Devon L. v. Clear Creek Indep. Sch. Dist.

Full title: DEVON L. b/n/f JED L. and ANNETTE L., Plaintiff, v. CLEAR CREEK…

Court: UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

Date published: Aug 16, 2016

CIVIL ACTION NO. H-15-1373 (S.D. Tex. Aug. 16, 2016)

Opinion

CIVIL ACTION NO. H-15-1373

08-16-2016

DEVON L. b/n/f JED L. and ANNETTE L., Plaintiff, v. CLEAR CREEK INDEPENDENT SCHOOL DISTRICT, Defendant.

MEMORANDUM AND RECOMMENDATION

Pending before the court¹ are Defendant Clear Creek Independent School District's ("Defendant" or "CCISD") Motion for Summary Judgment (Doc. 12), and Plaintiff's Motion for Summary Judgment (Doc. 18). The court has considered the motions, the responses, the replies, the administrative record, and the applicable law. For the reasons set forth below, the court RECOMMENDS that Defendant's motion be GRANTED and Plaintiff's motion be DENIED.

1 This case was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), the Cost and Delay Reduction Plan under the Civil Justice Reform Act, and Federal Rule of Civil Procedure 72. See Doc. 8.

I. Case Background

This is an appeal of the decision of a hearing officer in a Texas Education Agency proceeding filed under the Individuals with Disabilities Education Act² ("IDEA").

2 20 U.S.C. §§ 1400-1482.

Over the course of years, Devon was diagnosed with numerous physical ailments, including Ehlers-Danlos Syndrome ("EDS"),³ pneumomediastinum,⁴ Dysautonomia Postural Orthostatic Tachycardia Syndrome ("POTS"),⁵ pilonidal disease,⁶ spinal kyphosis,⁷ irritable bowel syndrome, night-time enuresis, heart murmur, and mitral valve prolapse.⁸ Devon also was diagnosed, at various times, with multiple mental-health ailments, including pervasive developmental disorder not otherwise specified ("PDD—NOS"),⁹ depressive disorder not otherwise specified ("depression"), attention deficit/hyperactivity disorder-inattentive type ("ADHD"), obsessive-compulsive disorder ("OCD"), and social anxiety disorder ("anxiety").¹⁰ A. Devon's Freshman Year

3 EDS "is a group of hereditary connective tissue disorders characterized by defects of the major structural protein in the body (collagen)" with symptoms of abnormal flexibility, loose joints, "unusually loose, thin, stretchy (elastic) skin[,] and excessive fragility of the skin, blood vessels, and other bodily tissues and membranes." Ehlers Danlos Syndrome, WebMD (May 28, 2015), www.webmd.com/children/ehlers-danlos-syndrome-11063.

4 Pneumomediastinum is air in the space between the lungs and "most often . . . occurs when air leaks from any part of the lung or airways into [that space]." Pneumomediastinum, MedlinePlus (Aug. 25, 2014), https://medlineplus.gov/ency/article/000084.htm.

5 Dysautonomia POTS is a disorder of the autonomic nervous system characterized by orthostatic intolerance upon standing from lying down causing lightheadedness or fainting accompanied by an increased heart rate to more than 120 beats per minute. NINDS Dysautonomia Information Page, Nat'l Inst. of Neurological Disorders & Stroke ("NINDS") (Aug. 11, 2015), www.ninds.nih.gov/disorders/dysautonomia/dysautonomia.htm; NINDS Postural Tachycardia Syndrome Information Page, NINDS (Dec. 2, 2015), www.ninds.nih.gov/disorders/postural_tachycardia_syndromepostural_tachycardia_syndrome.htm.

6 "Pilonidal disease is a chronic skin infection in the crease between the buttocks," which often has no symptoms unless a cyst in that area gets inflamed and infected. Pilonidal Disease-Topic Overview, WebMD (Apr. 15, 2014), www.webmd.com/skin-problems-and-treatments/tc/pilonidal-disease-credits.

7 Kyphosis, which is also known as Scheuermann's disease when present in adolescence, "is a curving of the spine that causes a bowing or rounding of the back, which leads to a hunchback or slouching posture." Kyphosis, MedlinePlus (Sept. 8, 2014), https://medlineplus.gov/ency/article/001240.htm.

8 See, e.g., Tr. of the Administrative Proceedings ("Tr.") 574, Clinical Servs. Medication Progress Note Dated Aug. 20, 2014; Tr. 740, 759, 760, Psychological Eval. Dated Nov. 14, 2014.

9 "PDD-NOS was one of several previously separate subtypes of autism that were folded into the single diagnosis of autism spectrum disorder (ASD) with the publication of the DSM-5 diagnostic manual in 2013." PDD-NOS, Autism Speaks (undated), www.autismspeaks.org/what-autism/pdd-nos.

10 See, e.g., Tr. 740, Psychological Eval. Dated Nov. 14, 2014; Tr. 574, Clinical Servs. Medication Progress Note Dated Aug. 20, 2014.

During the 2010-2011 school year, Devon was a freshman in high school and, pursuant to Section 504 of the Rehabilitation Act,¹¹ received classroom accommodations for anxiety, depression, and ADHD.¹² In December 2010, Devon was admitted to a partial hospitalization program.¹³ On February 1, 2011, Devon's father requested that CCISD perform a "Full Individual Evaluation [("FIE")] including a Functional Behavior Assessment and Autism Spectrum Disorder Assessment" to evaluate whether Devon qualified for special education services.¹⁴ At that time, Devon was diagnosed with Asperger's Syndrome.¹⁵

11 See 29 U.S.C. § 794.

12 See Tr. 497-98, Notices of § 504 Status; Tr. 933, 936, CCISD Full & Indiv. Eval ("FIE") Dated Apr. 19, 2011; Tr. 1093, Timeline & Resp.

13 See Tr. 631, Letter from Jed L. to Amy McDonald Dated Feb. 1, 2011.

14 Id.

15 See Tr. 936, CCISD FIE Dated Apr. 19, 2011; Tr. 953, Section 504 Physician's Info. Rep. Dated Jan. 25, 2011; Tr. 1167, Psychiatric Assess. Dated Oct. 5, 2011 (noting that Devon had been diagnosed with Asperger's Syndrome in February 2011).
Asperger's Syndrome is no longer recognized as a separate diagnosis but is "now part of a broader category called autism spectrum disorder (ASD)." Asperger's Syndrome, WebMD (May 30, 2016), www.webmd.com/brain/autism/mentalhealthaspergerssyndrome?page=3.

CCISD completed the report on the FIE on April 19, 2011, and held a meeting of the Admission, Review, and Dismissal Committee ("ARDC")¹⁶ on May 2, 2011.¹⁷ Based on the FIE, the ARDC determined that Devon met the criteria for the IDEA disability categories of emotional disturbance and other health impairment.¹⁸ Even though Devon had performed well on the most recent state assessment tests and was making good grades in all but one class, his "grades ha[d] begun to drop," he did not pass the first semester of Spanish 2, and he was having "trouble completing assignments within the allotted time and [was] becoming more oppositional at home."¹⁹ As part of Devon's Individualized Education Program ("IEP"), the ARDC implemented several special education services to include placement in a general education classroom with time accommodations, tutorials, and progress monitoring by a special education teacher and one related service of an hour of psychological counseling per nine weeks.²⁰ The ARDC minutes include an IEP Transition Supplement to outline goals to prepare him for post-secondary education.²¹

16 In Texas, the ARDC is charged with preparing a student's individualized education program ("IEP"), which is a written statement of the disabled child's present level of academic achievement, measurable annual educational goals, and special education, related services, and other accommodations to be provided to the child. See 20 U.S.C. § 1414(d)(1)(A); R.H. v. Plano Indep. Sch. Dist., 607 F.3d 1003, 1008 (5^th Cir. 2010). The ARDC is composed of the disabled child's parent(s), at least one special education teacher and/or one regular education teacher, a representative of the school district, someone who can provide insight into the instructional implications of the child's clinical evaluation, and, when appropriate, other individuals with special knowledge or expertise related to the child, and the child. See 20 U.S.C. § 1414(d)(1)(B); Adam J. ex rel. Robert J. v. Keller Indep. Sch. Dist., 328 F.3d 804, 808 (5^th Cir. 2003).

