Full opinion text
ORDER ON MOTION FOR SUMMARY JUDGMENT McKINNEY, Chief Judge. This matter comes before the Court on a motion by the Defendants, West Clark Community Schools and Clark County Special Education Cooperative (collectively “West Clark”), asking the Court to find that West Clark has met its responsibility to provide J.P. with a free and appropriate public education and that West Clark’s proposed educational plan for the 2001-2002 year was reasonably calculated to continue to offer J.P. significant educational benefits. The Plaintiffs, J.P. and his parents, Todd Popson (“T. Popson”) and Claudia Popson (“C. Popson”) (collectively, the “Popsons”), argue that West Clark’s educational program has been designed primarily to keep costs to a minimum and, as a result, has not given J.P. anything more than trivial educational benefits. J.P. suffers from autism and speech apraxia. Autism is a generic term for a range of neurological disorders which affect different children differently. There is no cure, but autism can be manageable using behavioral and educational interventions. One treatment program that has shown promise for treating autistic children is the Applied Behavior Analysis (“ABA”) method used by O. Ivar Lovaas, Ph.D., at the University of California Los Angeles. This program focuses primarily on the use of discrete trial training (“DTT”), a series of short, discrete, one-on-one lessons, with clear beginnings and endings, repeated over and over, with positive reinforcement for correct answers. The Popsons believe that the ABA/DTT program is so far superior to other programs that it should be recognized by the Court as the only reasonable way to teach autistic children like J.P. West Clark disagrees, preferring to use a variety of techniques which it argues have proven to be successful in treating autistic children. While West Clark’s program includes some ABA/DTT training, it also includes a structured classroom, which West Clark urges provides a more meaningful context for the development of functional communication, a greater opportunity for the development of social skills, and an easier transition towards the ultimate goal of placing J.P. in an ordinary classroom. Given their philosophical differences, West Clark and the Popsons disagree about a number of specific issues regarding the adequacy of the educational services provided by West Clark. In addition, the Popsons feel that their views were not taken seriously. In the Popsons’ opinion, West Clark has simply attempted to impose an individualized educational plan (“IEP”) upon J.P. without taking into account the Popsons’ input, as required by law. However, the Court finds that the Pop-sons have failed to prove their underlying claim that the ABA/DTT approach they favor is the only reasonable method for teaching J.P. West Clark has provided the testimony of J.P.’s teachers and of outside educational experts in support of its program. The Court further finds that the fact that the parties had a principled disagreement does not mean that West Clark failed to take the Popsons’ views seriously. To the contrary, J.P.’s teachers and school administrators demonstrated a willingness to incorporate ABA/DTT methods into their teaching plans for J.P. In addition, West Clark officials showed flexibility in terms of adding more hours to J.P.’s program (including more one-on-one hours), and in terms of adding more communication goals of the type favored by J.P.’s parents. The Court is not qualified to arbitrate a dispute about educational methodologies. It is enough that West Clark’s approach has been reasonably calculated to confer meaningful educational benefits upon J.P. Therefore, the Court GRANTS West Clark’s motion for summary judgment. /. THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT Congress enacted the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., to guide and assist states in educating disabled children. In order to receive funding under the IDEA, a state must provide each disabled student with a free appropriate public education ("FAPE"). 20 U.S.C. § 1412(1). This education must be tailored to the unique needs of the disabled student through an individualized education plan (“IEP”). 20 U.S.C. § 1414(d). The Seventh Circuit has characterized a “free appropriate public education” as one which guarantees a reasonable probability of educational benefits with sufficient supportive services provided at public expense. Board of Educ. of Community Consol. School Dist. No. 21, Cook County, Ill. v. Illinois State Bd. of Educ., 938 F.2d 712, 717 (7th Cir.1991), cert. denied, 502 U.S. 1066, 112 S.Ct. 957, 117 L.Ed.2d 124 (1992). In Board of Educ. of Hendrick Hudson Central School District v. Rowley, the Supreme Court emphasized that there are two aspects to the IDEA's requirement that a school (or local educational agency) provide each disabled child with a FAPE. 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). First, the school must provide all of the procedural safeguards laid out in the IDEA. Id. at 206, 102 S.Ct. 3034. Second, the IEP that is ultimately formulated for the child must be appropriate, i.e. "reasonably calculated to enable the child to receive educational benefits." Id. at 207, 102 S.Ct. 3034. A. THE PROCEDURAL SAFEGUARDS In crafting the IDEA, Congress placed great importance upon procedural safeguards, apparently believing that those safeguards would go a long way towards ensuring that a reasonable IEP would be formulated for each child covered by the act. Rowley, 458 U.S. at 206, 102 S.Ct. 3034. An IEP is “a written statement” that must include: (1) “the child’s present levels of educational performance;” (2) a list of “measurable annual goals” that will “enable the child to be involved in and progress in the general curriculum,” which list should alsjo include “benchmarks or short-term objectives” designed to meet the child’s specific disability needs; (3) a determination of “the special education and related services” necessary to enable the child “to advance appropriately toward attaining the annual goals [and] to be involved and progress in the general curriculum;” (4) a method for measuring “the child’s progress toward the annual goals;” and (5) a plan for keeping “the child’s parents ... informed (by such means as periodic report cards)” about the child’s progress, “at least as often as parents are informed of their nondisabled children’s progress.” 20 U.S.C. § 1414(d)(1)(A). The IEP must be prepared by a “team” composed of: (1) the parents of the disabled child; (2) at least one of the child’s regular education teachers; (3) at least' one of the child’s special education teachers; (4) a representative of the local educational agency “who is qualified to provide, or supervise ... specially designed instruction [for] children with disabilities, [and who] is knowledgeable about the general curriculum, and ... about the availability of resources of the local educational agency;” (5) an individual “who can interpret the instructional implications of evaluation results;” and (6) other individuals, at the request of the parent or the agency, “who have knowledge or special expertise regarding the child.” 20 U.S.C. § 1414(d)(1)(B). In formulating an individualized education plan, the IEP team must consider the strengths of the child, the concerns of the parents for enhancing the education of their child, the results of the initial evaluation or most recent evaluation of the child, and other special factors such as strategies for positive behavioral intervention, communication needs, and the need for supplementary aids and services. 