Smith v. Cheyenne Mountain School District 12 et al
ORDER. Plaintiff's claims are DISMISSED. Defendant Cheyenne Mountain School District 12's Motion for Summary Judgment 26 is DENIED. Defendant Cheyenne Mountain School District 12's Request for Telephone Status Conference 30 is DENIED at moot. Docket Nos. 18-4, 25, 25-1, and 25-2 shall be restricted at Level One. This matter is closed, by Judge Philip A. Brimmer on 3/8/18. (sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03390-PAB-KHR
CHEYENNE MOUNTAIN SCHOOL DISTRICT 12 and
COLORADO DEPARTMENT OF EDUCATION,
This matter is before the Court on plaintiff’s Verified Complaint [Docket No. 1],
plaintiff’s Opening Brief [Docket No. 18], Defendant Cheyenne Mountain School District
12’s Motion for Summary Judgment [Docket No. 26], 1 and Defendant Cheyenne
Mountain School District 12’s Request for Telephone Status Conference [Docket No.
30].2 Plaintiff appeals the State of Colorado, Office of Administrative Courts’ decision
dismissing her claims that Defendant Cheyenne Mountain School District 12 (the
“District”) failed to provide her minor son, R.S., with a free appropriate public education
(“FAPE”). Plaintiff’s claims arise under the under the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. The Court has subject matter
Pursuant to D.C.COLO.LAPR 16.1(b), “[m]otions for summary judgment shall
not be filed” in AP cases. Additionally, the motion for summary judgment [Docket No.
26] repeats the same arguments found in the same party’s response brief [Docket No.
20]. Accordingly, the Court does not further discuss the summary judgment motion and
will deny it.
Because this order resolves the case, the Court will deny the motion for a
status conference as moot. See Docket No. 30.
jurisdiction under 28 U.S.C. § 1331 and 20 U.S.C. § 1415(i)(3)(A). 3
I. FACTUAL BACKGROUND
R.S. is a school-age child with disabilities. He has been diagnosed with several
conditions that result in academic challenges for him. The primary disability identified in
R.S.’s Individualized Education Plans (“IEP”) is autism spectrum disorder. R. at 39, 74.
R.S. has also been diagnosed with attention deficit hyperactivity disorder (“ADHD”) and
hypotonia. R. at 27.
R.S. is a resident of the Falcon School District 49. R. 391, ¶ 2. In 2013, under
Colorado’s Public Schools of Choice Law, Colo. Rev. Stat. § 22-36-101 et seq. (the
“School Choice law”), R.S. applied to attend the Cheyenne Mountain Charter Academy
(the “Academy”) for the 2013-14 school year. R. at 392, ¶ 5. The Academy is located
in the District). Id. When they accepted R.S., the Academy and the District were both
aware that R.S. had an IEP that had been dev eloped while he was attending school in
Falcon School District 49.
Soon after the start of the 2013-14 school year, when R.S. was enrolled in
kindergarten, the Academy determined the R.S.’s preexisting IEP was insufficient to
meet his needs. R. at 392, ¶ 6. W ith the permission of R.S.’s parents, the Academy
reevaluated R.S. and developed a new IEP, dated November 7, 2013 (the “November
2013 IEP”). Id.; R. at 22. The November 2013 IEP included a behavior intervention
plan (“BIP”) and stated that R.S. “needs intensive support for instruction and
In light of plaintiff’s pro se status, the Court construes her filings liberally. See
Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 &
n.3 (10th Cir. 1991).
supervision for safety throughout his day which will be provided by special education
staff and/or paraprofessional on an individual and small group basis.” R. at 45, 53.
In early 2014, Ward Barr, the Academy’s Principal, had concerns about whether
the Academy would need to hire additional staff to provide one-on-one support to R.S.
during the 2014-15 school year, which would be R.S.’s first-grade year. R. at 392, ¶ 10.
Under Mr. Barr’s interpretation of the School Choice law, the Academy was not required
to re-enroll a student if it would have to hire additional staff. Id. Mr. Barr scheduled a
meeting to address this issue. Id., ¶ 11. On February 28, 2014, R.S.’s special
education teacher, Richard Tran, sent an email to plaintiff inviting her to attend the
meeting. R. at 393, ¶ 12. Mr. Tran’s email stated that the purpose of the meeting was
to “discuss the next steps in preparation for [R.S.’s] first grade year.” Docket No. 25-1
The meeting occurred on the morning of March 12, 2014. R. at 393, ¶ 13. Mr.
Barr, Mr. Tran, and Ms. Smith attended, as well as Karen Higgins, the District’s Director
of Special Education, and Amy Stephens, R.S.’s kindergarten teacher. R. at 393, ¶ 13.
At the meeting, Mr. Barr told Ms. Smith that R.S. “continued to require one-on-one
support to access general education and a high level of adult prompting” and that,
under the School Choice law, the District could “deny enrollment to students from
another school district if additional staff would need to be hired.” Docket No. 25-1 at 49.
