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Albuquerque Public Schools v. Sledge

United States District Court, D. New Mexico

August 8, 2019

ALBUQUERQUE PUBLIC SCHOOLS, Plaintiff,
v.
LINDSAY SLEDGE et al., Defendants. LINDSAY SLEDGE et al., Plaintiffs,
v.
BOARD OF EDUCATION OF ALBUQUERQUE PUBLIC SCHOOLS et al., Defendants.

          MEMORANDUM OPINION AND ORDER REGARDING ALBUQUERQUE PUBLIC SCHOOLS' IDEA BRIEF IN CHIEF

          KIRTAN KHALSA, UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on Albuquerque Public Schools' (“APS”) Original Complaint for Review of IDEA Administrative Decision (Doc. 1)[1] (“Complaint”), filed November 6, 2018, and Albuquerque Public School[s'] IDEA Brief in Chief (Doc. 15) (“Appeal Brief”), filed April 1, 2019, both seeking review of the October 7, 2018 Decision of the New Mexico Public Education Department (“NMPED”) Due Process Hearing Officer (“DPHO”) in In re Sledge et al. v. Albuquerque Public Schools et al., DPH No. 1819-01 (“Decision”). The Court's jurisdiction over APS' Complaint arises under 20 U.S.C. § 1415, which provides that a party aggrieved by a due process hearing officer's decision pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (“IDEA”), has the right to bring a civil action in federal court without regard to the amount in controversy. 20 U.S.C. § 1415(i)(2)-(3).

         The Court, having reviewed the entire administrative record and the parties' submissions and being otherwise fully advised, FINDS that: (1) the Decision should be REVERSED to the extent the DPHO concluded that APS failed to offer Student a free appropriate public education (“FAPE”) for preschool; but, (2) the Decision should be AFFIRMED to the extent the DPHO concluded that APS failed to offer Student a FAPE for kindergarten and ordered APS to offer Student homebound services with optional socialization opportunities for her kindergarten year.[2]

         I. Facts and Procedural History

         P. S.-G. (“Student”) was born in 2013. (Doc. 12-7 at 37.) Student has Dravet syndrome and as a result has had life-threatening seizures since infancy. (Doc. 12-3 at 9, 12-14.) Student's physicians have prescribed legal medications to reduce the frequency and duration of her seizures. (See, e.g., Id. at 12-14, 104, 115.) However, these medications have not always been effective and have caused serious side effects including inconsolable screaming and respiratory depression, and Student often needed emergency medical services when these were the only medications she took. (Doc. 12-3 at 12-14; Doc. 12-7 at 37-40, 65.)

         After Student's family moved to New Mexico in 2016, the New Mexico Department of Health (“NMDOH”) designated Student as a qualified patient with a debilitating medical condition whose primary caregiver, Defendant Lindsay Sledge (“Mother”), may administer cannabis to her pursuant to the Lynn and Erin Compassionate Use Act, N.M. Stat. Ann. §§ 26-2B-1 et seq. (“CUA”).[3] (Doc. 12-7 at 41-42.) The administration of cannabidiol (“CBD”) three times daily as a maintenance medication, [4] and cannabis oil at the onset of a seizure as a rescue medication, [5] has greatly reduced the frequency and duration of Student's seizures without any serious side effects. (Id. at 42, 46.)

         In the fall of 2016, APS informed Mother that Student could not receive cannabis on school grounds. (Doc. 12-7 at 45.) As a result, Mother requested homebound services for Student from APS preschool IEP specialist Patty Odegard.[6] (Doc. 12-6 at 7, 9; Doc. 12-7 at 44-45.) In February 2017, Student's neurologist, Seema Bansal, M.D., completed an APS form entitled “Consideration for Home Bound Placement, ” on which Dr. Bansal indicated that Student was “unable to function in the school setting, even for a shortened day at this time or for a period totaling 52 weeks during the school year.” (Doc. 12-3 at 80-81.) In addition, on March 1, 2017, Dr. Bansal wrote a letter to whom it may concern, in which she stated:

[c]hildren with Dravet syndrome may have prolonged seizures that require medication to stop. At home, “rescue medications” are used to stop these prolonged seizures. Generally, the use of rescue medications does not prohibit school attendance, if the school has a nurse or other provider who is comfortable administering these medications . . . . [Student's] mother states that prescribed rescue medications (rectal diazepam, intranasal midazolam) cause patient [to] be irritable for 24 hours after use. She reports that using CBD oil shortens the duration of the seizure without these side effects. While the No. or length of school days can be adjusted for [Student], we cannot predict when or where her seizures may occur. There are no medical barriers to [Student] being in school. Home-bound education, however, will provide an environment in which [Student's] mother is able to provide what she feels is an effective rescue medication.

