Endrew F. v. Douglas County School District RE-1

Filing 29

ORDER affirming the Administrative Court Agency Decision, by Judge Lewis T. Babcock on 9/15/2014. (eseam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE

Civil Action No. 12-cv-2620-LTB
Endrew F., a minor, by and through his parents and next friends, JOSEPH & JENNIFER F.,
Petitioners,
v.
DOUGLAS COUNTY SCHOOL DISTRICT RE 1,
Respondent.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter comes before me upon a request for appellate review of an Office of
Administrative Courts decision denying Petitioner’s claim under the Individuals with Disabilities
Education Act (the “IDEA”), 20 U.S.C. §§1400 and 34 C.F.R. §§300.500, et. seq. Petitioner,
Endrew F., through his parents, Joseph and Jennifer F., sought reimbursement for private school
tuition and transportation costs from Respondent, Douglas County School District RE 1 (the
“District”) pursuant to 20 U.S.C. §1412(a)(10)(C)(ii) and 34 C.F.R. §300.148(c). The
Administrative Courts Agency Decision, issued by an Administrative Law Judge (“ALJ”)
following a due process hearing, concluded that Petitioner and his parents were not entitled to
reimbursement on the basis that the District provided him a free appropriate public education
(“FAPE”) as is required by the IDEA. This appeal is fully briefed and ripe for disposition. After
consideration of the entire appellate record and the parties’ briefing, I AFFIRM.

I. BACKGROUND
Petitioner was born on September 28, 1999. At two years of age he was diagnosed with
autism, which is defined as “a developmental disability significantly affecting verbal and
nonverbal communication and social interaction . . . that adversely affects a child’s educational
performance.” 34 C.F.R. §300.8(c)(1)(i). “Other characteristics often associated with autism are
engagement in repetitive activities and stereotyped movements, resistence to environmental
change or change in daily routines, and unusual responses to sensory experiences.” Id. In 2003,
Petitioner was also diagnosed with Attention Deficit/Hyperactivity Disorder.
Petitioner struggles with the ability to communicate personal needs, emotions and
initiations, and does not engage or interact with others in social routines or play. He has
compulsive and perseverative behaviors that he has difficulty overcoming throughout the day
which, in turn, interferes with the learning environment. He also has many maladaptive
behaviors that interfere with his ability to participate, including: eloping, dropping to the
ground, climbing, loud vocalizations, perseverative language, and picking/scraping. In addition,
Petitioner presents with many severe fears – such as dogs, flies, and using a new or public
bathroom – which severely limits his ability to function in school or in the community. It is
undisputed that his diagnosis affects his ability to access education, and he is eligible for services
under the IDEA.
Petitioner attended school through second grade at Heritage Elementary, and then moved
to Summit View Elementary for third and most of fourth grade, both District schools. In May of
2010, during his fourth grade year, Petitioner’s parents decided to withdraw him from Summit
View and enroll Petitioner at the Firefly Autism House (“Firefly,” previously known as the Alta

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Vista School), a private school that specializes in the education of children with autism. It is
undisputed that Petitioner has been able to access education at Firefly where he is making
academic, social and behavioral progress. [Administrative Record “AR” Ex. 21] It is
Petitioner’s parents’ position that he stopped making meaningful educational/functional progress
in the District schools during his second grade year, and continuing until he withdrew from the
District prior to his fifth grade year, as evidenced by the lack of advancement in the goals and
objectives set out in his individualized education program (“IEP”).
Petitioner’s educational records start with his second grade IEP (May 10, 2007 to May
10, 2008) which sets forth six broad annual goals – Communication and Basic Language Skills,
Language Arts/Reading and Writing, Mathematics, Physical (Motor), and Self-Advocacy/Self
Determination – each implemented by detailed corresponding objectives. [AR Ex. 1]
Petitioner’s third grade IEP (April 30, 2008 to April 30, 2009) contained the same six annual
goals, but with modified objectives. [AR Ex. 2] The same is true for Petitioner’s IEP for the four
grade (April 14, 2009 to April 14, 2010) except that an annual goal was added in the area of selfadvocacy/self-determination related to increasing his independence. [AR Ex. 3]
In April 2010, the District developed an IEP for Petitioner’s fifth grade year. [AR Ex. 4]
This draft IEP was never implemented, however, as Petitioner withdrew from the District before
his fifth grade year, in May of 2010, and began attending school at Firefly. Thereafter, input
from Firefly was incorporated into a finalized IEP proposed by the District, which was presented
during a meeting on November 16, 2010, but was rejected by Petitioner’s parents. [AR Ex. 5]
Petitioner’s parents argue that he stopped making educational progress during his second
grade year in that no meaningful progress is recorded on his IEP for that year. They contend that

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Petitioner’s third grade IEP reveals that 21 of the 26 objectives identified in his second grade
IEP were discontinued or abandoned because he was not able to make adequate progress on
them. They further assert that Petitioner’s fourth grade IEP shows that most of the objectives
identified in his third grade IEP were likewise discontinued/abandoned because he was not able
to make adequate progress.
Petitioner’s parents also argue that the District failed to adequately address his
progressively disruptive behavioral issues that, in turn, resulted in his increased inability to
access the educational environment. It is undisputed that in his second grade year Petitioner
experienced escalating problem behaviors at school, including increased tantrums, yelling, and
crying, dropping to the floor and eloping from class. In third grade, following his transfer from
Heritage to Summit View Elementary, Petitioner’s social skills declined and his disruptive
behaviors increased. During Petitioner’s fourth grade year, his ability to function at school and
access the educational environment became noticeably worse. He bolted from the classroom
frequently and ran out of the school building and into the street on one occasion. He urinated
and defecated on the floor of the “calming room” twice. Petitioner’s problem behaviors included
climbing furniture, falling off furniture, hitting computers or TV screens, yelling, kicking others,
kicking walls, head banging, and asking others to punish him.
Petitioner’s second grade IEP includes a Behavior Intervention Plan (“BIP”) which, his
parents argue, addresses only one behavior (Petitioner’s fixation on a timer) and there is no
indication in the record that it was ever finalized or implemented, as it was stamped “draft” at the
top. [AR Ex. 1] His third grade IEP includes no BIP, although it noted that one is required, and
his fourth grade IEP includes a BIP, also stamped “draft,” that was not developed as a result of

