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RAVI CHOPRA; NYC TELECOMMUNICATIONS CORP.; MAHENDRA SHAH; and VIPIN SHAH, Defendants.
On July 10, 2014, Plaintiff Geo-Group Communications, Inc. (“Plaintiff” or “Geo-Group”) obtained an arbitration award against Jaina Systems Network, Inc. (“Jaina”), and on April 3, 2015, Plaintiff obtained a judgment in New York State Supreme Court, New York County, confirming that award in the amount of $2, 712, 175.51. After Jaina failed to satisfy that judgment, Plaintiff's principal, Govind Vanjani, engaged with several agents and delegates of Jaina to discuss a settlement. When those conversations stalled, Vanjani began to follow the money; he now alleges that Defendants are the recipients or beneficiaries of a series of fraudulent conveyances.
After several attempts to plead viable claims, Plaintiff filed its Third Amended Complaint (“TAC”) on February 22, 2016, based largely on Vanjani's own analysis of Jaina's bank statements, and alleged actual and constructive fraudulent conveyance under the New York Debtor and Creditor Law. Following a motion to dismiss, Plaintiff's claims against Defendants Ravi Chopra (“Chopra”), NYC Telecommunications Corp. (“NYC Telecom” and, together with Chopra, the “Chopra Defendants”), Mahendra Shah (“M. Shah”), and Vipin Shah (“V. Shah” and, together with M. Shah, the “Shah Defendants”) proceeded to discovery. The record now before the Court demonstrates that Plaintiff's claims against the Chopra Defendants and M. Shah fail as a matter of law, but that genuine disputes of material fact preclude summary judgment in favor of V. Shah.
Geo-Group is a telecommunications company that was in the business of buying minutes from carriers and reselling those minutes to an array of customers. (Vanjani Cert. ¶ 6). Non-party Jaina was a customer of Geo-Group. (Id. at ¶ 7).
Ravi Chopra is the President of NYC Telecom, a company that sells phone cards and phone card subscriber identification modules (or SIMs). (Chopra Decl. ¶¶ 1-3). NYC Telecom uses the trade name STI Phone Card Warehouse. (Id. at ¶ 1). Chopra is also the sole shareholder of non-party entity STI Consultants, which is the trade name for the corporation New York Main Street Consulting, Inc., and of which Jaina was a client. (Id. at ¶¶ 1, 4-5, 31). Mahendra Shah was a shareholder and the President of Jaina. (M. Shah Aff. ¶ 1). Vipin Shah is Mahendra Shah's brother; Vipin Shah's wife, Nayana Shah, was a Jaina shareholder; and Vipin Shah and his wife often transferred money to Jaina. (V. Shah Aff. ¶¶ 3-4).
The parties do not dispute the fact of the arbitration between Plaintiff and Jaina; that it commenced on May 30, 2013; that Plaintiff prevailed in that proceeding on July 10, 2014; or that the award was confirmed by the Supreme Court, New York County, which issued judgment on April 3, 2015, in the amount of $2, 712, 175.51. (Chopra 56.1 ¶¶ 8-10).
The principal dispute among the parties remaining in this litigation concerns whether certain transfers from Jaina's accounts to various third parties were made to satisfy antecedent loan debts. Only one of these alleged loans was reduced to a writing; the loans were otherwise made pursuant to verbal agreements from private lenders. In consequence, the evidence of these loans rests entirely on testimony and affidavits from Jaina representatives and the third parties with which they transacted. Complicating matters further, two of the key witnesses to these loans - Jaina's CEO, Surajit Bose, and its accountant, Jagdish Alwani - are unavailable; Bose is believed to be living abroad and Alwani has passed away. Thus, while the parties have submitted bank records, and while these records verify the fact of the transactions, they do nothing to substantiate any party's explanation of why the transactions occurred. Accordingly, when reviewing the record before it, the Court remains mindful of the admonition that trial courts should not make credibility determinations to resolve a motion for summary judgment. Soto v. Gaudett, 862 F.3d 148, 157 (2d Cir. 2017).
The TAC, and thus the parties' submissions in connection with the instant motion, centers on four groups of allegedly fraudulent transfers; the Court reviews each in turn.
Plaintiff alleges that Jaina improperly transferred $1, 350, 000 to the law firm Robinson Brog Leinwand Greene Genovese & Gluck, P.C. (“Robinson Brog”), from February through October 2014. (TAC ¶¶ 23-26). Bank statements and wire transfer receipts reveal that from October 2013 through September 2014, Jaina received a series of cash infusions from the entities TD Time and Vision Impex. (Chopra 56.1 ¶¶ 33-47; Siddiqi Decl., Ex. A-3-A-5 (wire transfer receipts), Ex. B-1-B-8 (bank statements)). TD Time is owned by Surjeet Singh and conducts business in real estate and wholesale cell phones. (Chopra 56.1 ¶¶ 23-24). Singh testified that Jaina's accountant, Jagdish Alwani, approached him to ask for a short-term loan to help Jaina get through a “financial crisis, ” and that Singh loaned Jaina $250, 000 through a series of four transfers spanning October to December 2013. (Singh Dep. 14:12-25, 30:2-31:21, 34:2-36:11; Siddiqi Decl., Ex. A-3-A-5). Singh further testified that he expected to receive his money back in 90 days, as was customary for short-term loans in his line of business, but that he still had not been repaid at the time he testified in September 2017. (Singh Dep. 36:12-37:13).
Later, Singh entered into a transaction to buy wholesale cell phones from an individual named Dalip Kumar, who owned a company called Vision Impex. (Singh Dep. 17:10-25). Kumar also knew Alwani and wanted to assist Jaina; when Kumar billed Singh for the cell phones, he requested that Singh pay the money he owed for the phones to Jaina directly. (Id.). Singh testified, and bank records confirm, that he made two transfers to Jaina in January 2014 to satisfy his payment to Vision Impex - one for $102, 500 and one for $211, 500. (Id. at 32:4-25, 39:25-43:21; Siddiqi Decl., Ex. A-2, C-3).
Kumar testified at his deposition that he lent money (through Vision Impex) to Jaina on other occasions. (Kumar Dep. 13:6-8, 14:22-16:10). Kumar recalled that Alwani approached him and told him that Jaina was having financial troubles and needed money. (Id. at 28:1-18). Kumar testified that Jaina repaid those loans by sending money into an account held by the law firm Robinson Brog, which he had retained as counsel to Vision Impex. (Id. at 16:11-17:7). A. Mitchell Greene, a shareholder at Robinson Brog, averred that Robinson Brog had been retained by Vision Impex, and that the transfers identified in Paragraphs 23 to 26 of the TAC had been received in Robinson Brog's Interest on Lawyer Account on behalf of Vision Impex. (Greene Aff. ¶¶ 3-4). Bank statements reflect that in April, May, August, and September 2014, Vision Impex transferred a total of $938, 450 to Jaina. (Siddiqi Decl., Ex. C-3). In total, by October 1, 2014, Jaina received $1, 252, 450 directly from Vision Impex or from Singh on behalf of Vision Impex.
Kumar testified that he charged interest in the amount of 1.5% per month on his loans to Jaina. (Kumar Dep. 41:4-12). From February 26, 2014, to October 1, 2014, Jaina transferred $1, 350, 000 to Robinson Brog. (Siddiqi Decl., Ex. C-3). On October 16, 2014, and on November 3, 2014, Vision Impex made additional transfers to Jaina, totaling approximately $200, 000. (Id.). Kumar testified that these loans still have not been repaid. (Id. at 15:6-18).
Defendants are in agreement that the payments to Robinson Brog represent satisfactions of antecedent loans. At his deposition, Chopra testified that he helped to broker these loans; that he understood from either Bose or Alwani that Jaina had taken loans from TD Time and Vision Impex; and that those loans were repaid through payments to the law firm Robinson Brog. (Chopra Dep. 153:25-155:18, 161:4-9). Chopra disclaims any affiliation with Robinson Brog, and attorney Greene confirmed that, to the best of his knowledge, neither Chopra nor NYC Telecom had ever been clients of or indebted to Robinson Brog. (Chopra Decl. ¶¶ 11-14; Greene Decl. ¶ 5). M. Shah offers the same explanation for these transactions. (M. Shah 56.1 ¶ b). Plaintiff admits that Alwani solicited loans from TD Time, but disputes that Vision Impex had any role in these loans; Plaintiff likewise admits the fact of the wire transfers from TD Time and Vision Impex, but disputes that they represent loans from these entities. (Pl. Chopra 56.1 Opp. ¶¶ 31-51). Plaintiff also disputes the role of Robinson Brog in the alleged loan repayments. (Id.). In particular, the TAC alleged that the payments to Robinson Brog were made at Chopra's direction to satisfy a debt Chopra owed to that firm. (TAC ¶¶ 24-26). There is nothing in the record that supports this assertion.
