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Board of Education of Albuquerque Public Schools v. Maez

United States District Court, D. New Mexico

August 1, 2017

BOARD OF EDUCATION OF ALBUQUERQUE PUBLIC SCHOOLS, Plaintiff,
v.
ROLANDA MAEZ and RICHARD MONDRAGON, on behalf of M.M., Defendant.

          MEMORANDUM OPINION AND ORDER REVERSING HEARING OFFICER’S FINAL DECISION ON IDEA APPEAL AND ADVISING COUNSEL TO ADDRESS ANY REMAINING ISSUES

         THIS MATTER is before the Court on Plaintiff Board of Education of Albuquerque Public Schools’ (“APS” or “the District”) appeal of an administrative decision pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(i)(2). APS seeks review and reversal of portions of the Final Decision in which the due process hearing officer (“DPHO”) found APS denied student M.M. a free and appropriate public education (“FAPE”) from August 15, 2015, until January 30, 2016.

         BACKGROUND[1]

         This lawsuit centers on claims by Rolanda Maez and Richard Mondragon (“Parents”) on behalf of their minor son, M.M., that APS failed to supply necessary special education and services to meet M.M.’s needs as a student with autism. Parents claim APS did not adequately address M.M.’s need for autism-based educational methodologies for the 2015–2016 school year.

         I. Background

         M.M. is a thirteen-year old student, and for his entire education he has been identified as having both global developmental delays and autism. He was evaluated by the UNM Center for Development and Disability (“UNMCDD”) when he was three years old, and diagnosed with autism.[2] The UNMCDD Report noted M.M. is a child who has “dual diagnoses of global developmental delay and autism.” Ex. 1 at 15. M.M. does not speak. He is not toilet trained. The record shows that he exhibits significant delays in cognitive abilities, sensory processing, communication, and daily living skills. M.M. has difficulty focusing and staying focused on academic tasks. He has a pattern of elopement in school, periodically running out the door of his classroom. The record notes he was fixated with doors and often ran to the same location near the doors of the school. He shows no awareness of danger.

         M.M. attended Lyndon B. Johnson Middle School within APS for a portion of the 2015– 2016 school year as a sixth grader until Parents withdrew him from school and then sued APS. The sixth grade year is the one at issue in this case. Parents assert M.M. was denied a FAPE during that school year both because M.M.’s Individualized Education Program (“IEP”) was not reasonably calculated to enable him to make educational progress and because the special education services provided to him were not the research-based, peer-reviewed practices for students with autism necessary to allow him to benefit from his education.

         By the end of fifth grade, M.M.’s speech and language pathologist (“SLP”) noted M.M. made progress toward developing a communication system. The SLP explained M.M. could communicate what he wanted for a snack by using pictures and giving them to an adult. In fifth grade, M.M. was in a classroom with an Intensive Support Program (“ISP”) as opposed to an Emerging Autism classroom. Though M.M. undoubtedly has autism, he was placed in the ISP class because the IEP team determined he needed attention to his global deficits. For example, in an Emerging Autism class, students have functional language and the classroom focuses on furthering that language. See Tr. 1128:24–1129:4. M.M. in contrast has no functional language.

         In May 2015, a multi-disciplinary team (“MDT”) summarized M.M.’s abilities and found IDEA eligibility based on autism. However, the May 18, 2015 IEP notes eligibility based on autism and intellectual disability. APS explained at the hearing that the addition of intellectual disability was a typographical error. The DPHO found the error did not negatively affect his educational services.

         M.M. was again placed in an ISP classroom at the beginning of the 2015–2016 school year for sixth grade. He remained in the ISP classroom taught, by Bianca Lloyd, from August 15, 2015 until November 2, 2015, when he was transferred to another ISP room taught by Mihret Roman. On February 2, 2016, M.M. was assigned to a “hybrid” program where M.M. would spend two hours in the Emerging Autism class and continue in Ms. Roman’s classroom for the remainder of the day.

         Parents became unhappy with their son’s education, and objected to his placement in the ISP classroom despite the fact that he was in an elementary ISP class the prior year. They insisted he should have been placed in an Emerging Autism program. Parents were concerned that the ISP teachers did not have the training and support from autism experts, and felt that M.M. needed a class that specifically served the needs of children with autism. The IEP team decided to test the “hybrid” program and evaluate which program better suited M.M.’s needs after eight weeks. The evaluation never happened because on February 3, 2016, Parents withdrew M.M. from school after only two days in the “hybrid” program. Parents then provided M.M. with private, in-home clinical services, where the record indicates M.M. made educational progress that was acceptable to Parents.

