United States District Court, D. Colorado
G.W., by his mother and legal guardian, J.W., in her own right, Plaintiffs,
v.
BOULDER VALLEY SCHOOL DISTRICT and JEFFERSON COUNTY SCHOOL DISTRICT R-1, Defendants.
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 ...