The only one of the putative loans to be reduced to writing was the January 18, 2013 Commercial Loan Agreement (“CLA”) between Sanjiv Chand on behalf of his company, Kedis Enterprises LLC (“Kedis”), and M. Shah on behalf of his company, Neminath, Inc. (“Neminath”). (M. Shah 56.1, Ex. 215). The CLA memorialized a $600, 000 loan from Kedis to Neminath with 15% annual interest, and with a building Neminath owned in Williston Park, New York, posted as collateral. (Id.). The loan was personally guaranteed by M. Shah, V. Shah, and their wives. (Id.). The mortgage was recorded with the Nassau County clerk. (Id.). A wire transfer receipt from Citizens Bank shows that on January 22, 2013, Kedis transferred $600, 000 to Neminath. (Siddiqi Decl., Ex. C-18).
Chand stated in an affidavit that he understood that the money he loaned to Neminath would be used for Jaina's benefit. (Chand Aff. ¶ 6). Plaintiff fails to respond to Chopra's allegation that the transfer from Kedis to Neminath was a loan, and indeed admits that the money was to be used by Jaina. (Pl. Chopra 56.1 Opp. ¶¶ 80-81). The parties agree that $570, 000 ($600, 000, less closing costs) was transferred from Neminath to Jaina between January 22, 2013, and February 6, 2013. (Id. at ¶ 82). Chand states that he understood that Jaina - and not Neminath - would repay this loan, and that he assigned Kedis's right to collect on the loan to the entities 728 Melville Petrol LLC (“Melville”) and JMVD Hillside (“JMVD, ” and together with Kedis and Melville, the “LLC Entities”). (Chand Aff. ¶¶ 1-2, 9, 11). Chand asked Jaina to send the loan repayments to the LLC Entities directly, and he avers that the payments from Jaina to these entities that are recounted in Paragraphs 37 to 44 of the TAC were made in satisfaction of the debt incurred under the CLA. (Id. at ¶¶ 12-13). Chand also states that Kedis loaned $200, 000 directly to Jaina on December 16, 2013. (Id. at ¶ 14). A wire transfer receipt confirms this. (Siddiqi Decl., Ex. C-18). Chand states that the transfers recounted at Paragraphs 51 and 52 of the TAC were made in satisfaction of this loan. (Chand Aff. ¶ 14).
Plaintiff alleges, and bank statements confirm, that: (i) in January 2014, Jaina made two transfers to Kedis, totaling $200, 000; (ii) on August 13, 2014, Jaina transferred $200, 000 to JMVD; and (iii) in October 2014, Jaina made a series of transfers totaling $460, 000 to Melville. (TAC ¶¶ 37-44, 51-52; Siddiqi Decl., Ex. C-3). M. Shah states that these payments were made to satisfy loan debts. (M. Shah 56.1 ¶¶ e-g). Chopra supports this statement; he testified at his deposition that he was approached by Alwani, who was looking for financing for Neminath to use for the benefit of Jaina. (Chopra Dep. 45:19-52:23). Chopra testified that Jaina was chronically short on cash, and he was told that Jaina needed money quickly. (Id.). Chopra understood that because Neminath had a building to put up as collateral, Alwani and Bose decided to seek funding using Neminath that they could then transfer to Jaina. (Id.). Chopra helped arrange the loan with Chand and received a broker's fee. (Id. at 62:4-15, 77:21-24).
Plaintiff disputes that the payments from Jaina to Kedis were made in satisfaction of existing loan debts. (See, e.g., Pl. Chopra 56.1 Opp. ¶ 83). Plaintiff points to Neminath's 2014, 2015, and 2016 tax returns (submitted to the Court in connection with earlier motion practice) that show an outstanding $600, 000 loan receivable due and owing from Jaina even after these transfers were made. (Id.; see also Dkt. #180-3, 180-4, 180-5). Jaina's 2014 and 2015 tax returns show liabilities in excess of $600, 000, but do not itemize to whom those liabilities are owed. (Vanjani Cert., Ex. L-M).
Entities owned and controlled by Ravi Chopra also transferred money to Jaina. In January 2013, STI Consultants issued checks worth $29, 500 to Jaina, and in January 2014, STI Consultants wired $100, 000 to Jaina. (Chopra Decl., Ex. A-C). Copies of checks, wire transfer receipts, and Jaina's bank statements confirm these transfers. (Id.; Siddiqi Decl., Ex. C-3). In total, STI Consultants transferred $129, 500 to Jaina.
In January, September, and October 2014, Jaina made a series of transfers to STI Consultants. (See Siddiqi Decl., Ex. C-3). Chopra states in his Declaration and testified at his deposition that Jaina only repaid $109, 000. (Chopra Decl. ¶ 27; Chopra Dep. 293:3-15). The Court's review of Jaina's bank statements reveals that Jaina transferred more than $109, 000 (even accounting for alleged transfers that the parties agree did not occur or were subsequently reversed); at the very least, the bank statements show that Jaina transferred no less than $109, 000 to STI Consultants in 2014. (See Siddiqi Decl., Ex. C-3).
Chopra's company, Defendant NYC Telecom, also transferred money to Jaina. In January 2013, NYC Telecom issued a check for $25, 000 to Jaina, and in November 2013, it issued checks worth $145, 088 to Jaina. (Chopra Decl., Ex. F-H). In 2014, NYC Telecom engaged in two transactions to sell merchandise to an entity called Tricom International, LLC (“Tricom”). (Id. at ¶¶ 36-37). Invoices show that on September 24, 2014, NYC Telecom billed Tricom $182, 500 for cell phones and SIM cards, and that on October 2, 2014, NYC Telecom billed Tricom $148, 500 for SIM cards and calling cards. (Id. at Ex. I-J). Chopra states in his Declaration that he asked Tricom to wire its payments for the merchandise directly to Jaina. (Id. at ¶ 38).
Charan Narang, Tricom's manager, states in his Declaration that Chopra asked him to send his payments for the merchandise to Jaina instead of to NYC Telecom; Narang understood that those transfers would discharge Tricom's debt to NYC Telecom, and that Jaina would thereafter be indebted to NYC Telecom, not to Tricom. (Narang Decl. ¶ 9). Attached to the Narang Declaration are two wire transfer receipts - one is dated October 23, 2014, and shows a transfer of $182, 500 from Tricom to Jaina; the other is dated October 30, 2014, and shows a transfer of $148, 500 from Tricom to Jaina. (Id. at Ex. C-D). Jaina's bank statements reflect it received these transfers from Tricom. (Siddiqi Decl., Ex. C-3). In total, Jaina received $501, 088 directly from NYC Telecom or from Tricom on behalf of NYC Telecom.
According to Jaina's bank statements, Jaina transferred a total of $406, 000 to NYC Telecom from October to December, 2014. (Siddiqi Decl., Ex. C-3). Chopra testified at his deposition that he caused NYC Telecom to give this money to Jaina as a loan, and that Jaina still owed him about $100, 000 on that loan. (Chopra Dep. 297:12-298:15). Plaintiff disputes that these payments to STI Consultants and NYC Telecom were meant to satisfy existing debts; in particular, Plaintiff notes the absence of writings reflecting the alleged loans from Chopra's companies to Jaina. (Pl. Chopra 56.1 Opp. ¶¶ 58-77). M. Shah states that these payments were made to satisfy antecedent loan debts. (M. Shah 56.1 ¶¶ c-d).
Finally, the record reflects that V. Shah, whose brother and wife were Jaina shareholders, transferred large sums of money from his and his wife's bank accounts to Jaina over the years. V. Shah attaches to his Local Rule 56.1 Statement copies of checks and transaction receipts showing transfers from his accounts to Jaina, often in the tens or hundreds of thousands of dollars. (See V. Shah 56.1, Ex. 301). V. Shah also attaches documentation of a $249, 500 line of credit that he and his wife took out on their home on August 28, 2012, through Capital One Bank, as well as Capital One Bank account records showing that he drew down the full amount of the credit line on September 5, 2012, and withdrew $260, 000 from his account the next day. (Id. at Ex. 302-303). The appended documents also include receipts showing that the $260, 000 was transferred to Jaina. (Id.). V. Shah contends that he transferred nearly $2, 000, 000 to Jaina from 2010 to 2014. (Id. at Ex. 301).

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The Zhodzina human rights defender Aliaksei Lapitski, as a continuation of correspondence on the collective claims from the residents of the ‘Chernobyl House’ registered today, 05.01.2010, his appeal to local authorities in the executive committee of Zhodzina.
In his successive collective appeals in 2008 and 2009 the residents voiced their legitimate rights and asked the local public utilities, when replacing the old signs with the street name for a new one, to leave the Belarusian-language inscription on it, as well as large, to make visible from a distance inscriptions on the walls of the house in two languages, including Belarusian.
The residents recall that the construction work on the thermal rehabilitation of the left end of the residential ‘Chernobyl House’ at 3 F. Skaryny Avenue, at the time were begun only under pressure from the public before the elections of 2008, after a collective appeal to the housing department.
The last two collective appeals (in 2008 and 2009) to the housing department containing the legitimate demands of the building’s residents were replied by negative responses, both from Acting Director Belavusau (response № 284/01-08 of 14.10.2008), and from the Director of Zhodzina Housing Department Huminski (reply № 205/01-08of 04.11.2009).