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any functional behavioral assessment and only addresses two disruptive behaviors. [AR Ex. 3]
Petitioner’s parents contend that instead of implementing a BIP in response to his behavior
problems, the District began limiting his time in the general education classroom and increasing
the time he spent in the special education classroom. The proposed IEP for Petitioner’s fifth
grade year also did not include a BIP, although a meeting was scheduled with District specialists
to address Petitioner’s behavior issues. Petitioner’s parents assert that the District failed to
adequately address his disruptive behaviors which, in turn, prevented his access to education and
impeded progress on his educational and functional goals and objectives.
As such, it is Petitioner’s parents’ position on appeal that the final IEP presented by the
District in November of 2010 was not reasonably calculated to provide him with a FAPE, as it
was not substantively different than his prior IEPs that failed to evidence progress on his
educational/functional goals and, in turn, had failed to provide an appropriate education in the
past. Moreover, despite his maladaptive and disruptive behaviors that prevented his ability to
access education, the District failed to conduct a functional behavioral assessment, implement
appropriate positive behavioral interventions, supports or strategies, or develop an appropriate
BIP. Therefore, Petitioner’s parents rejected the educational placement and IEP proposed by the
District, and they unilaterally enrolled him at Firefly prior to the start of his fifth grade year.
II. PROCEDURAL HISTORY
Petitioner’s parents claim the District failed to provide him a FAPE, as required by the
IDEA, and so, they seek reimbursement for Petitioner’s private school tuition expenses and the
reasonable transportation costs incurred for his education at Firefly. After the District refused,
they filed a due process complaint with the Colorado Department of Education. A due process

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hearing was held before an ALJ with the Colorado Office of Administrative Courts on June 6-8,
2012. The ALJ issued an Agency Decision on July 9, 2012, in which she ruled in favor of the
District by concluding that the District provided Petitioner with a FAPE and, as such, did not
violate the IDEA.
Specifically, the ALJ found the evidence established that Petitioner made “some
measurable progress” towards the academic and functional goals in his IEPs during the time that
he was enrolled in the District, as well as on the IEP drafted for his fifth grade year. In so doing,
the ALJ noted that the District’s progress reporting was often minimal – in that many of the
entries were lacking in detail or contained only conclusory statements about whether Petitioner
was on target to meet the IEP goals and objectives – but concluded that “[w]hile the District’s
progress reporting could have been more robust and informative, the absence of more detailed
reports does not amount to a substantive denial of a FAPE.” Finally, the ALJ rejected
Petitioner’s parents argument that the District failed to comply with the IDEA by not performing
the appropriate behavior assessments or implementing a BIP. As a result, the ALJ concluded
that Petitioner and his parents did not meet their burden of establishing a claim for the costs of
the Petitioner’s unilateral private school placement under the IDEA.
Petitioner and his parents then initiated this action, pursuant to 20 U.S.C. §1415(i)(2)(A),
seeking review and reversal of the ALJ’s Agency Decision, and requesting an order awarding
them the costs associated with his education placement at Firefly incurred from May 10, 2010,
through the present. They also seek an order requiring the District to maintain Petitioner’s
placement at Firefly, at the District’s expense, until such time as the District provides an IEP that
is reasonably calculated to provide him with an FAPE as required by the IDEA.