(Doc. 12-3 at 85.)

         APS determined that Student was eligible to receive special education and related services due to her other health impairment (“OHI”) of Dravet syndrome, (Doc. 12-3 at 60-61, 74-76), and held a meeting on March 16, 2017 to develop an IEP for her. (Doc. 12-3 at 87-97.) Mother attended the meeting, as did Ms. Odegard and several other APS employees. (Id. at 87.) The Prior Written Notice of Proposed Actions (“PWN”) generated at the meeting indicates that APS proposed to provide Student with, inter alia, Extended School Year (“ESY”) services and special education services for one hour per day in a special education preschool classroom, and the IEP team accepted these proposals. (Doc. 12-3 at 96-97.) The PWN further indicates that APS proposed to provide Student with homebound services, but the IEP team rejected this proposal because Student “is able to attend her neighborhood school with accommodations specific to her medical needs.”[7] (Id. at 96.)

         The parties dispute whether Mother agreed with the IEP team's decision that Student should attend preschool in lieu of receiving homebound services. Mother testified that she requested homebound services, but “someone”-either Ms. Odegard or “the homebound person”[8]-“said she needed to try school before they went to homebound.” (Doc. 12-7 at 45.) Ms. Odegard, in contrast, testified that Mother “did want [Student] to go to school, ” (Doc. 12-6 at 17-18); and, APS employee Kathleen Barrett testified that Mother was told homebound services were available to Student, but Mother “wanted [Student] in school; and the committee was doing their best to find a way for [Student] to participate, and [Mother] was as well.” (Doc. 12-6 at 68, 70.) Also, on the date of the meeting, Mother completed a form entitled “Consent for Initial Special Education Services, ” on which she indicated: “I agree with the recommendations of the IEP team and do give permission for my child to receive recommended services.”[9] (Doc. 12-4 at 102 (emphases in original).)

         Neither Student's written IEP nor the PWN indicates that Mother planned to accompany Student to preschool to remove her from campus and give her cannabis in the event of a seizure. (See generally Doc. 12-3 at 87-97.) However, this plan was discussed at the meeting.[10] (Doc. 12-6 at 12-13.) Mother testified that it was APS employee Rochelle Renteria who suggested that Mother accompany Student to preschool, but Ms. Renteria disputed this. (Doc. 12-7 at 45; Doc. 12-8 at 7.) Student's teacher Lisa Boles-Smith and school nurse Dany Mak were aware that Mother planned to accompany Student to preschool to remove her from campus and give her cannabis in the event of a seizure. (Doc. 12-6 at 24, 34-35; Doc. 13-1 at 2-3.) At no time did Parents provide Student's school with medication to treat Student's seizures. (Doc. 12-6 at 42; Doc. 12-7 at 65.) Had Parents provided the school with prescription medication, the school nurse could have administered it to Student. (Doc. 12-6 at 50; Doc. 12-7 at 34.)

         Student began attending preschool at her neighborhood APS school in March 2017. (Doc. 12-3 at 96, 169; Doc. 12-6 at 20.) For the rest of the 2016-2017 school year and for the ESY of 2017, Mother accompanied Student to preschool and sat in Student's classroom so that she could remove Student from campus and give her cannabis in the event of a seizure. (Doc. 12-6 at 20-21; Doc. 12-7 at 45-46.) Student also attended preschool at her neighborhood APS school for the 2017-2018 school year, and Mother again accompanied Student so that she could remove Student from campus and give her cannabis in the event of a seizure. (Doc. 12-3 at 169; Doc. 12-7 at 46-47.) During this school year, however, Mother waited in her car or in the staff lounge pursuant to Student's teacher's suggestion. (Doc. 12-6 at 20-21, 24, 34-36; Doc. 12-7 at 47.)