17 See Tr. 933-53, CCISD FIE Dated Apr. 19, 2011; Tr. 869-93, ARDC Meeting Mins. Dated May 2, 2011.

18 See Tr. 944, 950, 952, CCISD FIE Dated Apr. 19, 2011; Tr. 889, ARDC Meeting Mins. Dated May 2, 2011.

19 Tr. 933, CCISD FIE Dated Apr. 19, 2011; see also Tr. 872, 876, ARDC Meeting Mins. Dated May 2, 2011; Tr. 937, CCISD FIE Dated Apr. 19, 2011; Tr. 996, Academic Achievement Rec.; Tr. 1002, Tex. Assess. of Knowledge & Skills Rep.

20 See Tr. 885, 888, 889, ARDC Meeting Mins. Dated May 2, 2011.

21 See Tr. 877-81, ARDC Meeting Mins. Dated May 2, 2011.

On May 25, 2011, Devon used a knife to cut into a wall in his house; he then "took a bunch of pills" and started a fire in the house.²² He later reported to his psychologist that "he wanted to die."²³ However, when the smoke intensified, Devon went to a neighboring house.²⁴ After the suicide attempt, Devon spent about two weeks in the hospital.²⁵

22 Tr. 1165, New Dimensions Adolescent Grp. Progress Note Dated June 9, 2011; see also Tr. 1166, Philip C. Townsend, Ph.D., ("Dr. Townsend") Progress Note Dated Aug. 18, 2011.

23 Tr. 1166, Dr. Townsend Progress Note Dated Aug. 18, 2011.

24 See Tr. 1165, New Dimensions Adolescent Grp. Progress Note Dated June 9, 2011.

25 Tr. 1167, Psychiatric Assess. Dated Oct. 5, 2011.

During that summer, a therapist recommended residential placement after Devon engaged in at least two physically aggressive acts against his parents.²⁶ Devon's father did not pursue the therapist's suggestion.²⁷ B. Devon's Sophomore Year

26 See Tr. 19, Dec. of Hr'g Officer.

27 See id.

In August 2011, Houston Educational Consultants evaluated Devon for mental retardation and found that he placed within the non-austistic range of the autism rating scale but, given his difficulties in day-to-day social interactions, assigned him the diagnosis of PDD-NOS.²⁸ Based on that diagnosis, the evaluators recommended that Devon be considered eligible for services through Mental Health Mental Retardation Authority of Harris County ("MHMRA").²⁹

28 See Tr. 501, Determination of Mental Retardation Dated Aug. 3, 2011.

29 See Tr. 504, Determination of Mental Retardation Dated Aug. 3, 2011. MHMRA is now The Harris Center for Mental Health and IDD (Intellectual and Developmental Disabilities).

By October 2011, Devon was sleeping well with medication and was experiencing an improved appetite and body weight but was still experiencing low energy, mild depression, and occasional physical aggressiveness.³⁰ At that time, he did not have self-injurious behaviors, was not actively suicidal or homicidal, and was not psychotic but did occasionally feel "desperate and threatened."³¹ Although he found it difficult at times to pay attention at school, he felt that school was "much better" and highlighted that he was taking pre-AP (Advanced Placement) classes and had "met some new people including a sort of friend."³²

30 See Tr. 1167, Psychiatric Assess. Dated Oct. 5, 2011.

31 Id.

32 Id.

In an October 28, 2011 amendment to the May 2, 2011 ARDC meeting minutes, the ARDC specifically noted that Devon did not meet eligibility as a student with autism.³³ In December 2011, the ARDC met again.³⁴ Devon's parents requested that Devon's eligibility be changed from the emotional disturbance category to the autism category.³⁵ The Licensed Specialist in School Psychology ("LSSP"), who was present at the meeting, explained that the April 2011 FIE included evaluation for autism and that Devon did not meet eligibility for educational services in that category.³⁶ The LSSP also "reiterate[d] that the assessment of actual educational need . . . determine[d] services."³⁷ The ARDC made no changes to Devon's placement or services.³⁸

33 See Tr. 868, Amend. to ARDC Meeting Mins. Dated May 2, 2011.

34 See Tr. 853-62, ARDC Meeting Mins. Dated Dec. 15, 2011.

35 See Tr. 857, ARDC Meeting Mins. Dated Dec. 15, 2011.

36 See Tr. 856-57, ARDC Meeting Mins. Dated Dec. 15, 2011.

37 See Tr. 856, ARDC Meeting Mins. Dated Dec. 15, 2011.

38 See Tr. 856-57, ARDC Meeting Mins. Dated Dec. 15, 2011.

The ARDC met on February 1, 2012, at which time it noted that Devon's eligibility remained the same, but Devon's father requested a new evaluation particularly to determine whether Devon should be classified under the autism rather than the emotional disturbance category.³⁹ The ARDC agreed to conduct a new IEP, assessing social, emotional, and language abilities and to consider sociological and physical updates provided by Devon's parents.⁴⁰

39 See Tr. 842, ARDC Meeting Mins. Dated Feb. 1, 2012.

40 See Tr. 835, 842, ARDC Meeting Mins. Dated Feb. 1, 2012.

The FIE was completed on April 2, 2012.⁴¹ The evaluators found that Devon did not meet the disability criteria for the categories of communication or autism under the IDEA.⁴² The evaluators further found that Devon no longer met the disability criteria for emotional disturbance or for other health impairment.⁴³ They recommended that Devon's parents and teachers "continue to bolster Devon's self-esteem and self worth by focusing on his strengths" and that his parents "decrease the amount of assistance they provided in helping to solve his problems, thereby increasing his level of autonomy and self-efficacy."⁴⁴

41 See Tr. 900-32, FIE Dated Apr. 2, 2012.

42 See Tr. 928, 930, FIE Dated Apr. 2, 2012.

43 See Tr. 929, FIE Dated Apr. 2, 2012.

44 Tr. 931, FIE Dated Apr. 2, 2012.

The ARDC met on April 4, 2012, and found that, based on the FIE, Devon no longer met eligibility for special education services.⁴⁵ Devon's father disagreed with the FIE evaluators' findings and the ARDC's eligibility determination.⁴⁶ As the ARDC did not reach mutual agreement, it reconvened on April 18, 2012.⁴⁷ At that time, Devon's father presented documentation of the discharge plan from Devon's May 2011 hospitalization and requested that an Independent Educational Evaluation ("IEE") be performed.⁴⁸ The ARDC discussed Devon's fathers points of disagreement with the FIE and was not able to reach a consensus.⁴⁹ Devon was dismissed from special education.⁵⁰ C. Devon's Junior Year

45 See Tr. 826, ARDC Meeting Mins. Dated Apr. 4, 2012.

46 See Tr. 826-27, 829-30, ARDC Meeting Mins. Dated Apr. 4, 2012.

47 See Tr. 817, ARDC Meeting Mins. Dated Apr. 18, 2012.

48 See Tr. 817, 821, ARDC Meeting Mins. Dated Apr. 18, 2012; Tr. 966, Dist. Acknowledgment of Parental Req. for IEE; Tr. 968, Letter from Jed L. to Debra Dixon Dated Apr. 18, 2012.

