UNITED STATES DISTRICT COURT                             
               DISTRICT OF MINNESOTA                                 


OSSEO AREA SCHOOLS,                                                       
INDEPENDENT SCHOOL                                                        
DISTRICT NO. 279,                                                         

          Plaintiff,                                                 

v.                            MEMORANDUM AND ORDER                        
                         Civil File No. 21-1453 (MJD/DTS)            

A.J.T., by and through her                                                
parents, A.T. and G.T.,                                                   

          Defendant.                                                 


Christian R. Shafer, Elizabeth M. Meske, and Laura Tubbs Booth, Ratwik, Roszak 
& Maloney, PA, Counsel for Osseo Area Schools, Independent School District 
No. 279.                                                                  

Amy J. Goetz, School Law Center, LLC, Counsel for A.J.T.                  


I.   INTRODUCTION                                                         
Defendant AJT is a teenage girl with a severe form of epilepsy called 
Lennox-Gastaut Syndrome.  As a result of her disability, AJT has the intellectual 
capacity of an 18-month-old child and has seizures continually throughout the 
day.  Her seizures are so severe early in the day that she is unable to attend 
school in the morning.  Since moving to Plaintiff Osseo School District in 2015, 

AJT and the District have agreed that she is unable to begin school until noon 
due to her medical condition but have been unable to reach consensus regarding 
when her school day should end.                                           

In 2021, an administrative law judge ruled in favor of AJT and ordered the 
District to provide AJT with “instruction at home that includes discrete trial 

training interventions between 4:30 p.m. and 6:00 p.m. each school day,” among 
other things.  The District appealed that decision to this Court.   Both parties 
have now filed motions for Judgment on the Record.  (Doc. 43 (Defendant AJT’s 

Motion for Judgment on the Record)); (Doc. 46 (Plaintiff Osseo Area School’s 
Motion for Judgment on the Administrative Record).)  The Court heard oral 

argument via Zoom on July 13, 2022.                                       
As discussed in detail below, the evidence in the record supports the ALJ’s 
conclusion that “whenever there was a conflict between the need to maintain the 

regular hours of the school’s faculty, and [AJT’s] need for instruction, the regular 
hours of the faculty was always the prevailing and paramount consideration.”  

The correct standard is whether AJT’s IEP established an educational program 
that was “appropriately ambitious in light of her circumstances.”  Endrew F. ex 
rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 

(2017).  

Without more than 4.25 hours of schooling a day, the IEP did not establish such a 
program.  AJT’s de minimis educational progress since moving to the District 
does not change that fact, especially in light of her regression in certain areas and 

the fact that certain historical goals had to be cut from her IEP due to the 
shortened school day.  In addition, the District’s shifting reasons for denying the 

in-home instruction AJT seeks to make up for the morning hours she is not in 
school were never based on AJT’s needs.  Accordingly, AJT’s Motion for    
Judgment on the Record is granted and the District’s Motion is denied.    

II.  BACKGROUND                                                           
A.   Factual Background                                              

     1.   The District                                               
Defendant AJT lives with her parents, AT and GT, within the boundaries 
of Plaintiff Osseo Area Public Schools, Independent School District No. 279 (“the 

District”).  AJT has attended public schools in the District since fall 2015 when 
her family moved from Boone County, Kentucky to Minnesota.  (Doc. 15 at 973 

(ALJ Order, Facts ¶ 24).)  AJT was in fourth grade at the time she entered the 
District.  (Doc. 14-15 at 36 (Sept. 21, 2015 IEP).)                       
     2.   AJT                                                        

At the time of the administrative hearing in February 2021, Defendant AJT 
was a 15-year-old girl with Lennox-Gastaut Syndrome (“LGS”), a severe form of 
epilepsy that causes AJT to have seizures continually throughout the day.  (Doc. 

14-11 at 53 (Breningstall Hr’g Test. at 255); Doc. 15 at 200 (Wills H'rg Test. at 534), 
970 (ALJ Order, Facts ¶ 1).) Her seizure activity is especially severe throughout 

the night and in the morning.  (Doc. 14-15 at 392 (Kohlhepp Aff. ¶ 10), 463.)  Due 
to LGS, AJT has significant cognitive disability and functions in the range of an 
18-month-old child.   (Doc. 15 at 785 (Shams H'rg Test. at 954).)  She does not 

speak verbally and uses adapted signs somewhat inconsistently.  (Doc. 14-15 at 
248-79 (Ex. 133).)  She requires assistance for walking, balance, and toileting.  

(Id.)                                                                     
Dr. Galen Breningstall, AJT’s treating neurologist, testified at the 
administrative hearing that AJT had a significant cognitive disability caused by 

LGS.  (Doc. 14-11 at 59 (Breningstall H'rg Test. at 279); Doc. 15 at 784-85 (Shams 
H'rg Test. at 947-54).)  Individuals with LGS often plateau in their functional and 

intellectual gains by middle school.  (Doc. 15 at 239 (West H'rg Test. at 689); 785 
(Shams H'rg Test. at 953).)  AJT’s constant seizure activity has impacted her 
cognitive ability and development.  (See, e.g., id. at 200 (Wills H'rg Test. at 534); 

(West H'rg Test. at 688); 785 (Shams H'rg Test. at 952-53).)              
Dr. Karen Wills, the District’s expert and a pediatric neuropsychologist 
who has evaluated over 500 children with profound intellectual disabilities, at 

least two hundred of whom have seizure disorders, and who has participated in 
developing educational programming for more than 7000 students, testified: 

Well, [AJT] is actively having seizures all day every day.  And it is 
clear from the description of [AJT] herself as an individual that that 
ongoing seizure activity interferes greatly with memory, with        
attention and with new learning and also her mood, and for most      
people, just overall alertness.                                      

(Id. at 200 (Wills H'rg Test. at 534); see also Doc. 14-15 at 386 (Wills Aff. ¶ 6).) 
At school, AJT is                                                    
working to pick up objects and release her grasp on command          
(putting things into containers), to use a crayon to mark a single   
stroke on paper, to comply with single word commands about           
physical actions (e.g., to sit or stand), to demonstrate intention and a 
sense of purpose (e.g., protesting or demanding an activity), and to 
anticipate events based on the social context (e.g., raising her arms to 
be dressed).                                                         

(Doc. 14-15 at 386 (Wills Aff. ¶ 9.)                                      
She is just beginning to learn how to imitate others, to take turns in 
reciprocal interaction (such as tossing a ball back and forth), to share 
joint attention (looking at or listening to something when another   
person calls attention to it), and to initiate social contact or     
purposeful object-manipulation (exploring things on her own, rather  
than following the commands and prompts of adults).                  

(Id.)                                                                     
     3.   Services Provided in Kentucky                              
According to AJT’s father, while a student in Kentucky, AJT received 
instruction from the public school from noon until 6:00 p.m. each day.  (Doc. 14-5 

at 103 (AT H'rg Test. at 32-33).)  The Kentucky IEP in the record, however, 
provided that AJT received 125 minutes of special education in school daily and 

90 minutes of special education in the home daily, for a total of 215 minutes (3 
hours and 35 minutes) of special education instruction per day.  (Doc. 14-15 at 27 

(Mar. 12, 2015, Boone County, KY, IEP).)  AJT’s father asserts that this Kentucky 
IEP in the record was inaccurate.  (Doc. 14-6 at 10-12 (AT H'rg Test. at 80-82).)  
AJT alleges that the inaccuracy was not discovered until the administrative 

hearing and she was unable to obtain the corrected documents from Kentucky.  
(Id.; (Doc. 14-7 at 37-38 (AT H'rg Test. at 206-07).)                     

Kentucky behavior therapist Marygrace Ott, MA, BCBA1, LBA2, and      
independent evaluator and AJT’s expert, Dr. Joe Reichle, Ph.D., testified that 


1 Board Certified Behavior Analyst                                        
2 Licensed Behavior Analyst                                               
between 4:00 and 6:00 p.m., AJT had good stamina, was alert and engaged, was 

on task, was responsive, worked easily without breaks for an hour, and was 
easily reinforced.  (Doc. 14-11 at 69-70 (Ott H'rg Test. at 319-21, 325-26); Doc. 14-
12 at 17, 21 (Reichle H'rg Test. at 440-41, 456); see also (Docs. 14-5 at 140-41 & 14-6 

at 1-2 (AT H'rg Test. at 69-72) (AJT’s father’s testimony opining that AJT did well 
during Dr. Reichle’s three-week trials in the late afternoon).)  Dr. Breningstall 

testified that AJT would benefit from instruction between 4:15 p.m. and 6:00 p.m. 
“[b]ecause that is the time of day that is her best time for functioning,” and it 
would provide “more opportunities for the instruction that was delivered at that 

time to be beneficial to her.”  (Doc. 14-11 at 61 (Breningstall H'rg Test. at 288-89).) 
     4.   AJT’s Unavailability for Instruction Before Noon           

AJT is “unavailable for school before noon each day.”  (Doc. 15 at 970 (ALJ 
Order, Facts ¶ 1).)  Since AJT moved to the District in 2015, the District has 
excused AJT’s absence from school before noon.  (Id. ¶ 2.)                

AJT’s seizure activity is highest before noon.  (Id. at 971 (ALJ Order, Facts 
¶ 10); Doc. 14-15 at 97-102 (AT H'rg Test. 26-31).)  During heavy seizure activity, 

she cries, is afraid, needs to be comforted, and may be in pain.  (Doc. 14-6 at 38-
39 (AT H'rg Test. at 108-09).)  Dr. Breningstall testified that starting AJT’s school 
day before noon would lead to an “inevitable worsening of her problem.  And I 

can’t see on an experimental basis or otherwise exposing her to an inevitable 
worsening of her problems.” (Doc. 14-11 at 57 (Breningstall H'rg Test. at 273-74).)  
No medical provider has ever recommended changing AJT’s schedule or       

experimenting with an earlier school start time.  (Doc. 14-6 at 39 (AT H'rg Test. at 
109).)                                                                    

     5.   Scheduled School Day in the District                       
Dr. Karen Wills, a pediatric neuropsychologist and the District’s expert on 
assessment and interventions, testified that a typical school day for any child is 

“anything but back-to-back instructional programming.  Part of the school day 
includes things like lunch time, break time, recess and all of that kind of stuff. . . . 

[T]o sort of think about the entire day as involving direct instructional 
programming just isn’t accurate.” (Doc. 15 at 197-98 (Wills H'rg Test. at 523-24).) 
AJT is at school for 4 hours and 15 minutes each day receiving intensive special 

education services and always has one or two adults working solely with her 
providing services and working on AJT’s goals.  (Doc. 15 at 389, 404 (H'rg Test. of 

Joy Frederickson, former District special education site administrator, at 777-78, 
793); 976 (ALJ Order, Facts ¶¶  55-56); 802 (Elliott H'rg Test. at 1019-20).)   
The District provided extended school year (“ESY”) services to AJT in the 

amount of 16 3-hours sessions in AJT’s home by a licensed special education 
teacher between the hours of 12:00 p.m. and 3:00 p.m. during the summers she 
was enrolled in elementary school.  (Doc. 15 at 558, 568-69 (Fredrickson H'rg 

Test. at 727, 770-71).)  The District typically provides ESY services for students 
with special needs at school in the morning and ends services at noon.  (Id. at 569 

(Frederickson H'rg Test. at 771).)  The District offered to provide additional ESY 
services beyond the typical ESY in June and August; however, AJT’s parents 
rejected this offer because June and August were times that AJT might try new 

medications and treatments and receive outside therapies.  (Id. at 559    
(Frederickson H'rg Test. at 731).)                                        

     6.   Negotiations Between AJT’s Parents and the District        
AJT’s father asserts that before the family moved from Kentucky to   
Minnesota, he received assurances from the District that the District would 

continue her modified schedule as it was in Kentucky.  (Doc. 14-5 at 92 (AT H'rg 
Test. at 21).)  AJT’s father claims that his request was based on undisputed 

medical and educational opinions that AJT is best able to be alert and active and 
seizure-free between noon and 6:00 or 7:00 p.m.  (Doc. 14-6 at 31-33 (AT H'rg 

Test. at 101-03).)                                                        
When AJT entered the District in October 2015, her parents requested that 
AJT not attend school until noon due to her morning seizure activity.  (Doc. 14-15 

at 392 (Kohlhepp Aff. ¶ 10).)  The IEP team, including AJT’s parents, agreed that 
starting the school day at noon was appropriate given AJT’s individual needs.  

(Id. at 464 (Oct. 16, 2015 Prior Written Notice (“PWN”) stating that AJT “can not 
[sic] come to school in the morning due to her seizure activity through the night 
and in the morning”).)                                                    

AJT’s IEP team first met on September 21, 2015.  (Id. at 46 (Sept. 21, 2015, 
IEP Meeting Summary).)  The District proposed an IEP that generally accepted 

the goals and objectives on AJT’s most recent IEP from Kentucky.  (Id. at 20 (Mar. 
12, 2015, Boone County, Kentucky, IEP); 36 (Sept. 21, 2015, IEP); Doc. 15 at 553 
(Frederickson H'rg Test. at 708).) AJT’s parents requested two more IEP   

meetings, which were held on October 14 and October 20, 2015.  (Doc. 14-18 at 8-
12).)  Following those meetings, the District proposed an IEP that accepted the 

goals and objectives on AJT’s Kentucky IEP and included minutes of special 
education service that were commensurate with those on the Kentucky IEP.  
(Doc. 15 at 553-54 (Frederickson H'rg Test. at 708, 712).)  The Kentucky IEP called 

for 125 minutes of special education in school daily and 90 minutes of special 
education in the home daily, for a total of 215 minutes of special education 
instruction per day.  (Doc. 14-15 at 27.)  The District’s IEP included 240 minutes 

of direct special education daily and 20 minutes weekly of direct speech services.  
(Id. at 56.)                                                              

AJT’s parents also requested that AJT receive paraprofessional support in 
her home from 4:00 p.m. to 6:00 p.m.  (Id. at 464 (Oct. 16, 2015 PWC).)  AJT’s 
parents told the District staff that in Kentucky, AJT received paraprofessional 

support from her school district three days per week for 90 minutes at home.  
(Doc. 15 at 553 (Frederickson H'rg Test. at 708).)  In addition, AJT’s parents told 

the District that AJT also received services two days a week after school at home 
in the evenings all year long, including summers, from the State of Kentucky via 
a Medicaid waiver program.  (Doc. 14-11 at 68-69 (Ott H'rg Test. at 316-20) 

(testifying that she worked with AJT from 4:00 p.m. to 6:00 p.m. two days a week 
and that while her report indicated that AJT attended school from 1:00 p.m. to 

3:30 p.m., that was incorrect).)                                          
At the October 14, 2015, IEP team meeting, AJT’s father asked if the 

District would, “Provide support in the evening,” and the District’s special 
education coordinator stated, “We don’t provide both homebound and school 
support (modified).”  (Doc. 14-13 at 15 (Oct. 14, 2015, IEP Team Meeting Notes).)  

Two days later, on October 16, 2015, based upon that same meeting, the District 
issued a Prior Written Notice (“PWN”) that stated:                        

The team discussed a modified schedule to [AJT’s] school day.        
[AJT] can not come to school in the morning due to her seizure       
activity through the night and in the morning.  Mom and Dad have     
requested a modified schedule to further her education into the      
evening when her physical health is appropriate for learning.  The   
district has denied this request saying state law does not mandate   
this support from the school district.                               

(Doc. 14-15 at 464.)                                                      
AJT’s parents did not sign the PWN consenting to or objecting to the IEP 
within 14 days; thus, as stated in the PWN, the District went forward with the 
IEP as proposed.  (Id. at 468.)  On October 20, 2015, AJT’s parents provided a 
letter to the District stating that “the District has not scheduled sufficient IEP 
team meetings to discuss appropriate accommodations from an education and 
safety perspective and/or engage[d] in the interactive process” to meet her needs.  
(Doc. 14-13 at 16.)  Also in the letter, AJT’s parents consented to the proposed 
IEP.  (Id.)  AJT began attending Cedar Island Elementary School (“Cedar Island”) 

under that agreement.  The typical school day at Cedar Island was from 9:30 a.m. 
to 4:00 p.m.  (Doc. 15 at 552 (Frederickson H'rg Test. at 705).)  AJT was scheduled 
to attend from noon to 4:00 p.m.; however, her mother initially picked her up 

from school at 3:30 p.m. due to concerns about AJT’s safety being dismissed at 
the same time as other students.  (Id. at 552-53 (Frederickson H'rg Test. at 705-

06).)                                                                     
On March 18, 2016, the District sent AJT’s parents a PWN addressing AJT’s 
school day schedule.  (Doc. 14-15 at 476; Doc. 14-16 at 1-2 (Continuation of Mar. 

18, 2016, PWN).)  In that PWN, the District refused AJT’s parents’ request for 
weekly instruction in their home beyond the end of the typical school day; 

however, it proposed elongating AJT’s modified school day from an end time of 
4:00 p.m. to 4:15 p.m.  (Doc. 14-15 at 476.)  This offer was made in part to address 
AJT’s parents’ concerns about AJT navigating the hallways at the end of the 

school day.  (Id.; Doc. 15 at 552-53 (Frederickson H'rg Test. at 705-06).)  Under 
this proposal, AJT would continue to receive services from her teacher in a one-

to-one setting.  (Doc. 14-15 at 476; Doc. 14-16 at 1-2.)  This offer was rejected by 
AJT’s parents.  AJT’s parents and the District attended conciliation conference 
meetings in late May and early June 2016 to discuss, in part, AJT’s school day.  

(Doc. 14-13 at 42-43.)  Following the conciliation conferences, the District again 
proposed trialing an extension of AJT’s school day beyond the end of the regular 
school day to 4:15 p.m.  (Id. at 44-45 (June 7, 2016, Summary of Conciliation 

Conference).)                                                             
On June 6, 2016, the District issued a PWN that stated:              

The district discussed an extended school day and decided against it 
due to the precedent it would start.  For [sic] Osseo School District 
and other districts across the area.                                 

(Doc. 14-16 at 3.)  The District and AJT’s parents continued to meet and discuss 
AJT’s IEP.  (See, e.g., id. at 6.)                                        
On April 24, 2017, the District proposed an PWN reflecting a 4.25-hour 
school day.  (Doc. 14-16 at 7-8.)  AJT’s parents did not return the PWN within 14 
calendar days to object to the proposed IEP so the IEP went into effect with the 
implied consent of AJT’s parents.  (Id. (mark in checkbox for “implied consent—

14 days elapsed”); Doc. 15 at 554 (Frederickson H'rg Test. at 713).)  The April 24, 
2017 IEP became the last agreed-upon IEP between the District and AJT’s   

parents.  This is known as the “stay put” IEP, meaning that during the pendency 
of any dispute between a parent and school district, the student remains in the 
then-current educational placement as outlined in that IEP.  See 

(j).                                                                  
AJT was retained at Cedar Island for an extra year at the request of her 
parents before matriculating to Maple Grove Middle School (“MGMS”).  (Doc. 

14-7 at 16-17 (AT H'rg Test. at 185-86).)                                 
On April 2, 2018, in preparation for AJT’s transition from Cedar Island to 

MGMS, the parties discussed AJT’s school day in middle school.  MGMS’s    
typical school day ends at 2:40 p.m., and the District suggested extending AJT’s 
day to 3:00 p.m.  (Doc. 14-16 at 9-11 (Apr. 2, 2018 PWN).)  AJT’s parents rejected 

the District’s proposal.  (Id. at 11.)  In response to the District’s proposal, AJT’s 
parents proposed “hours of instruction similar to those currently provided [at 

Cedar Island] (12:00 – 4:15PM).”  (Doc. 14-13 at 86.)  The District continued to 
provide instruction to AJT from noon to 4:15 p.m. under her stay-put IEP. 
Each year, AJT’s parents have provided the District with a brief letter from 

AJT’s treating neurologist requesting that she be “exempted from school   
attendance before noon” in order to manage her seizure activity.  (See, e.g., 

.)  The District made repeated offers to serve AJT whenever she is available 
during the regular school day, including before 12:00 p.m. on any days when AJT 

might be available to be in school earlier in the day.  (See, e.g., Doc. 14-16 at 16.)      
     7.   AJT’s Progress in the District                             
AJT’s father testified that AJT had regressed since she lived in Kentucky 

because she had lost the ability to use a handful of modified hand signs to 
communicate and had regressed from 50% proficiency using the toilet after her 

parents agreed to have the goal of “toileting” removed from her IEP as it was 
taking up too much instructional time.  (See, e.g., Doc. 14-5 at 106-09 (AT H'rg 
Test. at 35-38).)                                                         

Dr. Wills testified that in her review of AJT’s education record, AJT had 
plateaued with regard to her “expressive communication,” but she had “not seen 

any skill where [AJT] regressed.”  (Doc. 15 at 206 (Wills H'rg Test. at 557).)  Dr. 
Wills testified that she looked for evidence in the record that AJT’s     
communication skills had regressed over the five years she had been attending 

school in the District and that she “did not see any evidence of any regression at 
all.”  (Id. (Wills H'rg Test. at 518).)  Dr. Wills noted that this lack of regression of 

skills “is really encouraging” and that “given the severity and frequency of 
[AJT’s] seizure disorder, she very well could have, might have regressed.”  (Id.)    
          a)   Progress at Cedar Island                              

Pam Kohlhepp, AJT’s special education teacher at Cedar Island, testified 
that AJT made progress in her communication ability in the three years that she 
attended Cedar Island.  (Doc. 15 at 583-84 (Kohlhepp H'rg Test. at 829-30).) 

