M. et al v. Harrison School District No. 2

Filing 32

MEMORANDUM OPINION AND ORDER By Judge Richard P. Matsch on 12/12/2018. (ktera)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No.18-cv-00085-RPM
NATHAN M., a minor, by and through his parents and next friends, AMANDA M.,
Plaintiffs,
v.
HARRISON SCHOOL DISTRICT NO. 2,
Defendant.
_____________________________________________________________________
MEMORANDUM OPINION AND ORDER
_____________________________________________________________________
Invoking the jurisdiction provided by the Individuals With Disabilities Act (IDEA),
20 U.S.C. § 1415(i)(2)(A), Amanda M. asks this court to reverse the decision of an
Administrative Law Judge (ALJ) permitting the defendant Harrison School District No. 2
(“District”) to remove her son, Nathan, from Alpine Autism Center (Alpine) and place him
at Otero Elementary School (Otero) pursuant to an individualized education program
(“IEP”) adopted on December 13, 2016. Alpine is a private, non-profit center-based
program providing services to students with autism spectrum disorder (ASD) using the
principles of applied behavior analysis (ABA). Nathan, born on May 13, 2006, was
diagnosed with ASD before age 4.
In review of the Agency Decision this Court applies a “modified de novo”
standard. The statute at 20 U.S.C. § 1415(i)(2)(c) requires that the court (1) receive the
record of the administrative proceedings; (2) hear additional evidence at the request of
a party, and (3) base its decision on the preponderance of the evidence. The

administrative record has been reviewed, including a transcript of the ALJ hearing
testimony. The SCO decisions have also been read and a Report of Psychological
Evaluation by Dr. Elizabeth F. Bruno, done at Parent’s request in September, 2017, and
signed on October 23, 2017. It was not before the ALJ in the hearings held beginning
on October 2, 2016. The report has been considered as additional evidence.
From this record this Court makes the following findings by a preponderance of
the evidence resulting in the conclusion that the Plaintiff has failed to prove that the
December 13, 2016, FAPE did not comply with the requirements of the IDEA.
To comply with its statutory obligation to provide a FAPE the District placed
Nathan at Alpine for kindergarten in 2012 and he has been in that program continuously
since then. Three other District students have been there. In April, 2014, the District
proposed changing placement for all four students in public schools as a result of IEP
meetings with their parents. An IEP meeting is required to determine an appropriate
FAPE. There are distinct procedural requirements for IEP meetings. Parents are to be
active participants with District personnel with knowledge and experience with special
education for disabled students.1
The parents of all four students objected and filed complaints with the Colorado
Department of Education. Those complaints were referred to a State Complaint Officer
(SCO) who determined that the District failed to obtain adequate information about the
students because it predetermined the placements. As a result Nathan and the other
students remained at Alpine.

1

The statute sets requirements for the composition of an “IEP Team”, 20 U.S.C. §1414(d)(1)(B).

2

In February, 2016, the District began the process of preparing a new IEP for
Nathan. A pre-evaluation meeting was held on February 19, 2016, attended by Parent
and her advocate, Crystal Morgan. Amy Lloyd, District Special Education Director,
attended with school psychologist, Gregory Rossi, along with a social worker/mental
health professional, a special education teacher, two speech language pathologists and
the principal of the home school, Stratmoor Hills Elementary School. Parent presented
her agenda and received assessment documents to be completed. The District
conducted assessments which Parent attended and emailed questions to Rossi who
provided answers with assistance from the assessment team members. No one from
Alpine participated in the assessment process.
Pursuant to an advance notice a meeting was held on April 19, 2016, to discuss
the assessment results. Parent and her advocate attended with Lloyd, Rossi and the
other people from the District who were at the pre-evaluation meeting.
The District’s psychoeducational evaluation and functional behavioral
assessment were given to Parent. The latter was based on responses to
questionnaires by Parent, Alpine teachers and formal observations by the District’s
evaluation team.
A Determination of Eligibility for special education services was signed by the
team members. Parent and her advocate were at this meeting. There was no Alpine
teacher in attendance because no invitation had been made by Parent or the District.
At some time after this meeting Parent met with Rossi to get more information about the
assessment protocols and results which Rossi provided.