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III. IDEA
The IDEA is a federal statute that provides students with disabilities the right to a FAPE
designed to meet their needs. 20 U.S.C. §1400(d)(1)(A). Central to the IDEA is the requirement
that local school districts develop, implement, and annually revise an IEP that is calculated to
meet the eligible student’s specific educational needs. Thompson R2–J Sch. Dist. v. Luke P., ex
rel. Jeff P., 540 F.3d 1143, 1148-49 (10th Cir. 2008); 20 U.S.C. §1414(d). Thus, the
determination of whether a FAPE has been provided turns in large part on the sufficiency of the
IEP for each disabled child. Tyler V., ex rel. Desiree V. v. St. Vrain Valley Sch. Dist. No. RE-1J,
2011 WL 1045434 (D.Colo. 2011)(unpublished)(citing A.K. v. Alexandria City Sch. Bd., 484
F.3d 672, 675 (4th Cir. 2007)).
Appropriate IEPs “must contain statements concerning a disabled child’s level of
functioning, set forth measurable annual achievement goals, describe the services to be provided,
and establish objective criteria for evaluating the child’s progress.” J.P. ex rel. Peterson v.
County Sch. Bd. of Hanover County, Va., 516 F.3d 254, 257 (4th Cir. 2008); 20 U.S.C. §1414(d).
Challenges to the adequacy of an IEP can take two forms, i.e., arguments that the IEP was
procedurally deficient or that it was substantively deficient. Tyler V. v. St. Vrain Valley Sch.
Dist., supra (citing Urban ex. rel. Urban v. Jefferson County Sch. Dist. R-1, 89 F.3d 720, 726
(10th Cir. 1996)); see also 34 C.F.R. §300.513.
As relevant here, the IDEA provides for the reimbursement from a public school district
when parents decide to enroll their disabled child in a private school without the consent of the
school district. Parents are entitled to such reimbursement if: (1) the school district violated the
IDEA; and (2) the education provided by the private school is reasonably calculated to enable
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the child to receive educational benefits. Thompson R2–J Sch. Dist. v. Luke P., supra, 540 F.3d
at 1148; see also 20 U.S.C. §1412(a)(10)(C)(ii)(“[i]f the parents of a child with a disability . . .
enrolls the child in a private elementary school or secondary school without the consent of or
referral by the public agency, a court or a hearing officer may require the agency to reimburse
the parents for the cost of that enrollment if [it] finds that the agency had not made a free
appropriate public education available to the child in a timely manner prior to that enrollment”);
34 C.F.R. §300.148(c).
In this case, it is undisputed that the education provided by Firefly is reasonably
calculated to enable the Petitioner to receive educational benefits. Thus, the sole issue is
whether Petitioner and his parents have met their burden to prove that the District violated the
IDEA by failing to provide Petitioner with a FAPE. To determine whether a FAPE was
provided, the Court must ask whether the IEP was “reasonably calculated to enable [him] to
receive educational benefits.” Thompson R2–J Sch. Dist. v. Luke P., supra, 540 F.3d at 1148-49
(quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)).
“If the IEP was so calculated, the school district can be said to have provided a FAPE; if not,
then not.” Id. at 1149.
As the Tenth Circuit has noted, this standard is not onerous as “Congress did not impose
upon the States any greater substantive educational standard than would be necessary to make
. . . access meaningful . . . [t]he intent of the Act was more to open the door of public education
to handicapped children on appropriate terms than to guarantee any particular level of education
once inside.” Thompson R2–J Sch. Dist. v. Luke P., supra, 540 F.3d at 1149 (quoting Bd. of
Educ. v. Rowley, supra, 458 U.S. at 192, 198)(rejecting the proposition that Congress sought to

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guarantee educational services sufficient to “maximize each child’s potential”). Rather,
Congress sought only to require a “basic floor of opportunity” aimed at providing individualized
services sufficient to provide every eligible child with “some educational benefit.” Thompson
R2–J Sch. Dist. v. Luke P., supra (quoting Bd. of Educ. v. Rowley, supra, 458 U.S. at 200); see
also Urban v. Jefferson County Sch. Dist. R–1, supra, 89 F.3d at 727 (requiring that the
educational benefit mandated by IDEA must merely be “more than de minimis”). Finally,
because the question is only whether the IEP is reasonably calculated – not guaranteed – to
provide some educational benefit, the measure and adequacy of an IEP can only be determined
as of the time it is offered. See Thompson R2–J Sch. Dist. v. Luke P., supra (quoting O’Toole ex
rel. O’Toole v. Olathe Dist. Schs. Unified Sch. Dist. No. 233, 144 F.3d 692, 701–02 (10th Cir.
1998)).
IV. BURDEN & STANDARD OF REVIEW
The parties challenging the IEP bear the burden of persuasion to show it was deficient.
Tyler V. v. St. Vrain Valley Sch. Dist., supra (citing Schaffer ex rel. Schaffer v. Weast, 546 U.S.
49, 62, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005)); see also Jefferson County Sch. Dist. R-1 v.
Elizabeth E. ex rel. Roxanne B., 798 F.Supp.2d 1177, 1183 (D.Colo. 2011).
In determining whether they have met their burden, the Court “shall receive the records
of the administrative proceedings;” “shall hear additional evidence” if requested by a party; and,
“basing its decision on the preponderance of the evidence, shall grant such relief as the court
determines is appropriate.” 20 U.S.C. §1415(i)(2). “[T]hough the statute specifies that review is
de novo, the Supreme Court has interpreted the requirement that the district court receive the
administrative record to mean that ‘due weight’ must be given to the administrative proceedings,

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the fact findings of which are considered prima facie correct.” Thompson R2–J Sch. Dist. v.
Luke P., supra, 540 F.3d at 1150 (citation omitted). The Tenth Circuit describes this “somewhat
unique standard of review” as a “modified de novo standard.” Id. at 1149; see also Tyler V. v. St.
Vrain Valley Sch. Dist., supra.
Thus, the District Court reviewing the final state administrative IDEA decision reviews
questions of law de novo. See O’Toole v. Olathe Dist. Schs. Unified Sch. Dist. No. 233, supra,
144 F.3d at 698. Otherwise, when the administrative record is fixed, the District Court conducts
a “modified de novo” review in that it “evaluate[s] the record, and determine[s] whether a
preponderance of the evidence indicates that the ALJ decision should be reversed.” Jefferson
County Sch. Dist. R-1 v. Elizabeth E., supra, 798 F.Supp.2d at 1184.
In their reply brief, Petitioner’s parents argue that I should afford the ALJ’s Agency
Decision, including her findings of fact, no weight at all because her decision was “entirely
conclusory,” it fails to substantiate her findings with reference to the evidence or citation to the
administrative record, and it neglects to specifically evaluate conflicting evidence or make
credibility determinations. However, they have provided me with no case law or authority
supporting this argument. Furthermore, while I agree that the written decision lacks specific
notation to the record, it contains all the relevant law and findings of fact necessary to support
the ALJ’s determinations. In fact, the decision is lengthy and quite thorough. While the ALJ
does not specifically address credibility issues or the inconsistencies in the evidence, it is clear
that she made such determinations in her findings.
Therefore, I reject Petitioner’s parents’ assertion that I should give no weight to the
ALJ’s decision. As discussed above, I review questions of law de novo, but I undertake a

