In Alex W. v. Poudre School District R-1, 94 F.4th 1176, 124 LRP 7692 (10th Cir. Mar. 7, 2024), the Tenth Circuit addressed claims involving the statute of limitations, behavioral assessments and services, free appropriate public education (FAPE), and the circumstances under which parents are entitled to an independent educational evaluation (IEE) at public expense.
The case involved a student with Down syndrome, autism spectrum disorder (ASD), and vision and hearing impairments who experienced significant behavioral challenges, including grabbing at others, kicking, pulling hair, undressing himself, and attempting to run away. The student was largely nonverbal and communicated using a touchscreen tablet with icons. The parents alleged that the school district denied FAPE during the 2014–15, 2015–16, 2016–17, and 2017–18 school years.
An administrative law judge (ALJ) and the district court concluded that claims related to the 2014–15 and 2015–16 school years were barred by the statute of limitations and found no denial of FAPE for the remaining years. The court of appeals affirmed. The court also affirmed the conclusion that the student’s behavioral needs were adequately addressed through the IEP process. The court explained that a functional behavioral assessment was not required because the IEP team was familiar with the student’s behaviors, understood what strategies were effective, and included goals, supports, and accommodations to address those needs. The court agreed that the student could make progress on his goals even though challenging behaviors persisted.
The court further upheld the determination that the 2017 IEP appropriately responded to the results of a 2017 reevaluation by adding additional goals. It also agreed that the student received FAPE despite a reduction in direct speech-language and occupational therapy services, where indirect services were added and instructional time increased. The court concluded that the therapy offered was adequate and rejected the argument that extended school year (ESY) services were required, noting that the student’s prior regression had been minor. The court stated that the district could consider other resources available to the student when determining the need for ESY and found irrelevant the parents’ contention that any limited regression was attributable to summer services they privately funded.
The court also rejected arguments that the district failed to evaluate the student in all areas of disability. It noted that the district used autism-related assessments and tools, that the student worked with a speech language pathologist trained in the use of the communication device, and that the student’s functional communication improved over time.
The court’s analysis of the IEE issue focused on the parents’ requests following the district’s August 2017 triennial reevaluation. The district agreed to fund an IEE in the areas of speech-language and OT after the parents requested an IEE in February 2018. The court held that the district was not required to fund a second IEE in response to a June 2018 request for a neuropsychological evaluation. Relying on 34 C.F.R. § 300.502(b)(5), the court explained that parents are entitled to only one IEE at public expense each time a public agency conducts an evaluation. The court described the issue as one of first impression in the circuit and relied on the text of the regulation in reaching its conclusion.
Taken together, the decision reflects a narrow reading of the IEE entitlement tied to the timing of district evaluations and affirms deference to administrative findings where the record supports that behavioral needs were addressed and the student made educational progress consistent with the IEPs developed.