G. v. Harrison School District 2

• Court: District Court, D. Colorado
• Decided: October 2, 2020
• Docket: 1:17-cv-01034
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Marcia S. Krieger

Civil Action No. 17-cv-01034-MSK-KLM

PATRICK G., by and through his parents and next friends, Stephanie G. and Daniel G.,

Plaintiff,

v.

HARRISON SCHOOL DISTRICT NO. 2,

Defendant.

OPINION AND ORDER ON ADMINISTRATIVE APPEAL

THIS MATTER comes before the Court pursuant to Plaintiff’s appeal of the decision of an Administrative Law Judge (“ALJ”) and request for attorney fees (# 1). Upon the Court’s consideration of the parties’ arguments (# 27 - # 29) and supplemental briefing (# 30 - 33, # 35 - 38, # 51 - 54) presented in light of the Administrative Record (# 20), this appeal is DISMISSED as moot. I. JURISDICTION The Court has jurisdiction over an appeal from a final decision of the Colorado Office of Administrative Courts under 20 U.S.C. § 1415(i)(2)(A) and over claims presenting a federal question under 28 U.S.C. § 1331.

1 II. BACKGROUND1 Though the parties have a lengthy history of disputes over the educational services at issue in this case, the Court only recounts the facts relevant to the limited issue on appeal.2 Plaintiff Patrick is a minor child enrolled in the Defendant Harrison School District # 2 (the District). Patrick has been diagnosed with an autism spectrum disorder and speech delay,

both of which entitle him to special education and related services. (# 20 at 152-153). In 2013, when Patrick was 12 years old, he moved to Colorado Springs from Pennsylvania. His mother met with District personnel. In conformance with the Individuals with Disabilities Education Act (“IDEA”)3, the District placed Patrick at Alpine, a private behavioral facility in Colorado Springs (# 20 at 153-154). In April 2014, Patrick’s IEP team convened, and the District proposed moving Patrick from Alpine to an unspecified public school for the following school year. (# 20 at 155). Patrick’s parents and the parents of three other

1 The Court recounts the facts as stated in the administrative decision (# 20 at 152-175), giving due weight to factual findings, and supplementing them by references to the record. See L.B. v. Nebo Sch. Dist., 379 F.3d 966, 974 (10th Cir. 2004). For ease of reference, common acronyms are used by the parties and the Court. The IDEA is the Individuals with Disabilities in Education Act. A FAPE is a Free Appropriate Public Education. An IEP is an Independent Education Plan.

2 The Court understands that this challenge is limited to the ALJ’s ruling that the 2016 IEP was reasonably calculated to provide Patrick with a FAPE and a request for attorney fees.

3 It is undisputed the IDEA requires that Colorado provide a free appropriate public education (FAPE) to all eligible children. 20 U.S.C. § 1412(a)(1). A FAPE includes both special-education instruction and related services to assist in the child’s benefit from instruction. 20 U.S.C. § 1401(9), (26), & (29). Such instruction and services are memorialized in the child’s IEP, developed in a collaborative process involving both parents and educators. 20 U.S.C. §§ 1401(9)(D), 1414.

2 children4 who were similarly situated filed a joint complaint with the Colorado Department of Education. The State Complaints Officer (“SCO”) ruled in favor of the parents and prohibited the District from changing the students’ school placement until it fulfilled a number of IDEA requirements. Thus, Patrick remained enrolled at Alpine. (# 20 at 154-155). In April of 2015, the District informed Patrick’s parents that it needed to conduct the

IDEA required triennial review of Patrick’s educational needs and eligibility to receive special education services. Patrick’s triennial review occurred in October and November 2015 and included a comprehensive battery of assessments conducted by District employees at Alpine. (#20 at 155-159). Patrick’s IEP team met in both January and May 2016, discussed the evaluations and weighed the advantages and disadvantages of moving Patrick’s placement from Alpine to Mountain Vista, a public school. (# 20 at 160-164). The team determined that Patrick should be placed at Mountain Vista where he would receive specialized, small-group, social and academic instruction in the special education classroom and where he would have access to a

general education classroom to practice social skills. (# 20 at 163-164). Patrick’s mother opposed this placement. On May 20, 2016, the District discontinued its payments to Alpine. Patrick continues to attend Alpine; his tuition payments are covered by his parents’ insurance provider, TRICARE. The parents pay a $35 monthly premium to TRICARE. (# 20 at 166-167).

