United States District Court, D. Colorado
STEVEN R.F., a minor, by and through his mother, CARRIE FERNANDEZ, Plaintiff,
HARRISON SCHOOL DISTRICT NO. 2, and various of its elected and appointed representatives in their official capacities, Defendant.
Brooke Jackson United States District Judge.
matter is before the Court on review of the Colorado Office
of Administrative Courts' ("COAC") findings and
decisions in favor of defendant Harrison School District No.
2 ("the District") on the grounds that the District
had provided plaintiff Steven R.F. with a free appropriate
public education. Steven, by and through his mother Carrie
Fernandez, seeks reversal of the COAC's decision. For the
reasons stated herein, the Court REVERSES the COAC s
a dispute about whether the District violated the Individuals
with Disabilities Education Act ("IDEA") by failing
to provide Steven with a free appropriate public education.
Steven is an autistic child who lives in the District. Steven
has been attending the Alpine Center ("Alpine"), a
private out-of-district treatment and education center for
individuals with autism, since 2013. This case arose from the
District's decision in 2016 to move Steven out of Alpine.
The Individuals with Disabilities Education
summarizing the factual background of Steven's case, it
is helpful to provide a brief overview of the IDEA'S
relevant provisions. The purpose of the IDEA is "to
ensure that all children with disabilities have available to
them a free appropriate public education that emphasizes
special education and related services designed to meet their
unique needs and prepare them for future education,
employment, and independent living. 20 U.S.C. §
1400(d)(1)(A). To receive federal funding under the IDEA,
states must ensure all eligible students receive a free
appropriate public education, or "FAPE."
Id. § 1412(a)(1).
particular child's FAPE must be tailored to his or her
unique needs, so the Act mandates that each child have an
individualized education program, or "IEP."
Id. § 1401(14). The IEP is a written document
providing the child's present levels of educational
performance, his annual goals, the method by which the
child's progress toward his goals will be measured, and a
description of specific education and related services to be
provided to the child. Id. § 1414(d)(1)(A)(i).
The IEP must also include the projected date for the
beginning of the services, "and the anticipated
frequency, location, and duration" of those services.
Id. § 1414(d)(1)(A)(i)(VII). A child's IEP
is prepared at a meeting between a representative of the
local educational agency, the child's teacher and
parents, and, where appropriate, the child. Bd. of Educ.
of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v.
Rowley, 458 U.S. 176, 181-82 (1982). A child's IEP
must be reviewed and revised at least annually. 20 U.S.C.
Supreme Court has established a two-pronged test to determine
whether a school district has offered a FAPE.
Rowley, 458 U.S. at 206-07. First, the district must
have complied with the procedures set forth in the
IDEA. Id. Second, the IEP developed through those
procedures must meet a substantive standard: it must
be "reasonably calculated to enable [the] child to make
progress appropriate in light of the child's
circumstances." Endrew F. v. Douglas Cty. Sch. Dist.
RE-1, 137 S.Ct. 988, 999 (2007). If the district
satisfies both prongs, it has complied with the IDEA'S
requirements. Rowley, 458 U.S. at 207.
when a district has committed a procedural violation in its
provision of a FAPE, however, a court assessing a complaint
about such a violation must base its decision "on
substantive grounds based on a determination of whether the
child received a free appropriate public education." 20
U.S.C. § 1415(f)(3)(E)(i). A procedural violation rises
to the level of a substantive deprivation of a FAPE only if
the violation (1) impeded the child's right to a FAPE;
(2) significantly impeded the parent's opportunity to
participate in the decision-making process; or (3) caused a
deprivation of educational benefits. Id. §
addition to establishing the procedural and substantive
requirements for the provision of a FAPE, the IDEA also
requires that state and local educational agencies
"shall establish and maintain procedures ... to ensure
that children with disabilities and their parents are
guaranteed procedural safeguards with respect to the
provision of a [FAPE] by such agencies." 20 U.S.C.
§ 1415(a). Parents of handicapped children must be
notified of proposed changes to their child's educational
placement or in the provision of their child's FAPE.
Id. § 1415(b)(3) Parents must also be permitted
to bring a complaint about "any matter relating to"
the evaluation and educational placement of their child.
