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Oskowis v. Sedona Oak-Creek Unified School District #9

United States District Court, D. Arizona

March 22, 2016

Matthew Oskowis, Plaintiff,
v.
Sedona Oak-Creek Unified School District #9, Defendant.

ORDER

JAMES A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE

Pending before the Court is Plaintiff Matthew Oskowis (“Plaintiff”)’s administrative appeal of an impartial due process decision brought pursuant to the Individuals with Disabilities Education Act (“IDEA”). Plaintiff contends that Administrative Law Judge Tammy L. Eigenheer (“ALJ”) erred in her decision regarding four due process complaints filed by Plaintiff on behalf of his son E.O. (“Student”). The Court now rules on Plaintiff’s appeal.

I. Background

A. Factual Background

A comprehensive factual background of this case is set forth in the ALJ’s decision. (IRR 260).[1] Only those facts relevant to the issues raised in Plaintiff’s Opening Brief (Doc. 32) will be presented here.

Plaintiff is the father of Student, a ten year old boy at the time Plaintiff filed this appeal in September 2014. (Doc. 1 at 8). Student was diagnosed with classical infantile autism on March 23, 2006, is non-verbal, and relies on an augmented communications system called Picture Exchange Communication System (“PECS”) to demonstrate his wants and needs. (Id.)

The parties do not dispute Student’s eligibility for special education and related services under the IDEA. Since March 11, 2010, Student has attended and received these services at West Sedona School in the Sedona Oak-Creak Unified School District #9 (“District”) located in Sedona, Arizona. (IRR 260 at 4). As mandated by the IDEA, Student’s Individualized Education Program (“IEP”) Team conducted annual meetings to craft Student’s IEP[2] for the following year. (Id. at 5). Through the course of two meetings in August 2012, Student’s IEP Team developed Student’s IEP for the 2012-2013 academic year (“August 2012 IEP”). (Id.) This lawsuit calls into question District’s implementation of the August 2012 IEP. See (Doc. 32).

The August 2012 IEP set forth fifteen annual goals and three short-term objectives (“STOs”) for each goal. (IRR 192 at 16-24). Practically speaking, STOs are interim steps that a student will attempt and attain before undertaking a full-fledged goal. After multiple amendments, [3] the August 2012 IEP’s goals and STOs read as follows:

