Winning an Education for Our Daughter

In Closed Mediation, Hidden Resolution, my daughter was doing well and making great strides at a private school called Humanex Academy (Humanex). In the spring of 2008, Elizabeth’s 10th grade school year, it became clear she was starting to decompensate (meaning her mental health was starting to deteriorate). About this same time, our contract with the school district was set to be renewed and renegotiated for the next year.

NOTE: I have tried to make what happened as easy to follow as possible. The following chart highlights the key points of the narrative. Feel free to comment and ask questions.


At the meeting with the school district in April, we informed them of Elizabeth’s decline and that we were concerned that she may have to be in a residential setting to get the support she needed. The school district decided that a full assessment of Elizabeth’s social, emotional, and academic skills was necessary to ensure that Humanex remained an appropriate placement for her. The school district did not want commit to Elizabeth attending Humanex for the 2008-2009 school year, so we scheduled another meeting to discuss this and negotiate the contract.

On May 29 we met with the area superintendent responsible for private school placements. From her comments during the meeting, it was clear that she had made a pre-determination that Humanex would not meet Elizabeth’s needs. We left the meeting with no agreement on the upcoming school year. We worked the rest of the summer negotiating the details of the contract. The school district did not have a placement for Elizabeth and did not want to agree to Humanex. Finally on August 11, 2008 we had a signed agreement. The agreement stated that Elizabeth would begin the school year at Humanex, but that she may end up somewhere else depending upon the results of the evaluations that were going to be completed right after school started. It was also agreed that if it was determined that Elizabeth needed a new placement, there would be a transition schedule developed to ensure that Elizabeth was not traumatized during the school change. (You can read the pertinent points of the contract in the IHO’s Ruling – Pages 5-6.)

Elizabeth’s mental health continued to deteriorate. Elizabeth’s psychiatrist and therapist agreed that Elizabeth needed to be in a psychiatric facility that could determine what was going on and, hopefully, find a key to helping Elizabeth so that she could return home. When we met with the members of the school district’s assessment team on August 15, 2008, there were only two facilities in the country that had more than the usual 72-hours or one week evaluation programs: one in Texas, one in Utah. At the meeting, we told the school district that this is what we were considering and they said that they understood. The school district did not express any concern about Elizabeth going out of district/state. We informed the school district that many of the assessments they had planned would probably be done while Elizabeth was in the facility. Because the timing was unclear, the assessment team asked us to go ahead and sign the evaluation forms giving them permission to evaluate Elizabeth, which we did.

I think the following letter I wrote the area superintendent of the school district on October 10, sums up what happened after the meeting on August 15.

I am so very sad!!!!
We admitted my daughter [into Aspen Institute] on August 20 [when a bed became available], because no one here could figure out what she needed: medically, educationally, emotionally, therapeutically, etc. As you know, Aspen Institute for Behavioral Assessment is a lock-down hospital facility that assesses adolescents that typical local resources have not been able to help.

It is now October 10, nine plus weeks since we admitted her for a six week assessment and the experts are still stumped…This makes me very sad…they will be recommending a residential treatment center for now and maybe for the rest of her life. [My husband] and I are so sad, depressed, and without hope that we can barely function.

On top of that, my attorney, Louise Bouzari, sent me the following message on October 7.

Louise:

…it appears that…[the] parents have unilaterally placed Elizabeth at the Aspen Center in Utah. As such, Elizabeth is not a District student, and the District has no on-going responsibility to Elizabeth under the IDEA…

[sent from the private attorney for the school district]

I just don’t know what to think about this. Are you…telling me that because my daughter is in a hospital, you are no longer responsible for her education? What do we do when she is released from the hospital? What does her future hold? Where do we go from here?

I have many…feelings about this. Most of all I just feel sad. Sad that my daughter may not ever be able to function in this world without more support than I can give her at home, sad that [the school district] has disowned my daughter, sad that my son virtually loses a sister, sad that my family may lose its economic stability to cover Lizz’s expenses, sad, sad, sad.

Will no one help us?

Roxanne

When it became apparent that the school district would not work with us at all, we found a residential treatment program that met Elizabeth’s mental health and educational needs. On November 10, we gave the school district “notice of our intent” (officially called a 10-day notice) to enroll Elizabeth in Innercept, a residential treatment center in Idaho. We chose this facility because of the services they offered, the structure of the program, they had an accredited school, and their program continued up through age 23. This was important because many facilities stop at age 18 and we knew that Elizabeth would probably not be graduated from high school by then.

I repeatedly asked the school district to conduct an IEP meeting. They continued to refuse unless Elizabeth was back in Colorado. I think the U.S. District Judge William J. Martinez summarized what happened best:

On December 3, 2008, Elizabeth’s mother e-mailed the District, stating, “[W]e think that a more productive and cost-efficient way to move forward, rather than drawing lines in the sand, is to start anew and all work together to complete Elizabeth’s IEP. How would you like to proceed with this process?” (Id. at 3.) The District responded on December 9, 2008, “[T]he District does not presently have an obligation to evaluate, convene IEP team meetings for, or otherwise serve Elizabeth under the IDEA. However, …the District stands ready, willing, and able to evaluate and provide Elizabeth with a [FAPE] upon her return to the District.” (Id.) After hearing back from Elizabeth’s mother the same day, the District repeated its position on December 11, 2008 that it would be willing to provide an IEP and otherwise serve Elizabeth’s educational needs only if she returned to the District. (Id. at 1.)

We wanted to work with the school district. But, when they kept denying our requests to even hold an IEP meeting, we decided to file a due process complaint. Our attorneys and I worked on the complaint for about 3 months and then on April 23, 2009, we filed the complaint. This started the legal process. As you can see from the following chart, the reviewing officer(s) ruled in our favor at every step in the process.

The school district prolonged this process by appealing each and every ruling, and refusing to enter into a reasonable settlement. Finally, on June 24, 2013, the US Supreme Court refused to hear the school district’s appeal. This ended the proceedings and the school district was instructed to pay almost all of our legal fees and any portion of the residential placement that they had not already paid for. NOTE: The IDEA does not provide for damages in any way for parents. You can only get back what you put into it.

With the US Supreme Court's refusal to hear the appeal, my daughter won her right to a free appropriate public education. She graduated from high school in October 2011, when she was 19, while still at the residential treatment center. Not only did Elizabeth win, but many other students in the 10th circuit (Colorado, Kansas, New Mexico, most of Oklahoma, Utah, and Wyoming) will benefit from the rulings given in this case.

Links to Written Rulings

Impartial Hearing Officer’s Ruling

Administrative Law Judge's Ruling

Colorado District Court Judge’s Ruling

US Court of Appeals for the 10th Circuit Ruling

Our Support Team

Louise Bouzari and Kate Gerland, the most capable attorney’s at the Law Offices of Louise Bouzari, LLC

Dr. John Alston – psychiatrist

Michael Breeskin at Advocacy Denver, he helped get the National Association of Mental Health (NAMI) to support us with an amicus brief

Jack Robinson at Spies, Powers & Robinson, P.C., he was our attorney when we mediated our first contract with the school district. He also wrote the amicus brief for NAMI, pro bono.

Staff at Humanex Academy

Staff at Viewpoint Center (previously called Aspen Institute for Behavioral Assessment)

Staff at Innercept (the residential treatment center)

Rob Meltzer at Northlight Family Services, he worked with us to find Innercept