United States District Court, D. Colorado
Endrew F., a minor, by and through his parents and next friends, JOSEPH & JENNIFER F., Petitioners,
DOUGLAS COUNTY SCHOOL DISTRICT RE 1, Respondent.
LEWIS T. BABCOCK, District Judge.
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.
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 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 self-advocacy/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 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 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 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 ...