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Zachary G. v. School District No. 1 for the City and County of Denver

United States District Court, D. Colorado

October 5, 2016

ZACHARY G., a minor, by and through his parents and next friends, MARK G. and ROBIN F., Plaintiffs,
SCHOOL DISTRICT NO. 1 for the City and County of Denver, Defendant.


          Richard P. Matsch, Senior Judge.

         Mark G. and Robin F. are the parents of Zachary G. (Zachary), now 17 years old, who was born with a genetic disorder diagnosed as Prader-Willi Syndrome (PWS). In May, 2015, they placed Zachary at Latham Centers (Latham), a private residential school facility in Massachusetts specializing in the care and education of children with PWS. In this civil action the parents seek reimbursement for the costs of Zachary's placement at that facility, claiming that School District No. 1 for the City and County of Denver (District) failed to develop an individualized education plan (IEP) for the 2015-2016 academic year that would provide their son with a free appropriate public education (FAPE) as required by the Individuals with Disabilities Education Act (IDEA). The IDEA provides jurisdiction for this case.[1]

         Background and Facts

         As required by the IDEA, Plaintiffs received a due process hearing before an Administrative Law Judge (ALJ). After eight days of evidentiary hearings the ALJ issued a Decision on July 31, 2015, denying the claim and concluding that the District had prepared an IEP that was Areasonably calculated to provide meaningful educational progress” for Zachary which the parents rejected by withdrawing their son from school and unilaterally placing him at Latham.

         The party alleging a deficiency in an IEP bears the burden of persuasion.[2] The standard governing this Court's review of the ALJ's decision is “modified de novo.”[3]Specifically, the Court must receive the record of the administrative proceedings, hear additional evidence at the request of a party, and base its decision on the preponderance of evidence.[4] “At the same time, 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 proceedings. . . .”[5] This means that this Court conducts an independent review of the evidence, [6] but the ALJ's factual findings are to be considered “prima facie correct.”[7] The entire administrative record has been lodged and reviewed by this Court and oral argument was heard. No party has submitted additional evidence.

         The ALJ made detailed findings of fact supporting his decision. Many of them are not disputed. Plaintiffs' case is primarily dependent on the testimony of opinion witnesses. The ALJ found them to be “unconvincing.” That suggests he was applying a higher standard of proof than preponderance of the evidence and summarily discounts the evidence without an adequate explanation. Given that these opinions are at the core of this controversy with a focus on Zachary's particular needs, particularly the requirement of total food security, a de novo review of the record concerning the food security issue is required.

         To avoid confusion this Court upon a review of the evidentiary record makes the following narrative of events as de novo findings of fact.

         There is no material dispute about the medical diagnoses adversely affecting Zachary's ability to progress in a normal school setting. Zachary has an uncommon subtype of PWS that occurs in approximately 25% of those afflicted. Individuals with this subtype often have more severe symptoms. Typical manifestations of PWS early in life include weak muscle tone, feeding difficulties, and delayed development. Later in childhood, persons with PWS typically develop hyperphagia - persistent extreme hunger and an inability to feel satisfied. They often experience extreme stress and anxiety related to their constant feeling of hunger and obsession with food, to the point that they are unable to focus on anything else. Even seeing or smelling food can cause extreme anxiety and perseveration about how to access the food, even if the event occurred in the past. If an individual with PWS is permitted uncontrolled access to food, there is a risk of overeating to the point of gastric rupture and possible death. Given Zachary's PWS, food security is a central concern in providing his education.

         In addition to PWS, Zachary has been diagnosed with a mood disorder, general anxiety disorder, autism spectrum disorder, and mild intellectual disability in the form of a nonverbal learning disability. These mental health problems manifest in a host of challenging behaviors, including moodiness, sleep disturbance, severe anxiety, anger outbursts, aggressive behavior, refusal to participate in activities (including going to school), and others.

