Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Endrew F. v. Douglas County School District Re 1

United States District Court, D. Colorado

February 12, 2018

ENDREW F., a minor, by and through his parents and next friends, JOSEPH & JENNIFER F., Petitioners,
v.
DOUGLAS COUNTY SCHOOL DISTRICT RE 1, Respondent.

          MEMORANDUM OPINION AND ORDER

          LEWIS T. BABCOCK, JUDGE

         This matter involves the review of a decision of the Office of Administrative Courts 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 initial 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. On September 14, 2014, I affirmed the ALJ's Agency Decision. Endrew F. v. Douglas Cty. Sch. Dist. RE 1, No. 12-CV-2620-LTB, 2014 WL 4548439 (D. Colo. Sept. 15, 2014)(unpublished). The Tenth Circuit affirmed in an opinion dated August 25, 2015. Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. Re-1, 798 F.3d 1329 (10th Cir. Aug. 25, 2015).

         Petitioner appealed and the United State Supreme Court granted certiorari. On March 22, 2017, the Supreme Court ruled that the legal standard used by the Tenth Circuit to assess whether a school district has provided a FAPE - whether the student's individualized education program is calculated to confer an educational benefit that is merely more than de minimis - is not sufficient under the substantive obligation set forth in the IDEA. The Supreme Court articulated a new standard; specifically that a FAPE is an education “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, U.S., 137 S.Ct. 988, 999, 197 L.Ed.2d 335 (Mar. 22, 2017). The Court ruled that this standard is “markedly more demanding” than the merely more than de minimis test applied by the Tenth Circuit. 137 S.Ct. at 1000. As a result, the Supreme Court vacated the Tenth Circuit opinion and the case was remanded for further proceedings.

         On remand the Tenth Circuit vacated its prior opinion, and remanded to this court “for further proceedings consistent with the Supreme Court's decision” on August 2, 2017. Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 694 Fed.Appx. 654 (10th Cir. Aug. 2, 2017)(unpublished). I subsequently ordered and received full supplemental briefing from the parties. After consideration of the parties' briefing, as well as oral arguments presented to the Court on February 7, 2018, and for the reason stated, I REVERSE the ALJ's Agency Decision and rule that Petitioner and his parents are entitled to reimbursement of their private school placement from the District pursuant to 20 U.S.C. §1412(a)(10)(C)(ii) and 34 C.F.R. §300.148(c).

         I. LAW

         A. The IDEA

         In order to receive federal funds to assist in educating children with disabilities under the IDEA, a State must, among other conditions, provide a FAPE to all eligible children. 20 U.S.C. §1412(a)(1). A FAPE includes both special education (defined as “specially designed instruction . . . to meet the unique needs of a child with a disability”) and related services (defined as the support services “required to assist a child . . . to benefit from” that instruction). 20 U.S.C. §§1401(9), (26) & (29). Such services are provided in conformity with the child's individualized education program (“IEP”). 20 U.S.C. §1401(9)(D).

         The IEP is the means by which special education and related services are “tailored to the unique needs” of a particular child as it is “the centerpiece of the statute's education delivery system for disabled children.” Endrew F. v. Douglas Cty., supra, 137 S.Ct. at 999-1000 (citing Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 181, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982); Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988)). The IEP procedures emphasize collaboration among parents and educators and require careful consideration of the child's circumstances. 20 U.S.C. §1414.

         B. Reimbursement for Private Tuition

         As relevant here, the IDEA provides for the reimbursement from a public school district when parents decide to enroll their child in a private school, without the consent of the school district, under certain circumstances. Parents are entitled to such reimbursement if: (1) the school district violated the IDEA; and (2) the education provided by the private school is reasonably calculated to enable the child to receive educational benefits. Thompson R2-J Sch. Dist. v. Luke P., ex rel. Jeff P., 540 F.3d 1143, 1148 (10th Cir. 2008). “If the parents of a child with a disability . . . enrolls the child in a private elementary school or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if [it] finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.” 20 U.S.C. §1412(a)(10)(C)(ii); see also 34 C.F.R. §300.148(c). In this case, the sole issue is whether Petitioner and his parents have met their burden to prove that the District violated the IDEA by failing to provide Petitioner with a FAPE.

         C. Standard for Determining FAPE

         To determine whether a FAPE was provided, the Court must ask whether the IEP sets out an educational program that was “reasonably calculated to enable [him] to receive educational benefits.” Endrew F. v. Douglas Cty., supra, 137 S.Ct. at 996 (quoting the standard articulated in Bd. of Educ. v. Rowley, supra, 458 U.S. at 207). The standard for determining whether an IEP is reasonably calculated to enable a student to receive educational benefit was defined by the Supreme Court in this case. In Endrew F. v. Douglas Cty., the Court rejected the Tenth Circuit law (as previously applied in the case) holding that a FAPE required only a determination that the child's IEP was calculated to confer an “educational benefit [that is] merely . . . more than de minimis.” 137 S.Ct. at 992. Rather, the Supreme Court ruled that “[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.” Id. at 999.

         D. Burden of Proof

         When the administrative record is fixed, as here, the District Court conducts a “modified de novo” review in that it “evaluate[s] the record, and determine[s] whether a preponderance of the evidence indicates that the ALJ decision should be reversed.” Jefferson County Sch. Dist. R-1 v. Elizabeth E., 798 F.Supp.2d 1177, 1184 (D. Colo. 2011), aff'd, 702 F.3d 1227 (10th Cir. 2012). The parties challenging the IEP bear the burden of persuasion to show it was deficient. Tyler V. ex rel. Desiree V. v. St. Vrain Valley Sch. Dist. No. RE-1J, 2008 WL 2064758 (D. Colo. May 12, 2008)(unpublished)(citing Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 62, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005)).

         II. BACKGROUND

         An extensive recitation of the facts and the administrative record, including a summary of the educational records, Petitioner's IEP, and the testimony presented to the ALJ, is set forth in my previous order in this case. Endrew F. v. Douglas Cty. Sch. Dist. RE 1, 2014 WL 4548439 (D. Colo. Sept. 15, 2014)(unpublished).

         Petitioner was diagnosed with autism at 2 years of age, and was later also diagnosed with Attention Deficit/Hyperactivity Disorder (“ADHD”). It is undisputed that 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, at the end of 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. Petitioner's parents believe that he stopped making meaningful educational/functional progress during second grade year, which continued until he withdrew from Summit View prior to his fifth grade year.

         Petitioner and his parents argue 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 Behavior Intervention Plan (“BIP”). Therefore, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.