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Our office receives a lot of questions about students who are placed in private schools. Are children enrolled in private schools entitled to special education supports and services? Generally speaking, students placed in private schools, including parochial schools, are not entitled to receive special education services under the IDEA from their District of residence. However, the IDEA does require school districts to spend a proportionate amount of funds for the provision of special education and related services to privately placed students with disabilities. Additionally, federal law requires school districts where the private school is located to develop a service plan for all students who are eligible to receive special education services.

CHILD FIND MANDATE: School districts are also required to locate, identify, and evaluate all students with disabilities who are enrolled in private schools located in the school district's jurisdiction. This is called the Child Find Mandate. This means that another school district, other than your district of residence, may have some responsibility for conducting an evaluation upon your child. The law states that school districts, "after timely and meaningful consultation with private schools", must engage in the child find process to determine the number of parentally placed children with disabilities who are attending private schools located in the district. Thus, a school district can't simply ignore a student with disabilities who is attending a private school within their boundaries.

Additionally, your school district of residence may have some responsibility to evaluate your child with disabilities and provide an offer of placement and services to your child, even if your child is attending a private school located in another school district. Thus, your school district of residence may coordinate with the school district where the private school is located and decide to conduct an evaluation themselves.

What does all of this mean?

Students with disabilities enrolled in private schools may have the right to a service plan.

School districts must locate, identify and evaluate students with disabilities who are enrolled in private schools within their jurisdiction.

School districts must engage in "meaningful consultation" with private schools located in the district to determine if there are students with disabilities who require special education assessment.

School districts of residence may choose to engage in the Child Find evaluation process and conduct an assessment upon a child who is attending a private school within another school district. This is typically coordinated between the two districts.

Many families contact our office with significant concerns about their privately placed child who is struggling in school. If your child is attending a private school and you have more questions about your rights, contact our office to see if we can help.

Danielle Augustin is a founding partner of Augustin Egelsee LLP, a law firm representing children and families with special education needs. Danielle has been practicing law for 20 years, first as a deputy district attorney in Orange County, California, then as a special education student attorney for the past 15 years. For more information about special education law, go to: www.OcKidsLaw.com or call 714-282-1242.

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There has been a lot of news coverage about new California legislation that would impact the way schools are allowed to discipline students. On April 22, 2019, the California State Senate voted to prohibit school districts from suspending students for willful defiance. Senate Bill 419 was approved by a vote of 30-8. Now, the bill will move on to the State Assembly for consideration.

What does this new legislation mean and why is it getting so much press? Currently, California Education Code §48900(k) allows school districts to discipline and suspend students for the following behavior:

(1) Disrupted school activities or otherwise willfully defied the valid authority of supervisors, teachers, administrators, school officials, or other school personnel engaged in the performance of their duties.

(2) Except as provided in Section 48910, a pupil enrolled in kindergarten or any of grades 1 to 3, inclusive, shall not be suspended for any of the acts enumerated in this subdivision, and this subdivision shall not constitute grounds for a pupil enrolled in kindergarten or any of grades 1 to 12, inclusive, to be recommended for expulsion.

Current law does not allow school districts to use this code section to suspend any student who is enrolled in grades K - 3. However, the new legislation would significantly change this law and extend the prohibition to grades 4-8. It would additionally prohibit school districts from suspending students in grades 9-12 until January 1, 2025.

The new law is gaining a lot of media attention. This is because some parents and school district staff believe that if the new legislation is formally passed, school administrators and teachers will no longer have the ability to discipline students in grades 4-12 appropriately. However, there is more to the story and these concerns are a bit more complicated.

There are MANY other instances specifically spelled out within the California Education Code, providing school districts with the ability to suspend and even expel students if specific acts are committed. These include conduct involving: causing, attempting to cause, or threatening to cause physical injury to another person, using force or violence upon another person, possession of weapons, possessing, using, selling, furnishing, or being under the influence of a controlled substance, committing or attempting to commit a robbery or extortion, damaging school property or private property, stealing school or private property, possessing or using tobacco or nicotine products, hazing, sexual harassment, sexual assault, bullying, cyber-bullying, terrorist threats, hate violence and intentionally engaging in harassment, threats, or intimidation, directed against school district personnel or pupils. Thus, school districts have the ability to discipline students for a variety of conduct. It is important to note that California law specifically states, "a superintendent of the school district or principal may use his or her discretion to provide alternatives to suspension or expulsion that are age appropriate and designed to address and correct the pupil's specific misbehavior" (Cal Ed. Code §48900(v)).

Since we are an education law firm, we see A LOT of discipline cases throughout the year. And, historically we've seen section (48900(k)) liberally used to discipline students and applied in vague circumstances. As you can imagine, defining the term willful defiance is quite subjective which has caused a significant amount of concern by parents. For example, we've seen students cited for this code section for wearing a hat, possessing a cell phone or other minor infractions. Additionally, many of our clients have disabilities and the current code section's vague language consisting of "disrupting school activities" and "willful defiance" has been inappropriately applied to these children who may appear to be defiant or willful, when in actuality their actions are a manifestation of their disability. Proponents of the new legislation also point to the disproportionate use of this code section upon minority students in greater numbers. Thus, the new law would help to curb this concern and would keep kids in school.

