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Nathan M. v. Harrison School District No. 2

United States Court of Appeals, Tenth Circuit

November 14, 2019

NATHAN M., a minor, by and through his parents and next friends, AMANDA M., Plaintiffs - Appellants,

          Appeal from the United States District Court for the District of Colorado (D.C. No. 1:18-CV-00085-JLK)

          Jack D. Robinson, Spies, Powers & Robinson, P.C., Denver, Colorado, for Plaintiff-Appellant.

          John R. Stanek (William K. Dude with him on the briefs), Anderson, Dude & Lebel, P.C., Colorado Springs, Colorado, for Defendant-Appellee.

          Francisco M. Negrón, Jr., Chief Legal Officer, National School Boards Association, Alexandria, Virginia, and W. Stuart Stuller, Caplan and Earnest, LLC, Boulder, Colorado, filed a brief for Amici Curiae National School Boards Association, Colorado Association of School Boards, Kansas Association of School Boards, New Mexico School Boards Association, Oklahoma State School Boards Association, Utah School Boards Association, and Wyoming School Boards Association, in support of Harrison School District No. 2.

          Before TYMKOVICH, Chief Judge, PHILLIPS, and McHUGH, Circuit Judges.


         This case arises under the Individuals with Disabilities Education Act ("IDEA" or the "Act"). Amanda M. ("Parent"), the mother of Nathan M., a child with autism, challenges an Individualized Education Program ("IEP") developed with Harrison School District No. 2 ("the District") that proposed removing Nathan from Alpine Autism Center (a private, autism-only facility) and placing him in Otero Elementary School (a public school). Nathan's mother contends the school district did not comply with numerous procedural requirements in developing the IEP and that the IEP itself failed to offer Nathan a "free appropriate public education" ("FAPE") as required by the Act.

         Because the IEP at issue governed a schoolyear that has passed, and because the various IEP deficiencies alleged by Parent are not capable of repetition yet evading review, the case is moot.

         I. BACKGROUND

         A. Factual History

         Nathan M. is a child diagnosed with autism spectrum disorder ("ASD") and attention deficit hyperactivity disorder ("ADHD"). As a child with a disability, Nathan is entitled to a FAPE under the IDEA. Steven R.F. ex rel. Fernandez v. Harrison Sch. Dist. No. 2, 924 F.3d 1309, 1310 (10th Cir. 2019); see 20 U.S.C. § 1412(a)(1)(A) (requiring states to provide a free appropriate public education to children with disabilities in order to qualify for federal funding). The IDEA guarantees the provision of a FAPE by mandating the development of an IEP: "a comprehensive plan prepared by a child's 'IEP team' (which includes teachers, school officials, and the child's parents)" through which "special education and related services are 'tailored to the unique needs' of a particular child." Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988, 994 (2017) (quoting Bd. of Ed. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 181 (1982)).

         Since 2012, in accordance with an IEP developed with the District, Nathan has attended the Alpine Autism Center ("Alpine") in Colorado Springs to receive special education supports and services in lieu of a public school. Alpine is a private program serving students with autism through a methodology known as "Applied Behavior Analysis" ("ABA"), administered by employees supervised by Board Certified Behavior Analysts ("BCBAs") rather than certified teachers.

         In April 2014, the District proposed removing Nathan from Alpine and placing him in a public elementary school, Otero Elementary ("Otero"). Nathan's parents objected to this decision and filed a complaint with the Colorado Department of Education. A Colorado State Complaint Officer ("SCO") found that the District had predetermined to remove Nathan from Alpine, thereby denying his parents the opportunity to meaningfully participate in the IEP process. The District declined to challenge this finding.

         Nathan therefore remained at Alpine, and in February 2016 the District began a reevaluation of Nathan for the purpose of developing his new IEP. The District convened a pre-evaluation meeting attended by Parent, Parent's advocate, district employees, and various specialists in occupational therapy, speech, mental health, and administration. Parent provided an agenda for the meeting and received answers to her questions from members of the assessment team. No one from Alpine attended the meeting, and neither the District nor Parent invited anyone from Alpine to attend. At this pre-evaluation meeting, Parent consented to a series of assessments related to Nathan's "cognition, academic skill development, social/emotional/behavioral development, adaptive skill development (geared to ASD), speech/language development, motor skills, and sensory processing." App. Vol. 1 at 40.

         The District held its first IEP team meeting on April 19, 2016. Parent, her advocate, and other members of the IEP team attended, but no representative from Alpine did. The IEP team confirmed Nathan's continuing eligibility for a FAPE as a child with ASD[1] and fielded Parent's questions over the course of two and a half hours. After the meeting concluded, Parent had more questions about Nathan's evaluation, so a school district official held an individual meeting with her, lasting over two hours, during which the official attempted to answer Parent's questions.

         A second two-and-a-half hour IEP team meeting occurred on May 19, 2016. Although Parent invited members of the Alpine staff to attend, they declined to do so. Parent provided an agenda for this meeting and expressed her view that the team would have made more progress had Alpine staff been in attendance. The IEP team addressed Nathan's "reevaluation and what progress he would need to show to be able to succeed in a general education classroom." App. Vol. 1 at 42.

         At a third meeting, on September 9, 2016, the IEP team worked from an agenda created by a neutral facilitator designed to address Parent's issues with Nathan's IEP, as well as input from the District. Members of Alpine attended and "had further discussion regarding the results of the reevaluation as well as [Nathan's] present levels at Alpine." App. Vol. 1 at 43. The meeting lasted three hours.

         The IEP team met for a fourth time on November 11, 2016. Parent, two of Parent's advocates, representatives from Alpine, and District staff attended the three-hour meeting, which was more "contentious and emotional than other meetings." App. Vol. 1 at 43-44. After a discussion of Nathan's current levels of performance, the team formulated goals for Nathan and acceded to Parent's request for a one-on-one paraprofessional aide to support Nathan's academic and behavioral needs. Parent also requested an Independent Educational Evaluation ("IEE") for Nathan because, in her view, the District's evaluation was not adequate.[2] A fifth and final meeting "convened on December 13, 2016, and lasted more than four hours." App. Vol. 1 at 44. All IEP team members attended, along with employees of Alpine. The team updated Nathan's educational goals, responded to Parent's questions, and discussed the comparative advantages and disadvantages of placing Nathan at Alpine or Otero.

         The District then proposed placing Nathan at Otero, within Otero's Autism Program. At Otero, Nathan would be provided a full-time, one-on-one paraprofessional and "extensive accommodations and modifications addressed to his unique educational needs." App. Vol. 1 at 45. Nathan would not be transitioned to Otero immediately, but "would be supported during the initial transition from Alpine with a blending of his day at Alpine and Otero." App. Vol. 1 at 45. Depending on Nathan's success within Otero's Autism Program, Nathan would eventually join Otero's Communications and Social Development program "geared toward students on the higher functioning end of the autism spectrum." ...

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