United States District Court, D. Colorado
NATHAN M., a minor, by and through his parents and next friends, AMANDA M., Plaintiffs,
HARRISON SCHOOL DISTRICT NO. 2, Defendant.
MEMORANDUM OPINION AND ORDER
RICHARD P. MATSCH, SENIOR DISTRICT JUDGE.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
was not satisfied that all of her questions had been answered
and wanted more meetings.
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.
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 ...