Of course, school administrators and teachers must have the authority to appropriately discipline children so that all children and school staff are protected. Finding a balance between the understandable concern on both sides of this new law is crucial. What are your thoughts about this new legislation?

Danielle Augustin is a founding partner of Augustin Egelsee LLP, a law firm representing children and families with special education needs. Danielle has been practicing law for 20 years, first as a deputy district attorney in Orange County, California, then as a special education student attorney for the past 15 years. For more information about special education law, go to: www.OcKidsLaw.com or call 714-282-1242.


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Over the past several years, more and more students are enrolling in charter schools. This has brought up many complex legal issues that parents are forced to navigate through, especially when their child requires special education supports and services.  In a nutshell, charter schools are considered to be their own Local Educational Agency (LEA).  An LEA is a common way to refer to a school district. Since charter schools are considered to be their own LEA, they are responsible for providing their students with appropriate supports and services as required under federal and state law. In fact, charter schools cannot deny admission to students on the basis of disability. Charter schools are also required to seek and find children with known or suspected disabilities and to conduct comprehensive assessments upon them so that their unique needs are appropriately addressed, and they are properly identified as a student requiring an Individualized Education Program (IEP). 

In general, charter schools are required to comply with all special education laws, including the Individuals with Disabilities Education Act (IDEA), state law and Section 504 to name a few, to provide students with a Free Appropriate Public Education (FAPE). Further, they have an affirmative obligation to serve students with disabilities, just like any other public school. The mere fact that they are a charter school, does not relieve them of their obligation to provide appropriate special education supports and services to their students. 

If a charter school doesn't have an appropriate program and services available to meet a particular student's educational needs, they still must comply with the law and cannot refuse to provide the student with an appropriate education because they don't have the staffing or infrastructure. It is also important to note that charter schools are not permitted to force students to seek placement elsewhere, even if the charter school doesn't have an appropriate program that can provide FAPE to that student. In a recent case our office handled, a charter school didn't have an appropriate program for our client to receive a FAPE. Ultimately, they were required to find another program for the Student outside of the charter and fund the program in its entirety. 

If your child is attending a charter school and you have concerns regarding the appropriateness of their program and whether they are receiving a FAPE, you may have other options that the charter school is responsible for including additional services and even an alternative placement.

Danielle Augustin is a founding partner of Augustin Egelsee LLP, a law firm representing children and families with special education needs. Danielle has been practicing law for 20  years, first as a deputy district attorney in Orange County, California, then as a special education student attorney for the past 15 years. For more information about special education law, go to: www.OcKidsLaw.com or call 714-282-1242.

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M. S. v. LOS ANGELES UNIFIED SCHOOL DISTRICT

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted December 4, 2018 Pasadena, California

Filed January 24, 2019

Summary of Decision:

The panel filed an order affirming the district court's memorandum and order, which reversed an administrative law judge's decision in an action brought under the Individuals with Disabilities Education Act (IDEA), asserting that a student was denied a free and appropriate public education. The panel agreed with the district court's conclusion that the student was denied a free and appropriate public education (FAPE) because the Los Angeles Unified School District was required to consider whether a residential placement should be offered to her for educational purposes as part of her individualized education plan notwithstanding that another county agency, the Department of Children and Family Services, had residentially placed her for mental health treatment under state law, and pursuant to a juvenile court order.

The panel agreed that the LAUSD had an independent obligation to ensure that a continuum of alternative placements was available to meet the student's educational needs and to consider whether a residential placement was necessary for educational purposes and not merely necessary quite apart from the learning process.

Order:

The district court correctly concluded that M.S. was denied a FAPE because LAUSD was required to consider whether a residential placement should be offered to M.S. for educational purposes as part of her individualized education plan (IEP) notwithstanding that another county agency, the Department of Children and Family Services (DCFS), had residentially placed her for mental health treatment under state law, and pursuant to a Juvenile Court order. In a thorough and well-reasoned opinion, the district court concluded that the LAUSD "had an independent obligation to 'ensure that a continuum of alternative placements [was] available to meet [M.S.'s educational] needs,' 34 C.F.R. § 300.115(a)-and to consider whether a residential placement was '[] necessary for educational purposes' and not merely 'necessary quite apart from the learning process.'" See Clovis Unified Sch. Dist. v. Cal. Office of Admin. Hearings, 903 F.2d 635, 643 (9th Cir. 1990).

Takeaway from the Case:

School districts are required to consider whether a Student should be placed within a residential placement under the IDEA, even if another agency has already residentially placed the student for mental health treatment purposes. Thus, districts cannot dodge their responsibility to provide students a FAPE and districts continue to have an "independent obligation to ensure that a continuum of alternative placements [are] available" to meet the student's educational needs.