         Zachary was able to achieve educational benefit in District schools, Bromwell Elementary and Place Bridge Academy Middle School, through approximately the first half of eighth grade. He was identified early as a child who needed special education services under the IDEA, and attended these schools with the support of IEPs developed annually for him by the District. In middle school his time was divided between general education classes and special education classes designed to accommodate students with mild to moderate impairments. He did not perform at grade level, but it is not disputed that he made academic progress, consistently doing fairly well in reading and writing, but poorly in mathematics.

         During fifth, sixth, and seventh grade Zachary's behavior problems began to increase, as is typical of individuals with PWS. These behaviors included a number of incidents of both verbal and physical aggression. School behavior problems increased to some extent during eighth grade, although the District's witnesses described most of the incidents as tantrums and verbal aggression, rather than physically threatening or violent.

         Travis Depew, who worked with Zachary as a paraprofessional during Zachary's seventh grade year and was Zachary's eighth grade special education teacher, testified that Zachary had two incidents during eighth grade that did involve physical aggression. On one occasion Zachary resisted staying at school when his mother dropped him off and struck both his mother and Depew as they attempted to deal with him. Depew calmed Zachary down and kept him at school for the day. Depew stated that this type of incident is “common” with the students he works with as a special education teacher. On another occasion, a food-related incident, Zachary grabbed for something in a paraprofessional's hand and tore her shirt. No one was injured in either incident, and Zachary remained in school after both. There is evidence of other misbehaviors, such as pulling a fire alarm for which Zachary was suspended. Depew testified, however, that he was always able to get Zachary de-escalated, he never called the parents to come get Zachary, he never physically restrained Zachary, and he never called 911 or law enforcement.

         Despite these behavioral incidents, Depew testified that during seventh grade and the first two trimesters of Zachary's eighth grade year (2013-14), Zachary was able to access his education. He attended school just about every day, participated in both special and general education classes, and was doing academically better than most of Depew's other students in reading and writing, though continuing to struggle in math. Depew felt he had a good relationship with Zachary, good communications with his parents, and that he was successfully implementing Zachary's IEP for the eighth grade school year. Depew testified that in his experience, Zachary's behaviors were “better than most” compared to other students Depew dealt with, in terms of behaviors that required him to interrupt class and deal with them. He stated that Zachary's behaviors were of “pretty close to average” intensity, and that Zachary's de-escalation times were probably faster than most other students'.

         In January 2014 Depew scheduled a preliminary meeting to discuss Zachary's options and the IEP preparation process for his anticipated transition to high school in the fall of 2015. Depew, a general education teacher, and Zachary's parents attended that meeting on February 3, 2014. At the meeting Depew even discussed the possibility that Zachary might need to transition from the “multi-intensive” level of special education in Mr. Depew's classroom to a “mild/moderate” setting in high school because of concerns that Zachary's testing results might come out higher than would qualify him for continued placement at the multi-intensive level.

         In contrast to Depew's testimony, Zachary's parents testified that during the fall and winter of Zachary's eighth grade year his self-care skills, school refusals, and other behaviors at home deteriorated significantly. These problems escalated to the point that on February 20, 2014, Zachary's parents took him to the Children's Hospital (“Children's Colorado”) emergency department in Denver when they were unable to deal with a severe tantrum at home involving refusal to go to school. Zachary was admitted to the Neuropsychiatric Special Care (NSC) unit at Children's Colorado for treatment of severe anxiety, aggression, obsessive-compulsive behavior, and other symptoms.

         Zachary was intermittently treated at the Children's Colorado NSC unit on both an inpatient basis and outpatient day treatment basis from February to late May 2014. During that period, Zachary's behaviors alternately improved and deteriorated. He was discharged from day treatment on March 28 in anticipation that he would transition back to school after spring break, and he and his parents travelled to New York City on a family vacation from April 1 to April 6. On April 8, his parents returned him to Children's Colorado when he refused to go to school, resulting in Zachary being readmitted to the NSC day treatment program.

