G.W. v. Boulder Valley School District

          AMENDED ORDER

          Philip A. Brimmer Chief United States District Judge.

         This matter is before the Court on plaintiffs’ Amended Complaint [Docket No. 82] and Opening Brief [Docket No. 105]. Plaintiffs, G.W. and his mother, J.W., request reversal of two decisions by the State of Colorado, Office of Administrative Courts: (1) a decision dismissing J.W.’s claims that Boulder Valley School District (“BVSD”) failed to provide G.W. with a free appropriate public education (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.; and (2) a decision ordering J.W. to comply with Jefferson County School District’s (“JCSD”) requests to evaluate G.W. for purposes of developing an individualized educational plan (“IEP”). See Docket No. 82 at 5. Plaintiffs also assert claims against BVSD and JCSD for disability discrimination under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. See Docket No. 82 at 5-6. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 20 U.S.C. § 1415(i)(3)(A).

         I. FACTUAL BACKGROUND^[1]

         A. Boulder Valley School District

         G.W. was born in March 1996 and suffers from a traumatic brain injury (“TBI”). AR Vol. IV at 54-66; Supp. AR Vol. I at 35.^[2] It is undisputed that, at all times relevant to this appeal, G.W. qualified for educational services under the IDEA. See Docket No. 105 at 9; Docket No. 111 at 3; Docket No. 110 at 2.^[3]

         G.W. attended public school between first and sixth grades. AR Vol. I at 256; AR Vol. IV at 1-2 (Exhibit 2), 55 (Exhibit 6). Toward the end of sixth grade, G.W. began having more behavioral issues, resulting in his out-of-district placement the following school year. AR Vol. I at 256; AR Vol. IV at 1-2 (Exhibit 2), 55 (Exhibit 6).^[4] G.W. returned to public school for the beginning of eighth grade, but transitioned to Monarch High School after being suspended for a behavioral incident. AR Vol. I at 256; AR Vol. IV at 1 (Exhibit 2), 55 (Exhibit 6). While at Monarch, G.W. worked one-on-one with Dawn Collamer, a behavioral consultant for BVSD, for about four months. Supp. AR Vol. I at 147, 251-52; AR Vol. IV at 56 (Exhibit 6). J.W. testified that G.W. did well during this period. Supp. AR Vol. I at 251. At some point, G.W. began working with a different one-to-one aide and his behavioral issues increased. AR Vol. IV at 56 (Exhibit 6). BVSD and J.W. agreed that G.W.’s placement at Monarch was no longer working, so they moved him to Creative Perspectives, a/k/a Spectra Autism Center, in August 2012. AR Vol. IV at 1 (Exhibit 1), 56 (Exhibit 6); Supp. AR Vol. I at 36-37; AR Vol. IV at 1 (Exhibit 2).^[5] At an annual IEP review meeting on June 18, 2013, G.W.’s IEP team determined that a separate school/day treatment program was the least restrictive environment that could meet G.W.’s behavioral needs and recommended his continued placement at Spectra. AR Vol. IV at 3, 19-21 (Exhibit 2). According to the IEP document, G.W.’s “IEP team [was] in agreement with [his IEP].” Id. at 21.

         On September 23, 2013, neurologist Amy K. Connery, Psy. D., conducted an independent educational evaluation of G.W. using the following assessment tools: the Weschler Adult Intelligence Scale, Fourth Edition; the Weschler Individual Achievement Test, Third Edition; the Grooved Pegboard Test; the Rey Complex Figure Test and Recognition Trial; the Wide Range Assessment of Memory and Learning - 2; a Behavior Rating Inventory of Executive Function; the Adaptive Behavior Assessment System, Second Edition; a writing sample; a records review; and a clinical interview. AR Vol. IV at 54 (Exhibit 6). In her report dated October 7, 2013, Dr. Connery found that G.W. had significant delays in cognitive functioning, executive functioning, concentration, and self-regulation, with relative areas of strength in verbal ability and math computation. AR Vol. IV at 58-63 (Exhibit 6). She stated that G.W. would “continue to require intensive, individualized programming” built around his academic strengths and weaknesses, and that “continued efforts to develop a consistent behavioral plan that [would] support [G.W.] in better tolerating frustration and navigating challenges in the academic environment would be a critical component to his educational plan.” AR Vol. IV at 63. At the administrative hearing, Scott Sparks, Director of Secondary Special Education for BVSD, testified that Dr. Connery’s evaluation led him to believe that BVSD needed to look for a program that “specifically focused on the traumatic brain injury.” Supp. AR Vol. 1 at 41.