Danielle Augustin is a founding partner of Augustin Egelsee LLP, a law firm representing children and families with special education needs. Danielle has been practicing law for 20 years, first as a deputy district attorney in Orange County, California, then as a special education student attorney for the past 15 years. For more information about special education law, go to: www.OcKidsLaw.com or call 714-282-1242.

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Our office receives many calls asking about their child's rights related to Dyslexia. In a nutshell, the Individuals with Disabilities Education Act (IDEA) is the federal law governing special education throughout the country. The IDEA specifically lists thirteen eligibility categories that students may qualify under to receive special education supports and services. Although Dyslexia is not specifically listed as a separate eligibility category under the IDEA, it is included within the category of Specific Learning Disability (SLD). Thus, under federal law, children with Dyslexia who require special education, usually qualify under the category of SLD. Additionally, many states have passed laws specifically related to Dyslexia including California that go above and beyond what the federal law requires. Specifically, California added a few different state statutes including section 56335 which reads in part:

The Superintendent shall develop program guidelines for dyslexia to be used to assist regular education teachers, special education teachers, and parents to identify and assess pupils with dyslexia, and to plan, provide, evaluate, and improve educational services to pupils with dyslexia. For purposes of this section, "educational services" means an evidence-based, multisensory, direct, explicit, structured, and sequential approach to instructing pupils who have dyslexia (Cal. Ed. Code sec. 56335(a)).

A common question our office receives regarding Dyslexia, is what specific methodologies school districts are required to use and if parents themselves can choose what methodologies to use -- for example Orton Gillingham or Lindamood-Bell to name a few. Although parents cannot dictate what programs school districts must provide their child, if a certain methodology is required so that the child is provided a Free and Appropriate Public Education (FAPE), school districts may have to provide it. The tricky part is proving that a specific program is required, as opposed to a district-chosen program. Here are some criteria to consider when determining whether a District-chosen program may not be providing your child a FAPE:

· Not meeting goals as written within the Individualized Education Program (IEP)

· The program has been in place for an extended period of time with little to no        progress (for example, concerning pre/post testing scores)

· Standardized testing scores declining from year to year

· Teacher feedback indicating a lack of progress or concern

· Parent observation that learning has stagnated or there is regression

· Private provider opinion that child isn't appropriately progressing

Even if school districts don't feel a parent-chosen program is necessary, they should strongly consider parent concerns brought forth at IEP meetings, including any request for a new and specific program addressed to meet your child's unique needs. Simply rejecting a parent's request for a specific program without properly investigating specific concerns and requests is inappropriate.

In addition to the requirement to hold IEP's at least annually, school districts must evaluate special education students in all areas of unique need every three years. However, it is often a good idea to request assessment earlier than three years, especially testing in the area of academic achievement, including Dyslexia. This allows you to monitor testing scores from year to year to see if there has been progress, stagnation or regression. Although testing is only one item to be considered, it is a strong indicator of educational progress or a lack of it. Of course, any time you have concerns, you may contact your child's school, request an IEP meeting and provide 24-hours written notice of your intent to audio-record the IEP meeting. That way, you have a clear record of what occurred at the meeting and any statements made regarding your child's education.

Danielle Augustin is a founding partner of Augustin Egelsee LLP, a law firm representing children and families with special education needs. Danielle has been practicing law for 20 years, first as a deputy district attorney in Orange County, California, then as a special education student attorney for the past 14 years. For more information about special education law, go to: www.OcKidsLaw.com or call 714-282-1242.


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E.R.K., by his legal guardian R.K., R.T.D., through his parents R.D. and M.D.; HAWAII DISABILITY RIGHTS CENTER, in a representative capacity on behalf of its clients and all others similarly situated, Plaintiffs, v. DEPARTMENT OF EDUCATION, State of Hawaii, Defendant U.S. District Court, Hawaii 10-00436 December 8, 2017
Order Approving Settlement for Class Members

WHEREAS: This class action was filed, pursuant to FRCP 23(b)(2) in 2010 seeking to establish that the Defendant DEPARTMENT OF EDUCATION, State of Hawai'i ("HIDOE") was violating federal law by failing to provide special education and related services to students who were eligible for special education and related services until the later of (a) the date they earned a regular diploma, or, (b) age 22.

WHEREAS: The Ninth Circuit Court of Appeals determined that the Class Members had valid claims under the Individuals with Disabilities Education Act ("IDEA") and this Court subsequently determined that the Class Members are entitled to compensatory education to compensate for the HIDOE's failure to provide appropriate special education and related services until the Class Member earned a regular diploma or reached the age of 22.

WHEREAS: Under the supervision of United States Magistrate Judge Kevin S. C. Chang the parties have investigated and discussed, at length, among other things, (a) the circumstances and needs of the Class Members, (b) the interest of Class Members in obtaining compensatory education, (c) the array of services needed by the eligible Class Members, (d) the cost of the needed services, (e) the array of potential service providers, (f) the potential methods for allocating and delivering the compensatory education services, and (g) the timeline for delivery of compensatory education services to the Class Members.