Their responses referred to the fact that “the inscriptions on the houses and buildings passports in Zhodzina are given in Russian, with the knowledge and the decision of the Executive Committee of Zhodzina, which supposedly fully complies with Art. 17 of the Constitution of Belarus (!?).
Supposing it is true, one might think that the Basic Law of Belarus indeed contains such a strange Article 17 (!?), reference to which can allegedly legitimately deny the citizens of Belarus their right to see the inscriptions on their own homes with street names in their native language! !?
So, maybe for the officials with relevant thought it is enough to completely exclude the Belarusian language, both from the visual environment, and from the system of quality high school education in Zhodzina!? The recent case with Decision № 928 by the executive committee of Zhodzina is another proof to the fact. Since early 2009, this decision eliminated the last high school Belarusian-language course in gymnasium № 1 in Zhodzina, which had been attended by the Belarusian-language son of Aliaksei Lapitski, Yanka.
It turns out that the discrimination of Belarusian-speaking citizens and citizens with legitimate language and Belarusian national interests in Belarus is carried out with mere reference to the fact that in Belarus along with the Belarusian language the status of additional state language is given to the Russian language as well? However, the latter in no way indicates that the state status of the Belarusian language may be somehow undervalued or even eliminated! The priority of the national Belarusian element in the nationally unitary country of Belarus has obviously been and remains Belarusian-oriented.
To explain this, and to demand the implementation the legitimate national interests of the claimants in his address to the officials of the executive committee Aliaksei Lapitski refers to a number of Articles of the Constitution of Belarus (Art. 50, Art. 52, Art. 53, Art. 54, Art. 58 and Art. 59), which suggest the true meaning of Art. 17 of the Constitution, and the respective responsibilities of local government officials to “take necessary measures to implement and protect human rights and freedoms” (Article 59) without any compulsion to “give up one’s rights” (art.58) with preservation of “historic, cultural and spiritual heritage and other national values “(Article 54) and respect for “the dignity, rights, freedoms and legitimate interests of others ” (Art.53) and “the national traditions” of Belarus (Article 52).
And now, as it indeed follows from the Constitution and its (of current power) “public functions”, the authorities should really help in respecting the rights and freedoms of citizens, or “bear responsibility for actions that violate individual rights and freedoms” (Article 59).
Obviously, the responsibility for such unlawful actions by officials in today’s Belarus is not sufficient.
What would become of such an absurd interpretation of the Articles of the Constitution and other laws (not in favor of the inalienable rights and freedoms of citizens), as well as the discriminatory wrongful decisions of the executive committee (such as Decision #928 on the Elimination of the last high school Belarusian-language class in Zhodzina), if these “responsible persons” were really responsible for the actions before the law?!

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It's time for the annual progress report from Wrightslaw.
In this issue, you will find links to the top 10 articles, topics, and cases for 2005. The top 10 lists are designed to help our time-crunched readers find important information quickly and easily.
Nearly eight years have passed since Wrightslaw was born in 1998. We are blessed to have so many people who offer advice, ideas, and support, send new cases, and share their struggles and successes.
You came from dozens of countries - Antigua, Armenia, and Azerbaldjan; Bahrain, Belarus, Bhutan, Botswana, and Brunei; Micronesia, Mauritius, Tuvalu, and Tonga; Ukraine, Zambia and Zimbabwe.
people subscribe to The Special Ed Advocate. Subscribe - it's Free!
In January, our first DVD video, Surviving Due Process: Stephen Jeffers v. School Board won an Award of Excellence from the Aegis Awards.
The reauthorized Individuals with Disabilities Education Act went into effect on July 1, 2005.
In August 2005, we published Wrightslaw: IDEA 2004. This book includes the full text of Parts A and B of the Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004) with analysis, commentary, and resources. Wrightslaw: IDEA 2004 ($14.95 for the print version; $9.95 for the e-book) was a big hit! This book is in the second printing with nearly 10,000 copies in print. Thank you!
In November 2005, we published Wrightslaw: From Emotions to Advocacy, 2nd edition (FETA-2). The second edition was completely revised to include IDEA 2004, No Child Left Behind, and a great deal of new information about tests and evaluations. The new 2nd edition is also easier on your budget (our publisher reduced the price from $29.95 to $19.95). The first printing sold out within weeks so FETA-2 is now in the second printing. Thank you!
Wrightslaw: No Child Left Behind is going back for a third printing - more than 10,000 copies are in print. Thank you!
Learn more about Wrightslaw books.
As we reflect upon these figures - the 1.7 million people who downloaded 6.5 million files from Wrightslaw in 2005, your mails and letters, the awards, book reviews, and great book sales, we want to thank you again for making 2005 a terrific year.
By working together, we are making a difference for nearly 7 million children with disabilities and their families.
"If you are not part of the solution, you are part of the problem."
#3. How Can I Find an Evaluator? Tutor? Advocate? Attorney?
#4. Functional Behavioral Assessments: What? Why? How? Who? by Stephen Starin, Ph.D.
#6. Who is Eligible for Protections Under Section 504 but Not Under IDEA?
#7. 10 Tips: How to Use IDEA 2004 to Improve Your Child's Special Education by Wayne Steedman, Esq.
More articles about special education law and advocacy.
Here are the top 10 cases (most downloads) in 2005.
#1. Honig v. Doe, 484 U.S. 305 (1988). Decision by U. S. Supreme Court in discipline case on behalf of emotionally disturbed children who had academic and social problems.
#2. Board of Ed. of Hendrick Hudson Central School Dist. v. Amy Rowley, 458 U.S. 176 (1982). First decision in a special education case by the U. S. Supreme Court; defined "free appropriate public education."
#3. Zachary Deal v. Hamilton County TN Board of Ed (6th Cir. 2004) Infamous case in which school board paid more than 2.8 million in attorneys fees in battle against parents of child with autism - and lost; procedural & substantive IDEA violations; FAPE; educational benefit; predetermination of placement; role of regular ed teacher; reimbursement.
#4. Florence Co. Sch Dist Four v. Shannon Carter, 510 U.S. 7, (1993). If the public school defaults and the child receives an appropriate education in a private placement selected by the parents, the parents are entitled to be reimbursed for the child's special education.
Procedural violations, prior written notice requirements, manifestation determination review, suspensions for more than 10 days, expedited hearings, "passing grades" and FAPE, homebound instruction violates LRE.
#6. Reusch v. Fountain (MD) One of the first cases about extended school year (ESY).
#7. School Bd of Henrico County VA v. Z.P. Parents of young child with autism rejected traditional preschool program and requested tuition reimbursement for private program that utilized one-on-one ABA therapy. Other issues included deference to hearing officer as fact finder and deference to professional educators.
#8. Cedar Rapids v. Garret F. Favorable decision from U. S. Supreme Court on behalf of child who needed related services to attend school.
#9. Stefan Jaynes v. Newport News Public Schools - Parents reimbursed for ABA program for child with autism; procedural safeguards, notice, statute of limitations.
#10. Schaffer v. Weast, 546 U. S. (2005) New decision from Supreme Court held that the burden of proof in due process hearings is placed upon the party seeking relief.
Wrightslaw offers a variety of special education law and advocacy programs taught by experts in the field of special education law and advocacy.
February 20: Northern VA - What You Don't Know About IDEA CAN Hurt You!
March 15: Annapolis, MD - What You Don't Know About IDEA 2004 CAN Hurt You!
We are scheduling programs for Fall 2006 and 2007. If you are interested in bringing a Wrightslaw program to your area, please read Conference Information.

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Hello again. In the last post, I promised a discussion of 2018’s significant evidence opinions from the Appeals Board, along with civil procedure cases, and, well, everything else.
Starting with evidence, a pair of cases discussed the admissibility of the C-32 Standard Form Medical Report.
In Watson v. Catlett Construction, the Board affirmed the exclusion of C-32s proffered by a self-represented employee, where he failed to file originals and they weren’t accompanied by the required qualifications of the physicians. However, in Quarles v. Fedex Ground, the trial court allowed a C-32 into evidence that didn’t have an attachment of the expert’s qualifications, but the court nonetheless rejected the expert’s causation opinion. The Board found no abuse of discretion.
The Board further agreed with the trial court that an employee’s attorney shouldn’t be allowed to testify regarding a purported oral settlement agreement in Peppers v. ThyssenKrupp Elevator Corp.
In Eaves v. Ametek, the Board concluded that the Rules of Evidence apply to cases in which the trial judge makes a decision on the record, just as they apply for in-person hearings.
Importantly, in Eaves, the injured worker offered medical bills into evidence without the requisite foundation or proof as to whether they arose from reasonable and necessary treatment. The Board held the trial court erred in admitting the bills. Reinforcing the point, the Board cited Eaves to find error where the lower court admitted unauthenticated bills into evidence in Miller v. Logan’s Roadhouse.
The civil procedure cases addressing summary judgment are probably the most newsworthy, since 2018 saw a distinct increase at the trial court level of these motions.
The Board affirmed the lower court’s denial of summary judgment in Rye v. Calsonic Kansei North America, reasoning that at the summary judgment stage, a court can’t weigh evidence or assess credibility.