Ms. Smith was also told that the Academy planned to “decrease the level of adult
prompting to see if [R.S.] could more independently access the general setting and
remain safe.” Id. Academy staff also told Ms. Smith that the IEP team was concerned
that R.S. was becoming dependent on prompting by his adult helper and that data
would be collected to determine “if the level of prompting needed [by R.S.] could be
decreased.” Id.; R. at 393, ¶ 14. Confronted with this, Ms. Smith “expressed concerns
that her child would be kicked out” of the Academy. Docket No. 25-1 at 49. The group
“tentatively set” a meeting for April or May 2014 to “review [the] IEP, BIP, and data
On March 18, 2014, Ms. Smith sent an email objecting to the plan to reduce
R.S.’s prompting. R. at 393-94, ¶ 18. Ms. Higgins responded to this email and called
Ms. Smith to explain that an aide would remain with R.S., but the aide would “fade” the
amount of prompting by gradually reducing the frequency of prompting to determine
whether the level of prompting needed by R.S. could be reduced. R. at 394, ¶¶ 19-20.
When the plan to fade prompting of R.S. was implemented, it quickly became
apparent that R.S. was dependent on the prompts and would not respond to his
teachers’ instructions without prompting from his aide. R. at 394, ¶ 22. Therefore, the
Academy ceased attempts to reduce the level of prompting provided to R.S. Id.
On May 1, 2014, an IEP Team meeting was held for R.S. R. at 394, ¶ 25. The
IEP team discussed the results from the plan to reduce prompting and developed a new
IEP for R.S. (the “May 2014 IEP”). Id. The May 2014 IEP stated that:
In order to access the general education curriculum, [R.S.] requires
continual redirection/prompting and frequent breaks to support sustained
attention to academic tasks. [R.S.] requires intensive one-on-one
paraprofessional support for academic Instruction, transitions, and to
ensure his safety throughout the entire day. Paraprofessional support is
needed at all times whenever [R.S.] is not receiving direct services from
special education staff[.]
R. at 73, § 13. R.S. completed the school year at the Academy under the May 2014
IEP, and he received extended school year services into the summer of 2014. R. at
395, ¶¶ 26, 28.
Ms. Smith sought to re-enroll R.S. at the Academy for the 2014-15 school year.
R. at 395, ¶ 29. However, on May 22, 2014, Colin Mullaney, the Academy’s executive
director, sent a letter denying R.S. enrollment. Id. He stated that, under the School
Choice law, the Academy could deny enrollment to an out-of-district student if the
school did not have staff to support that student and that the Academ y “would need to
hire additional staff to meet [R.S.’s] IEP.” R. at 76. On that basis, Mr. Mullaney stated
that the District was denying R.S. enrollment in the Academy. Id.
II. PROCEDURAL HISTORY
On July 16, 2014, R.S.’s parents filed a civil rights complaint against the
District. R. at 3-6. They alleged four IDEA violations, which were summarized
by the Administrative Law Judge (“ALJ”), Robert N. Spencer, as:
1. Failure to Appropriately Evaluate: Petitioners alleged that, at the IEP
meeting of November 7, 2013, the School District failed to adequately
assess and evaluate [R.S.’s] disabilities or adequately consider his need
for physical therapy and ABA therapy.
2. Failure to Appropriately Supervise: Petitioners alleged that the School
District failed to provide the level of supervision required by the IEP,
resulting in [R.S.] being “trapped” in a bathroom, being unable to
participate in field trips, and becoming “prompt dependent.”
3. Failure to Provide Appropriate Goals and Assessments: Petitioners
alleged that [R.S.’s] IEP failed to include appropriate goals to address
identified concerns. The goals that were established allegedly failed to
meet CDE standards and proper methodology was not employed to meet
the goals. Furthermore, Petitioners alleged that the School District failed
to inform them of [R.S.’s] progress in these goals as required by the IEP,
and that several goals were subsequently eliminated without explanation.
Finally, they alleged that the IEP was deficient because it did not explain
why [R.S.] could not participate in regular assessments given to his
classmates, but instead provided unjustified accommodations in mode
and duration of assessment.
4. Inappropriate Re-evaluation Leading to Denial of Enrollment: Finally,
Petitioners claimed that [the Academy] decided to re-evaluate [R.S.] in
March 2014 without providing the legally required prior written notice and
without their informed consent.
R. at 389-90 (emphasis original). R.S.’s parents also clarified that they did not “seek to
resolve any issue pertaining to [the Academy’s] decision fo refuse readmission to our
disabled son.” R. at 5, n.1.
On August 1, 2014, the District filed a notice of insufficiency and motion to
dismiss the complaint as unsupported by the evidence. R. at 9-20. On August 6, 2014,
the ALJ issued an order finding the complaint sufficient, but he reserved judgment on
the motion to dismiss. R. at 86-89. On August 19, 2014, the ALJ, without notifying the
parties that he intended to do so, converted the motion to dismiss into a motion for
summary judgment, found no genuine issue of material fact on the first three alleged
IDEA violations, and granted summary judgment on those allegations. R. at 126-31.
On September 17, 2014, the ALJ held a due process hearing on the remaining,
fourth allegation. R. at 390. On September 23, 2014, the ALJ issued a written
decision, finding that the “undisputed evidence . . . was that [R.S.] was never denied the
paraprofessional support required by his IEP, that he suffered no loss of educational
benefit as a result of the fading plan, and that he did make significant progress during
his kindergarten year both socially and academically.” R. at 399. The ALJ, therefore,
dismissed the complaint. Id. This appeal followed.
III. INDIVIDUALS WITH DISABILITIES IN EDUCATION ACT
The IDEA provides students with disabilities the right to a FAPE designed to
meet their needs. See 20 U.S.C. § 1400(d)(1)(A). The determination of whether a
FAPE has been provided turns in large part on the sufficiency of the IEP for each
disabled child. See, e.g., A.K. v. Alexandria City Sch. Bd., 484 F.3d 672, 675 (4th Cir.