Goal 1 - Student will match 8 color words (red, blue, green, yellow, orange, purple, brown, black) in black type with a corresponding color swatch in a field of 8, with 80% accuracy across 3 consecutive instructional sessions as measured using a trial-by-trial data sheet. Data will be collected for each instructional session.
STO 1: By 10/12/2012, Student will match 8 color words printed in the corresponding color, to an identical color word printed in the corresponding color, out of a field of 8 with 80% accuracy across 3 consecutive instructional sessions.
STO 2: By 12/21/2012, Student will match 8 color words printed in the corresponding color to corresponding color swatches, out of field of 8 with 80% accuracy across 3 consecutive instructional sessions.
STO 3: By 3/8/2013, Student will match 8 color words in the corresponding color to corresponding color words in black type, out of field of 8 with 80% accuracy across 3 consecutive instructional sessions.
Goal 2 - Given 6 photos of familiar people (E.g. Traci, Mary, Ken, Nancy, and two peers) in an array of 6, Student will match the correct photo to the corresponding printed word with 80% accuracy across 3 consecutive instructional sessions, using a trial by trial data sheet. Data will be collected for each instructional session.
STO 1: By 10/12/2012, Given 2 photos of familiar people (e.g. Traci, Mary) in array of six, Student will match the correct photo to a photo with the corresponding printed word, with 80% accuracy over 3 consecutive instructional sessions.
STO 2: By 12/21/2012, Given 2 photos of familiar people (e.g. Traci, Mary) in array of six, Student will match the correct photo to the corresponding printed word with 80% accuracy over 3 consecutive instructional sessions. Given 2 additional photos of familiar people (e.g. Ken, Nancy) in an array of six, Student will match the correct photo to a photo with the corresponding printed word, with 80% accuracy over 3 consecutive sessions.
STO 3: By 3/8/2013, Given 4 photos of familiar people (e.g. Traci, Mary, Ken, Nancy) in array of six, Student will match the correct photo to the corresponding printed word with 80% accuracy over 3 consecutive instructional sessions. Given 2 additional photos of familiar people (two familiar peers) in array of six, Student will match the correct photo to the corresponding photo with the printed word, with 80% accuracy over 3 consecutive instructional sessions.
Goal 3 - Student will match 10 shapes (circle, square, triangle, star, diamond, hexagon, octagon, rectangle, heart, oval) in an array of 3, with 80% accuracy across 3 consecutive instructional sessions, recorded using a trial-by-trial data sheet. Data will be collected for each instructional session.
STO 1: By 10/12/2012, Student will match 4 shapes (circle, square, triangle, star) in an array of 3, with 80% accuracy across 3 consecutive instructional sessions.
STO 2: By 12/21/2012, Student will match 6 shapes (circle, square, triangle, star, diamond, hexagon) in an array of 3, with 80% accuracy across 3 consecutive instructional sessions.
STO 3: By 3/8/2013, Student will match 8 shapes (circle, square, triangle, star, diamond, hexagon, octagon, rectangle) in an array of 3, with 80% accuracy across 3 consecutive instructional sessions.
Goal 4 - When provided with set up Student will independently brush all surfaces of his teeth with 100% accuracy across 3 consecutive instructional sessions. He will be evaluated using duration recording. Data will be collected for each instructional session.
STO 1: When provided with set up Student will allow staff to put the toothbrush on all surfaces of his teeth with 100% accuracy across 3 consecutive instructional sessions.
STO 2: When provided with set up Student will allow staff to provide full physical prompts and put the toothbrush on all surfaces of his teeth with 100% accuracy across 3 consecutive instructional sessions.
STO 3: When provided with set up Student will allow staff to provide partial physical prompts and put the toothbrush on all surfaces of his teeth with 100% accuracy across 3 consecutive sessions.
Goal 5 - Given the classroom computer, Student will independently open 2 different web browsers in 2 different locations and click on the bookmark to a desired website in more than one location, with 80% accuracy across 3 consecutive instructional sessions, recorded using a task analysis data sheet. Data will be collected for each instructional session.
STO 1: By 10/12/2012, Given the classroom computer, Student will open a web browser in 2 different locations on the screen with 80% accuracy across 3 consecutive instructional sessions.
STO 2: By 12/21/2012, Given the classroom computer, Student will open a web browser in 2 different locations on the screen and access a desired bookmark in more than one location with 80% accuracy across 3 consecutive instructional sessions.
STO 3: By 3/8/2013, Given the classroom computer, Student will open a web browser and access a desired bookmark in more than one location with 80% accuracy across 3 consecutive instructional sessions.
Goal 6 - Student will develop his social interaction/communication skills by participating in a reciprocal turn-taking activity of up to 3 exchanges on 3/5 opportunities over 2 days with decreasing physical cues (full prompting, partial prompting, visual supports only) as measured by trial-by-trial data collection. Data will be collected for each instructional session.
STO 1: By 10/12/2012, Student will participate in a turn taking activity with an adult for 3 exchanges with full physical prompting on 5/5[] opportunities.
STO 2: By 12/21/2012, Student will participate in a turn taking activity with another peer for 2 exchanges with partial physical prompting on 5/5 opportunities.
STO 3: By 3/8/2013, [Student] will participate in a turn taking activity with another peer for 3 exchanges with partial prompting on 3/5 opportunities.