Kohlhepp specifically testified that “[AJT] made a lot of gains in terms of her 
desire to communicate” and her intent to communicate.  (Id. (Kohlhepp H'rg 

Test. at 830).)  AJT also made progress in using eye gaze as a way to answer 
questions or select choices.  (Id. at 596 (West H'rg Test. at 882).)  Kohlhepp noted 
that AJT “made a good deal of progress” with respect to making choices and 

answering questions using eye gaze.  (Id. at 583 (Kohlhepp H'rg Test. at 830).) 
Kohlhepp also testified that AJT made progress on her functional skills 

while she was a student at Cedar Island.  (Id.)  According to Kohlhepp, AJT’s 
“ability to feed herself increased a great deal.”  (Id.)  Kohlhepp also testified that 
AJT experienced periods of progression and periods of waning in her ability to 

use modified signs as a means of communication and that AJT continued to use 
the main signs that she consistently used when she started at Cedar Island, 

which were “eat” and “treat.”  (Id. at 584 (Kohlhepp H'rg Test. at 831).)   
Former District Special Education Site Administrator Joy Fredrickson 

testified that data on AJT’s progress was shared at each of AJT’s IEP team 
meetings while she was at Cedar Island.  (Id. at 556 (Frederickson H'rg Test. at 
720).)  She testified that AJT’s parents “were complimentary of the staff and 

personnel working with [AJT]” while she attended Cedar Island.  (Id. at 555 
(Frederickson H'rg Test. at 718).)                                        

          b)   Progress at Maple Grove Middle School                 
Dr. Wills stated that recent reports from MGMS did not show regression 
but rather showed “a distinct improvement.”  (Doc. 15 at 196 (Wills H'rg Test. at  

519).)  In particular, AJT is improving in the following areas:           
Visual tracking of objects and people in the room, the looking at    
people’s faces, smiling and laughing in response to what’s going on  
around her, initiating and sustaining some turn taking play, like    
throwing a ball back and forth, really sometimes aiming, which is    
pitching a ball into, like, a basket or bucket, the eye gaze selection 
attending and looking at pictures that are pointed out to her, being 
able to respond relatively quickly to commands like sit down, stand  
up, just very basic instructions, using the signs that she has       
consistently and with diminished prompting with less of a need for   
kind of the hand-over-hand reminders for the eat and drink and       
treat that she uses pretty predictably.                              

(Id. at 196-97 (Wills H'rg Test. at 519-20).)                             
District expert and special educator and consultant Deb West testified that 

based on her review of AJT’s records, AJT made progress with regard to    
numerous short-term objectives as reported in AJT’s IEP Progress Report dated 
March 9, 2020.  (Id. at 608-09 (West H'rg Test. at 930-32).)  She opined that, while 

the data collection in elementary school may have included more anecdotal 
information, the information collected by MGMS was “rich in data” from which 

to calculate progress.  (Id. at 609 (West H'rg Test. at 932).)            
Teresa Elliot, AJT’s case manager at MGMS, testified that AJT “absolutely” 
made progress during the 2019-2020 school year with respect to her IEP goal of 

increasing her ability to use direct selection for communication.  (Id. at 797 (Elliot 
H'rg Test. at 1000-02).)  Elliot testified that AJT made progress with regard to 

choosing with whom she wanted to do an activity or work.  (Id.)  AJT also made 
progress communicating choices such as whether she wanted a bite of avocado 
or a bite of something else.  (Id. (Elliot H'rg Test. at 999-1000).)  AJT made 

progress gaining adult attention.  (Id. at 797-98 (Elliot H'rg Test. at 1002-03).)  
Elliot also testified that AJT made progress on objectives related to her IEP goal 

of improving her skills in activities of daily living.  (Id. at 798 (Elliot H'rg Test. at 
Tr. 1004-05).)  Elliot testified that, among other things, AJT made progress with 
regard to handwashing.  (Id. (Elliot H'rg Test. at 1005-06).)  Elliot also testified 

that AJT made progress on her literacy and math goals.  (Id. at 799 (Elliot H'rg 
Test. at 1007-1010).)  She did not, however, make any progress with regard to 
using the toilet.  (Id. at 798 (Elliot H'rg Test. at 1004-06).)           

          c)   Dr. Joe Reichle’s Trial Tests                         
In 2019, the parties agreed that Dr. Joe Reichle would conduct an    

independent educational evaluation (“IEE”) of AJT.  (Doc. 15 (ALJ Order) at 970-
71).)  Dr. Reichle conducted his evaluation sometime that year.  Among Dr. 
Reichle’s recommendations in his May 28, 2019 IEE Report were access to “voice 

output devices” and as much instruction time as possible “during [AJT’s] alert 
hours,” which optimally are “between approximately noon and 6:00 p.m.”  (Doc. 

14-15 at 201, 246, 278.)                                                  
In autumn 2020, AJT’s parents hired Dr. Reichle to conduct a “series of 
discrete trial tests and to assess how interventions in the mid and late afternoons 

might impact [AJT’s] learning.”  (Doc. 15 at 979 (ALJ Order, Facts ¶ 73).)  Dr. 
Reichel’s evaluation consisted of performing ten discrete trials of late afternoon 

instruction from 4:15 to 5:30 p.m. in AJT’s home, which he compared to    
instruction that had been conducted in AJT’s home from noon to 1:15 p.m.  
(Doc.14-12 at 20 (Reichel Hr’g Test. at 453-54).)  Coaching was provided via 

telehealth and the paraprofessional implementing the strategies with AJT was 
the paraprofessional who usually works with AJT and her family.  (Id. (Reichel 
Hr’g Test. at 454).)  Trials were performed twice-to-three-times-per-week for 

approximately three and one-half weeks.  (Id. at 20-21 (Reichel Hr’g Test. at 453-
54, 458).)                                                                

AJT made gains on skills she was learning in school during the trials.  (Id. 
at 21 (Reichel Hr’g Test. at 458 (“[I]t was fairly impressive how quickly she 
gained skill in a reasonably short period of time.”); 25 (Reichel H'rg Test. at 472 

(“My data suggests that not only can she be available and that she can    
participate, but she can also learn during a period of time in our trial up through 

5:30 p.m., because that’s as long as we ran the trial in any given day.”).)   He 
testified that there was nothing in his two evaluations of AJT that would support 
a conclusion that she needs less than a full day of school and that he thought she 

could benefit from a full day of school.  (Id. at 24 (Reichel Hr’g Test. at 468).)   
However, he admitted that he found it “difficult” to opine on her progress 

because “of the quality of the data” available to him;  in particular, the Cedar 
Island data consisted of more “anecdotal reports that are somewhat spotty.”  (Id. 
at 25 (Reichel H'rg Test. at 473).)   Dr. Wills testified that the behavioral 

observations collected at Cedar Island are data and that there is a very extensive 
description of AJT’s functioning over the years and “quite good data . . . over 
time to indicate there’s learning and teaching going on.”  (Doc. 15 at 204 (Wills 

H'rg Test. at 550).)                                                      
On October 31, 2020, Dr. Breningstall sent a letter to the District stating 

that AJT’s school day could not begin before noon due to her morning seizure 
activity.  (Doc. 14-13 at 154.)   The letter also stated that “[i]t is also important that 
[AJT] receive a minimum of six hours of school attendance to help with her 

communication and interaction.”  (Id.)                                    
     8.   Administrative Hearing                                     

On September 14, 2020, AJT’s parents filed a special education complaint 
and request for a due process hearing against the District with the State of 
Minnesota Office of Administrative Hearings, alleging that the District had 

violated the Individuals with Disabilities Education Act (“IDEA”) because AJT 
did not receive six-and-a-half hours of education per day like her non-disabled 

peers and asserting that the District should provide education to AJT from noon 
until 6:30 p.m. each day.  (Doc. 14 at 5-10.)  Administrative Law Judge Eric L. 

Lipman (“the ALJ”) presided over the case.  (Id. at 19, 28.)              
A five-day hearing occurred before the ALJ in February 2021.  (Doc. 15 at 
969 (ALJ Order at 1).)  On April 21, 2021, the ALJ issued his decision (“ALJ 

Order”).  The ALJ ruled:                                                  
The Student established that an educational program which did not    
include supplemental instruction [at] home in the afternoon, did not 
afford her a free appropriate public education (FAPE).  The Student  
likewise established that 495 hours of such instruction would fairly 
remediate the School District’s denial of a FAPE.                    

(Id.)                                                                     
The ALJ ordered the District to revise AJT’s IEP to include the following 
additions:                                                                
(a)   instruction at home that includes discrete trial training      
     interventions between 4:30 p.m. and 6:00 p.m. each school       
     day;                                                            

(b)   compilation and review of the discreet trial training          
     intervention data;                                              

(c)   direct and indirect services of a Speech and Language          
     Pathologist to design, deliver and monitor the implementation   
     of a communication intervention program; and                    
(d)   the provision of eye gaze technology with a speech generating  
     device to effectively augment her communication capacities.     

(Id. at 987 (ALJ Order, Conclusions ¶ 15).)                               
Other facts will be discussed as necessary.                          
B.   Procedural History                                              
     1.   Appeal Case                                                

On June 21, 2021, the District filed the instant case against AJT in this 
Court asserting an appeal of the ALJ’s decision under 

(i)(2).  Civil 

File No. 21-1453 (MJD/DTS).                                               
     2.   Related Discrimination Case                                

On August 3, 2021, AJT, through her parents, filed a Complaint against the 
District and the Osseo School Board.  Civil File No. 21-1760 (MJD/DTS).  On 
November 8, 2021, AJT filed an Amended Complaint against the District and the 

Osseo School Board alleging: Count 1: Violations of the IDEA; Count 2:    
Violations of § 504 of the Rehabilitation Act of 1973; and Count 3: Violations of 

the Americans with Disabilities Act.  (Doc. 15.)  All three claims are based on the 
District’s failure to provide AJT a six-and-a-half-hour school day starting at 
noon. That case was transferred to Judge Davis as a related case.  On July 29, 
2022, the District filed a motion for summary judgment in the discrimination 

case.  On August 18, 2022, AJT filed her opposition to the District’s motion.   
C.   Current Motions                                                 
The parties have now filed cross motions for judgment on the record in the 

appeal case.                                                              
III.  DISCUSSION                                                          
A.   Standard of Review Under the IDEA                               

The Individuals with Disabilities Education Act (IDEA or Act) offers 
States federal funds to assist in educating children with disabilities.  
In exchange for the funds, a State pledges to comply with a number   
of statutory conditions.  Among them, the State must provide a free  
appropriate public education—a FAPE, for short—to all eligible       
children.                                                            

Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 

 
(2017) (citations omitted).                                               
“A State covered by the IDEA must provide a disabled child with such 
special education and related services in conformity with the child’s     
individualized education program, or IEP.”  

 (cleaned up and citation 
omitted).  When evaluating an IEP, “[t]he IDEA looks for improvement, not 
mastery.”  Minnetonka Pub. Schs., Indep. Sch. Dist. No. 276 v. M.L.K. ex rel. S.K., 
--F.4th--, No. 21-1707, 

, at *4 (8th Cir. July 29, 2022).  “To meet its 
substantive obligation under the IDEA, a school must offer an IEP reasonably 

calculated to enable a child to make progress appropriate in light of the child’s 
circumstances.”  Endrew F., 

.                            
The “reasonably calculated” qualification reflects a recognition that 
crafting an appropriate program of education requires a prospective  
judgment by school officials.  The Act contemplates that this fact-  
intensive exercise will be informed not only by the expertise of     
school officials, but also by the input of the child’s parents or    
guardians.  Any review of an IEP must appreciate that the question   
is whether the IEP is reasonable, not whether the court regards it as 
ideal.                                                               

 (emphasis in original) (citations omitted).  However, that child’s “educational 
program must be appropriately ambitious in light of [her] circumstances.  A 
student making ‘merely more than de minimis’ progress from year to year can 
hardly be said to have been offered an education at all.”  J.P. ex rel. Ogden v. 
Belton Sch. Dist. No. 124, 

 (8th Cir. 2022) (quoting Endrew F., 

) (cleaned up).                                          
When parents and a school district disagree regarding the contents of a 

child’s IEP,                                                              
parents may turn to dispute resolution procedures established by     
the IDEA.  The parties may resolve their differences informally,     
through a “preliminary meeting,” or, somewhat more formally,         
through mediation.  If these measures fail to produce accord, the    
parties may proceed to what the Act calls a “due process hearing”    
before a state or local educational agency.  And at the conclusion of 
the administrative process, the losing party may seek redress in state 
or federal court.                                                    

Endrew F., 

 (cleaned up).                                
In lawsuits filed under section 1415(i)(2), the district court is    
required to receive the records of the administrative proceedings,   
hear additional evidence at the request of a party, and              
independently determine the appropriate relief based on a            
preponderance of the evidence.                                       

Hansen ex rel. J.H. v. Republic R-III Sch. Dist., 

 (8th Cir. 2011) 
(citations omitted).                                                      
In deciding whether the IDEA has been violated, the district court   
must independently determine whether the child in question has       
received a FAPE.  In doing so, the court must also give due weight   
to agency decision-making.  This somewhat unusual standard of        
review is less deferential than the substantial-evidence standard    
commonly applied in federal administrative law.  But we have         
recognized that this limited grant of deference—due weight—is        
appropriate in IDEA cases because the ALJ had an opportunity to      
observe the demeanor of the witnesses and because a district court   
should not substitute its own notions of sound educational policy    
for those of the school authorities that it reviews.                 

K.E. v. Indep. Sch. Dist. No. 15, 

 (8th Cir. 2011) (cleaned up and 
citations omitted).                                                       
Although the Court “must give due weight to the factual findings of the 

administrative panel,” the Court “consider[s] the panel’s legal conclusions de 
novo.”  Hansen, 

.                                         
“While the district court must accord due weight to the administrative 

panel’s decision, the burden of persuasion remains with . . . the party challenging 
the IEP,” in this case, AJT.  Lathrop R-II Sch. Dist. v. Gray ex rel. D.G., 

 (8th Cir. 2010); see also Schaffer ex rel. Schaffer v. Weast, 

 
(2005) (“The burden of proof in an administrative hearing challenging an IEP is 
properly placed upon the party seeking relief,” that is the party who “seek[s] to 

challenge an IEP”).                                                       
Here, the District asserts that the ALJ made no credibility determinations 

and relied on the testimony of each of the witnesses for some part of his decision.  
Therefore, there is no basis to defer to the ALJ.                         
B.   Whether the ALJ Applied the Correct Legal Standard              

The District asserts that the ALJ applied the incorrect legal standard when 
deciding whether the District had provided AJT with a FAPE, because he based 
his decision on whether AJT might make more progress with more instructional 

time at home, rather than on the appropriateness of AJT’s stay-put IEP.   
The District notes that the ALJ made factual findings that AJT made  

progress during her time at Cedar Island and MGMS in (1) using eye gaze   
methods to make choices and answer questions; (2) handwashing; (3) using  
modified signs as a means of communication; (4) using direct selection for 

communication; (5) choosing with whom she wanted to work or do an activity; 
(6) communicating choices; and (7) self-initiating handwashing.  (Doc. 15 at 977 

(ALJ Order, Facts ¶¶ 58, 61).)  The District asserts that the ALJ failed to assess 
whether this progress was appropriate in light of AJT’s unique circumstances 
including a severe seizure disorder and cognitive impairment.  Instead, the ALJ 

merely relied on Dr. Reichle’s opinion that AJT would likely make more gains 
with more instruction.  (See id. at 980-81 (Facts ¶¶ 74, 86).)            

The District argues that the correct standard to determine whether the 
District provided a FAPE is whether the IEP was “reasonably calculated to 
enable [AJT] to make progress appropriate in light of the child’s circumstances.”  

Endrew F., 

.  The District asserts that applying that standard, 
AJT did receive a FAPE.                                                   

The Court finds that the ALJ applied the correct legal standard to AJT’s 
claim.  First, the ALJ acknowledged that the burden of proof was on AJT to 
demonstrate by a preponderance of the evidence that she did not receive a FAPE.  

(Doc. 15 at 986 (ALJ Order, Conclusions ¶ 3).)  Second, the ALJ noted that the test 
was whether AJT’s IEP was “reasonably calculated to enable the child to make 
progress appropriate in light of [her] circumstances.”  (Id. at 986-87 (ALJ Order, 

Conclusions ¶ 9).)  Third, the ALJ held that AJT had established that her 
educational program was not “appropriately ambitious in light of [her]    

circumstances,” that she did not have “the chance to meet challenging     
objectives,” and that “the opportunity to access hours of afternoon instruction at 
home—particularly discrete trial opportunities—would be beneficial, meaningful 

and appropriately challenging to [AJT].”  (Id. at 987 (ALJ Order, Conclusions ¶¶ 
10, 12).)                                                                 

 Thus, although the ALJ did find that more instruction would provide 
more progress, he also found that the current IEP, without the supplemental 
instruction at home, was not providing an educational program reasonably  

calculated to enable AJT to make progress appropriate in light of her     
circumstances.  (Id. at 986 (ALJ Order, Conclusions ¶¶  6-7).)  Specifically, the 

ALJ found that whenever there was a conflict between the need to maintain the 
regular hours and AJT’s need for instruction, regular hours was always “the 
prevailing and paramount consideration” and that AJT’s educational        

programming was “thus constrained by limitations imposed upon, and outside 
of, the IEP Team.”  (Id.)  This was the wrong priority for the District.  See Ind. 
Sch. Dist. No. 623, No. 317-2, 31 IDELR ¶ 17, 53 (holding that a Minnesota school 

district’s categorical refusal to consider provision of extended day services as 
way to meet goals of IEP was procedural violation of IDEA because “[s]uch 

services are appropriate in certain circumstances and their location is not 
confined to the school day or a school setting”); see also U.S. Dept. of Education 
Dec. 22, 2014 Letter to Arcadia Unified School District (“Arcadia”) (explaining 

that the school violated disabled students’ civil rights when it dismissed disabled 
students earlier than other students, which denied them the same number of 

educational minutes of schooling as non-disabled students without making  
individual assessments that early dismissal was “necessary for the needs of 
specific students”), available at https://www2.ed.gov/about/offices/list/ocr/docs/ 

investigations/more/09141322-a.pdf (last visited Aug. 21, 2022); U.S. Dept. of 
Education New York Office for Civil Rights May 29, 2015 Letter to Rye City 

School District  (“Rye City”) (explaining that dismissing certain disabled 
students earlier than all other disabled and non-disabled students denied the 
students a FAPE when the early dismissal was to avoid congestion during parent 

and bus pick-up time and that “[a]dministrative convenience is never an excuse 
for impermissibly shortening the instructional time that students with disabilities 
receive”), available at https://www2.ed.gov/about/ offices/list/ocr/docs/ 59 

investigations/more/02151099-a.pdf (last visited Aug. 21, 2022).          
This is the conflict point between the parties.  For the most part, the 

District argues that AJT’s FAPE should be judged by her progress.  AJT, on the 
other hand, asserts that the District cannot provide her a FAPE as long as it does 
not provide her a school day that is 6.5 hours-long and that those hours coincide 

with the hours when she is medically-able to learn (i.e., when she is less prone to 
severe seizure activity and is alert and receptive to learning).          

C.   Whether the IDEA Requires the Presumption of a Full School Day  
The District argues that while it has a legal obligation to individualize 
AJT’s educational programming to meet her needs, it does not have an obligation 

to provide the same length school day to her as to non-disabled students.  It 
asserts that Minnesota law allows the standard school day to be adapted for 
students with disabilities because Minn. Stat. § 120A.22, subd. 12 states that a 

child may be “excused from attendance for the whole or any part of the time 
school is in session during any school year” based on a “note from a physician or 
licensed mental health professional stating that the child cannot attend school.”  

The District notes that AJT’s parents and medical providers opine that she cannot 
attend school before noon; therefore, it concludes that AJT’s needs dictate her 
school day.  Moreover, the ALJ did not order a 6.5-hour “full” school day from 

noon until 6:30 p.m.  Instead, the ALJ ordered a 5.75-hour day that ran from noon 
until 4:15 p.m. at school and then included home instruction from 4:30 p.m. until 

6:00 p.m.                                                                 
Relying on Endrew F., AJT responds that before a school can provide a 
shortened school day, the IEP team must determine that a shortened school day 

is “specially designed to meet a child’s unique needs.”  