WHEREAS: Pursuant to the Settlement Agreement attached hereto as Exhibit 1, the HIDOE has agreed to provide funds for delivery of services, including assistive technology, as defined in the Settlement Agreement, to the Class Members under the oversight of a Settlement Administrator, as described in Exhibit A to the Settlement Agreement.

WHEREAS: Pursuant to the Settlement Agreement, HIDOE will provide $10,250,000 to (a) fund the required services, as defined in the Settlement Agreement; (b) pay legal fees and costs owed to Plaintiffs' counsel (Alston Hunt Floyd & Ing and the Hawai'i Disability Rights Center ("Class Counsel")) for their work on this litigation up to the date on which this settlement is approved; (c) the fees and costs incurred by the Settlement Administrator in the course of overseeing and directing the delivery of services, as defined in the Settlement Agreement, to the Class Members; and (d) fees and costs incurred by counsel and as approved by the Court, for the class in connection with (1) the delivery of services, as defined in the Settlement Agreement, to the Class Members, and (2) the resolution of disputes regarding the delivery of the benefits of the settlement. The Fund will be deposited by the HIDOE in two installments; as stated below, the first will be $8,750,000 to be funded in 2017 and the second will be $1,500,000 to be funded in 2018.

WHEREAS: The Court has determined that the settlement fund should be allocated as follows: (a) $8,200,000 plus all interest earned thereon for services, as defined by the Settlement Agreement, provided to the Class Members (the "Fund"); (b) $1,500,000 for legal services provided by and costs incurred by Class Counsel through the date on which this settlement is approved; (c) up to $300,000 to the Settlement Administrator for his/her fees, costs and administrative support; and (d) up to $250,000 to Class Counsel for future services that they will provide to the Class Members in connection with the administration of the settlement and delivery of services (all to be paid pursuant to court-approved fee applications). Provided, however, for good cause and subject to court approval, the Settlement Administrator may utilize additional funds from the Fund for administrative services that are needed to assure the effective delivery of services, as defined in the Settlement Agreement, to the Class Members. The amounts awarded from the Fund to Class Counsel for past and future work reflects the fact that size of the Fund was calculated by the Court and the Parties to include all fees which would be owed to Class Counsel under 42 U.S.C. § 1988 or otherwise. No other fees will be claimed or paid out of the Fund and accrued interest.

WHEREAS: The parties agree that, except as provided by the Settlement Agreement, the "Specific Provisions" portion of the Settlement Agreement shall expire on December 31, 2020.

WHEREAS: The Settlement Administrator shall have until February 28, 2021 to reconcile the Fund. Any balance remaining in the Fund at 12:00 a.m. on March 1, 2021, shall be returned to HIDOE.

And,

WHEREAS: Time is of the essence.

THEREFORE, it is hereby ORDERED (a) the HIDOE shall deposit $8,750,000 into the registry of the United States District Court within two (2) weeks of the Court's approval of the subject settlement and Class Counsel's provision of the information necessary to effectuate the deposit; (b) the HIDOE will deposit an additional $1,500,000 into the registry of the United States District Court within two (2) weeks of the Hawai'i legislature's approval of the subject attorneys' fees and costs; and (c) the Court will direct the disposition of that account for the effective administration of the settlement by (1) appointing the Settlement Administrator no later than December 15, 2017 and authorizing him/her to see to the delivery of appropriate services, as defined in the Settlement Agreement, to the Class Members beginning promptly thereafter in accordance with the Settlement Administration Agreement attached hereto as Exhibit A to the Settlement Agreement; (2) directing distribution of the balance of the settlement fund into an interest-bearing trust account in a local FDIC-insured bank under the supervision of the Settlement Administrator and Court within two (2) weeks of the HIDOE aforementioned deposit (the "Trust Account"); (3) directing distribution of the HIDOE's second payment into the Trust Account within two (2) weeks of the Hawai'i legislature's approval of Class Counsel's attorneys' fees and costs; (4) distributing from the Fund, at the appropriate time, the payment to Class Counsel of the $1,500,000.00 for attorneys' fees and costs; and (5) distributing later, as appropriate, the fees and costs due for future work by Plaintiffs' counsel.

The Court will retain jurisdiction over this matter to assure the effective and timely implementation of the Settlement Agreement and to resolve any disputes between the parties and/or between the Settlement Administrator and any of the parties with respect to the meaning, effect and proper implementation of the Settlement Agreement.