         II. May 18, 2015 IEP

         M.M.’s May 8, 2015 IEP is the one at issue in this lawsuit. The 2015 IEP team[3] met and ultimately decided to place M.M. in an ISP classroom for sixth grade. The team completed a required checklist for students with autism, and checked “yes” to whether teaching strategies based on peer-reviewed practices were needed. The IEP did not include a statement or description of the peer-reviewed autism-specific methodologies needed by M.M. to make academic progress. The IEP team further noted that M.M. has behavioral issues that impede his learning, and the team agreed with Parents that a Functional Behavioral Assessment (“FBA”)[4] and a Behavior Intervention Plan (“BIP”) were necessary to address M.M.’s elopement issues and to ensure M.M.’s academic success and his safety.

         Next, the IEP team decreased M.M.’s speech and language therapy (“SLT”) from 720 minutes per semester to 600 minutes a semester. The IEP does not note a reason for the decrease in SLT. The IEP communication goal refers to using pictures or low-tech devices to answer questions. The IEP does not specify that the SLP chosen to work with M.M. must have knowledge of research-based strategies for non-speaking children with autism. The IEP did not require M.M.’s teachers to consult with the District’s Autism Resource Team.

         III. DPHO’s Findings and Basis for IDEA Appeal

         On August 31, 2016, following a five-day administrative due process hearing, the DPHO issued her Final Decision and found M.M.’s May 18, 2015, IEP was not reasonably calculated to provide him some educational benefit and the services provided by APS pursuant to the IEP did not provide him with educational benefit. Therefore, the DPHO concluded APS denied FAPE for five months, from August 15, 2015, until January 30, 2016. APS partially appeals the DPHO’s findings, which the Court sums up as follows.

         The DPHO found M.M.’s IEP did not provide FAPE because APS failed to provide research-based, autism-specific special education and SLT services necessary for M.M. to make educational progress. She found it inappropriate that M.M.’s ISP teacher used a teaching program for M.M. designed for students with global learning deficits rather than using exclusively a peer-reviewed program for children with autism. She found the methodology required to support M.M. was Applied Behavior Analysis (“ABA”), which is an intensely focused, one-on-one program to increase or decrease behaviors that consists of direct observation, data collection, and functional analysis of that data. The DPHO agreed with Michelle Monaghan, the Board Certified Behavior Analyst (“BCBA”)[5] working privately with M.M., who testified that M.M. needs ABA to learn a new skill or extinguish a negative behavior. Further, without ABA, M.M. does not make progress.

         The DPHO also concluded that APS’ failure to provide M.M. with the Functional Behavioral Assessment and Behavior Intervention Plan identified in his IEP interfered with the provision of appropriate educational services to M.M. She found the absence on the IEP team of a person able to interpret the instructional implications of M.M.’s evaluation constituted a procedural error under IDEA and denied FAPE. The DPHO specified that the absence of someone who could discuss the educational implications of M.M.’s autism contributed to the preparation of an IEP that was not reasonably calculated to enable M.M. to progress. Moreover, she found APS failed to adequately communicate with Parents thereby hampering their ability to fully participate in developing and modifying M.M.’s educational program, which also amounted to a procedural violation of IDEA.

         With regards to M.M.’s communication goals, the DPHO found M.M. regressed from August 2015 to February 2016. She found the SLP who worked with M.M. from August 2015 to February 2016 had no training or expertise in working with students with autism. The SLP testified that she ignored M.M.’s autism in deciding how to work with him because she believed techniques she used with other children with language deficits would work for M.M. On November 2, 2016, an SLP with autism expertise who was a member of the District’s Autism Resource Team visited M.M. in his classroom and expressed concern that M.M. had no functional communication system in place. She offered assistance to set up a system but M.M.’s teacher and SLP denied the offer.

         Turning to M.M.’s elopement issues, the DPHO found APS erred by failing to complete the Functional Behavioral Assessment as identified in the May 2015 IEP. A Functional Behavioral Assessment was begun on October 29, 2015, but never finished. M.M. was placed into a new class on November 2, 2015, but still the FBA was not completed because his teacher did not have sufficient data regarding predicates to M.M.’s elopement behavior. The DPHO concluded that M.M.’s running behavior decreased, but it never went away.

         The DPHO focused on Ms. Lloyd’s class and found her instruction was not reasonably calculated to enable him to make progress toward his IEP goals and that M.M. did not make any progress. The DPHO found that M.M. did not fit perfectly in either the Intensive Support Program class or the Emerging Autism class and that either choice would have been acceptable. However, the DPHO concluded it was not acceptable that APS failed to provide autism-specific methodologies needed by M.M. to make even some progress, regardless of the classroom, teacher, or program being used with other students in the class. The DPHO did not, however, identify any goals in the 2015 IEP that she found were inappropriate.