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“modified de novo” review of the factual determinations in that I “independently review the
evidence contained in the administrative record, accept and review additional evidence if
necessary, and make a decision based on a preponderance of the evidence, while giving ‘due
weight’ to the administrative proceedings below.” Murray v. Montrose County Sch. Dist.
RE–1J, 51 F.3d 921, 927 (10th Cir. 1995). In so doing, I note that I have thoroughly read the
entire adminstrative record, including the transcript from the adminstrative due process hearing,
and I have based my decision on that record with due weight to the ALJ’s determinations of the
contested facts.
V. DISCUSSION
In their complaint, Petitioner’s parents assert that the District’s final proposed IEP (for
his fifth grade year) was both procedurally and substantively insufficient to provide Petitioner
with a FAPE in violation of 20 U.S.C. §1414 (which provides processes for evaluating and
implementing IEPs) and 20 U.S.C. §1412 (which sets forth the District’s obligation of providing
a FAPE to children with disabilities). Petitioner’s parents refer to: 1) the lack of past progress on
the goals and objective in Petitioner’s IEPs from 2007 through 2010 and, in turn, the inadequacy
of the IEP proposed for his fifth grade year; 2) the District’s failure to provide regular and
meaningful reports to Petitioner’s parents as to his progress; and 3) the District’s failure to
perform a functional behavioral assessment and develop an appropriate BIP for him. His parents
contend that the lack of progress on Petitioner’s IEPs, coupled with the failure of the District to
provide reporting and behavior assessment/intervention, and a proposed IEP that was a
continuation of that pattern, resulted in denial of a FAPE.
A. Lack of Progress on IEPs

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Petitioner’s parents first argue that his IEPs with the District reveal “an almost complete
lack of progress” starting with the IEP for second grade and continuing through the IEP
proposed for his fifth grade year. They contend that over that three year period (his second, third
and fourth grade years) Petitioner’s educational records, as well the record on appeal as a whole,
are “devoid of any demonstrable evidence that [he] made any measurable progress on the goals
and objective contained in his IEPs.” The District, in response, argues that while not always
consistent or as robust as the IEP team would have hoped, Petitioner did in fact make
educational/functional progress while enrolled in the District and under the IEPs developed for
him.
The IDEA mandates that school districts provide IEPs for all eligible disabled students,
“but then left the content of those programs entirely to local educators and parents, requiring
only that they include ‘a statement of measurable annual goals, including academic and
functional goals, designed to meet the child’s needs that result from the child’s disability to
enable the child to be involved in and make progress in the general education curriculum’ and
meet the child’s ‘other educational needs.’” Thompson R2–J Sch. Dist. v. Luke P., supra, 540
F.3d at 1151 (quoting 20 U.S.C. §1414(d)(1)(A)(i)(II)). As such, Congress established
procedures to guarantee disabled students access and opportunity, not substantive outcomes. Id.
(citing Bd. of Educ. v. Rowley, supra, 458 U.S. at 192, 197 n.21)(noting that Congress did not
guarantee children “a potential -maximizing education,” but rather some educational benefit).
Although the controlling question is whether, going forward, the IEP proposed by the District
was reasonably calculated to confer some educational benefit, past progress on the IEP goals
“strongly suggests” that when a proposed IEP is modeled on prior IEPs that had succeeded in

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generating some progress, the proposed IEP “was reasonably calculated to continue that trend.”
Thompson R2–J Sch. Dist. v. Luke P., supra, 540 F.3d at 1153.
Petitioner’s second grade IEP, beginning in May of 2007 and ending in May of 2008,
contains six broad academic/functional annual goals, with several corresponding objectives. [AR
Ex. 1] For example, it provides an annual goal that Petitioner will demonstrate basic language
and communication skills, and then lists six short-term objectives employed to meet that goal
such as that he will be able to express his desires and emotions when prompted, and he will make
eye contact with peers and teachers with minimal prompting. In the discipline of language arts,
an annual goal was that Petitioner will improve his writing skills. There are three listed
objectives to this goal; for example, the first one is that given a detailed picture, Petitioner will
write one complete sentence describing the picture independently. This objective contains a
criteria: (“3) performs activity with verbal/gestural cues”), a baseline: (“0) does not participate”),
and a method of measurement: (“Demonstration/Performance”). At the bottom of each
objective, there is a section to record quarterly progress, with a place to indicate “Level” and the
“Status,” as well as make a comment. A progress key defines Level 1 as “skill/behavior is rarely
or never demonstrated, therefore incomplete positive data is available,” up to Level 4 which is
that the “skill/behavior is generalized and transferred without prompts and is above expectation
of plan.” Petitioner’s second grade IEP contains twenty-six objectives, and each objective has a
progress report only for the period ending in the beginning of November 2007. Each reporting is
at a Level 2 (“skill/behavior is inconsistent with frequent prompts and is below expectation of
plan”) or Level 3 (“skill/behavior is consistent over time with few prompts and meets
expectation of plan”), and the status is either left blank or “[w]ill be continued.” [AR Ex.1] It is