20 U.S.C. § 1414(d)(3). The “local educational agency” also must “ensure that the IEP Team reviews the child’s IEP periodically, but not less than annually, to determine whether the annual goals for the child are being achieved.” 20 U.S.C. § 1414(d)(4)(A). When necessary, the IEP must be revised to address “any lack of expected progress toward the annual goals, ... [any] information about the child provided to, or by, the parents,” or any other “anticipated needs” of the child. Id. The educational agency must provide prior written notice to the parents before deciding to initiate a change or deciding to refuse a change in a disabled child’s evaluation or educational placement. 20 U.S.C. § 1415(b)(3). The notice must include a description of the action proposed or refused by the agency and a thorough and specific explanation of why the agency proposes or refuses to take the action. 20 U.S.C. § 1415(c). The parents must be given an opportunity to examine all records relating to their child and to participate in any meetings regarding the evaluation and educational placement of their child. 20 U.S.C. § 1415(b)(1). The parents are also entitled to obtain an independent educational evaluation of their child. Id. If the parents are not satisfied in any matter relating to the provision of a FAPE, they must be given an opportunity to present their complaints. 20 U.S.C. § 1415(b)(6). They may also seek mediation in the event that their concerns are not satisfactorily answered. 20 U.S.C. § 1415(b)(5). Or, they may request a due process hearing in an administrative court. 20 U.S.C. § 1415(d). If the parents are not satisfied with the outcome of the due process hearing, they may institute a civil action appealing the hearing officer’s decision. 20 U.S.C. § 1415(f)(2). B. SUBSTANTIVE REQUIREMENTS Each handicapped child covered under the IDEA is entitled to a free and appropriate public education. 20 U.S.C. §§ 1400(d)(1)(A), 1412(a)(1)(A); 34 C.F.R. § 300.1. The vehicle for determining what constitutes a FAPE is the child’s individualized education plan. 20 U.S.C. § 1401(11). The requirement, articulated in Rowley, that the IEP be reasonably calculated to confer educational benefit is not a de minimus standard. Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171 (3rd Cir.1988). The IEP must call for “significant learning” and confer “meaningful benefit” upon the child for whom it is designed. Id. But the IEP need not be designed to enable the child to achieve his or her highest potential. “[T]he purpose of the IDEA is to open the door of public education to handicapped children.” (Emphasis added.) Board of Educ. of Murphysboro v. Ill. State Bd. of Educ., 41 F.3d 1162, 1167 (7th Cir.1994). It is not to guarantee any particular level of education or outcome. Rowley, 458 U.S. at 208, 102 S.Ct. 3034. Thus, the measure of appropriateness for an IEP does not lie in the outcomes achieved. Adams v. State of Oregon, 195 F.3d 1141, 1149 (9th Cir.1999). While outcomes may shed some light on appropriateness, the proper question is whether the IEP was objectively reasonable at the time it was drafted. Id. The IDEA unequivocally grants parents the right to participate in making educational decisions regarding their handicapped children. Weiss v. School Bd. of Hillsborough County, 141 F.3d 990, 998 (11th Cir.1998). But parents do not thereby obtain the right to compel a school district to provide a specific educational program or use a specific methodology. Id.; Lachman v. Illinois St. Bd. of Educ., 852 F.2d 290, 297 (7th Cir.1988), cert. denied, 488 U.S. 925, 109 S.Ct. 308, 102 L.Ed.2d 327. A state-proposed IEP which meets the substantive requirements of the IDEA cannot be invalidated merely because the parents believe that a better educational program exists for their child. Board of Educ. of Community Consol. School Dist. No. 21, Cook County, Ill., 938 F.2d 712, 717 (7th Cir.1991) (clarifying the holding in Lachman). On the other hand, parents may seek reimbursement for the costs associated with unilaterally placing their child in an alternative educational program, provided that they can show, first, that their child’s IEP was not appropriate (under Rowley’s two-pronged standard) and, second, that their own choice of an alternative placement satisfied the FAPE criteria. School Committee of Town of Burlington Mass. v. Mass. Department of Education, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). In addition to requiring that a child’s IEP be designed to confer meaningful educational benefits, IDEA further mandates that the child be provided these benefits in the “least restrictive environment” possible. 20 . U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.550 to 300.556. This reflects a presumption on the part of Congress that the education of disabled children generally is best achieved by “mainstreaming,” i.e., including disabled children in activities with normal children as much as possible. Oberti v. Board of Education of the Borough of Clementon School District, 995 F.2d 1204, 1214 (3d Cir.1993). The IDEA provides that: “To the maximum extent appropriate, children with disabilities [should be] educated with children who are not disabled, and ... removal of children with disabilities from the regular educational environment [should] oecur[ ] only when the nature or severity of the disability ... is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 U.S.C. § 1412(5)(B). II. FACTS AND PROCEDURAL POSTURE The Popsons are appealing a decision in administrative court by an independent hearing officer (“Hearing Officer” or “HO”) that J.P. is not entitled to the special services that the Popsons have requested for him. The parties have not provided any supplemental evidence for the Court’s consideration. Therefore, this appeal must be based entirely upon the facts that were considered in the administrative hearings, together with the findings of the Hearing Officer. In the Defendants’ Statement of Facts (“D. Facts”), West Clark has called the Court’s attention to 145 facts from the record. The Popsons, in their Statement of Facts (“P. Facts”), have listed 54 additional facts for the Court’s consideration. West Clark, in turn, has responded with 52 more facts in its Additional Statement of Facts From the Administrative Record (“D. Reply Facts”). The Popsons’ first “fact” is merely an admission that the preponderance of West Clark’s facts are accurate. The Popsons’ second fact then lists those facts that they consider to be inaccurately stated or otherwise objectionable. The Popsons state, without explanation, that they do not concur with West Clark’s facts 4, 21, 23, 27-29, 32, 35-6, 38, 40, 52-3, 57, 65, 72-4, 80-2, 86, 88-9, 90, 92, 94, 99, 103, 104-5, 108, 109,114,117. The Court finds that this method of objecting to the specified facts does not comply with Local Rule 56.1 because (a) the Popsons have not specified what part or aspect of each of West Clark’s alleged facts they find objectionable, (b) the Pop-sons have not specified the reason(s) for their various disagreements with or objections to the listed facts, and (c) the Pop-sons have not provided citations to the record to support an alternative interpretation of the facts. This failure to comply is not merely a technicality. In