3

Nathan was diagnosed with ADHD in 2012. That was not included in the
assessments or in the IEP meetings discussions because Parent had not told the
District about the ADHD diagnosis and it was not in the information from Alpine.
The first scheduled meeting to develop a new IEP based on the evaluation was
held on May 19, 2016. Parent attended with two advocates and presented a detailed
agenda to discuss her concerns about the assessments and a need for more meetings.
The District’s representatives were the same as before. A facilitator was present to
moderate the proceedings. Alpine was invited but no one from it was available to attend.
Parent was not satisfied that all of her questions had been answered and wanted
more meetings.
The next IEP meeting was held on September 9, 2016. In the interval between
meetings Rossi was replaced by Dr. Sabrina Jack, another school psychologist who
was briefed by Rossi. Dr. Jack observed Nathan at Alpine in June and she read
quarterly reports about Nathan from Alpine as well as the evaluation report. Rhonda
Berry replaced the former facilitator because Parent was concerned that she was a
District employee and may have been biased. Both parents attended with two
advocates. Dr. Jack, Lloyd and the other District representatives were there. Two
teachers from Alpine attended. Cara Krzemien, Nathan’s lead teacher, was one of
them. The meeting lasted over two hours.
A separate meeting was held on September 19, 2016, at Parent’s request made
at the September 9 meetings to obtain more information about the protocols used in the
evaluations. This was not an IEP meeting. The District was represented by Dr. Jack,

4

Terran Allen, a speech pathologist, and Nancy Morin, an occupational therapist. Some
three hours were spent answering Parent’s questions.
The next IEP meeting was held on November 11, 2016, pursuant to notice dated
November 7. On November 8 Parent sent an email saying that all of her questions had
not been answered on September 19 and submitting additional questions to be
answered before the IEP meeting. Both Jack and Allen provided written responses on
November 9.
The November 11 meeting was facilitated by Berry and attended by Parent and
two advocates; two representatives from Alpine; and, from the District, Lloyd, Jack, a
general education teacher, a special education teacher, a speech language pathologist,
an occupational therapist, two representatives from the transportation department, and
the principal of Stratmoor Hills Elementary. Parent submitted a lengthy updated agenda
expressing numerous detailed concerns and complaints that her questions and requests
for information had not been fully answered, and requesting additional information.
Lloyd testified that this meeting lasted around three hours, during which Parent
and her advocates were fully allowed to participate, their questions were answered, and
they were affirmatively asked for input.
The team began a discussion of the goals to be included in Nathan’s IEP,
beginning with draft goals that had been prepared by some District IEP team members
earlier in 2016 and that were sent out to Parent and Alpine in advance of the meeting.
Alpine provided additional information on some of the goals reflecting that Nathan had
progressed in some areas, and the team agreed that because of changes in Nathan’s

5

baseline since the previous spring, Alpine and District members would provide new
information and some of the goals would be updated.
Parent testified to her frustration that the baseline information used to prepare
the draft goals was outdated, and that she had to forcefully urge the District team
members to revise them to make them appropriate for Nathan’s current needs.
Berry, the facilitator, testified that emotions were higher at this meeting, including
Parent crying and her advocate raising her voice, but that IEP team members from the
District remained calm and compassionate.
Parent and her advocate also requested an Independent Educational Evaluation
(IEE) near the conclusion of this meeting, expressing concerns that the reevaluation
conducted by the District earlier in 2016 was incomplete and inadequate.
On December 5, 2016, occupational therapist Morin, speech pathologist Allen,
and psychologist Dr. Jack went to Alpine to observe Nathan pursuant to the decision at
the November 11 IEP meeting to update their information on his current status. In
addition to observing Nathan, Morin obtained work samples from Alpine staff. Dr. Jack
shared the results of her observations with Parent on December 13, 2016. Morin’s and
Allen’s observations were used to update Nathan’s motor and language goals as stated
in the updated IEP at the next meeting.
The next IEP meeting was scheduled for December 13, 2016. On December 12
2016, Parent sent two emails to the District team members expressing her concerns
that she was not able to provide adequate input because the answers to her questions
were incomplete and she added new questions for each team member to answer.