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Petitioner’s parents’ assertion that no meaningful progress is recorded on his second grade IEP.
In his third grade IEP, for the period of April 2008 through April 2009, there are six
annual goals, and twenty-three listed objectives. [AR Ex.2] This IEP provides, in essence, the
same annual goals with adjustments in the implementing objectives. For example, for the goal of
demonstrating basic language and communication skills, the second-grade objective is to “make
eye contact with peers and teachers with minimal prompting,” while the third grade objective is
to “make and maintain eye contact with peers and adults” without prompting. The IEP for third
grade does not show progress reporting for most of the objectives, but does indicate progress
reporting for three periods for the objective “will use correct punctuation, capitalization and
spacing in his writing” and the objective of “[g]iven a variety of coins and dollars, [Petitioner]
will accurately count the money up to $5.00.” At each period the status is “[w]ill be continued,”
and the Level is at 3 or, in the case of his use of punctuation, capitalization and spacing, he went
down to a Level 2 as he “lost some independence in remembering to use correct conventions in
his writing.” It is Petitioners parents’ position that the objectives listed were merely carried over
from the past year with little or no increase in difficulty resulting, in turn, in no measurable
progress on Petitioner’s academic goals. Petitioner’s parents maintain that twenty-one of the
twenty-six objectives identified in his second grade IEP were discontinued or abandoned in his
third grade IEP because he was not able to make adequate progress on them.
In Petitioner’s fourth grade IEP, for the period of April 2009 through April 2010, there
are seven annual goals, and twenty-three listed objectives. [AR Ex.3] Again, the general goals
are the same except for the addition of a self-advocacy goal of “[i]ncrease[d] independence,”
with implementing objectives such as “independently follow along with morning and afternoon

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routines of packing and unpacking his backpack” and “[u]sing a work system, [h]e will increase
his independent worktime in a nonpreferred assignment.” The objectives related to his
continuing goals were again changed or modified. For example, the third grade IEP provides
that “[g]iven a variety of coins and dollars, [Petitioner] will accurately count the money up to
$5.00,” and his fourth grade objective requires that he then will “hand over the correct amount.”
The objective of learning his multiplication facts “from 0-10” in third grade is amended to
learning his multiplication facts “from 6-10.” The IEP for fourth grade provides progress
reporting for all four quarters, except in the areas of increased independence and improved social
skills, which have reporting in only three quarters. Several of the objectives were deemed at the
end of the year to be “completed,” while others were “modified,” “will be continued” or “no
longer appropriate.” The objectives all went up from a Level 2 to a Level 3 (or remained at a
Level 3 throughout the year) except in learning his division facts from 0-5 (where it was noted
that the focus was changed to mastering multiplication), and in increasing his independent work
time on a non-preferred assignment. His objective to respond with a relevant comment to others
did not increase above a Level 2. His parents again claim that Petitioner’s four grade IEP reveals
that most of the objectives identified in his third grade IEP were likewise discontinued or
abandoned because he was not able to make adequate progress.
In the initial IEP drafted for Petitioner’s fifth grade year, for the period of April 2010
through April 2011, his overall annual goals were altered in the areas of self-advocacy and social
interaction. [AR Ex. 4] The objectives not completed from his fourth grade IEP were continued
(particularly in the area of math), and additional objectives were added to address his
communication and basic language goal of “improv[ing] social communication skills in order to

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access the general education curriculum ” as well as his new goals to “learn and utilize age
appropriate coping strategies when feeling anxious and seek adult support when needed” and
“participate in a developmentally appropriate job in an educational setting.” Firefly used the
goals and objectives in this draft IEP to assess Petitioner’s status upon his enrollment in May of
2010, in order to determine his level of proficiency or progress on the objectives, based on the
measurement criteria provided. [Transcript Volume “TR” 2, pp. 238, 242-249, 293-94] By July
23, 2010, Firefly determined that Petitioner had mastered some of the draft IEP objectives,
including all four language arts objectives, and was “keeping goal” as to most of the objectives
that were not mastered, except in the communication and basic language skills objectives, which
were amended. [AR Ex. 12]
The finalized IEP proposed by the District, dated November 16, 2010, provides
essentially the same goals and objectives, except that his objectives for his social goals are
increased and more clearly defined. [AR Ex. 5] For example, his objectives of utilizing age
appropriate coping strategies and to participate in a developmentally appropriate job are
redefined to focus on “learn[ing] and utilizing strategies to improve social interactions with
adults and peers” and to “increase independence in an educational setting in order to demonstrate
decreased anxiety.” The majority of the implementing objectives contained more detail about
how they would be carried out and measured, as well as information related to Firefly’s
observations and data as to Petitioner’s current abilities to perform. For example, an objective to
improve his social communication skills was changed from demonstrating two appropriate
verbalizations during game play (simple board game, bingo, etc.) with at least one peer, to:
“[g]iven a structured small group setting, [Petitioner] will demonstrate 2 appropriate

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verbalizations, following a model/prompt, during game play (simple board game, bingo, racing
matchbox cars, etc.) with at least one peer.” The checkpoint criteria remained the same (of more
than or equal to 2 occurrences with less than or equal to 1 verbal prompt), but additional
information was added for measurement purposes (“[w]hen [Petitioner] engages in structured
play with a peer, he will make at least two appropriate comments or questions directed at the
peer and that are related to the situation”). In addition, his current status or ability to perform the
objective, as observed at Firefly, was indicated (Petitioner “does verbalize during game play;
however, his comments are often unrelated to the activity and are not directed at other people”).
Parents contend that this finalized IEP constitutes a continuation of the prior pattern revealing no
progress by Petitioner on his IEP goals and objectives. The finalized IEP was not accepted, and
Petitioner remained enrolled at Firefly where a new IEP was implemented using, at least in part,
the goals and objectives contained in the District’s final proposed IEP from the District. [TR 2,
pp. 298-306]
At the due process hearing, parents presented testimony from Anna Kroncke who
completed a neuropsychological evaluation of Petitioner for his parents after he enrolled in
Firefly in August of 2011. [AR Ex. 20][TR 1, p. 125] Ms. Kroncke testified that she reviewed
Petitioner’s academic records from the District (including the goals and objectives in his IEPs),
but she “wasn’t able to determine measurable progress.” [TR 1, pp. 138, 130, 154, 158-59, 162]
She explained that the goals and objectives in Petitioner’s IEPs were vague or hard to measure,
and the the progress reports lacked quantifiable data. [TR 1, pp. 140, 144-49, 150-51] She
concluded that it was her opinion that there was no evidence of academic progress. [TR 1, p.
165] On cross-examination, she admitted that minimal progress data was noted (such as the

