On December 1, 2003, Appellants filed a request for a due process hearing, seeking a change in placement and compensatory education. Michael is 19 years old and resides with his parents within the Linn Mar Community School District. Michael was diagnosed at the age of 5 1/2 years old with mild to moderate autism and mild to moderate retardation. Also at this time, the family moved from Georgia to Cedar Rapids. On March 4, 2003, Appellants requested a due process hearing to address problems in Michael's current placement and the provisi9on of FAPE. The request indicated that the Linn Mar High School environment had a detrimental effect on Michael's progress in social/communication skills, behavior, mental health, independence, education, community and vocational training, and that the placement was dangerous to his physical safety and not appropriate to his needs. Appellants requested a change in placement. The first inappropriate touch to peers was recorded March 7, 2003. Mrs. S. testified that an overall escalation in the MDE room was noted. On March 24, 2003, the diagnosis of school phobia was confirmed and a change of school setting was suggested as a possible solution.

Michael was placed in the Grant Wood AEA Life Skills program temporarily (remainder of the 202-2003 school year, for the extended year summer services and for the beginning of the 2003-04 school year). This was not to be Michael final placement. on May 5, 2003, the IEP team met to discuss Michael's progress. Appellants felt that Michael was being isolated in his program and requested a change to River Hills School.

The IEP team determined that continued placement in the Life Skills Program would be appropriate for Michael. The IEP included applied math, daily living, vocational, functional reading and writing, appropriate behavior and physical health goals. On November 24, 2003, Appellants again filed for a due process hearing, due to Appellee's failure to provide a change in placement and to provide a FAPE for Michael.

The issues of this appeal concern three requirements:1) whether the special education and related services identified in Michael's IEP were reasonably calculated to enable him to advance appropriately; 2) whether the progress monitoring enable a determination of the progress; and 3) whether his behavior plan included positive behavioral interventions, strategies and support. It was found that few meaningful data could be found to help an IEP team review progress that the programs offered to Michael were calculated to provide meaningful benefit. The school district did not provide adequate proof that Michael's IEP was reasonably calculatedto provide educational benefit. Appellants presented samples of Michael's academic work from sixth through twelfth grade to support their claims that his academic skills have deteriorated. The ALJ found that ..."we do not hold that a school district can ignore the fact that an IEP is clearly failing, not can it continue to implement year after year, without change, an IEP which fails to confer educational benefits on the student." O'Toole v. Olathe Dist. Schools Unified Sch. Dist. No. 233, 28 IDELR 177(10th Circuit 1998).

Michael's IEP and placement must be determined on an annual basis by his IEP team. The IEP team must include an autism consultant, who will assist in the development of Michael's IEP and BIP.

Appellants prevailed. Michael was denied a FAPE. Compensatory education for three years was awarded.