6

A four-hour IEP meeting was held on December 13, 2016, with Berry as
facilitator. Parent was there with her two advocates. Alpine had two representatives in
attendance with all of the District team members. After discussion of Nathan’s status
and needs the District team proposed that Nathan be placed in an autism program at
Otero Elementary School and also be allowed to access a program called
Communications and Social Development (CSD) if needed to achieve behavioral and
socialization goals. Parent, her advocates and the Alpine representatives asked that he
remain at Alpine. The District team explained that at Otero Nathan would be given
academic instruction at a higher level and be able to associate with non-disabled
students. The school’s location being much closer to home would eliminate the long
bus ride that was required to go to Alpine.
The District’s proposal was embodied in a written IEP and a Behavioral
Intervention Plan (BIP) with a written notice, all dated December 13, 2016.
Parent signed the plan with her written rejection of the IEP on that day.
This December 13, 2016, IEP is the subject of this litigation.
The District prepared to go forward with the December 13, 2016, IEP sending a
notice to the Parent on January 6, 2017, that a meeting would be held at Otero on
January 17 at noon to begin planning for the transfer from Alpine to Otero. A reminder
was sent on January 13, 2017. On the morning of the scheduled meeting Parent sent
an email to Lloyd saying the notice did not give the address of Otero, that she thought it
was to be another IEP meeting and that she could not attend. Lloyd had sent Parent
copies of the IEP, BIP and Prior Written Notice (PWN) on December 14, 2016, with a

7

formal offer of FAPE and an explanation of parent rights. Parent acknowledged receipt
of these documents on January 10, 2017, repeating her view that the IEP was not
appropriate for Nathan and that she had rejected it at the meeting on December 13,
2016. The transition meeting was held without the Parent present.
Parent filed a complaint with the Colorado Department of Education on February
10, 2017, resulting in an SCO decision on April 11, 2017, concluding that the District
failed to develop the IEP in accordance with the procedural requirements of IDEA and
failed to develop an IEP according to the unique needs of a child with a disability
including appropriate positive behavioral interventions and support. The SCO ordered
public funding at the private school. The SCO also ordered the District to provide an
individual educational evaluation (IEE) of Nathan and to convene a new IEP meeting
after completion of the IEE.
The District filed a due process complaint challenging the SCO decision asserting
that the December, 2016, IEP offered Nathan a FAPE. Parent filed a cross-complaint
asserting procedural violations of the IDEA.
A due process hearing was held on October 2-6, 2017, by an ALJ assigned by
the Colorado Office of Administrative Courts pursuant to a contract with the Colorado
Department of Education. In that adversary proceeding the Parent was represented by
her advocate and the District was represented by counsel. After hearing extensive

evidence the ALJ issued the Agency Decision on October 25, 2017, concluding as
follows:

8

The ALJ concludes that the District met its burden of establishing that
the December 13, 2016 IEP represented an offer of FAPE to the Student as
required under the Individuals with Disabilities Education Act. Respondents
failed to meet their burden of establishing that the Student was denied FAPE
as a result of procedural violations alleged in the development of the IEP.
Finally, the Respondents failed to demonstrate that the Student lost
instructional time as a result of the District’s failure to implement his
transportation plan.
Parent filed this civil action to review that Agency decision and reverse it,
requiring the District to maintain Nathan’s educational placement at Alpine. The ALJ did
not consider the SCO rulings, limiting his findings to the evidence presented during the
hearing. He placed the burden of persuasion on the District to prove by that
evidence that the December 13, 2016, IEP together with an incorporated behavioral
intervention plan offered a FAPE to Nathan.
In this proceeding the Parent on behalf of Nathan must prove by a
preponderance of the evidence that the reverse is true.
The seminal case construing the IDEA is Bd. of Ed. of Hendrick Hudson Central
Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176 (1982). There the Court held that
the statute gave a substantive right to a “free appropriate public education” for certain
children with disabilities but did not set a standard for measuring the educational
benefits that must be provided. That the Court did in Endrew F. v. Douglas County
School District RE-1I, 137 S.Ct. 988 (2017). An IEP is adequate if it offers a program
“reasonably calculated to enable a child to make progress appropriate in light of the
child’s circumstances.” The Court gave the following cautions concerning the role of a
court exercising IDEA jurisdiction:
We will not attempt to elaborate on what “appropriate” progress will
9