4 The cases involving two of the other children – Steven R.F. and Nathan M. -- who were also enrolled at Alpine are relevant here because both the facts are similar to Patrick’s appeal and the 10th Circuit has recently issued decisions in those analogous cases as discussed infra.

3 Patrick’s parents filed a due process complaint seeking to have Patrick remain at Alpine and receive reimbursement for such placement after May 2016. (# 20 at 167). Upon consideration of the complaint and evidence presented at a hearing, an Administrative Law Judge (ALJ) held that the District’s 2016 IEP offered Patrick a FAPE and thus, after May 2016, the District was not required to bear the cost of Patrick’s attendance at Alpine. For times prior to

May 2016, the District was directed to reimburse Patrick’s parents for the $35 monthly insurance premiums and any other amounts they expended for Patrick’s tuition and additional services.5 (#20 at 175). Patrick’s parents now bring two claims – one for review and reversal of the ALJ’s “adverse” determination pursuant to 20 U.S.C. §1415(C) and one for attorney fees and costs pursuant to 20 U.S.C. § 1415(i)(3)(B)(i)(I). (# 1). After this appeal was fully briefed, the Court requested supplemental briefing from the parties in light of the 10th Circuit’s recent decisions in Stephen R.F. ex rel. Fernandez v. Harrison Sch. Dist. No. 2, 924 F.3d 1309, 1310 (10th Cir. 2019) and Nathan M. ex rel. Amanda M. v. Harrison Sch. Dist. No. 2, 942 F.3d 1034, (10th Cir. 2019). In those cases, the Tenth

Circuit determined that similar IEP challenges from parents – who had children enrolled at Alpine and opposed the Harrison School District’s decisions to place their children at other schools – were moot because the alleged IDEA violations were not capable of repetition absent review.

5 The ALJ also found that the District has discretion to include TRICARE as a payee on its reimbursement payment. (# 20 at 174-175).

4 III. LEGAL STANDARDS States receiving federal funds for education must, among other things, provide a free appropriate public education (FAPE) to all eligible children. 20 U.S.C. § 1412(a)(1). A FAPE includes special-education instruction and related services to assist in the child’s benefit from instruction. 20 U.S.C. § 1401(9), (26), & (29). Such instruction and services are

memorialized in the child’s individualized education program (IEP), which is to be developed in a collaborative process involving both parents and educators. 20 U.S.C. §§ 1401(9)(D), 1414. “The IEP is a written statement that sets forth the child’s present performance level, goals and objectives, specific services that will enable the child to meet those goals, and evaluation criteria and procedures to determine whether the child has met the goals.” Ass’n for Cmty Living v. Romer, 992 F.2d 1040, 1043 (10th Cir. 1993). The IEP is the means through which special education and related services are “tailored to the unique needs” and circumstances of a particular child — “the centerpiece of the statute’s education delivery system for disabled children.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1 (Endrew II), 137 S. Ct.

988, 999 (2017). A FAPE has both substantive and procedural components. The Court determines whether the district complied with the IDEA’s procedural requirements and whether the IEP developed by those procedures is substantively adequate. Bd. of Educ. v. Rowley, 458 U.S. 176, 206–07 (1982). If a district meets both substantive and procedural requirements, it “has complied with the obligations imposed by Congress and the courts can require no more.” Id. at 207. To “meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s

5 circumstances.” Endrew II, 137 S. Ct. at 999. For children not “fully integrated in the regular classroom and not able to achieve on grade level”, the IEP “must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom.” To be reasonably calculated to accomplish a particular objective requires “a

prospective judgment by school officials [and] contemplates that this fact-intensive exercise will be informed not only by the expertise of school officials, but also by the input of the child’s parents or guardians.” Review of an IEP considers the question of whether the IEP is reasonable, not whether it is ideal. Id. at 999–1000. The IDEA does not require that an IEP “provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded to children without disabilities.” The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created. Id. at 1001. IV. DISCUSSION In light of recent 10th Circuit decisions Steven R.F. and Nathan M., the Court first

addresses the threshold issue of mootness to determine whether it has subject matter jurisdiction over this case. 1. Mootness The Court’s jurisdiction under Article III extends only to “actual ongoing controversies.” Honig v. Doe, 484 U.S. 305, 317 (1988); see McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996) (“[T]he existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction.”). If an actual controversy ceases to exist at any stage