         LEGAL STANDARD

         I. IDEA

         The IDEA is a comprehensive educational scheme focused on the rights of disabled children to a FAPE designed to meet their unique needs. See 20 U.S.C. § 1400; see also L.B. ex rel. K.B. v. Nebo School Dist., 379 F.3d 966, 973 (10th Cir. 2004). IDEA “offers States federal funds to assist in educating children with disabilities. In exchange for the funds, a State pledges to comply with a number of statutory conditions. Among them, the State must provide a free appropriate public education-a FAPE, for short-to all eligible children.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 993 (2017) (internal citations omitted). To provide an IDEA-eligible child with a FAPE, a school district must create an IEP for the child and follow its components. An IEP is a “written statement for each child with a disability that is developed, reviewed, and revised” in accordance with the IDEA. 20 U.S.C. § 1414(d)(1)(A)(i). A student’s IEP must be “reasonably calculated to enable [him] to receive educational benefits,” Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982); see also Garcia v. Bd. of Educ. of Albuquerque Pub. Schs., 520 F.3d 1116, 1125 (10th Cir. 2008). The IEP must be “individually designed” to suit the needs of each particular child. Rowley, 458 U.S. at 201.

         “When a dispute reaches federal court, the court applies a two-step analysis based on [IDEA’s] dual emphasis on substance and procedure. First, the court determines whether the IEP development process complied with [IDEA’s] procedures. Second, the court evaluates whether the IEP’s substance provided the student with a FAPE. If the IEP satisfies both steps, then the school district has complied with the Act.” Sytsema ex rel. Sytsema v. Acad. Sch. Dist. No. 20, 538 F.3d 1306, 1312–13 (10th Cir. 2008) (internal citations omitted) (alteration added). “Any review of an IEP must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal.” Endrew F., 137 S. Ct. at 999 (quoting Rowley, 458 U.S. at 206–07) (emphasis in original).

         II. Burden of Proof

         The parties disagree as to who bears the burden of proof in this appeal. The Court finds that APS, as the plaintiff in this action, bears the burden of persuasion that the DPHO’s decision should be reversed. See Jefferson Cty. Sch. Dist. R-1 v. Elizabeth E. ex rel. Roxanne B., 798 F. Supp. 2d 1177, 1183 (D. Colo. 2011). However, regarding the burden of production, it is Parents’ burden to show the IEP did not provide M.M. with a FAPE. The United States Supreme Court in Endrew F. did not alter the burden of proof in IDEA matters; the party challenging the IEP must show it was deficient. See Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 62 (2005) (holding that the party challenging an IEP in a due process hearing bears the burden of proof); see also Johnson v. Indep. Sch. Dist. No. 4 of Bixby, Tulsa County, Okla., 921 F.2d 1022, 1026 (10th Cir. 1990) (the party attacking a student’s IEP bears the burden of proof to show why the IEP is inadequate or did not provide the child with educational benefit). IDEA creates a “‘presumption in favor of the educational placement established by’ ” [the child’s IEP], and “‘the party attacking its terms should bear the burden of showing why the educational setting established by the [IEP] is not appropriate.’” Id. (quoting Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1158 (5th Cir. 1986)). Ultimately, this Court’s task is to determine whether a preponderance of the evidence shows the DPHO’s final decision should be reversed. See Sytsema, 538 F.3d at 1311.

         III. Standard of Review

         Unlike the deferential review typically afforded to administrative adjudication of statutory claims, Congress requires district courts to apply a modified de novo standard when reviewing agency disposition in the IDEA context. See 20 U.S.C. § 1415(i)(2)(C); Garcia, 520 F.3d at 1125 (quoting Murray v. Montrose County Sch. Dist., 51 F.3d 921, 927 (10th Cir. 1995)). Although unique, the modified de novo standard of review nonetheless comports with the Tenth Circuit’s general deference to an administrative tribunal as to findings of fact turning on the credibility of evidence. See Adams ex rel. D.J.W. v. Astrue, 659 F.3d 1297, 1302 (10th Cir. 2011) (credibility determinations are “peculiarly the province of the finder of fact” and are upheld “when supported by substantial evidence” in the record, provided that the determinations are “closely and affirmatively linked” to that evidence). Specifically, the district court must (1) receive the record of the administrative proceedings, (2) hear additional evidence at the request of a party, and (3) base its decision on the preponderance of evidence. 20 U.S.C. §1415(i)(2)(C). At the same time, 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.” Rowley, 458 U.S. at176; Garcia, 520 F.3d at 1125 (quoting Nebo Sch. Dist., 379 F.3d at 974.

         DISCUSSION

         In this Memorandum Opinion and Order, the Court considers whether to reverse the Final Decision by the DPHO, as APS seeks, or to grant the relief sought by Parents, which is to enter judgment against APS on the IDEA claims. In this appeal, APS argues the DPHO’s findings are flawed and not supported by a preponderance of the evidence. APS asserts the DPHO engaged in improper burden-shifting by requiring APS to prove its programming was appropriate rather than requiring Parents demonstrate by a preponderance of the evidence that the IEP and its implementation were inappropriate. The Court has carefully reviewed the administrative record, and for the reasons that follow, the Court concludes that the preponderance of the evidence shows M.M. made some meaningful progress relative to the severity of his disabilities and the IEP was reasonably calculated to enable M.M. to progress in light of his combination of disabilities. See Endrew F., 137 S. Ct. at 999. Accordingly, the Final Decision is ...


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