49 See Tr. 817, ARDC Meeting Mins. Dated Apr. 18, 2012.

50 See Tr. 826, ARDC Meeting Mins. Dated Apr. 4, 2012.

Devon received no special education services during the 2012-2013 school year, his junior year.⁵¹ Devon's school record for his junior year reflected that the year-end grade average was an A for every one of his classes.⁵²

51 See Tr. 10, Dec. of Hr'g Officer; Tr. 826, ARDC Meeting Mins. Dated Apr. 4, 2012.

52 See Tr. 998, 2012-2013 Grade Record.

Devon was tardy to his physics class seven times in the fall semester and once in the spring semester and had excused absences twice each semester.⁵³ He was tardy to one other class once for the entire year and logged no more than five excused absences in any other class for the entire year.⁵⁴ Devon had no unexcused absence to any class during the year.⁵⁵

53 See id.

54 See id.

55 See id.

Scholastic Assessment Test ("SAT") scores from January and March 2013 reflected that Devon scored higher than a range of thirty-one to forty-five percent (varying by subject and date taken) of the prior year's group of college-bound seniors.⁵⁶

56 See Tr. 1005, SAT Student Score Rep. Dated Mar. 26, 2013; Tr. 1006, SAT Student Score Rep. Dated Feb. 12, 2013.

DePelchin Children's Center ("DePelchin") conducted the IEE and issued a report in March 2013, nearly a year after Devon's father made the request.⁵⁷ The evaluator found that Devon "did not meet criteria for a classification of Autism or Autism Spectrum Disorder on the Reciprocal Social Interaction or Communication domains, or on the overall Total score."⁵⁸ Devon did exhibit "problem behaviors and social impairments" that the evaluator found to be "likely associated" with symptoms of anxiety and depressive disorders.⁵⁹ The evaluator observed Devon in one class and opined that Devon's behavior was appropriate, that Devon interacted well with peers who reciprocated, and that he was engaged in the class and appeared to understand the material.⁶⁰

57 See Tr. 954-65, IEE Dated Mar. 19, 2013.

58 Tr. 962, IEE Dated Mar. 19, 2013.

59 Id.

60 See id.

The IEE included recommendations for three environments (therapy, home, and school) and noted that not all of the recommendations would be feasible or necessary for Devon's growth and learning.⁶¹

61 See Tr. 963, IEE Dated Mar. 19, 2013.

RECOMMENDATIONS FOR THE SCHOOL ENVIRONMENT:

Recommendations listed here are only suggestions and implementation is not required by the school system and is not an exhaustive list. It will be important to discuss Devon's needs directly with your school district.

1. It is likely that Devon still meets eligibility criteria for the emotionally disturbed handicapping condition due to his pervasive depression and anxiety. The ARD committee is responsible for determining educational need. Since Devon's mood symptoms are affecting him in his schoolwork, the following accommodations are being recommended to ensure that he receives adequate support in the school environment as well. Examples of possibly helpful accommodations for Devon include the following:

a. More individualized attention by teachers, as needed.
b. Allow Devon to complete assignments in a room where there are fewer distractions.
c. Provide Devon with more frequent breaks as needed.
d. Allow more time for transitions between tasks and adjustment to changing environments.
e. Make eye contact with Devon before giving him a directive and only give one directive at a time.
f. Allow Devon access to school counselor to discuss how his mood symptoms are affecting him in the school and monitor any suicidal thoughts.

2. Repeat psychological testing within one to three years to document any changes in Devon's

emotional and behavioral functioning.⁶²

62 Tr. 964-65, IEE Dated Mar. 19, 2013.

Teacher reports completed in late March 2013 reflected that Devon had grade averages above 90 in English, algebra II, physics, physical education, introduction to engineering, and U.S. history.⁶³ Devon's English teacher noted that Devon was doing well in class.⁶⁴ His physics teacher said that Devon was one of the best students in the class, that he was "[m]ore prepared than most, and extremely well organized," and that "[h]e care[d] deeply about his performance."⁶⁵ In an email to Devon's father earlier in March, the physics teacher reported, "Great kid, and he is earning some reputation with his class as the go-to-guy when they miss something. He keeps track of his warm-ups, assignments and projects."⁶⁶

63 Tr. 990-95, IEE Dated Mar. 19, 2013.

64 Tr. 991, Pre-ARD Info./Planning Form.

65 Tr. 992, Pre-ARD Info./Planning Form.

66 Tr. 1047, Email from Cindi Wood to Jed L. Dated Mar. 5, 2013.

On April 15, 2013, the ARDC met to review the IEE.⁶⁷ The findings and recommendations from the IEE report were discussed in detail at the meeting.⁶⁸ Devon's father expressed agreement with the IEE school recommendations.⁶⁹ He explained that he was satisfied with the year but that Devon's performance varies by teacher and would like Devon to have a 'net' to fall back on, should support be needed in the future."⁷⁰ Devon's father requested two additional days for assignment completion, an additional week for long-term projects, and one-week advance notice of upcoming projects.⁷¹

67 See Tr. 802-08, ARDC Meeting Mins. Dated Apr. 15, 2013.

68 See Tr. 804-05, ARDC Meeting Mins. Dated Apr. 15, 2013.

69 See Tr. 805, ARDC Meeting Mins. Dated Apr. 15, 2013.

70 Id.

71 See id.

The ARDC acknowledged that the IEE evaluator found Devon qualified under the category of emotional disturbance.⁷² However, the ARDC noted that, in addition to being determined to be disabled, a student must have an educational need in order to receive special education services.⁷³ The assistant principal opined that, based on his review of Devon's record, no correlation existed "between special education services and student achievement" and did not see an educational need.⁷⁴ The special education representative commented that Devon had shown improvement in academic and social performance even though he had not accessed any of the support services available to all students.⁷⁵

72 See Tr. 804, 805, ARDC Meeting Mins. Dated Apr. 15, 2013.

73 See Tr. 805, ARDC Meeting Mins. Dated Apr. 15, 2013.

74 Id.

75 See id.

The ARDC further discussed Devon's educational performance.⁷⁶ The school records reflected that Devon had made progress in all of his courses throughout high school, passing all courses except Spanish II in which he received a 0 on the semester examination during his freshman year because he refused to take the make-up examination after his hospitalization.⁷⁷ The special education representative reported that Devon's grades improved after he was dismissed from special education services at the end of his sophomore year.⁷⁸

76 See id.

77 See id.

78 See id.

The ARDC noted that Devon earned an average score on the Preliminary Scholastic Assessment Test ("PSAT") when taken in tenth grade and an above-average score on the PSAT when taken in eleventh grade.⁷⁹ The assistant principal reported that Devon was on the Distinguished Achievement Plan for graduation and was making progress on it.⁸⁰

79 See id.; Tr. 1007, 1008, Undated PSAT Score Reps.

80 See Tr. 805, ARDC Meeting Mins. Dated Apr. 15, 2013.

The ARDC reviewed teacher reports from his junior year, including the engineering teacher's remark that Devon had not been allowed additional time in the project-based course. Devon's English teacher reported that Devon had been allowed additional time on compositions, without which, his grades would have been good but not As.⁸¹ Devon's grades were improving with each grading period in algebra II, where he occasionally received extra time to complete one or two math problems.⁸²

81 See id.

82 See id.

The attending LSSP agreed with the statements about Devon's educational performance but voiced concern about suicidal ideation.⁸³ The school personnel noted that CCISD offered counseling services for general education students.⁸⁴ Devon's father explained that Devon accessed the counseling services earlier in his high-school career but did not trust the confidentiality of the group, "did not speak up or advocate[,] and did not make-up [sic] missing assignments."⁸⁵ Devon's father thought that counseling groups outside of the school had been more effective for Devon.⁸⁶ Additionally, Devon's father opined that his efforts with Devon at home were responsible for the good performance in math and that the strategies the father had implemented at home had led to Devon's success.⁸⁷

83 See id.

84 See id.

85 Id.

86 See id.

87 See id.; Tr. 1357-59, Hr'g Test. of Jed L. (describing his efforts as helping Devon get past mental blocks, encouraging him to use the methods taught at school, and getting him a highlighter, pencil, scrap paper, or something else he needed to complete his homework).

