G.W. v. Boulder Valley Sch. Dist.

Decision Date18 September 2019
Docket NumberCivil Action No. 16-cv-00374-PAB-SKC
PartiesG.W., by his mother and legal guardian, J.W., in her own right, Plaintiffs, v. BOULDER VALLEY SCHOOL DISTRICT and JEFFERSON COUNTY SCHOOL DISTRICT R-1, Defendants.
CourtU.S. District Court — District of Colorado

Chief Judge Philip A. Brimmer

AMENDED ORDER

This matter is before the Court on plaintiffs' Amended Complaint [Docket No. 82] and Opening Brief [Docket No. 105]. Plaintiffs, G.W. and his mother, J.W., request reversal of two decisions by the State of Colorado, Office of Administrative Courts: (1) a decision dismissing J.W.'s claims that Boulder Valley School District ("BVSD") failed to provide G.W. with a free appropriate public education ("FAPE") under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq.; and (2) a decision ordering J.W. to comply with Jefferson County School District's ("JCSD") requests to evaluate G.W. for purposes of developing an individualized educational plan ("IEP"). See Docket No. 82 at 5. Plaintiffs also assert claims against BVSD and JCSD for disability discrimination under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. See Docket No. 82 at 5-6. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 20 U.S.C. § 1415(i)(3)(A).

I. FACTUAL BACKGROUND1
A. Boulder Valley School District

G.W. was born in March 1996 and suffers from a traumatic brain injury ("TBI"). AR Vol. IV at 54-66; Supp. AR Vol. I at 35.2 It is undisputed that, at all times relevant to this appeal, G.W. qualified for educational services under the IDEA. See Docket No. 105 at 9; Docket No. 111 at 3; Docket No. 110 at 2.3

G.W. attended public school between first and sixth grades. AR Vol. I at 256; AR Vol. IV at 1-2 (Exhibit 2), 55 (Exhibit 6). Toward the end of sixth grade, G.W. began having more behavioral issues, resulting in his out-of-district placement the followingschool year. AR Vol. I at 256; AR Vol. IV at 1-2 (Exhibit 2), 55 (Exhibit 6).4 G.W. returned to public school for the beginning of eighth grade, but transitioned to Monarch High School after being suspended for a behavioral incident. AR Vol. I at 256; AR Vol. IV at 1 (Exhibit 2), 55 (Exhibit 6). While at Monarch, G.W. worked one-on-one with Dawn Collamer, a behavioral consultant for BVSD, for about four months. Supp. AR Vol. I at 147, 251-52; AR Vol. IV at 56 (Exhibit 6). J.W. testified that G.W. did well during this period. Supp. AR Vol. I at 251. At some point, G.W. began working with a different one-to-one aide and his behavioral issues increased. AR Vol. IV at 56 (Exhibit 6). BVSD and J.W. agreed that G.W.'s placement at Monarch was no longer working, so they moved him to Creative Perspectives, a/k/a Spectra Autism Center, in August 2012. AR Vol. IV at 1 (Exhibit 1), 56 (Exhibit 6); Supp. AR Vol. I at 36-37; AR Vol. IV at 1 (Exhibit 2).5 At an annual IEP review meeting on June 18, 2013, G.W.'s IEP team determined that a separate school/day treatment program was the least restrictive environment that could meet G.W.'s behavioral needs and recommended his continuedplacement at Spectra. AR Vol. IV at 3, 19-21 (Exhibit 2). According to the IEP document, G.W.'s "IEP team [was] in agreement with [his IEP]." Id. at 21.

On September 23, 2013, neurologist Amy K. Connery, Psy. D., conducted an independent educational evaluation of G.W. using the following assessment tools: the Weschler Adult Intelligence Scale, Fourth Edition; the Weschler Individual Achievement Test, Third Edition; the Grooved Pegboard Test; the Rey Complex Figure Test and Recognition Trial; the Wide Range Assessment of Memory and Learning - 2; a Behavior Rating Inventory of Executive Function; the Adaptive Behavior Assessment System, Second Edition; a writing sample; a records review; and a clinical interview. AR Vol. IV at 54 (Exhibit 6). In her report dated October 7, 2013, Dr. Connery found that G.W. had significant delays in cognitive functioning, executive functioning, concentration, and self-regulation, with relative areas of strength in verbal ability and math computation. AR Vol. IV at 58-63 (Exhibit 6). She stated that G.W. would "continue to require intensive, individualized programming" built around his academic strengths and weaknesses, and that "continued efforts to develop a consistent behavioral plan that [would] support [G.W.] in better tolerating frustration and navigating challenges in the academic environment would be a critical component to his educational plan." AR Vol. IV at 63. At the administrative hearing, Scott Sparks, Director of Secondary Special Education for BVSD, testified that Dr. Connery's evaluation led him to believe that BVSD needed to look for a program that "specifically focused on the traumatic brain injury." Supp. AR Vol. 1 at 41.