         G.W. was discharged from Spectra Autism Center on October 18, 2013. AR Vol. IV at 33 (Exhibit 3). On November 5, 2013, BVSD entered into an agreement with Humanex Academy, a private school in Englewood, Colorado, to provide G.W. with day services. AR Vol. IV at 69-82 (Exhibit 9); Supp. AR Vol. 1 at 42-43. On November 14, 2013, G.W.’s IEP team met to determine G.W.’s continued eligibility for special education. See AR Vol. IV at 83 (Exhibit 10), 85 (Exhibit 11). The IEP team found that G.W. continued to qualify for services as a student with TBI, AR Vol. IV at 83 (Exhibit 10), and that a separate school was “the most appropriate placement to meet G.W.’s needs going forward.” AR Vol. IV at 85 (Exhibit 11). This determination was based on input from G.W.’s mother as well as evaluations conducted by Dr. Connery and Spectra staff. AR Vol. IV at 85 (Exhibit 11).

         Following behavioral incidents on November 15 and 19, 2013, Humanex determined it could no longer serve G.W. AR Vol. IV at 87-90 (Exhibit 12). G.W. was dismissed from Humanex on November 19 or 20, 2013. AR Vol. IV at 90 (Exhibit 12), 93 (Exhibit 14); AR Vol. I at 258; Supp. AR Vol. 1 at 48. On December 2, 2013, Mr. Sparks and J.W. met to discuss alternative placements. AR Vol. IV at 97 (Exhibit 15); Supp. AR Vol. I at 49. Over the course of the next month, Mr. Sparks and J.W. researched several placement options, including Cherry Creek School District, Learning Services, Timberridge in Benson, Arkansas, Ivy Street School in Brookline, Massachusetts, and Lakeview Neurorehabilitation Center (“Lakeview”) in Effingham, New Hampshire. See AR Vol. IV at 97-178 (Exhibit 15). The first three placement options were ruled out on the basis that they would not accept G.W. or were unable to meet his needs. See AR Vol. IV at 104, 106, 139 (Exhibit 15); Supp. AR Vol. I at 50. However, both the Ivy Street School and Lakeview were determined to be appropriate placements. AR Vol. IV at 174 (Exhibit 15); Supp. AR Vol. I at 58. On December 24, 2013, J.W. sent an email to Ron Yauchzee, Executive Director of Special Education for BVSD, requesting an update on the status of G.W.’s educational programming and noting it was her “understanding that both the district and [she] ha[d] pursued all appropriate programs in Colorado and those facilities ha[d] said they [could] not serve [G.W.].” AR Vol. IV at 167 (Exhibit 15). J.W. stated that she had “been moving forward with appropriate out of state programs, such as the Ivy School and Lakeview.” Id. On January 6, 2014, J.W. emailed Mr. Yauchzee stating that both she and G.W. preferred Lakeview due to safety concerns about the Ivy Street School. AR Vol. IV at 176 (Exhibit 15).