The CCISD representatives did not find a current need for special education services.⁸⁸ Devon's father disagreed, arguing that failing to provide special education services reflected a philosophy of "waiting to fail."⁸⁹ The special education team leader explained that, in determining educational need, "consideration is given to immediate or foreseeable needs of the student."⁹⁰ The assistant principal thought the father's concerns could be "addressed through consistent communication between school and home."⁹¹

88 See Tr. 805, ARDC Meeting Mins. Dated Apr. 15, 2013.

89 Id.

90 Tr. 806, ARDC Meeting Mins. Dated Apr. 15, 2013.

91 Tr. 805, ARDC Meeting Mins. Dated Apr. 15, 2013.

Devon's father admitted that Devon's peer interactions had improved but voiced his belief that Devon needed specialized programming for social-skills training.⁹² The special education representative reiterated that Devon had not previously accessed social-skills training offered in the form of after-school tutorials or counseling groups.⁹³ The special education team leader explained that special education services are educationally necessary only when interventions available to all students had not been effective.⁹⁴

92 See Tr. 805-06, ARDC Meeting Mins. Dated Apr. 15, 2013.

93 See Tr. 806, ARDC Meeting Mins. Dated Apr. 15, 2013.

94 See id.

The ARDC determined that Devon did not meet eligibility criteria for special education services for lack of an identified educational need.⁹⁵ Devon's father disagreed, arguing that Devon had not accessed the available intervention services "because they [we]re not appropriate to Devon's social needs."⁹⁶ Devon's father requested that the school pay for appropriate services with an outside provider.⁹⁷ Devon's needs, as viewed by the father, were: (1) appropriate social support provided outside of the school setting; (2) a safety net in the form of extra time especially when Devon became overwhelmed and support for his teachers to understand his challenges; (3) support for college including accommodations during college-bound testing and assistance with the transition; and (4) proactive and preventative measures rather than waiting for a crisis.⁹⁸ Ending in disagreement, the ARDC set a date to reconvene.⁹⁹

95 See Tr. 803, 806, ARDC Meeting Mins. Dated Apr. 15, 2013.

96 Tr. 806, ARDC Meeting Mins. Dated Apr. 15, 2013.

97 See id.

98 See Tr. 806, 809-10, ARDC Meeting Mins. Dated Apr. 15, 2013.

99 See Tr. 806, ARDC Meeting Mins. Dated Apr. 15, 2013.

On April 18, 2013, the ARDC reconvened and discussed the three needs identified by Devon's father. In response to the request for social support by an outside provider, it was noted that Devon's teachers reported that his "academic and social behavior [was] age- appropriate in the classroom, transition periods, and other settings including lunch."¹⁰⁰ Even if attributable to outside interventions, Devon's behavior at school did not suggest a need for social support.¹⁰¹

100 Tr. 785, ARDC Meeting Mins. Dated Apr. 18, 2013.

101 See id.

Regarding the request for a safety net, the school reported that a Student Success Team ("SST") file for Devon was open and active.¹⁰² The SST had met previously in April, May, and December 2012 to discuss Devon's progress, and, on each occasion, the SST found Devon to be performing well without any concerns to be addressed.¹⁰³ The special education representative had requested that Devon's school counselor provide a written report on Devon including any "possible necessary accommodations."¹⁰⁴ The ARDC agreed that an SST was appropriate, and the assistant principal committed to holding another SST meeting at the beginning of the 2013-2014 school year.¹⁰⁵ Devon's father asked to be included in the SST meetings, and school personnel explained that parental involvement was not required and so he may not be included.¹⁰⁶

102 See Tr. 786, ARDC Meeting Mins. Dated Apr. 18, 2013.

103 See id.; Tr. 1093, Timeline & Resp.

104 Tr. 786, ARDC Meeting Mins. Dated Apr. 18, 2013.

105 See id.

106 See id.

The attending CCISD representative addressed a concern expressed by Devon's father that Devon's improvement in grades was due to Devon's moving from Pre-AP and AP courses to regular education, explaining that the purpose of special education was to make progress in general education as measured by passing courses.¹⁰⁷ She said that "special education [did] not speak to progress in a Pre-AP or AP curriculum."¹⁰⁸

107 See id.

108 Id.

The ARDC turned to the request for support in college preparation.¹⁰⁹ The special education representative updated the ARDC that she had submitted the documents provided by Devon's father to the College Board and the accommodation request was pending.¹¹⁰ Devon's father viewed that process for applying for requests through the College Board to be cumbersome and thought that "the lack of a special education folder [was] hindering the process."¹¹¹ The ARDC concluded that the school had facilitated the request for accommodations.

109 See id.

110 See id.

111 Id.

The request for assistance in making a successful transition to college would be addressed in a meeting at the beginning of the following school year in which seniors and their parents would be provided information about making the transition to college and would be provided training on the online college service used to submit applications and to make transcript requests, as well as other steps of the process.¹¹² The ARDC also agreed that Devon should continue to access support from his school counselor and could make one-on-one appointments with counselors in the College and Career Center for additional support with the process and the online service.¹¹³

112 See Tr. 786-87, ARDC Meeting Mins. Dated Apr. 18, 2013.

113 See Tr. 787, ARDC Meeting Mins. Dated Apr. 18, 2013.

Regarding proactive and preventative measures, the school officials pointed to the existence of the SST and Devon's access to a general education counselor and a support counselor during the school day.¹¹⁴ The CCISD representative inquired whether Devon was aware of the SST process and, when Devon's father said that Devon was not, recommended that the process be explained to Devon to alleviate anxiety that he may experience when asking for an accommodation.¹¹⁵ The ARDC also recommended that Devon's school counselor be notified as quickly as possible after an anxiety attack or similar event at home.¹¹⁶

114 See id.

115 See id.

116 See Tr. 787-88, ARDC Meeting Mins. Dated Apr. 18, 2013.

The ARDC again reviewed the IEE's recommendations for the school environment, and the school personnel determined that the recommended services could be provided through the SST and the school counseling staff.¹¹⁷ After discussing all of Devon's father's points of disagreement with the ARDC's decision that Devon did not qualify for special education services, the ARDC did not change that decision.¹¹⁸ Devon's father disagreed.¹¹⁹ Immediately after the ARDC meeting, Devon's father emailed Devon's school counselor to apprise her of Devon's emotional issues as recommended by the ARDC.¹²⁰

117 See Tr. 788, ARDC Meeting Mins. Dated Apr. 18, 2013.

118 See 785-88, ARDC Meeting Mins. Dated Apr. 18, 2013.

119 See Tr. 788, ARDC Meeting Mins. Dated Apr. 18, 2013.

120 See Tr. 651, Email from Jed L. to Denisa Valenzuela Dated Apr. 18, 2013.

Devon's scores on the April 2013 state assessment tests placed Devon in the Commended Performance category in English language arts, mathematics, social studies, and science.¹²¹ SAT scores from a May 2013 testing date were lower than previous tests, showing that Devon scored higher than thirty-seven percent of the prior year's group of college-bound seniors in reading, forty-eight percent in math, and sixteen percent in writing.¹²² When Devon retook the test five months later, he scored higher than eighty-two percent of the prior year's group of college-bound seniors in reading, seventy-three percent in math, and sixty-one percent in writing.¹²³

121 See Tr. 1000, Tex. Assess. of Knowledge & Skills Rep. Dated May 2013.

122 See 1004, SAT Student Score Rep. Dated May 21, 2013.

123 See 1003, SAT Student Score Rep. Dated Oct. 22, 2013.

On April 26, 2013, CCISD issued a Notice of Decision regarding Devon's placement, stating that he did not meet "eligibility criteria for specially designed instruction as found only through special education programming" and continuing the dismissal from special education services.¹²⁴ The stated reasons for the decision were Devon's progress in educational performance reflected in his ability to maintain good grades and his ability to pass state assessment tests, reports from Devon's teachers that Devon contributed to class and interacted appropriately with peers, adequate attendance without discipline reports, and participation in college preparation activities.¹²⁵ The notice stated that Devon would continue to receive access to his school counselor and to the support counselor as well as other support and accommodations based on SST recommendations.¹²⁶