         Although her IEP called for her to attend preschool only one hour per day, Student often stayed for the full two-and-a-half hours per day. (Doc. 12-3 at 96; Doc. 12-6 at 13, 20, 25; Doc. 12-7 at 46.) Student missed one or two days per week due to her, her siblings', and Mother's appointments and illnesses. (Doc. 12-7 at 45-46, 48.) Despite her frequent absences, Student made good educational progress. (Doc. 12-6 at 39, 62.)

         On March 12 and April 2, 2018, APS held a meeting to develop Student's IEP for the 2018-2019 school year, when Student would be attending kindergarten. (Doc. 12-3 at 185-86.) Mother, Ms. Boles-Smith, and several other APS employees attended this meeting. (Id.) At the time of the meeting, Mother was considering homeschooling Student because she felt she could not be at school with Student

for six hours, because kindergarten is different than preschool in regards to [Student] missing days. She can't miss several days a week because I have appointments or my other kids have appointments. You know, that won't fly once she is in kindergarten. . . . I can't be here all day, every day, I just can't do that anymore.

(Doc. 12-7 at 50 (quotation marks omitted).) However, Mother wanted Student to receive a public education and did not want to homeschool her. (Id.)

         According to the PWN generated at the March/April 2018 IEP meeting, APS proposed that Student attend full-day kindergarten in a cross-categorical classroom at her neighborhood school with a one-on-one educational assistant, and the IEP team accepted these proposals. (Doc. 12-3 at 197-98.) The PWN further indicates that APS proposed homebound services for Student, but the IEP team rejected this proposal because “[a]t this time there is no documentation, medically or academically, to support [h]omebound services.” (Doc. 12-3 at 197; see also, e.g., Doc. 12-6 at 30 (Ms. Boles-Smith testified that homebound services were “brought up” at the meeting); Doc. 12-8 at 4 (special education teacher S. Debban-Solomon testified that homebound services were discussed at the meeting but “the team” felt a classroom was Student's least restrictive environment); Doc. 12-8 at 17 (head special education teacher H. Smith-Olson testified that homebound services were discussed at the meeting but “[i]t did not seem an appropriate placement for [Student] based on her educational needs”).) Mother testified that at the meeting, she told APS special education principal Lisa Oliphant, “‘I sought out homebound and you guys denied it.' So, you know, we've already been down that road. And it was - you know, [Ms. Oliphant] said [Student] needed to be in school.” (Doc. 12-7 at 57.)

         The PWN generated at the March/April 2018 IEP meeting also indicates that Mother proposed an abbreviated schedule for Student, but the IEP team rejected the proposal because “[t]here is no current data that supports the need for an abbreviated schedule at this time.” (Doc. 12-3 at 197; see also, e.g., Doc. 12-6 at 31; Doc. 12-7 at 17.) Mother explained that she requested an abbreviated schedule for Student because she could not accompany Student to school all day, every day, nor was she willing to send Student to school without the means to receive cannabis as a rescue medication. (Doc. 12-7 at 50.) Although any APS parent has the right to request half-day kindergarten, Mother testified that she did not know about this right and Ms. Oliphant did not advise her of it. (Doc. 12-7 at 21-23, 53.) Ms. Oliphant confirmed Mother's testimony on this point but added that she told Mother she could reach out to Student's school principal “[a]bout her options.”[11] (Id.)

         APS kept the following health records regarding Student:

(1) a “Health Evaluation Summary” by Joan Gugliotta, R.N., dated August 25, 2016, stating that Student was “on Kep[p]ra[12] and CBD daily . . . and Versed[13] and Cannabis as needed, ” (Doc. 12-3 at 40);
(2) a “Medical Examination Form” by Dr. Bansal, dated November 9, 2016, listing Student's medications as levetiracetam, acetazolamide, [14] and CBD, (Doc. 12-3 at 57);
(3) a “Seizure Medical Management Plan” by Mother, dated March 29, 2017, listing Student's medications as Keppra, Diamox, and CBD, (Doc. 12-3 at 108);
(4) two forms entitled “Student Health Action Plan for Staff, Seizure Disorder” by Nurse Mak, dated March 29, 2017 and April 26, 2017, stating that Student was “currently attending school with mom's supervision” and not on medication at school, and instructing staff to “[c]lear path so mom may safely evacuate [Student] off campus” in the event of a seizure, (Doc. 12-3 at 112; Doc. 12-4 at 254);
(5) a “Seizure Medical Management Plan” by Dr. Bansal, dated April 6, 2017, and a “Seizure Action Plan” by Dr. Bansal, dated September 27, 2017, listing midazolam as Student's medication in the event of a seizure, (Doc. 12-3 at 104, 115);
(6) a “Summary of Student Health Logs” indicating that Student had seizures at school on: (a) June 21, 2017, on which date Mother removed her from campus “to take home and administer cannabis”; and, (b) August 29, 2017, on which date Defendant David Guba took Student home, (Doc. 12-3 at 99-100; see Doc. 12-6 at 51);
(7) a form entitled “Student Health Action Plan for Staff, Seizure Disorder” by Nurse Mak, dated October 10, 2017, stating that Mother was on school campus while Student was in class and Student was “not on medication at school, ” and instructing staff to “clear path so mom may safely evacuate [Student] off campus” in the event of a seizure, (Doc. 12-3 at 110); and,
(8) an “Individualized Healthcare Plan” (“IHP”) by Nurse Mak, dated March 19, 2018, stating that Student was on Keppra daily at home, “Parent cho[se] not to keep Versed in Health Office as [e]mergency [m]ed[ication], ” and there was “[n]o [e]mergency [m]ed[ication] in H[ealth] O[ffice], ” and listing as “nursing interventions” to “[c]reate [an] Emergency Evacuation Plan and distribute to classroom staff” and to “[i]nstruct staff in safe emergency care of [Student] during a seizure.”[15] (Doc. 12-3 at 200.) This IHP was attached to Student's March/April 2018 IEP. (Doc. 12-3 at 188.)

         Nurse Mak testified that there were other IHPs for Student, including one for the 2016-2017 school year. (Doc. 13-1 at 3.) However, she did not describe the contents of these IHPs, and they are not included in the record.[16]

         On July 3, 2018, Parents submitted a Request for Due Process Hearing against Local Educational Agency and State Educational Agency (“Request”) pursuant to the IDEA. (Doc. 12-1 at 5-22.) Parents' Request identified their “proposed resolution . . . to the extent available” as follows: (1) Student should attend full-time kindergarten and receive cannabis as needed from trained school personnel; (2) APS and the NMPED should work together to extend the CUA's waiver of civil and criminal penalties for the administration of cannabis to qualified students to all school personnel who work with Student during the school year; (3) APS and the NMPED should compensate Mother for the hours she accompanied Student to preschool in 2017 and 2018 at the hourly wage of an educational aide; (4) APS should amend Student's IEP to accurately reflect her needs and services; and, (5) APS and the NMPED should pay Parents' attorneys' fees for their Request.[17] (Doc. 12-1 at 20-21.) Parents requested similar relief in their Statement on Relief Requested, which they submitted on August 13, 2018. (Doc. 12-1 at 184-85.)

         The DPHO held a three-day hearing on Parents' Request on August 27, August 28, and September 6, 2018. (Docs. 12-6, 12-7, 12-8.) At the hearing, Mother testified that she would prefer for Student to attend school and receive cannabis from school personnel in the event of a seizure. (Doc. 12-7 at 59-61.) Mother further testified that she did not know what the next best alternative would be, and that she would consider homebound services but would prefer for Student to be in school, because socialization is important for the development of Student's social and language skills. (Id. at 60-61.) Mother stated that she had not yet decided what she was going to do about Student's education because the outcome of the hearing could change her decision. (Id. at 60.) According to Mother, at the time of the hearing, Student was receiving CBD, acetazolamide, and clonidine[18] daily, and cannabis and very infrequently Versed as rescue medications. (Doc. 12-7 at 64.) At the time of the hearing, Student was not attending kindergarten, although she was enrolled at her neighborhood APS school. (Doc. 12-6 at 48; Doc. 12-7 at 56.) Mother testified that she was trying to homeschool Student but was “not equipped to teach her.” (Doc. 12-7 at 56.)

         APS executive director of special education Cindy Soo Hoo testified at the hearing that she knew of a student who received homebound services and also attended her neighborhood school for some instruction.[19] (Doc. 12-8 at 30.) Ms. Soo Hoo also testified that APS would be “available [sic] to provide homebound services to [Student] so that she continues to receive the services that she is needing and [to] address the parent's concern for the administration of medical cannabis.” (Doc. 12-8 at 39.)