Goal 7: Given his PECS book, Student will move the “I want” picture to the left side of the sentence strip and remove the reinforcer picture from the communication book and place it on the sentence strip, hand it to his communication partner and point to each icon in the correct order, for 12 new vocabulary words, with 80% accuracy across 3 consecutive instructional sessions as measured using trial-by-trial data sheets during each instructional session. Data will be collected using SLP made assessments, a minimum of 1 time per week by SLP.
STO 1: By 10/12/2012, Student will request 6 new vocabulary words by moving the “I want” picture to the left side of the sentence strip and removing the reinforcer picture from the communication book and placing it on the sentence strip, handing it to his communication partner and pointing to each icon in the correct order, with 80% accuracy across 3 consecutive instructional sessions.
STO 2: By 12/21/2012, Student will request 9 new vocabulary words by moving the “I want” picture to the left side of the sentence strip and removing the reinforcer picture from the communication book and placing it on the sentence strip, handing it to his communication partner and pointing to each icon in the correct order, with 80% accuracy across 3 consecutive instructional sessions.
STO 3: By 3/8/2013, Student will request 12 new vocabulary words by moving the “I want” picture to the left side of the sentence strip and removing the reinforcer picture from the communication book and placing it on the sentence strip, handing it to his communication partner and pointing to each icon in the correct order, with 80% accuracy across 3 consecutive instructional sessions.
Goal 8 - Given photos of six 3-step actions, Student will complete the action described with 100% accuracy across 3 consecutive sessions, recorded using a trial-by-trial data sheet. Data will be collected for each instructional session.
STO 1: By 10/12/2012, Given photos of two 3-step actions and partial physical prompting, Student will complete the action described with 100% accuracy across 3 consecutive instructional sessions.
STO 2: By 12/21/2012, Given photos of two 3-step actions, Student will complete the action described with 100% accuracy across 3 consecutive instructional sessions.
STO 3: By 3/8/2013, Given photos of four 3-step actions, Student will complete the action described with 100% accuracy across 3 consecutive instructional sessions.
Goal 9 - Given 13 objects (e.g. cow, horse, dog, duck, cat, car, truck, school bus, fire truck, motorcycle, jeep, ambulance, police car) and mats or story boards representing 2 categories (animals and vehicles), Student will sort objects into the appropriate categories with 80% accuracy across 3 consecutive instructional sessions, recorded using a trial by trial data sheet. Data will be collected for each instructional session.
STO 1: By 10/12/2012, Given 5 objects (e.g. cow, horse, car, truck, school bus), mats or story boards representing 2 categories (animals and vehicles) and gestural prompts, Student will sort objects into the appropriate categories 4 out of 5 trials on 3 consecutive instructional sessions.
STO 2: By 12/21/2012, Given 5 objects (e.g. cow, horse, car, truck, school bus) and mats or story boards representing 2 categories (animals and vehicles), Student will sort objects into the appropriate categories 4 out of 5 trials on 3 consecutive instructional sessions. Given 10 objects (e.g. cow, horse, dog, duck, car, truck, school bus, fire truck, motorcycle, jeep), mats or story boards representing 2 categories (animals and vehicles), and gestural prompts, Student will sort objects into the appropriate categories 4 out of 5 trials on 3 consecutive instructional sessions.
STO 3: By 3/8/2013, Given 10 objects (e.g. cow, horse, dog, duck, car, truck, school bus, fire truck, motorcycle, jeep), and mats or storyboards representing 2 categories (animals and vehicles), Student will sort objects into the appropriate categories 4 out of 5 trials on 3 consecutive instructional sessions. By 3/8/2013, Given 13 objects (e.g., cow, horse, dog, duck, cat, car, truck, school bus, fire truck, motorcycle, jeep, ambulance, police car), mats or story boards representing 2 categories (animals and vehicles), and gestural prompts, Student will sort objects into the appropriate categories 4 out of 5 trials on 3 consecutive instructional sessions.
Goal 10 - Using motivational/reinforcing materials, in structured and unstructured environments, Student will engage in developmental age appropriate parallel play near peers, for 10 minutes, with no prompts, across 3 consecutive instructional sessions, as measured by teacher data collection/notations. Data will be collected for each instructional session.
STO 1: By 10/12/2012, using motivational/reinforcing materials, in structured and unstructured environments, Student will engage in parallel play near peers for 7 minutes, with 2 prompts, over 3 consecutive instructional sessions.
STO 2: By 12/21/2012, using motivational/reinforcing materials, in structured and unstructured environments, Student will engage in parallel play near peers for 8 minutes, with 1 prompt, over 3 consecutive instructional sessions.
STO 3: By 3/8/2013, using motivational/reinforcing materials, in structured and unstructured environments, Student will engage in parallel play near peers for 9 minutes, with no prompts, over 3 consecutive instructional sessions.
Goal 11 - Given an outline of 3 different shapes on a half sheet of letter-size paper (e.g. square, circle, triangle), Student will color in the area of the shape with 80% coverage, on 8 of 10 opportunities over 3 consecutive instructional sessions, as measured by a worksheet permanent product to record data, Data will be collected for each instructional session.
STO 1: By 10/12/2012, Given an outline of 3 different shapes (e.g. square, circle, triangle) on a half sheet of letter-size paper, Student will color in the 3 shapes with 35% coverage, on 8 out of 10 ...

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