Id. § 1415(b)(6)(A).
such a complaint is received, "the parents or the local
educational agency involved in such complaint" must be
afforded an opportunity for an impartial due process hearing
conducted by the state or local educational agency.
Id. § 1415(f). Assuming that that hearing is
held before a local educational agency, a party aggrieved by
the resulting decision may appeal to the state educational
agency. Id. § 1415(g). Thereafter, "[a]ny
party aggrieved by the findings and decision" of the
state hearing has "the right to bring a civil action
with respect to the complaint... in a district court of the
United States, without regard to the amount in
controversy." Id. § 1415(i)(2)(A).
is an autistic child born in 2004. ECF No. 2 at 7. Before
Steven was placed at Alpine in June 2013, he had attended a
variety of schools in the District where he had not
demonstrated any progress in academics or behavior.
Id. at 4. In contrast, while at Alpine Steven's
behaviors improved, and he began making academic progress for
the first time. Id; R. 30. Alpine is a non-profit
"licensed day-treatment and day-habilitation center
providing research based educational and behavioral services
and supports" to individuals with autism. ECF No. 2 at
April 2014, after Steven's first year at Alpine, the
District attempted to change his placement to the School of
Excellence ("SOE"). Id. Steven's
mother and several other parents of children subject to the
District's 2014 decision filed a complaint with the
Colorado Department of Education asserting that this decision
violated the IDEA. R. 105-35. The State Complaints Officer
who reviewed this complaint reversed the District's
decision to change the students' placement, finding that
the District had violated the IDEA in its decision-making
process. R. 131-32. The first state complaint decision
ordered that Steven's placement remain at Alpine,
required the District to submit a proposed corrective action
plan to the Department of Education to address its
violations, and prohibited any changes to Steven's or the
other students' placements until after the corrective
action had been taken.R. 134.
first state complaint decision also contained several
placement procedures designed to prevent future violations by
the District. In particular, the District was prohibited from
changing Steven's placement until (1) it conducted a
comprehensive evaluation of Steven; (2) staff members from
any proposed new placement observed Steven at Alpine to
understand his educational and behavioral functioning; and
(3) the District convened an IEP meeting facilitated by a
neutral facilitator "not employed by the School
District" that complied with all the procedural
requirements of the IDEA, particularly those that the
District had violated. Id.
2015, the year after the first state complaint decision was
issued, Steven's IEP was again reviewed, and his
placement at Alpine remained unchanged. However, when
Steven's IEP was reviewed again the following year in a
meeting begun on March 29, 2016 and concluded on April 5,
2016, the District decided-based on a majority vote-to change
his placement from Alpine to SOE. R. 451-54. The IEP meeting
was facilitated by Amy McFall (nee Spayd), a
District-employed psychologist. R. 219. No. one from SOE was
present at the meeting, nor had any SOE staff or teacher
observed Steven at Alpine prior to the District's
decision to change Steven's placement. R. 28 at 10.
final summary of the IEP meeting reflects that the team
determined that Steven required a separate school, meaning
one which exclusively serves handicapped children, which is
the most restrictive category of placement options. R. 452.
In deciding on a separate school rather than a placement
where Steven would spend less than 40% of his time in general
education the team "decided that Steven required more
individualized instruction and 1:1 adult supervision and
instruction." R. 453. The team considered three
placement options before deciding on SOE: Alpine, the Roundup
School, and SOE. R. 452.
a separate public school located in the District's
catchment area. R. 30, 222. However, SOE is operated by the
Pikes Peak Board of Cooperative Educational Services rather
than by the District, so it is considered an out-of-district
school. R. 222. It is comprised of at least four programs,
two of which are appropriate for autistic students: the
Communication and Learning Program ("COLA") and
Learning Independence by Educating Responsible Trustworthy
Youth ("LIBERTY"). R. 29, 222, 634. Although the
District concluded that Steven's placement would be
changed to SOE, it did not specify which of the SOE programs
Steven would attend. R. 453. The record reflects that at the
end of the IEP meeting, no one present knew whether Steven
was being placed at COLA or at LIBERTY, Steven's mother
included. R. 901, 942, 995, 1042, 1080, 1343, 1351-52.