2007) (“A school provides a FAPE by creating an [IEP] for each child.”). 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. See Urban v. Jefferson
County Sch. Dist. R-1, 89 F.3d 720, 726 (10th Cir. 1996). 4 Here, the plaintiff has not
challenged whether her child’s IEPs were substantively deficient, but rather focuses on
the District’s compliance with IDEA procedures in creating and implementing the
November 2013 IEP and in creating the May 2014 IEP.
A FAPE is “hardly self-defining.” Thompson R2-J School Dist. v. Luke P., ex rel.
Jeff P., 540 F.3d 1143, 1148 (10th Cir. 2008). “T o meet its substantive obligation under
the IDEA, a school must offer an IEP reasonably calculated to enable a child to make
progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F.
v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017). To determine whether a
FAPE was provided to plaintiff during the 2013-2014 school year, the Court “must ask
. . . whether [the] . . . IEP was ‘reasonably calculated to enable [him] to receive
educational benefits.’” Thompson, 540 F.3d at 1148-49 (quoting Bd. of Educ. v.
Rowley, 458 U.S. 176, 207 (1982)). “If the IEP was so calculated, the school district
Cf. Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982) (“[T]he congressional
emphasis upon full participation of concerned parties throughout the development of
the IEP, as well as the requirements that state and local plans be submitted to the
Secretary for approval, demonstrates the legislative conviction that adequate
compliance with the procedures prescribed would in most cases assure much if not all
of what Congress wished in the way of substantive content in an IEP.”).
can be said to have provided a FAPE; if not, then not.” Id. at 1149.5
IV. STANDARD OF REVIEW
Plaintiff, as the party challenging the procedures related to the IEP, bears the
burden of proof to show they were deficient. See Schaffer ex rel. Schaffer v. Weast,
546 U.S. 49, 62 (2005). In determining whether plaintiff has met her burden, the Court
“shall receive the records of the administrative proceedings;” “shall hear additional
evidence at the request of 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)(C). The Court reviews legal challenges de novo, without deference. See
O’Toole ex rel. O’Toole v. Olathe Dist. Schs. Unified Sch. Dist. No. 233, 144 F.3d 692,
699 (10th Cir. 1998). However, “though 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
In certain circumstances, if a FAPE has not been made available, parents are
entitled to enroll their children in private school and seek reimbursement of the costs.
Specifically, the IDEA provides:
If the parents of a child with a disability, who previously received special
education and related services under the authority of a public agency, enroll
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 the court or hearing officer finds that the agency had not made a free
appropriate public education available to the child in a timely manner prior
to that enrollment.
20 U.S.C. § 1412(a)(10)(C)(ii). Furthermore, the IDEA requires that disabled children
be educated in the “least restrictive environment” (“LRE”). 20 U.S.C. § 1412(a)(5)(A).
In other words, “[t]o the maximum extent appropriate,” disabled children should be
educated in public school classrooms alongside children who are not disabled. 20
U.S.C. § 1412(a)(5)(A).
proceedings, the fact findings of which are considered prima facie correct.” Thompson,
540 F.3d at 1150 (citation and quotation marks omitted).6
A. Failure to Join an Indispensable Party
As an initial matter, the Court addresses the District’s argument that plaintiff’s
claims must be dismissed because plaintiff’s husband, who participated in the
administrative proceedings, is not a party to this proceeding. The District argues that
“Scott Smith is not a party to this appeal, as required by Fed.R.Civ.P. 19(a)(I)(A) [sic],
and this appeal should therefore be dismissed for failure to join a necessary party.”
Docket No. 20 at 5. The District does not explain why “in [Mr. Smith’s] absence, the
court cannot accord complete relief among existing parties,” Fed. R. Civ. P. 19(a)(1)(A),
or why, even if that were true, it would be improper “in equity and good conscience” for
the case to proceed nonetheless. Fed. R. Civ. P. 19(b). Because this case concerns
primarily R.S.’s rights and there is no indication that Mr. Smith’s position is different
from plaintiff’s position with respect to their child’s rights, the Court finds that Mr. Smith
The Tenth Circuit describes this “somewhat unique standard of review” as a
“modified de novo standard.” Thompson, 540 F.3d at 1149 (citations and quotation
marks omitted). Thompson notes that, while the “modified de novo” standard of review
“represents the distinct minority position among circuit courts” and that “[e]n banc
reconsideration of [the] standard of review may well be appropriate,” the standard of
review would not affect the outcome in the case because its “disagreement with the
district court . . . is limited solely to the legal question [of] what consequences follow
under IDEA’s terms from its factual findings. Id. at 1150 n.6
The District repeatedly asserts that plaintiff’s “fundamental complaint” is
something other than the issues raised in this appeal, nam ely, the District’s decision to
deny enrollment to R.S. pursuant to School Choice law, Colo. Rev. Stat. § 22-36-101 et
seq. See, e.g., Docket No. 20 at 5. This argument is irrelevant to the issues before the
is not an indispensable party and that it would be proper to proceed even if he were.
The District claims that plaintiff failed to raise the arguments she now raises
during the administrative proceedings and argues that plaintiff should not be allowed to
raise such “completely new” arguments. Docket No. 20 at 11. In particular, the District
claims that plaintiff did not argue that the “District denied R.S. [a] FAPE by
‘predetermining’ that it would not provide him with paraprofessional support during his
first grade year,” id., and did not argue that R.S. became more prompt dependent. Id.
