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Alex W. v. Poudre School District R-1.

Nos. 22-1236 & 22-1250. 3/7/2024. D.Colo. Judge Rossman. Individuals With Disabilities Education Act—Statute of Limitations—Disability Evaluations—Individual Education Program—Functional Behavior Analysis—Free Appropriate Public Education—Independent Neuropsychological Evaluation—Cost Reimbursement.

March 7, 2024

Alex W. is a student with disabilities that include Down syndrome, autism spectrum disorder, and substantial hearing and vision impairments. In 2014, his parents enrolled him in the first grade in the Poudre School District R-1 (School District). The School District performed an initial evaluation of Alex, and his parents and the School District agreed that he would attend elementary school and participate in the Integrated Learning Supports program. In 2017, the School District conducted a triennial reevaluation of Alex (the 2017 reevaluation), which reassessed Alex’s vision and hearing, general intelligence, cognitive and adaptive functioning, academic performance, and social and emotional abilities. The 2017 reevaluation acknowledged that Alex continued to struggle with behavioral challenges and that his nonverbal communication progress had plateaued. The School District thus modified Alex’s 2017 individual education program (IEP) concerning his speech-language and occupational therapy services. The parents challenged the 2017 reevaluation and requested an independent educational evaluation (IEE) in those areas at public expense under 34 CFR § 300.502(b). The School District funded the IEE and worked with Alex’s parents to obtain providers to perform it, but the parents continued to challenge the 2017 reevaluation results, and they requested that Alex undergo another publicly funded IEE in the area of neuropsychology. The School District refused, and Alex’s parents paid $5,500 for the independent neuropsychological evaluation. In 2018 the School District also performed a functional behavioral analysis (FBA) at the parents’ request, and when the parents also requested an independent FBA, the School District funded that also. In September 2018, Alex withdrew from the School District.

In 2018, Alex’s parents filed a complaint with the Colorado Department of Education alleging that the School District denied Alex “a free appropriate public education” (FAPE) from 2014 to 2018 under 20 USC § 1400(d)(1)(A) of the Individuals with Disabilities Education Act (IDEA). The parents also requested reimbursement from the School District for the independent neuropsychological evaluation that they paid for in 2018. The School District moved for partial dismissal, contending that the claims about the 2014 and 2015 academic years were barred under the IDEA’s two-year statute of limitations. The administrative law judge (ALJ) granted the motion. The case proceeded as to the 2016 and 2017 school years and, following an evidentiary hearing, the ALJ denied relief but ordered the School District to reimburse the parents for the cost of the independent evaluation. The parents challenged the ALJ’s decision on the FAPE claims in federal district court, and the School District counterclaimed for reversal of the reimbursement order. The district court affirmed the ALJ’s decision in full.

On appeal, the parents challenged the dismissal of their 2014 and 2015 claims based on the IDEA’s statute of limitations. However, the parents did not raise their argument or otherwise challenge the dismissal of claims that predate July 2016 in district court, so it was waived. Further, the parents summarily raised a new argument in their reply brief that the 2014 and 2015 claims are timely because they did not discover the extent of the School District’s violations until 2017 and 2018. Because this argument was not raised in the opening brief, it was also waived.

The parents also contended that Alex was denied a FAPE because the School District did not properly address the behavioral components of Alex’s disabilities. They maintained that the School District was required to conduct an FBA and develop a behavior intervention plan to create Alex’s IEPs in 2016 and 2017. However, there is no support in the law for this position, and the School District did not fail to identify and address the behavioral aspects of Alex’s disabilities. Further, the record shows that the School District considered, but rejected, conducting an FBA before developing Alex’s 2016 and 2017 IEPs. Accordingly, the School District met its obligations under the IDEA.

The parents further argued that Alex was denied a FAPE because he did not make progress under his IEPs. However, an IEP does not guarantee a particular outcome, and Alex’s IEPs were reasonably calculated to allow him to progress.

The parents also asserted that Alex was denied a FAPE because of the restructuring of his speech-language and occupational therapy services in the 2017 IEP. Here, the ALJ and the district court did not err in determining that the School District’s “collaborative” approach was reasonably calculated to meet those needs. Further, the district court properly concluded that, even with reduced direct therapy hours, Alex’s 2017 IEP complied with the IDEA.

The parents additionally claimed that Alex was denied a FAPE because the School District mistakenly concluded that he was not eligible for extended school year services. But the record here supports the conclusion that the School District provided Alex a FAPE without offering extended school year services.

Lastly, the parents asserted that Alex was denied a FAPE because, in crafting Alex’s IEPs, the School District did not appropriately evaluate Alex’s autism nor determine how best to instruct Alex to communicate. However, the record shows Alex’s IEPs relied on autism-related assessments and tools and that the School District’s strategies to improve Alex’s functional communication skills met the legal requirement that his IEP be reasonably calculated to allow him to make progress. Accordingly, the School District fulfilled its IDEA obligations by providing Alex a FAPE during the 2016 and 2017 school years.

On cross-appeal, the School District argued that the ALJ and district court erred by determining that the School District was required to reimburse the parents for the cost of the 2018 IEE. The School District maintained that 34 CFR § 300.502 only requires a school district to fund one IEE each time a public agency conducts an evaluation with which the parent disagrees, and the School District had already funded an IEE earlier that year concerning the same School District evaluation. The plain text of the regulation supports the School District’s position. Accordingly, the IDEA and its implementing regulations imposed no duty on the School District to fund the parents’ request for a second IEE in response to the 2017 reevaluation or file a due process complaint to resist that request. Therefore, the district court erred in requiring the School District to reimburse the parents for the second IEE requested in June 2018.

The order in appeal No. 22-1236 was affirmed in full. The reimbursement order in cross-appeal No. 22-1250 was reversed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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