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71 IDELR 185

118 LRP 8936

Ramona SMITH, Plaintiff, v. CHEYENNE MOUNTAIN SCHOOL DISTRICT 12 and COLORADO DEPARTMENT OF EDUCATION, Defendants

U.S. District Court, Colorado

14-cv-03390-PAB-KHR

March 6, 2018

Opinion

Order

This matter is before the Court on plaintiff's Verified Complaint [Docket No. 1], plaintiff's Opening Brief [Docket No. 18], Defendant Cheyenne Mountain School District 12's Motion for Summary Judgment [Docket No. 26],1 and Defendant Cheyenne Mountain School District 12's Request for Telephone Status Conference [Docket No. 30].2 Plaintiff appeals the State of Colorado, Office of Administrative Courts' decision dismissing her claims that Defendant Cheyenne Mountain School District 12 (the "District") failed to provide her minor son, R.S., with a free appropriate public education ("FAPE"). Plaintiff's claims arise under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. The Court has subject matter jurisdiction under 28 U.S.C. § 1331 and 20 U.S.C. § 1415(i)(3)(A).3

I. Factual Background

R.S. is a school-age child with disabilities. He has been diagnosed with several conditions that result in academic challenges for him. The primary disability identified in R.S.'s Individualized Education Plans ("IEP") is autism spectrum disorder. R. at 39, 74. R.S. has also been diagnosed with attention deficit hyperactivity disorder ("ADHD") and hypotonia. R. at 27.

R.S. is a resident of the Falcon School District 49. R. 391, ¶ 2. In 2013, under Colorado's Public Schools of Choice Law, Colo. Rev. Stat. § 22-36-101 et seq. (the "School Choice law"), R.S. applied to attend the Cheyenne Mountain Charter Academy (the "Academy") for the 2013-14 school year. R. at 392, ¶ 5. The Academy is located in the District). Id. When they accepted R.S., the Academy and the District were both aware that R.S. had an IEP that had been developed while he was attending school in Falcon School District 49.

Soon after the start of the 2013-14 school year, when R.S. was enrolled in kindergarten, the Academy determined the R.S.'s preexisting IEP was insufficient to meet his needs. R. at 392, ¶ 6. With the permission of R.S.'s parents, the Academy reevaluated R.S. and developed a new IEP, dated November 7, 2013 (the "November 2013 IEP"). Id.; R. at 22. The November 2013 IEP included a behavior intervention plan ("BIP") and stated that R.S. "needs intensive support for instruction and supervision for safety throughout his day which will be provided by special education staff and/or paraprofessional on an individual and small group basis." R. at 45, 53. In early 2014, Ward Barr, the Academy's Principal, had concerns about whether the Academy would need to hire additional staff to provide one-on-one support to R.S. during the 2014-15 school year, which would be R.S.'s first-grade year. R. at 392, ¶ 10. Under Mr. Barr's interpretation of the School Choice law, the Academy was not required to re-enroll a student if it would have to hire additional staff. Id. Mr. Barr scheduled a meeting to address this issue. Id., ¶ 11. On February 28, 2014, R.S.'s special education teacher, Richard Tran, sent an email to plaintiff inviting her to attend the meeting. R. at 393, ¶ 12. Mr. Tran's email stated that the purpose of the meeting was to "discuss the next steps in preparation for [R.S.'s] first grade year." Docket No. 25-1 at 48.

The meeting occurred on the morning of March 12, 2014. R. at 393, ¶ 13. Mr. Barr, Mr. Tran, and Ms. Smith attended, as well as Karen Higgins, the District's Director of Special Education, and Amy Stephens, R.S.'s kindergarten teacher. R. at 393, ¶ 13. At the meeting, Mr. Barr told Ms. Smith that R.S. "continued to require one-on-one support to access general education and a high level of adult prompting" and that, under the School Choice law, the District could "deny enrollment to students from another school district if additional staff would need to be hired." Docket No. 25-1 at 49.

Ms. Smith was also told that the Academy planned to "decrease the level of adult prompting to see if [R.S.] could more independently access the general setting and remain safe." Id. Academy staff also told Ms. Smith that the IEP team was concerned that R.S. was becoming dependent on prompting by his adult helper and that data would be collected to determine "if the level of prompting needed [by R.S.] could be decreased." Id.; R. at 393, ¶ 14. Confronted with this, Ms. Smith "expressed concerns that her child would be kicked out" of the Academy. Docket No. 25-1 at 49. The group "tentatively set" a meeting for April or May 2014 to "review [the] IEP, BIP, and data collected." Id.

On March 18, 2014, Ms. Smith sent an email objecting to the plan to reduce R.S.'s prompting. R. at 393-94, ¶ 18. Ms. Higgins responded to this email and called Ms. Smith to explain that an aide would remain with R.S., but the aide would "fade" the amount of prompting by gradually reducing the frequency of prompting to determine whether the level of prompting needed by R.S. could be reduced. R. at 394, ¶¶ 19-20. When the plan to fade prompting of R.S. was implemented, it quickly became apparent that R.S. was dependent on the prompts and would not respond to his teachers' instructions without prompting from his aide. R. at 394, ¶ 22. Therefore, the Academy ceased attempts to reduce the level of prompting provided to R.S. Id.

On May 1, 2014, an IEP Team meeting was held for R.S. R. at 394, ¶ 25. The IEP team discussed the results from the plan to reduce prompting and developed a new IEP for R.S. (the "May 2014 IEP"). Id.The May 2014 IEP stated that:

In order to access the general education curriculum, [R.S.] requires continual redirection/prompting and frequent breaks to support sustained attention to academic tasks. [R.S.] requires intensive one-on-one paraprofessional support for academic Instruction, transitions, and to ensure his safety throughout the entire day. Paraprofessional support is needed at all times whenever [R.S.] is not receiving direct services from special education staff[.]