         In their Proposed Findings of Fact and Conclusions of Law, submitted on October 2, 2018, Parents sought an order: (1) requiring APS to make homebound services available to Student for at least half-days and to allow Student to attend school as Parents see fit for socialization; (2) declaring that APS and the NMPED denied Student a FAPE during the 2016-2017, 2017-2018, and 2018-2019 school years; (3) reimbursing Mother for the hours she accompanied Student to preschool at the hourly wage of an educational aide; (4) requiring the NMPED to “develop guidance” for local educational agencies to the effect that children who are eligible for services under the IDEA and qualified to receive cannabis under the CUA are entitled to a FAPE in the least restrictive environment (“LRE”) that does not rely on parent attendance; and, (5) declaring that the CUA conflicts with the IDEA and deprives students of their right to receive a FAPE in the LRE.[20] (Doc. 12-1 at 303-04.)

         On October 7, 2018, the DPHO issued a final written Decision in which she made findings of fact and reached conclusions of law. (Doc. 12-1 at 386-413.) Inter alia, the DPHO concluded that “[g]iven the child's need for medication that the school cannot legally administer, ” Student's LRE is “the homebound setting with socialization opportunities.” (Doc. 12-1 at 410-11.) The DPHO further concluded that APS' “failure to provide Student with the IDEA required continuum of services denied Student FAPE.” (Id. at 411.) The DPHO also concluded that “[t]he presence of Parent on campus to be available in the event of a seizure was a de facto requirement of Student's IEP, ”[21] but “[t]here is no evidence supporting Parent's request for payment for the time she spent at school.” (Id. at 410.)

         Based on her findings and conclusions, the DPHO ordered that:

1. [APS] shall conduct . . . an IEP meeting . . . to provide Parent with the option of a hybrid, homebound kindergarten placement, with related services provided either at school or in the home. Some additional time but not less than three hours per week, at times determined by the IEP team will be offered at the school so that Student may interact with peers. Mother may attend school during these . . . times, at her option, but she is not required to.
2. In the alternative, Student may attend a half-day kindergarten school day.
3. In the event Parent chooses to have the school nurse administer Epidiolex during the time Student attends school, [the NMPED] shall work with the [NMDOH] to have that medication, as prescribed by a physician and supplied by Parent, available within 30 days of Parent's election to utilize this medication.

(Doc. 12-1 at 411-12.)

         APS filed this civil action on November 6, 2018, seeking reversal of certain findings of fact and conclusions of law in the DPHO's Decision, judgment wholly in its favor, and an award of costs. (Doc. 1 at 7-8.) In its Complaint, APS alleges that the DPHO erred in: (1) exercising jurisdiction over issues related to medical cannabis; (2) finding that APS rejected Parents' requests for homebound services at the March 2017 and March/April 2018 IEP meetings; (3) finding that all of Student's IHPs designated Mother as the person to deal with Student's emergency care; (4) concluding that Student's LRE is the homebound setting; (5) concluding that Mother's presence on campus was a de facto requirement of Student's IEP; (6) concluding that APS' PWNs regarding Student were incomplete because they did not indicate that Mother had to be on campus in the event of a seizure; (7) concluding that Parents met their burden of proving that Student needs cannabis to treat her seizure disorder; and, (8) concluding that APS denied Student a FAPE. (Doc. 1 at 6-7.) APS also alleges that “the IDEA does not require a school district to accommodate the use of an illegal substance to provide a FAPE.” (Id. at 7.)

         APS filed its Appeal Brief on April 1, 2019, (Doc. 15); Parents filed their IDEA Response Brief on April 22, 2019, (Doc. 20); and, APS filed its Reply to Defendants' IDEA Response Brief on May 3, 2019. (Doc. 24.) As explained herein, the Court finds that certain of the DPHO's findings of fact and conclusions of law should be reversed, but that the DPHO properly exercised jurisdiction over Parents' Request, found that APS denied Student a FAPE in violation of the IDEA for her kindergarten year, and ordered APS to offer Student homebound special education and related services with the opportunity for limited school attendance at Parents' option. The Court will therefore affirm the remedy the DPHO ordered against APS.

