Elizabeth B. v. El Paso County School District ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 16, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
ELIZABETH B., a minor, by and through
her parents and next friends, Donald B. and
Aileen B.,
Plaintiff - Appellant,
v. No. 19-1299
(D.C. No. 1:16-CV-02036-RBJ-NYW)
EL PASO COUNTY SCHOOL DISTRICT (D. Colo.)
11,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, MORITZ, and CARSON, Circuit Judges.
_________________________________
Elizabeth B. (Lizzie), acting through her parents, appeals the district court’s
order affirming the decision of the administrative law judge (ALJ) and dismissing her
suit under the Individuals with Disabilities in Education Act (IDEA), 20 U.S.C.
§§ 1400–1482. For the reasons explained below, we affirm.
Lizzie has multiple medical diagnoses, including epilepsy and autism. In 2015,
she was enrolled at Madison Elementary in the El Paso County School District.
While she was at Madison, the School District proposed an Individual Education Plan
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
(IEP) for Lizzie, which “is a written statement that sets forth the child’s present
performance level, goals and objectives, specific services that will enable the child to
meet those goals, and evaluation criteria and procedures to determine whether the
child has met the goals.” Ass’n for Cmty. Living in Colo. v. Romer, 992 F.2d 1040,
1043 (10th Cir. 1993). The operative version of the IEP placed Lizzie at Madison
part-time, with less than 40% of her time in a general-education classroom. The IEP
also provided for 15 hours of special-education services per week, with additional
hours for speech pathology, physical therapy, and occupational therapy. Lizzie’s
parents rejected the IEP and enrolled her full-time at the Alpine Autism Center, “a
nonprofit organization specializing in the care and education of individuals with
autism.” App. vol. 1, 21.
Afterward, Lizzie’s parents filed a complaint on Lizzie’s behalf requesting that
the School District reimburse them for the costs associated with Alpine. Following a
due-process hearing, the ALJ approved the IEP and concluded that Lizzie and her
parents were “not entitled to any relief.” App. vol. 5, 1125. Later, the district court
affirmed the ALJ. Lizzie and her parents appeal.
We first address the School District’s position that we lack subject-matter
jurisdiction because this appeal is moot. We can only resolve “actual, ongoing
controversies,” meaning that our judgment must have some real-world effect. Nathan
M. ex rel. Amanda M. v. Harrison Sch. Dist. No. 2, 942 F.3d 1034, 1040 (10th Cir.
2019) (quoting Honig v. Doe, 484 U.S. 305, 317 (1988)). Here, the School District
argues that our judgment would have no real-world effect because a Medicaid waiver
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covered the Alpine tuition—therefore, Lizzie’s parents cannot show damages. But at
oral argument, counsel for Lizzie’s parents represented that the Medicaid waiver did
not cover all related expenses; in particular, it did not cover out-of-pocket
transportation expenses. Counsel also noted that the complaint broadly requests “the
costs associated with Lizzie’s educational placement at Alpine.” App. vol. 1, 13. We
agree that the complaint requests all associated costs. And under the IDEA, such
costs include transportation expenses. Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 31
(1st Cir. 2006) (observing that “courts have generally interpreted the IDEA as
allowing reimbursement for” both tuition and related services); see also 20 U.S.C.
§ 1412(a)(10)(C)(i)–(ii) (noting school district’s obligation to provide education and
“related services”); 34 C.F.R. § 300.34(c)(16) (including transportation as “related
services”). Thus, because the complaint seeks actionable reimbursement damages,
this appeal is not moot.
We now turn to the merits of the appeal. When analyzing appeals under the
IDEA, we apply “a modified de novo review, which entails an independent review of
the evidence.” Thompson R2-J Sch. Dist. v. Luke P. ex rel. Jeff P., 540 F.3d 1143,
1150 (10th Cir. 2008) (quoting T.S. v. Indep. Sch. Dist. No. 54, 265 F.3d 1090, 1093
(10th Cir. 2001)). This means that we “look[] at the record of the administrative
proceedings and decide[], based on a preponderance of the evidence, whether
the requirements of the IDEA are met. In so doing, [we] must give ‘due weight’ to
the [ALJ]’s findings of fact, which are considered prima facie correct.” L.B. ex rel.