R. at 73, § 13. R.S. completed the school year at the Academy under the May 2014 IEP, and he received extended school year services into the summer of 2014. R. at 395, ¶¶ 26, 28.

Ms. Smith sought to re-enroll R.S. at the Academy for the 2014-15 school year. R. at 395, ¶ 29. However, on May 22, 2014, Colin Mullaney, the Academy's executive director, sent a letter denying R.S. enrollment. Id. He stated that, under the School Choice law, the Academy could deny enrollment to an out-of-district student if the school did not have staff to support that student and that the Academy "would need to hire additional staff to meet [R.S.'s] IEP." R. at 76. On that basis, Mr. Mullaney stated that the District was denying R.S. enrollment in the Academy. Id.

II. Procedural History

On July 16, 2014, R.S.'s parents filed a civil rights complaint against the District. R. at 3-6. They alleged four IDEA violations, which were summarized by the Administrative Law Judge ("ALJ"), Robert N. Spencer, as:

1. Failure to Appropriately Evaluate: Petitioners alleged that, at the IEP meeting of November 7, 2013, the School District failed to adequately assess and evaluate [R.S.'s] disabilities or adequately consider his need for physical therapy and ABA therapy.

2. Failure to Appropriately Supervise: Petitioners alleged that the School District failed to provide the level of supervision required by the IEP, resulting in [R.S.] being "trapped" in a bathroom, being unable to participate in field trips, and becoming "prompt dependent."

3. Failure to Provide Appropriate Goals and Assessments: Petitioners alleged that [R.S.'s] IEP failed to include appropriate goals to address identified concerns. The goals that were established allegedly failed to meet CDE standards and proper methodology was not employed to meet the goals. Furthermore, Petitioners alleged that the School District failed to inform them of [R.S.'s] progress in these goals as required by the IEP, and that several goals were subsequently eliminated without explanation. Finally, they alleged that the IEP was deficient because it did not explain why [R.S.] could not participate in regular assessments given to his classmates, but instead provided unjustified accommodations in mode and duration of assessment.

4. Inappropriate Re-evaluation Leading to Denial of Enrollment: Finally, Petitioners claimed that [the Academy] decided to re-evaluate [R.S.] in March 2014 without providing the legally required prior written notice and without their informed consent.

R. at 389-90 (emphasis original). R.S.'s parents also clarified that they did not "seek to resolve any issue pertaining to [the Academy's] decision to refuse readmission to our disabled son." R. at 5, n.1.

On August 1, 2014, the District filed a notice of insufficiency and motion to dismiss the complaint as unsupported by the evidence. R. at 9-20. On August 6, 2014, the ALJ issued an order finding the complaint sufficient, but he reserved judgment on the motion to dismiss. R. at 86-89. On August 19, 2014, the ALJ, without notifying the parties that he intended to do so, converted the motion to dismiss into a motion for summary judgment, found no genuine issue of material fact on the first three alleged IDEA violations, and granted summary judgment on those allegations. R. at 126-31. On September 17, 2014, the ALJ held a due process hearing on the remaining, fourth allegation. R. at 390. On September 23, 2014, the ALJ issued a written decision, finding that the "undisputed evidence ... was that [R.S.] was never denied the paraprofessional support required by his IEP, that he suffered no loss of educational benefit as a result of the fading plan, and that he did make significant progress during his kindergarten year both socially and academically." R. at 399. The ALJ, therefore, dismissed the complaint. Id. This appeal followed.

III. Individuals With Disabilities in Education Act

The IDEA provides students with disabilities the right to a FAPE designed to meet their needs. See 20 U.S.C. § 1400(d)(1)(A). The determination of whether a FAPE has been provided turns in large part on the sufficiency of the IEP for each disabled child. See, e.g., A.K. v. Alexandria City Sch. Bd., 484 F.3d 672, 675 (4th Cir. 2007) ("A school provides a FAPE by creating an [IEP] for each child."). Challenges to the adequacy of an IEP can take two forms, i.e., arguments that the IEP was procedurally deficient or that it was substantively deficient. See Urban v. Jefferson County Sch. Dist. R-1, 89 F.3d 720, 726 (10th Cir. 1996).4 Here, the plaintiff has not challenged whether her child's IEPs were substantively deficient, but rather focuses on the District's compliance with IDEA procedures in creating and implementing the November 2013 IEP and in creating the May 2014 IEP.