 (cleaned 
up) (emphasis in original).  She asserts that there is no evidence that a shortened 

school day is required in order to meet her individual needs.  Instead, a 
preponderance of the evidence shows that a full school day is necessary for AJT 
to learn appropriately.                                                   

AJT argues that under 

(9)(B), a FAPE is a program of 
“special education and related services that . . . meets the standards of the State 

educational agency.”  Minnesota education standards require every school  
district to provide minimum hours of instruction to all students: 935 hours per 
year for grades 1-6 and 1020 hours per year for grades 7-12 per Minn. Stat. § 

120A.41, subdivision a.  Yet the District has only allocated AJT 765 hours per year 
of instruction while other middle school students in the District receive 1170 
hours of instruction per year.                                            

AJT asserts that every eligible student with a disability is presumed to be 
entitled to a full school day unless their needs dictate otherwise.  See 

(c) (“School day means any day, including a partial day that children are in 
attendance at school for instructional purposes.  School day has the same 
meaning for all children in school, including children with and without   

disabilities.”).                                                          
AJT concludes that only a student’s IEP team’s determination that the 

individual student requires a shorter school day in order to receive a FAPE can 
justify a shorter school day.  (Doc. 54 at 24 n.91 (citing, inter alia, Spring Branch 
Ind. Sch. Dist. v. O.W., 

 (5th Cir. 2019) (holding that shortening a 

school day by almost half “was a substantial and significant deviation from the 
IEP which indisputably resulted in a loss of academic benefits” and when  

accomplished outside of the required IEP Team process violated the IDEA)  
opinion withdrawn and superseded on other grounds on reh'g sub nom.       
by Spring Branch Indep. Sch. Dist. v. O.W. by Hannah W., 

 (5th Cir. 

2020); Teague Ind. Sch. Dist. v. Todd L., 

 (5th Cir. 1993) (holding 
that shortening student’s school day from seven hours to two hours did not 
violate the IDEA when reduction was included in the IEP due to the student’s 

“inability to tolerate a longer school day without becoming unduly frustrated 
and discouraged, leading to regression rather than academic progress” and not 

for the convenience of school staff)).  AJT concludes that, here, the District 
shortened her school day without first employing full-time instruction to 
determine the benefits from full-time instruction and without considering AJT’s 

needs.  Because the District refused to provide instruction after 4:15 p.m., the 
only data regarding the benefit to AJT of instruction between 4:00 p.m. and 6:00 

p.m. comes from the testimony of her father, her former educator in Kentucky, 
and Dr. Reichle, who performed test trials with AJT between 4:15 p.m. and 5:30 
p.m.                                                                      

The Court declines to reach the issue of whether the IDEA requires the 
presumption that every student is entitled to a full instruction day regardless of 

the start time.  Deciding this issue is not required to decide the motions before 
the Court.  Importantly, the ALJ found that AJT had been denied a FAPE without 
relying on such a presumption.  Moreover, the Supreme Court’s caselaw     

regarding FAPE provides a flexible standard of whether the IEP is “reasonably 
calculated to enable a child to make progress appropriate in light of the child's 
circumstances.”  Endrew F., 

.  The Supreme Court has purposely 

avoided applying bright-line rules such as a “de minimis” progress standard or a 
standard that the IEP provides “an opportunity to understand and participate in 

the classroom that was substantially equal to that given her non-handicapped 
classmates.”  See 

 (citation omitted).  Additionally, the Supreme Court 
and Eighth Circuit caselaw is clear that the burden is on the party challenging the 

IEP – here, AJT – so applying a presumption that the District’s IEP is illegal 
because it provides fewer instructional hours than a typical school day and 

requiring the District to show that fewer hours are required for AJT flips  that 
burden.                                                                   
Additionally, given the evidence that AJT cannot safely start the school 

day until noon and the lack of evidence that it would be safe for her to receive 
instruction after 6:00 p.m., the record amply supports the ALJ’s decision that 

AJT’s FAPE did not require a full 6.5-hour school day.  Finally, although federal 
statute defines a FAPE as a program of special education that “meets the  
standards of the State educational agency,” Minnesota law allows a student to be 

excluded from attendance based on a note from a physician, and AJT had an 
annual letter from her physician stating that she was unable to attend school 
before noon.  Therefore, like the ALJ, the Court need not rely on this    

presumption to determine whether the District provided AJT a FAPE.        
D.   Sufficiency of the Evidence to Support the ALJ’S Decision       
     1.   Whether the District Prioritized Regular Faculty Hours Over 
          AJT’s Needs                                                
The District argues that the ALJ clearly erred by determining that   

whenever there was a conflict between the need to maintain the       
regular hours of the school’s faculty, and the student’s need for    
instruction, the regular hours of the faculty was always the         
prevailing and paramount consideration.                              

(Doc. 15 at 986 (ALJ Order, Concl. ¶ 6).)                                 
The District argues that the evidence in the record supports only one 
conclusion: the District shortened AJT’s school day because the IEP team, 
including AJT’s parents, determined that AJT’s needs required a noon start time 
for school.  The doctors’ letters that AJT’s parents provided to the IEP team 
stated that AJT needed a noon start time, the letters never stated that she should 

be educated 6.5 hours per day until Dr. Breningstall’s October 31, 2020 letter, 
which stated that she should receive a minimum of six hours of school     
attendance to help with her communication and interaction.  And, the District 

asserts, Dr. Breningstall’s opinion is simply based on information from AJT’s 
parents.                                                                  
The District also argues that the uncontroverted evidence showed that AJT 

received a shortened school day in Kentucky; the IEP team considered the  
Kentucky IEP and adopted most of it and the IEP team agreed to more minutes 

of special education services than AJT had received in Kentucky, although she 
received them in school rather than at home.  (Doc. 55 at 6-7 (citing Sterling A. ex 
rel. Andrews v. Washoe County Sch. Dist., 307-CV-00245-LRH-RJJ, 

, at *7 (D. Nev. Nov. 10, 2008) (holding that services offered in the interim 
IEP in Nevada were “similar or equivalent” to the home-based services provided 

for in the California IEP because “[t]he evidence indicates that while the exact 
location of the services was different, the substance and goals of the [] services 
was the same”).)                                                          

The District further argues that AJT’s IEP called for a  school day of 4.25 
hours during almost the entire time she was enrolled in the District; and, apart 

from the brief interim IEP, the District’s IEP always called for services after the 
end of the regular school day—15 minutes more in elementary school and 95 
minutes after the end of the middle school day.  Finally, the District notes that in 

April 2017, AJT’s parents agreed to an IEP that required a 4.25-hour school day 
for middle school and did not object.                                     
The District also argues that AJT only needed a shortened school day 

because AJT’s education consisted of 4 hours and 15 minutes of intensive 1:1 or 
2:1 instruction, which provided education comparable to 6.5 hours of a usual 

school day.  It asserts that AJT’s school day schedule does not include down 
times for recess, elective courses, or eating lunch with peers.  AJT received an 
intensive program designed based on her unique needs with the sole attention of 

one adult or, from 2:40 p.m. to 4:15 p.m., two adults delivering instruction to her 
alone.  (Doc. 15 at 389, 404 (Fredrickson H'rg Test. at 777-78, 793); 802 (Elliott 

H'rg Test. at 1019-21).)                                                  
 Thus, AJT’s educators designed her program for the time that she was 
available when school was in session and for additional time that the full IEP 

team agreed was necessary beyond the school day.                          
The District emphasizes that it consistently considered AJT’s parents’ 

request for additional hours of instruction beyond the end of the regular school 
day.  The IDEA’s procedural requirements require the District to “consider” 
AJT’s parents’ requests for more educational services by discussing those 

requests at an IEP team meeting.  See K.E., 

.  The District asserts 
that it met this obligation, and the fact that AJT’s IEP team disagreed with her 
parents’ requests does not demonstrate a violation of the IDEA.           

The Court finds that the ALJ did not err in finding that when there was a 
conflict between AJT’s need for instruction and the school’s regular hours, the 

regular hours of the faculty were always the prevailing consideration.  AJT’s 
parents consistently maintained that AJT needed instruction in the late afternoon 
and early evening, she received such instruction under her Kentucky IEP, and 

there was no evidence ever submitted to the school that instruction during that 
time would be harmful to AJT.  The District steadfastly refused to extend the 

instruction hours past 4:15 with a series of shifting reasons: at one point merely 
stating, “We don’t provide both homebound and school support,” then stating 
state law did not mandate this type of support, and finally stating that it would 

not provide an extended school day “due to the precedent it would start [for the 
District] and other districts across the area.”  None of these reasons is based on 

an individual assessment of AJT’s needs as required by the IDEA, under which 
extended days “are appropriate in certain circumstances and their location is not 
confined to the school day or a school setting.”  Ind. Sch. Dist. No. 623, 31 IDELR 

¶ 17; Endrew F., 

 (“A focus on the particular child is at the core of 
the IDEA.”).  Administrative convenience is not an excuse for impermissibly 
shortening the instructional time a disabled child receives.  Rye City, https:// 

www2.ed.gov/about/offices/list/ocr/docs/investigations/more/ 02151099-a.pdf; 
see also Todd L., 

 (finding that shortened school day was in 

response to child’s needs not for the convenience of school staff).       
There is no evidence that six hours of instruction per day would be  
harmful to AJT.  In fact, there is evidence that six hours of daily instruction is 

important to AJT’s communication and interaction development.             
As the ALJ acknowledged, the District provides AJT “intensive services” 

with one-on-one or two-on-one instruction at all times.  (Doc. 15 at 976 (ALJ 
Order, Facts ¶ 55).)  However, there is no evidence that the intensity of the 
services means that a six-hour school day would not be appropriate and    

beneficial or that this student-to-teacher ratio is somehow a substitute for hours 
of instruction.  As AJT’s father testified, the IEP needed to omit toileting goals 

because there simply was not time in the 4.25-hour school day to work on that 
goal along with the other goals in AJT’s IEP.  Dr. Reichle testified that all of the 
interventions that he recommended for AJT in the 2019 independent evaluation 

could not be implemented in her shortened school day.  (Doc. 14-12 at 18 (Reichle 
H'rg Test. at 444-45).)  Nor is there any evidence that the intensity of AJT’s 
instruction makes her fatigued or unable to learn for six hours.  Finally, contrary 

to the District’s assertion, like any child’s typical school day, AJT’s 4.25-hour day 
includes time for lunch, bathroom use, and breaks, although her aides do work 

on some learning goals during those times.  (Doc. 14-15 at 323.)  Moreover, the 
District admits that AJT receives 1:1 and 2:1 support because she requires it, not 
because the District is doing something extraordinary for AJT.  (Doc. 15 at 570 

(Fredrickson H'rg Test. at 778).)                                         
Although both parties agree that AJT is unable to start school before noon, 

that is not the same as agreeing that AJT has to stop school after 4.25 hours.  The 
evidence supports the ALJ’s decision that while AJT’s medical needs dictated the 
start of AJT’s school day, the District’s preferred schedule dictated the end of 

AJT’s school day.   No member of AJT’s medical team ever suggested that a full 
school day would be harmful to AJT or would fail to produce any benefit to her.  

(Doc. 14-6 at 37 (AT H'rg Test. at 107).)  The most recent letter from Dr. 
Breningstall stated, “It is also important that [AJT] receive a minimum of six 
hours of school attendance to help with her communication and interaction.”  

(Doc. 14-13 at 154.)  In addition, Dr. Reichle testified, “My opinion is it’s likely 
she would make more gains with additional instruction” and that AJT should 
have as much instruction as possible during her alert hours from approximately 

12:00 to 6:00 p.m.  (Doc. 14-12 at 25 (Reichle H'rg Test. at 474); see also Doc. 14-15 
at 201, 246, 278.)  AJT’s parents never agreed that a shortened school day 

beginning at noon would be appropriate given her individual needs.        
As the ALJ found, the services in AJT’s IEPs were limited by the shortened 
school day rather than by her needs.  This conclusion is supported by the 

testimony of independent educational evaluator Dr. Reichle, that her teacher and 
case manager, Teresa Elliot, conceded that to him in discussions.  (Doc. 14-12 at 

22 (Reichle H'rg Test. at 461); Doc. 15 at 979 (ALJ Order, Facts ¶ 71)); see also Ind. 
Sch. Dist. No. 623, No. 317-2, 31 IDELR ¶ 17, 53 (holding that extended days “are 
appropriate in certain circumstances and their location is not confined to the 

school day or a school setting”); Arcadia (denial of same number of educational 
minutes to disabled students without individual assessments that fewer minutes 

or early dismissal was “necessary for the needs of specific students” was denial 
of FAPE), available at https://www2.ed.gov/about/offices/list/ocr/docs/   
investigations/more/09141322-a.pdf; Rye City (“Administrative convenience is 

never an excuse for impermissibly shortening the instructional time that students 
with disabilities receive”), available at https://www2.ed.gov/about/offices/list/ 
ocr/docs/investigations/more/02151099-a.pdf.                              

     2.   Instruction in the Late Afternoon and Evening              
The District asserts that the ALJ’s remedy that AJT receive services until 

6:00 p.m. is contrary to the evidence presented by the District about AJT’s needs 
and also contrary to the evidence introduced by AJT’s experts.  Because the ALJ’s 
Order is based on something other than the record created at the hearing, the 

District argues it must be overturned.                                    
The District points out that the ALJ determined that education after 6:00 

p.m. would be risky for AJT.  (Doc. 15 at 985 (ALJ Order, Facts ¶ 111).)  Yet no 
witness opined services between 6:00 p.m. and 6:30 p.m. would be dangerous for 
AJT.  Dr. Reichle testified that nothing in his evaluations supported a conclusion 

that AJT could not attend schooling until  6:30 p.m.  (Docket No. 14-12 at 25 
(Reichle H'rg Test. at 472-474).)                                         

The District emphasizes that “[t]he fact that the IDEA is a federal statute 
does not mean that every state must administer the act in the same way.”  J.B. ex 
rel. B.B. v. Lake Washington Sch. Dist., No. C12-0574RSL, 

, at *2 

(W.D. Wash. Jan. 17, 2013).  Thus, according to the District, the services provided 
by Kentucky are not the standard for measuring whether AJT received a FAPE in 
the District.  See 

                                                    

AJT responds that although Dr. Reichle did no trials between 5:30 and 6:00 
p.m., evidence from Kentucky and AJT’s parents shows that effective educational 

results can be achieved after 5:30 p.m.                                   
          a)   Instruction Between 5:30 and 6:00 p.m.                
The ALJ’s decision that instruction between 5:30 and 6:00 p.m. would be 

beneficial to AJT is well supported.  Although Dr. Reichle’s trial experiments 
only lasted until 5:30 p.m., Behavior Specialist Ott testified that AJT was able to 

learn until 6:00 p.m. when she received instruction in Kentucky, and AJT’s father 
testified that she was alert and available to learn at that time.  Dr. Breningstall 
also testified that AJT would benefit from instruction between 4:15 and 6:00 p.m.  

There is no evidence to contradict that testimony.  Additionally, the ALJ’s 
determination that the District was not required to provide instruction after 6:00 

p.m. was reasonable and well-supported because there is no evidence that  
instruction after 6:00 p.m. would be beneficial or safe.  No instruction or test 
trials ever occurred at that time and no medical provider testified that instruction 

at that time would be beneficial or safe.                                 
          b)   Whether AJT Would Have Made More Progress with        
               Additional Instruction until 6:00 p.m.                
The record supports the finding that AJT would have made more progress 
with additional instruction from 4:15 to 6:00 p.m. and there is no evidence that 

she would not have made additional progress with those extended hours.  Dr. 
Reichle testified that AJT was not as efficient a learner as a typical learner, 
needed additional time, was a hard and motivated worker who was easy to   

motivate to pay attention and learn during those times, and “would have made 
additional gains” with additional instruction.  (Doc. 15 at 979 (ALJ Order, Facts 

¶¶ 72, 74 (citing Doc. No. 14-12 at 18, 25 (H'rg Tr. at 443, 474 (Reichle Test.)).) 
Every witness to testify on the subject testified that AJT does not learn as 
efficiently as a typical learner.  Dr. Reichle testified that three hours of instruction 

for AJT is not the same as three hours of instruction for a typical learner, and that 
“she could definitely benefit from more instruction than she has received.” (Doc. 

14-12 at 25 (Reichle H'rg Test. at 473).)  He opined:                     
[AJT] can use all the time she can get to learn.  She is clearly – and I 
don’t think anybody can dispute she is clearly way behind in terms   
of learning communication skills and she’s falling further behind    
every day in terms of rate of acquisition.  So she can use all the   
available hours that she can get where she’s motivated to learn.     
That’s in terms of what would be best for her.                       

(Id. at 18 (Reichle H'rg Test. at 444).)  Dr. Reichle explained that all of the 
interventions that he recommended for AJT in 2019 had not been implemented 
and full implementation would require more time than a regular school day.  (Id. 
(Reichle H'rg Test. at 445).)  He opined that literature in the field regarding the 

effects of intensity of instruction for learners with intellectual disabilities 
generally suggests “that higher dosages result in quicker acquisition.”  (Id. at 23 

(Reichle H'rg Test. at 464).)  In 2019, Dr. Reichle recommended that AJT receive a 
full day of school.                                                       

In conducting this IEE, it quickly became clear that optimal times to 
work with [AJT] were between approximately noon and 6 p.m.           
[AJT] frequently experiences seizures during the evenings which      
requires that she recovers during the following mornings.            
Consequently, her school hours are not traditional hours.  Given her 
seizure history [AJT] is likely to experience relatively fewer       
productive educational hours than most learners.  As a result, it is 
very important that she receives as much time as possible for        
instruction during her alert hours.                                  

(Doc. 14-15 at 246.)  Dr. Reichle testified that AJT’s learning “trajectory is falling 
further and further behind her peers.”  (Doc. 15 at 229 (Reichle H'rg Test. at 651).)  
He testified that additional instruction would result in additional progress.  (Doc. 
14-12 at 25 (Reichle Hr’g Test. at 474).)  “[A] full school day in my experience 

tops a half school day every time.”  (Id. at 24 (Reichle H'rg Test. at 468).) 
     3.   Whether AJT Made Progress in the Shortened School Day      
The District argues that the preponderance of the record evidence shows 

that AJT made progress on her IEP goals with the shortened school day.  (See 
Doc. 15 at 573 (Frederickson H'rg Test. at 789 (“[AJT] was benefiting from the 

school day that she had, she was continuing to make progress within the hours 
she was provided.”)); 599 (Kohlhepp H'rg Test. at 892 (testifying that AJT has 
made progress on communication skills but that she did not “see a lot of  

progress in her functional skills”)).)  Even Dr. Reichle admitted that AJT had 
made progress on some skills in school.  (Doc. 14-12 at 25 (Reichle H'rg Test. at  

473 (“There are skills at school where she has made gains.”)).)           
The District asserts that evidence of progress is significant given that it is 
not uncommon for individuals with LGS to regress and lose previously-acquired 

skills.  (See Doc. 15 at 196 (Wills H'rg Test. at 518 (testifying that “given the 
severity and frequency of [AJT’s] seizure disorder [] she very well could have, 

might have regressed” and “many children do [regress]”)); 239 (West H'rg Test. 
at 689 (testifying that her experience with two individuals with LGS is that they 
plateaued, but did not regress, by the time of middle school)); 785 (Shams H'rg 

Test. at 952-53 (testifying that most LGS patients plateau after age 8 or 9 and 
through the mid-teenage years)).)  Both Dr. Wills and West testified that AJT has 
not regressed in a single skill area since enrolling in the District.  (See, e.g., 

 (Wills Hr’g Test. at 518, 556); 599 (West H'rg Test. at 892-93).)     
The District notes that evidence of progress is probative of the adequacy of 

the IEP, citing Endrew F., 

 (holding that the IDEA “requires an 
educational program reasonably calculated to enable a child to make progress 
appropriate in light of the child’s circumstances”).  The District also reminds the 

Court that the IDEA requires neither specific results nor that the District 
maximize AJT’s potential or “provide the best possible education at public 

expense.” (Doc. 60 at 1 (quoting M.L.K., 

, at *4).)        
The Court finds that AJT made progress during the 4.25-hour day.     
However, this fact does not require reversal of the ALJ’s Order.  First, the 

Supreme Court has made clear that the fact that a student makes some progress 
in an IEP does not alone establish that the IEP provides a FAPE.  See Endrew F., 

 (holding that FAPE “standard is markedly more demanding 
than the merely more than de minimis [progress] test” and “requires an    
educational program reasonably calculated to enable a child to make progress 

appropriate in light of the child’s circumstances”) (cleaned up).  Second, while it 
is undisputed that AJT did make progress in some areas under the IEP, it is also 
undisputed that she regressed in the areas of toilet training, signing, and 

initiating greetings with assistive technology.  She lost the capacity to use a 
variety of signs that she had used in Kentucky, lost the capacity to void on the 

toilet 50% of the time, and lost the capacity to successfully interact with peers by 
using assistive technology to initiate or return a greeting.  (Doc. 14-5 at 106-07; 
14-6 at 71-72 (AT H'rg Test. at 35-37, 141-42); Doc. 14-15 at 22 (Mar. 12, 2015, 

Kentucky IEP (“[AJT] can independently initiate a greeting to a peer or adult or 
return a greeting from a peer or adult by activating a prerecorded button switch . 

