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Elizabeth B. v. El Paso School District 11

United States District Court, D. Colorado

August 12, 2019

ELIZABETH B., a minor, by and through her parents and next friends, DONALD B. and AILEEN B., Plaintiff,


          R. Brooke Jackson United States District Judge.

         Donald B. (“Mr. B.”) and Aileen B. (“Ms. B.”), are the parents of Elizabeth B. (“Lizzie”). Lizzie was six years old at the time of the hearing, and has multiple medical diagnoses including epilepsy, significant seizure activity and autism spectrum disorder. In January 2016 Parents placed Lizzie at the Alpine Autism Center (“Alpine”), a nonprofit organization specializing in the care and education of individuals with autism. R. 654.[1] In this action, Parents seek reimbursement for the costs of Lizzie's placement at Alpine, claiming that El Paso County School District 11 (the “District”) failed to develop an individualized education plan (“IEP”) for the 2015-2016 school year that would provide their daughter with a free and appropriate public education (“FAPE”) as required by the Individuals with Disabilities in Education Act (“IDEA”).

         Parents received a due process hearing as required by the IDEA before Administrative Law Judge Keith Kirchubel of the Colorado Office of Administrative Courts (“ALJ”). The ALJ found that the District was providing Lizzie with a FAPE, and that Parents' alternative private placement did not provide Lizzie with an education in the least restrictive environment as required by statute. R. 1462. The parties agree that the Parents' appeal can be resolved based on the evidence in the administrative record and the briefing. See ECF No. 20, ¶ 11(b). The briefing in this case includes the Parents' opening brief, the District's response brief, Parent's reply brief, District's sur-reply brief, Parents' sur-sur reply brief, and several filings on supplemental authorities. ECF Nos. 33, 38, 41, 46, 47-52. After a careful review of the administrative record and the parties' arguments, the ALJ's decision is AFFIRMED.

         I. BACKGROUND

         In a review of an administrative decision under the IDEA, the district court considers the ALJ's findings of fact to be prima facie correct. Garcia v. Bd. of Educ. of Albuquerque Pub. Sch., 520 F.3d 1116, 1125 (10th Cir. 2008) (citing Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982)). After reviewing the administrative record, especially the transcript of the administrative hearing, I find no reason to disagree with any of the factual findings outlined by the ALJ at R. 1442-56. I incorporate these factual findings fully and will summarize key points here.

         Lizzie is a child that experiences significant seizure activity, epilepsy and autism spectrum disorder. She has undergone numerous brain surgeries, including one surgery to place 126 electrodes on the surface of her brain to track her seizures which unfortunately involved major post-surgical complications. R. 2503, 2580-82, 2586. Lizzie experiences seizures of different types, some that are obvious to the untrained eye and others termed “absence seizures, ” which are more difficult to detect and marked by her eyes becoming fixed or rolling back. R. 1442. Lizzie also experiences language delays, impaired impulse control marked by attempts to “elope” or run away without notice, and trouble with fine motor activity, requiring assistance with things like dressing and bathing. R. 1442. All parties agree that Lizzie is a child with a disability in need of special education services. R. 1442.

         Lizzie was born in New York, where she was enrolled in a preschool program receiving special education services featuring a one-on-one instructional aide qualified in Applied Behavior Analysis (“ABA”) methodology. R. 2529. ABA methodology is a well-regarded form of treatment for children with autism that focuses on teaching behaviors using “operant conditioning, ” or teaching using a stimulus, a response and a reinforcement. See R. 2466-67, 2589. A Board Certified Behavior Analysist (“BCBA”) is a professional who has received a master's degree and undergone additional training to become a behavior analyst. R. 2601. A BCaBA is a behavior analysist one step below a BCBA at the bachelor's level of certification. R. 2602, 2683.

         In New York, Lizzie was in a classroom of six children with autism and was integrated with up to twelve children at recess or break times, some of whom were neurotypical. R. 2530. The family moved to Colorado from New York in January 2014 so that Lizzie could access alternative therapy options. R. 1443. Once in Colorado, Lizzie attended preschool at Scott Elementary School for the 2013-2014 school year. R. 2530-31. The family moved within Colorado, and Lizzie attended preschool for the 2014-2015 school year at Madison Elementary School. R. 2530. In both schools she was placed in an integrated class of sixteen students with one teacher and two aides for the room. R. 2530.

         In the fall 2014 Lizzie began experiencing complications from the electrode surgery which necessitated another surgery in October 2014. This resulted in her absence from the entire second quarter of the school year. R. 2586. Beginning in March 2015 Lizzie attended Alpine for half-days in the morning under a Medicaid program waiver. R. 2949, 3128. In this program she worked on language acquisition and behaviors using ABA methodology in a highly structured learning environment. R. 1443. A BCaBA therapist that worked with Lizzie at Alpine, Cara Krzemien, testified that this structured environment helped Lizzie manage harmful behaviors such as noncompliance, self-injurious behaviors, “chinning, ” which involves applying pressure with her chin to objects, and self-stimulating behaviors or “stimming”. R. 2707. Self-stimulating behaviors are repetitive actions such as creating and then re-creating piles of objects that can result from her desire to avoid a task. R. 1442. Although Lizzie engages in these behaviors when left alone, providers are able to interrupt such behaviors and redirect Lizzie back onto task. R. 2709.

