This appeal was brought on behalf of Benjamin S., who is a student with disabilities and medically diagnosed with Asperger's syndrome and a Dysthymic Disorder. Benjamin was described by his parents as a student with exceptional academic skills but requiring very specialized services to meet his needs in areas such as social interaction, basic social communication and personal and community living skills. The primary issues brought forth in these proceedings are related to the unilateral placement of Benjamin in a specialized out-of-state facility serving students with Asperger's syndrome. According to the Appellants, this placement was a result of the lack of planning for an appropriate program for Benjamin for the 2003-2004 academic year including the need to consider a full continuum of options to address Benjamin's academic and behavioral needs and providing programs and services to deliver the various social interaction, communication, personal and community living methodologies required for Benjamin to receive an appropriate special education program.

Benjamin was placed in residence at Orchard Place during the 2001-2002 school year and all of his ninth grade year in 2002-2003. While at Orchard Place, the Ames School District provided for his education through a contract with the Des Moines School District. Focus was on the goal areas of coping skills and homework completion. In the 2002-2003 school year Benjamin was integrated from the self-contained setting into a horticulture class offered in a comprehensive school setting by Des Moines. A staffing was held with personnel from AEA 11, Orchard Place and Benjamin's parents in January 2003. According to the IEP developed at this time Ben continued to need a special school setting. The question of what constitutes the "specially designed instruction" also seems particularly relevant in these proceedings. The special education services portion of the IEP also noted that, under the supports for school personnel, that "Selected teachers will receive training and support specific to autism and/or Asperger's Syndrome." The IEP also contained a behavioral support plan. Within the section of this IEP dealing with the Least Restrictive Environment Considerations, it is noted that Ben would attend the school he would attend if nondisabled. The parents had requested that Ben's IEP be provided in a residential educational program. The reason for rejecting this option was that the residential educational program was not the least restrictive program. The perception that the team did not carefully consider the option of a residential placement for Ben was substantiated by testimony of a member of the AEA Autism team who attended the April-May 2005 IEP meeting. According to the Discharge Summary dated July 2003 from Orchard Place, the treatment team's recommendation was for Ben to attend a residential placement school that would meet his therapeutic need. A number of other individuals representing medical and mental health specialties also supported that need for a more specialized residential setting for Benjamin.

The LEA and AEA seem to assert that the IEP and professional opinions of those working with Benjamin in the clinical setting, specifically, as relected in the last IEP prepared for Benjamin while he was a resident of Orchard Place, were not adequate. Benjamin returned to live with his parents in June 2003. He received an extended year special education program during the summer in Newton, Iowa in a self-contained program involving an instructor and one other student. Benjamin was expected, in accordance with his IEP, to attend Ames Schools in August 2003. On August 19, 2003, Appellants enrolled Benjamin in Montcalm School and notified school officials of this move 2 days prior to the beginning of school. This action was a result of the position being taken by the District and AEA. There was also the questions of the importance of a condition such as Asperger's Syndrome on planning the special education program and services needed for a student such as Benjamin. The AEA does focus on students within the Autism Spectrum Disorder, but does not specifically differentiate programming for students with Aspergers. The position of the parents regarding their contention that the IEP team failed to consider the continuum options possible to serve Ben was summarized as the parents had specifically requested extended day services, preferably in a residential setting, and they had done so in writing. The request was supported by the recommendation of several experts, including the therapeutic team at Orchard Place. The duty to discuss whether the child needed such services was clear, and the failure to permit such a discussion was a procedural denial of FAPE.

At the center of this appeal is the question of whether the program described in the IEP developed for Bejamin in April and May 2003 did meet the appropriateness criteria as delineated in the Supreme Court ROWLEY standard as being "reasonably calculated to confer educational benefit" for Benjamin. The Appellants presented a significant volume of information describing the shortcomings of this proposed program in meeting Benjamin's needs, particularly in areas such as social functioning, social interaction and coping skills. On the other hand, the Appellees presented expansive information demonstrating what they believe to be the foundation of an appropriate program for Benjamin to be delivered at Ames High School. Reaching a conclusion regarding whether this proposed program meets standards regarding FAPE is the ultimate question. A counterclaim asserted by Appellees is that Benjamin's parents did not provide sufficient notice as required under the IDEA in unilateral placement situations and are thus not entitled to reimbursement. Within the regulations implementing the 1997 amendments to the IDEA, it is stated that a number of considerations shall be completed in making determinations regarding educational placement. The 1999 Regulations implementing the IDEA state, "If placement in a public or private residential program is necessary to provide special education and related services to a child with a disability, the program, including non-medical care and room and board, must be at no cost to the parents of the child." (CFR 300.302)

While the school district and AEA provide an obviously skilled and competent staff to design and provide programs for students with autism spectrum disorders, there are several procedural matters that significantly interfere with the potential of an IEP. The apparent unwillingness of the professionals involved with the IEP process to adequately consider the continuum of needs of Benjamin and the continuum of programs and services that might be needed to meet his needs. There are significant issues related to the apparent refusal of those responsible for holding the IEP to include any representatives of the program which had been serving Benjamin and was actually continuing to serve him. The ALJ believes that the parents did meet the substantive foundation of the expectations in their responsibilities regarding prior notice before a unilateral placement under the IDEA.