         II. Analysis

         A. Standard of Review

         “The IDEA sets up a unique standard for a federal court's review of [an] administrative due process hearing.” L.B. ex rel. K.B. v. Nebo Sch. Dist., 379 F.3d 966, 973 (10th Cir. 2004). “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.” Garcia v. Bd. of Educ. of Albuquerque Pub. Sch., 520 F.3d 1116, 1125 (10th Cir. 2008); Sytsema ex rel. Sytsema v. Acad. Sch. Dist. No. 20, 538 F.3d 1306, 1311 (10th Cir. 2008). Pursuant to this standard of review,

the district court must (1) receive the record of the administrative proceedings, (2) hear additional evidence at the request of a party, [22] and (3) base its decision on the preponderance of evidence. 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.

Garcia, 520 F.3d at 1125 (citations and quotation marks omitted). “The district court's proceedings must maintain the character of review and not rise to the level of a de novo trial.” L.B. ex rel. K.B., 379 F.3d at 974 (citations omitted).

         B. Statutory Framework

         The IDEA “offers States federal funds to assist in educating children with disabilities.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, ___ U.S. ___, 137 S.Ct. 988, 993 (2017). “In exchange for the funds, a State pledges to comply with a No. of statutory conditions, ” including the provision of a FAPE to all eligible students residing in the State. Id.; Sytsema, 538 F.3d at 1312 (“[S]tates must provide all eligible students with a FAPE to receive federal funding under the IDEA.”); L.B. ex rel. K.B., 379 F.3d at 974 (“States must comply with the IDEA's requirements, including providing each disabled child with a FAPE . . . in order to receive funds under the statute.”). An eligible student “acquires a substantive right to such an education once a State accepts the IDEA's financial assistance.” Fry v. Napoleon Cmty. Sch., ___ U.S. ___, 137 S.Ct. 743, 749 (2017) (quotation marks omitted).

         A FAPE includes both “special education” and “related services.” Endrew F., 137 S.Ct. at 994. “Special education” is “specially designed instruction . . . to meet the unique needs of a child with a disability, including . . . instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings, ” 20 U.S.C. § 1401(29), while “related services” are the support services “required to assist a child . . . to benefit from” that instruction. 20 U.S.C. § 1401(26). A FAPE must provide a “substantively adequate program of education, ” which requirement is satisfied “if the child's IEP sets out an educational program that is reasonably calculated to enable the child to receive educational benefits.” Endrew F., 137 S.Ct. at 995-96, 999. In addition, a FAPE must be free, that is, “provided at public expense, under public supervision and direction, and without charge.” 20 U.S.C. § 1401(9)(A); Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 13 (1993). Finally, a FAPE must be offered in the least restrictive environment that is appropriate under the circumstances. L.B. ex rel. K.B., 379 F.3d at 976.

         The IDEA requires special education and related services to conform to the student's IEP, which “describe[s] the special education and related services that will be provided.” Endrew F., 137 S.Ct. at 994 (quotation marks and ellipses omitted).

Parents and guardians play a significant role in the IEP process. They must be informed about and consent to evaluations of their child under the Act. Parents are included as members of IEP teams. They have the right to examine any records relating to their child, and to obtain an independent educational evaluation of their child. They must be given written prior notice of any changes in an IEP, and be notified in writing of the procedural safeguards available to them under the Act[.]

Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005) (citations, quotation marks, and brackets omitted).

         When parents and educators disagree about the contents of a student's IEP, “parents may turn to dispute resolution procedures established by the IDEA, ” including “a due process hearing before a state or local educational agency.”[23] Endrew F., 137 S.Ct. at 994; Sytsema, 538 F.3d at 1312. The party seeking relief bears the burden of persuasion at the due process hearing. Schaffer, 546 U.S. at 51. “[A]t the conclusion of the administrative process, the losing party may seek redress in state or federal court.” Endrew F., 137 S.Ct. at 994 (citations and quotation marks omitted); Sytsema, 538 F.3d at 1312. Bearing in mind the modified de novo standard of review, the reviewing court must conduct a two-step inquiry for assessing liability:

(1) Has the school district complied with the procedures set forth in [the] IDEA? (2) Are the special education services provided to the student reasonably calculated to enable the child to receive educational benefits-or in other words, has the school district ...

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