United States District Court, D. Colorado
ELIZABETH B., a minor, by and through her parents and next friends, DONALD B. and AILEEN B., Plaintiff,
EL PASO COUNTY SCHOOL DISTRICT 11, Defendant.
Brooke Jackson United States District Judge.
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. 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
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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.
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.
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 ...