As for case management, in Love v. Delta Faucet, the Board upheld the trial court’s discretionary decision to continue a compensation hearing but encouraged judges to make express findings in line with the “extraordinary circumstances” standard.
In Yeaman v. Kindred Health Care, the Employer moved to dismiss for failure to prosecute, after a mediator had filed a Notice of Withdrawal of the Petition for Benefit Determination, and two years passed before the employee filed another PBD. The lower court denied the motion, which the Board upheld. The Board reasoned that, in the two-year interim, either party could’ve investigated the claim, requested medical records or taken other actions to move the claim forward, but neither did.
In 2016, lawmakers amended section 50-6-226(d)(1)(B) to allow for awards of attorneys’ fees on wrongful denials. Last year, a few cases on this amendment finally came before the Board.
The trial court cited Thompson as its basis for denying fees in Simpson v. City Auto, ruling that the case didn’t fall within “extremely limited circumstances” to justify fees at the interlocutory stage. The Board affirmed.
As for fees based on unpaid medical bills under section 50-6-226(a)(1), the Board found the trial court’s award premature in Bowlin v. Servall and reversed.
In Travis v. Carter Express, (yes, I know I already mentioned this opinion ̶ it’s that important), the Board ruled on an issue of first impression that a prospective agreement signed before the work injury waiving any workers’ compensation claim an employee might have doesn’t constitute an affirmative act to pursue benefits for this injury in another state or a knowing and willful acceptance of benefits in another state.
Moving on, in Carpenter v. Southern Transit, the Board affirmed the trial court’s ruling regarding the existence of an implied contract of hire to determine which alleged employer was liable.
At the trial court level in Tennessee workers’ compensation practice, the majority of evidentiary hearings are interlocutory. A handful of cases come before the Court and Board more than once before they are finally resolved. Watson v. Catlett Construction, mentioned above, came before both courts twice last year. In the second appeal, the Board explained the applicability of the “law of the case” doctrine.
The Board discussed stipulations in two opinions.
First, the Board reversed the lower court’s denial of permanent disability benefits in Demotte v. United Parcel Service, where the employer’s counsel stated at a scheduling hearing that “there is no dispute about the . . . rating,” but then counsel challenged the rating at trial. The Board reasoned that parties should be bound by the statements and agreements made by their attorneys in open court.
Second, in Albright v. Hercules HVAC Pads, the Board affirmed the trial court’s denial of temporary disability benefits at the interlocutory stage, holding that counsel’s “stipulations” at trial weren’t binding but rather were ambiguous or incomplete statements.
The Board reiterated its disdain for bifurcated trials in Foriest v. United Parcel Service.
As for self-represented litigants, in Jackson v. Transwood, a self-represented employee informed the trial court of his limitations in reading and writing. The Board held he nonetheless remained obligated to prove his case, whether or not he was represented by counsel.
Whew! That’s a lot of cases. Clearly, 2018 was another productive year for the Board. The docket is just as full in the coming year. We’re looking forward to more guidance from the Board.
Have a happy and safe 2019.

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Administrative Law Judge (ALJ) James R. Goff, Office of Administrative Hearings (OAH), Special Education Division, State of California, heard this matter on October 25 and 26 and November 17 and 27, 2006, in Tustin, California.
Michael S. Cochrane, Esq., of the Law Offices of Michael S. Cochrane, represented Student at the hearing. Student’s father attended the hearing.
Jennifer Brown, Esq., of the law firm of Rutan & Tucker, LLP, represented Tustin Unified School District (District). Also present at the hearing on behalf of the District was Dr. Lori Stillings, Associate Superintendent.
On June 30, 2006, Student filed his request for a due process hearing. A second amended complaint was filed on August 29, 2006. This is the operative pleading. The due process hearing commenced on October 25, 2006, and proceeded through October 26, 2006, when it was necessary to continue the last day of hearing to November 17, 2006. The hearing was continued to November 27, 2006, in order to receive Exhibits 11 and 13. Upon the conclusion of testimony and receipt of all exhibits, the parties agreed that final written arguments would be filed no later than December 11, 2006. The matter was submitted for decision on December 11, 2006.
1. Did the District deny Student a free and appropriate public education (FAPE) through the following procedural violations of the Individuals with Disabilities in Education Act (IDEA) and related state law?
A. The failure to consider whether Student required an extended school year (ESY) at his annual individual education plan (IEP) meeting in November 2005, which denied Student’s parents an opportunity to use the hearing process to resolve disputes regarding ESY services until after the ESY had ended?
B. The failure to comply with the requirement of prior written notice in its rejection of the recommendations of Vincent Redmond, Student’s Applied Behavioral Analysis (ABA) supervisor, for 200 hours of service for School ESY 2006.
C. The failure to offer a single specific placement at the May 2, 2006 IEP.
D. The failure to provide prior written notice for the elimination of Student’s goals and objectives from the November 2005 IEP, and the replacement with a single annual goal at the May 2, 2006 IEP.
E. The failure to provide in the May 2, 2006 IEP, goals and objectives to meet Student’s needs.
F. The failure to provide prior written notice of Student’s placement in a mixed second/third grade classroom for the 2006-2007 school year.
A. The District failed to provide Student with 200 hours of ABA therapy during the 2006 ESY.
B. The District failed to offer Student ABA services for 52 weeks a year during the 2005-2006 school year based on a contract and not based on Student’s needs.
C. The District failed to offer Student an appropriate setting for ABA services during ESY 2006.
D. The District failed to provide Student with transportation to access his speech and language therapy services for ESY 2006.
Student contends that the District violated Education Code section 56345, subdivision (b)(3), when it failed to include the terms of its proposed ESY for Student in the November 10, 2005 IEP. The District responds that the issue was precluded by the April 24, 2006 settlement agreement. District further indicates that Education Code section 56345, subdivision (b)(3), does not compel the District to provide the details of a proposed ESY plan at any particular time. It provided the details of the plan at the May 2, 2006 IEP.
Student also contends that the District denied him FAPE in the May 2, 2006 IEP by failing to provide prior written notice that the District rejected the Center for Autism and Related Disorders (CARD) recommendation for ABA therapy for the 2005-2006 ESY. He points to the necessary criteria for a prior written notice and contends there is an absence of those criteria in any written document formulated by the District in regard to the May 2, 2006 IEP. The District counters that either there was no requirement for prior written notice with regard to the May 2, 2006 IEP, or that the IEP document satisfied the requirement.
Again Student applies the criteria for written notice and contends the District failed to provide a single specific offer of placement. He asserts that the District’s conduct infringed upon his parents’ participation in Student’s IEP and effectively caused a loss of educational benefit for Student. The District’s response is that its offer was a single specific placement. Even if there were flaws in the IEP, they do not render the IEP invalid. Parents participated in the IEP process and Student has not suffered any loss in educational benefit from any of the flaws.
Another procedural violation alleged by Student was that the District failed to include the goals from the November 10, 2005 IEP, in the May 2, 2006 IEP. District argues that Student misunderstands the process when he asserts that Student’s goals for November 10, 2005, were not included in the May 2, 2006 triennial IEP. The IEP specifically noted that an additional goal was added for Student in the May 2, 2006 IEP.
Next, Student contends that the replacement of the November 10, 2005 IEP goals and objectives with a single new goal was not designed to provide for Student’s needs. Again, the District responds that Student mischaracterized what occurred. A new goal was added and none of the earlier goals were eliminated.
Finally, Student contends that the District provided a substantively inappropriate IEP on May 2, 2006. He points to the absence of an appropriate venue for the ESY services, that the proposed ESY contained insufficient ABA services, that the evidence shows that CARD’s recommendation was not refuted, and that he was denied FAPE because the District failed to provide transportation to and from his speech and language therapy (S/L).
In response the District notes that Student failed to demonstrate that he needed 80 more hours of ABA therapy during ESY, that the District’s ESY plan provided for sufficient hours of ABA therapy to avoid significant regression, and that Student suffered no regression at the beginning of the 2006-2007 school year. As to Student’s contention that he needed a summer camp environment for ESY, the District responds that its plan provided an appropriate environment with flexibility to meet Student’s needs. Finally, the District’s position with regard to transportation is that parent requested reimbursement and that was agreed to until a new S/L service provider was found.
1. Student is a nine-year-old boy, who attends third grade at Peters Canyon Elementary School. Since May 2003, Student has lived with his parents within District. In April 2000, Student qualified for special education services under the primary handicapping condition of autism.
2. As discussed below in Legal Conclusion 7, a school district is not under a specific time constraint to provide a proposal for ESY services.
3. An IEP meeting for Student was convened on November 10, 2005. At the meeting, the IEP team agreed that Student qualified for ESY. A specific description of the nature and extent of the services to be provided to Student during the ESY was put off until near the end of the school year. Parents did not agree to the IEP at the time. Subsequently, the parties filed due process requests regarding the IEP.
4. On April 24, 2006, the parties entered into a settlement agreement. Among the terms of the agreement was that the parties agreed that the November 10, 2005 IEP would be implemented and that an IEP meeting would be conducted to delineate what was to be provided to Student in the ESY for summer 2006.