A FAPE is "hardly self-defining." Thompson R2-J School Dist. v. Luke P., ex rel. Jeff P., 540 F.3d 1143, 1148 (10th Cir. 2008). "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 circumstances." Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017). To determine whether a FAPE was provided to plaintiff during the 2013-2014 school year, the Court "must ask ... whether [the] ... IEP was 'reasonably calculated to enable [him] to receive educational benefits.'" Thompson, 540 F.3d at 1148-49 (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)). "If the IEP was so calculated, the school district can be said to have provided a FAPE; if not, then not." Id. at 1149.5

IV. Standard of Review

Plaintiff, as the party challenging the procedures related to the IEP, bears the burden of proof to show they were deficient. See Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 62 (2005). In determining whether plaintiff has met her burden, the Court "shall receive the records of the administrative proceedings;" "shall hear additional evidence at the request of a party;" and, "basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(C). The Court reviews legal challenges de novo, without deference. See O'Toole ex rel. O'Toole v. Olathe Dist. Schs. Unified Sch. Dist. No. 233, 144 F.3d 692, 699 (10th Cir. 1998). However, "though the statute specifies that review is de novo, the Supreme Court has interpreted the requirement that the district court receive the administrative record to mean that 'due weight' must be given to the administrative proceedings, the fact findings of which are considered prima facie correct." Thompson, 540 F.3d at 1150 (citation and quotation marks omitted).6

V. Discussion7

A. Failure to Join an Indispensable Party

As an initial matter, the Court addresses the District's argument that plaintiff's claims must be dismissed because plaintiff's husband, who participated in the administrative proceedings, is not a party to this proceeding. The District argues that "Scott Smith is not a party to this appeal, as required by Fed.R.Civ.P. 19(a)(I)(A) [sic], and this appeal should therefore be dismissed for failure to join a necessary party." Docket No. 20 at 5. The District does not explain why "in [Mr. Smith's] absence, the court cannot accord complete relief among existing parties," Fed. R. Civ. P. 19(a)(1)(A), or why, even if that were true, it would be improper "in equity and good conscience" for the case to proceed nonetheless. Fed. R. Civ. P. 19(b). Because this case concerns primarily R.S.'s rights and there is no indication that Mr. Smith's position is different from plaintiff's position with respect to their child's rights, the Court finds that Mr. Smith is not an indispensable party and that it would be proper to proceed even if he were.

B. Waiver

The District claims that plaintiff failed to raise the arguments she now raises during the administrative proceedings and argues that plaintiff should not be allowed to raise such "completely new" arguments. Docket No. 20 at 11. In particular, the District claims that plaintiff did not argue that the "District denied R.S. [a] FAPE by 'predetermining' that it would not provide him with paraprofessional support during his first grade year," id., and did not argue that R.S. became more prompt dependent. Id. at 15.

The District's waiver claims are contrary to the record, which shows that plaintiff raised both arguments during the administrative proceedings. While plaintiff does not use the specific word "predetermined," plaintiff's due process complaint argues that the District's actions were part of a plan to remove R.S. from the school because the school was unwilling to provide support for him. R. at 5. Plaintiff raised this issue again in her preliminary injunction motion. R. at 61 ("Principal Barr further stated that if it was determined, at the next IEP Team meeting that [R.S.] could not function in class without his paraprofessional support that [the Academy] would probably not permit [R.S.] to return to [the Academy] for first grade").8 The due process complaint also claims that R.S. "has become 'prompt dependent'; [he] has been taught, inadvertently, by his support person to not engage in any given activity unless so prompted." R. at 4. In his summary of plaintiff's claims, the ALJ recognized that one of plaintiff's allegations was that "the District failed to provide the level of supervision required by the IEP, resulting in [R.S.] ... becoming 'prompt dependent.'" R. at 87. The Court finds that plaintiff did not waive these issues; the arguments plaintiff presents on appeal are the same as those raised generally in her due process complaint.

Moreover, plaintiff was denied an opportunity to develop her specific arguments on these issues during the administrative proceedings. After the District filed a motion to dismiss during the administrative proceedings, plaintiff declined to respond specifically to that motion, stating that her arguments were contained in her preliminary injunction motion.9 Then, without warning plaintiff that he intended to do so, the ALJ converted the motion to dismiss into a motion for summary judgment and entered summary judgment on three of the four violations alleged in the due process complaint. R. at 131. The effect of conversion was that plaintiff was not able to present material opposing summary judgment. If a court converts a motion to dismiss into a motion for summary judgment, the Colorado Rules of Civil Procedure require that "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56". Colo. R. Civ. P. 12(b); see also Horne Eng'g Servs., Inc. v. Kaiser-Hill Co., LLC, 72 P.3d 451, 453 (Colo. App. 2003) ("When a court converts a motion to dismiss for failure to state a claim to one for summary judgment, '[i]t is important that the court give the parties notice of the changed status of the motion and a "reasonable opportunity to present all material made pertinent to such a motion by C.R.C.P. 56." In this way no one will be taken by surprise by the conversion.'" (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1366 at 501-02 (2d ed. 1990), in turn quoting Fed. R. Civ. P. 12(b)(6)). No such notice with the related opportunity to provide factual support was afforded to plaintiff.10 As is apparent in this case, such notice is essential so that the parties can present the evidence necessary to carry the evidentiary burden that exists at summary judgment, but does not exist at the pleadings stage. In granting summary judgment, the ALJ stated R.S.'s parents "could not rest upon mere allegations," which they would have been able to do for a motion to dismiss, "but were required to provide evidence by affidavit or otherwise sufficient to establish the existence of a genuine dispute." R. at 130. While plaintiff does not raise this issue in her appeal briefing, the Court is reluctant to find that plaintiff waived the specific arguments she now presents on appeal because it is unclear what specific arguments she would have made during the administrative proceedings if given a full opportunity to develop the general allegations on the same issues contained in the due process complaint.