order to determine if there is truly a material fact at issue between the parties, the Court must know why the Popsons disagree. The Court cannot be expected simply to take it on faith that all the facts the Pop-sons object to are so inaccurate as to be unworthy of the Court’s consideration. On the other hand, the Court and the parties have an interest- in seeing that substantial justice is served regarding the education of J.P. Therefore, to the extent that one or more of the 54 facts listed by the Popsons explicitly raises an issue of material fact between the parties and is properly supported with citations to the record, the Court will consider it. Otherwise, the Court will deem that all facts listed by West Clark have been admitted by the Popsons. With that in mind, and giving “due weight” to the Hearing Officer’s findings, the relevant facts are these: J.P. was born on January 24, 1997, and diagnosed with autism in March of 1999 by the Child Evaluation Center in Louisville, Kentucky. Administrative Record (“AR”) at 24, 2530 (HO Finding # 5). J.P. was subsequently diagnosed as having speech apraxia, a neurologically based disorder that impairs his ability to make the oral motor movements necessary for speech. AR at 2531 (HO Finding # 7). J.P.’s disabilities entitled him to receive special education services under Indiana’s Article 7. AR at 173, 2532 (HO Finding # 10). He was enrolled in the county’s First Steps program, and an Individualized Family Services Plan (IFSP) was designed for him. C. Popson Tr. at 60; AR at 2530 (HO Finding # 6) and 2725, ¶ 7. This plan included physical therapy, developmental therapy, speech therapy, and occupational therapy. Id. J.P. continued in the First Steps program until, at the age of three, he was enrolled in West Clark’s public preschool program. Id. As part of the enrollment process, West Clark conducted an evaluation of J.P.’s cognitive ability, adaptive skills, social and emotional functioning, behavior, readiness skills, and speech and language skills. AR at 46, 151-66, and 2531 (HO Finding # 8). West Clark also evaluated his physical therapy and occupational therapy needs. Id. West Clark found that J.P.: (1) was not yet toilet trained; (2) did not engage in appropriate play or use common gestures; (3) was significantly below average in intellectual and cognitive functions; (4) was mildly deficient in adaptive functioning; (5) was not able to imitate adult sounds, use gestures to make his needs known, or raise his arms in response to commands such as “up” or “come here,” (6) was not able to use any words, though he did know the meaning of a few words; and (7) was not able to listen to or follow instructions requiring an action and an object. AR at 152, 155-6. Based upon the Childhood Autism Rating Scale, West Clark determined that J.P. was severely autistic because he: (a) displayed “a marked impairment in the use of multiple nonverbal behaviors;” (b) had not yet developed peer relationships appropriate to his developmental levél; (c) lacked verbal communication; (d) did not engage in spontaneous imaginative play; and (e) exhibited stereotyped repetitive motor mechanisms. AR at 157. The Defendants rated the Plaintiffs expressive communication skills as being at the level of a four-to eight-month-old, while rating his receptive communication skills at the level of eight to sixteen months. AR at 160 and 2532 (HO Finding # 8). The Plaintiff exhibited fine and gross motor delays, and he did not use any vocalizations to accompany his non-verbal gestures or body movement. Id. (HO Finding # 9). As a result of the evaluation, West Clark recommended that J.P. would benefit from continued participation in an early childhood environment that provides him with frequent opportunities to interact with peers, as well as with adults, and to use a wide variety of manipulative materials. AR at 163. According to West Clark’s report, J.P.’s educational program should provide consistent routines, with ample preparation for' any changes in routine, an opportunity ’ for structured social interchanges, an opportunity to learn a functional communication system, and consistent reinforcement of desired behaviors. Id. The report also stated that the Plaintiff needed to be encouraged to attend to individuals and tasks by making good eye contact and that he would require speech therapy to address his functional communication difficulties. Id. In addition, the use of the so-called picture exchange communication system (“PECS”) was recommended. Id. Shortly after the evaluation, in January of 2000, a case conference was convened to develop an IEP for J.P. The Case Conference Committee included special education supervisor, Sharon Reich (“Reich”), together with West Clark’s speech language pathologist, occupational therapist, physical therapist, school psychologist, and educational diagnostician. AR at 169; Reich Tr. at 977. J.P.’s parents also participated in the conference. AR at 170-2. The Popsons identified their primary concerns as being, in order of importance, first the development of J.P.’s sensory skills, then his communication skills, and then his social skills. AR at 170. The conference notes reflect an overall consensus that JJP.’s nonverbal skills were his strength, but that his imitation skills were very limited. AR at 171. It was thought that the PECS would be an effective tool for him. Id. The Case Conference Committee set the following annual goals for J.P.: (a) develop play skills to a level appropriate for his age; (b) attend to developmentally appropriate tasks for up to ten minutes; (c) improve imitation skills to the point where they are automatic; (d) improve communication skills by six months, as measured by age level; (e) improve self-help skills by six months; (f) improve fine motor skills by six months; and (g) improve sensory motor skills to a functional level. AR at 173, 2532 (HO Finding # 10). In addition, various short-term objectives were delineated. AR at 175-81, 2532 (HO Finding # 10). Success in achieving these short-term objectives was to be measured by direct teacher observation, class participation, and the use of charting and logs. Id. The committee members determined that a full time (50-100%) program at West Clark would be appropriate for J.P. AR at 185. The committee explicitly rejected other options, such as home-based education, education through a separate private facility, and education through a public residential facility. Id. J.P.’s initial IEP called for him to be placed in a preschool program with special education assistance for 12.5 hours per week. AR at 185-6, 2532 (HO Finding # 10). This included 80 minutes per week of speech therapy and 120 minutes per week of occupational therapy. Id. The IEP further required that a teacher’s aide be available to assist J.P. Id. J.P. began attending public preschool classes on January 24, 2000. C. Popson Tr. at 62. An annual case review was conducted on April 19, 2000. AR at 192. The Case Conference Committee included Reich, J.P.’s speech therapist Theresa Wahl (“Wahl”), J.P.’s special education teacher Mary Beth Cochran (“Cochran”), J.P.’s occupational therapist Mary Beth Cisco (“Cisco”), West Clark’s principal, and the Popsons. AR at 193. The Case Conference Committee reviewed J.P.’s progress under the initial IEP and noted that J.P. had adapted well to the preschool classroom activities. AR at 198. In a series of detailed evaluations of