6 of litigation, the case has become moot and should be dismissed. Fischbach v. N.M. Activities Ass’n, 38 F.3d 1159, 1160 (10th Cir. 1994) (“Generally, the actual controversy between the parties ‘must exist at [all] stages of appellate or certiorari review, and not simply at the date the action is initiated.’ ” (quoting Roe v. Wade, 410 U.S. 113, 125 (1973)). There are, however, exceptions to the mootness doctrine. The four generally recognized

exceptions are: (1) the plaintiff continues to have secondary or collateral injuries even after resolution of the primary injury; (2) the issue is deemed a wrong capable of repetition yet evading review; (3) the defendant voluntarily ceases an alleged illegal practice, but is free to resume it at any time; or (4) the action is a properly certified class action suit. See Riley v. INS, 310 F.3d 1253, 1256–57 (10th Cir. 2002). Relevant here is the second exception which applies to “certain cases [that] appear technically mooted, [but] are in reality live controversies because they will recur and again evade review.” Nathan M., 942 F.3d at 1040. “The capable-of- repetition, yet evading review exception applies in exceptional situations when (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or

expiration, and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again.” Id. (internal quotations marks and citations omitted). The party asserting the exception bears the burden of establishing its application. Id. In cases like the instant appeal where the parents are challenging an IEP, the 10th Circuit has found the first prong of the exception “easily satisfied.” Id. IEPs are generally short-lived – lasting for only a single school year – and judicial review is not.” Id. (citing Bd. of Ed. of Hendrick Hudson Cent. Sch. Dist. v. Rowley , 458 U.S. 176, 186 n.9 (1982). Thus, the Court turns to the second prong – whether there is “a reasonable expectation that the same complaining

7 party would be subjected to the same action again”. Id. at 1041. In the IDEA context, the Steven R.F. decision recently clarified the second prong’s inquiry as “the likelihood that the specific IDEA violations alleged will be repeated.” Steven R.F., 924 F.3d at 1316. a. Steven R.F. As in this appeal, Steven R.F. involved a child who suffers from autism placed at Alpine

in 2013 by the Harrison School District. In 2016, the District convened an IEP meeting and determined to place Steven at a public school. Id. at 1311-1312. Steven’s mother challenged specific procedural actions by the District in relation to Steven's 2016–2017 IEP. The SCO agreed with Steven’s mother, and the District filed a due process complaint. An ALJ determined that placement at a public school provided Steven with a FAPE. Steven’s mother appealed to this Court. On appeal, the District Judge found that the District’s various procedural violations constituted a denial of FAPE. The District appealed to the 10th Circuit Court of Appeals. The 10th Circuit found the appeal moot because the District’s specific procedural violations did not

fall into the exception of being capable-of-repetition but evading review. The Court stated “[n]othing suggests that these alleged procedural failures will be at issue in any subsequent IDEA challenge Mother brings. If we decided now, more than three years after the challenged actions, whether those alleged failures amounted to a violation of the IDEA, we would be issuing, in effect, an advisory opinion. Our decision would merely tell the parties who was correct... . It would do nothing to define the contours of the parties’ continuing legal relationship under the IDEA such that future repetitions of the injury could be avoided.” Id. at 1316 (internal quotation marks and citations omitted).

8 b. Nathan M. A few months later, the 10th Circuit issued a similar decision in Nathan M. Nathan also suffers from autism, attended Alpine, and in 2016, the District developed an IEP that proposed moving Nathan to a public school. Arguing in support of the capable-of-repetition exception to mootness, Nathan’s parents attempted to distinguish their appeal from Steven R.F., arguing that

there were both procedural and substantive challenges (or fundamental disagreements as to what Nathan needs in a FAPE) to the 2016 IEP. Nathan M., 942 F.3d at 1042-43. However, the 10th Circuit disagreed. It held that in order to prove the capable-of-repetition exception, a parent must establish that it is “reasonably likely that the District will again violate the IDEA in the specific ways that [she] alleges it did in this case.” Id. at 1043. General allegations that the District will deny a FAPE in the future are not sufficient. c. This Action Given the caselaw in the Circuit, the question is whether Patrick’s parents have established that it is reasonably likely that the District will commit the same alleged violations of

the IDEA? There is no dispute that this action is technically moot insofar as the 2016 IEP has concluded. However, as in Nathan M, Patrick’s parents allege that the District engaged in various procedural and substantive violations regarding Patrick’s 2016 IEP which fall within the “capable-of-repetition but evading review” exception to mootness. They contend that: (1) the IEP meeting did not include representatives from Alpine; (2) the District did not conduct an adequate reevaluation of Patrick; (3) a Mountain Vista special education teacher did not participate in the evaluations at Alpine; (4) the District had predetermined Patrick’s placement