5. An IEP meeting was held on May 2, 2006, at which time a specific ESY program was accepted by the IEP team. The Student’s parents did not agree to this IEP. Student filed the pending due process complaint.
6. Student has failed to establish that District acted unreasonably in formulating and presenting the ESY proposal for 2006. In the April 24, 2006 settlement with the District, Student agreed that the ESY services would be delineated at the May 2, 2006 IEP meeting.
7. Legal Conclusion 6, below provides that a school district is obligated to provide a student’s parents prior written notice when it proposes to alter the student’s educational placement. A change in placement can occur if the adjustment in services is likely to affect in some significant way the student’s learning experience. Prior written notice can be the IEP document itself.
8. At the May 2, 2006 IEP meeting, Vincent Redmond, Jr., a Senior Supervisor with CARD, recommended that Student receive 200 hours of ABA services during the 2006 summer.1 In his opinion Student needed this amount of therapy to maintain his emerging skills and to avoid the possibility of regression over the summer. Mr. Redmond agreed that Student did not need a school environment for the ESY. Student was performing at above grade level in his academic endeavors. At the due process hearing, Mr. Redmond explained that his recommendation was based on CARD’s standard recommendation that students in its program receive 52 weeks of ABA services. A school ESY typically runs for four weeks in summer shortly after the normal school year ends. Mr. Redmond’s proposal would cover the entire summer.
9. Dr. Lori Stillings is the associate superintendent for the District, and is the director of the Special Education Local Planning Agency (SELPA). She has had extensive experience in providing for the education of autistic students. In her background, she spent eight years as a special education teacher. Dr. Stillings was familiar with Student; she had reviewed Student’s records, his triennial assessments, and the records from his prior school district. Dr. Stillings attended several of Student’s prior IEPs, before she became the Associate Superintendent at the District. Dr. Stillings had observed Student in the classroom. She met Student after one of Student’s IEPs.
10. At the May 2, 2006 IEP for Student, Dr. Stillings attended at the request of Student’s father, who insisted that he would not participate unless Dr. Stillings was present. At the meeting, Dr. Stillings was surprised by Mr. Redmond’s recommendation for 200 hours of ABA service for Student during the summer of 2006. She understood that Student was nearing completion of his ABA treatment from CARD, which was scaling back on the number of hours of ABA therapy that Student required.
1 Student had been receiving CARD services since the first grade. Under contract with the District, CARD provided Student with 48 weeks of ABA services for the 2005-2006 school year.
2 The psychoeducational testing showed that Student was functioning within the average range of overall intellectual development. His nonverbal skills are significantly more developed than his language related skills (SS 121 vs. 104). Academically, the Woodcock-Johnson, Third Edition (WJIII) testing showed that Student was performing within or above his age and grade level of expectancy in most academic areas with the exception of listening comprehension. Parents had not returned information requested in the areas of the autism rating scale, behavior rating scale, and adaptive behavior rating scales. The speech and language therapist indicated that Student was within the average range in semantics, except receptive vocabulary. In syntax/morphology, he was in the average range, except for recalling sentences subtest. The therapist felt this was the result of poor attention and impaired auditory processing as opposed to a deficit in syntax or morphology. In articulation, Student produced all speech sounds correctly. However, at times he omitted final consonant sounds. Pragmatics based on the teacher’s input was below age expectancy. Again, Student’s parents did not return the home profile. In social cognition, the Student’s skills were inconsistent. In auditory processing, the Student’s scores were in the borderline range. The therapist recommended adding another goal in this area to the previously established goals.
3 Lisa B. Hull Rae is Student’s speech and language pathologist. She recommended that Student have small group speech and language sessions for part of his treatment. She was unable to provide the small group therapy. Student’s parent and the District were endeavoring to find a new speech and language provider that could hold small group sessions. It was agreed that Ms. Hull Rae would continue to provide the single sessions until a new provider could be located.
4 Student raised another issue for the first time in his written argument. Student contends that failing to identify CARD as the ABA service provider and setting forth the provider’s qualifications in the May 2, 2006 IEP for the 2006-2007 school year was a procedural violation. In accordance with Legal Conclusion 2, that issue will not be considered.
11. The May 2, 2006 IEP was Student’s triennial assessment to determine if he still required special education services. His annual IEP was due in November 2006. The assessments indicated that Student still qualified for special education in the category of autism. After review and discussion of Student’s triennial assessments,2 Dr. Stillings recommended that Student be provided with 120 hours of ABA therapy to be exercised by CARD and parents as they deemed appropriate. She further recommended 16 hours of speech and language therapy to be provided between June 20, 2006 and August 25, 2006. The one hour sessions were to be divided into eight hours of individual sessions and eight hours of small group therapy.3 The areas to be addressed were social skills, pragmatics, auditory processing, and receptive language skills. Student’s father did not ask Dr. Stillings any questions in regard to her recommendation of 120 hours of ABA therapy.
12. The District’s IEP team members agreed to the recommendation from Dr. Stillings for ESY for 2006. Mr. Redmond and Student’s parents did not agree.
13. District had no obligation to provide prior written notice, other than the IEP document itself that it did not agree with Mr. Redmond’s recommendation for 200 hours of ABA treatment for summer 2006.
14. A prior written notice of a change of placement must be a single specific offer. Again this is discussed in more detail in Legal Conclusion 6.
15. The May 2, 2006 IEP noted that “District is offering a total of 120 hours of ABA services to be provided by NPA during summer ESY.” It then provided for supervision and clinic times to be provided to Student. Additionally, it provided for parent reimbursement for transporting Student to speech and language therapy, until a new provider could be found. At the meeting, Dr. Stillings indicated that CARD would provide the ABA services at CARD’s and the parents’ discretion during the summer. Use of the services was not confined to the ESY.
16. The offer provided by the District is a single specific offer in compliance with the law.
17. As indicated in Factual Finding 7 and Legal Conclusion 6, the District has an obligation to provide written prior notice to the parents of a student when it proposes to change his educational placement including services.
18. At the May 2, 2006 IEP, an additional goal was added to Student’s IEP, at the recommendation of the speech and language therapist.
19. The District did not propose to eliminate the goals for Student that were established at the November 10, 2005 IEP, when they met pursuant to the settlement agreement on May 2, 2006, to discuss a proposal for ESY services for Student for 2006. The triennial assessment that was conducted on May 2, 2006, did not replace the annual goals set on November 10, 2005, at Student’s annual IEP meeting.
20. Legal Conclusion 1 indicates that a school district providing special education to a student has an obligation to prepare an IEP for that student. The IEP is required to contain measurable annual goals including academic and functional goals designed in part to provide for the educational needs of the student.
21. As indicated in Factual Finding 18, the May 2, 2006 IEP merely added one new goal to those previously established at the November 10, 2005 IEP.
22. Student failed to establish that the goals for Student contained in the annual November 10, 2005 IEP were abandoned at the triennial assessment on May 2, 2006. District provided an appropriate IEP when it added to Student’s goals.
23. As noted in Factual Finding 7 and Legal Conclusion 6, a District has the responsibility of providing prior written notice to a student’s parents when it proposes to change his placement. It is not responsible for providing written notice of minor discretionary actions by the District.
24. For the 2006-2007 school year, Student was placed in Ms. Cameron’s second-third grade combination class for third grade. Ms. Cameron has been teaching for 25 years. She has a master’s degree and teaching credential in reading. The decision on placement is made by the teachers from the prior year. The teachers attempt to create a balance between students. They attempt to blend high academic second graders with grade level third graders.
25. At the due process hearing Student’s father agreed with the placement in Ms. Cameron’s second-third grade combination class.
26. The District bears no responsibility to provide a written prior notice of a class assignment. Student essentially withdrew the issue.
27. Even if one of the contentions above constituted a procedural violation of IDEA, the evidence established that it would have been harmless. There was no evidence that Student’s parents were prevented from participating in Student’s IEP meetings. Parents were active participants. While Student’s father did not ask questions regarding the 120 hours recommendation, he made his concerns known to the IEP team with extensive comments during the taped IEP meeting, which was admitted as an exhibit. Father requested and received copies of protocols and requested reimbursement for taking Student to and from speech and language therapy in Lake Forest. Student has failed to establish that Student suffered a loss of educational benefit or that his parents were prevented from participating in his IEP.
28 Legal Conclusions 1, 4 and 5, discuss the provision of FAPE. A school district must provide FAPE to each disabled child. FAPE consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.
29. As indicated in Factual Finding 8, Mr. Redmond had recommended at the May 2, 2006 IEP, that Student receive 200 hours of ABA therapy during the summer of 2006. Mr. Redmond, as the supervisor of Student’s ABA therapy, received reports from the CARD aides who worked with Student. The reports related how Student was performing in relation to the program that CARD provided for ABA therapy. Mr. Redmond personally saw Student two to three times a month either at a clinic meeting or through observation. Sometimes Mr. Redmond missed a month of any contact with Student.
30. The recommendation for 200 hours of ABA therapy for Student was based on CARD’s program of 52 weeks a year of therapy. ABA therapy depends on consistency in application for its success in dealing with autism.