         Parents voiced concerns over Lizzie's placement in a regular education classroom without a one-on-one aid, and in July 2015 the parties reached a written settlement resolving issues with the Student's preschool enrollment. Because this settlement included a release of all claims arising prior to July 31, 2015, the scope of issues in the hearing before the ALJ were limited to events after July 2015. R. 1443. The settlement agreement provided that Lizzie would spend each afternoon at the District's Teacher Training Lab at Twain Elementary School (“Lab”) for the first quarter of the 2015-2016 school year. The Lab is a training facility where District staff learn ABA principles from a qualified instructor while the curriculum is being delivered to students. R. 2611-15. One goal of the Lab is to provide intensive instruction for and assessments of a child to develop a program that can be implemented when the child returns to her neighborhood school. A concurrent goal is to improve the ability of District staff to serve the needs of students with autism in the neighborhood school. R. 2612. Typically a child will complete a quarter at the Lab, then return to a continuum room in her neighborhood school that duplicates what was done in the Lab with the supervision of a BCBA assigned to that school. Id.

         Lizzie attended the Lab beginning in fall 2015 for half-days. Lizzie continued to attend Alpine thereafter in the mornings (though this was not provided for in the IEP or funded by the District) and attended the Lab in the afternoon. R. 2492, 3128. The Lab provided one adult to one student support, and often two-to-one support, for Lizzie. R. 2923. In the program she worked with an educational assistant-in-training, a special education teacher, and at times an occupational, physical or speech-language therapist. R. 2612-18, 1443. Because the Lab is not intended to be a permanent placement for students, the parties planned follow-up IEP meetings to determine Lizzie's placement after the first quarter. R. 1896.

         The District and Parents had a follow-up IEP meeting on August 17, 2015. R. 1896. The August 2015 IEP specified that Lizzie would return to a regular early childhood program for at least 10 hours per week and receive the majority of special education and related services in some other location, which District staff indicated would be a “continuum classroom.” R. 1907, 2618, 2628. The August 2015 IEP also set the next IEP meeting to occur on or before October 19, 2015 so that the parties could resolve Lizzie's placement for remainder of the 2015-2016 school year. Before the October 2015 IEP could take place, however, the special educator who had been working with Lizzie at the Lab resigned. R. 3002. The District offered to extend Lizzie's stay in the Lab for another quarter so that a replacement teacher could train with her, but the educator's resignation meant that Lizzie would have to attend Madison Elementary for a period of eight days. R. 2112-13, 2540. After an unsuccessful meeting with the District to address alternative options, the Parents filed a due process complaint on October 7, 2015. R. 1938. On October 19, 2015 the parties signed a partial settlement agreement to resolve the due process complaint. R. 1940. The partial settlement agreement mandated that Lizzie attend the Lab through December 18, 2015 with a new special educator-in-training. Id.

         On December 3, 2015 Parents filed a notice of intent to unilaterally place Lizzie at Alpine full-time starting January 4, 2016. R. 654. The notice also indicated that Parents would seek reimbursement from the District for private placement of Lizzie. On December 14, 2015 another IEP meeting was held. This was attended by Parents, their advocate Crystal Morgan, an attorney for the District, Alpine staff Sandra Ruvulcaba and Cara Krzemien, and a number of District employees, many of whom worked directly with Lizzie: a special education facilitator, a school psychologist, a speech language pathologist and teacher at the Lab, an assistive technology coordinator, an occupational therapist, a physical therapist, a BCBA behavior consultant, a school nurse, a speech language pathologist at Madison, and the Madison principal. R. 1917. The IEP team considered the reports of Dr. Edmundson, who treated Lizzie and administered a Vineland-III assessment, Dr. Rachel Toplis, who conducted the independent psychological assessment, and Lizzie's private physical and occupational therapists.

The December 2015 IEP that emerged from this meeting specified that
Elizabeth will be provided constant adult supervision for safety, personal care, communication, eating, and redirection across all school settings. Elizabeth will receive direct Special Education services to work on pre-academic skills. Services will include strategies and techniques consistent with those demonstrated at the Twain Training Lab including, but not limited to consistent reinforcement, first/then strategies, visual prompts, and errorless teaching strategies. Direct and Indirect school-based occupational therapy services for fine motor skills related manipulation of classroom tools and materials. Indirect [physical therapy] consultation. Consistent access to assistive technology. Direct and indirect speech language services in a small group or one on one setting.

R. 1927. It provided for Lizzie to have at least fifteen hours of special education services per week, four hours with a speech language pathologist per month, a half hour of physical therapy per month, a half hour of occupational therapy per month, and less than forty percent of her time in the general education classroom. R. 1927. It did not provide for extended school year services. At this meeting, Parents requested a one-on-one educational assistant for Lizzie. They also advocated for an increase in time for occupational therapy, physical therapy, speech therapy and special education services. They wanted the inclusion of extended school year services and for ABA methodology to be listed specifically on the IEP. R. 1936, 2972. In the alternative, they requested placement at Alpine, where Parents felt that Lizzie was benefitting from the one-on-one instruction and ABA methodology. R. 1936, 2965, 2970.

         Unhappy with the December 2015 IEP, Parents filed an amended due process complaint in late December 2015. Lizzie began attending Alpine full-time in January 2016.

         The ALJ summarized the disputed issues for the hearing as follows:

1. Whether the District committed procedural violations in developing an IEP during August and December, 2015, IEP team meetings by precluding meaningful input from student's parents and/or by predetermining her educational program and placement, including the areas of adaptive physical education and extended school year services, prior to the IEP process;
2. Whether the District failed to appropriately measure the student's progress in the areas of behaviors and cognition in implementing the August, 2015 IEP;
3. Whether the student has received a free appropriate public education (“FAPE”) as evidenced by her substantive progress on goals and objectives present in the August, 2015 IEP; and
4. Whether the District is unable to provide the student with a FAPE going forward such that the District is responsible for reimbursement of tuition and other ...

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