K.B. v. Nebo Sch. Dist., 379 F.3d 966, 973–74 (10th Cir. 2004) (citations omitted)
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(quoting Murray ex rel. Murray v. Montrose Cnty. Sch. Dist., 51 F.3d 921, 927 &
n.11 (10th Cir. 1995)). Additionally, Lizzie’s parents bear the burden of showing that
they are entitled to their requested reimbursement. Thompson, 540 F.3d at 1148.
The IDEA guarantees students with disabilities the right to “a free appropriate
public education,” or a FAPE. 20 U.S.C. § 1400(d)(1)(A). If the school district fails
to provide a FAPE, then the IDEA permits parents to enroll their child in a private
school and seek tuition reimbursement from the school district. 20 U.S.C.
§ 1412(a)(10)(C)(ii). To determine whether reimbursement is proper, we examine
whether (1) “the public placement violated [the] IDEA” and (2) “the private[-]school
placement was proper under the [IDEA].” Florence Cnty. Sch. Dist. Four v. Carter ex
rel. Carter, 510 U.S. 7, 15 (1993). Lizzie’s parents contend that the School District
violated the IDEA because the IEP does not provide her a FAPE; therefore, they
reason, the Alpine placement is proper because Alpine would provide Lizzie a FAPE.
In support, Lizzie’s parents first argue that the IEP failed to provide a FAPE
because it did not incorporate a functional behavioral assessment and behavioral
intervention plan. But, as the School District points out, the plain language of the
IDEA does not require the School District to create any specific intervention plan.
Instead, the IDEA only requires the School District to “consider the use of positive
behavioral interventions and supports.” 20 U.S.C. § 1414(d)(3)(B)(i) (emphasis
added). Lizzie’s parents do not rebut this plain language, nor do they dispute that the
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School District considered these behavioral interventions but found them
unnecessary.1
Relatedly, Lizzie’s parents argue that the School District has a policy of only
creating such assessments and plans if the student’s behavior is especially
challenging. But again, the plain language of the IDEA undermines this position. The
IDEA only requires the School District to consider such interventions where the
student’s “behavior impedes the child’s learning or that of others.” Id. Here, although
Lizzie’s parents explain that Lizzie exhibits “maladaptive behaviors,” they do not
point to any evidence showing that these behaviors impeded her (or others’) ability to
learn. Aplt. Br. 5. And their failure to carry their burden on this point is dispositive.
See Thompson, 540 F.3d at 1148. Further, as the district court observed, “[t]he
testimony of seven [School] District witnesses who worked with Lizzie . . . all
established that Lizzie’s negative behaviors were not interfering with her ability to
learn at school or to interact with other children.” App. vol. 1, 37. For example,
Lizzie’s occupational therapist observed that Lizzie’s maladaptive behaviors mostly
occurred during unstructured time like recess and free time. But when Lizzie turned
to “engaged activities,” those behaviors abated. App. vol. 3, 515. Moreover, although
the School District did not create a formal intervention plan, it did begin drafting a
“tip sheet” for Lizzie’s teachers that would help them identify and respond to any
1
Lizzie’s parents do point to a technical-assistance document from the
Colorado Department of Education that requires a functional behavioral assessment
and behavioral intervention plan in certain circumstances. But they do not explain
why this document is authoritative given the plain language of the IDEA.
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negative behaviors. App vol. 5, 1038. Accordingly, Lizzie’s parents fail to show that
the School District was required to incorporate a functional behavioral assessment
and intervention plan into Lizzie’s IEP.