         Later in April, Depew and Children's Colorado staff more than once discussed possible plans for Zachary's return to school. Zachary had a successful transition day back to school on April 17, but his continued refusals and other behaviors resulted in continuing day treatment. Depew also talked with Children's Colorado staff about strategies the District had used to deal with Zachary's behaviors, as well as strategies for Zachary's transition back to school, which the evidence indicates was contemplated by staff at both Children's Colorado and the District. During the February to May 2014 Children's Colorado hospitalization period, Zachary attended school at Place Bridge only a couple of days.

         During that period, Zachary's parents repeatedly expressed their feelings that Zachary might require admission to a residential facility because of the escalating behavioral issues that they felt unable to manage in the home. Zachary's treating psychiatrist at Children's Colorado, Dr. Sannar, thought that Zachary's behavior was “not as bad as a lot of kids we see, ” and did not require residential placement. The parents doubted the return to school would be successful, and while they acknowledged the need to try, in May 2014 they submitted an application to enroll Zachary at Latham. They did not inform the District of this fact at that time.

         Zachary was discharged from day treatment at Children's Colorado on May 27, 2014. After discharge he returned to school for the brief remainder of the term and participated in his eighth grade graduation ceremony.

         While Zachary was hospitalized for much of the time from February to May 2014, District personnel continued to plan for his anticipated transition to East High School for the 2014-2015 school year. The IEP team consisted of some fifteen people, including Zachary's parents, a parent advocate, a special education teacher, a general education teacher, a school building representative, a speech language therapist, an occupational therapist, a school nurse, the school psychologist, a physical therapist, the school social worker, Zachary's language arts special education teacher, and a representative of the District's transportation department. Dr. Sannar, the psychiatrist who headed Zachary's treatment team at Children's Colorado, as well as an NSC therapist, also participated in the meetings by telephone. The team met twice in May 2014, for a total of some five hours, to review and reevaluate Zachary's IEP for the upcoming year.

         Because Zachary had not been in school much since February, the IEP team had to rely largely on what was known before his hospitalization. Dr. Sannar and the therapist from Children's Colorado provided additional input based on their experience with Zachary during treatment. The parents also provided their input. IEP team members from the District recommended that Zachary enroll in his neighborhood school, East High School, in an integrated setting of special and general education classes. The Children's Colorado treatment team did not recommend placement in a residential treatment facility because they thought there were additional interventions that should be tried to maintain Zachary in a less restrictive setting. Zachary's parents expressed their opinions that the IEP relied too heavily on Zachary's pre-hospitalization performance, did not accurately reflect the extreme home behavior that preceded his hospitalization, and did not accurately reflect his current needs.[8]

         Because of his extended school absences from February to May 2014, Zachary was approved for the District's Extended School Year (ESY) program. ESY, which had daily sessions from 7:30 to 11:30 a.m. each day, was primarily intended to reinforce students' existing skills, rather than teach new ones. Zachary attended every day from June 13 to July 11 (at Bruce Randolph Middle School), arriving late on two days due to school refusal behavior. Zachary's ESY case manager, Deborah Carney, is a special education teacher at East High School. She acknowledged that there was an incident with Zachary shoplifting some food on a field trip, which the parents allege led to the anxiety and school refusal behaviors that caused him to be late two days. She testified, however, that Zachary did well at ESY, participated socially, was very involved in a talent show and drama class, worked well with his teacher and paraprofessionals, and was not reported to have any physical aggression incidents or refusal behaviors.

         Zachary's generally favorable experience at ESY contrasted with continuing escalation of behavior problems at home. Zachary refused to attend a private summer camp and freshman orientation at East High, and told his parents East High was too big and had too many classes and people and he would never go there. In an email dated July 17, 2014, Zachary's mother informed the District that the parents were “certain that he will not be able to return to school in the fall and that he cannot be educated in a traditional school setting due to his Prader-Willi syndrome.”[9] The same email stated that Zachary needed immediate placement in a PWS-specific residential facility, that the parents would be making a decision on the specific facility “in the very near future, ” and that they would like to “partner” with the District on the placement.[10]

         On August 1, 2014, after a meeting at East High to introduce Zachary to staff that would support him there during freshman orientation, Zachary became upset and allegedly attacked his parents and his therapist in the East High parking lot, escalating to the point that police and paramedics had to be called to transport Zachary to Children's Colorado for stabilization. Zachary's behavior led to three trips to the Children's Colorado emergency department in August. He was de-escalated during two of these visits and returned home; on the third he was readmitted to the NSC inpatient unit on August 18, 2014. He was discharged to day treatment on August 26 after stabilizing and reportedly doing well in inpatient care.