specific skills, the various members of the committee found that J.P. had “made progress” in more objectives than not. AR at 192-228, 2532 (HO Finding # 10). According to the committee, J.P. had made progress in communication skills, AR at 203^1, play skills, AR at 205-7, attending to developmentally appropriate tasks, AR at 208-10, improving imitation skills, AR at 211-13, improving self-help skills, AR at 214-16, and improving fine motor skills, AR at 218-20. More specifically, the committee noted that J.P. had made progress in toileting, the removal and hanging of his coat and hat, greeting adults, playing and interacting with adults, opening a container and removing items, imitating lines and circular strokes, and imitating block patterns using pattern cards. AR at 196-7, 202. J.P.’s weakest point seemed to be his functional communication skills, encompassing expressive and receptive communication. The committee noted that J.P. was making progress in vocalizations, but little or no progress in making verbalizations and approximating words. AR at 2532 (HO Finding # 10). The committee established goals for a new IEP for the period from April 2000 to April 2001 as follows: (a) improve self-help skills by another six months; (b) improve play skills up to age level; (c) improve imitation skills to an automatic level; (d) attend to a developmentally appropriate task for up to ten minutes; (e) improve fine motor skills by another twelve months; (f) improve functional communication skills by nine months; and (g) use functional sensory processing skills to participate in classroom activities. AR at 200. The committee again determined that a full time program at West Clark was appropriate to meet J.P.’s needs. AR at 225. The committee further determined that J.P. should receive extended school year (“ESY”) services focusing upon his communication skills in order to avoid substantial regression of those skills during the summer. AR at 229 and 2533 (HO Finding # 11). The ESY services were to consist of a total of eight one-hour speech therapy sessions conducted once per week over an eight-week period. Id. J.P.’s parents expressed concern that the ESY would not be sufficient to prevent regression, but they consented to the new IEP anyway. AR at 228-9. West Clark’s expert witness, Claire Thorsen (“Thorsen”), a speech and language pathologist, testified that the eight hours of speech therapy during the summer of 2000 was probably sufficient. Thorsen Tr. at 1042, 1096-7. “We seldom see with students who have autism a regression once they’ve learned particular kinds of skills. It may fade out but come back in.” Id. at 1097. J.P.’s speech therapist Wahl testified that, in fact, J.P. did not show significant signs of regression when he returned to school in the fall of 2000. Wahl Tr. at 755-7; AR at 262. “[J.P.] made gains in a very short period of time after school started.” A.R. at 2533 (HO Finding # 11). She also testified that, in her opinion, the eight hours of speech therapy offered to J.P. in the summer of 2000, as well as the twelve hours subsequently offered to J.P. in the summer of 2001 were appropriate to prevent regression. A.R. at 2543 (HO Finding # 43). With this evidence in mind, the Hearing Officer concluded that the “[testimony indicated that the [C]ase [C]onference [C]ommittee had determined that eight hours of speech therapy was appropriate to prevent regression or minimize it to the extent that skills could be recouped when school started in the fall.” A.R. at 2533 (HO, Finding # 11). On the other hand, the Popsons felt that there was some regression. A.R. at 262. And, to the extent that that regression had been minimized, it was because of their efforts in obtaining extra therapy. C. Popson Tr. at 43-44, 93-5; A.R. at 262 and 2726, ¶ 9. At the hearing, the Popsons provided three expert witnesses, all committed to the ABA/DTT methodology, who averred that eight hours of speech therapy for an entire summer was generally inadequate to maintain an autistic child’s skills. AR at 209, 584, 668. Testimony was also presented that, given J.P.’s problem with speech apraxia (which is not common in autistic children), even more hours of speech therapy probably ought to have been required. AR at 226. With the exception noted below, these observations were offered after-the-fact and not based upon direct observation of J.P.’s particular needs. As a result, the experts avoided being pinned down about how many hours they thought J.P. should have had. The director and founder of an educational group hired by the Popsons to provide a supplemental ABA/DTT program for J.P. did specifically state that 30-40 hours of speech therapy during the course of the summer would be more appropriate for J.P. AR at 634.* Also, one of West Clark’s own expert witnesses testified that eight hours might not be enough, unless it also involved working with the family so that they could follow up with J.P. on a more regular basis. AR at 948-9. The Popsons allege that the reason J.P.’s IEP only included eight hours for speech therapy in the summer of 2000 was that West Clark officials felt constrained by administrative and financial concerns. The Popsons first cite evidence that two other autistic children in the school system also received eight hours of speech therapy during the summer of 2000, even though they were both verbal and neither of them suffered from apraxia. AR at 560-1, 573. The Popsons then cite evidence that no child received more than eight hours of speech therapy. AR at 2000. Finally, the Popsons cite evidence from parents (including the Popsons themselves) that West Clark’s special education director, Reich, had made several comments, either about staffing problems or about not having unlimited resources, that were suggestive of financial constraints. The most relevant of these comments was described in the testimony of C. Popson. AR at 90. She testified that when she asked Reich why J.P. could not be given more than eight hours of speech therapy during the summer of 2000, Reich told her that there was a staffing shortage. According to Popson, Reich also told her: “we have jobs posted for speech therapists right now as we speak.” Reich denied the Popsons’ allegations, testifying that the amount of ESY services offered in the IEP was not based upon administrative concerns, such as available funds or staffing. AR at 2544 (HO Finding # 45). She testified that, although she could no longer remember the particular rationale by which eight hours was deemed appropriate for J.P. at the April 2000 case conference, the factors that they considered are the severity and degree of regression that are likely to occur during the summer. Id. She further pointed out that she is well-versed on the question, having gone to many conferences and workshops on autism. Id. On August 18, 2000, the Case Conference Committee reconvened to discuss potential revisions to J.P’s 2000-2001 IEP. AR at 234. At that time, the Popsons asked West Clark for any charts and logs indicating J.P.’s progress. Both Wahl and Cochran indicated that they did not keep charts and logs of the type the Popsons were seeking. Wahl Tr. at 773-5; Cochran Tr. at 324-5, 414. Instead, Wahl said that she logs and documents percentages of progress. Wahl Tr. at 776; see, e.g., 313-421AAA (logs made by Wahl subsequent to this meeting, documenting J.P.’s progress). And Cochran said that she keeps a school-home notebook with progress