Next, Lizzie’s parents argue that the IEP fails to provide a FAPE because it did
not require one-on-one applied behavioral analysis (ABA) from an ABA-certified
instructor. “ABA methodology is a well-regarded form of treatment for children with
autism that focuses on teaching behaviors using ‘operant conditioning,’ or teaching
using a stimulus, a response[,] and a reinforcement.” App. vol. 1, 23 (quoting App.
vol. 2, 296). And Lizzie’s parents argue that both the ALJ and the district court found
that Lizzie required ABA-guided instruction. But contrary to the parent’s position,
neither the ALJ nor the district court found that the School District was required to
deliver one-on-one ABA-guided instruction. Moreover, both the district court and the
ALJ found that the IEP committed to one-on-one ABA-guided instruction “using
other terms.” App vol. 1, 35; App. vol. 5, 1124. For example, the ALJ found that
although the IEP did not include the phrase “one-on-one,” it nevertheless provided
for “constant adult supervision . . . across all school settings.” App. vol. 5, 1124.
Similarly, although the IEP did not use the initialism “ABA,” it specified that Lizzie
would receive “consistent reinforcement, first/then strategies, visual prompts, and
errorless teaching strategies.” App. vol. 1, 124. And witnesses for the School District
testified that these strategies are consistent with ABA principles.
Nevertheless, Lizzie’s parents argue that the School District “intentionally
refused to include [ABA-guided instruction] in her IEP so that they would not be
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bound to provide it.” Aplt. Br. 24. But Lizzie’s parents do not point to any authority
requiring the School District to specify a particular methodology in the IEP.
Moreover, Lizzie’s parents do not appear to dispute that the IEP’s proposed strategies
fall under the umbrella of ABA-guided instruction. Instead, they suggest that the
School District’s ABA strategies would be ineffective because the School District is
applying “a simple strategy or handful of techniques,” rather than “specialized
training and continuous implementation with fidelity.” Id. But even if we assume that
the School District is not perfectly administering ABA, we do not evaluate whether
the IEP perfectly adheres to a particular methodology. Rather, we ask whether the
IEP is “reasonably calculated to enable a child to make progress appropriate in light
of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist.
RE-1, 137 S. Ct. 988, 998 (2017). Here, Lizzie’s parents do not dispute the testimony
from the School District explaining that the methods outlined in the IEP effectively
addressed Lizzie’s behaviors. Accordingly, although the IEP does not expressly
require one-on-one ABA or perfectly adhere to ABA methodology, the IEP is
nevertheless “reasonably calculated” to deliver Lizzie a FAPE. Id.Last, Lizzie’s parents argue that the IEP deprives Lizzie of a FAPE because it
does not include extended-school-year (ESY) services. ESY services are special-
education and related services provided to the student “[b]eyond the normal school
year.” 34 C.F.R. § 300.106(b). A school district must provide ESY services at no cost
to the student’s family only if it determines that the lack of such services will
“jeopardize[]” the student’s progress. Johnson ex rel. Johnson v. Indep. Sch. Dist.
7
No. 4, 921 F.2d 1022, 1028 (10th Cir. 1990) (per curiam). Here, the School District
determined that Lizzie did not require ESY services. Lizzie’s parents argue that there
is an “abundance of evidence” undermining this determination; however, they fail to
cite to any such evidence. Aplt. Br. 25. Instead, they contend that the School
District’s deliberations about ESY services were improper. Specifically, Lizzie’s
parents argue that the School District should not have considered the fact that they
planned to enroll Lizzie at Alpine during the summer because, according to them, the
School District was obligated to provide no-cost ESY services without regard for
whether they planned to pay for ESY services on their own. But “the availability of
alternative resources” is an appropriate consideration when determining whether to
provide ESY services. See Johnson, 921 F.2d at 1027. Moreover, the School District
is only required to provide no-cost ESY services if it determined that Lizzie needed
them—and here, the School District determined that Lizzie did not. See
§ 300.106(a)(2). Thus, the School District’s IEP does not violate the IDEA by not
including ESY services.
In sum, we reject Lizzie’s parents’ arguments that the School District violated
the IDEA. Accordingly, we need not consider whether the Alpine placement is
proper. See Thompson, 540 F.3d at 1148 n.2 (declining to address proper-placement
question because appellants failed to show public-school placement violated IDEA);
Florence, 510 U.S. at 15. We therefore conclude that the School District’s IEP
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fulfilled its obligations under the IDEA by providing Lizzie with a FAPE.
Accordingly, we affirm the district court.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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