         On January 9, 2014, Mr. Sparks emailed J.W. a prior written notice for an IEP meeting to discuss G.W.’s possible residential placement at an out-of-state school. AR Vol. IV at 182 (Exhibit 17); Supp. AR Vol. I at 58. At the meeting held on January 16, 2014, G.W.’s IEP team identified a residential facility as the least restrictive environment capable of meeting G.W.’s needs and Lakeview as G.W.’s recommended placement. See AR Vol. IV at 229-30 (Exhibit 19). Although the IEP document produced at the meeting notes that J.W. desired G.W. to “gain the skills to return to Humanex Academy,” AR Vol. IV at 223 (Exhibit 19), there was no apparent disagreement regarding G.W.’s educational needs or the type of program that would be appropriate for him. Supp. AR Vol. I at 63.

         On January 17, 2014, BVSD entered into an agreement with Lakeview for residential education services. AR Vol. IV at 231 (Exhibit 20). G.W. began school at Lakeview on January 20, 2014. AR Vol. IV at 244 (Exhibit 21); AR Vol. IV at 259 (Exhibit 22). On January 22, 2014, J.W. emailed Mr. Sparks that Lakeview was “an amazing school.” AR Vol. IV at 244 (Exhibit 21).

         G.W. attended Lakeview from January 2014 to June 2014. Records from the school indicate that, although G.W. performed well socially and academically, he continued to engage in verbal and physical acts of aggression. See AR Vol. IV at 259-69 (Exhibit 22), 284 (Exhibit 25); AR Vol. I at 259. The goal summary for March 2014 stated that G.W. would “not return home until he had 3 months of no aggressions.” AR Vol. IV at 268 (Exhibit 22); see also Supp. AR Vol. I at 73.

         On March 6 and 7, 2014, G.W. underwent a neuropsychological evaluation at Lakeview. AR Vol. IV at 284 (Exhibit 25). The evaluation report incorporated findings from previous assessments, including Dr. Connery’s September 2013 independent educational evaluation, as well as several new tests, including the California Verbal Learning Test, Second Edition; Conner’s Continuous Performance Test, Second Edition; the Delis Kaplan Executive Function System; the Hooper Visual Organization Test; the Visual Form Discrimination Test; the Wechsler Memory Scale, Fourth Edition; and the Wisconsin Card Sort Test. AR Vol. IV at 284-85 (Exhibit 25). Lakeview also completed a functional behavioral assessment (“FBA”) and behavior intervention plan for G.W. in March 2014. See AR Vol. IV at 280 (Exhibit 24), 310 (Exhibit 28).

         On February 7, 2014, J.W. informed Mr. Sparks that G.W. would become eligible for community-based services through Medicaid when he turned eighteen in March 2014. AR Vol. IV at 294 (Exhibit 26); AR Vol. I at 259. In February 2014, J.W. corresponded with Brenda Newton at Humanex, who indicated that the school was “open to reviewing [G.W.’s] progress, and determining if he [was] a fit for Humanex at [that] time.” AR Vol. IV at 300 (Exhibit 26). In response to an email from J.W. on February 28, 2014, Mr. Sparks stated that BVSD would need to look at G.W.’s “needs and [the] depth of services required to meet his needs” before reconsidering his current placement. AR Vol. IV at 299 (Exhibit 26). On March 20, 2014, Mr. Sparks told Jamie Fox, a case manager at Lakeview, that BVSD did not yet have a placement option for G.W. in Colorado. AR Vol. IV at 304 (Exhibit 26). By that time, J.W. had expressed a desire for G.W. to return to Humanex. AR Vol. I at 259; AR Vol. IV at 304 (Exhibit 26), 322 (Exhibit 30).

         In June 2014, there were two incidents at Lakeview that caused J.W. to have safety concerns about G.W.’s placement. In the first incident, Lakeview changed G.W.’s residence due to construction. AR Vol. IV at 351-56 (Exhibit 33). The second incident involved a conflict between G.W. and a staff member during a trip to the allergist. AR Vol. IV at 360-64 (Exhibit 33). After speaking with Lakeview following the second incident, Mr. Sparks informed J.W. that G.W. was “safe and happy” and that the the staff member would not be in contact with G.W. at any time. AR Vol. IV at 362 (Exhibit 33). He reiterated that “[c]ontinued placement at Lakeview [was] the district’s provision of FAPE.” Id.