reports to give to the parents on a daily basis. The Hearing Officer found that the documents provided to the parents by Wahl and Cochran contained “written narrative comments about [J.P.’s] performance, behavior, and progress.” AR at 2534 (HO Finding # 15). But, they were lacking in providing a clear picture of the amount of progress J.P. was making toward specific goals and objectives. Id. “Other than the IEP forms that provide a method for recording progress, no charts of progress on a regular basis were provided.” Id. T. Popson expressed his belief that J.P. had not made any progress since he started at preschool the previous January. AR at 234 and 2534 (HO Finding # 16). He stated that J.P. was not developing the appropriate play skills with toys. Id. He further stated that the ESY services J.P. received were of little benefit to him and that his sensory skills had regressed over the summer. Id. C. Popson expressed her concern that, although J.P. may have made progress “here and there,” he had not met any of his IEP objectives. Id. The Popsons stated their opinion that J.P. needed a minimum of 25 hours per week of direct instruction in order to make satisfactory progress. Id. They wished to have more direct (one-on-one) instruction with a blend of preschool programming. Id. West Clark agreed that more direct instruction would be appropriate. Id. at 236 and 2534-5 (HO Finding # 17). The committee decided to increase J.P.’s instruction from 12.5 hours per week to 20 hours per week. Id. Sixteen of the hours were to be provided in the preschool setting with some “pull out” time as needed to increase attention and decrease distractions. Id. Four hours were to be provided in a one-on-one special education setting on Fridays. Id. In addition, Cochran agreed to use her lunch hour to provide J.P. with one hour of individual instruction per day. Cochran Tr. at 339; AR at 2534-5 (HO Finding # 17). The IEP also provided that the speech therapist would continue to work with J.P. for 90 minutes each week. Id. The Popsons consented to this revised 2000-2001 IEP in August of 2000. West Clark implemented the revised IEP using what it acknowledged to be an “eclectic” approach that incorporated PECS, one-on-one instruction, and some ABA/DTT techniques, together with an attempt to include J.P. with the other kids in the preschool program. Cochran Tr. at 384-6; A.R. at 2542 (HO Finding # 37-8). Wahl testified that she used several different approaches with J.P. to get him to vocalize or verbalize. Wahl Tr. at 714. She further testified that she had been trained in the discrete trial training methods advocated by the proponents of Applied Behavioral Analysis and that she uses those methods in practically everything she does. Id. at 704-5. Cochran testified that J.P. seemed to benefit from West Clark’s implementation of the revised 2000-2001 IEP. Cochran Tr. at 412. In particular, J.P. benefitted from all the one-on-one time in the fall of 2000, learning to shape his mouth, imitate, and start vocalizing. Id. at 398. Wahl testified that she saw significant gains in J.P.’s functional communication. Wahl Tr. at 787-8. “I think he’s probably got one of the best programs in Southern Indiana.” Id. at 790. . At some point during the fall of 2000, the Popsons engaged a private organization, Behavioral Intervention for Autistic Children (“BIFAC”), to provide J.P. with an at-home ABA/DTT program to supplement J.P.’s preschool program. C. Popson Tr. at 66. On December 1, 2000, the Pop-sons sponsored an ABA/DTT therapy workshop put on by BIFAC. Id. at 67. Cochran, Wahl, and Cisco, along with two instructional aides, attended the workshop. Id. at 43, 77; Montgomery Tr. at 617. Following the workshop, J.P.’s parents had planned to start J.P. at once on an at-home ABA/DTT program consisting of 22 hours per week of therapy in addition to the public preschool program. C. Popson Tr. at 68. However, due to illness, J.P. did not commence the BIFAC program on a consistent daily basis until shortly before February 1, 2001. T. Popson Tr., at 106; AR at 262. West Clark’s staff attempted to cooperate with BIFAC. A list of the objectives developed by BIFAC was posted in J.P.’s classroom. Cochran Tr. at 333. Wahl testified that she attempted to work collaboratively with BIFAC to help J.P. develop spoken language. Wahl Tr. at 713. And, by the Popsons’ own admission, Cochran incorporated the at-home ABA/DTT program into her one-on-one time with J.P. C. Popson Tr. at 78. In February of 2001, the Popsons requested a new case conference, which was convened on February 13. AR at 257, 259. The Case Conference Committee included the Popsons, Cochran, Wahl, Reich, Cisco, J.P.’s general education teacher Connie Runyon (“Runyon”), and lawyers for both West Clark and the Popsons. AR at 193. School personnel indicated that they believed J.P. had made substantial progress towards some of his objectives, but little or no progress towards others. AR at 2535 (HO Finding #20). West Clark noted progress in playing with and manipulating a variety of toys, taking turns while playing with peers, sharing toys with peers, and initiating interactions with peers and adults. AR at 265-6 and 2535 (HO Finding # 20). West Clark also noted that J.P. could undo simple fasteners, such as zippers and snaps, execute the toileting sequence, hang his coat and backpack on a hook, imitate motor actions with objects, imitate body movements, turn and look when his name was called, attend to a task until it is completed,-visually attend to a speaker for up to one minute, maintain eye contact with a variety of toys for two to four minutes, imitate oral facial movements, respond to simple commands, greet adults and peers, request cessation of an activity using a picture or sign, request desired objects or actions using picture communication with gradually fading cues, and identify a familiar picture or object from classroom themes when that object was named. AR at 267-75. West Clark also pointed out that J.P. had begun making progress with imitating verbalizations. AR at 2535-6 (HO Finding # 20). However, the Popsons noted that only four of the approximately 35 objectives listed in the 2000-2001 IEP had actually been deemed “met” by West Clark. AR at 508. T. Popson further believed that, while some of the goals in the 2001-2002 IEP were similar to the previous ones, others of the unachieved goals in the 2000-2001 IEP, such as toileting, had inexplicably been dropped. AR at 508-10. The Popsons again asked to see charts and logs documenting J.P.’s progress. AR at 259 and 2535 (HO Finding # 18). West Clark offered to make the teachers’ daily notes available to them, but the Popsons did not think that was sufficient. Id. They wanted objective data to see if J.P. was really making progress. Id. The Popsons further expressed their belief that West Clark should emphasize verbalizations and vocalizations, including working on consonant blends. Id. But Wahl expressed her opinion that J.P. was not yet ready to work on consonant blends. Id. The Popsons criticized some of the goals and objectives established by the committee as being spurious because J.P. had already achieved them, for example, imitating body movements, imitating songs, snipping with scissors, and tracing lines with a pencil. AR at 2535 (HO Finding # 19). In addition, the Popsons proposed that the committee recognize the ABA approach as the only appropriate means for teaching