124 Tr. 385, Notice of Decision Dated Apr. 28, 2013.

125 See id.

126 See id.

On May 3, 2013, Devon's father notified the assistant principal that a student had threatened Devon with physical harm during physical education ("PE").¹²⁷ The assistant principal immediately spoke with Devon and then with the other student to resolve the issue.¹²⁸ The PE teacher responded that he would speak with the other student as well.¹²⁹ The PE teacher concluded the email, "Devon has really shown great work this year, and he is always working his best in my class!"¹³⁰

127 See Tr. 1050, Email from Jed L. to Bradley Hayes Dated May 3, 2013.

128 See Tr. 1049, Email from Bradley Hayes to Jed L. Dated May 3, 2013.

129 See Tr. 1051, Email from Jered Shriver to Jed L. Dated May 3, 2013.

130 Id.

On May 20, 2013, Devon's father contacted several of Devon's teachers to notify them that Devon "had an emotionally painful experience" the prior week and missed a day of school.¹³¹ When he returned the following day "[H]is mind was elsewhere."¹³² Devon's father requested that they reply with the deadlines for their classes in order to "help Devon prioritize, break it down, and put things in perspective."¹³³ Devon's father specifically asked Devon's English teacher for additional time on one project, and, after receiving a negative response, Devon's father emailed the assistant principal about the "emotionally painful experience" and requested intervention with the English deadlines.¹³⁴ Late that evening, Devon's English teacher emailed Devon's father, stating "I hope our plan helps alleviate Devon's anxiety," apparently referring to an extension of deadlines.¹³⁵ D. Devon's Senior Year —Fall Semester

131 Tr. 659-60, Email from Jed L. to Teachers Dated May 20, 2013.

132 Id.

133 Id.

134 Tr. 1052, Email from Jed L. to Bradley Hayes Dated May 21, 2013 (conceding that the accommodation he was requesting from the English teacher went beyond the accommodations discussed at the ARDC meeting); see also Tr. 659, Email from Jed L. to Lindy Goodwin Dated May 20, 2013; Tr. 659, Email from Lindy Goodwin Dated May 20, 2013.

135 Tr. 658, Email from Lindy Goodwin to Jed L. Dated May 21, 2013.

Over the course of the fall semester of Devon's senior year, he was absent from an increasing number of classes.¹³⁶ During September 2013, Devon was absent two full days.¹³⁷ Additionally, he missed first period on three additional days and second period on one additional day.¹³⁸ In October 2013, Devon was absent from three or more classes on six days and from two or fewer classes on three additional days.¹³⁹ In November 2013, Devon was absent from three or more classes on three days and from two or fewer classes on four additional days.¹⁴⁰ In December 2013, Devon was absent from three or more classes on six days and from two or fewer classes on four additional days.¹⁴¹

136 See Tr. 1009, Student Attendance Summ.

137 See Tr. 1009, Student Attendance Summ.

138 See id.

139 See id.

140 See Tr. 1010, Student Attendance Summ.

141 See Tr. 1010, Student Attendance Summ.

In late August, at the start of the semester, Devon's father contacted Devon's pre-calculus teacher to request a medical accommodation and extra time for homework assignments, projects, and tests.¹⁴² On September 11, 2013, Devon's father sent an email to Devon's graphic design teacher, offering suggestions for dealing with Devon in response to his report that the teacher had reprimanded him in class.¹⁴³ The teacher responded, "Devon has been great in class. I do not believe I said anything to Devon directly that would upset him. I believe I was speaking to another student and he must have misinterpreted. Devon has not communicated anything to me that would be deemed as disrespectful."¹⁴⁴ The teacher agreed to correspond with Devon's father if any issue arose.¹⁴⁵

142 See Tr. 662, Email From Jed L. to Christopher Stewart Dated Aug. 27, 2013.

143 See Tr. 1053, Email from Jed L. to Amy Lardie Dated Sept. 11, 2013.

144 Tr. 1053, Email from Amy Lardie to Jed L. Dated Sept. 11, 2013.

145 See id.

On September 13, 2013, Devon's father requested an extension on an English assignment because Devon was stressed and feeling overwhelmed at the start of the school year and had missed a school day as a result.¹⁴⁶ The teacher responded that the assignment was not late and added that the assignment was done together in class and tutorials would be helpful if he missed class.¹⁴⁷ She said that she would like to help Devon feel less stressed.¹⁴⁸

146 See Tr. 1055-56, Email from Jed L. to Katie Reed Dated Sept. 13, 2013.

147 See Tr. 1055, Email from Katie Reed to Jed L. Dated Sept. 13, 2013.

148 See id.

On September 20, 2013, the assistant principal emailed Devon's teachers to explain the concerns of Devon's father.¹⁴⁹ He noted in the email that Devon's grades were "currently outstanding" and asked the teachers to monitor Devon and to report any concerns.¹⁵⁰ Devon's computer science teacher responded that Devon was participating in class, completing assignments on time, and getting along with his peers.¹⁵¹ She said, "I'm enjoying his attitude and group dynamics in my class."¹⁵²

149 See Tr. 1058, Email from Bradley Hayes to Teachers Dated Sept. 20, 2013.

150 Id.; see also Tr. 1094, Timeline & Resp.

151 See Tr. 1058, Email from Diane Wilson to Bradley Hayes Dated Sept. 20, 2013.

152 Id.

Devon's father emailed the pre-calculus teacher on September 20, 2013, about late assignments and his concern that Devon would become overwhelmed and not do the homework "because 'it's too late anyway.'"¹⁵³ Devon's father specifically noted that Devon had completed one of the assignments but did not turn it in due to ADHD.¹⁵⁴ The teacher responded that Devon had not forgotten to turn it in; the teacher had not collected homework on that day.¹⁵⁵

153 Tr. 663, Email from Jed L. to Christopher Stewart Dated September 20, 2013.

154 See id.

155 See Tr. 664, Email from Christopher Stewart to Jed L. Dated Sept. 20, 2013.

On September 27, 2013, Devon's father emailed all of Devon's teachers to inform them that "Devon had an upsetting diagnosis and medical procedure late yesterday."¹⁵⁶ He asked that they be patient with him and understand that Devon would probably not want to discuss it at school.¹⁵⁷ Devon's astronomy teacher said the Devon seemed fine in her class and worked in his group, adding that he was becoming "much more social" that school year.¹⁵⁸ Devon's father confirmed that Devon was more comfortable at the school after three years there, that the other students were more mature and tolerant, and that Devon was benefitting from two years of social-skills training.¹⁵⁹

156 Tr. 1060, Email from Jed L. to Teachers Dated Sept. 27, 2013.

157 See id.

158 Tr. 1060, Email from Cindi Wood to Jed L. Dated Sept. 30, 2013.

159 See Tr. 1060, Email from Jed L. to Cindi Wood Dated Sept. 30, 2013.

On October 15, 2013, Devon's father sent a query to all of Devon's teachers to find out if anything had happened at school the previous day.¹⁶⁰ Devon's computer science teacher responded:

160 See Tr. 1061, Email from Jed L. to Teachers Dated Oct. 15, 2013.

I'm afraid I'm not much help. He's not only doing well in my class, but the students around him are asking him for help. He seems to enjoy the attention from those around him. Please tell him that his computer classmates and I miss him and hope he comes back soon.
This week is 9-week exams. Maybe requiring him to take 2 "major" exams each day is a little to much stress for him right now. Today he should have taken my test. He knows it's open note, open book. Unless you tell me to hold up for a while, I'll talk with him about when he

wants to take the test when he gets back.¹⁶¹

161 Tr. 1062, Email from Diane Wilson to Jed L. Dated Oct. 15, 2013.

On October 16, 2013, Devon's father emailed the assistant principal, stating, "we no longer need to wait for Devon to fail. Devon wants to drop out of school rather then [sic] feel overwhelmed with anxiety."¹⁶² Devon's father shared that Devon was overwhelmed by pre-calculus homework and nine-week testing.¹⁶³ Specifically addressing the pre-calculus class, Devon's father argued that the teacher's "philosophy of consist[e]ncy and firmness sound[ed] sensible for your typical student," but that Devon's response was to take a zero instead of trying to make up material that he missed due to a medical appointment or an anxiety attack.¹⁶⁴ Devon's father argued for extended time on homework assignments and tests, asserting that the extra time encouraged Devon to keep trying.¹⁶⁵ In the alternative, Devon's father suggested moving Devon to an advanced algebra class.¹⁶⁶ The father concluded the email, "If I am successful in getting him back in school[,] he will feel overwhelmed by his missed tests and homework. What interventions, supports, and accommodations are available to manage his disabilities and keep Devon in school?"¹⁶⁷