G.W. was discharged from Spectra Autism Center on October 18, 2013. AR Vol. IV at 33 (Exhibit 3). On November 5, 2013, BVSD entered into an agreement withHumanex Academy, a private school in Englewood, Colorado, to provide G.W. with day services. AR Vol. IV at 69-82 (Exhibit 9); Supp. AR Vol. 1 at 42-43. On November 14, 2013, G.W.'s IEP team met to determine G.W.'s continued eligibility for special education. See AR Vol. IV at 83 (Exhibit 10), 85 (Exhibit 11). The IEP team found that G.W. continued to qualify for services as a student with TBI, AR Vol. IV at 83 (Exhibit 10), and that a separate school was "the most appropriate placement to meet G.W.'s needs going forward." AR Vol. IV at 85 (Exhibit 11). This determination was based on input from G.W.'s mother as well as evaluations conducted by Dr. Connery and Spectra staff. AR Vol. IV at 85 (Exhibit 11).

Following behavioral incidents on November 15 and 19, 2013, Humanex determined it could no longer serve G.W. AR Vol. IV at 87-90 (Exhibit 12). G.W. was dismissed from Humanex on November 19 or 20, 2013. AR Vol. IV at 90 (Exhibit 12), 93 (Exhibit 14); AR Vol. I at 258; Supp. AR Vol. 1 at 48. On Decem ber 2, 2013, Mr. Sparks and J.W. met to discuss alternative placements. AR Vol. IV at 97 (Exhibit 15); Supp. AR Vol. I at 49. Over the course of the next month, Mr. Sparks and J.W. researched several placement options, including Cherry Creek School District, Learning Services, Timberridge in Benson, Arkansas, Ivy Street School in Brookline, Massachusetts, and Lakeview Neurorehabilitation Center ("Lakeview") in Effingham, New Hampshire. See AR Vol. IV at 97-178 (Exhibit 15). The first three placement options were ruled out on the basis that they would not accept G.W. or were unable to meet his needs. See AR Vol. IV at 104, 106, 139 (Exhibit 15); Supp. AR Vol. I at 50. However, both the Ivy Street School and Lakeview were determined to be appropriate placements. AR Vol. IV at 174 (Exhibit 15); Supp. AR Vol. I at 58. On December 24,2013, J.W. sent an email to Ron Yauchzee, Executive Director of Special Education for BVSD, requesting an update on the status of G.W.'s educational programming and noting it was her "understanding that both the district and [she] ha[d] pursued all appropriate programs in Colorado and those facilities ha[d] said they [could] not serve [G.W.]." AR Vol. IV at 167 (Exhibit 15). J.W. stated that she had "been moving forward with appropriate out of state programs, such as the Ivy School and Lakeview." Id. On January 6, 2014, J.W. emailed Mr. Yauchzee stating that both she and G.W. preferred Lakeview due to safety concerns about the Ivy Street School. AR Vol. IV at 176 (Exhibit 15).

On January 9, 2014, Mr. Sparks emailed J.W. a prior written notice for an IEP meeting to discuss G.W.'s possible residential placement at an out-of-state school. AR Vol. IV at 182 (Exhibit 17); Supp. AR Vol. I at 58. At the m eeting held on January 16, 2014, G.W.'s IEP team identified a residential facility as the least restrictive environment capable of meeting G.W.'s needs and Lakeview as G.W.'s recommended placement. See AR Vol. IV at 229-30 (Exhibit 19). Although the IEP document produced at the meeting notes that J.W. desired G.W. to "gain the skills to return to Humanex Academy," AR Vol. IV at 223 (Exhibit 19), there was no apparent disagreement regarding G.W.'s educational needs or the type of program that would be appropriate for him. Supp. AR Vol. I at 63.

On January 17, 2014, BVSD entered into an agreement with Lakeview for residential education services. AR Vol. IV at 231 (Exhibit 20). G.W. began school at Lakeview on January 20, 2014. AR Vol. IV at 244 (Exhibit 21); AR Vol. IV at 259 (Exhibit 22). On January 22, 2014, J.W. emailed Mr. Sparks that Lakeview was "anamazing school." AR Vol. IV at 244 (Exhibit 21).

G.W. attended Lakeview from January 2014 to June 2014. Records from the school indicate that, although G.W. performed well socially and academically, he continued to engage in verbal and physical acts of aggression. See AR Vol. IV at 259-69 (Exhibit 22), 284 (Exhibit 25); AR Vol. I at 259. The goal summary for March 2014 stated that G.W. would "not return home until he had 3 months of no aggressions." AR Vol. IV at 268 (Exhibit 22); see also Supp. AR Vol. I at 73.

On March 6 and 7, 2014, G.W. underwent a neuropsychological evaluation at Lakeview. AR Vol. IV at 284 (Exhibit 25). The evaluation report incorporated findings from previous assessments, including Dr. Connery's September 2013 independent educational evaluation, as well as several new tests, including the California Verbal Learning Test, Second Edition; Conner's Continuous Performance Test, Second Edition; the Delis Kaplan Executive Function System; the Hooper Visual Organization Test; the Visual Form Discrimination Test; the Wechsler Memory Scale, Fourth Edition; and the Wisconsin Card Sort Test. AR Vol. IV at 284-85 (Exhibit 25). Lakeview also completed a functional behavioral assessment ("FBA") and behavior intervention plan for G.W. in March 2014. See AR Vol. IV at 280 (Exhibit 24), 310 (Exhibit 28).

On February 7, 2014, J.W. informed Mr. Sparks that G.W. would...

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