9 prior to the 2016 IEP meetings; (5) the 2016 IEP denies a FAPE due to the absence of a behavioral intervention plan (“BIP”); (6) the 2016 IEP denies a FAPE in the least restrictive environment; and (7) Patrick is entitled to compensatory services for speech, language and occupational therapy. For these alleged violations, Patrick’s parents request relief in the form of reimbursement by the District for the educational costs at Alpine and for private speech,

language and occupational therapy services. (# 20 at 1-3, 168-175). Nathan M. teaches that each alleged violation must be considered with specificity, and that for the “capable-of-repetition but evading review” exception to apply, the record must show that there is a reasonable expectation that the same action will occur in the future. In essence, the record must show a defined, continuing controversy that must be resolved. The first four alleged violations appear to be procedural. Patrick’s parents do not cite to anything in the record indicative that they are likely to be repeated, and thus in accordance with the reasoning of the Nathan M. decision, they are moot. As to allegation (5), Patrick’s parents do not identify why a future IEP would not include

a BIP. Indeed, the record reflects that if Patrick demonstrated the need for a BIP in the future, his 2016 IEP would be amended to add such services. (# 20 at 163). In support of the 2016 IEP’s conclusion that Patrick did not require a BIP, the record reflects that both the Mountain Vista school psychologist and the Mountain Vista social worker reported that not every student with autism requires a BIP. (# 20 at 825:13-25-826). They observed Patrick’s behaviors on approximately five occasions and reported that his behaviors were not “aggressive” enough to require a BIP. “[H]is behaviors were very typical of a student with autism.” (# 20 at 825:24- 25). The fact that no formal BIP was required did not mean that behavioral strategies would not

10 be used with Patrick at Mountain Vista. (# 20 at 831-832). Indeed, many of the behavioral accommodations included in Patrick’s 2016 IEP are often included in a BIP. (# 20 at 896:17- 22). Patrick’s behavioral concerns were discussed, and the entire IEP team, including Patrick’s parents, “came to the consensus that [Patrick’s concerns] could be met through accommodations through his IEP because the behaviors were not seen to be continually like those aggressive-type

behaviors.” (# 20 at 832:21-833:5). However, should Patrick demonstrate the need for a BIP once he was enrolled at Mountain Vista, one would be developed. (# 20 at 846:17-19). The record shows that the District considered Patrick’s behavioral needs both through five observation sessions and the review of Patrick’s history. The IEP team explained in detail why a BIP was not included in the 2016 IEP but that accommodations and other behavioral strategies were included. The IEP team also explained that it had the flexibility to add certain accommodations and/or a BIP to the 2016 IEP should the need arise. Patrick’s parents do not identify certain behaviors that the District failed to consider, much less explain why the behavioral accommodations included in the 2016 IEP were insufficient. Instead, the parents

seem to argue that since Patrick’s 2014 IEP included a BIP, the 2016 IEP should as well. However, the District states that based on the IEP team’s observations and testing coupled with statements from Alpine staff and Patrick’s parents, Patrick’s behavior challenges identified in the 2014 IEP had significantly improved by the time the 2016 IEP was developed. (# 20 at 933:5- 19). Although Patrick’s parents disagree with the BIP conclusion, there is nothing presented to suggest that consideration of a BIP in the future would not occur, or that strategies to regulate his behavior would not be employed. Thus, this dispute appears to be a factual one limited to the 2016 IEP.