162 Tr. 674, Email from Jed L. to Bradley Hayes Dated Oct. 16, 2013.

163 See id.

164 See id.

165 See id.

166 See id.

167 Id.

Devon missed at least part of every school day that week during which he had a couple of medical appointments.¹⁶⁸ Devon's father explained that Devon was refusing to return to school.¹⁶⁹ In response to the request by Devon's father for assistance in making up missed tests, Devon's graphic design teacher stated that Devon had taken the test in her class and made a 100.¹⁷⁰ She further stated, "Devon is doing great in 1^st period. He participates in class, answers questions, remains on task, and displays a very pleasant personality. I will let you know if I observe any changes."¹⁷¹

168 See Tr. 1009, Student Attendance Summ.; Tr. 1061, Email from Jed L. to Teachers Dated Oct. 15, 2013.

169 See Tr. 1061, Email from Jed L. to Teachers Dated Oct. 15, 2013.

170 See Tr. 1062, Email from Amy Lardie to Jed L. Dated Oct. 18, 2013.

171 Id.

On October 21, 2013, Devon's father requested that Devon be moved from pre-calculus to an advanced algebra class due to anxiety and asked that Devon's school counselor meet with Devon to suggest solutions to decrease his anxiety in English and math.¹⁷² Devon's school counselor responded that it was too late in the semester to switch to another math class, that she tried to meet with Devon but he was absent, and that his English teacher may have suggestions for writing essays.¹⁷³ She also queried why Devon was not taking advantage of tutorials and also provided a list of tutors for individual assistance.¹⁷⁴

172 See Tr. 1065, Email from Jed L. to Denisa Valenzuela Dated Oct. 21, 2013.

173 See Tr. 1064, Email from Denisa Valenzuela Dated Oct. 22, 2013.

174 See id.

On October 22, 2013, Devon's father emailed the assistant principal to grieve as counterproductive Devon's referrals to detention hall for tardies.¹⁷⁵ The email requested that future tardy-related detention halls be waived unless Devon's father was "able to assess Devon's behavior as ill-intentioned, manipulative, taking advantage or otherwise no real excuse for skipping class."¹⁷⁶

175 See Tr. 1013, Archived Discipline Referrals; Tr. 1063, Email from Jed L. to Bradley Hayes Dated Oct. 22, 2013.

176 Tr. 1063, Email from Jed L. to Bradley Hayes Dated Oct. 22, 2013.

On October 24, 2013, Devon's father contacted Devon's astronomy teacher seeking accommodations on incomplete homework.¹⁷⁷ The teacher responded that she refused to accept a zero on the assignment and encouraged Devon to try it.¹⁷⁸

177 See Tr. 1067, Email from Jed L. to Cindi Wood Dated Oct. 24, 2013.

178 See Tr. 1067, Email from Cindi Wood to Jed L. Dated Oct. 25, 2013.

Also in October, Devon's father emailed Devon's pre-calculus teacher requesting, "Please accommodate Devon's disabilities by allowing him extra time to turn in his homework."¹⁷⁹ Devon's father again expressed his concern that Devon would rather "take a zero so he can give up."¹⁸⁰ The teacher said that he would discuss it with the assistant principal.¹⁸¹ The teacher allowed Devon to make up an assessment at a tutorial.¹⁸² A few days later, the teacher spoke with Devon about turning in homework on time.¹⁸³ The teacher also notified Devon's father that the teacher was not required to give Devon any accommodations because he was not eligible for special education but that the teacher would "try to be more lenient on how many late assignments that he can turn in before they are not counted."¹⁸⁴

179 Tr. 665, Email from Jed L. to Christopher Stewart Dated Oct. 24, 2013.

180 Id.

181 See Tr. 665, Email from Christopher Stewart to Jed L. Dated Oct. 25, 2013.

182 See Tr. 655, Email from Jed L. to Christopher Stewart Dated October 29, 2013.

183 See Tr. 666, Email from Christopher Stewart to Jed L. Dated October 29, 2013.

184 Id.

On November 6, 2013, Devon's father emailed the director of Psychological and Assessment Services for CCISD to request a mediation regarding special education services.¹⁸⁵ The email stated that the ARDC's agreed accommodations had only partially been provided and that Devon's "constant state of anxiety ha[d] progressed to serious depression."¹⁸⁶ The director instructed that the father contact Devon's school counselor to request an SST meeting.¹⁸⁷ Days later, Devon's father emailed the director again stating, "Devon continues to deteriorate, feel overwhelmed and shut down. He believes dropping out of school will alleviate his anxiety and depression."¹⁸⁸ The SST meeting was scheduled for November 15, 2013.¹⁸⁹ The director offered to assist the school counselor in gathering referral information for outside mental health services.¹⁹⁰

185 See Tr. 680, Email from Jed L. to Pamela Ellis, et al., Dated Nov. 6, 2013.

186 Id.

187 See Tr. 680, Email from Pamela Ellis to Jed L. Dated Nov. 8, 2013.

188 Tr. 683, Email from Jed L. to Pamela Ellis Dated Nov. 12, 2013.

189 See Tr. 685, Email from Pamela Ellis to Denisa Valenzuela Dated Nov. 13, 2013.

190 See id.

On November 10, 2013, the assistant principal spoke with Devon's father about Devon's grade in pre-calculus.¹⁹¹ Devon's father said that, although Devon was capable of the work, he was overwhelmed by due dates and that Devon had difficulty getting out of bed in time to make the first-period class.¹⁹² The following day, Devon's father emailed Devon's pre-calculus teacher a lengthy email with the subject line "Understanding Devon's challenges."¹⁹³ Therein, Devon's father explained that "[h]idden disabilities are difficult for people to understand when compared to a person in a wheel chair."¹⁹⁴ The email discussed Devon's issues and requested additional time for homework and tests.¹⁹⁵ A day later, the assistant principal and teacher discussed Devon's father's request, and the teacher agreed to allow Devon extended time on tests, quizzes, and reading assessments as long as they were "completed in one sitting."¹⁹⁶

191 See Tr. 1094, Timeline & Resp.

192 See id.

193 Tr. 685, Email from Jed L. to Christopher Stewart Dated Nov. 11, 2013.

194 Id.

195 See id.

196 Tr. 685, Email from Christopher Stewart to Jed L. Dated Nov. 13, 2013; Tr. 1094, Timeline & Resp.

Before the teacher emailed Devon's father with the decision, Devon's father contacted Devon's school counselor, asking whether Devon could be moved to another pre-calculus class because "a teacher with a different teaching style . . . would match Devon's personality better."¹⁹⁷ Devon's father also relayed a suggestion made by the assistant principal: To move Devon to a graphic design later in the day due to first period absences and drop another class or take a class online from home.¹⁹⁸ Devon's school counselor sent a reply email shortly thereafter to explain that only one pre-calculus class was offered during fourth period but his schedule could be rearranged to put him in another teacher's class during a different period.¹⁹⁹ Also, graphic design could be moved to another period, and Devon could drop astronomy.²⁰⁰ However, she noted that making all of the changes could be difficult.²⁰¹