         The District team continued planning for Zachary's attendance at East High. They understood that the Children's Colorado treatment providers were not recommending residential placement. A number of meetings between District personnel and the parents were held from August 20 to September 6. These meetings, which now included the parents' attorney (and the District's), primarily addressed the parents' request for the District to pay for residential placement and the District's request for comprehensive testing to evaluate current Zachary's cognitive and behavioral status. The District requested the evaluation to enable it to assess appropriate placement. After involved negotiations, the parents agreed to the testing and the District agreed to pay the cost of Zachary's readmission to the Children's Colorado NSC day treatment program while the evaluation was being done.

         The evaluation was conducted, over several days in late August at a building on the East High campus separate from the main school building. It included physical therapy, speech/language therapy, and cognitive assessments. Zachary attended and was cooperative. Consistent with Zachary's previous assessments and experience, he tested within or above the average range on verbal literacy skills, but significantly below average in math and reading comprehension.

         The District team continued to believe that it could provide Zachary an appropriate education at East High School. Gene Bamesberger, associate director of special education for the District, was the leader of the IEP process for the District in connection with the transition to high school. The parents opposed implementing the IEP and continued to urge residential placement.

         The District offered to assist with his school refusal behaviors by arranging for a transitional period of “homebound” educational services before Zachary would attend at East High as a regular student. Although called “homebound, ” the services were provided at East High. The parents and the District agreed that holding the classes at home would not be productive because of Zachary's difficult home behaviors. The parents objected to having the classes at East High, but they ended up being conducted in East's main building - over the parents' objection - after another suitable location could not be found.

         Zachary was scheduled to attend homebound classes for three hours per day, five days per week, from September 24 through November 21, 2014. He attended 14 of the first 17 days, refusing to attend on three days. He stopped attending October 17 when his parents had him admitted to The Children's Institute in Pittsburgh, Pennsylvania, in an effort to obtain more help with his problematic behavior.

         Zachary's homebound teacher at East High, Kim Sutherland, testified that on the days he attended, Zachary performed well in reading and writing, but not so well in math. Ms. Sutherland testified Zachary did not access any unauthorized food during the homebound session. She did change the room being used because there was a bowl of fruit in the original room that caused Zachary's mother to raise a concern. Sutherland was involved in one significant behavioral incident when Zachary refused to stay when his mother attempted to drop him off at school. Ms. Sutherland, with the help of a school security officer and the school psychologist, ultimately calmed Zachary down and got him to stay and complete the school day, but not without getting her hair pulled. She testified that Zachary did not have to be restrained, that she was not injured, that the hair-pulling was minor and not painful, and the incident was a “2 on a scale of 5” compared to other students she has dealt with.[11] She was aware of no other verbal or physical aggression by Zachary while she was working with him.

         Ms. Sutherland testified that Zachary knew his way around East High, interacted in passing with students and teachers he recognized, was able to complete assignments, responded well to his environment, and participated in all of the services she was providing. During the week before he was to leave to go to The Children's Institute in Pittsburgh, however, he was perseverating and experiencing anxiety about it every day. Mr. Bamesberger testified that Zachary “did really well” in the homebound session - interacting with staff, dressed and groomed, engaged and completing academic work.[12]

         Zachary was an inpatient at the Center for Prader-Willi Syndrome at The Children's Institute in Pittsburgh from October 20 to December 19, 2014. Dr. Gregory Cherpes, his treating psychiatrist, reported that Zachary remained very symptomatic while at The Children's Institute in Pittsburgh - not a high level of aggressive behavior, but mood changeability, anger outbursts, and sleep disruption patterns were present and generally unresponsive to medications and behavioral therapy. He stated Zachary was on the “high end” of the spectrum for such behaviors, and did not respond to treatment as well as typical patients.

