COMPU meeting without the presence of an ABA-

certified 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 29 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 the report, GAJVM attended two evaluation

sessions of February 12 and 15, 2019 at 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). 30 Civil No. 18-1286(RAM) 30 63. Therefore, 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 31 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 2018-

2019 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). 32 Civil No. 18-1286(RAM) 32 69. The Parents 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. 184-

1 ¶ 119; 184-20 at 4). 74. GAJVM’s parents reject the results of the Functional

Behavior Assessment dated 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 33 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; 184-

20 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.

[…] 34 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. 35 Civil No. 18-1286(RAM) 35 82. 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 25, 2019, Rivera-Toro, Mildred Acevedo-

Concepcion (Special Education Facilitator for the

Municipality of Lares), Yajaira Rivera-Muniz (Special

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 184-

22 at 2). 36 Civil No. 18-1286(RAM) 36 86. 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- 37 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. 184-

1 ¶ 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 38 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 left the meeting at 10:57 a.m. When he

returned, Ms. 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) 39 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 in part 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

Masheder, sent Plaintiffs a Proposal for Individualized

Education Services School Year 2019-2020. (Docket No. 184-

1 ¶ 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 40 Civil No. 18-1286(RAM) 40

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 41 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). 42 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. 43 Civil No. 18-1286(RAM) 43

Faced with this request, a Supervisor from the

Central Level and the personnel placed in the

region may:

(a) advise the COMPU about possible alternatives

that were ignored and which should be

considered;

(b) justify the necessary resources to create the

adequate service to take care of the student’s

need; or

(c) 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 44 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 Technical Assistance 07-B with all the

placement alternatives that have been offered 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). 45 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. 46 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. ANALYSIS

As discussed above, 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. 47 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 compromised the pupil’s right to an appropriate education, seriously hampered the parents’ 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, 48 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. 49 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 2Notably, 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). 50 Civil No. 18-1286(RAM) 50 the nature and hours of the weekly professional support the ABA- certified-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 2018- 2019 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: 51 Civil No. 18-1286(RAM) 51 The 2017-2018 IEP approved at The draft 2018-2019 IEP

the March 21, 2018 COMPU prepared for the February 22,

meeting (Fact ¶ 24) COMPU meeting (Fact ¶ 78) The ABA focus shall be The ABA focus shall be applied, designed by a applied, designed by a certified specialist […] The certified specialist […] The application of the ABA must application of the ABA must be applied throughout the be applied throughout the entire educational process entire educational process (with backing from a (with backing from a professional certified in professional certified in ABA). […] It’s necessary that ABA). […] It’s necessary that the psychologist offer the the psychologist offer the necessary consulting to the necessary consulting to the teacher and assistant, in teacher and assistant, in addition to participating in addition to participating in the development of the the development of the applied ABA. 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.

Evidently, the draft 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. 52 Civil No. 18-1286(RAM) 52

B. Limited Reimbursement and Compensatory Education are

Warranted

The First Circuit has held that when parents make the “unilateral choice to abandon the collaborative IEP 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 53 Civil No. 18-1286(RAM) 53 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’ request for private school placement at the Starbright Academy is not supported by law, fact, 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 54 Civil No. 18-1286(RAM) 54 professional 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. § 1415(j). In this case, the “then-current educational placement” for GAJVM would be CADEI School, not Starbright Academy. (Facts ¶¶ 9 and 38). The record shows that the parties have not reached an agreement regarding a placement for 55 Civil No. 18-1286(RAM) 55 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 2020- 2021 school year. The Court DENIES IN PART Plaintiffs’ Motion for 56 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 October 30, 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- 57 Civil No. 18-1286(RAM) 57 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 Plaintiffs for the private school costs

incurred from November 2018 through February 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 9th day of October 2020.

S/ RAÚL M. ARIAS-MARXUACH

United States District Judge

58