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Nathan M. v. Harrison School District No. 2

United States District Court, D. Colorado

December 12, 2018

NATHAN M., a minor, by and through his parents and next friends, AMANDA M., Plaintiffs,
v.
HARRISON SCHOOL DISTRICT NO. 2, Defendant.

          MEMORANDUM OPINION AND ORDER

          RICHARD P. MATSCH, SENIOR DISTRICT JUDGE.

         Invoking the jurisdiction provided by the Individuals With Disabilities Act (IDEA), 20 U.S.C. § 1415(i)(2)(A), Amanda M. asks this court to reverse the decision of an Administrative Law Judge (ALJ) permitting the defendant Harrison School District No. 2 (“District”) to remove her son, Nathan, from Alpine Autism Center (Alpine) and place him at Otero Elementary School (Otero) pursuant to an individualized education program (“IEP”) adopted on December 13, 2016. Alpine is a private, non-profit center-based program providing services to students with autism spectrum disorder (ASD) using the principles of applied behavior analysis (ABA). Nathan, born on May 13, 2006, was diagnosed with ASD before age 4.

         In review of the Agency Decision this Court applies a “modified de novo” standard. The statute at 20 U.S.C. § 1415(i)(2)(c) requires that the court (1) receive the record of the administrative proceedings; (2) hear additional evidence at the request of a party, and (3) base its decision on the preponderance of the evidence. The administrative record has been reviewed, including a transcript of the ALJ hearing testimony. The SCO decisions have also been read and a Report of Psychological Evaluation by Dr. Elizabeth F. Bruno, done at Parent's request in September, 2017, and signed on October 23, 2017. It was not before the ALJ in the hearings held beginning on October 2, 2016. The report has been considered as additional evidence.

         From this record this Court makes the following findings by a preponderance of the evidence resulting in the conclusion that the Plaintiff has failed to prove that the December 13, 2016, FAPE did not comply with the requirements of the IDEA.

         To comply with its statutory obligation to provide a FAPE the District placed Nathan at Alpine for kindergarten in 2012 and he has been in that program continuously since then. Three other District students have been there. In April, 2014, the District proposed changing placement for all four students in public schools as a result of IEP meetings with their parents. An IEP meeting is required to determine an appropriate FAPE. There are distinct procedural requirements for IEP meetings. Parents are to be active participants with District personnel with knowledge and experience with special education for disabled students.[1]

         The parents of all four students objected and filed complaints with the Colorado Department of Education. Those complaints were referred to a State Complaint Officer (SCO) who determined that the District failed to obtain adequate information about the students because it predetermined the placements. As a result Nathan and the other students remained at Alpine.

         In February, 2016, the District began the process of preparing a new IEP for Nathan. A pre-evaluation meeting was held on February 19, 2016, attended by Parent and her advocate, Crystal Morgan. Amy Lloyd, District Special Education Director, attended with school psychologist, Gregory Rossi, along with a social worker/mental health professional, a special education teacher, two speech language pathologists and the principal of the home school, Stratmoor Hills Elementary School. Parent presented her agenda and received assessment documents to be completed. The District conducted assessments which Parent attended and emailed questions to Rossi who provided answers with assistance from the assessment team members. No. one from Alpine participated in the assessment process.

         Pursuant to an advance notice a meeting was held on April 19, 2016, to discuss the assessment results. Parent and her advocate attended with Lloyd, Rossi and the other people from the District who were at the pre-evaluation meeting.

         The District's psychoeducational evaluation and functional behavioral assessment were given to Parent. The latter was based on responses to questionnaires by Parent, Alpine teachers and formal observations by the District's evaluation team.

         A Determination of Eligibility for special education services was signed by the team members. Parent and her advocate were at this meeting. There was no Alpine teacher in attendance because no invitation had been made by Parent or the District. At some time after this meeting Parent met with Rossi to get more information about the assessment protocols and results which Rossi provided.

         Nathan was diagnosed with ADHD in 2012. That was not included in the assessments or in the IEP meetings discussions because Parent had not told the District about the ADHD diagnosis and it was not in the information from Alpine.

         The first scheduled meeting to develop a new IEP based on the evaluation was held on May 19, 2016. Parent attended with two advocates and presented a detailed agenda to discuss her concerns about the assessments and a need for more meetings. The District's representatives were the same as before. A facilitator was present to moderate the proceedings. Alpine was invited but no one from it was available to attend.

         Parent was not satisfied that all of her questions had been answered and wanted more meetings.

         The next IEP meeting was held on September 9, 2016. In the interval between meetings Rossi was replaced by Dr. Sabrina Jack, another school psychologist who was briefed by Rossi. Dr. Jack observed Nathan at Alpine in June and she read quarterly reports about Nathan from Alpine as well as the evaluation report. Rhonda Berry replaced the former facilitator because Parent was concerned that she was a District employee and may have been biased. Both parents attended with two advocates. Dr. Jack, Lloyd and the other District representatives were there. Two teachers from Alpine attended. Cara Krzemien, Nathan's lead teacher, was one of them. The meeting lasted over two hours.

         A separate meeting was held on September 19, 2016, at Parent's request made at the September 9 meetings to obtain more information about the protocols used in the evaluations. This was not an IEP meeting. The District was represented by Dr. Jack, Terran Allen, a speech pathologist, and Nancy ...


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