31. For the 2005-2006 school year, CARD had contracted with District to provide 48 weeks of ABA therapy at home and in school for Student.
32. Mr. Redmond agreed that Student’s above grade level academic performance meant that Student did not need a classroom environment for his ESY 2006 program, but he felt that if Student only received 120 hours of therapy at home for ESY 2006, there was a possibility that Student might regress in the skills he was developing at the end of 2006. Mr. Redmond agreed with Student’s father that a camp environment would be an appropriate place for part of the ABA therapy during ESY 2006. Father had provided a camp for Student that included academic components.
33. Dr. Stillings stated that by providing a lump sum of hours for ESY 2006, CARD would have the flexibility to be able to maintain Student’s skills during the summer. In her opinion, the 120 hour recommendation would be sufficient to avoid any significant regression that Student might experience over the summer. She made her proposal for the 2006 ESY, after hearing reports on Student’s assessments as discussed in Factual Findings 10 and 11.
34. Kimya Alavi (formerly Azizi) was Student’s second grade teacher at Peters Canyon Elementary School. She attended the May 2, 2006 IEP meeting and, when asked, indicated that Student was performing at above grade level in most areas and did not need an academic setting for the 2006 ESY. At the due process hearing, Ms. Alavi indicated that Student was a scholar in her second grade class. In his testing he scored at grade level in all areas except writing, but achieved that level by the end of the term. He was above grade level in math. Ms. Alavi missed the first few months of the school year, but Student handled the transition to a long term substitute and back to her as his teacher in second grade without difficulty. Ms. Alavi felt she was more familiar with Student than Mr. Redmond since she dealt with Student every day.
35. Ms. Cameron, who was Student’s second-third grade teacher, indicated that Student had a weakness in socialization when he entered her class but that he was making progress. She indicated that Student particularly enjoyed making oral presentations in class. He was at grade level when he entered her class and he was on target to meet standards for third grade. Student’s weakness in socialization skills was not affecting his educational development. Mr. Redmond mentioned to her that he felt the combination class was a good fit for Student.
36. Rosa Patterson is an autism specialist with the District. Her background included five years at the Lovass Institute at UCLA, where she developed exams, graded the exams and taught classes for Dr. Lovass. She had previously worked at a Regional Center where she treated children from birth to three years of age. The CARD program was developed based on the Lovass Institute and its programs of ABA therapy. Ms. Patterson was familiar with Student. She had attended a clinic meeting for Student with CARD. She had attended two IEP meetings for Student. She had observed Student at a preschool placement for Student. She reviewed CARD’s records concerning Student. Ms. Patterson believed that Dr. Lori Stillings had a better understanding of autism than did Mr. Redmond.
37. Ms. Patterson opined that from reviewing CARD’s records of Student’s progress, he appeared near the end of the CARD program. He was performing very well. She was concerned about the inconsistency in the reporting that CARD demonstrated regarding Student’s ABA therapy. She noted that CARD was spending most of its time in the home. Their reports reflected that Student was not tracked at school that much. Student’s records did not reflect signs of regression in periods when one might expect to see some regression. In the instance where Ms. Alavi missed school in the second grade, CARD’s reports reflected that Student reacquired his skills within two weeks. She did not see in the CARD records any sign that Student had lost any educational benefit from periods when he was not at school. In her opinion, Student did not require a camp environment for ESY 2006 for his ABA therapy. She explained that in home ABA therapy did not mean that it was provided strictly in the home, but applied to extensions of the home such as the mall, a park or the library. In her opinion, ABA therapy should be developed in the home and then generalized. Her experience was that CARD invariably recommended a 52-week program of ABA therapy.
38. Student has failed to establish that he was denied FAPE, as a consequence of the District’s rejection of the recommended 200 hours of ABA therapy the summer of 2006. No evidence was presented that Student would suffer significant regression during the summer without the 200 hours of ABA therapy, or that he could not recover from any regression in a relatively short period of time. There is no evidence that Student lost any educational benefit from the 120 hours approved by the District. Similarly, Student has failed to establish that there were any significant skill losses to be expected in the reduction of hours from 200 to 120 that were of such degree and duration so as seriously to impede progress toward his educational goals.
39. As indicated in Factual Finding 28, it is the District’s obligation to provide Student with FAPE.
40. As indicated in Factual Findings 30 through 37, there is evidence that the District provided FAPE to Student. There is no evidence that Student was denied an educational benefit as a result of the 48-week plan adopted by the District.
41. As indicated in Factual Finding 28 and 39, it is the District’s obligation to provide Student with FAPE.
42. Mr. Redmond’s testimony that a camp was a recommended location for Student’s ESY for 2006, does not appear to be objective and was not credited. Mr. Redmond is not a professional educator. He works at a for-profit business of providing ABA services. His testimony followed the father’s election to pay for the camp where apparently ABA services were provided. Unless Mr. Redmond’s testimony was persuasive, he would have to collect for these services from the father. Additionally, reliance upon professional educators is not misplaced.
43. As indicated in Factual Findings 30 through 37 and 42, there is no evidence that a camp setting was required to provide Student FAPE during the 2006 ESY. Ms. Patterson indicated that CARD services could have been implemented through the home program to meet any of Student’s needs. The educational component of the Student’s ESY plan was not productive even according to Mr. Redmond from CARD. The District did not deny Student FAPE when it did not provide for him to go to camp.
44. As indicated in Factual Finding 28, 39 and 41, it is the District’s obligation to provide Student with FAPE. Transportation, as may be required to assist a child with a disability to benefit from special education, is a related service encompassed within the requirements of FAPE.
45. As indicated in Factual Finding 15, the District agreed to provide Student’s father with reimbursement for the cost of transporting Student to his speech and language therapy, until a new provider could be found. In Factual Finding 27, the Student’s father specifically asked for reimbursement as a means of obtaining transportation at the May 2, 2006 IEP meeting.
46. Student obtained the form of transportation that he asked for and the District agreed. The District did not deny Student FAPE in regard to the transportation issue.
1. IDEA, the federal Individuals with Disabilities Education Act (20 U.S.C. § 1400 et seq.) and the concomitant California special education programs (Ed. Code, § 56000 et seq.) were enacted to make public education available to children with disabilities and other exceptional needs. Under IDEA, a state school district must provide a free and appropriate public education to each disabled child. (20 U.S.C. § 1412(1).) FAPE consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction. (Hendrick Hudson Central School District v. Rowley (1982) 458 U.S. 176, 188-189 [73 L.Ed.2d 690, 102 S.Ct. 3034] (Rowley ).) The instruction and services must comport with an individually tailored IEP, which must be developed under strict statutorily based procedures. (See 20 U.S.C. § 1401(11).) The IEP is a written document detailing the student’s current educational level, a statement of measurable annual goals, including both academic and functional goals of the education plan. (Ed. Code, § 56345, subd. (a)(2); 34 C.F.R. § 300.320 (a)(2)(i) .) Participants on the IEP team are expected to be knowledgeable as to the student’s disability and educational history. (Shapiro v. Paradise Valley Unified School District No. 69 (9th Cir. 2003) 317 F.3d 1072, 1076, 1078.) The IEP team is required to meet at least annually to review student’s progress and the plan. (Ed. Code, § 56343, subd. (d).) The term of an IEP is one year. The annual IEP replaces the prior IEP.
3. Under Schaffer vs. Weast (2005) 546 U.S. 49 [126 S.Ct. 528, 163 L.Ed.2d 387], the party who filed the request for due process has the burden of persuasion at the due process hearing. Here the Student filed for a due process hearing and bears the burden of persuasion.
5. The law requires only that the IEP in place “be reasonably calculated to confer a meaningful educational benefit on the child.” (Adams v. State of Oregon (9th Cir. 1999) 195 F.3d 1141, 1149.) The Ninth Circuit has directed courts not to “judge an [IEP] in hindsight; [but] rather . . . look to the [IEP’s] goals and goal achieving methods at the time the plan was implemented and ask whether these methods were reasonably calculated to confer [the child] with a meaningful benefit.” (See Pitchford v. Salem-Keizer School District No. 24J (2001 D.Or.) 155 F. Supp.2d 1213, 1234; see also, T.R. v. Kingwood Township Board of Education (3rd Cir. 2000) 205 F.3d 572, 577.) The evidence must establish an objective indication that the child is likely to make progress. The evidence of progress or lack thereof must be viewed in light of the limitations imposed by the child’s disability. (Walczak v. Florida Union Free School District (2nd Cir. 1998) 142 F.3d 119, 130.) In looking to the substantive requirements of IDEA, it must be determined whether the proposed IEP as implemented was reasonably calculated to provide student with a meaningful educational benefit.
8. The content of ESY services are governed by the necessity to prevent skills or benefits already accrued from the prior year from facing significant jeopardy due to regression or lack of retention. (McQueen v. Colorado Springs School District No. 11 (D. Colo. 2006) 419 F.Supp.2d 1303, 1308-1310.) Additional skills training may be included in ESY when the IEP team determines that this is necessary to meet ESY skills maintenance goals.