J.P. AR at 2536 (HO Finding #21). Although J.P. had been working with BIFAC for only about two weeks, the Popsons believed that J.P. enjoyed the program and was making good progress. Id. Therefore, the Popsons wanted West Clark to fund at least 40 hours per week of combined home and school training, under the supervision of BIFAC personnel, with an emphasis upon verbal behavior. AR at 261, 264. More specifically, the Popsons requested: (1) monthly training for J.P’s teacher, aides, and therapists via BIFAC; (2) monthly training for themselves as parents, via BIFAC; (3) the use of an aide at school either trained in ABA or provided by BIFAC; (4) the addition of a BIFAC member to J.P’s IEP team; (5) an ESY that is consistent with and commensurate with J.P.’s school year training, so that there will be no regression; (6) a more extensive data collection system to be analyzed by trained ABA personnel; and (7) reimbursement for costs associated with the BIFAC program. AR at 262, 264. In response, West Clark agreed to revise its proposed IEP for the 2001-2002 school year to include an objective for imitating phrases. AR at 261, 2535 (HO Finding # 18). In addition, West Clark agreed to increase the number of hours of ESY speech therapy from the eight that were allocated in the summer of 2000 to twelve hours for the summer of 2001. AR at 1010-13 and 2545 (HO Finding # 49). This was to be provided in addition to regular summer schooling, consisting of twelve hours per week for six weeks, which had not been provided in summer 2000. AR at 2545 (HO Finding #49). However, West Clark expressed its view that some of the Popsons’ specific language goals for J.P. were already included in West Clark’s functional communication goals, while other language goals were not realistic for J.P. AR at 260. The Hearing Officer noted that the proposed IEP contained annual goals in the areas of fine motor skills, sensory processing, imitation, play skills, attending to tasks, and improving functional communication that were appropriate for J.P. AR at 2545 (HO Finding #48). The Hearing Officer further found that, under each goal, there were specific objectives listed “that are behaviorally stated and are measurable.” Id. After noting that there was no goal or objective for toileting, the Hearing Officer found that: “[t]he document contains statements of present levels of educational performance, general strategies and modifications, and specific strategies for improving functional communication. It provides for 90 minutes per week of speech therapy, 20 hours per week of classroom instruction, and 180 minutes per month of occupational therapy.” Id. The Hearing Officer further stated that, although the document recognizes J.P.’s needs for direct instruction to achieve some goals and objectives, it does not specify the amount of one-on-one instruction to be provided. Id. As for the proposed ESY for the summer of 2001, the Hearing Officer noted, with apparent approval, that the IEP called for 12 hours per week of classroom instruction and 30 minutes per week of occupational therapy, in addition to the 12 hours during the course of the summer for speech therapy. AR at 2545 (HO Finding # 49). In proposing its IEP, the Case Conference Committee rejected the Popsons’ request for a 40-hour-per-week program, concluding that 20 hours would suffice, based upon J.P.’s past progress. -AR at 261-2. Similarly, West Clark rejected the Popsons’ request for an IEP based exclusively upon ABA/DTT methods, finding that J.P. had made significant progress during the school year under West Clark’s more eclectic approach. Id. Applied Behavioral Analysis (“ABA”) is a broad field of research and practice in which the principles of learning theory are applied not only in education, but also in other areas such as sports. AR at 2537 (HO finding # 23). Discrete trial training (DTT) is a method of instruction in which tasks are broken down into small sub-tasks, instruction is given on each individual sub-task, and positive reinforcement is given for correct answers. Id. DTT entails frequent repetition of drills set up in a programmed sequence. Id. The results can be measured with objective data, noting the number of trial successes. Id. As applied to children with autism, the ABA/DTT approach consists of a curriculum of specific tasks that emphasize verbal behavior and language development. Id. The seminal scientific study with regard to the use of ABA/DTT for children with autism was published in 1987. AR at 2536 (HO finding # 22). Since that time, the study has been criticized for its methodological limitations, including the inability to assign children with autism to control and experimental groups. Id. Proponents argue that, while the original study cannot be replicated exactly, subsequent research has also shown that the use of the ABA/ DTT system results in improvement in verbal and academic skills for autistic children. Id. However, other researchers question whether the method has been sufficiently validated to warrant broad implementation as a standard treatment for autism. Id. In addition, some are concerned that the reported favorable outcomes will not generalize to other environments, such as the public school classroom. Id. The Popsons’ expert witnesses recommended that anywhere from 25 to 40 hours per week of instruction using the ABA/ DTT methodology be provided for students with autism like J.P. AR at 2538-40, 43 (HO findings ## 26-7, 29, 32, 43). But, again, the witnesses did not base their testimony on their knowledge of J.P.’s specific needs or rate of progress. The Popsons also presented expert evidence that about 75% of the ABA/DTT program should be based at home, where there are fewer distractions, leaving about 25% to be implemented at the preschool. AR at 2538 (HO finding # 26). On that basis, the Popsons argued that J.P. should be receiving from 30-MO hours per week of home-based ABA/DTT instruction, together with about 10 to 15 hours per week of his current preschool program to facilitate socialization. Id. One of the Popsons’ expert witnesses, with a PhD in psychology, testified that he had evaluated J.P. and obtained results similar to West Clark’s previous evaluations, except that he found that J.P. had a superior nonverbal IQ score. AR at 2539 (HO finding # 29). He further testified that he did not believe that group instruction is appropriate for autistic children, citing a New York State study indicating that ABA/DTT is the treatment of choice. Id. The instructional approach used by J.P.’s teachers has been described as “eclectic.” AR at 2542 (HO finding ## 37-8). Instructional staff and specialists use a variety of techniques that are deemed developmentally appropriate for the child. Id. Many of these techniques have been advocated by TEACCH, a nationally known program for children with autism. Id. TEACCH methods include some direct one-on-one instruction, including the use of ABA techniques. Id. Dr. John Umbreit (“Umbreit”), an expert in Applied Behavioral Analysis, special education, and educational programming testified for West Clark. Umbreit Tr. at 869, 875; AR at 922-44. Umbreit observed J.P. for one hour in both his at-home ABA/DTT program and in his preschool program. AR at 913^4, 926. According to Umbreit, the “methodological flaws” in the 1987 study “are so significant that I don’t think the data can be relied on for much of anything.” AR at 908. In particular, Umbreit