         On July 14, 2014, J.W. notified Mr. Sparks that G.W. would “not be returning to Lakeview because it [was] no longer his LRE.” AR Vol. IV at 368 (Exhibit 35). G.W.’s IEP team held an IEP review meeting on July 31, 2014. AR Vol. IV at 384 (Exhibit 37), 385 (Exhibit 38). At the meeting, J.W. expressed her concern that “Lakeview [was] no longer [G.W.’s] least restrictive environment” and requested that BVSD “consult with other agencies, either in or out of the State of Colorado, so [G.W. could] receive his education in the State of Colorado.” AR Vol. IV at 387 (Exhibit 38). However, the remainder of G.W.’s IEP team agreed, over J.W.’s objection, that Lakeview remained an appropriate placement for G.W. AR Vol. IV at 412 (Exhibit 38).

         At or around the time of the IEP meeting, J.W. asked that BVSD conduct a reevaluation of G.W. See AR Vol. IV at 423 (Exhibit 40). BVSD denied that request on August 5, 2014, stating that G.W.’s “most recent reevaluation,” which included Dr. Connery’s neuropsychological report from October 7, 2013, was “current and descriptive of [G.W’s] performance and functioning.” AR Vol. IV at 423 (Exhibit 40). On September 22, 2014, J.W. sent another request for a reevaluation to Mr. Yauchzee. AR Vol. IV at 443 (Exhibit 45). She also asked that BVSD conduct a functional behavioral assessment, including an observation of G.W. in an educational setting. Id. Mr. Yauchzee denied these requests, stating that G.W.’s current reevaluation and FBA were less than a year old. AR Vol. IV at 445 (Exhibit 46).

         On October 1, 2014, J.W. informed BVSD that the Governor of New Hampshire had prohibited state government agencies from placing new patients at Lakeview due to reports of mistreatment and neglect. AR Vol. III at 674-75 (Exhibits D & E); AR Vol. IV at 459 (Exhibit 49). Mr. Yauchzee responded that BVSD was ready and willing to offer G.W. a FAPE and that, should J.W. “wish to revisit the current location of services at Lakeview, BVSD would be open to consideration of the Ivy Street School.” AR Vol. IV at 459 (Exhibit 49). On October 14, 2014, J.W. sent Mr. Yauchzee an email expressing safety concerns about Ivy Street School and stating that she did not think it was in G.W.’s “best interest to be removed from the State of Colorado.” AR Vol. IV at 461 (Exhibit 49).

         On November 10, 2014, G.W.’s IEP team met to discuss the “location of delivery of services identified in [G.W.’s] current IEP.” AR Vol. IV at 481 (Exhibit 51). At the meeting, J.W. requested a reevaluation of G.W. and a follow-up meeting to reconsider G.W.’s placement. See AR Vol. IV at 483 (Exhibit 52).^[6] In an email dated November 13, 2014, Mr. Yauchzee explained that “the District ha[d] properly denied [J.W.’s requests] because the current evaluation and IEP include[d an] accurate representation of educational services and goals to address [G.W’s] educational needs.” AR Vol. IV at 483 (Exhibit 52). According to Mr. Yauchzee, BVSD had invited J.W. to suggest other options for location of services at the November 10, 2014 meeting, but J.W. had failed to recommend any schools fitting within the parameters identified by the district. Id. In a follow-up email on November 14, 2014, Mr. Yauchzee reiterated that BVSD’s offer of FAPE was the Ivy Street School in Boston. AR Vol. III at 708.