         Zachary also attended classes at The Children's Institute in Pittsburgh. His instruction was provided by Dr. Amy McTighe, a special education expert who deals exclusively with students with PWS. Dr. McTighe testified that Zachary's psychological issues affected his attendance at The Children's Institute in Pittsburgh worse than any student she had worked with, and his refusal to participate, while not violent, was the worst of any student she has had. His perseveration about food was also atypically high, in her experience, and it affected his ability to learn.

         The District's IEP team continued work in late 2014 to prepare an IEP designed to replace the one prepared in May 2014. An initial meeting was held September 29, and the team met three more times in December. The IEP proposed on December 17, 2014 continued to call for Zachary to be educated at East High.

         At least two of the December 2014 IEP team meetings included input from personnel from The Children's Institute in Pittsburgh by telephone. Neither Dr. Cherpes nor Dr. McTighe recommended residential placement at that time. Dr. McTighe provided written recommendations for the IEP that contemplated Zachary's return to public school, concluding that if these recommendations were followed with fidelity and Zachary still could not successfully access an education, then she would recommend placement in a residential, PWS-specific facility.[13] The December 2014 IEP did not include all of Dr. McTighe's recommendations, but did include provisions concerning Zachary's PWS and the need for food security. It also had a transition plan to make Zachary's return to East High more gradual, given the length of time he had been away at The Children's Institute in Pittsburgh.

         The parents, with their attorney, participated in the December 2014 meetings. The December 2014 IEP included statements inserted at the parents' request, rejecting the IEP as not being appropriate to provide Zachary a FAPE and expressing their view that he had been unsuccessful in the most restrictive environment possible (The Children's Institute in Pittsburgh) and therefore had no chance of success at the less restrictive environment at East High. The parents stated their intent to file a due process proceeding and seek to place Zachary at Latham at the District's expense, although they also expressed a willingness to participate in another IEP meeting after the discharge report was received from The Children's Institute in Pittsburgh, and to consider a different offer of FAPE.

         After the December 2014 IEP was prepared, Mr. Bamesberger emailed Zachary's parents, stating the District was ready, willing and able to implement the IEP beginning in January 2015. Zachary's mother responded that Zachary would not be attending East High. The District maintained its offer and reconvened the IEP team on March 4, 2015 to review and revise Zachary's IEP as needed. By this time the District had received the discharge documents from The Children's Institute in Pittsburgh, which contained additional information and recommendations to be considered for inclusion in the IEP.

         The District had also received a letter from Dr. Janice Forster, written on Plaintiffs' behalf. Dr. Forster is a child and adolescent psychiatrist in Pennsylvania who specializes in PWS and consults with families and schools - including Latham, where Zachary was ultimately placed - concerning IEPs for PWS students. Dr. Forster criticized the goals that had been set in the December 2014 IEP. Mr. Bamesberger testified that this caused consternation among the District IEP team members because the goals had been based on the District's prior consultation with The Children's Institute in Pittsburgh personnel, but that the team nonetheless spent a lot of time reconsidering and restating the goals in light of all of the new information.

         The March 2015 IEP is the final IEP and the ultimate focal point in considering whether the District offered a free appropriate public education under the IDEA. Much of the March 2015 IEP was unchanged from the December 2014 plan, but it included additional detail concerning the accommodations to be provided, including:

• All paraprofessionals, teachers, and staff would be highly trained about Zachary's diagnoses, including PWS, the importance of food security, and other relevant information about Zachary.
• More than one paraprofessional would be trained to support Zachary.
• Zachary would be provided time and a safe place to “regroup and process” with appropriate staff to support him.
• Plans would be created for application across all environments.
• Plans would be provided that could be shared with Zachary.
• The District would consult with Zachary's in-home therapists and other providers.
• Food security would be provided in the classroom and across all settings Zachary would access, supported by a ...

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