197 Tr. 1076, Email from Jed L. to Denisa Valenzuela Dated Nov. 12, 2013.

198 See id.

199 See Tr. 1075, Email from Denisa Valenzuela Dated Nov. 12, 2013.

200 See id.

201 See id.

On that same day, Devon's father sent a note to the high school principal asking that Devon be excused from detention hall, explaining that sleepiness was a medication side effect and that depression and anxiety also contribute to his difficulty rising in the morning.²⁰²

202 See Tr. 681, Letter from Jed L. to Debra Dixon Dated Nov. 12, 2013.

On November 13, 2013, the pre-calculus teacher emailed Devon's father with the decision to allow Devon additional time, and Devon's father replied the following day, requesting a parent-teacher conference to hear the teacher's ideas about helping Devon and preventing him from dropping out of school.²⁰³ At the conference on November 14, 2013, the pre-calculus teacher, the assistant principal, and Devon's father agreed that Devon was "very capable of completing the work as he [was] a very bright young man" but that he was not motivated to complete the work.²⁰⁴ The teacher recommitted to allowing Devon additional time in class to complete assignments.²⁰⁵ The group discussed advanced quantitative reasoning as an alternative to pre-calculus, but Devon's teacher that it would not challenge Devon and would not prepare him for college.²⁰⁶

203 See Tr. 685, Email from Jed L. to Christopher Stewart Dated Nov. 13, 2013.

204 Tr. 1095, Timeline & Resp.

205 See id.

206 See id.

On the same day as the conference, Devon's father requested an emergency Section 504 review because Devon planned to drop out of school on December 2, 2013, his eighteenth birthday, in order "to avoid [d]epression and [a]nxiety."²⁰⁷ Devon's father reported that Devon had been experiencing suicidal ideation for the prior two months, that his depression medication caused "excessive morning sleepiness," that he had limited coping skills, and that he had "a couple of new medical diagnos[e]s requiring daily care and medical [appointments] every other week."²⁰⁸ Devon's father said that he "frequently ha[d] to choose between pushing [Devon] to do homework or medical care."²⁰⁹ Devon's father asked how soon the Section 504 plan could be put in place, suggesting that the school start with the accommodations granted Devon in the ninth grade and "update it based on lessons learned since then."²¹⁰ The school held a staffing on November 15, 2013, but required additional documentation in order to make a decision.²¹¹

207 Tr. 1069, Email from Jed L. to Special Educ. Dated Nov. 14, 2013.

208 Tr. 1070, Email from Jed L. to Special Educ. Dated Nov. 14, 2013.

209 Id.

210 Id.

211 See Tr. 1069, Email from Lisa Hardcastle to Bradley Hayes Dated Nov. 15, 2013; Tr. 1071, Email from Jed L. to Amy Lardie Dated Dec. 5, 2013.

On November 20, 2013, Devon's father emailed Devon's pre-calculus teacher concerning Devon's report to his father of a conversation with the teacher in pre-calculus.²¹² The teacher responded the following day, explaining, in detail, the instruction and review of material covered by a quiz.²¹³ Despite Devon's presence for the instruction and review, he did not ask questions when the opportunity was presented, attend tutorials, or utilize any other resource.²¹⁴ When later asked by Devon to explain the material, the teacher twice recounted all of the prior opportunities to learn it, but Devon refused to accept the teacher's response.²¹⁵

212 See Tr. 690, Email from Jed L. to Christopher Stewart Dated Nov. 20, 2013.

213 See Tr. 690, Email from Christopher Stewart to Jed L. Dated Nov. 21, 2013.

214 See id.

215 See id.

On December 5, 2013, Devon's graphic-design teacher emailed Devon's father because Devon had missed four days that week.²¹⁶ She noted that "[t]he end of the semester [wa]s coming quickly" and she wanted "to make sure he ends on a great note!"²¹⁷ In response, Devon's father asked the teacher if Devon could complete his class work over the winter break, citing the trouble getting Devon out of bed in the morning, Devon's feeling overwhelmed at the thought of catching up, and his lack of motivation to attend tutorials.²¹⁸ The teacher replied, "Devon does a great job in my class. His course work is always excellent. I feel certain that Devon will be able to catch up. I have not seen this as a problem so far."²¹⁹

216 See Tr. 1072, Email from Amy Lardie to Jed L. Dated Dec. 5, 2013.

217 Id.

218 See Tr. 1071, Email from Jed L. to Amy Lardie Dated Dec. 5, 2013.

219 Tr. 1071, Email from Amy Lardie to Jed L. Dated Dec. 5, 2013.

Later on December 5, 2013, Devon's father emailed Devon's school counselor to ask if graphic design was offered during sixth period because Devon wanted to drop aquatic science during that period.²²⁰ According to his father, Devon wanted "to minimize changes in other classes because of the relationships with classmates" and did not want to drop astronomy.²²¹ Devon's father opined that not scheduling Devon for first period would help ensure that he would make school for the rest of the day and allowed that the spring semester was the "natural start of any schedule change."²²²

220 See Tr. 1075, Email from Jed L. to Denisa Valenzuela Dated Dec. 5, 2013.

221 See id.

222 See id.

On December 6, 2013, Devon's school counselor replied with a proposed schedule for Devon that allowed him "release time" in place of a class during first period.²²³ The school counselor reported that the assistant principal had met with Devon to come up with the schedule and had provided him with the application that needed to be completed and returned for the first period release time.²²⁴

223 See Tr. 1073-74, Email from Denisa Valenzuela to Jed L. Dated Dec. 6, 2013.

224 See Tr. 1074, Email from Denisa Valenzuela to Jed L. Dated Dec. 6, 2013; Tr. 1095, Timeline & Resp.

Devon's father responded: "Thank you. He was happy to hear about this option and I am encouraged. Will he still be eligible to graduate on the Distinguished plan?"²²⁵ The school counselor confirmed that Devon would still be eligible to do so with a score of 80 or higher in the graphic design course.²²⁶

225 Tr. 1073, Email from Jed L. to Denisa Valenzuela Dated Dec. 6, 2013.

226 See Tr. 1073, Email from Denisa Valenzuela to Jed L. Dated Dec. 6, 2013.

On December 13, 2013, Devon's father emailed Devon's graphic-design teacher to inform her that "Devon would like to work on an additional project and go to tutorial every day before Winter Break" to satisfy "Credit Appeal" for excessive absences.²²⁷ Devon's teacher explained that it was not necessary to assign any other project because Devon only needed to complete the project on which he was behind and that she had spoken with Devon about attending tutorials.²²⁸

227 Tr. 1077, Email from Jed L. to Amy Lardie Dated Dec. 13, 2013; see also Tr. 1070, Email from Jed L. to Lisa Hardcastle Dated Nov. 14, 2013.

228 See Tr. 1077, Email from Amy Lardie to Jed L. Dated Dec. 13, 2013.

In the early morning hours of December 18, 2013, Devon's father emailed Devon's pre-calculus teacher to request a parent- teacher conference to discuss, among other things, the possibility of an extension of time on the final examination and the possibility of allowing Devon to make up work over the winter break to improve his grade.²²⁹ Devon's father also contacted the assistant principal to inquire whether Devon's request to change math to advanced quantitative reasoning had been approved.²³⁰ The assistant principal confirmed that the change had been approved but Devon opted to stay in pre-calculus.²³¹

229 See Tr. 667, Email from Jed L. to Christopher Stewart Dated Dec. 18, 2013.

230 See Tr. 1078, Email from Jed L. to Bradley Hayes Dated Dec. 18, 2013.

231 See Tr. 1078, Handwritten Note on Email from Jed L. to Bradley Hayes Dated Dec. 18, 2013.

A little before eight in the morning on December 19, 2013, Devon's father contacted Devon's computer-science teacher to ask if Devon could take the final that afternoon because he "had difficulty sleeping last night and [was] struggling to get up."²³² Devon's teacher responded within minutes, stating that Devon could take the final anytime before or after lunch, and Devon's father replied that Devon would arrive at school in the late morning and asked if he could have extended time to take the test.²³³ The teacher said, "He can have all the time he needs."²³⁴

232 Tr. 1080, Email from Jed L. to Diane Wilson Dated Dec. 19, 2013.

233 See Tr. 1080, Email from Diane Wilson to Jed L. Dated Dec. 19, 2013; Tr. 1080 Email from Jed L. to Diane Wilson Dated Dec. 19, 2013.