         From approximately July 2014 to April 2015, G.W. lived at an apartment in Boulder with two live-in caregivers. AR Vol. I at 261; AR Vol. IV at 377 (Exhibit 36), 425-35 (Exhibit 42). He attended a day program four days a week, but he did not receive educational services. Supp. AR Vol. I at 259. Reports from G.W.’s caregivers indicate that he continued to have difficulties with behavior and self-regulation. See AR Vol. IV at 425-35 (Exhibit 42).

         On April 28, 2015, G.W. began attending Wheat Ridge Regional Center (“WRRC”) in Arvada, Colorado. Supp. AR Vol. I at 256, 260-63.^[7] J.W. testified at the administrative hearing that G.W. would stay at WRRC during the week and return to his Boulder apartment on weekends, where he was supported by a live-in aide. See Supp. AR Vol. I at 260-61. WRRC’s day program is vocational and does not include educational services. Supp. AR Vol. I at 263. The parties agree that the Jefferson County School District became G.W.’s “administrative unit of attendance” on April 28, 2014 and thus legally responsible for providing G.W. with a FAPE. See Docket No. 105 at 11; Docket No. 110 at 4; Docket No. 111 at 10; see also Colo. Code Regs. § 301-8:2220-R-2.02(1)-(2)(b), 8.02(1).^[8]

         B. Jefferson County School District R-1

         In May 2015, J.W. enrolled G.W. in JCSD. Supp. AR Vol. III at 38. On May 28, 2015, she consented to JCSD evaluating G.W. for purposes of developing a new IEP for the 2015-2016 school year. AR Vol. V at 808-09 (Exhibit A), 812 (Exhibit B); Supp. AR Vol. III at 37-41. JCSD planned to complete the necessary assessments at WRRC. Supp. AR Vol. III at 41. In July, however, J.W. objected to JCSD evaluating G.W. in a day program setting rather than an educational setting. See AR Vol. V at 821. On August 25, 2015, J.W. signed another consent form for JCSD to evaluate G.W., but specified that JCSD was permitted to proceed with the evaluations/assessments “in an educational setting.” AR Vol. V at 825. On September 21, 2015, Becky Dancer, the Director of Special Education for JCSD, emailed J.W. that JCSD had “been working to evaluate [G.W.] so that an IEP meeting [could] be convened,” but that J.W. had “refused to allow the District to conduct assessments and observations at Wheat Ridge Regional Center (WRRC), or confer with any of [G.W.’s] service providers at WRRC.” AR Vol. V at 840 (Exhibit F). Ms. Dancer stated that JCSD could not complete G.W.’s comprehensive evaluation without “unfettered access to [G.W.] and his current service providers at WRRC.” Id. She further explained that, if J.W. declined to provide consent by September 22, 2015, JCSD would “seek an order permitting the District to conduct the evaluation.” Id.

         On September 22, 2015, J.W. emailed Ms. Dancer that there was “no legal basis” for her to consent to JCSD speaking with WRRC and obtaining G.W.’s records unless JCSD agreed that residential services were a necessary “educational benefit.” AR Vol. V at 852. On a consent form dated September 23, 2015, J.W. indicated that she did “not consent to evaluations, assessments and/or observations to be conducted at WRRC.” AR Vol. V. at 861.

         II. PROCEDURAL BACKGROUND

         A. J.W. v. Boulder Valley School District

         On July 31, 2015, J.W. filed a due process complaint with the Colorado Department of Education, Office of Administrative Courts, alleging that BVSD violated G.W.’s procedural and substantive rights under the IDEA and requesting a private school placement for G.W. in Colorado. AR Vol. I at 3-11. On August 10, 2015, BVSD filed a response and notice of insufficiency stating that the complaint did not “set forth any appropriate proposed resolution of [the] matter.” AR Vol. I at 130. J.W. filed an amended due process complaint on September 11, 2015 requesting, among other things, G.W.’s immediate placement at Accelerated Schools in Denver and “compensatory educational costs of residential services and private school tuition.” AR Vol. I at 183. BVSD filed an answer to the amended complaint on September 21, 2015. AR Vol. I at 189.