Issue 1: Did the District deny Student FAPE through a procedural violation involving t he failure to consider whether Student required an extended school year (ESY) at his annual individual education plan (IEP) meeting in November 2005, which denied Student’s parents an opportunity to use the hearing process to resolve disputes regarding ESY services until after the ESY had ended?
12. No. As discussed above in Factual Findings 2 through 6, and Legal Conclusions 3 and 7, Student cannot complain about a process that he had created through his settlement agreement with the District on April 24, 2006. Even so, ESY was considered at the November 10, 2005 IEP. Parents were able to have a due process hearing in regard to these issues and, if they were successful, would have been able to receive appropriate reimbursement or compensatory education.
Issue 2: Did the District deny Student FAPE through a procedural violation involving t he failure to comply with the requirement of prior written notice in its rejection of the recommendations of Vincent Redmond, Student’s Applied Behavioral Analysis (ABA) supervisor for 200 hours of service for Extended School Year (ESY) 2006?
13. No. As discussed in Legal Conclusion 6, the District was obligated to provide prior written notice to parents when it proposed a change in placement. A change in placement can occur when related services are modified in a way that is likely to affect in some significant way the student’s learning experience. A district is not required to provide prior written notice when a district makes minor discretionary decisions with regard to a student’s curriculum or assignment of teachers or entertaining suggestions for alternatives to a proposed placement. Requiring prior written notice for every suggestion of an alternative placement or service considered at an IEP meeting would render the process unworkable.
14. Student raised in his final written argument a more appropriate focus for his argument which was the District’s proposal for specific ESY services for 2006. As discussed above in Factual Findings 7 through 13 and Legal Conclusion 2, Student did not appropriately raise the issue in his request for due process and it will not be considered.
Issue 3: Did the District deny Student FAPE through a procedural violation involving t he failure to offer a single specific placement at the May 2, 2006 IEP?
15. No. As discussed in Legal Conclusion 6, the District is required to offer a single specific offer of placement in order to comply with IDEA. Based on Factual Findings 15, 27 and 33 and Legal Conclusions 3 and 6, Student failed to carry his burden of proof that the District did not provide a single specific offer of placement in regard to the ESY 2006. Even if the offer could have been more detailed, it was fully discussed at the IEP meeting and there was no danger of Student’s parents being confused by the offer. Parents were not presented with several alternatives to choose from. Furthermore, as noted in Legal Conclusion 11, a procedural violation must result in deprivation of educational benefit or a serious infringement of Student’s parents’ opportunity to participate in the IEP process for a procedural error to adversely affect an IEP. There was no risk of deprivation of an educational benefit from the variation in the ESY proposal. Parents did not raise a question regarding the offer and they otherwise actively participated in the IEP meeting.
Issue 4: Did the District deny Student FAPE through a procedural violation involving the failure to provide prior written notice for the elimination of Student’s goals and objectives from the November 2005 IEP, and the replacement with a single annual goal at the May 2, 2006 IEP.
16. No. As noted in Legal Conclusion 6, the district is required to provide prior written notice of a proposal to change a student’s placement. Student has not carried his burden of persuasion; in fact, his argument rests on a misapprehension of the circumstances. Based on Factual Findings 11, 18 and 19, and Legal Conclusion 1, Student’s November 10, 2005 goals were not affected by the May 2, 2006 triennial assessment IEP. The goals established in November 2005 remain in effect until the next annual IEP on November 10, 2006. The record established that an additional goal was adopted by the IEP team at the May 2, 2006 IEP, but it did not replace the existing goals. Student has not been denied FAPE.
Issue 5: Did the District deny Student FAPE through a procedural violation involving the failure to provide in the May 2, 2006 IEP, goals and objectives to meet Student’s needs.
17. No. This is identical to Issue 4, and the same answer is applicable. The IEP team added a goal for speech and language at the May 2006 IEP to the previously established November 2005 IEP goals that were still in effect. Student has not been denied FAPE.
18. No. Based on Factual Finding 25 and Legal Conclusion 6, Student’s father conceded at the hearing that this was not an issue. Further, legally the district is not required to provide prior written notice of assignment of a child to his next grade class.
Issue 7: Did the District deny Student a FAPE through the failure to provide Student with 200 hours of ABA therapy during the 2006 ESY?
19. No. As discussed above in Legal Conclusions 3, 7, 8 and 9, the burden was on the Student to establish that the significant skill losses that Student would suffer when he only received 120 of the recommended 200 hours of ABA therapy during ESY 2006, were of such degree and duration so as to seriously impede progress toward his educational goals. Additionally, the student must establish that the reduction in hours will result in deprivation of educational benefit or a serious infringement of the parents’ opportunity to participate in the IEP process. In Factual Findings 28 through 38, it was established that the Student did not carry his burden of proof on any of the appropriate criteria. The ESY 2006 services had little to do with Student’s academic situation. When he returned to school for third grade, his father had provided the other 80 hours of therapy and a summer camp that included an unnecessary academic component. Student had suffered no regression.
Issue 8: Did the District deny Student a FAPE through the failure to offer Student ABA services for 52 weeks a year during the 2005-2006 school year based on a contract and not based on Student’s needs?
20. No. Student has failed to establish that he was denied FAPE, because the District only offered 48 weeks of ABA therapy for the 2005-2006 school year. Student contends that the District was controlled by its contract with CARD to provide 48 weeks of therapy and did not consider Student’s needs. This contention is refuted by the facts demonstrating that Student’s needs were of particular concern to the District. Based on Factual Findings 1 through 5, 9 through 12, 15, 18, 24, 25 and 33 through 37, the evidence established that Student was progressing at school and in his ABA therapy. He was progressing in school from year to year. The District’s program which addressed Student’s needs was extremely successful. It is problematic that this issue should even be considered in light of Factual Finding 3, that parents entered into a settlement agreement that accepted the November 10, 2005 IEP, which was based on the 48-week contract with CARD.
Issue 9: Did the District deny Student a FAPE through the failure to offer Student an appropriate setting for ABA services during ESY 2006?
21. No. Based on Factual Findings 37 and 42, Student failed to establish that camp was a necessary environment for him to receive ABA services during ESY 2006.
Issue 10: Did the District deny Student a FAPE through the failure to provide Student with transportation to access his speech and language therapy services for ESY 2006.
22. No. As discussed in Legal Conclusion 10, a district is required to provide related services if they are necessary for a student to receive an educational benefit. Transportation, as may be required to assist a child with a disability to benefit from special education, is one of the related services that may be required to be provided. Based on Factual Findings 15 and 27, the District agreed to provide reimbursement to parents for transporting Student to speech and language therapy until a new provider could be found. This is a form of transportation. It is not the only form, but it is the one that father requested at the May 2, 2006 IEP meeting. Student has not carried his burden to establish that providing reimbursement instead of District provided transportation denied Student FAPE.
Pursuant to California Education Code section 56507, subdivision (d), the hearing decision must indicate the extent to which each party has prevailed on each issue heard and decided. District prevailed on all issues presented for determination.


The Case: Leach v. Taylor , 124 S.W.3d 87 (Tenn. 2004).
The Basic Facts: Plaintiffs, children of a deceased man, signed a consent to allow the harvest of some of their father's organs by a hospital. The Defendant funeral home received the body after the harvesting and proceeded with the embalming process. After doing so, Defendants made a series of distressing statements to the children about the state of the body and the extent of damage that had been incurred due to the harvesting process. Plaintiffs assert that these statements ultimately proved to be untrue and brought an action for negligent and intentional infliction of emotional distress.
"As a threshold matter, we address Defendants' argument that Plaintiffs' claim is time-barred because the discovery rule does not apply to toll the statute of limitations in this case." 124 S.W.3d at 90.
In contrast to the rationale for the discovery rule are policy reasons for the development of statutes of limitations to ensure fairness to the defendant by preventing undue delay in bringing suits on claims, and by preserving evidence so that facts are not obscured by the lapse of time or the defective memory or death of a witness.
Id . at 820 (quoting Teeters v. Currey, 518 S.W.2d 512, 515 (Tenn. 1974))." Id.
"We emphasized that '[w]hen determining whether to apply the discovery rule, this court considers the specific statutory language at issue, and balances the policies furthered by application of the discovery rule against the legitimate policies upon which statutes of limitations are based.' Id. Using this analysis, we held in Quality Auto that the discovery rule may not be applied to extend the six-month statute of limitations for slander actions. In so holding, we noted that the injury to reputation is complete at the moment the slanderous words are uttered, and that policies of preventing stale claims and preserving evidence, upon which statutes of limitations are based, are especially applicable to slander actions because of the intangible nature of the evidence and the injury. Id. at 822." Id.