. . .”)).)                                                                
Dr. Reichle testified that AJT lost skills previously acquired and that 
regression suggests that AJT needs more instruction.  (See, e.g., Doc. 14-12 at 10-

11, 24 (Reichle H'rg Test. at 413-15, 470).)  He noted in his IEE that on the day he 
observed AJT at school, she did not return the greeting of one of her school peers.  

(Doc. 14-15 at 181 (“One female classmate said ‘Hi’ to [AJT] to which she did not 
react. The peer ‘hung around’ [AJT] for a minute or so telling others that ‘[AJT] 
here’ while acting excited.”).)  Importantly, Dr. Wills testified that while LGS can 

cause a regression in skills, LGS had not yet caused AJT’s regressions because 
she was still progressing.  (Doc. 15 at 206 (Wills H'rg Test. at 556-57).) 
While witnesses testified that LGS can cause plateauing or regression (Doc. 

15 at 239 (West H'rg Test. at 689); 785 (Shams H'rg Test. at 952-53)), there is no 
definitive evidence that AJT’s LGS caused the plateauing and regressing that she 

has experienced.  Furthermore, special education teacher Pam Kohlhepp testified 
that she could not opine for sure if AJT’s learning progress could improve with 
more time, that she had no basis to conclude that AJT would be harmed by  

instruction between 4:00 and 6:00 p.m., and that she had no reason to believe AJT 
could not benefit from a full day of school.  (Id. at 590 (Kohlhepp H'rg Test. at 

855).)  Likewise, Dr. Breningstall testified that “it would be beneficial for [AJT] to 
have the same number of schooling hours as her peers” and there is no reason to 
believe she would be harmed by instruction from noon to 6:00 or 6:30 p.m.  (Doc. 

14-11 at 58 (Breningstall H'rg Test. at 275).)  Dr. Wills also testified that “it’s kind 
of a no-brainer that, of course, instruction is a benefit,” particularly for an 

individual “with greater needs,” although she noted that it is “a different thing 
than to say that this is necessary.”  (Doc. 15 at 197 (Wills H'rg Test. at 520-21).)  
     4.   Reliability of Dr. Reichle’s Opinion                       

The District argues that Dr. Reichle’s opinion that “more is better” and that 
AJT would likely make more gains with more instruction is not supported.  First, 
the District notes that his recommendation is based on a short-term intervention 

over the internet in which he coached a paraprofessional in AJT’s home to 
facilitate discrete trial training sessions that were limited in scope and duration.  

(Doc. 14-12 at 20 (Reichle H'rg Test. at 454).)  Dr. Reichle wanted to gauge AJT’s 
seizures and alertness, but he could not do either via the computer, testifying 
only that he could “say there were no large seizures but beyond that I can’t say 

too much.”  (Id.)  Likewise, he had only an anecdotal gauge of AJT’s alertness 
based on the fact that “she learned relatively quickly and we had relatively few 

no responses.”  (Id. at 20-21 (Reichle H'rg Test. at 454-55).)            
Dr. Reichle also testified that literature regarding the success of more 
intensive interventions for learners with intellectual disabilities is “a little 

mixed.”  (Id. at 279 (Reichle H'rg Test. at 463-65).)  He admitted that one recent 
study indicates that less intensity of service may actually be more successful 

because the learner’s attention span wanes in longer sessions.  (Id.)  When asked 
what the literature indicates with regard to more intensity affecting a child’s 
ability to maintain skills and generalize their use in different environments, he 

answered “[t]he honest answer is we don’t know.”  (Id. (Reichle H'rg Test. at 
466).)  Finally, the District notes that Dr. Reichle opined that while he thought 
more was better with respect to AJT’s education programming because she is 

highly motivated and an easy learner to motivate, he did not pick “dosage 
levels” that were sufficiently different to actually demonstrate that.  (Id. (Reichle 

H'rg Test. at 465).)                                                      
The District notes that Dr. Reichle’s intervention and virtual observations 
took place over ten sessions, held two to three times per week over the course of 

a three-and-a-half-week period during the COVID-19 pandemic when AJT was  
not in school.  (Id. at 20 (Reichle H'rg Test. at 453-54).)  Dr. Wills opined that she 

did not know if AJT would make more progress with more hours of instruction.  
(Doc. 15 at 201 (Wills H'rg Test. at 537).)  She reviewed Dr. Reichle’s data from 
his telehealth observations and testified that it was debatable how much progress 

AJT made in the timeframe of 4:15 p.m. to 5:30 p.m.—the report showed that AJT 
was available to learn at that time when she had not been in school all day 

beforehand  (Id. at 206 (Wills H'rg Test. at 559).)  She opined that Dr. Reichle’s 
data did not demonstrate that a 6.5-hour school day would produce more gains 

for AJT.  (Id. at 200-201 (Wills H'rg Test. at 535-36).)                  
The District asserts that the ALJ relied on Dr. Reichle’s opinion to order the 
District to provide an additional one-and-a-half hours of in-home instruction to 

AJT after school until 6:00 p.m., even though Dr. Reichle testified that no trial 
lasted beyond 5:30 p.m., so he was not able to gauge AJT’s ability to learn after 

5:30 p.m.  The District asserts that the ALJ erred in relying on Dr. Reichle’s 
testimony without making any credibility determinations as to the divergent 
testimony of the District’s witnesses.                                    

The Court rejects the District’s claim that the ALJ’s decision is wrong 
because Dr. Reichle’s testimony is unreliable.  Although Dr. Reichle only 

conducted ten trials via the internet that consisted of far fewer than 6 hours per 
day, there is no evidence to contradict his findings that AJT successfully learned 
from 4:15 to 5:30 p.m.  There is no indication that the paraprofessional at AJT’s 

home did not correctly participate in the trials or that, in other circumstances, 
AJT was not alert and able to learn at that time.  Although the literature on the 

efficacy of the intensity and amount of instruction may be “mixed” with regard 
to students in general, Dr. Reichle had a clear opinion on AJT’s ability to learn 
with intense and longer instruction based on his interactions with her and her 

personal characteristics.  Dr. Reichle’s testimony was the best evidence available 
to the ALJ regarding AJT’s ability to learn at that time and was corroborated by 
Ott’s testimony regarding AJT’s successful learning at that time after a school 

day in Kentucky and by AJT’s father’s testimony.  Moreover, although this trial 
took place during the pandemic, the trial consisted of two-sessions-per-day 

beginning at noon, which mirrored school conditions as closely as possible, given 
the circumstances, which were dictated by a global pandemic.              
     5.   Whether the ALJ’s Decision Relies on Factual Errors        

The District argues that the ALJ’s decision relies on findings inconsistent 
with the evidence.  For example, the ALJ found that while reaching agreement as 

to the start time of AJT’s school day, AJT’s parents and the District have never 
agreed as to when AJT’s day should conclude.  (Doc. 15 at 970 (ALJ Order, Facts 
¶ 3).)  The District asserts that, in fact, AJT’s parents agreed to the stay-put IEP 

that includes a 4:15 p.m. end time by way of implied consent in April 2017.  And, 
at one point, AJT’s parents themselves suggested a 4:15 p.m. end time to AJT’s 

school day.                                                               
The ALJ also includes a finding that the “District has struggled in making 

progress on [AJT’s] IEP goals and objectives with a four-hour and fifteen minute 
school day.”  (Id. at 979 (ALJ Order, Facts ¶ 71).)   In support of this finding, the 
ALJ states as fact that “[a]s Dr. Reichle was preparing the IEE, [AJT’s] current 

special education teacher and case manager, Teresa Elliot, confided that some of 
the instructional objectives in [AJT’s] IEP could not be implemented in the time 

available during her shortened school day.”  (Id. & n.71 (citing (Doc. 14-12 at 22 
(Hr’g Tr. at 461 (Reichle Test.)).)  The District argues that Dr. Reichle’s testimony, 
however, is directly refuted by Elliot’s hearing testimony.  Elliot testified that she 

took part in writing AJT’s IEP, “[s]o if I didn’t feel that we would be able to 
implement that IEP, I wouldn’t write it that way.”  (Doc. 15 at 800 (Elliot H'rg 

Test. at 1013).)  She testified that she wrote AJT’s IEP knowing that AJT attended 
school from 12:00 to 4:15 p.m. and she wrote the IEP knowing AJT only had 4.25 
hours.  Thus, she did not tell Dr. Reichle that there was too much on the IEP to 

accomplish in a 4.25-hour day.  (Id. at 804 (Elliot H'rg Test. at 1029-30).) 
According to the District, the ALJ provided no credibility assessment that 

would suggest Dr. Reichle’s testimony was more credible or deserved more  
weight than Elliot’s testimony.   Indeed, the ALJ includes no reference to Elliot’s 
testimony with respect to this factual finding.  Additionally, AJT’s father agreed 

that the statement was similar to his experience with “Kohlhepp when we made 
the very difficult decision to remove potty training from [AJT’s] goals and 
objections because there wasn’t enough time.”  (Doc. No. 14-6 at 3-4 (AT H'rg 

Test. at 73-74).)  When asked whether Dr. Reichle’s recommendations could be 
implemented during a 4-hour-and-15-minute school day, AJT’s treating      

neurologist testified, “Then that would be to the – that would be at the expense 
of something else occurring during that period of time.”  (Doc. 14-11 at 61 
(Breningstall H'rg Test. at 289).)                                        

The District also notes that the ALJ made a finding that “[f]or its part, the 
District agrees that the amount of instruction should be based upon the number 

of hours that [AJT] can remain engaged, active and alert.”  (Doc. 15 at 980 (ALJ 
Order, Facts ¶ 76).)  The ALJ cites to Dr. Wills’ testimony to support this notion; 
however, Dr. Wills was not testifying about the hours of instruction generally, 

but rather, was answering the question regarding “the method of determining 
how much of that ABA instruction [AJT] should have.”  (Id. at 201-02 (Wills H'rg 

Test. at 539-40).)  Dr. Wills also testified, “[i]t’s not the [number of] hours, but 
what you do with them.” (Id. at 200-01 (Wills H'rg Test. at 535-36).)  The District 
asserts that it has taken the timeframe during which AJT is available for learning 

and offered her an educational program that is highly individualized and  
designed to provide a FAPE within that timeframe.  AJT begins her day at 12:00 
p.m. because that is when she is first available to learn.  Her day is extended 

beyond the end of the typical school day because that is part of what allows her 
to make progress appropriate in light of her circumstances.  The District asserts it 

is under no obligation to provide instruction to its students at all hours of the day 
during which they are engaged, active, and alert.                         
The District next takes issue with the ALJ’s conclusion that Dr. Shams’ 

suggestion that “one or two hours of instruction was ‘good,’ ‘fine’ and sufficient” 
for a student like [AJT], is not well taken.”  (Doc. 15 at 986 (ALJ Order, 

Conclusions ¶ 8).)  Dr. Shams is the District’s expert neurologist.  The District 
asserts that this is a gross misstatement of Dr. Shams’s testimony.       
During the hearing, the ALJ asked Dr. Shams if a student with LGS, be it 

AJT or another LGS patient, was not available for instruction until 3:00 p.m., 
“would it be your view that an hour from 3:00 to 4:00 would be suitably   

challenging and beneficial because they have access to peers?”  (Id. at 793 (H'rg 
Tr. at 984 (Shams Test).)  Dr. Shams answered, “I think many of these patients 
grow up at—spend significant time at home without peer interaction.  So I think 

any peer interaction globally is good.  If it’s one hour 3:00 to 4:00, great.  So be it.  
If the baseline is nothing, then one to two hours is fine.”  (Id.)  The District argues 
that the ALJ’s decision suggests that Dr. Shams believed AJT is so disabled that 

she only requires an hour or two of instruction; however, this is not an accurate 
representation of Dr. Shams’s testimony at hearing.                       

The ALJ also concluded that the District showed “no flexibility in the 
instruction schedule for [AJT] beyond 4:15 p.m.”  (Id. at 983 (ALJ Order, Facts ¶ 
99).)  Similarly, the ALJ also found that “[t]he hearing record reflects that the 

School District’s aggressive press for an earlier start time for [AJT] did not follow 
an individualized assessment of [her] needs, but rather the need to safeguard the 

ordinary end-of-the-workday departure times for its faculty and staff.”  (Id. at 
983-84 (ALJ Order, Facts ¶ 101).)  The District argues that these findings are 
erroneous; it engaged in lengthy and ongoing communications with AJT’s family 

in order to find a way to best understand and serve her needs.            
The District argues that it has always remained ready to provide     

instruction to AJT any time that she is available during the regular school day as 
it would be for any other District student.  And it has never proposed an IEP 
with a start time earlier than 12:00 p.m.  It merely offered a flexible start time 

option as one of many various suggestions to provide AJT with the opportunity 
to access her education program to the same extent as her peers in light of the 
District’s obligation to include AJT to the maximum extent possible with her 

nondisabled peers as required by 

 (setting forth the least 
restrictive environment requirement under the IDEA).  The District asserts that, 

in response to AJT’s parents’ request for instruction time for AJT, the District 
offered to place trained staff in AJT’s home to collect more information regarding 
her seizure activity and needs during the morning.  AJT’s parents rejected this 

offer and the District accepted their decision.                           
The District argues that it has shown its commitment to flexible scheduling 

for AJT by extending her school day beyond the end of the regular school day by 
15 minutes when she attended Cedar Island and by 1 hour and 35 minutes when 
she attended MGMS.  The District also provided AJT with ESY services that took 

place in her home from 12:00 to 3:00 p.m. as opposed to the typical 9:00 a.m. to 
12:00 p.m. ESY service provided on school premises.  And the District even 

offered to provide the Student with additional hours of ESY services, which the 
family declined.                                                          
The Court finds that while the ALJ did appear to make a few errors,  

collectively, the errors do not support reversing the ALJ’s decision.     
The ALJ erred by finding as a fact that Elliot told Dr. Reichle that “some of 
the instructional objectives in [AJT’s] IEP could not be implemented in the time 

available during her shortened school day” without making a credibility   
determination between Elliot and Dr. Reichle because Elliot testified that she did 

not make that statement and Dr. Reichle testified that she did.  (Doc. 15 at 979 
(Doc. 15 at 979 (ALJ Order, Facts ¶ 71).)  However, this error does not alter the 
Court’s overall analysis.                                                 

Even accepting Elliot’s testimony as true, she stated that she crafted the 
IEP goals to fit into the limitations of 4.25 hours and so would not have included 

any goal that could not be accomplished during that time, which does not show 
that a 4.25-hour-day was appropriate.  Elliot’s testimony supports a finding that 
AJT’s IEP goals were limited by the 4.25-hour day.  In addition, Dr. Breningstall 

testified that implementing Dr. Reichle’s recommendations within the 4.25-hour 
school day would require eliminating other goals for AJT.  AJT’s father testified 

that the District indicated that it was not possible to pursue toilet training due to 
the length of the day and, thus, AJT’s parents agreed to eliminate that goal from 
her IEP.  And Dr. Reichle testified that his IEE recommendations could not be 

implemented when constrained to a 4.25-hour day.  (Doc. 14-12 at 18 (Reichle 
H'rg Test. at 444-45).)  Therefore, the record still supports the ALJ’s decision.  
Similarly, the ALJ’s statement that Dr. Shams opined that one-or-two 

hours of instruction for a student like AJT was “‘good,’ ‘fine’ and ‘sufficient’” 
appears to be a mischaracterization of his opinion.  In context, Dr. Shams was 

stating that one or two hours of peer interaction is better than no peer interaction 
and that this amount of peer interaction for a student like AJT would be “fine” if 
the baseline was zero.  He was not opining that instruction time of one or two 

hours was sufficient for AJT.  However, this mischaracterization does not form 
the basis for the decision that AJT should receive six hours of instruction per day, 

so it is not material.  See Slama ex rel. Slama v. Indep. Sch. Dist. No. 2580, 

 (D. Minn. 2003) (finding disputed issue immaterial to 
determination of whether child was denied a FAPE and granting judgment for 

school based on this and other grounds).                                  
On the other hand, the ALJ did not err in stating that AJT’s parents and the 

District have never agreed as to when AJT’s day should conclude.  AJT’s parents 
have consistently requested instruction until at least 6:00 p.m. and merely 
“agreed” to the 2017 IEP by not responding to it.  At one point, they suggested a 

4:15 p.m. end time in the school building, but that was a negotiating point in the 
context of their knowledge that the District consistently refused anything later 
and also refused in-home support after school hours.                      

Likewise, the ALJ’s statement that the District showed “no flexibility in the 
instruction schedule for [AJT] beyond 4:15 p.m.” is accurate.  Although the 

District engaged in ongoing communications with AJT’s family to seek a solution 
that met her needs and provided multiple alternatives, it never offered an 
alternative with instruction beyond 4:15 p.m.                             

The ALJ’s interpretation of Dr. Wills’ testimony is reasonable—Dr. Wills 
was answering a question about the amount of ABA instruction AJT should   

have.  AJT’s parents maintain that AJT should receive ABA instruction, so it was 
a reasonable interpretation that Dr. Wills thinks that AJT’s instruction overall 
should be based on how long she “can remain engaged, active and alert.”   

The ALJ’s interpretation that the District’s request to observe AJT in the 
mornings to see if morning instruction would be feasible and its offer of a flexible 

start time to allow AJT to attend any time before noon on any day when she is 
able were made solely to provide a standard departure time for its staff is a 
factual interpretation that is entitled to due weight.  A reasonable interpretation 

of the evidence is that the District was trying to accommodate AJT with a flexible 
start time by allowing her extra instructional time when she was available.  And, 
since there was no data on how AJT fared during instruction before noon, it was 

reasonable for the District to offer to have a professional observe her at that time 
to determine if there was a possibility of some manner of morning instruction.  

At one point, the District was told by one of AJT’s neurologists, Dr. Jason 
Doescher, that he thought education earlier in the day would be a possibility and 
that attempting to trial that would be “reasonable.”  (Doc. 14-16 at 42 (Jan. 28, 

2021, Transcript of Recorded Phone Call with District personnel; AT, AJT’s 
father; and Doescher at 12-13); see also Doc. 14-11 at 56 (Breningstall H'rg Test. at 

267) (“Dr. Doescher was apparently somewhat amenable to attempts to modify 
[AJT’s] schedule to try to start her educational process earlier in the day.”).)   
However, the ALJ’s attribution of a different motivation to the District’s 

actions is entitled to due deference under the standard of review the Court must 
apply in this case.  See K.E., 

.  Evidence supporting the ALJ’s 

interpretation includes AJT’s father’s clear testimony regarding the adverse 
effects AJT has endured from waking up earlier for medical treatments, (see, e.g., 
Doc. 14-6 at 19-23 (AT H'rg Test. at Tr. 89-93)), and Dr. Breningstall’s testimony 

that starting AJT’s school day before noon would lead to an “inevitable   
worsening of her problem” and that Dr. Breningstall “can’t see on an      
experimental basis or otherwise exposing [AJT] to an inevitable worsening of her 

problems” (Doc. 14-11 at 57 (Breningstall H'rg Test. at 273-74)).         
Therefore, while the ALJ made some factual errors, the errors do not 

require that the Court reverse the ALJ’s decision.                        
IV.  CONCLUSION                                                           
Based on the above discussion, the Court concludes that the District has 

not provided AJT a FAPE.  AJT requires more than 4.25 hours of schooling a day 
to have an educational program that is sufficiently ambitious in light of her 
circumstances and that will allow her to meet challenging objectives.   Extending 

her instructional day until 6:00 p.m. and including compensatory hours of 
instruction as found by the ALJ is the appropriate remedy.  The ALJ’s decision is 

AFFIRMED.                                                                 
Based on the files, records, and proceedings herein,                 

IT IS HEREBY ORDERED:                                                
1.   Defendant’s Motion for Judgment on the Record (Doc. 43) is      
     GRANTED; and                                                    
2.   Plaintiff’s Motion for Judgment on the Administrative Record (Doc. 
     46) is DENIED.                                                  
LET JUDGMENT BE ENTERED ACCORDINGLY.                                 