The District’s waiver claims are contrary to the record, which shows that plaintiff
raised both arguments during the administrative proceedings. While plaintiff does not
use the specific word “predetermined,” plaintiff’s due process complaint argues that the
District’s actions were part of a plan to remove R.S. from the school because the school
was unwilling to provide support for him. R. at 5. Plaintiff raised this issue again in her
preliminary injunction motion. R. at 61 (“Principal Barr further stated that if it was
determined, at the next IEP Team meeting that [R.S.] could not function in class without
his paraprofessional support that [the Academy] would probably not permit [R.S.] to
return to [the Academy] for first grade”).8 The due process complaint also claims that
R.S. “has become ‘prompt dependent’; [he] has been taught, inadvertently, by his
Additionally, the District’s counsel solicited testimony with the clear purpose of
showing that the decision to deny enrollment was not predetermined. Docket No. 25-2
at 131, ll. 16-20 (“Q. If it had been predetermined by the academy that it was going to
deny [R.S.]’s enrollment, why would it have had that language in the IEP? A. It wouldn’t
have.”). This belies the District’s claim that the issue of whether the decision to remove
R.S. was predetermined was not raised at the administrative proceedings.
support person to not engage in any given activity unless so prompted.” R. at 4. In his
summary of plaintiff’s claims, the ALJ recognized that one of plaintiff’s allegations was
that “the District failed to provide the level of supervision required by the IEP, resulting
in [R.S.] . . . becoming ‘prompt dependent.’” R. at 87. The Court finds that plaintiff did
not waive these issues; the arguments plaintiff presents on appeal are the same as
those raised generally in her due process complaint.
Moreover, plaintiff was denied an opportunity to develop her specific arguments
on these issues during the administrative proceedings. After the District filed a motion
to dismiss during the administrative proceedings, plaintiff declined to respond
specifically to that motion, stating that her arguments were contained in her preliminary
injunction motion.9 Then, without warning plaintiff that he intended to do so, the ALJ
converted the motion to dismiss into a motion for summary judgment and entered
summary judgment on three of the four violations alleged in the due process complaint.
R. at 131. The effect of conversion was that plaintiff was not able to present material
opposing summary judgment. If a court converts a motion to dismiss into a motion for
Plaintiff perhaps also relied on the ALJ’s earlier ruling denying dismissal and
holding plaintiff’s pleadings were sufficient. He found:
The District contends that the complaint is insufficient because it fails to
“include facts relating to the problem,” as required by 34 CFR
§ 300.508(b)(5). The ALJ cannot agree. With respect to each allegation,
Petitioners provide one or more examples of the alleged problem.
Although the District may dispute the factual accuracy of those
allegations, or contest that they amount to a denial of FAPE, those are
issues that cannot be resolved on the face of the complaint and therefore
do not amount to insufficiency.
R. at 88-89. The ALJ never reconsidered this finding or held that plaintiff’s due process
complaint did not state a claim.
summary judgment, the Colorado Rules of Civil Procedure require that “all parties shall
be given reasonable opportunity to present all material made pertinent to such a motion
by Rule 56”. Colo. R. Civ. P. 12(b); see also Horne Eng’g Servs., Inc. v. Kaiser-Hill
Co., LLC, 72 P.3d 451, 453 (Colo. App. 2003) (“W hen a court converts a motion to
dismiss for failure to state a claim to one for summary judgment, ‘[i]t is important that
the court give the parties notice of the changed status of the motion and a “reasonable
opportunity to present all material made pertinent to such a motion by C.R.C.P. 56.” In
this way no one will be taken by surprise by the conversion.’” (quoting 5A Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 1366 at 501-02 (2d
ed.1990), in turn quoting Fed. R. Civ. P. 12(b)(6)). No such notice with the related
opportunity to provide factual support was afforded to plaintiff.10 As is apparent in this
case, such notice is essential so that the parties can present the ev idence necessary to
carry the evidentiary burden that exists at summary judgment, but does not exist at the
pleadings stage. In granting summary judgment, the ALJ stated R.S.’s parents “could
not rest upon mere allegations,” which they would have been able to do for a motion to
dismiss, “but were required to provide evidence by affidavit or otherwise sufficient to
establish the existence of a genuine dispute.” R. at 130. W hile plaintiff does not raise
this issue in her appeal briefing, the Court is reluctant to find that plaintiff waived the
specific arguments she now presents on appeal because it is unclear what specific
The ALJ rejected plaintiff’s motion for reconsideration, finding that plaintiff had
an opportunity to respond because she was asked if she was “‘intending to file anything
more in opposition to that motion.’” R. at 177. Nowhere does the record indicate that
the ALJ gave the parties notice of his intent to convert the motion to dismiss into a
summary judgment motion, as required by Colo. R. Civ. P. 12(b).
arguments she would have made during the administrative proceedings if given a full
opportunity to develop the general allegations on the same issues contained in the due
C. Whether R.S. Was Denied a FAPE
In relation to the merits, the parties essentially dispute three issues: (1) whether
the District improperly failed to account for R.S.’s disabilities beyond autism in creating
the November 2013 IEP, (2) whether the District failed to provide proper support
leading to R.S. becoming prompt dependent, and (3) whether the District
predetermined R.S.’s placement for his first grade year. See Docket No. 18 at 6. The
Court addresses each of these issues in turn before deciding the ultimate question of
whether R.S. was denied a FAPE.
