Smith v. Cheyenne Mountain School District 12

          ORDER

          PHILIP A. BRIMMER United States District Judge.

         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 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 developed 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. With 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 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 at 48.

         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 collected.” Id.

         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 Academy “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). “To 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 can be said to have provided a FAPE; if not, then not.” Id. at 1149.^[5]

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