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level of progress or that an objective was completed), and that additional information was
provided in narrative form, but that it was insufficient – in her opinion – to determine any
academic progress. [TR 1, pp. 186-87, 193-94, 196-200]
Petitioner’s special education teacher at Summit View, Amy Holton, testified that
Petitioner’s IEP goals from one year to the next were similar, but that the implementing
objectives were changed to accommodate his progress and usually included an additional task or
skill. For example, she testified that from his second grade IEP to his third grade IEP,
Petitioner’s writing objective was increased to add capitalization when working on correct
punctuation and spacing. [TR 2, pp. 341-44] With regard to the proposed IEP for Petitioner’s
fifth grade year, she testified that the objectives were again modified to add skills, such as the
ability to comprehend and follow directions from nonfiction (in addition to fiction) writing, in
order to make progress on his broad annual goals. [TR 2, pp. 373-382] When reporting on
Petitioner’s progress, Ms. Holton testified that she used raw data from the classroom – such as
her anecdotal notes, and data with percentages – in her “running log.” Then, at the reporting
periods, she would accumulate it and rate out his progress (via the level system) and indicate his
status towards completion of the objective (usually as “continued” or, at the end of the year,
“completed” if applicable). [TR 2, pp. 430-432] As the school year progressed, she usually rated
his progress on an objective at Level 3, which meant that he has not completed or mastered the
objective, but that he was on the right course or trajectory to be able to complete the objective
and in meeting the expectation plan. [TR 2, pp. 433-37] She testified that this reporting was
adequate, consistent with District practice, and was discussed with parents at the annual IEP
meeting. [TR 2, pp. 437-8, 440] Ms. Holton testified that it was her opinion that the objectives

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related to each goal were increased in each subsequent IEP. [TR 2, pp. 352-53, 360-61, 371-72]
The Director of Special Education for the District, Don Bell, testified that the District
declined parents’ request for reimbursement at Firefly because the District felt that it could
provide Petitioner with a FAPE in the least restrictive environment at Summit View because his
past IEPs had shown growth in his goals and objectives. [TR 3, pp. 482-3] He testified that the
progress reporting in Petitioner’s IEP met the required standard, although he admitted that he
would have hoped to have seen additional entries. [TR 3, pp. 490-91] When specifically asked
about the reporting in Petitioner’s fourth grade IEP, he admitted that the progress on a language
arts objective, as an example, contained “not as much [reporting] as I would like to see.” [TR 3,
p. 493] However, he further indicated that other places within the IEPs spoke to Petitioner’s
progress, and it was his opinion that the documents, when taken as a whole, provided sufficient
information to assess his educational growth. [TR 3, pp. 493-94] On cross-examination, Mr.
Bell indicated that the goals and objectives in the proposed fifth grade IEP from the District – in
the draft IEP in May of 2010 and the final proposed IEP presented in November 2010 – were
very similar and contained only “some slight” changes in either criteria or the actual wording of
the goal. [TR 3, pp. 488-89] He further testified that both Firefly and the parents, who had an
opportunity to provide input, did not object to the fact that they were similar goals and
objectives. [TR 3, p. 505]
Petitioner’s mother testified that although Petitioner never achieved his academic
potential, they did see some reading level improvements in third grade and some academic
progress in fourth grade. [TR 1, pp. 71, 74, 96-97] With regard to the proposed fifth grade IEPs,
however, she saw only a continuation of the past IEP pattern of no measurable increase in the

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goals and objectives required. [TR 1, p. 93]
My review of the record establishes that while the additions and modification in his IEP
objectives from year to year – including the IEP proposed for his fifth grade year – did not reveal
immense educational growth, they were sufficient to show a pattern of, at the least, minimal
progress. For example, his math objectives related to money were modified as follows. In his
second grade IEP the math objectives were: 1) given subtraction problems using numbers 1-12,
he will use manipulatives to accurately solve the problem; 2) given addition problems, he will
demonstrate adding whole numbers with regrouping with sums to 20; 3) he will identify and
state the value of coins; and 4) given coins, he will accurately count to one dollar. [AR Ex. 1] In
his third grade IEP the math objectives were: 1) given a variety of coins and dollars, he will
accurately count the money up to $5.00; 2) he will understand time related vocabulary and
concepts as it relates to the calendar; 3) when given a clock, he will indicate the time shown on
the face in quarter hours, five minutes and minute intervals; and 4) given a word problem, he will
be able to identify which operation (addition, subtraction or multiplication) to use to solve the
problem. [AR Ex. 2] In his fourth grade IEP the math objectives were: 1) given a variety of
coins and dollars, he will accurately count money up to $5.00 and then hand over the correct
amount counted; 2) when identifying an object he wishes to purchase, he will be able to answer
the question “is that enough?”; 3) he will understand time related vocabulary and concepts as it
relates to the calendar; 4) given an analog clock, he will be able to tell the correct time; 5) given
a word problem, he will be able to identify which operation (addition, subtraction, multiplication
or division) to use to solve the problem; 6) he will learn his multiplication facts 6-10; and 7) he
will learn his division facts 0-5. [AR Ex.3] And, in his final proposed fifth grade IEP the math