C. Whether R.S. Was Denied a FAPE

In relation to the merits, the parties essentially dispute three issues: (1) whether the District improperly failed to account for R.S.'s disabilities beyond autism in creating the November 2013 IEP, (2) whether the District failed to provide proper support leading to R.S. becoming prompt dependent, and (3) whether the District predetermined R.S.'s placement for his first grade year. See Docket No. 18 at 6. The Court addresses each of these issues in turn before deciding the ultimate question of whether R.S. was denied a FAPE.

1. Failure to Evaluate R.S. for Additional Disabilities

Plaintiff argues that the November 2013 IEP improperly focused on R.S.'s autism and did not account for his ADHD, Hypotonia, Sensory Processing Disorder, and Obsessive-Compulsive Disorder. Docket No. 18 at 6. Plaintiff claims that the Evaluation Report in the IEP "contained numerous examples of behaviors engaged in by R.S. that are ... strongly suggestive" of these conditions. Docket No. 18 at 8. Plaintiff claims that, by failing to evaluate R.S. for additional conditions and to take them into account in formulating the November 2013 IEP, the District violated the requirement that children suspected of disability be assessed "'in all areas of suspected disability.'" Id. at 15 (quoting 20 U.S.C. § 1414(b)(3)(B)).

The District argues that, even though the November 2013 IEP did not mention such additional conditions, it was designed to target the behaviors that plaintiff identifies as resulting from those conditions. Docket No. 20 at 13. In particular, the District points to the IEP's focus on "Target Behaviors" such as "(1) leaving his seat and/or running indoors; (2) loud laughing or babbling; [and] (3) wadding or tearing of school materials" as "clear examples of ADHD-type behavior" that were addressed in the November 2013 IEP. Id.

Although a failure to consider all of a student's diagnoses could taint the IEP development process and lead to a denial of a FAPE, there is little evidence that it did so here. See, e.g., N.B. v. Hellgate Elementary Sch. Dist., ex rel. Bd. of Directors, Missoula Cty., Mont., 541 F.3d 1202, 1210 (9th Cir. 2008). In particular, the Court is persuaded by the District's argument that, by being directed to R.S.'s behaviors, the November 2013 IEP took into consideration issues presented by diagnoses beyond R.S.'s "Primary Disability" of "13: Autism Spectrum Disorders," which the IEP form requires to be listed. R. at 39. The November 2013 IEP indicates that plaintiff made the IEP team aware that R.S. had been diagnosed with ADHD and Hypotonia in addition to Autism. Docket No. 18-2 at 5 ("Ms. Smith was interviewed in person to support the development of effective behavioral strategies for [R.S.]. She reported diagnoses of Autism, Attention Deficit Hyperactivity Disorder (ADHD), and Hypotonia."). And the November 2013 IEP's BIP specifies numerous strategies directed at the behaviors that plaintiff identifies in her briefing as characteristic of the diagnoses that she claims the District failed to evaluate and consider. R. at 45-47. Thus, there is little reason to believe that a failure to evaluate [R.S.] for conditions he has not been diagnosed with or to specifically reference his other diagnoses prevented the November 2013 IEP from being "reasonably calculated to enable [R.S.] to make progress appropriate in light of [his] circumstances." Endrew F., 137 S. Ct. at 999; cf. N.B. v. Hellgate Elementary Sch. Dist., 541 F.3d at 1210 (finding an IDEA violation because, "without evaluative information that C.B. has autism spectrum disorder, it was not possible for the IEP team to develop a plan reasonably calculated to provide C.B. with a meaningful educational benefit throughout the 2003-04 school year.").

2. Prompt Dependency

Plaintiff argues that the District's failure to provide R.S. with an "aide who was certified in techniques to prevent R.S. from becoming prompt dependent" led to him becoming prompt dependent over the 2013-14 school year. Docket No. 18 at 10. Plaintiff argues that "District was required, per the terms of his IEP, to provide R.S. with a paraprofessional capable of assisting him without inducing prompt dependency," but did not do so. Id. at 18. Plaintiff further argues that the District has failed to reduce this dependency, denying R.S. a FAPE. Id.

Other than arguing waiver as discussed above, the District does not respond to plaintiff's argument that the District failed to provided R.S. with aides capable of avoiding prompt dependency. Docket No. 20 at 14-16. Rather, the District argues that "no evidence was offered by Mrs. Smith during the due process proceeding that failure to reduce the amount of prompting resulted in a denial of FAPE and she..

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