expressed his concern that children trained solely by the discrete trial format tend not to generalize very well and tend not to retain their skills well. AR at 918. He also noted that children with autism are capable of learning from their peers. AR at 931-2. “[T]he opportunity to interact with other kids both with special needs and normally developing children is very important.” Id. As for J.P.’s specific educational program, Umbreit testified that the IEP proposed by the case conference committee identified goals that “are appropriate and will benefit [J.P.].” AR at 930-1. He testified that the teaching staff is positive, and the school program is appropriate for meeting those goals. AR at 934. He further testified that he had reviewed the written narratives of J.P.’s progress provided by J.P.’s teachers and concluded that they contained a significant amount of data from which J.P.’s progress could be assessed. AR at 922-5. “I think what they have done in school represents an appropriate IEP and that [J.P.] has derived benefit from” the school’s efforts. AR at 973. Umbreit also expressed his belief that the at-home program conducted by BI-FAC was well structured and competently administered. AR at 935. But he questioned whether the teaching of individual sounds independently and out of context might result simply in “sound barking,” rather than true language development. AR at 937. West Clark also presented testimony from Thorsen, the district supervisor of the Communication Disorders Program, the Autism Program, and Preschool Programs for the Covered Bridge Special Education District in Terre Haute, Indiana. AR at 945-57. Thorsen works with parents and helps to develop programs for children with autism. Thorsen Tr. at 1046-7. The Covered Bridge team is currently programming for 130 autism students. Id. at 1047-8. Thorsen has a background in DTT and TEACCH services for autism. Id. at 1042-5. Thorsen observed J.P. in his preschool program for approximately one hour. Id. at 1052-3, 1059-63. Thorsen thought that the activities J.P. was engaged in would encourage communication and speech. Id. at 1063^4. She expressed her belief that these activities were just as conducive for learning to verbalize as discrete trial training. Id. at 1064-7. Thorsen explained that: [F]or the kinds of skills that [J.P.] currently exhibits, the goal is not just for speech, which is basically a motor sound production. The goal is to get him to understand and appreciate that there is a function and intent to communicate. ... When you merely drill sounds with him, ... there’s no true basis or function for that. So we usually start with students who have autism [by] trying to help them understand that communication has meaning, communication has purpose, and communication has power. And through that, we then typically see a growth of language and speech if it is to come. Id. at 1065. Thorsen acknowledged that BIFAC’s goal is also to teach J.P. that “speech is a method of getting what I want.” AR at 1065. But Thorsen explained her belief that “[i]ndividuals learn language by placing words, ideas, and cognitive skills together within certain kinds of contexts. That supplies meaning for them. And the preschool classroom is a very natural place to do that.” Id. at 1067. Thorsen testified that West Clark’s proposed IEP for J.P. was well-rounded. Id. at 1062. She believed that the program of one-on-one teaching with immediate carryover into the classroom was effective for J.P. because it helped him in learning to generalize. Id. at 1075-6. She also expressed her opinion that J.P. is ready for peer interaction. Id. at 1074^5. Thorsen believes that J.P. has made good progress in his preschool program and should remain there. Id. at 1102-3. Thorsen also noted that she has dealt with some ABA/ DTT programs in her own school corporation, and she has not found that children who have been in a full time ABA/DTT program adapt well to being mainstreamed into a general education program. AR at 2544-5 (HO Finding #47). On the other hand, the Popsons believe that a full time ABA/DTT program is best for J.P. As a result, they did not agree with the committee’s substantive decisions during the February 2001 case conference. AR at 2535 (HO Finding # 18). The Pop-sons also felt that the committee did not adequately consider their input. Id. Therefore, on March 16, 2001,' the Popsons filed a request for a due process hearing. AR at 2525. The hearing was held on May 14-16. AR at 2527. The Popsons’ Posb-Hearing Brief alleged that the process of formulating J.P.’s IEP was flawed because West Clark did not permit the Popsons to participate meaningfully in creating the IEP, and West Clark then “lawyered” the account of the case conference to make it appear that they did. AR at 2647 63. The Popsons’ Post Hearing Brief further alleged that the annual goals and short-term objectives proposed by West Clark were not appropriate for J.P. because the resulting IEP contained too few goals and because some of the goals it did contain were amorphous, not objectively measurable, or else unteachable, while other goals were too easy for J.P. Id. The Popsons also complained that certain important goals were not listed, such as toilet training and specific objectives for verbalization and vocalization, and that the language skills generally focused too much on the Picture Exchange Communication System, which the Pop-sons thought would not be useful for J.P. Id. In addition, although everyone agreed that eight hours of one-on-one instruction were necessary, this was not specifically listed in the IEP. Id. Finally, the Popsons’ Post Hearing Brief criticized the services offered by West Clark as being inadequate to achieve the goals and objectives of the IEP. The Popsons felt that the reason for this inadequacy was that West Clark officials improperly allowed financial and staffing considerations to influence then-judgment about J.P.’s educational needs. Id. The Hearing Officer identified the following issues to be addressed: 1. Are the goals and objectives of the proposed [2001-2002] IEP appropriate? 2. Were the services provided appropriate to accomplish the goals and objectives in the current [2000-2001] IEP? 3. Were the provisions of the current IEP followed regarding charting and logging of behavioral and academic progress? 4. Are the ESY services for the summer of 2001, as contained in the proposed IEP, appropriate to meet [J.P.’s] needs? 5. Is [J.P.] entitled to compensatory instructional time for the Summer of 2000? 6. Is the program proposed for the 2001-2002 academic year appropriate [to progress toward the goals of the proposed IEP]? 7. If West Clark’s program is not appropriate, is the program proposed by the [Popsons] appropriate? AR at 2546-2550. The Court summarizes the Hearing Officer’s answers to these questions as follows: 1. Despite disagreement between the parties on specific points, the goals and objectives in the 2001-2002 IEP, as a whole, are appropriate for J.P. and consistent with 511 IAC 7-26-6(a)(2) and 34 CFR § 300.347(2)(j)- The objectives are written in behavioral terms that are “measurable.” There is no goal for toilet training, which remains an area of concern. 2. The 2000-2001 IEP was implemented appropriately, consistent with 511 IAC 7-27-7 and 34 CFR 300.350. The teacher and specialists who worked with J.P. were trained in working with children with autism and used an appropriate variety of techniques, including some direct instruction in a manner similar to the ABA/DTT approach preferred by the Popsons. 