11 Allegation (6) is vague. Patrick’s parents do not specify why placement at Mountain Vista denies Patrick a FAPE, and how this denial is likely to continue. There is no doubt that Alpine offers one-on-one therapy for children with autism, but no peer interaction. (# 20 at 154-155). Mountain Vista offers a specialized autism program involving small group instruction and exposure to typically developing peers. (# 20 at 163). Again, although

Patrick’s parents preferred that he attend Alpine, there is no showing that their disagreement with the District will be a “continuing controversy” that presents legal questions rather than simply fact specific challenges to the 2016 IEP. Nathan M., 92 F.3d at 1045. Patrick’s parents suggest that their dispute is an ongoing legal disagreement “based on school district policy/philosophy that favors academic progress over behavioral progress” (# 52 at 13). How the different philosophies play out, however, is fact-specific to a given IEP. The Court cannot speculate based on an expired IEP, how future IEPs might be formulated. See Nathan M., 92 F.3d at 1045-46 (“Although Parent and the District may continue to lock horns over Nathan’s educational placement, their dispute has not sharpened into a specific legal

controversy that this court is capable of resolving. … Our decision on the merits of Nathan’s 2016 IEP could have not effect in the real world.”). Under these circumstances, the Court finds Patrick’s parents have failed to establish that is reasonably likely that the District will commit the same alleged violations of the IDEA at some point in the future. Finally, in an effort to avoid dismissal of their challenge to the 2016 IEP placement as moot, Patrick’s parents offer their claim for recovery of monetary damages such as reimbursement of educational and related services, attorney fees and injunctive relief6 (# 52 at

6 On October 23, 2019, Patrick’s parents filed a motion for a stay put injunction requiring the

12 7). This request for relief requires a determination of the claims that are moot, and thus is also moot. There is no dispute that the IDEA entitles plaintiffs to reimbursement for services that a school wrongfully failed to provide, and compensatory services7 if a child has been denied a FAPE. Moseley v. Bd. of Ed. of Albuquerque Pub. Sch., 483 F.3d 689, 693-94 (10th Cir 2007).

But the substantive claims which pertain only to the expired 2016 IEP are moot.8 As a consequence, there is no monetary remedy to which Patrick’s parents are entitled. See Nathan M., 942 F.3d 1034 (citing Lillbask ex rel. Mauclaire v. Conn. Dep’t of Ed., 397 F.3d 77, 88 (2d Cir. 2005) (case moot where school district conceded parents’ position)). As to an award of attorney fees, the request is predicated on 20 U.S.C §1415(i)(3)(B), which requires Patrick’s parents to be the prevailing party. Such determination would require

District to maintain Patrick’s placement at Alpine pending completion of this case. (# 39). Because this is based upon the substantive claims that are now moot, it too is moot, and therefore denied. Also, the District has agreed to pay for Patrick’s tuition at Alpine and issued a check in an undisputed amount for the time period from May 20, 2016 through February 28, 2017 payable to both Patrick’s parents and TRICARE. (# 20 at 166-167).

7 As the 10th Circuit notes in Moseley, most circuits hold that the IDEA does not permit compensatory damages, see Diaz–Fonseca v. Puerto Rico, 451 F.3d 13, 28 (1st Cir. 2006); Gean v. Hattaway, 330 F.3d 758, 774 (6th Cir. 2003); Sellers v. Sch. Bd., 141 F.3d 524, 526–27 (4th Cir. 1998); Charlie F. v. Bd. of Educ., 98 F.3d 989, 991 (7th Cir. 1996); Heidemann v. Rother, 84 F.3d 1021, 1033 (8th Cir. 1996), a plaintiff may recover compensatory damages under § 504 and Title II in certain circumstances, see Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1153 (10th Cir. 1999) (holding that compensatory damages are available under § 504 upon a showing of intentional discrimination); Davoll v. Webb, 194 F.3d 1116, 1141 (10th Cir. 1999) (suggesting, but not explicitly holding, that proof of intentional discrimination is required for compensatory damages under Title II). In this case, no request is made on these grounds.

8 Indeed, as noted above, the pending request for a “stay put” order (# 39) to continue Patrick’s placement at Alpine is moot because it is premised on the substantive claims previously addressed.

13 the determination of the merits of moot claims, and thus no attorney fees and costs can be awarded. See Moseley, 483 F.3d at 693-94; Bd. of Education of Oak Park v. Nathan R. ex rel. Richard R., 199 F.3d 377, 381 (7™ Cir. 2000). Finding that all claims asserted in this action are moot, itis DISMISSED. The Clerk of the Court shall close the case. Dated this 2nd day of October, 2020. BY THE COURT: °

Marcia S. Krieger Senior United States District Judge