Date:   September 13, 2022                                                
                              s/Michael J. Davis                     
                              Michael J. Davis                       
                              United States District Court           

            UNITED STATES DISTRICT COURT                             
               DISTRICT OF MINNESOTA                                 


OSSEO AREA SCHOOLS,                                                       
INDEPENDENT SCHOOL                                                        
DISTRICT NO. 279,                                                         

          Plaintiff,                                                 

v.                            MEMORANDUM AND ORDER                        
                         Civil File No. 21-1453 (MJD/DTS)            

A.J.T., by and through her                                                
parents, A.T. and G.T.,                                                   

          Defendant.                                                 


Christian R. Shafer, Elizabeth M. Meske, and Laura Tubbs Booth, Ratwik, Roszak 
& Maloney, PA, Counsel for Osseo Area Schools, Independent School District 
No. 279.                                                                  

Amy J. Goetz, School Law Center, LLC, Counsel for A.J.T.                  


I.   INTRODUCTION                                                         
Defendant AJT is a teenage girl with a severe form of epilepsy called 
Lennox-Gastaut Syndrome.  As a result of her disability, AJT has the intellectual 
capacity of an 18-month-old child and has seizures continually throughout the 
day.  Her seizures are so severe early in the day that she is unable to attend 
school in the morning.  Since moving to Plaintiff Osseo School District in 2015, 

AJT and the District have agreed that she is unable to begin school until noon 
due to her medical condition but have been unable to reach consensus regarding 
when her school day should end.                                           

In 2021, an administrative law judge ruled in favor of AJT and ordered the 
District to provide AJT with “instruction at home that includes discrete trial 

training interventions between 4:30 p.m. and 6:00 p.m. each school day,” among 
other things.  The District appealed that decision to this Court.   Both parties 
have now filed motions for Judgment on the Record.  (Doc. 43 (Defendant AJT’s 

Motion for Judgment on the Record)); (Doc. 46 (Plaintiff Osseo Area School’s 
Motion for Judgment on the Administrative Record).)  The Court heard oral 

argument via Zoom on July 13, 2022.                                       
As discussed in detail below, the evidence in the record supports the ALJ’s 
conclusion that “whenever there was a conflict between the need to maintain the 

regular hours of the school’s faculty, and [AJT’s] need for instruction, the regular 
hours of the faculty was always the prevailing and paramount consideration.”  

The correct standard is whether AJT’s IEP established an educational program 
that was “appropriately ambitious in light of her circumstances.”  Endrew F. ex 
rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 

(2017).  

Without more than 4.25 hours of schooling a day, the IEP did not establish such a 
program.  AJT’s de minimis educational progress since moving to the District 
does not change that fact, especially in light of her regression in certain areas and 

the fact that certain historical goals had to be cut from her IEP due to the 
shortened school day.  In addition, the District’s shifting reasons for denying the 

in-home instruction AJT seeks to make up for the morning hours she is not in 
school were never based on AJT’s needs.  Accordingly, AJT’s Motion for    
Judgment on the Record is granted and the District’s Motion is denied.    

II.  BACKGROUND                                                           
A.   Factual Background                                              

     1.   The District                                               
Defendant AJT lives with her parents, AT and GT, within the boundaries 
of Plaintiff Osseo Area Public Schools, Independent School District No. 279 (“the 

District”).  AJT has attended public schools in the District since fall 2015 when 
her family moved from Boone County, Kentucky to Minnesota.  (Doc. 15 at 973 

(ALJ Order, Facts ¶ 24).)  AJT was in fourth grade at the time she entered the 
District.  (Doc. 14-15 at 36 (Sept. 21, 2015 IEP).)                       
     2.   AJT                                                        

At the time of the administrative hearing in February 2021, Defendant AJT 
was a 15-year-old girl with Lennox-Gastaut Syndrome (“LGS”), a severe form of 
epilepsy that causes AJT to have seizures continually throughout the day.  (Doc. 

14-11 at 53 (Breningstall Hr’g Test. at 255); Doc. 15 at 200 (Wills H'rg Test. at 534), 
970 (ALJ Order, Facts ¶ 1).) Her seizure activity is especially severe throughout 

the night and in the morning.  (Doc. 14-15 at 392 (Kohlhepp Aff. ¶ 10), 463.)  Due 
to LGS, AJT has significant cognitive disability and functions in the range of an 
18-month-old child.   (Doc. 15 at 785 (Shams H'rg Test. at 954).)  She does not 

speak verbally and uses adapted signs somewhat inconsistently.  (Doc. 14-15 at 
248-79 (Ex. 133).)  She requires assistance for walking, balance, and toileting.  

(Id.)                                                                     
Dr. Galen Breningstall, AJT’s treating neurologist, testified at the 
administrative hearing that AJT had a significant cognitive disability caused by 

LGS.  (Doc. 14-11 at 59 (Breningstall H'rg Test. at 279); Doc. 15 at 784-85 (Shams 
H'rg Test. at 947-54).)  Individuals with LGS often plateau in their functional and 

intellectual gains by middle school.  (Doc. 15 at 239 (West H'rg Test. at 689); 785 
(Shams H'rg Test. at 953).)  AJT’s constant seizure activity has impacted her 
cognitive ability and development.  (See, e.g., id. at 200 (Wills H'rg Test. at 534); 

(West H'rg Test. at 688); 785 (Shams H'rg Test. at 952-53).)              
Dr. Karen Wills, the District’s expert and a pediatric neuropsychologist 
who has evaluated over 500 children with profound intellectual disabilities, at 

least two hundred of whom have seizure disorders, and who has participated in 
developing educational programming for more than 7000 students, testified: 

Well, [AJT] is actively having seizures all day every day.  And it is 
clear from the description of [AJT] herself as an individual that that 
ongoing seizure activity interferes greatly with memory, with        
attention and with new learning and also her mood, and for most      
people, just overall alertness.                                      

(Id. at 200 (Wills H'rg Test. at 534); see also Doc. 14-15 at 386 (Wills Aff. ¶ 6).) 
At school, AJT is                                                    
working to pick up objects and release her grasp on command          
(putting things into containers), to use a crayon to mark a single   
stroke on paper, to comply with single word commands about           
physical actions (e.g., to sit or stand), to demonstrate intention and a 
sense of purpose (e.g., protesting or demanding an activity), and to 
anticipate events based on the social context (e.g., raising her arms to 
be dressed).                                                         

(Doc. 14-15 at 386 (Wills Aff. ¶ 9.)                                      
She is just beginning to learn how to imitate others, to take turns in 
reciprocal interaction (such as tossing a ball back and forth), to share 
joint attention (looking at or listening to something when another   
person calls attention to it), and to initiate social contact or     
purposeful object-manipulation (exploring things on her own, rather  
than following the commands and prompts of adults).                  

(Id.)                                                                     
     3.   Services Provided in Kentucky                              
According to AJT’s father, while a student in Kentucky, AJT received 
instruction from the public school from noon until 6:00 p.m. each day.  (Doc. 14-5 

at 103 (AT H'rg Test. at 32-33).)  The Kentucky IEP in the record, however, 
provided that AJT received 125 minutes of special education in school daily and 

90 minutes of special education in the home daily, for a total of 215 minutes (3 
hours and 35 minutes) of special education instruction per day.  (Doc. 14-15 at 27 

(Mar. 12, 2015, Boone County, KY, IEP).)  AJT’s father asserts that this Kentucky 
IEP in the record was inaccurate.  (Doc. 14-6 at 10-12 (AT H'rg Test. at 80-82).)  
AJT alleges that the inaccuracy was not discovered until the administrative 

hearing and she was unable to obtain the corrected documents from Kentucky.  
(Id.; (Doc. 14-7 at 37-38 (AT H'rg Test. at 206-07).)                     

Kentucky behavior therapist Marygrace Ott, MA, BCBA1, LBA2, and      
independent evaluator and AJT’s expert, Dr. Joe Reichle, Ph.D., testified that 


1 Board Certified Behavior Analyst                                        
2 Licensed Behavior Analyst                                               
between 4:00 and 6:00 p.m., AJT had good stamina, was alert and engaged, was 

on task, was responsive, worked easily without breaks for an hour, and was 
easily reinforced.  (Doc. 14-11 at 69-70 (Ott H'rg Test. at 319-21, 325-26); Doc. 14-
12 at 17, 21 (Reichle H'rg Test. at 440-41, 456); see also (Docs. 14-5 at 140-41 & 14-6 

at 1-2 (AT H'rg Test. at 69-72) (AJT’s father’s testimony opining that AJT did well 
during Dr. Reichle’s three-week trials in the late afternoon).)  Dr. Breningstall 

testified that AJT would benefit from instruction between 4:15 p.m. and 6:00 p.m. 
“[b]ecause that is the time of day that is her best time for functioning,” and it 
would provide “more opportunities for the instruction that was delivered at that 

time to be beneficial to her.”  (Doc. 14-11 at 61 (Breningstall H'rg Test. at 288-89).) 
     4.   AJT’s Unavailability for Instruction Before Noon           

AJT is “unavailable for school before noon each day.”  (Doc. 15 at 970 (ALJ 
Order, Facts ¶ 1).)  Since AJT moved to the District in 2015, the District has 
excused AJT’s absence from school before noon.  (Id. ¶ 2.)                

AJT’s seizure activity is highest before noon.  (Id. at 971 (ALJ Order, Facts 
¶ 10); Doc. 14-15 at 97-102 (AT H'rg Test. 26-31).)  During heavy seizure activity, 

she cries, is afraid, needs to be comforted, and may be in pain.  (Doc. 14-6 at 38-
39 (AT H'rg Test. at 108-09).)  Dr. Breningstall testified that starting AJT’s school 
day before noon would lead to an “inevitable worsening of her problem.  And I 

can’t see on an experimental basis or otherwise exposing her to an inevitable 
worsening of her problems.” (Doc. 14-11 at 57 (Breningstall H'rg Test. at 273-74).)  
No medical provider has ever recommended changing AJT’s schedule or       

experimenting with an earlier school start time.  (Doc. 14-6 at 39 (AT H'rg Test. at 
109).)                                                                    

     5.   Scheduled School Day in the District                       
Dr. Karen Wills, a pediatric neuropsychologist and the District’s expert on 
assessment and interventions, testified that a typical school day for any child is 

“anything but back-to-back instructional programming.  Part of the school day 
includes things like lunch time, break time, recess and all of that kind of stuff. . . . 

[T]o sort of think about the entire day as involving direct instructional 
programming just isn’t accurate.” (Doc. 15 at 197-98 (Wills H'rg Test. at 523-24).) 
AJT is at school for 4 hours and 15 minutes each day receiving intensive special 

education services and always has one or two adults working solely with her 
providing services and working on AJT’s goals.  (Doc. 15 at 389, 404 (H'rg Test. of 

Joy Frederickson, former District special education site administrator, at 777-78, 
793); 976 (ALJ Order, Facts ¶¶  55-56); 802 (Elliott H'rg Test. at 1019-20).)   
The District provided extended school year (“ESY”) services to AJT in the 

amount of 16 3-hours sessions in AJT’s home by a licensed special education 
teacher between the hours of 12:00 p.m. and 3:00 p.m. during the summers she 
was enrolled in elementary school.  (Doc. 15 at 558, 568-69 (Fredrickson H'rg 

Test. at 727, 770-71).)  The District typically provides ESY services for students 
with special needs at school in the morning and ends services at noon.  (Id. at 569 

(Frederickson H'rg Test. at 771).)  The District offered to provide additional ESY 
services beyond the typical ESY in June and August; however, AJT’s parents 
rejected this offer because June and August were times that AJT might try new 

medications and treatments and receive outside therapies.  (Id. at 559    
(Frederickson H'rg Test. at 731).)                                        

     6.   Negotiations Between AJT’s Parents and the District        
AJT’s father asserts that before the family moved from Kentucky to   
Minnesota, he received assurances from the District that the District would 

continue her modified schedule as it was in Kentucky.  (Doc. 14-5 at 92 (AT H'rg 
Test. at 21).)  AJT’s father claims that his request was based on undisputed 

medical and educational opinions that AJT is best able to be alert and active and 
seizure-free between noon and 6:00 or 7:00 p.m.  (Doc. 14-6 at 31-33 (AT H'rg 

Test. at 101-03).)                                                        
When AJT entered the District in October 2015, her parents requested that 
AJT not attend school until noon due to her morning seizure activity.  (Doc. 14-15 

at 392 (Kohlhepp Aff. ¶ 10).)  The IEP team, including AJT’s parents, agreed that 
starting the school day at noon was appropriate given AJT’s individual needs.  

(Id. at 464 (Oct. 16, 2015 Prior Written Notice (“PWN”) stating that AJT “can not 
[sic] come to school in the morning due to her seizure activity through the night 
and in the morning”).)                                                    

AJT’s IEP team first met on September 21, 2015.  (Id. at 46 (Sept. 21, 2015, 
IEP Meeting Summary).)  The District proposed an IEP that generally accepted 

the goals and objectives on AJT’s most recent IEP from Kentucky.  (Id. at 20 (Mar. 
12, 2015, Boone County, Kentucky, IEP); 36 (Sept. 21, 2015, IEP); Doc. 15 at 553 
(Frederickson H'rg Test. at 708).) AJT’s parents requested two more IEP   

meetings, which were held on October 14 and October 20, 2015.  (Doc. 14-18 at 8-
12).)  Following those meetings, the District proposed an IEP that accepted the 

goals and objectives on AJT’s Kentucky IEP and included minutes of special 
education service that were commensurate with those on the Kentucky IEP.  
(Doc. 15 at 553-54 (Frederickson H'rg Test. at 708, 712).)  The Kentucky IEP called 

for 125 minutes of special education in school daily and 90 minutes of special 
education in the home daily, for a total of 215 minutes of special education 
instruction per day.  (Doc. 14-15 at 27.)  The District’s IEP included 240 minutes 

of direct special education daily and 20 minutes weekly of direct speech services.  
(Id. at 56.)                                                              

AJT’s parents also requested that AJT receive paraprofessional support in 
her home from 4:00 p.m. to 6:00 p.m.  (Id. at 464 (Oct. 16, 2015 PWC).)  AJT’s 
parents told the District staff that in Kentucky, AJT received paraprofessional 

support from her school district three days per week for 90 minutes at home.  
(Doc. 15 at 553 (Frederickson H'rg Test. at 708).)  In addition, AJT’s parents told 

the District that AJT also received services two days a week after school at home 
in the evenings all year long, including summers, from the State of Kentucky via 
a Medicaid waiver program.  (Doc. 14-11 at 68-69 (Ott H'rg Test. at 316-20) 

(testifying that she worked with AJT from 4:00 p.m. to 6:00 p.m. two days a week 
and that while her report indicated that AJT attended school from 1:00 p.m. to 

3:30 p.m., that was incorrect).)                                          
At the October 14, 2015, IEP team meeting, AJT’s father asked if the 

District would, “Provide support in the evening,” and the District’s special 
education coordinator stated, “We don’t provide both homebound and school 
support (modified).”  (Doc. 14-13 at 15 (Oct. 14, 2015, IEP Team Meeting Notes).)  

Two days later, on October 16, 2015, based upon that same meeting, the District 
issued a Prior Written Notice (“PWN”) that stated:                        

The team discussed a modified schedule to [AJT’s] school day.        
[AJT] can not come to school in the morning due to her seizure       
activity through the night and in the morning.  Mom and Dad have     
requested a modified schedule to further her education into the      
evening when her physical health is appropriate for learning.  The   
district has denied this request saying state law does not mandate   
this support from the school district.                               

(Doc. 14-15 at 464.)                                                      
AJT’s parents did not sign the PWN consenting to or objecting to the IEP 
within 14 days; thus, as stated in the PWN, the District went forward with the 
IEP as proposed.  (Id. at 468.)  On October 20, 2015, AJT’s parents provided a 
letter to the District stating that “the District has not scheduled sufficient IEP 
team meetings to discuss appropriate accommodations from an education and 
safety perspective and/or engage[d] in the interactive process” to meet her needs.  
(Doc. 14-13 at 16.)  Also in the letter, AJT’s parents consented to the proposed 
IEP.  (Id.)  AJT began attending Cedar Island Elementary School (“Cedar Island”) 

under that agreement.  The typical school day at Cedar Island was from 9:30 a.m. 
to 4:00 p.m.  (Doc. 15 at 552 (Frederickson H'rg Test. at 705).)  AJT was scheduled 
to attend from noon to 4:00 p.m.; however, her mother initially picked her up 

from school at 3:30 p.m. due to concerns about AJT’s safety being dismissed at 
the same time as other students.  (Id. at 552-53 (Frederickson H'rg Test. at 705-

06).)                                                                     
On March 18, 2016, the District sent AJT’s parents a PWN addressing AJT’s 
school day schedule.  (Doc. 14-15 at 476; Doc. 14-16 at 1-2 (Continuation of Mar. 

18, 2016, PWN).)  In that PWN, the District refused AJT’s parents’ request for 
weekly instruction in their home beyond the end of the typical school day; 

however, it proposed elongating AJT’s modified school day from an end time of 
4:00 p.m. to 4:15 p.m.  (Doc. 14-15 at 476.)  This offer was made in part to address 
AJT’s parents’ concerns about AJT navigating the hallways at the end of the 

school day.  (Id.; Doc. 15 at 552-53 (Frederickson H'rg Test. at 705-06).)  Under 
this proposal, AJT would continue to receive services from her teacher in a one-

to-one setting.  (Doc. 14-15 at 476; Doc. 14-16 at 1-2.)  This offer was rejected by 
AJT’s parents.  AJT’s parents and the District attended conciliation conference 
meetings in late May and early June 2016 to discuss, in part, AJT’s school day.  

(Doc. 14-13 at 42-43.)  Following the conciliation conferences, the District again 
proposed trialing an extension of AJT’s school day beyond the end of the regular 
school day to 4:15 p.m.  (Id. at 44-45 (June 7, 2016, Summary of Conciliation 

Conference).)                                                             
On June 6, 2016, the District issued a PWN that stated:              

The district discussed an extended school day and decided against it 
due to the precedent it would start.  For [sic] Osseo School District 
and other districts across the area.                                 

(Doc. 14-16 at 3.)  The District and AJT’s parents continued to meet and discuss 
AJT’s IEP.  (See, e.g., id. at 6.)                                        
On April 24, 2017, the District proposed an PWN reflecting a 4.25-hour 
school day.  (Doc. 14-16 at 7-8.)  AJT’s parents did not return the PWN within 14 
calendar days to object to the proposed IEP so the IEP went into effect with the 
implied consent of AJT’s parents.  (Id. (mark in checkbox for “implied consent—

14 days elapsed”); Doc. 15 at 554 (Frederickson H'rg Test. at 713).)  The April 24, 
2017 IEP became the last agreed-upon IEP between the District and AJT’s   

parents.  This is known as the “stay put” IEP, meaning that during the pendency 
of any dispute between a parent and school district, the student remains in the 
then-current educational placement as outlined in that IEP.  See 

(j).                                                                  
AJT was retained at Cedar Island for an extra year at the request of her 
parents before matriculating to Maple Grove Middle School (“MGMS”).  (Doc. 

14-7 at 16-17 (AT H'rg Test. at 185-86).)                                 
On April 2, 2018, in preparation for AJT’s transition from Cedar Island to 

MGMS, the parties discussed AJT’s school day in middle school.  MGMS’s    
typical school day ends at 2:40 p.m., and the District suggested extending AJT’s 
day to 3:00 p.m.  (Doc. 14-16 at 9-11 (Apr. 2, 2018 PWN).)  AJT’s parents rejected 

the District’s proposal.  (Id. at 11.)  In response to the District’s proposal, AJT’s 
parents proposed “hours of instruction similar to those currently provided [at 

Cedar Island] (12:00 – 4:15PM).”  (Doc. 14-13 at 86.)  The District continued to 
provide instruction to AJT from noon to 4:15 p.m. under her stay-put IEP. 
Each year, AJT’s parents have provided the District with a brief letter from 

AJT’s treating neurologist requesting that she be “exempted from school   
attendance before noon” in order to manage her seizure activity.  (See, e.g., 

.)  The District made repeated offers to serve AJT whenever she is available 
during the regular school day, including before 12:00 p.m. on any days when AJT 

might be available to be in school earlier in the day.  (See, e.g., Doc. 14-16 at 16.)      
     7.   AJT’s Progress in the District                             
AJT’s father testified that AJT had regressed since she lived in Kentucky 

because she had lost the ability to use a handful of modified hand signs to 
communicate and had regressed from 50% proficiency using the toilet after her 

parents agreed to have the goal of “toileting” removed from her IEP as it was 
taking up too much instructional time.  (See, e.g., Doc. 14-5 at 106-09 (AT H'rg 
Test. at 35-38).)                                                         

Dr. Wills testified that in her review of AJT’s education record, AJT had 
plateaued with regard to her “expressive communication,” but she had “not seen 

any skill where [AJT] regressed.”  (Doc. 15 at 206 (Wills H'rg Test. at 557).)  Dr. 
Wills testified that she looked for evidence in the record that AJT’s     
communication skills had regressed over the five years she had been attending 

school in the District and that she “did not see any evidence of any regression at 
all.”  (Id. (Wills H'rg Test. at 518).)  Dr. Wills noted that this lack of regression of 

skills “is really encouraging” and that “given the severity and frequency of 
[AJT’s] seizure disorder, she very well could have, might have regressed.”  (Id.)    
          a)   Progress at Cedar Island                              

Pam Kohlhepp, AJT’s special education teacher at Cedar Island, testified 
that AJT made progress in her communication ability in the three years that she 
attended Cedar Island.  (Doc. 15 at 583-84 (Kohlhepp H'rg Test. at 829-30).) 