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objectives were: 1) given a variety of coins and dollars, he will accurately count money up to
$5.00 and then hand over the correct amount counted; 2) when identifying an object he wishes to
purchase, he will be able to answer the question “is that enough money?”; 3) given a word
problem, he will be able to identify which operation (addition, subtraction, multiplication or
division) to use to solve the problem; 4) he will learn his multiplication facts 6-12; and 5) he will
learn his division facts 0-5. [AR Ex.5]
While some of the objectives carried over from year to year, and some are only slightly
modified, it is clear that the expectation in the objectives are increased over time. Petitioner’s
past IEPs revealed a pattern of some progress on his education and functional goals, and that the
proposed IEP for the fifth grade continues that pattern. Thompson R2–J Sch. Dist. v. Luke P.,
supra, 540 F.3d at 1153 (past progress on the IEP goals “strongly suggests” that when a
proposed IEP is modeled on prior IEPs that had succeeded in generating some progress, the
proposed IEP “was reasonably calculated to continue that trend”). I disagree with Petitioner’s
parents’ argument that the modifications were insufficient to show any meaningful progress.
Rather, I agree with the ALJ that Petitioner made progress towards his academic and functional
goals in his IEPs and although this does not mean that he achieved every objective, or that he
made progress on every goal, the evidence shows that he received educational benefit while
enrolled in the District. As such, Petitioner’s parents have failed to show that the District’s IEPs
– both past and proposed for the future – were not reasonably calculated to provide him with
some educational benefit. Thompson R2–J Sch. Dist. v. Luke P., supra, 540 F.3d. at 1150
(whether a proposed IEP was reasonably calculated to enable a child to receive education
benefits requires only a “basic floor of opportunity aimed at providing individualized services

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sufficient to provide every eligible child with some educational benefit”).
B. Failure to Provide Progress Reports
Petitioner’s parents also contend that they were not provided adequate progress reports as
required by the IDEA. They argue that a failure to provide periodic progress reports can amount
to a substantive violations of the IDEA which, in turn, denies parents an opportunity to
meaningfully participate in meeting to develop their child’s IEP. In support of this argument,
Petitioner’s parents cite to Escambia County Bd. of Educ. v. Benton, 406 F.Supp.2d 1248, 127374 (S.D.Ala. 2005), in which a District Court in the Southern District of Alabama deferred to the
Hearing Officer’s finding of adverse impact when the “dates of mastery are either excluded from
IEPs or jotted in as a pro forma afterthought at year’s end [as] the IEP team ‘cannot determine
the progress that the child has been making during the school year’ towards achieving annual
goals and whether adjustments to the program might be necessary.” Id. The District, in
response, concedes that the progress reporting on the IEPs in this case – especially on
Petitioner’s second grade IEP – was lacking in details, but argues that the reporting was
sufficient to assess his progress. The District notes that there was constant informal
communication between the school and the parents on Petitioner’s progress, and there is ample
evidence that Petitioner’s parents participated in his education. The District contends that
Petitioner’s parent were aware of his progress, as evidenced by their role in modifying his IEP
goals and objectives.
At the due process hearing, Petitioner’s mother testified that she could not recall ever
seeing or being provided with “any kind of quantitative data on either his progress or
achievements with regard to his goals” beyond the reporting on his IEPs. [TR 1, pp. 68, 74, 85-

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88, 121] She also testified that the progress notes on the IEPs did not provide her with
information about whether or not he was progressing towards completing the objectives. [TR 1,
pp. 117-122] However, on cross-examination she indicated that she did receive the IEPs for
each year which indicated the goals and objectives, the level/measure of success on each goal,
his current function with regard to that goal and where he was on the progress. [TR 1, pp. 10004] She also testified that if she was confused about any reporting or information on the IEP, she
had opportunities to ask for clarification both during the IEP meetings and in between, and that
she had asked questions and provided input, but did not express any disagreement with the IEPs
becuase she had hoped then would work. [TR 1, pp. 103, 110]
The record is clear that there was significant informal communication with the parents as
to Petitioner’s progress. [TR 1, pp. 72, 109] Petitioner’s mother testified that she had regular
communication with Ms. Holton in which she expressed her concerns about Petitioner’s
deteriorating behaviors and how that was, at least in part, overshadowing his academics. [TR 1,
p. 55] In addition, Ms. Holton implemented a back-and-forth notebook with his parents in order
to address behavior issues and report how Petitioner performed at school. [AR Ex. J][TR 1, p.
55][TR 2, pp. 384-5] Although Petitioner’s mother testified that there was not much
communication about his academic progress [TR 1, pp. 85-87], there is evidence that Petitioner’s
parents provided feedback about their concerns related to the educational/functional objectives in
his IEPs. [TR 1, pp. 110-11, TR 2, pp. 358, 390-91] In April of 2009, Petitioner’s mother
provided significant input about her desired goals for his next school year including a breakdown
of the academic and functional goals she believed should be continued, modified, dropped or
added. [AR Ex. G]

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Furthermore, Ms. Holton testified that Petitioner’s parents received a copy of the IEPs,
including the notations of progress reporting, each year at the annual IEP meeting. She further
testified that three times a year she reported on his progress on the IEP goals and objectives,
which were copied and sent home with his report card in Petitioner’s daily take-home folder in
his backpack. In addition, she testified that she notified Petitioner’s parent that the report card
and IEP report would be coming home in case they got lost from Petitioner’s backpack. [TR 2,
pp. 408-411, 413] Finally, Ms. Holton testified that Petitioner’s parents did not complain that
the goals/objectives in IEPs where inappropriate [TR 2, p. 346], and they were made aware of his
end-of-year progress (close-out reporting) with his IEP objective each year at the formal IEP
meeting for next year. [TR 2, pp. 331, 476-77]
As a result, I reject the Petitioner’s parents’ argument that the record is “devoid of any
written data or information about [his] work on or progress towards that goals and objectives
contained in the IEPs” and that this “violates the IDEA and makes it impossible for [his parents]
to participate in [his] educational programming in any meaningful way.” First, as noted by the
District, the IDEA requires only periodic reporting on the progress the student is making toward
meeting his or her IEP annual goals, and while the IEP must contain description of when those
reports will be provided, there are no specific legal requirements about the frequency or content
of the reports. See 34 C.F.R. §300.320(a)(3)(IEPs require a description of how the child’s
progress will be measured, and when “periodic reports on the progress the child is making . . .
will be provided). In addition, there is record evidence that Petitioner’s parents received the
quarterly IEP reporting which was sufficient for them to participate in the process as evidenced
by their continued formal and informal communications about his progress. Although the IEPS

