United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER REVERSING HEARING
OFFICER’S FINAL DECISION ON IDEA APPEAL AND ADVISING
COUNSEL TO ADDRESS ANY REMAINING ISSUES
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.
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.
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. 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.
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.
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
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.
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
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
May 18, 2015 IEP
May 8, 2015 IEP is the one at issue in this lawsuit. The 2015
IEP team 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”) 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.
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.
DPHO’s Findings and Basis for IDEA
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.
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”) 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.
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.
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.
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.
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.
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.
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
Burden of Proof
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.
Standard of Review
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.
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