Kohlhepp specifically testified that “[AJT] made a lot of gains in terms of her 
desire to communicate” and her intent to communicate.  (Id. (Kohlhepp H'rg 

Test. at 830).)  AJT also made progress in using eye gaze as a way to answer 
questions or select choices.  (Id. at 596 (West H'rg Test. at 882).)  Kohlhepp noted 
that AJT “made a good deal of progress” with respect to making choices and 

answering questions using eye gaze.  (Id. at 583 (Kohlhepp H'rg Test. at 830).) 
Kohlhepp also testified that AJT made progress on her functional skills 

while she was a student at Cedar Island.  (Id.)  According to Kohlhepp, AJT’s 
“ability to feed herself increased a great deal.”  (Id.)  Kohlhepp also testified that 
AJT experienced periods of progression and periods of waning in her ability to 

use modified signs as a means of communication and that AJT continued to use 
the main signs that she consistently used when she started at Cedar Island, 

which were “eat” and “treat.”  (Id. at 584 (Kohlhepp H'rg Test. at 831).)   
Former District Special Education Site Administrator Joy Fredrickson 

testified that data on AJT’s progress was shared at each of AJT’s IEP team 
meetings while she was at Cedar Island.  (Id. at 556 (Frederickson H'rg Test. at 
720).)  She testified that AJT’s parents “were complimentary of the staff and 

personnel working with [AJT]” while she attended Cedar Island.  (Id. at 555 
(Frederickson H'rg Test. at 718).)                                        

          b)   Progress at Maple Grove Middle School                 
Dr. Wills stated that recent reports from MGMS did not show regression 
but rather showed “a distinct improvement.”  (Doc. 15 at 196 (Wills H'rg Test. at  

519).)  In particular, AJT is improving in the following areas:           
Visual tracking of objects and people in the room, the looking at    
people’s faces, smiling and laughing in response to what’s going on  
around her, initiating and sustaining some turn taking play, like    
throwing a ball back and forth, really sometimes aiming, which is    
pitching a ball into, like, a basket or bucket, the eye gaze selection 
attending and looking at pictures that are pointed out to her, being 
able to respond relatively quickly to commands like sit down, stand  
up, just very basic instructions, using the signs that she has       
consistently and with diminished prompting with less of a need for   
kind of the hand-over-hand reminders for the eat and drink and       
treat that she uses pretty predictably.                              

(Id. at 196-97 (Wills H'rg Test. at 519-20).)                             
District expert and special educator and consultant Deb West testified that 

based on her review of AJT’s records, AJT made progress with regard to    
numerous short-term objectives as reported in AJT’s IEP Progress Report dated 
March 9, 2020.  (Id. at 608-09 (West H'rg Test. at 930-32).)  She opined that, while 

the data collection in elementary school may have included more anecdotal 
information, the information collected by MGMS was “rich in data” from which 

to calculate progress.  (Id. at 609 (West H'rg Test. at 932).)            
Teresa Elliot, AJT’s case manager at MGMS, testified that AJT “absolutely” 
made progress during the 2019-2020 school year with respect to her IEP goal of 

increasing her ability to use direct selection for communication.  (Id. at 797 (Elliot 
H'rg Test. at 1000-02).)  Elliot testified that AJT made progress with regard to 

choosing with whom she wanted to do an activity or work.  (Id.)  AJT also made 
progress communicating choices such as whether she wanted a bite of avocado 
or a bite of something else.  (Id. (Elliot H'rg Test. at 999-1000).)  AJT made 

progress gaining adult attention.  (Id. at 797-98 (Elliot H'rg Test. at 1002-03).)  
Elliot also testified that AJT made progress on objectives related to her IEP goal 

of improving her skills in activities of daily living.  (Id. at 798 (Elliot H'rg Test. at 
Tr. 1004-05).)  Elliot testified that, among other things, AJT made progress with 
regard to handwashing.  (Id. (Elliot H'rg Test. at 1005-06).)  Elliot also testified 

that AJT made progress on her literacy and math goals.  (Id. at 799 (Elliot H'rg 
Test. at 1007-1010).)  She did not, however, make any progress with regard to 
using the toilet.  (Id. at 798 (Elliot H'rg Test. at 1004-06).)           

          c)   Dr. Joe Reichle’s Trial Tests                         
In 2019, the parties agreed that Dr. Joe Reichle would conduct an    

independent educational evaluation (“IEE”) of AJT.  (Doc. 15 (ALJ Order) at 970-
71).)  Dr. Reichle conducted his evaluation sometime that year.  Among Dr. 
Reichle’s recommendations in his May 28, 2019 IEE Report were access to “voice 

output devices” and as much instruction time as possible “during [AJT’s] alert 
hours,” which optimally are “between approximately noon and 6:00 p.m.”  (Doc. 

14-15 at 201, 246, 278.)                                                  
In autumn 2020, AJT’s parents hired Dr. Reichle to conduct a “series of 
discrete trial tests and to assess how interventions in the mid and late afternoons 

might impact [AJT’s] learning.”  (Doc. 15 at 979 (ALJ Order, Facts ¶ 73).)  Dr. 
Reichel’s evaluation consisted of performing ten discrete trials of late afternoon 

instruction from 4:15 to 5:30 p.m. in AJT’s home, which he compared to    
instruction that had been conducted in AJT’s home from noon to 1:15 p.m.  
(Doc.14-12 at 20 (Reichel Hr’g Test. at 453-54).)  Coaching was provided via 

telehealth and the paraprofessional implementing the strategies with AJT was 
the paraprofessional who usually works with AJT and her family.  (Id. (Reichel 
Hr’g Test. at 454).)  Trials were performed twice-to-three-times-per-week for 

approximately three and one-half weeks.  (Id. at 20-21 (Reichel Hr’g Test. at 453-
54, 458).)                                                                

AJT made gains on skills she was learning in school during the trials.  (Id. 
at 21 (Reichel Hr’g Test. at 458 (“[I]t was fairly impressive how quickly she 
gained skill in a reasonably short period of time.”); 25 (Reichel H'rg Test. at 472 

(“My data suggests that not only can she be available and that she can    
participate, but she can also learn during a period of time in our trial up through 

5:30 p.m., because that’s as long as we ran the trial in any given day.”).)   He 
testified that there was nothing in his two evaluations of AJT that would support 
a conclusion that she needs less than a full day of school and that he thought she 

could benefit from a full day of school.  (Id. at 24 (Reichel Hr’g Test. at 468).)   
However, he admitted that he found it “difficult” to opine on her progress 

because “of the quality of the data” available to him;  in particular, the Cedar 
Island data consisted of more “anecdotal reports that are somewhat spotty.”  (Id. 
at 25 (Reichel H'rg Test. at 473).)   Dr. Wills testified that the behavioral 

observations collected at Cedar Island are data and that there is a very extensive 
description of AJT’s functioning over the years and “quite good data . . . over 
time to indicate there’s learning and teaching going on.”  (Doc. 15 at 204 (Wills 

H'rg Test. at 550).)                                                      
On October 31, 2020, Dr. Breningstall sent a letter to the District stating 

that AJT’s school day could not begin before noon due to her morning seizure 
activity.  (Doc. 14-13 at 154.)   The letter also stated that “[i]t is also important that 
[AJT] receive a minimum of six hours of school attendance to help with her 

communication and interaction.”  (Id.)                                    
     8.   Administrative Hearing                                     

On September 14, 2020, AJT’s parents filed a special education complaint 
and request for a due process hearing against the District with the State of 
Minnesota Office of Administrative Hearings, alleging that the District had 

violated the Individuals with Disabilities Education Act (“IDEA”) because AJT 
did not receive six-and-a-half hours of education per day like her non-disabled 

peers and asserting that the District should provide education to AJT from noon 
until 6:30 p.m. each day.  (Doc. 14 at 5-10.)  Administrative Law Judge Eric L. 

Lipman (“the ALJ”) presided over the case.  (Id. at 19, 28.)              
A five-day hearing occurred before the ALJ in February 2021.  (Doc. 15 at 
969 (ALJ Order at 1).)  On April 21, 2021, the ALJ issued his decision (“ALJ 

Order”).  The ALJ ruled:                                                  
The Student established that an educational program which did not    
include supplemental instruction [at] home in the afternoon, did not 
afford her a free appropriate public education (FAPE).  The Student  
likewise established that 495 hours of such instruction would fairly 
remediate the School District’s denial of a FAPE.                    

(Id.)                                                                     
The ALJ ordered the District to revise AJT’s IEP to include the following 
additions:                                                                
(a)   instruction at home that includes discrete trial training      
     interventions between 4:30 p.m. and 6:00 p.m. each school       
     day;                                                            

(b)   compilation and review of the discreet trial training          
     intervention data;                                              

(c)   direct and indirect services of a Speech and Language          
     Pathologist to design, deliver and monitor the implementation   
     of a communication intervention program; and                    
(d)   the provision of eye gaze technology with a speech generating  
     device to effectively augment her communication capacities.     

(Id. at 987 (ALJ Order, Conclusions ¶ 15).)                               
Other facts will be discussed as necessary.                          
B.   Procedural History                                              
     1.   Appeal Case                                                

On June 21, 2021, the District filed the instant case against AJT in this 
Court asserting an appeal of the ALJ’s decision under 

(i)(2).  Civil 

File No. 21-1453 (MJD/DTS).                                               
     2.   Related Discrimination Case                                

On August 3, 2021, AJT, through her parents, filed a Complaint against the 
District and the Osseo School Board.  Civil File No. 21-1760 (MJD/DTS).  On 
November 8, 2021, AJT filed an Amended Complaint against the District and the 

Osseo School Board alleging: Count 1: Violations of the IDEA; Count 2:    
Violations of § 504 of the Rehabilitation Act of 1973; and Count 3: Violations of 

the Americans with Disabilities Act.  (Doc. 15.)  All three claims are based on the 
District’s failure to provide AJT a six-and-a-half-hour school day starting at 
noon. That case was transferred to Judge Davis as a related case.  On July 29, 
2022, the District filed a motion for summary judgment in the discrimination 

case.  On August 18, 2022, AJT filed her opposition to the District’s motion.   
C.   Current Motions                                                 
The parties have now filed cross motions for judgment on the record in the 

appeal case.                                                              
III.  DISCUSSION                                                          
A.   Standard of Review Under the IDEA                               

The Individuals with Disabilities Education Act (IDEA or Act) offers 
States federal funds to assist in educating children with disabilities.  
In exchange for the funds, a State pledges to comply with a number   
of statutory conditions.  Among them, the State must provide a free  
appropriate public education—a FAPE, for short—to all eligible       
children.                                                            

Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 

 
(2017) (citations omitted).                                               
“A State covered by the IDEA must provide a disabled child with such 
special education and related services in conformity with the child’s     
individualized education program, or IEP.”  

 (cleaned up and citation 
omitted).  When evaluating an IEP, “[t]he IDEA looks for improvement, not 
mastery.”  Minnetonka Pub. Schs., Indep. Sch. Dist. No. 276 v. M.L.K. ex rel. S.K., 
--F.4th--, No. 21-1707, 

, at *4 (8th Cir. July 29, 2022).  “To meet its 
substantive obligation under the IDEA, a school must offer an IEP reasonably 

calculated to enable a child to make progress appropriate in light of the child’s 
circumstances.”  Endrew F., 

.                            
The “reasonably calculated” qualification reflects a recognition that 
crafting an appropriate program of education requires a prospective  
judgment by school officials.  The Act contemplates that this fact-  
intensive exercise will be informed not only by the expertise of     
school officials, but also by the input of the child’s parents or    
guardians.  Any review of an IEP must appreciate that the question   
is whether the IEP is reasonable, not whether the court regards it as 
ideal.                                                               

 (emphasis in original) (citations omitted).  However, that child’s “educational 
program must be appropriately ambitious in light of [her] circumstances.  A 
student making ‘merely more than de minimis’ progress from year to year can 
hardly be said to have been offered an education at all.”  J.P. ex rel. Ogden v. 
Belton Sch. Dist. No. 124, 

 (8th Cir. 2022) (quoting Endrew F., 

) (cleaned up).                                          
When parents and a school district disagree regarding the contents of a 

child’s IEP,                                                              
parents may turn to dispute resolution procedures established by     
the IDEA.  The parties may resolve their differences informally,     
through a “preliminary meeting,” or, somewhat more formally,         
through mediation.  If these measures fail to produce accord, the    
parties may proceed to what the Act calls a “due process hearing”    
before a state or local educational agency.  And at the conclusion of 
the administrative process, the losing party may seek redress in state 
or federal court.                                                    

Endrew F., 

 (cleaned up).                                
In lawsuits filed under section 1415(i)(2), the district court is    
required to receive the records of the administrative proceedings,   
hear additional evidence at the request of a party, and              
independently determine the appropriate relief based on a            
preponderance of the evidence.                                       

Hansen ex rel. J.H. v. Republic R-III Sch. Dist., 

 (8th Cir. 2011) 
(citations omitted).                                                      
In deciding whether the IDEA has been violated, the district court   
must independently determine whether the child in question has       
received a FAPE.  In doing so, the court must also give due weight   
to agency decision-making.  This somewhat unusual standard of        
review is less deferential than the substantial-evidence standard    
commonly applied in federal administrative law.  But we have         
recognized that this limited grant of deference—due weight—is        
appropriate in IDEA cases because the ALJ had an opportunity to      
observe the demeanor of the witnesses and because a district court   
should not substitute its own notions of sound educational policy    
for those of the school authorities that it reviews.                 

K.E. v. Indep. Sch. Dist. No. 15, 

 (8th Cir. 2011) (cleaned up and 
citations omitted).                                                       
Although the Court “must give due weight to the factual findings of the 

administrative panel,” the Court “consider[s] the panel’s legal conclusions de 
novo.”  Hansen, 

.                                         
“While the district court must accord due weight to the administrative 

panel’s decision, the burden of persuasion remains with . . . the party challenging 
the IEP,” in this case, AJT.  Lathrop R-II Sch. Dist. v. Gray ex rel. D.G., 

 (8th Cir. 2010); see also Schaffer ex rel. Schaffer v. Weast, 

 
(2005) (“The burden of proof in an administrative hearing challenging an IEP is 
properly placed upon the party seeking relief,” that is the party who “seek[s] to 

challenge an IEP”).                                                       
Here, the District asserts that the ALJ made no credibility determinations 

and relied on the testimony of each of the witnesses for some part of his decision.  
Therefore, there is no basis to defer to the ALJ.                         
B.   Whether the ALJ Applied the Correct Legal Standard              

The District asserts that the ALJ applied the incorrect legal standard when 
deciding whether the District had provided AJT with a FAPE, because he based 
his decision on whether AJT might make more progress with more instructional 

time at home, rather than on the appropriateness of AJT’s stay-put IEP.   
The District notes that the ALJ made factual findings that AJT made  

progress during her time at Cedar Island and MGMS in (1) using eye gaze   
methods to make choices and answer questions; (2) handwashing; (3) using  
modified signs as a means of communication; (4) using direct selection for 

communication; (5) choosing with whom she wanted to work or do an activity; 
(6) communicating choices; and (7) self-initiating handwashing.  (Doc. 15 at 977 

(ALJ Order, Facts ¶¶ 58, 61).)  The District asserts that the ALJ failed to assess 
whether this progress was appropriate in light of AJT’s unique circumstances 
including a severe seizure disorder and cognitive impairment.  Instead, the ALJ 

merely relied on Dr. Reichle’s opinion that AJT would likely make more gains 
with more instruction.  (See id. at 980-81 (Facts ¶¶ 74, 86).)            

The District argues that the correct standard to determine whether the 
District provided a FAPE is whether the IEP was “reasonably calculated to 
enable [AJT] to make progress appropriate in light of the child’s circumstances.”  

Endrew F., 

.  The District asserts that applying that standard, 
AJT did receive a FAPE.                                                   

The Court finds that the ALJ applied the correct legal standard to AJT’s 
claim.  First, the ALJ acknowledged that the burden of proof was on AJT to 
demonstrate by a preponderance of the evidence that she did not receive a FAPE.  

(Doc. 15 at 986 (ALJ Order, Conclusions ¶ 3).)  Second, the ALJ noted that the test 
was whether AJT’s IEP was “reasonably calculated to enable the child to make 
progress appropriate in light of [her] circumstances.”  (Id. at 986-87 (ALJ Order, 

Conclusions ¶ 9).)  Third, the ALJ held that AJT had established that her 
educational program was not “appropriately ambitious in light of [her]    

circumstances,” that she did not have “the chance to meet challenging     
objectives,” and that “the opportunity to access hours of afternoon instruction at 
home—particularly discrete trial opportunities—would be beneficial, meaningful 

and appropriately challenging to [AJT].”  (Id. at 987 (ALJ Order, Conclusions ¶¶ 
10, 12).)                                                                 

 Thus, although the ALJ did find that more instruction would provide 
more progress, he also found that the current IEP, without the supplemental 
instruction at home, was not providing an educational program reasonably  

calculated to enable AJT to make progress appropriate in light of her     
circumstances.  (Id. at 986 (ALJ Order, Conclusions ¶¶  6-7).)  Specifically, the 

ALJ found that whenever there was a conflict between the need to maintain the 
regular hours and AJT’s need for instruction, regular hours was always “the 
prevailing and paramount consideration” and that AJT’s educational        

programming was “thus constrained by limitations imposed upon, and outside 
of, the IEP Team.”  (Id.)  This was the wrong priority for the District.  See Ind. 
Sch. Dist. No. 623, No. 317-2, 31 IDELR ¶ 17, 53 (holding that a Minnesota school 

district’s categorical refusal to consider provision of extended day services as 
way to meet goals of IEP was procedural violation of IDEA because “[s]uch 

services are appropriate in certain circumstances and their location is not 
confined to the school day or a school setting”); see also U.S. Dept. of Education 
Dec. 22, 2014 Letter to Arcadia Unified School District (“Arcadia”) (explaining 

that the school violated disabled students’ civil rights when it dismissed disabled 
students earlier than other students, which denied them the same number of 

educational minutes of schooling as non-disabled students without making  
individual assessments that early dismissal was “necessary for the needs of 
specific students”), available at https://www2.ed.gov/about/offices/list/ocr/docs/ 

investigations/more/09141322-a.pdf (last visited Aug. 21, 2022); U.S. Dept. of 
Education New York Office for Civil Rights May 29, 2015 Letter to Rye City 

School District  (“Rye City”) (explaining that dismissing certain disabled 
students earlier than all other disabled and non-disabled students denied the 
students a FAPE when the early dismissal was to avoid congestion during parent 

and bus pick-up time and that “[a]dministrative convenience is never an excuse 
for impermissibly shortening the instructional time that students with disabilities 
receive”), available at https://www2.ed.gov/about/ offices/list/ocr/docs/ 59 

investigations/more/02151099-a.pdf (last visited Aug. 21, 2022).          
This is the conflict point between the parties.  For the most part, the 

District argues that AJT’s FAPE should be judged by her progress.  AJT, on the 
other hand, asserts that the District cannot provide her a FAPE as long as it does 
not provide her a school day that is 6.5 hours-long and that those hours coincide 

with the hours when she is medically-able to learn (i.e., when she is less prone to 
severe seizure activity and is alert and receptive to learning).          

C.   Whether the IDEA Requires the Presumption of a Full School Day  
The District argues that while it has a legal obligation to individualize 
AJT’s educational programming to meet her needs, it does not have an obligation 

to provide the same length school day to her as to non-disabled students.  It 
asserts that Minnesota law allows the standard school day to be adapted for 
students with disabilities because Minn. Stat. § 120A.22, subd. 12 states that a 

child may be “excused from attendance for the whole or any part of the time 
school is in session during any school year” based on a “note from a physician or 
licensed mental health professional stating that the child cannot attend school.”  

The District notes that AJT’s parents and medical providers opine that she cannot 
attend school before noon; therefore, it concludes that AJT’s needs dictate her 
school day.  Moreover, the ALJ did not order a 6.5-hour “full” school day from 

noon until 6:30 p.m.  Instead, the ALJ ordered a 5.75-hour day that ran from noon 
until 4:15 p.m. at school and then included home instruction from 4:30 p.m. until 

6:00 p.m.                                                                 
Relying on Endrew F., AJT responds that before a school can provide a 
shortened school day, the IEP team must determine that a shortened school day 

is “specially designed to meet a child’s unique needs.”  