1. Failure to Evaluate R.S. for Additional Disabilities
Plaintiff argues that the November 2013 IEP improperly focused on R.S.’s autism
and did not account for his ADHD, Hypotonia, Sensory Processing Disorder, and
Obsessive-Compulsive Disorder. Docket No. 18 at 6. Plaintiff claims that the
Evaluation Report in the IEP “contained numerous examples of behaviors engaged in
by R.S. that are . . . strongly suggestive” of these conditions. Docket No. 18 at 8.
Plaintiff claims that, by failing to evaluate R.S. for additional conditions and to take them
into account in formulating the November 2013 IEP, the District violated the
requirement that children suspected of disability be assessed “‘in all areas of suspected
disability.’” Id. at 15 (quoting 20 U.S.C. § 1414(b)(3)(B)).
The District argues that, even though the November 2013 IEP did not mention
such additional conditions, it was designed to target the behaviors that plaintiff identifies
as resulting from those conditions. Docket No. 20 at 13. In particular, the District
points to the IEP’s focus on “Target Behaviors” such as “(1) leaving his seat and/or
running indoors; (2) loud laughing or babbling; [and] (3) wadding or tearing of school
materials” as “clear examples of ADHD-type behavior” that were addressed in the
November 2013 IEP. Id.
Although a failure to consider all of a student’s diagnoses could taint the IEP
development process and lead to a denial of a FAPE, there is little evidence that it did
so here. See, e.g., N.B. v. Hellgate Elementary Sch. Dist., ex rel. Bd. of Directors,
Missoula Cty., Mont., 541 F.3d 1202, 1210 (9th Cir. 2008). In partic ular, the Court is
persuaded by the District’s argument that, by being directed to R.S.’s behaviors, the
November 2013 IEP took into consideration issues presented by diagnoses beyond
R.S.’s “Primary Disability” of “13: Autism Spectrum Disorders,” which the IEP form
requires to be listed. R. at 39. The November 2013 IEP indicates that plaintiff made
the IEP team aware that R.S. had been diagnosed with ADHD and Hypotonia in
addition to Autism. Docket No. 18-2 at 5 (“Ms. Smith was interviewed in person to
support the development of effective behavioral strategies for [R.S.]. She reported
diagnoses of Autism, Attention Deficit Hyperactivity Disorder (ADHD), and Hypotonia.”).
And the November 2013 IEP’s BIP specifies numerous strategies directed at the
behaviors that plaintiff identifies in her briefing as characteristic of the diagnoses that
she claims the District failed to evaluate and consider. R. at 45-47. Thus, there is little
reason to believe that a failure to evaluate [R.S.] for conditions he has not been
diagnosed with or to specifically reference his other diagnoses prevented the November
2013 IEP from being “reasonably calculated to enable [R.S.] to make progress
appropriate in light of [his] circumstances.” Endrew F., 137 S. Ct. at 999; cf. N.B. v.
Hellgate Elementary Sch. Dist., 541 F.3d at 1210 (finding an IDEA violation because,
“without evaluative information that C.B. has autism spectrum disorder, it was not
possible for the IEP team to develop a plan reasonably calculated to provide C.B. with a
meaningful educational benefit throughout the 2003-04 school year.”).
2. Prompt Dependency
Plaintiff argues that the District’s failure to provide R.S. with an “aide who was
certified in techniques to prevent R.S. from becoming prompt dependent” led to him
becoming prompt dependent over the 2013-14 school year. Docket No. 18 at 10.
Plaintiff argues that “District was required, per the terms of his IEP, to provide R.S. with
a paraprofessional capable of assisting him without inducing prompt dependency,” but
did not do so. Id. at 18. Plaintiff further argues that the District has failed to reduce this
dependency, denying R.S. a FAPE. Id.
Other than arguing waiver as discussed above, the District does not respond to
plaintiff’s argument that the District failed to provided R.S. with aides capable of
avoiding prompt dependency. Docket No. 20 at 14-16. Rather, the District argues that
“no evidence was offered by Mrs. Smith during the due process proceeding that failure
to reduce the amount of prompting resulted in a denial of FAPE and she fails to offer
any ‘supplemental’ evidence in her Complaint or Opening Brief in this proceeding.”
Docket No. 20 at 16.
Because this issue is one of the alleged IDEA violations on which the ALJ
erroneously granted summary judgment, it is unsurprising that plaintiff did not develop a
significant record on this issue during the administrative proceedings. As a supplement
on appeal, plaintiff states in her affidavit that she expressed concern during the
development of the November 2013 IEP that “there was a likelihood that R.S. could
become ‘prompt dependent’ on one-on-one aides, and that prev entative measures
needed to be implemented, to assure that R.S. did not become dependent upon the
prompting of his aide.” Docket No. 18-5 at 2-3, ¶ 6. Plaintiff also claims to have
provided the Academy with a “comprehensive report from [R.S.’s therapists], describing
how prompts should be handled with R.S. so as to avoid him becoming prompt
dependent, and asked that R.S.’s aide be [Board] Certif ied [in Behavioral Analysis].”
Plaintiff claims that she was assured by Ms. Higgins that the “District was capable of
implementing an aide for R.S. without R.S. becoming prompt dependent.” Id.