"In this appeal, Defendants urge this Court to extend the rationale of Quality Auto and hold that the discovery rule does not apply to cases involving false oral statements. We decline to do so. When we balance the policies furthered by application of the discovery rule in this case against the legitimate policies upon which the statute of limitations is based, we find that the application of the discovery rule is appropriate. As noted in Quality Auto, slander actions are governed by a six-month statute of limitations which expressly declares that the time for filing suit begins to run at the moment the words are uttered. Tenn. Code Ann. § 28-3-103 (2000). This shortened, specific limitations period reflects the legislature's judgment that special circumstances surround a claim for slander that call for a shorter limitations period than most other torts. In contrast, intentional infliction of emotional distress is a personal injury tort, governed by the general one-year statute of limitations. Tenn. Code Ann. § 28-3-104 (2000). There is no language in this statute of limitations precluding application of the discovery rule. Indeed, the discovery rule is routinely applied to determine when a cause of action accrues under this statute. See Lane-Detman, L.L.C. v. Miller & Martin, 82 S.W.3d 284, 294 (Tenn. Ct. App. 2002), Miller v. Niblack, 942 S.W.2d 533, 540 (Tenn. Ct. App. 1996), Gosnell v. Ashland Chem., Inc., 674 S.W.2d 737, 739 (Tenn. Ct. App. 1984). Furthermore, unlike slander, the nature of the elements of the tort of intentional infliction of emotional distress do not militate against application of the discovery rule. Finally, from the record on appeal, it does not appear that the facts of this particular case make the application of the discovery rule unjust. Defendants were aware of Plaintiffs' initial lawsuit against the medical entities and that Plaintiffs were relying on the truth of Defendants' statements in that action. There is simply no basis for holding that the discovery rule does not apply as a matter of law in this case." Id. at 90-91.


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P. M. A. Sloot, S. V. Ivanov, A. V. Boukhanovsky, D. A. M. C. van de Vijver, and C. A. B. Boucher. Stochastic simulation of HIV population dynamics through complex network modelling. International Journal of Computer Mathematics 85(8), pp. 1175-1187.
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S. Harfst, S. Portegies Zwart, and S. McMillan. Status and future of MUSE. Astronomische Nachrichten 329(9-10), pp. 885-891.
J. M. Bernsdorf. Simulation of complex flows and multi-physics with the Lattice-Boltzmann method. Supervised by P. M. A. Sloot and A. G. Hoekstra.
J. Cui, J. A. Kaandorp, and C. M. Lloyd. Simulating in vitro transcriptional response of zinc homeostasis system in Escherichia coli. BMC Systems Biology 2, p. 89.
J. Cui and J. A. Kaandorp. Simulating complex calcium-calcineurin signaling network. Lecture Notes in Computer Science pp. 110-119.
D. Groen, S. Portegies Zwart, S. McMillan, and J. Makino. Simulating N-body systems on the grid using dedicated hardware. Lecture Notes in Computer Science pp. 86-95.
E. Zudilova-Seinstra, N. Yang, L. Axner, A. Wibisono, and D. Vasunin. Service-oriented visualization applied to medical data analysis. Service Oriented Computing and Applications 2(4), pp. 187-201.
A. Tirado-Ramos. Second Workshop on Teaching Computational Science WTCS 2008. Lecture Notes in Computer Science 5102, pp. 657-658.
M. Wiens, S. I. Belikov, O. V. Kaluzhnaya, T. Adell, H. C. Schröder, S. Perovic-Ottstadt, J. A. Kaandorp, and W. E. G. Müller. Regional and modular expression of morphogenetic factors in the demosponge Lubomirskia baicalensis. Micron 39(4), pp. 447-460.
S. F. Portegies Zwart and H.-C. Chen. Reconstructing the initial relaxation time of young star clusters in the Large Magellanic Cloud. Astronomical Society of the Pacific conference series 388, pp. 329-336.
B. Baliś, M. Bubak, and J. Wach. Provenance tracking in the ViroLab Virtual Laboratory. Lecture Notes in Computer Science 4967, pp. 381-390.
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B. Baliś, M. Bubak, M. Pelczar, and J. Wach. Provenance querying for end-users: A drug resistance case study. Lecture Notes in Computer Science 5103, pp. 80-89.
K. Rycerz, M. Bubak, P. Sloot, and V. Getov. Problem solving environment for distributed interactive applications. In: Achievements in European research on grid systems: CoreGRID Integration Workshop 2006 (selected papers), October 19-20, Krakow, Poland. ISBN 9780387728117. pp. 55-66.
R. M. Badia, R. Sirvent, M. T. Bubak, W. Funika, and P. Machner. Performance monitoring of Grid superscalar: visualization modes. In: CoreGRID integration workshop 2008 -- Integrated Research in Grid Computing: April 24, Hersonissos, Crete, Greece. ISBN 978-960-524-260-2. pp. 266-274.
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J. L. Guisado, F. Fernández de Vega, F. Jiménez Morales, K. A. Iskra, and P. M. A. Sloot. Parallel Cellular Automata-based simulation of laser dynamics using dynamic load balancing. In: First International Workshop on Parallel Architectures and Bioinspired Algorithms. ISBN 9788469165126. pp. 49-55.
M. B. N. Kouwenhoven, A. G. A. Brown, S. P. Goodwin, S. F. Portegies Zwart, and L. Kaper. Pairing mechanisms for binary stars. Astronomische Nachrichten 329(9-10), pp. 984-987.
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N. T. Faber, C. M. Boily, and S. F. Portegies Zwart. On time-dependent orbital complexity in gravitational N-body simulations. Monthly Notices of the Royal Astronomical Society 386(1), pp. 425-439.
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L. Y. L. Muller. Multi-touch displays: design, applications and performance evaluation. Supervised by R. G. Belleman.
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A. Sottoriva. Mathematical Modeling of Tumour Growth and Invasion Using a Hybrid Cellular Automaton. Supervised by P. M. A. Sloot and L. Vermeulen.
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B. Baliś, M. Bubak, and M. Wegiel. LGF: A flexible framework for exposing legacy codes as services. Future Generation Computer Systems 24(7), pp. 711-719.
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H.-C. Huang, A. Konagaya, V. Lanza, and P. M. A. Sloot. Guest Editorial Introduction to the Special Section on BioGrid: Biomedical Computations on the Grid. IEEE Transactions on Information Technology in Biomedicine 12(2), pp. 133-137.
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J. A. Kaandorp. Exploring Theoretical Morphospaces, Book review: The Geometry of Evolution: Adaptive Landscapes and Theoretical Morphospaces. George R. McGhee. BioScience 58, pp. 271-273.
A. Gualandris, S. Harfst, D. Merritt, and S. Mikkola. Evolution of stellar orbits in the galactic centre. Astronomische Nachrichten 329(9-10), pp. 1008-1011.
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W. Funika, D. Harężlak, D. Król, and M. Bubak. Environment for collaborative development and execution of Virtual Laboratory applications. Lecture Notes in Computer Science 5103, pp. 446-455.
J. B. W. Geerdink. Entropic and multiple relaxation time lattice Boltzmann methods compared for time harmonic flows. Supervised by A. G. Hoekstra.
B. Ó Nualláin, D. A. M. C. van de Vijver, C. A. B. Boucher, A. Tirado Ramos, and P. M. A. Sloot. Enhanced Decision Support for HIV Drug Resistance Interpretation. In: Proceedings of the 6th European HIV Drug Resistance Workshop.
S. L. Moll, R. de Grijs, P. Anders, P. A. Crowther, S. S. Larsen, L. J. Smith, and S. F. Portegies Zwart. Dynamical mass of a star cluster in M 83: A test of fibre-fed multi-object spectroscopy. Astronomy & Astrophysics 490(1), pp. 125-133.
Y. Demchenko, O. Mulmo, L. Gommans, C. de Laat, and A. Wan. Dynamic security context management in Grid-based applications. Future Generation Computer Systems 24(5), pp. 434-441.
K. Rycerz, M. Bubak, and P. M. A. Sloot. Dynamic interactions in HLA component model for multiscale simulations. Lecture Notes in Computer Science 5102, pp. 217-226.
K. J. Rycerz, P. M. A. Sloot, and M. T. Bubak. Dynamic Interactions in HLA Component Model for Multiscale Simulations. In: Computational Science - ICCS 2008: 8th International Conference, Krakow, Poland, Proceedings, Part II. ISBN 978-3-540-69386-4. Lecture Notes in Computer Science 5102, pp. 217-226.
D. Groen, S. Portegies Zwart, S. McMillan, and J. Makino. Distributed N-body simulation on the grid using dedicated hardware. New Astronomy 13(5), pp. 348-358.
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M. Bubak, M. Turała, and K. Wiatr. Cracow'07 Grid Workshop: October 15-17, 2007 Cracow, Poland: proceedings. ISBN 9788391514191.
M. Bubak, G. D. van Albada, J. Dongarra, and P. M. A. Sloot. Computational science - ICCS 2008: 8th international conference, Kraków, Poland, June 23-25, 2008: Proceedings, part III. ISBN 9783540693888.
M. Bubak, G. D. van Albada, J. Dongarra, and P. M. A. Sloot. Computational science - ICCS 2008: 8th international conference, Kraków, Poland, June 23-25, 2008: Proceedings, part II. ISBN 9783540693864.
M. Bubak, G. D. van Albada, J. Dongarra, and P. M. A. Sloot. Computational science - ICCS 2008: 8th international conference, Kraków, Poland, June 23-25, 2008: Proceedings, part I. ISBN 9783540693833.

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