 (cleaned 
up) (emphasis in original).  She asserts that there is no evidence that a shortened 

school day is required in order to meet her individual needs.  Instead, a 
preponderance of the evidence shows that a full school day is necessary for AJT 
to learn appropriately.                                                   

AJT argues that under 

(9)(B), a FAPE is a program of 
“special education and related services that . . . meets the standards of the State 

educational agency.”  Minnesota education standards require every school  
district to provide minimum hours of instruction to all students: 935 hours per 
year for grades 1-6 and 1020 hours per year for grades 7-12 per Minn. Stat. § 

120A.41, subdivision a.  Yet the District has only allocated AJT 765 hours per year 
of instruction while other middle school students in the District receive 1170 
hours of instruction per year.                                            

AJT asserts that every eligible student with a disability is presumed to be 
entitled to a full school day unless their needs dictate otherwise.  See 

(c) (“School day means any day, including a partial day that children are in 
attendance at school for instructional purposes.  School day has the same 
meaning for all children in school, including children with and without   

disabilities.”).                                                          
AJT concludes that only a student’s IEP team’s determination that the 

individual student requires a shorter school day in order to receive a FAPE can 
justify a shorter school day.  (Doc. 54 at 24 n.91 (citing, inter alia, Spring Branch 
Ind. Sch. Dist. v. O.W., 

 (5th Cir. 2019) (holding that shortening a 

school day by almost half “was a substantial and significant deviation from the 
IEP which indisputably resulted in a loss of academic benefits” and when  

accomplished outside of the required IEP Team process violated the IDEA)  
opinion withdrawn and superseded on other grounds on reh'g sub nom.       
by Spring Branch Indep. Sch. Dist. v. O.W. by Hannah W., 

 (5th Cir. 

2020); Teague Ind. Sch. Dist. v. Todd L., 

 (5th Cir. 1993) (holding 
that shortening student’s school day from seven hours to two hours did not 
violate the IDEA when reduction was included in the IEP due to the student’s 

“inability to tolerate a longer school day without becoming unduly frustrated 
and discouraged, leading to regression rather than academic progress” and not 

for the convenience of school staff)).  AJT concludes that, here, the District 
shortened her school day without first employing full-time instruction to 
determine the benefits from full-time instruction and without considering AJT’s 

needs.  Because the District refused to provide instruction after 4:15 p.m., the 
only data regarding the benefit to AJT of instruction between 4:00 p.m. and 6:00 

p.m. comes from the testimony of her father, her former educator in Kentucky, 
and Dr. Reichle, who performed test trials with AJT between 4:15 p.m. and 5:30 
p.m.                                                                      

The Court declines to reach the issue of whether the IDEA requires the 
presumption that every student is entitled to a full instruction day regardless of 

the start time.  Deciding this issue is not required to decide the motions before 
the Court.  Importantly, the ALJ found that AJT had been denied a FAPE without 
relying on such a presumption.  Moreover, the Supreme Court’s caselaw     

regarding FAPE provides a flexible standard of whether the IEP is “reasonably 
calculated to enable a child to make progress appropriate in light of the child's 
circumstances.”  Endrew F., 

.  The Supreme Court has purposely 

avoided applying bright-line rules such as a “de minimis” progress standard or a 
standard that the IEP provides “an opportunity to understand and participate in 

the classroom that was substantially equal to that given her non-handicapped 
classmates.”  See 

 (citation omitted).  Additionally, the Supreme Court 
and Eighth Circuit caselaw is clear that the burden is on the party challenging the 

IEP – here, AJT – so applying a presumption that the District’s IEP is illegal 
because it provides fewer instructional hours than a typical school day and 

requiring the District to show that fewer hours are required for AJT flips  that 
burden.                                                                   
Additionally, given the evidence that AJT cannot safely start the school 

day until noon and the lack of evidence that it would be safe for her to receive 
instruction after 6:00 p.m., the record amply supports the ALJ’s decision that 

AJT’s FAPE did not require a full 6.5-hour school day.  Finally, although federal 
statute defines a FAPE as a program of special education that “meets the  
standards of the State educational agency,” Minnesota law allows a student to be 

excluded from attendance based on a note from a physician, and AJT had an 
annual letter from her physician stating that she was unable to attend school 
before noon.  Therefore, like the ALJ, the Court need not rely on this    

presumption to determine whether the District provided AJT a FAPE.        
D.   Sufficiency of the Evidence to Support the ALJ’S Decision       
     1.   Whether the District Prioritized Regular Faculty Hours Over 
          AJT’s Needs                                                
The District argues that the ALJ clearly erred by determining that   

whenever there was a conflict between the need to maintain the       
regular hours of the school’s faculty, and the student’s need for    
instruction, the regular hours of the faculty was always the         
prevailing and paramount consideration.                              

(Doc. 15 at 986 (ALJ Order, Concl. ¶ 6).)                                 
The District argues that the evidence in the record supports only one 
conclusion: the District shortened AJT’s school day because the IEP team, 
including AJT’s parents, determined that AJT’s needs required a noon start time 
for school.  The doctors’ letters that AJT’s parents provided to the IEP team 
stated that AJT needed a noon start time, the letters never stated that she should 

be educated 6.5 hours per day until Dr. Breningstall’s October 31, 2020 letter, 
which stated that she should receive a minimum of six hours of school     
attendance to help with her communication and interaction.  And, the District 

asserts, Dr. Breningstall’s opinion is simply based on information from AJT’s 
parents.                                                                  
The District also argues that the uncontroverted evidence showed that AJT 

received a shortened school day in Kentucky; the IEP team considered the  
Kentucky IEP and adopted most of it and the IEP team agreed to more minutes 

of special education services than AJT had received in Kentucky, although she 
received them in school rather than at home.  (Doc. 55 at 6-7 (citing Sterling A. ex 
rel. Andrews v. Washoe County Sch. Dist., 307-CV-00245-LRH-RJJ, 

, at *7 (D. Nev. Nov. 10, 2008) (holding that services offered in the interim 
IEP in Nevada were “similar or equivalent” to the home-based services provided 

for in the California IEP because “[t]he evidence indicates that while the exact 
location of the services was different, the substance and goals of the [] services 
was the same”).)                                                          

The District further argues that AJT’s IEP called for a  school day of 4.25 
hours during almost the entire time she was enrolled in the District; and, apart 

from the brief interim IEP, the District’s IEP always called for services after the 
end of the regular school day—15 minutes more in elementary school and 95 
minutes after the end of the middle school day.  Finally, the District notes that in 

April 2017, AJT’s parents agreed to an IEP that required a 4.25-hour school day 
for middle school and did not object.                                     
The District also argues that AJT only needed a shortened school day 

because AJT’s education consisted of 4 hours and 15 minutes of intensive 1:1 or 
2:1 instruction, which provided education comparable to 6.5 hours of a usual 

school day.  It asserts that AJT’s school day schedule does not include down 
times for recess, elective courses, or eating lunch with peers.  AJT received an 
intensive program designed based on her unique needs with the sole attention of 

one adult or, from 2:40 p.m. to 4:15 p.m., two adults delivering instruction to her 
alone.  (Doc. 15 at 389, 404 (Fredrickson H'rg Test. at 777-78, 793); 802 (Elliott 

H'rg Test. at 1019-21).)                                                  
 Thus, AJT’s educators designed her program for the time that she was 
available when school was in session and for additional time that the full IEP 

team agreed was necessary beyond the school day.                          
The District emphasizes that it consistently considered AJT’s parents’ 

request for additional hours of instruction beyond the end of the regular school 
day.  The IDEA’s procedural requirements require the District to “consider” 
AJT’s parents’ requests for more educational services by discussing those 

requests at an IEP team meeting.  See K.E., 

.  The District asserts 
that it met this obligation, and the fact that AJT’s IEP team disagreed with her 
parents’ requests does not demonstrate a violation of the IDEA.           

The Court finds that the ALJ did not err in finding that when there was a 
conflict between AJT’s need for instruction and the school’s regular hours, the 

regular hours of the faculty were always the prevailing consideration.  AJT’s 
parents consistently maintained that AJT needed instruction in the late afternoon 
and early evening, she received such instruction under her Kentucky IEP, and 

there was no evidence ever submitted to the school that instruction during that 
time would be harmful to AJT.  The District steadfastly refused to extend the 

instruction hours past 4:15 with a series of shifting reasons: at one point merely 
stating, “We don’t provide both homebound and school support,” then stating 
state law did not mandate this type of support, and finally stating that it would 

not provide an extended school day “due to the precedent it would start [for the 
District] and other districts across the area.”  None of these reasons is based on 

an individual assessment of AJT’s needs as required by the IDEA, under which 
extended days “are appropriate in certain circumstances and their location is not 
confined to the school day or a school setting.”  Ind. Sch. Dist. No. 623, 31 IDELR 

¶ 17; Endrew F., 

 (“A focus on the particular child is at the core of 
the IDEA.”).  Administrative convenience is not an excuse for impermissibly 
shortening the instructional time a disabled child receives.  Rye City, https:// 

www2.ed.gov/about/offices/list/ocr/docs/investigations/more/ 02151099-a.pdf; 
see also Todd L., 

 (finding that shortened school day was in 

response to child’s needs not for the convenience of school staff).       
There is no evidence that six hours of instruction per day would be  
harmful to AJT.  In fact, there is evidence that six hours of daily instruction is 

important to AJT’s communication and interaction development.             
As the ALJ acknowledged, the District provides AJT “intensive services” 

with one-on-one or two-on-one instruction at all times.  (Doc. 15 at 976 (ALJ 
Order, Facts ¶ 55).)  However, there is no evidence that the intensity of the 
services means that a six-hour school day would not be appropriate and    

beneficial or that this student-to-teacher ratio is somehow a substitute for hours 
of instruction.  As AJT’s father testified, the IEP needed to omit toileting goals 

because there simply was not time in the 4.25-hour school day to work on that 
goal along with the other goals in AJT’s IEP.  Dr. Reichle testified that all of the 
interventions that he recommended for AJT in the 2019 independent evaluation 

could not be implemented in her shortened school day.  (Doc. 14-12 at 18 (Reichle 
H'rg Test. at 444-45).)  Nor is there any evidence that the intensity of AJT’s 
instruction makes her fatigued or unable to learn for six hours.  Finally, contrary 

to the District’s assertion, like any child’s typical school day, AJT’s 4.25-hour day 
includes time for lunch, bathroom use, and breaks, although her aides do work 

on some learning goals during those times.  (Doc. 14-15 at 323.)  Moreover, the 
District admits that AJT receives 1:1 and 2:1 support because she requires it, not 
because the District is doing something extraordinary for AJT.  (Doc. 15 at 570 

(Fredrickson H'rg Test. at 778).)                                         
Although both parties agree that AJT is unable to start school before noon, 

that is not the same as agreeing that AJT has to stop school after 4.25 hours.  The 
evidence supports the ALJ’s decision that while AJT’s medical needs dictated the 
start of AJT’s school day, the District’s preferred schedule dictated the end of 

AJT’s school day.   No member of AJT’s medical team ever suggested that a full 
school day would be harmful to AJT or would fail to produce any benefit to her.  

(Doc. 14-6 at 37 (AT H'rg Test. at 107).)  The most recent letter from Dr. 
Breningstall stated, “It is also important that [AJT] receive a minimum of six 
hours of school attendance to help with her communication and interaction.”  

(Doc. 14-13 at 154.)  In addition, Dr. Reichle testified, “My opinion is it’s likely 
she would make more gains with additional instruction” and that AJT should 
have as much instruction as possible during her alert hours from approximately 

12:00 to 6:00 p.m.  (Doc. 14-12 at 25 (Reichle H'rg Test. at 474); see also Doc. 14-15 
at 201, 246, 278.)  AJT’s parents never agreed that a shortened school day 

beginning at noon would be appropriate given her individual needs.        
As the ALJ found, the services in AJT’s IEPs were limited by the shortened 
school day rather than by her needs.  This conclusion is supported by the 

testimony of independent educational evaluator Dr. Reichle, that her teacher and 
case manager, Teresa Elliot, conceded that to him in discussions.  (Doc. 14-12 at 

22 (Reichle H'rg Test. at 461); Doc. 15 at 979 (ALJ Order, Facts ¶ 71)); see also Ind. 
Sch. Dist. No. 623, No. 317-2, 31 IDELR ¶ 17, 53 (holding that extended days “are 
appropriate in certain circumstances and their location is not confined to the 

school day or a school setting”); Arcadia (denial of same number of educational 
minutes to disabled students without individual assessments that fewer minutes 

or early dismissal was “necessary for the needs of specific students” was denial 
of FAPE), available at https://www2.ed.gov/about/offices/list/ocr/docs/   
investigations/more/09141322-a.pdf; Rye City (“Administrative convenience is 

never an excuse for impermissibly shortening the instructional time that students 
with disabilities receive”), available at https://www2.ed.gov/about/offices/list/ 
ocr/docs/investigations/more/02151099-a.pdf.                              

     2.   Instruction in the Late Afternoon and Evening              
The District asserts that the ALJ’s remedy that AJT receive services until 

6:00 p.m. is contrary to the evidence presented by the District about AJT’s needs 
and also contrary to the evidence introduced by AJT’s experts.  Because the ALJ’s 
Order is based on something other than the record created at the hearing, the 

District argues it must be overturned.                                    
The District points out that the ALJ determined that education after 6:00 

p.m. would be risky for AJT.  (Doc. 15 at 985 (ALJ Order, Facts ¶ 111).)  Yet no 
witness opined services between 6:00 p.m. and 6:30 p.m. would be dangerous for 
AJT.  Dr. Reichle testified that nothing in his evaluations supported a conclusion 

that AJT could not attend schooling until  6:30 p.m.  (Docket No. 14-12 at 25 
(Reichle H'rg Test. at 472-474).)                                         

The District emphasizes that “[t]he fact that the IDEA is a federal statute 
does not mean that every state must administer the act in the same way.”  J.B. ex 
rel. B.B. v. Lake Washington Sch. Dist., No. C12-0574RSL, 

, at *2 

(W.D. Wash. Jan. 17, 2013).  Thus, according to the District, the services provided 
by Kentucky are not the standard for measuring whether AJT received a FAPE in 
the District.  See 

                                                    

AJT responds that although Dr. Reichle did no trials between 5:30 and 6:00 
p.m., evidence from Kentucky and AJT’s parents shows that effective educational 

results can be achieved after 5:30 p.m.                                   
          a)   Instruction Between 5:30 and 6:00 p.m.                
The ALJ’s decision that instruction between 5:30 and 6:00 p.m. would be 

beneficial to AJT is well supported.  Although Dr. Reichle’s trial experiments 
only lasted until 5:30 p.m., Behavior Specialist Ott testified that AJT was able to 

learn until 6:00 p.m. when she received instruction in Kentucky, and AJT’s father 
testified that she was alert and available to learn at that time.  Dr. Breningstall 
also testified that AJT would benefit from instruction between 4:15 and 6:00 p.m.  

There is no evidence to contradict that testimony.  Additionally, the ALJ’s 
determination that the District was not required to provide instruction after 6:00 

p.m. was reasonable and well-supported because there is no evidence that  
instruction after 6:00 p.m. would be beneficial or safe.  No instruction or test 
trials ever occurred at that time and no medical provider testified that instruction 

at that time would be beneficial or safe.                                 
          b)   Whether AJT Would Have Made More Progress with        
               Additional Instruction until 6:00 p.m.                
The record supports the finding that AJT would have made more progress 
with additional instruction from 4:15 to 6:00 p.m. and there is no evidence that 

she would not have made additional progress with those extended hours.  Dr. 
Reichle testified that AJT was not as efficient a learner as a typical learner, 
needed additional time, was a hard and motivated worker who was easy to   

motivate to pay attention and learn during those times, and “would have made 
additional gains” with additional instruction.  (Doc. 15 at 979 (ALJ Order, Facts 

¶¶ 72, 74 (citing Doc. No. 14-12 at 18, 25 (H'rg Tr. at 443, 474 (Reichle Test.)).) 
Every witness to testify on the subject testified that AJT does not learn as 
efficiently as a typical learner.  Dr. Reichle testified that three hours of instruction 

for AJT is not the same as three hours of instruction for a typical learner, and that 
“she could definitely benefit from more instruction than she has received.” (Doc. 

14-12 at 25 (Reichle H'rg Test. at 473).)  He opined:                     
[AJT] can use all the time she can get to learn.  She is clearly – and I 
don’t think anybody can dispute she is clearly way behind in terms   
of learning communication skills and she’s falling further behind    
every day in terms of rate of acquisition.  So she can use all the   
available hours that she can get where she’s motivated to learn.     
That’s in terms of what would be best for her.                       

(Id. at 18 (Reichle H'rg Test. at 444).)  Dr. Reichle explained that all of the 
interventions that he recommended for AJT in 2019 had not been implemented 
and full implementation would require more time than a regular school day.  (Id. 
(Reichle H'rg Test. at 445).)  He opined that literature in the field regarding the 

effects of intensity of instruction for learners with intellectual disabilities 
generally suggests “that higher dosages result in quicker acquisition.”  (Id. at 23 

(Reichle H'rg Test. at 464).)  In 2019, Dr. Reichle recommended that AJT receive a 
full day of school.                                                       

In conducting this IEE, it quickly became clear that optimal times to 
work with [AJT] were between approximately noon and 6 p.m.           
[AJT] frequently experiences seizures during the evenings which      
requires that she recovers during the following mornings.            
Consequently, her school hours are not traditional hours.  Given her 
seizure history [AJT] is likely to experience relatively fewer       
productive educational hours than most learners.  As a result, it is 
very important that she receives as much time as possible for        
instruction during her alert hours.                                  

(Doc. 14-15 at 246.)  Dr. Reichle testified that AJT’s learning “trajectory is falling 
further and further behind her peers.”  (Doc. 15 at 229 (Reichle H'rg Test. at 651).)  
He testified that additional instruction would result in additional progress.  (Doc. 
14-12 at 25 (Reichle Hr’g Test. at 474).)  “[A] full school day in my experience 

tops a half school day every time.”  (Id. at 24 (Reichle H'rg Test. at 468).) 
     3.   Whether AJT Made Progress in the Shortened School Day      
The District argues that the preponderance of the record evidence shows 

that AJT made progress on her IEP goals with the shortened school day.  (See 
Doc. 15 at 573 (Frederickson H'rg Test. at 789 (“[AJT] was benefiting from the 

school day that she had, she was continuing to make progress within the hours 
she was provided.”)); 599 (Kohlhepp H'rg Test. at 892 (testifying that AJT has 
made progress on communication skills but that she did not “see a lot of  

progress in her functional skills”)).)  Even Dr. Reichle admitted that AJT had 
made progress on some skills in school.  (Doc. 14-12 at 25 (Reichle H'rg Test. at  

473 (“There are skills at school where she has made gains.”)).)           
The District asserts that evidence of progress is significant given that it is 
not uncommon for individuals with LGS to regress and lose previously-acquired 

skills.  (See Doc. 15 at 196 (Wills H'rg Test. at 518 (testifying that “given the 
severity and frequency of [AJT’s] seizure disorder [] she very well could have, 

might have regressed” and “many children do [regress]”)); 239 (West H'rg Test. 
at 689 (testifying that her experience with two individuals with LGS is that they 
plateaued, but did not regress, by the time of middle school)); 785 (Shams H'rg 

Test. at 952-53 (testifying that most LGS patients plateau after age 8 or 9 and 
through the mid-teenage years)).)  Both Dr. Wills and West testified that AJT has 
not regressed in a single skill area since enrolling in the District.  (See, e.g., 

 (Wills Hr’g Test. at 518, 556); 599 (West H'rg Test. at 892-93).)     
The District notes that evidence of progress is probative of the adequacy of 

the IEP, citing Endrew F., 

 (holding that the IDEA “requires an 
educational program reasonably calculated to enable a child to make progress 
appropriate in light of the child’s circumstances”).  The District also reminds the 

Court that the IDEA requires neither specific results nor that the District 
maximize AJT’s potential or “provide the best possible education at public 

expense.” (Doc. 60 at 1 (quoting M.L.K., 

, at *4).)        
The Court finds that AJT made progress during the 4.25-hour day.     
However, this fact does not require reversal of the ALJ’s Order.  First, the 

Supreme Court has made clear that the fact that a student makes some progress 
in an IEP does not alone establish that the IEP provides a FAPE.  See Endrew F., 

 (holding that FAPE “standard is markedly more demanding 
than the merely more than de minimis [progress] test” and “requires an    
educational program reasonably calculated to enable a child to make progress 

appropriate in light of the child’s circumstances”) (cleaned up).  Second, while it 
is undisputed that AJT did make progress in some areas under the IEP, it is also 
undisputed that she regressed in the areas of toilet training, signing, and 

initiating greetings with assistive technology.  She lost the capacity to use a 
variety of signs that she had used in Kentucky, lost the capacity to void on the 

toilet 50% of the time, and lost the capacity to successfully interact with peers by 
using assistive technology to initiate or return a greeting.  (Doc. 14-5 at 106-07; 
14-6 at 71-72 (AT H'rg Test. at 35-37, 141-42); Doc. 14-15 at 22 (Mar. 12, 2015, 

Kentucky IEP (“[AJT] can independently initiate a greeting to a peer or adult or 
return a greeting from a peer or adult by activating a prerecorded button switch . 