In her affidavit, Ms. Higgins states generally that the “allegations [Ms. Smith]
makes in [her] affidavit are incorrect and inconsistent with the facts and her actions in
this matter.” Docket No. 20-1 at 27, ¶ 1. She acknowledges that “it would have been a
denial of a [FAPE] not to provide the 1:1 paraprofessional that the child needed.” Id. at
29, ¶ 9. Ms. Higgins states that Ms. Smith did not express “disagreement or
dissatisfaction with the evaluation or the November  IEP.” Id. at 28-29, ¶ 6. Ms.
Higgins does not, however, dispute that Ms. Smith raised concerns about prompt
dependency or that R.S. was provided with aides who were not special education staff
or paraprofessionals as required by the November 2013 IEP. See Docket No. 18-4 at
15 (“[R.S.] needs intensive support for instruction and supervision for safety throughout
his day . . . provided by special education staff and/or paraprofessional on an individual
and small group basis.”).
The administrative record tends to support plaintiff on this issue. Ms. Higgins
admitted that Ms. Smith raised concerns about R.S. becoming prompt dependent.
Docket No. 25-2 at 70, ll. 5-8. Ms. Higgins also testified that the aides were not special
education staff and that she did not know if they were paraprofessionals. Docket No.
25-2 at 56, ll. 13-19. Apparently uncertain about the qualifications of those providing
support, Ms. Higgins and other District employees generally referred to R.S.’s aides
simply as adults. Id. at 56, l. 25 to 57, l. 1 (“I know it was an adult that was providing
support.”), at 64, l. 7 (“Adult support was always in the classroom.”).11 But, while this
casts doubt on whether R.S.’s aides were paraprofessionals as called for in the IEP,
plaintiff provides no evidence that the aides were not paraprofessionals. The Court will
not make such an inferential leap in the face of the ALJ’s contrary conclusion. See R.
at 399 (“[R.S.] was never denied the paraprofessional support required by his IEP.”);
Garcia v. Bd. of Educ. of Albuquerque Pub. Sch. , 520 F.3d 1116, 1125 (10th Cir. 2008)
(“due weight must be given to the administrative proceedings, the fact findings of which
are considered prima facie correct” (internal citations and quotation marks omitted)).
Nonetheless, no party disputes the ALJ’s findings that Academy staff became
increasingly concerned about R.S.’s prompt dependency as the school year went on
and that they thought it “created an unacceptable level of dependence.” R. at 393, ¶ 14
(“[R.S.’s] teachers and support staff were concerned that [R.S.] was becoming overly
The two adults who provided support for R.S. are identified in the record,
Docket No. 25-2 at 165, ll. 3-14, but the record does not appear to contain any further
information about them.
dependent upon the prompting provided by his support team.”). Likewise, no party
disputes that, after the initial attempt to fade prompting was unsuccessful, the District
did not make further efforts to address R.S.’s prompt dependence. See R. at 394, ¶ 22.
3. Predetermination of Decision
Plaintiff claims that, leading up to the creation of the May 2014 IEP, the District
predetermined the level of services that it would provide to R.S. before holding an IEP
meeting. Docket No. 18 at 18-20. Plaintiff argues that the “District’s unilateral
predetermination to not provide R.S. with the paraprofessional services called for in his
IEP was an egregious procedural violation of the IDEA that seriously infringed on Ms.
Smith’s right to meaningfully participate in the IEP process, and constituted a denial of
a FAPE to R.S.” Docket No. 18 at 20.
The ALJ addressed claims that the process leading up to the creation of the May
2014 IEP was improper by dividing the issue into two parts: (1) whether the March 12,
2014 meeting was an IEP team meeting and (2) whether the District was required to
provide written notice of a plan to reevaluate R.S. prior to the meeting. See R. at 397.
The Court addresses these same issues in the context of analyzing whether the
District’s decision was predetermined.
a. March 12, 2014 Meeting
IEP Team meetings are a formal process through which an IEP is developed and
modified. 34 C.F.R. §§ 300.324(a)(1), 300.324(b)(1). As such, written notice is
required and required IEP team members must be in attendance. 34 C.F.R.
§§ 300.321(e), 300.322(b).
The ALJ found that the March 12, 2014 meeting was not an IEP Team meeting
because those who attended the meeting and testified stated that it was not a team
meeting and “no changes to [the] November 2013 IEP were discussed at the meeting
and none were implemented.” R. at 397. This conclusion is supported by the evidence
and not challenged by plaintiff on appeal.
b. Reevaluation of R.S.
Written notice must be given to the parents of a disabled child before the school
evaluates (or reevaluates) the child. 34 C.F.R. §§ 300.304(a), 300.503(a). Relev ant
here, the notice must include a description of the proposed evaluation, an explanation
of why the evaluation is proposed, a description of the procedures that will be used in
the evaluation, a statement about the parents’ procedural safeguards, information
about who the parents can contact to understand the procedural saf eguards, and a
“description of other options that the IEP Team considered and the reasons why those
options were rejected.” 34 C.F.R. § 300.503(b). A parent m ust consent to the
evaluation after he or she has “been fully informed of all information relevant to the
activity for which consent is sought.” 34 C.F.R. § 300.9; see also 34 C.F.R. § 300.300.
The ALJ found that R.S.’s aides’ fading of prompting was not an evaluation as
that term is defined. R. at 397-98. Under 34 C.F.R. § 300.15, an “ev aluation” is
defined as “procedures used . . . to determine whether a child has a disability and the
nature and extent of the special education and related services that the child needs.”
