would have meant that Paul's progression to this point in Lovaas, i.e., to the point where regression precludes a change in programs, was caused by the parents' rejection of an appropriate program.
The IU argues that the fact that Paul will regress if transferred to the TEACCH program demonstrates the "superficiality" of the gains obtained through Lovaas. C.T. at 5. The Court cannot agree. The fact that skills can be lost before they are generalized in no way renders them superficial; to the contrary, such loss only supports the need for continued treatment so that Paul can reach the point of generalization. The IU also appears to argue that while regression might occur as to those skills that Lovaas deems important, that does not mean that Paul will "generally regress." C.T. at 56-57. The Court also rejects this argument--those skills that Lovaas deems important strike the Court as perfectly legitimate and broad based. Any regression in Paul's "Lovaas skills" would, in fact, represent a "general regression" of a magnitude sufficient to preclude Paul's transfer. Lastly, the IU argues that a "transition regression" argument was raised by the parents in Fuhrmann, and that it received "short shrift" by the district court and the Third Circuit. C.T. at 57. Of course, the effect of possible regression after a change in programs is a factual inquiry that varies from case to case. In Fuhrmann, the Court noted that there was credible expert testimony to support the conclusion that the child at issue would suffer no academic regression, and that, in any event, the child would not suffer "anything other than 'normal regression' associated with any change of program." Fuhrmann, 993 F.2d at 1039. Here, in contrast, the likelihood of regression is practically conceded; further, the evidence supports the conclusion that such regression will be well beyond "normal." Accordingly, Fuhrmann has no bearing on the regression issue in the instant case. For these reasons, the Court rules that a change in placement from the Lovaas program would not be appropriate for Paul at this time.
One final point of clarification is in order. Since I have held that the IU's enhanced TEACCH programs cannot be considered for purposes of the 1991-1992 school year, see supra Section II(B)(2), that 1992-1993 is governed by procedural considerations, see supra Section II(B)(3), and that a change in placement is not warranted at this time in light of Paul's two years with the Lovaas program, see supra this section, I have had no occasion to address whether the twenty-three hour TEACCH program currently in place is appropriate under the IDEA. The fact that this issue has gone unaddressed might be troubling to the IU, since it claims that it brought this action partly because of its concern over the Panel's determination that TEACCH, even if "optimally implemented," would not be appropriate. See Panel Decision at 6. The IU has suggested, at least impliedly, that it is worried that this determination, if allowed to stand, will force the IU to provide Lovaas training for all PDD students within its jurisdiction.
Any ruling by this Court on the validity of the twenty-three hour program would be pure dicta and advisory only. Since federal courts are without jurisdiction to issue advisory opinions, the Court declines the invitation to make such a ruling. The Court does note, however, that the Panel, as required under the IDEA, clearly limited the scope of its decision to Paul's particular case, so that the IU's fears are perhaps unfounded. See Panel Decision at 8 ("We stress that our finding does not compel the conclusion that the Lovaas program is superior to the TEACH program in all respects or for all children. Other children may not be good candidates for the Lovaas program, or may not be as receptive to it over time."). More fundamentally, the Panel's determination as to the appropriateness of an "optimal" TEACCH might not be completely supported by the record. The Panel found TEACCH inappropriate for Paul because it felt that TEACCH "even under the best of circumstances, contemplates the student's involvement in special education throughout his educational career." Panel Decision at 6-7. It later stated that TEACCH "envisions a lifetime of special education for Paul." Id. at 8. In contrast, the Panel found that "[Lovaas] alone holds the promise of self sufficiency and integration into the regular curriculum." Id. at 7. To this Court, it seems that there is evidence in the record that can be read to directly refute these conclusions.
Specifically, TEACCH appears to stress eventual independence, not a lifetime of special education. See, e.g., R.T. at 4-164 to -166. Further, there is some testimony in the record to support the contention that TEACCH students can become mainstreamed. See, e.g., id. at 4-174.
Thus, the Court's ruling today does not preclude the possibility that a significant increase in the IU's TEACCH program's intensity, coupled with an effective mainstreaming program, would render the battle between TEACCH and Lovaas a contest between two teaching methodologies, either of which would be appropriate under the IDEA. At that point, the Court will yield to the educational agency, since "courts lack the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy. . . . Therefore, once a court determines that the requirements of the Act have been met, questions of methodology are for resolution by the States." Rowley, 458 U.S. at 208.
III. CONCLUSIONS OF LAW
In light of the foregoing, the Court makes the following conclusions of law:
1. There was no appropriate educational program in place for Paul from October, 1991, to January 31, 1992.
2. The educational programs proposed in the IU's January 31, 1992 IEP were not reasonably calculated to provide an appropriate education for Paul.
3. The IU cannot contest Paul's parents' right to reimbursement for the period between June 2, 1992, and July 2, 1993, because: a) Paul's parents are entitled to rely on the Panel decision in making educational and financial decisions regarding Paul's education, or, alternatively, b) the IU failed to take appropriate steps to revise Paul's IEP to implement the IU's enhanced TEACCH programs.
4. Paul's parents are entitled to reimbursement for all past expenses incurred in connection with educating Paul pursuant to the Lovaas method, despite the fact that the Lovaas instructors are not state-certified teachers.
5. Because Paul will suffer significant regression if removed from the Lovaas program at this point, and because Lovaas training will continue for no more than one additional academic year, the IU's enhanced TEACCH program is not appropriate for Paul, and the IU must reimburse Paul's parents for expenses incurred in connection with educating Paul pursuant to the Lovaas method from the date of this decision through the beginning of the 1994-1995 academic year. This reimbursement shall include funding for training during the summer of 1994.
An appropriate Order will be entered.
AND NOW, TO WIT, this 15th day of September, 1993, IT IS ORDERED that judgment is hereby entered in favor of defendants and against plaintiff, in accordance with the Opinion filed contemporaneously herewith, and further ORDERS as follows:
A. Plaintiff shall immediately initiate proceedings to prepare an Individualized Education Program for Paul K. that is consistent with applicable law and regulations and with the attached Opinion. This IEP shall include provisions for reimbursement of Paul K.'s parents for expenses they incur related to Paul's future Lovaas training.
B. Reimbursement shall be determined as follows: Within five days of the date of the filing of this Order, defendants Martin K. and Melinda K. shall submit to the Court, for purposes of determining a reimbursement award, a statement of all expenses incurred in connection with Paul K.'s Lovaas training to date (the statement may either replace or supplement Defendants' Exhibit 42, as submitted at trial). If plaintiff fails to object to the amounts set forth in the petition within five days of its submission, the defendants' right to recover those amounts will be deemed admitted. The Court will determine a procedure for adjudicating objections raised by plaintiff, if any, upon their submission.
C. Attorney's fees pursuant to 20 U.S.C. § 1415(e)(4)(B) shall be determined as follows: Defendants are to file a fee petition within ten days of the date of this Order. If plaintiff fails to object to the petition within five days of its submission, the defendants' right to recover the amounts set forth therein will be deemed admitted. The Court will determine a procedure for adjudicating objections raised by plaintiff, if any, upon their submission.
AND IT IS SO ORDERED.
EDUARDO C. ROBRENO, J.