. . .”)).)                                                                
Dr. Reichle testified that AJT lost skills previously acquired and that 
regression suggests that AJT needs more instruction.  (See, e.g., Doc. 14-12 at 10-

11, 24 (Reichle H'rg Test. at 413-15, 470).)  He noted in his IEE that on the day he 
observed AJT at school, she did not return the greeting of one of her school peers.  

(Doc. 14-15 at 181 (“One female classmate said ‘Hi’ to [AJT] to which she did not 
react. The peer ‘hung around’ [AJT] for a minute or so telling others that ‘[AJT] 
here’ while acting excited.”).)  Importantly, Dr. Wills testified that while LGS can 

cause a regression in skills, LGS had not yet caused AJT’s regressions because 
she was still progressing.  (Doc. 15 at 206 (Wills H'rg Test. at 556-57).) 
While witnesses testified that LGS can cause plateauing or regression (Doc. 

15 at 239 (West H'rg Test. at 689); 785 (Shams H'rg Test. at 952-53)), there is no 
definitive evidence that AJT’s LGS caused the plateauing and regressing that she 

has experienced.  Furthermore, special education teacher Pam Kohlhepp testified 
that she could not opine for sure if AJT’s learning progress could improve with 
more time, that she had no basis to conclude that AJT would be harmed by  

instruction between 4:00 and 6:00 p.m., and that she had no reason to believe AJT 
could not benefit from a full day of school.  (Id. at 590 (Kohlhepp H'rg Test. at 

855).)  Likewise, Dr. Breningstall testified that “it would be beneficial for [AJT] to 
have the same number of schooling hours as her peers” and there is no reason to 
believe she would be harmed by instruction from noon to 6:00 or 6:30 p.m.  (Doc. 

14-11 at 58 (Breningstall H'rg Test. at 275).)  Dr. Wills also testified that “it’s kind 
of a no-brainer that, of course, instruction is a benefit,” particularly for an 

individual “with greater needs,” although she noted that it is “a different thing 
than to say that this is necessary.”  (Doc. 15 at 197 (Wills H'rg Test. at 520-21).)  
     4.   Reliability of Dr. Reichle’s Opinion                       

The District argues that Dr. Reichle’s opinion that “more is better” and that 
AJT would likely make more gains with more instruction is not supported.  First, 
the District notes that his recommendation is based on a short-term intervention 

over the internet in which he coached a paraprofessional in AJT’s home to 
facilitate discrete trial training sessions that were limited in scope and duration.  

(Doc. 14-12 at 20 (Reichle H'rg Test. at 454).)  Dr. Reichle wanted to gauge AJT’s 
seizures and alertness, but he could not do either via the computer, testifying 
only that he could “say there were no large seizures but beyond that I can’t say 

too much.”  (Id.)  Likewise, he had only an anecdotal gauge of AJT’s alertness 
based on the fact that “she learned relatively quickly and we had relatively few 

no responses.”  (Id. at 20-21 (Reichle H'rg Test. at 454-55).)            
Dr. Reichle also testified that literature regarding the success of more 
intensive interventions for learners with intellectual disabilities is “a little 

mixed.”  (Id. at 279 (Reichle H'rg Test. at 463-65).)  He admitted that one recent 
study indicates that less intensity of service may actually be more successful 

because the learner’s attention span wanes in longer sessions.  (Id.)  When asked 
what the literature indicates with regard to more intensity affecting a child’s 
ability to maintain skills and generalize their use in different environments, he 

answered “[t]he honest answer is we don’t know.”  (Id. (Reichle H'rg Test. at 
466).)  Finally, the District notes that Dr. Reichle opined that while he thought 
more was better with respect to AJT’s education programming because she is 

highly motivated and an easy learner to motivate, he did not pick “dosage 
levels” that were sufficiently different to actually demonstrate that.  (Id. (Reichle 

H'rg Test. at 465).)                                                      
The District notes that Dr. Reichle’s intervention and virtual observations 
took place over ten sessions, held two to three times per week over the course of 

a three-and-a-half-week period during the COVID-19 pandemic when AJT was  
not in school.  (Id. at 20 (Reichle H'rg Test. at 453-54).)  Dr. Wills opined that she 

did not know if AJT would make more progress with more hours of instruction.  
(Doc. 15 at 201 (Wills H'rg Test. at 537).)  She reviewed Dr. Reichle’s data from 
his telehealth observations and testified that it was debatable how much progress 

AJT made in the timeframe of 4:15 p.m. to 5:30 p.m.—the report showed that AJT 
was available to learn at that time when she had not been in school all day 

beforehand  (Id. at 206 (Wills H'rg Test. at 559).)  She opined that Dr. Reichle’s 
data did not demonstrate that a 6.5-hour school day would produce more gains 

for AJT.  (Id. at 200-201 (Wills H'rg Test. at 535-36).)                  
The District asserts that the ALJ relied on Dr. Reichle’s opinion to order the 
District to provide an additional one-and-a-half hours of in-home instruction to 

AJT after school until 6:00 p.m., even though Dr. Reichle testified that no trial 
lasted beyond 5:30 p.m., so he was not able to gauge AJT’s ability to learn after 

5:30 p.m.  The District asserts that the ALJ erred in relying on Dr. Reichle’s 
testimony without making any credibility determinations as to the divergent 
testimony of the District’s witnesses.                                    

The Court rejects the District’s claim that the ALJ’s decision is wrong 
because Dr. Reichle’s testimony is unreliable.  Although Dr. Reichle only 

conducted ten trials via the internet that consisted of far fewer than 6 hours per 
day, there is no evidence to contradict his findings that AJT successfully learned 
from 4:15 to 5:30 p.m.  There is no indication that the paraprofessional at AJT’s 

home did not correctly participate in the trials or that, in other circumstances, 
AJT was not alert and able to learn at that time.  Although the literature on the 

efficacy of the intensity and amount of instruction may be “mixed” with regard 
to students in general, Dr. Reichle had a clear opinion on AJT’s ability to learn 
with intense and longer instruction based on his interactions with her and her 

personal characteristics.  Dr. Reichle’s testimony was the best evidence available 
to the ALJ regarding AJT’s ability to learn at that time and was corroborated by 
Ott’s testimony regarding AJT’s successful learning at that time after a school 

day in Kentucky and by AJT’s father’s testimony.  Moreover, although this trial 
took place during the pandemic, the trial consisted of two-sessions-per-day 

beginning at noon, which mirrored school conditions as closely as possible, given 
the circumstances, which were dictated by a global pandemic.              
     5.   Whether the ALJ’s Decision Relies on Factual Errors        

The District argues that the ALJ’s decision relies on findings inconsistent 
with the evidence.  For example, the ALJ found that while reaching agreement as 

to the start time of AJT’s school day, AJT’s parents and the District have never 
agreed as to when AJT’s day should conclude.  (Doc. 15 at 970 (ALJ Order, Facts 
¶ 3).)  The District asserts that, in fact, AJT’s parents agreed to the stay-put IEP 

that includes a 4:15 p.m. end time by way of implied consent in April 2017.  And, 
at one point, AJT’s parents themselves suggested a 4:15 p.m. end time to AJT’s 

school day.                                                               
The ALJ also includes a finding that the “District has struggled in making 

progress on [AJT’s] IEP goals and objectives with a four-hour and fifteen minute 
school day.”  (Id. at 979 (ALJ Order, Facts ¶ 71).)   In support of this finding, the 
ALJ states as fact that “[a]s Dr. Reichle was preparing the IEE, [AJT’s] current 

special education teacher and case manager, Teresa Elliot, confided that some of 
the instructional objectives in [AJT’s] IEP could not be implemented in the time 

available during her shortened school day.”  (Id. & n.71 (citing (Doc. 14-12 at 22 
(Hr’g Tr. at 461 (Reichle Test.)).)  The District argues that Dr. Reichle’s testimony, 
however, is directly refuted by Elliot’s hearing testimony.  Elliot testified that she 

took part in writing AJT’s IEP, “[s]o if I didn’t feel that we would be able to 
implement that IEP, I wouldn’t write it that way.”  (Doc. 15 at 800 (Elliot H'rg 

Test. at 1013).)  She testified that she wrote AJT’s IEP knowing that AJT attended 
school from 12:00 to 4:15 p.m. and she wrote the IEP knowing AJT only had 4.25 
hours.  Thus, she did not tell Dr. Reichle that there was too much on the IEP to 

accomplish in a 4.25-hour day.  (Id. at 804 (Elliot H'rg Test. at 1029-30).) 
According to the District, the ALJ provided no credibility assessment that 

would suggest Dr. Reichle’s testimony was more credible or deserved more  
weight than Elliot’s testimony.   Indeed, the ALJ includes no reference to Elliot’s 
testimony with respect to this factual finding.  Additionally, AJT’s father agreed 

that the statement was similar to his experience with “Kohlhepp when we made 
the very difficult decision to remove potty training from [AJT’s] goals and 
objections because there wasn’t enough time.”  (Doc. No. 14-6 at 3-4 (AT H'rg 

Test. at 73-74).)  When asked whether Dr. Reichle’s recommendations could be 
implemented during a 4-hour-and-15-minute school day, AJT’s treating      

neurologist testified, “Then that would be to the – that would be at the expense 
of something else occurring during that period of time.”  (Doc. 14-11 at 61 
(Breningstall H'rg Test. at 289).)                                        

The District also notes that the ALJ made a finding that “[f]or its part, the 
District agrees that the amount of instruction should be based upon the number 

of hours that [AJT] can remain engaged, active and alert.”  (Doc. 15 at 980 (ALJ 
Order, Facts ¶ 76).)  The ALJ cites to Dr. Wills’ testimony to support this notion; 
however, Dr. Wills was not testifying about the hours of instruction generally, 

but rather, was answering the question regarding “the method of determining 
how much of that ABA instruction [AJT] should have.”  (Id. at 201-02 (Wills H'rg 

Test. at 539-40).)  Dr. Wills also testified, “[i]t’s not the [number of] hours, but 
what you do with them.” (Id. at 200-01 (Wills H'rg Test. at 535-36).)  The District 
asserts that it has taken the timeframe during which AJT is available for learning 

and offered her an educational program that is highly individualized and  
designed to provide a FAPE within that timeframe.  AJT begins her day at 12:00 
p.m. because that is when she is first available to learn.  Her day is extended 

beyond the end of the typical school day because that is part of what allows her 
to make progress appropriate in light of her circumstances.  The District asserts it 

is under no obligation to provide instruction to its students at all hours of the day 
during which they are engaged, active, and alert.                         
The District next takes issue with the ALJ’s conclusion that Dr. Shams’ 

suggestion that “one or two hours of instruction was ‘good,’ ‘fine’ and sufficient” 
for a student like [AJT], is not well taken.”  (Doc. 15 at 986 (ALJ Order, 

Conclusions ¶ 8).)  Dr. Shams is the District’s expert neurologist.  The District 
asserts that this is a gross misstatement of Dr. Shams’s testimony.       
During the hearing, the ALJ asked Dr. Shams if a student with LGS, be it 

AJT or another LGS patient, was not available for instruction until 3:00 p.m., 
“would it be your view that an hour from 3:00 to 4:00 would be suitably   

challenging and beneficial because they have access to peers?”  (Id. at 793 (H'rg 
Tr. at 984 (Shams Test).)  Dr. Shams answered, “I think many of these patients 
grow up at—spend significant time at home without peer interaction.  So I think 

any peer interaction globally is good.  If it’s one hour 3:00 to 4:00, great.  So be it.  
If the baseline is nothing, then one to two hours is fine.”  (Id.)  The District argues 
that the ALJ’s decision suggests that Dr. Shams believed AJT is so disabled that 

she only requires an hour or two of instruction; however, this is not an accurate 
representation of Dr. Shams’s testimony at hearing.                       

The ALJ also concluded that the District showed “no flexibility in the 
instruction schedule for [AJT] beyond 4:15 p.m.”  (Id. at 983 (ALJ Order, Facts ¶ 
99).)  Similarly, the ALJ also found that “[t]he hearing record reflects that the 

School District’s aggressive press for an earlier start time for [AJT] did not follow 
an individualized assessment of [her] needs, but rather the need to safeguard the 

ordinary end-of-the-workday departure times for its faculty and staff.”  (Id. at 
983-84 (ALJ Order, Facts ¶ 101).)  The District argues that these findings are 
erroneous; it engaged in lengthy and ongoing communications with AJT’s family 

in order to find a way to best understand and serve her needs.            
The District argues that it has always remained ready to provide     

instruction to AJT any time that she is available during the regular school day as 
it would be for any other District student.  And it has never proposed an IEP 
with a start time earlier than 12:00 p.m.  It merely offered a flexible start time 

option as one of many various suggestions to provide AJT with the opportunity 
to access her education program to the same extent as her peers in light of the 
District’s obligation to include AJT to the maximum extent possible with her 

nondisabled peers as required by 

 (setting forth the least 
restrictive environment requirement under the IDEA).  The District asserts that, 

in response to AJT’s parents’ request for instruction time for AJT, the District 
offered to place trained staff in AJT’s home to collect more information regarding 
her seizure activity and needs during the morning.  AJT’s parents rejected this 

offer and the District accepted their decision.                           
The District argues that it has shown its commitment to flexible scheduling 

for AJT by extending her school day beyond the end of the regular school day by 
15 minutes when she attended Cedar Island and by 1 hour and 35 minutes when 
she attended MGMS.  The District also provided AJT with ESY services that took 

place in her home from 12:00 to 3:00 p.m. as opposed to the typical 9:00 a.m. to 
12:00 p.m. ESY service provided on school premises.  And the District even 

offered to provide the Student with additional hours of ESY services, which the 
family declined.                                                          
The Court finds that while the ALJ did appear to make a few errors,  

collectively, the errors do not support reversing the ALJ’s decision.     
The ALJ erred by finding as a fact that Elliot told Dr. Reichle that “some of 
the instructional objectives in [AJT’s] IEP could not be implemented in the time 

available during her shortened school day” without making a credibility   
determination between Elliot and Dr. Reichle because Elliot testified that she did 

not make that statement and Dr. Reichle testified that she did.  (Doc. 15 at 979 
(Doc. 15 at 979 (ALJ Order, Facts ¶ 71).)  However, this error does not alter the 
Court’s overall analysis.                                                 

Even accepting Elliot’s testimony as true, she stated that she crafted the 
IEP goals to fit into the limitations of 4.25 hours and so would not have included 

any goal that could not be accomplished during that time, which does not show 
that a 4.25-hour-day was appropriate.  Elliot’s testimony supports a finding that 
AJT’s IEP goals were limited by the 4.25-hour day.  In addition, Dr. Breningstall 

testified that implementing Dr. Reichle’s recommendations within the 4.25-hour 
school day would require eliminating other goals for AJT.  AJT’s father testified 

that the District indicated that it was not possible to pursue toilet training due to 
the length of the day and, thus, AJT’s parents agreed to eliminate that goal from 
her IEP.  And Dr. Reichle testified that his IEE recommendations could not be 

implemented when constrained to a 4.25-hour day.  (Doc. 14-12 at 18 (Reichle 
H'rg Test. at 444-45).)  Therefore, the record still supports the ALJ’s decision.  
Similarly, the ALJ’s statement that Dr. Shams opined that one-or-two 

hours of instruction for a student like AJT was “‘good,’ ‘fine’ and ‘sufficient’” 
appears to be a mischaracterization of his opinion.  In context, Dr. Shams was 

stating that one or two hours of peer interaction is better than no peer interaction 
and that this amount of peer interaction for a student like AJT would be “fine” if 
the baseline was zero.  He was not opining that instruction time of one or two 

hours was sufficient for AJT.  However, this mischaracterization does not form 
the basis for the decision that AJT should receive six hours of instruction per day, 

so it is not material.  See Slama ex rel. Slama v. Indep. Sch. Dist. No. 2580, 

 (D. Minn. 2003) (finding disputed issue immaterial to 
determination of whether child was denied a FAPE and granting judgment for 

school based on this and other grounds).                                  
On the other hand, the ALJ did not err in stating that AJT’s parents and the 

District have never agreed as to when AJT’s day should conclude.  AJT’s parents 
have consistently requested instruction until at least 6:00 p.m. and merely 
“agreed” to the 2017 IEP by not responding to it.  At one point, they suggested a 

4:15 p.m. end time in the school building, but that was a negotiating point in the 
context of their knowledge that the District consistently refused anything later 
and also refused in-home support after school hours.                      

Likewise, the ALJ’s statement that the District showed “no flexibility in the 
instruction schedule for [AJT] beyond 4:15 p.m.” is accurate.  Although the 

District engaged in ongoing communications with AJT’s family to seek a solution 
that met her needs and provided multiple alternatives, it never offered an 
alternative with instruction beyond 4:15 p.m.                             

The ALJ’s interpretation of Dr. Wills’ testimony is reasonable—Dr. Wills 
was answering a question about the amount of ABA instruction AJT should   

have.  AJT’s parents maintain that AJT should receive ABA instruction, so it was 
a reasonable interpretation that Dr. Wills thinks that AJT’s instruction overall 
should be based on how long she “can remain engaged, active and alert.”   

The ALJ’s interpretation that the District’s request to observe AJT in the 
mornings to see if morning instruction would be feasible and its offer of a flexible 

start time to allow AJT to attend any time before noon on any day when she is 
able were made solely to provide a standard departure time for its staff is a 
factual interpretation that is entitled to due weight.  A reasonable interpretation 

of the evidence is that the District was trying to accommodate AJT with a flexible 
start time by allowing her extra instructional time when she was available.  And, 
since there was no data on how AJT fared during instruction before noon, it was 

reasonable for the District to offer to have a professional observe her at that time 
to determine if there was a possibility of some manner of morning instruction.  

At one point, the District was told by one of AJT’s neurologists, Dr. Jason 
Doescher, that he thought education earlier in the day would be a possibility and 
that attempting to trial that would be “reasonable.”  (Doc. 14-16 at 42 (Jan. 28, 

2021, Transcript of Recorded Phone Call with District personnel; AT, AJT’s 
father; and Doescher at 12-13); see also Doc. 14-11 at 56 (Breningstall H'rg Test. at 

267) (“Dr. Doescher was apparently somewhat amenable to attempts to modify 
[AJT’s] schedule to try to start her educational process earlier in the day.”).)   
However, the ALJ’s attribution of a different motivation to the District’s 

actions is entitled to due deference under the standard of review the Court must 
apply in this case.  See K.E., 

.  Evidence supporting the ALJ’s 

interpretation includes AJT’s father’s clear testimony regarding the adverse 
effects AJT has endured from waking up earlier for medical treatments, (see, e.g., 
Doc. 14-6 at 19-23 (AT H'rg Test. at Tr. 89-93)), and Dr. Breningstall’s testimony 

that starting AJT’s school day before noon would lead to an “inevitable   
worsening of her problem” and that Dr. Breningstall “can’t see on an      
experimental basis or otherwise exposing [AJT] to an inevitable worsening of her 

problems” (Doc. 14-11 at 57 (Breningstall H'rg Test. at 273-74)).         
Therefore, while the ALJ made some factual errors, the errors do not 

require that the Court reverse the ALJ’s decision.                        
IV.  CONCLUSION                                                           
Based on the above discussion, the Court concludes that the District has 

not provided AJT a FAPE.  AJT requires more than 4.25 hours of schooling a day 
to have an educational program that is sufficiently ambitious in light of her 
circumstances and that will allow her to meet challenging objectives.   Extending 

her instructional day until 6:00 p.m. and including compensatory hours of 
instruction as found by the ALJ is the appropriate remedy.  The ALJ’s decision is 

AFFIRMED.                                                                 
Based on the files, records, and proceedings herein,                 

IT IS HEREBY ORDERED:                                                
1.   Defendant’s Motion for Judgment on the Record (Doc. 43) is      
     GRANTED; and                                                    
2.   Plaintiff’s Motion for Judgment on the Administrative Record (Doc. 
     46) is DENIED.                                                  
LET JUDGMENT BE ENTERED ACCORDINGLY.                                 


Date:   September 13, 2022                                                
                              s/Michael J. Davis                     
                              Michael J. Davis                       
                              United States District Court