The ALJ based this finding on testimony by Ms. Higgins that prompting is itself an
instructional strategy. R. at 398; see also R. at 394 at ¶ 24. The ALJ analysis also
relied on a clarification to the definition of “evaluation” that is provided in 34 C.F.R.
§ 300.302: “The screening of a student by a teacher or specialist to determine
appropriate instructional strategies for curriculum implementation shall not be
considered to be an evaluation for eligibility for special education and related services.”
The ALJ concluded that, because R.S.’s parents “presented no ev idence to rebut Ms.
Higgins’ testimony that the fading plan involved only the instructional strategy used to
implement [R.S.’s] IEP, and not an evaluation of his eligibility for special education or
related services, . . . prior written notice and parental consent were not required.” R. at
398. This conclusion is in error even if the ALJ’s fact findings are assumed to be
Both the definition of “evaluation” and the exception look to the purpose for
which the child is being assessed. If the purpose is “to determine . . . the nature and
extent of the special education and related services that the child needs,” then it is an
evaluation. But if the purpose is merely “to determine appropriate instructional
strategies for curriculum implementation,” then it is not an evaluation. The purpose of
fade in R.S.’s prompting was unambiguously to determine whether he needed
prompting to participate in general curriculum, not whether prompting was appropriate
for R.S. As the ALJ correctly stated, the “goal” of defendant’s plan to fade prompting
“was to see if his related services, i.e. the intensity of his paraprofessional support,
could be modified in a way that would permit him to access the general education
curriculum with a degree of independence.” R. at 398. In fact, this understanding of
the purpose of the fading plan is spelled out in the notes from the March 12, 2014
meeting, which describe the plan as “decreas[ing] the level of adult prompting to see if
[R.S.] could more independently access the general setting and remain safe.” Docket
No. 25-1 at 49.
It is equally clear that the District was not seeking to determine whether
prompting was an appropriate instructional strategy for R.S.; the District already knew
that prompting was appropriate and there is no indication that the District q uestioned
that conclusion. The November 2013 IEP calls for prompting as an instructional
strategy in numerous places. See, e.g., R. at 28 (“Strategies that were generally
effective to improve work completion included repeating the directions with a
personalized prompt.”); R. at 45 (“staff may provide a verbal prompt using the first/then
approach”); R. at 50. The ALJ and the District point to no evidence that the purpose of
the fading plan was to reconsider the appropriateness of prompting.
The conclusion that the District’s purpose was to reevaluate R.S.’s needs is
reenforced by the outcome of the plan, which resulted in changes to the IEP’s
description of the services R.S. required. As the ALJ found, “the IEP Team discussed
the results of the fading plan, including the fact that [R.S.] continued to require intensive
one-on-one paraprofessional support.” R. at 394, ¶ 25. Based on the results of the
fading plan, the IEP team modified the IEP’s services delivery statement to state that
R.S. “‘requires continual redirection/prompting.’” R. at 394-95, ¶ 25 (quoting R. at 73.
Because the purpose of the fading plan was to determine R.S.’s needs, not
whether fading was an appropriate instructional strategy, the fading plan was an
evaluation within the meaning of 34 C.F.R. § 300.15. Accordingly, prior written notice
was required. 34 C.F.R. § 300.304(a). It is undisputed that the req uired notice and
consent procedure was not followed in this case. Rather, Mr. Tran sent plaintiff an
email stating that he wished to “discuss the next steps in preparation for [R.S.’s] first
grade year” prior to the March meeting and R.S.’s reevaluation. Docket No. 25-1 at 48.
Plaintiff does not, however, raise this lack of notice on appeal, but instead argues that
the decision was predetermined.
“Predetermination occurs when an educational agency has made a
determination prior to the IEP meeting, including when it presents one educational
placement option at the meeting and is unwilling to consider other alternatives.” Z.F. v.
Ripon Unified Sch. Dist., 2013 WL 127662, at *6 (E.D. Cal. Jan. 9, 2013) (citing Deal v.
Hamilton Cty. Bd. of Educ., 392 F.3d 840, 858 (6th Cir. 2004)). “A school district
violates the IDEA if it predetermines placement for a student before the IEP is
developed or steers the IEP to the predetermined placement.” K.D. ex rel. C.L. v. Dep’t
of Educ., Hawaii, 665 F.3d 1110, 1123 (9th Cir. 2011) (citations om itted).
“Predetermination violates the IDEA because the Act requires that the placement be
based on the IEP, and not vice versa.” Id. (citing Spielberg v. Henrico Cty. Pub. Sch.,
853 F.2d 256, 259 (4th Cir. 1988).
While the District’s evaluation of R.S. to determine his needs without the
required notice and consent procedures was improper, the fact that the District
undertook an investigation undercuts plaintiff’s claims that the District predetermined
R.S.’s placement or the level of services to provide R.S. There is no evidence
indicating that, when the March 12, 2014 meeting was held, any of the participants had
predetermined where R.S. would attend school the next year or what level of services
would be called for in R.S.’s case. Rather, as discussed above, the purpose of the
reevaluation was to determine whether R.S. could access the general curriculum with
less prompting and less paraprofessional support. All available evidence points to the
conclusion the District faded prompting in order to gather data that was then used to
determine the required level of prompting and corresponding level of required
Plaintiff argues that improper predetermination occurred here because the
District determined that it “would not provide paraprofessional support to R.S. in first
grade,” and plaintiff claims that whether R.S. could “receive this support in some other
school district is irrelevant.” Docket No. 21 at 7 (emphasis removed). While it may be
true that Principal Barr had decided that he would invoke the School Choice law if R.S.