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in Petitioner’s second and third grade years are missing many of the quarterly progress reports,
and those included were conclusory as to whether he was on course of meeting the objectives, it
is undisputed that progress was reported at the annual IEP meeting and that parents were in
constant informal communication about his progress. Therefore, I find that Petitioner’s parents
have not met their burden to prove that the lack of progress reporting resulted in a denial of his
FAPE.
C. Failure to Perform a Behavioral Assessment and/or Intervention Plan
Finally, Petitioner and his parents contend that the IEPs were deficient in that they failed
to adequately address his behavioral problems because the District did not conduct a functional
behavior assessment, or implement an adequate BIP. They argue that this failure resulted in an
escalation of his disruptive behaviors, thereby preventing him from making any meaningful
progress on his educational/functional goals and objectives in his IEPs and, as such, he did not
receive a FAPE. The District asserts that the IDEA does not require either, except in
circumstances not present here, as there is no evidence in the record that Petitioner’s placement
was changed, or that he was removed for more than ten days, due to disciplinary actions. See 34
C.F.R. §300.530(d)(1)(ii)(requiring an functional behavior assessment “as appropriate” when a
student has been removed from a current placement for more than 10 days due to disciplinary
infractions). Rather, the IDEA requires only that the IEP team consider interventions to address
behavioral issues. 20 U.S.C. §1414(d)(3)(B)(i)(in the case of a child whose behavior impedes
the child’s learning, the IEP team shall “consider the use of positive behavioral interventions and
supports, and other strategies, to address that behavior”); see also 34 C.F.R. §300.324(a)(2)(i).
Moreover, the District asserts that Petitioner’s second grade IEP did, in fact, include a BIP (as

25

was found by the ALJ)[AR Ex. 1], as did his fourth grade IEP [AR Ex. 3], and that another
behavior assessment and plan was in progress at the time Petitioner withdrew from the District
and enrolled at Firefly. Finally, it notes that the record is clear that it regularly addressed
behavioral issues, as they arose, with the cooperation of Petitioner’s parents.
It is undisputed that Petitioner’s behavioral issues interfered with his ability to learn. [TR
1, pp. 109, 138][TR 2, pp. 254-59, 382-87] Ms. Holton testified that her interventions with
Petitioner’s escalating disruptive behaviors were not effective, but that she was in the process of
addressing them with the District. [TR 2, pp. 387-89] After graphing patterns of Petitioner’s
behavior during his fourth grade year – such as the specific behavior, the circumstances, and the
time of day – Ms. Holton testified that she was unable to discern causation and, as such,
scheduled a meeting with the District Autism Specialist and the Behavior Specialist. [TR 2, pp.
387-389, 391-93, 461, 464] Ms. Houston testified that by the time they drafted Petitioner’s IEP
for his fifth grade year, they had scheduled a separate behavior meeting to address and change
Petitioner’s behavior plan. [TR 2, 382-83] Although this meeting with the specialists did not
occur, because Petitioner had previously withdrawn from the District, the IEP team met to
document their data and to formulate an initial plan regarding Petitioner’s behavioral issues. [TR
2, p. 393][TR 3, pp. 465-68][Ex. F] On cross-examination, Ms. Holton testified that she was not
aware, aside from her anecdotal classroom data, if other behavioral data was collected by the
District in order to create either a BIP for Petitioner. [TR 3, 449-452]
I agree with the District that the record reveals that it was addressing Petitioner’s
behavioral issues, in order to allow him better access to education, and that Petitioner’s parents
were involved in the management thereof. Whether or not the District failed to conduct a

26

functional behavioral assessment or implement a BIP in this case, at any particular or specific
time, is mainly irrelevant to this decision as the Petitioner does not dispute that the IDEA does
not require such assessment or plan. Rather, I am to determine whether the District’s approach
to managing Petitioner’s behavior, in order to allow him to effectively learn, failed to provide
him with a FAPE. The evidence of record is that the District was, at the very least, addressing
Petitioner’s behavioral issues and that a new behavior plan was deemed necessary and was in
progress at the time that Petitioner withdrew from the District. As a result, I find that despite the
District’s inability to manage Petitioner’s escalating behavioral issues at the time of his
withdrawal, it was in the process of reassessing his BIP in order to address the issue. As such,
Petition has not met his burden of proving that his was denied a FAPE.
VI. CONCLUSION
Because Petitioner and his parents have failed to meet their burden to prove that the
District violated the IDEA by failing to provide Petitioner a FAPE, they are not entitled to
reimbursement of his tuition and transportation costs to attend school at Firefly under 20 U.S.C.
§1412(a)(10)(C)(ii) and 34 C.F.R. §300.148(c).
ACCORDINGLY, for the foregoing reasons, I AFFIRM the Administrative Court
Agency Decision.

Dated: September 15 , 2014, in Denver, Colorado.
BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE
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