look like from case to case. It is in the nature of the Act and the standard we
adopt to resist such an effort: The adequacy of a given IEP turns on the
unique circumstances of the child for whom it was created. This absence of
a bright-line rule, however, should not be mistaken for “an invitation to the
courts to substitute their own notions of sound educational policy for those
of the school authorities which they review.” Rowley, 458 U.S., at 206, 102
S.Ct. 3034.
At the same time, deference is based on the application of expertise
and the exercise of judgment by school authorities. The Act vests these
officials with responsibility for decisions of critical importance to the life of a
disabled child. The nature of the IEP process, from the initial consultation
through state administrative proceedings, ensures that parents and school
representatives will fully air their respective opinions on the degree of
progress a child’s IEP should pursue. See § § 1414, 1415; id., at 208-209,
102 S.Ct. 3034. By the time any dispute reaches court, school authorities will
have had a complete opportunity to bring their expertise and judgment to
bear on areas of disagreement. A reviewing court may fairly expect those
authorities to be able to offer a cogent and responsive explanation for their
decisions that shows the IEP is reasonably calculated to enable the child to
make progress appropriate in light of his circumstances.
Id. at 1002.
The ALJ applied that standard, citing to Endrew at page 20 of the Agency
Decision. He made a careful comparison between Alpine and Otero that is supported
by the record. The emphasis at Alpine has been on behavioral intervention. Nathan
has significant behavioral patterns that obstruct his ability to learn, including a short
attention span, frequent distraction, physical resistance and aggression. Parent has
legitimate concerns as to the adequacy of the District’s functional behavioral
assessment and the ability of the staff at Otero to intervene and re-direct negative
behaviors. The deficiency at Alpine is in learning instruction. There are no certified
teachers on the Alpine staff and Nathan has made little academic progress, particularly
in writing. The other deficiency is that there is no opportunity for him to interact with

10

children making normal progress.
A specific requirement of the IDEA is that:
To the maximum extent appropriate, children with disabilities, including
children in public or private institutions or other care facilities, are educated
with children who are not disabled, and special classes, separate schooling,
or other removal of children with disabilities from the regular educational
environment occurs only when the nature or severity of the disability of a
child is such that education in regular classes with the use of supplementary
aids and services cannot be achieved satisfactorily.
20 U.S.C. § 1412(a)(5)(A).
That is the prime difference between Alpine and Otero. There are no nondisabled children among the 27 or so children at Alpine. At Otero Nathan would have
the opportunity to participate with non-disabled students at lunch, music, art and
extracurricular activities as well as in science and social studies. The science may
particularly be appropriate to Nathan’s interest as identified by Parent.
It may be that Otero will not be able to achieve the goals it has set out in the IEP.
In that case a different IEP must be developed. The transition will be difficult. The
District has planned that this transition be incremental with some time in both schools.
It may also be expected that a new environment will have a positive effect opening
Nathan to new experiences. What the law requires is that an IEP provide a reasonable
plan to provide educational opportunity in a least restrictive environment. This the
District did.
Parent also argues that the District failed to meet IDEA’s procedural
requirements because it predetermined the outcome of the 2016 IEP process. The
record does not support this argument, rather showing that Parent was afforded a

11

meaningful opportunity to participate in the IEP process and the District listened and
responded to her input.
It is
ORDERED, that judgment shall enter for the defendant District, dismissing this
civil action with an award of costs.
Dated: December 12, 2018
BY THE COURT:
s/Richard P. Matsch
________________________________
Richard P. Matsch, Senior District Judge

12