         On November 2 and 9, 2015, the Office of Administrative Courts held a hearing on J.W.’s due process complaint. Supp. AR Vol. I, II. J.W. appeared without an attorney. Supp. AR Vol. I at 5. On November 17, 2015, the ALJ issued a decision finding that J.W. had failed to establish any violation of the IDEA or ECEA, Colo. Rev. Stat. §§ 22-20-101 et seq.^[9] Specifically, the ALJ concluded that there was insufficient evidence to substantiate J.W.’s claims that BVSD had predetermined G.W.’s placement at the July 2014 and November 2014 meetings, failed to conduct necessary evaluations of G.W., or denied G.W. a FAPE. AR Vol. I at 263-65.

         B. Jefferson County School District v. J.W.

         On October 19, 2015, JCSD filed a due process complaint against J.W. seeking to have G.W. evaluated for purposes of developing a new IEP. AR Vol. II at 331; AR Vol. III at 3. A hearing was held on December 16, 2015, at which J.W. did not appear. Supp. AR Vol. III at 3, 5. On December 29, 2015, the ALJ issued a decision finding that the evaluations sought by JCSD were “reasonable and properly focused on [G.W.’s] disability and potential educational needs.” AR Vol. II at 605.^[10] The ALJ ordered JCSD to conduct various assessments, directed J.W. not to interfere in those assessments, and authorized WRRC to release information to JCSD regarding G.W. AR Vol. II at 605-06.

         C. Proceedings in This Court

         On February 16, 2016, plaintiffs, G.W. and J.W., filed a pro se complaint against BVSD, JCSD, and various individual defendants asserting violations of G.W.’s substantive due process and equal protection rights, disability discrimination under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and state-law claims for assault and battery. Docket No. 1 at 14-18. On March 8, 2016, plaintiffs moved, pursuant to 20 U.S.C. § 1415(j), for an order requiring that G.W. remain in his then-current educational placement pending resolution of the lawsuit. See Docket No. 15. The Court denied the motion on March 18, 2016, finding that there was no current educational placement because J.W. had not attended school since his removal from Lakeview in 2014. Docket No. 35 at 6.

         Pro bono counsel entered his appearance on behalf of plaintiffs on May 25, 2016. Docket No. 65. On July 22, 2016, plaintiffs filed an amended complaint seeking review, under the IDEA, of the ALJ’s decisions on J.W. and JCSD’s due process complaints and asserting claims against BVSD and JCSD under § 504 of the Rehabilitation Act. Docket No. 82 at 5-6. Plaintiffs requested “compensatory educational services and compensatory damages in an amount to [be] proven at trial.” Id. at 6. In a scheduling order entered on August 25, 2016, the parties stated that a trial was unnecessary and that the lawsuit could be resolved based on the parties’ briefs and the administrative record. Docket No. 92 at 9. Plaintiffs filed their opening brief on November 30, 2016. Docket No. 105. On January 17, 2017, JCSD and BVSD filed separate response briefs, Docket Nos. 110, 111, to which plaintiffs replied. Docket No. 116. On December 8, 2017 and February 13, 2018, plaintiffs filed notices of supplemental authority in support of their claims. Docket Nos. 123, 124.^[11]

         III. INDIVIDUALS WITH DISABILITIES IN EDUCATION ACT

         The IDEA conditions federal education funding on a state’s compliance with certain requirements intended to ensure that states identify, evaluate, and serve children with disabilities. See 20 U.S.C. §§ 1412, 1414, 1416. One such requirement is that states establish policies and procedures to ensure that a FAPE is m ade available to every child between the ages of 3 and 21 who is determined to have a disability within the meaning of the IDEA. 20 U.S.C.

         § 1412(a)(1). A FAPE is defined as .

special education and related services that –

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section ...