Steven's mother was upset at the outcome of the meeting,
as she did not feel that Steven would be well-served at SOE.
after the IEP meeting, then-District Coordinator of Special
Programs Amy Lloyd reached out to the Assistant Principal at
SOE to ask whether SOE had room for Steven. R. 331. Ms. Lloyd
indicated that Steven would "need to be in either the
COLA or Liberty [sic] programs." Id. The
Assistant Principal indicated that she would "like to
review the IEP to determine possible placement," R. 337,
and the two discussed scheduling a meeting and a tour of SOE
for Steven's mother. R. 336.
meantime, Steven's mother filed her second state
complaint with the Colorado Department of Education on May 5,
2016, alleging that the 2016 IEP decision violated the IDEA
and the first state complaint decision. R. 25. She noted that
the IEP meeting had been conducted by a District employee in
direct violation of the first state complaint decision's
requirement that any IEP meeting be facilitated by a neutral
facilitator "not employed by the District," and
that no representative from any proposed future placement had
observed Steven at Alpine prior to the District's
decision to change his placement. R. 25; see also R.
134. She also alleged that the District had failed to make a
specific offer of placement, failed to base its decision on
Steven's individual needs, and predetermined its decision
to change Steven's placement. Id.
16, 2016 Ms. Lloyd reached out to Steven's mother to
schedule a meeting with SOE "to discuss a transition for
Steven," R. 92, but Steven's mother's attorney
declined the invitation on the basis of the pending state
complaint. R. 91. On June 30, 2016 the State Complaints
Officer issued her decision on Ms. Fernandez's second
complaint, finding that the District had again violated the
IDEA in the 2016 IEP meeting. R. 35. The second state
complaint decision found that the District had violated the
express terms of the first state complaint decision, that its
decision to change Steven's placement was not based on
his individual needs and was predetermined, and that the
District had failed to make a sufficiently specific offer of
placement to put Steven's mother on notice of what was
being proposed. R. 35-37.
the second state complaint decision, the District filed a due
process complaint with the Colorado Department of Education.
R. 2. The District alleged that the State Complaints Officer
had selectively interviewed Steven's mother and Alpine
staff without interviewing District staff members on the IEP
team. R. 4. Moreover, the District argued that the complaint
process had not afforded the District the opportunity to
engage with the process, including by cross-examining
witnesses. Id. Moreover, the District alleged
several errors on the part of the State Complaints Officer in
reaching her decision. R. 4-9. The District requested that
the Administrative Law Judge ("ALJ") Robert Spencer
find that the District had made a timely offer of FAPE. R.
225. The ALJ decided in the District's favor that it had
made a timely offer of FAPE, and that any procedural
violation did not deprive Steven of FAPE or an educational
benefit or deprive his mother of her right to participate in
the decision. R. 233.
response to the ALJ's decision, Steven and his mother
filed the present complaint before this Court seeking a de
novo review of the administrative record and asking that the
Court find that the 2016 IEP denied Steven the FAPE to which
he is entitled. ECF No. 2 at 15. Moreover, Steven requests
that the Court award his mother reimbursement for the
educational services she provided him at Alpine during the
2016-17 school year. Id. Finally, he seeks a
declaration that the District violated his rights under
Section 504 of the Rehabilitation Act. Id. The
parties have fully briefed the issues before the Court. ECF
STANDARD OF REVIEW
review in IDEA cases differs substantially from judicial
review of other agency actions, in which courts generally are
confined to the administrative record and are held to a
highly deferential standard of reviews.'" Murray
v. Montrose Cnty. Sch. Dist. RE-IJ, 51 F.3d 921, 927
(10th Cir. 1995) (internal citation omitted). "A
district court applies a modified de novo standard
in reviewing a hearing officer's decision under the
IDEA." L.B. ex rel. K.B. v. Nebo Sch. Dist, 379
F.3d 966, 973 (10th Cir. 2004). Pursuant to this standard,
the Court "looks at the record of the administrative
proceedings and decides, based on a preponderance of the
evidence, whether the requirements of the IDEA are met."
Id. at 973-74. In conducting this review the Court
must give "due weight" to the hearing officer's
findings of fact, "which are considered prima
facie correct." Id. "The district
court's proceedings must maintain the character of review
and not rise to the level of a fife novo