required paraprofessional support during the next school year, plaintiff cites no authority
that such a decision constitutes improper predetermination under IDEA. Plaintiff does
not claim that the reexamination of R.S. was conducted in bad faith, i.e., that it was
designed as a pretext to deny R.S. re-enrollment. On the contrary, because the
November 2013 IEP already called for continuous one-on-one support, the decision to
reevaluate R.S. can be seen as an attempt to determine if he could get by with less
support and, thereby, remain in the District because additional staff would not need to
be hired. Hence, this is not a case where the “school district had decided to change the
disabled student’s placement before developing an IEP to support the change,” Deal,
392 F.3d at 857 (discussing Spielberg, 853 F.2d at 258-59), but rather an instance
where the District evaluated a disabled student and, based on the results of the
evaluation, developed an IEP that, in turn, influenced a placement decision. Thus,
while the District may have made decisions about the course of action it would take
depending on the evaluation’s results, plaintiff has not shown that the District violated
IDEA by predetermining the placement outcome before R.S.’s evaluation and the
development of the May 2014 IEP. See N.L. ex rel. Ms. C. v. Knox Cty. Sch., 315 F.3d
688, 694 (6th Cir. 2003) (“[S]chool evaluators may prepare reports and come [to an IEP
meeting] with pre-formed opinions regarding the best course of action for the child as
long as they are willing to listen to the parents and parents have the opportunity to
make objections and suggestions.”).
4. R.S. Was Not Denied a FAPE
Having addressed plaintiff’s claims individually, the Court turns to the ultimate
question of whether plaintiff has met her burden to show that R.S. was denied a FAPE.
As discussed above, the November 2013 IEP was not defective because it addressed
R.S.’s behaviors resulting from disabilities other than autism. While it is clear that R.S.
became more prompt dependent during the 2013-14 school year, there is no evidence
that becoming more prompt dependent prevented R.S. from receiving an appropriate
education. Rather, it is apparent from the November 2013 IEP and record evidence
that prompting was intended as an instructional strategy to allow R.S. to access the
general education curriculum. And prompting fulfilled this role and allowed R.S. to
respond to teacher instructions and benef it from the general curriculum. At the time,
plaintiff viewed the fade of prompting as a loss of an educational benefit to R.S. and
resisted the plan on that basis. R. at 38 (“Since [R.S.’s] individual support has been
faded, there has been a dramatic decline in both the quantity and quality of his
schoolwork, and I have serious concerns about [R.S.’s] safety and his ability to receive
an appropriate education if the support called for in his IEP is unilaterally withdrawn.”).
The way that the District initiated the reevaluation of R.S. by fading prompting was
procedurally improper, but this failing does not rise to the level that it alone can be
considered to have denied R.S. a FAPE. See Urban by Urban v. Jefferson Cty. Sch.
Dist. R-1, 89 F.3d 720, 726 (10th Cir. 1996) (“Technical deviations from the
requirements of section 1401(a)(20), such as the failure to include a statement of
transition services, do not render an IEP entirely invalid; to hold otherwise would exalt
form over substance.” (internal quotation marks omitted)); Thomas v. Cincinnati Bd. of
Educ., 918 F.2d 618, 625 (6th Cir. 1990) (finding the failure to provide a parent with
written notice of an IEP meeting was error of “technical noncompliance which did not
result in any substantive deprivation”). Notably, plaintiff did not oppose the decision to
continue to include prompting as an instructional strategy in the May 2014 IEP or seek
to have prompting reduced thereafter. Essentially, the reevaluation reaffirmed the
conclusion memorialized in the November 2013 IEP that prompting was an appropriate
instructional strategy to assist R.S. in accessing the general curriculum. Ideally R.S.
would have received support that would have allowed him to engage in his general
education classroom without becoming more dependent on prompts to do so. “But
Congress simply did not guarantee children ‘a potential-maximizing education.’”
Thompson, 540 F.3d at 1154 n.11 (citing Rowley, 458 U.S. at 197 n.21); see also
O’Toole, 144 F.3d at 701(“Neither the statute nor reason countenance Monday Morning
Quarterbacking in evaluating the appropriateness of a child’s placement.” (internal
quotation marks omitted)). Rather, IDEA is intended to allow a disabled student to
make “progress appropriate in light of [his] circumstances.” Endrew F., 137 S. Ct. at
999. Here, as the ALJ found, the evidence shows that, “[a]lthough [R.S.] did not
achieve all of his November  IEP goals, he made significant progress toward
those goals, both socially and academically.” R. at 395, ¶ 27. Ultimately, the Court
finds that R.S. was not denied a FAPE.
VI. COMPLIANCE WITH RULE 5.2
The Court has determined that several filings in this case violate Federal Rule of
Civil Procedure 5.2(a). The Court will order such filings restricted.
For the foregoing reasons, it is
ORDERED that plaintiff’s claims are DISMISSED. It is further
ORDERED that Defendant Cheyenne Mountain School District 12’s Motion for
Summary Judgment [Docket No. 26] is DENIED. It is further
ORDERED that Defendant Cheyenne Mountain School District 12’s Request for
Telephone Status Conference [Docket No. 30] is DENIED at moot. It is further
ORDERED that Docket Nos. 18-4, 25, 25-1, and 25-2 shall be restricted at Lev el
One. It is further
ORDERED that this matter is closed.
DATED March 6, 2018.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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