3. Although the law contains no specific requirement about how records of progress towards goals and objectives are to be kept, “the parents were reasonable to expect that logs and charts of progress would be available.” Furthermore, the law requires that parents be regularly informed of their child’s progress, 511 IAC 7-27-6(7)(B). Therefore, the IEP should be amended to specify how and when the parents will be informed. 4. The amount of classroom instruction (12 hours per week for six weeks) in J.P.’s ESY for the summer of 2001 is appropriate for J.P. The amount of occupational therapy is also appropriate. “Whether the number of hours of speech therapy [is] appropriate is unclear, however, and requires more information.” 5. Because the goal of ESY services is to prevent regression and not to increase skills, and because the unrefuted evidence presented by J.P’s speech therapist and his classroom teacher shows that J.P.’s skills did not regress significantly during the summer of 2000, compensatory instruction for inadequate service is not warranted. 6. Although there may be other educational approaches, such as ABA/DTT, that might benefit J.P. more, the school’s responsibility is only to develop an educational program that addresses J.P.’s needs in all aspects of his disability and is reasonably calculated to provide him with educational benefit. “There is ample evidence that [J.P.] has shown progress [in the past] in many areas,” from which it is reasonable to infer that his past IEP’s did provide him with meaningful educational benefits. “Because the* proposed IEP for 2001-2002 addresses similar needs, it is considered appropriate.” In addition, “[t]here is no evidence that [West Clark] has violated IDEA or Article 7 procedural requirements” in developing J.P.’s IEP. 7. Having ruled that the IEP proposed for J.P. is appropriate, the Hearing Officer did not have reason to consider the merits of the Popsons’ proposed alternative IEP. AR at 2546-2550. As a result of these findings, the Hearing Officer ordered that West Clark convene a new case conference meeting to amend the current IEP in light of the particular problems raised, including toilet training and the need for a better method for teachers and specialists to record data concerning J.P.’s progress. AR at 2550-2. In addition, West Clark was instructed to obtain the opinion of an independent speech therapist to determine the appropriateness of the speech therapy component of the ESY plan proposed for the summer of 2001. Id. Subsequently, the Hearing Officer amended his Order, finding that “there is no need for the speech therapist's] opinion ... because the parents have refused services.” AR at 2508. The Popsons appealed the Hearing Officer’s decisions to the Board of Special Education Appeal (“BSEA”). AR at 2709. The BSEA upheld the Hearing Officer’s conclusions of fact and law in their entirety. AR at 2715-6. In appealing to this Court, the Popsons have highlighted certain additional evidence that they believe the Hearing Officer did not consider. The Popsons state that J.P.’s teacher, Cochran, “admitted that she destroyed records pertaining to J.P. that were less than five years old.” P. Facts, ¶ 45. In the portion of the record that the Popsons cite as evidence, Cochran testified that she filled out formal progress updates for J.P.’s parents four times per year, which were not destroyed. AR at 524-6. In addition, she testified that she kept a school-home notebook “to give [the Popsons] daily progress reports on then-child and what was happening in the classroom,” which was also not destroyed. Id. Cochran explained that she was not required to keep the notebook. Id. She simply “wanted to be the child’s voice,” because J.P. “can’t come home and say, Mom, we did this today.” Id. The notebook also allowed the Popsons to write to her about their concerns and about J.P.’s activities at home. Id. But in addition to all that, Cochran testified that she kept her own teaching notes about what she was working on with J.P. each day. Id. Or, if she was not working with J.P. directly, she would type up specific directions for her aides and they would check off what they had done. Id Cochran testified that it was this last set of notes which she threw away at the end of the school year. Id. When asked if that was her normal practice with all her special education kids, she said “yes,” her habit is to “clean out [her] files” at the end of each school year. Id. According to the Popsons, this constitutes an admission that Cochran, and by implication West Clark, engaged in a “ ‘policy or practice’ of denying parents a right to review and inspect the educational records of their children.” P. Facts, ¶ 46. The Popsons also call this Court’s attention to their belief that J.P. has continued to make meaningful educational progress under the ABA/DTT program. C. Popson testified that, by the date of the hearing, J.P. was making nearly every sound of the alphabet, and even beginning to put words together. AR at 70. She also noted that J.P. was making progress on consonant blends, reporting that he went up to the refrigerator one day and said “durrink.” Id. J.P.’s speech therapist, Wahl, admitted that J.P. could pronounce about one-third of the letters of the alphabet pretty well. AR at 724. Wahl further testified that J.P. can say the words “open,” “more,” “hi,” and “bye.” AR at 720. But, she said “he is not really functionally communicating” with them and is probably unaware of their “communicative intent.” Id. When asked directly whether J.P. was communicating better than he had been in December, Wahl answered: “Communicating? He is vocalizing a lot more. Communication? No.” Wahl Tr. at 722. The Popsons further attest that J.P. is playing better with his siblings and performing some simple tasks, such as feeding himself, that he had not been able to do prior to the ABA/DTT program. AR at 100. J.P.’s public behavior has also improved significantly. AR at 121. III. DISCUSSION A. JURISDICTION AND STANDARD OF REVIEW “Any party aggrieved by the findings and decision” of a hearing officer “shall have the right to bring a civil action with respect to the complaint ... in a district court of the United States without regard to the amount in controversy.” 20 U.S.C. § 1415(i)(2)(A). In reviewing a hearing officer’s decision, the district court “shall receive the records of the administrative proceedings [and] shall hear additional evidence at the request of a party.” 20 U.S.C. § 1415(i)(2)(B). The district court then must “bas[e] its decision on the preponderance of the evidence, [and] grant such relief as the court determines is appropriate.” Id. When neither party has requested that the district court hear “additional evidence,” there is no new factual material to be presented. In that event, the motion for summary judgment becomes a procedural device, by which the parties ask the judge “to decide the case on the basis of the administrative record.” Hunger v. Leininger, 15 F.3d 664, 669 (7th Cir.1994). This is not to be confused with the typical pre-trial summary judgment procedure in which the court must consider the facts in the light most favorable to the non-moving party. Heather S. v. State of Wis., 125 F.3d 1045, 1052 (7th Cir.1997). Rather, under the IDEA, “[t]he party challenging the outcome of t