234 Tr. 1080, Email from Diane Wilson to Jed L. Dated Dec. 19, 2013.

A few minutes later that morning, Devon's father asked Devon's aquatic science teacher whether Devon could take that exam around 1:30 p.m. that day after making up the computer science test.²³⁵ He explained, "After being too tired this morning, now he is too anxious."²³⁶

235 See Tr. 700, Email from Jed L. to Ashley Poloha Dated Dec. 19, 2013.

236 Id.

On the evening of December 19, 2013, Devon's father notified school personnel that Devon's "Depression and Anxiety [had been] so bad [that] morning [that] he could not drag himself out of bed" and requested a make-up time for the aquatic science final examination.²³⁷ Devon's father also said that, if Devon could not "get out of bed again tomorrow," Devon's father would communicate with the school "and try to salvage what ever [wa]s possible."²³⁸ He concluded with the query whether the school would be open and staffed over the winter break.²³⁹

237 Tr. 1082-83, Email from Jed L. to Bradley Hayes, et al., Dated Dec. 19, 2013.

238 Id.

239 See id.

At almost midnight on December 19, 2013, Devon's father emailed the graphic-design teacher about the final project, stating that Devon was "obsessing over unnecessary details to make his Final Project look really good."²⁴⁰ However, Devon's father said, Devon had not satisfied all of the rubric requirements and wanted time to finish the project.²⁴¹

240 Tr. 1079, Email from Jed L. to Amy Lardie Dated Dec. 20, 2013.

241 See id.

In the early morning of December 20, 2013, Devon's graphic-design teacher suggested that Devon could work on the project in the computer lab during the day as allowed by his finals schedule.²⁴² She said that Devon needed to complete the project and turn it in by 11:30 [p.m.] because of the deadline for submission of grades.²⁴³

242 See Tr. 1079, Email from Amy Lardie to Jed L. Dated Dec. 20, 2013.

243 See id.; Tr. 1082, Email from Jed L. to Bradley Hayes, et al., Dated Dec. 20, 2013.

Also prior to school on December 20, 2013, Devon's astronomy teacher responded to the inquiry about making up the final in aquatic science, stating that she would be in her class from 12:30 to 3:15 p.m. grading coursework and would "happily administer all needed exams."²⁴⁴ Devon's father expressed gratitude to the teacher and asked that Devon be reminded not to "cut short each test he takes" but to "give[] them the full time they deserve."²⁴⁵

244 Tr. 1082, Email from Cindi Wood to Jed L. Dated Dec. 20, 2013.

245 Tr. 1082, Email from Jed L. to Bradley Hayes, et al., Dated Dec. 20, 2013.

Devon's grades at the end of the semester were: pre-calculus—77; astronomy—99; English IV—85; graphic design—99; computer science—86; U.S. government—88; and aquatic science—93.²⁴⁶ Devon scored 95 on his pre-calculus final examination, the second highest grade in the class.²⁴⁷ E. Devon's Senior Year —Spring Semester

246 See Tr. 1095, Timeline & Resp.

247 See id.

By the start of the spring semester of Devon's senior year, the school had approved Section 504 accommodations for Devon in math that included time extensions on assignments and tests.²⁴⁸ However, attendance almost immediately became a problem.²⁴⁹ During January 2014, Devon was absent from four or more classes on fifteen days.²⁵⁰ In February 2014, Devon was absent from four or more classes on twenty days.²⁵¹ In March 2014, Devon was absent from four or more classes on sixteen days, and, through a little more than half of April 2014, he was absent from four or more classes on thirteen days.²⁵²

248 See Tr. 505-19, Summ. of Data or Info. Reviewed by the § 504 Comm.; Tr. 1020, § 504 Indiv. Student Serv. Plan.

249 See Tr. 1010-12, Student Attendance Summ.

250 See Tr. 1010-11, Student Attendance Summ.

251 See Tr. 1011, Student Attendance Summ.

252 See Tr. 1011-12, Student Attendance Summ. The attendance summary does not provide information on Devon's attendance after April 17, 2014. See Tr. 1012, Student Attendance Summ.

On January 6, 2014, Devon asked his school counselor if she would submit a college letter of recommendation on his behalf, and she responded, "Of course I will."²⁵³ Later in January, the school counselor issued a notice that Devon owed credit appeals for excessive absences.²⁵⁴ The school counselor indicated on the notice that it was not signed by Devon because of his absence.²⁵⁵

253 Tr. 1086, Email from Devon to Denisa Valenzuela Dated Jan. 6, 2014; Tr. 1086, Email from Denisa Valenzuela to Devon Dated Jan. 6, 2014.

254 See Tr. 727, Graduation Deficiency Notice Dated January 2014.

255 See id.

On January 14, 2014, the assistant principal emailed Devon's father to check on Devon.²⁵⁶ The email stated that the assistant principal had not seen Devon in the spring semester and "was hoping that his new schedule with a class off in the morning would help relieve some stress from his day."²⁵⁷ Devon's father replied:

256 See Tr. 1085, Email from Bradley Hayes to Jed L. Dated Jan. 14, 2014; Tr. 1095, Timeline & Resp.

257 Tr. 1085, Email from Bradley Hayes to Jed L. Dated Jan. 14, 2014.

He made the last couple of periods Tuesday and all day Wednesday and decided that night, he's not going back.

I have tried many many ideas, increased his medication, and only succeeded in getting him to the last period of today but he does not want to go back.

His illness is progressing. When do we have enough educational evidence that he needs more support?

After we obtain that evidence, how do we erase it so that it does not make him say "Why bother, I give up!" or a college to say bad grades, we changed our mind. Why couldn't we have the safety net I requested last April at his ARD Dismissal meeting?

If the school and teachers need to treat him like all other kids for the sake of fairness then why can't they remove his debilitating Emotional Disturbance for the sake of fairness?

I have asked for help from medical and educational

professionals. I'm exhausted and I am out of ideas.²⁵⁸

258 Tr. 1084, Email from Jed L. to Bradley Hayes Dated Jan. 14, 2014.

The assistant principal asked Devon's father to ask Devon to meet with the assistant principal the following morning to talk about options for the semester and what might help Devon.²⁵⁹ The assistant principal expressed an interest in giving Devon appropriate support to help him succeed in school.²⁶⁰ Devon's father wrote in reply that Devon seemed to have made up his mind about not returning to school, but the father would try again on the following morning.²⁶¹

259 See Tr. 1084, Email from Bradley Hayes to Jed L. Dated Jan. 14, 2014.

260 See id.

261 See Tr. 1084, Email from Jed L. to Bradley Hayes Dated Jan. 15, 2014.

The assistant principal asked Devon to meet him in the afternoon.²⁶² The assistant principal saw Devon that day and Devon said he was at school to turn in necessary items for college.²⁶³ Devon told the assistant principal that Devon's father had not asked Devon to meet with the assistant principal.²⁶⁴ Nevertheless, the two spoke with Devon's school counselor about school options and graduation options that would work for Devon.²⁶⁵ Devon told them that he did not want to attend college and he did not want to work; rather, "he would be happy living at home with his parents and doing nothing else."²⁶⁶ The assistant principal encouraged Devon to complete his high school education and suggested online options for completing his diploma with less anxiety.²⁶⁷

262 See Tr. 1095, Timeline & Resp.

263 See id.

264 See id.

265 See id.

266 Tr. 1095-96, Timeline & Resp.

267 See Tr. 1096, Timeline & Resp.

On January 16, 2014, Devon's father emailed Devon's graphic design and computer science teachers, stating:

Devon is in school today[,] but his state of mind is fragile[,] and I am trying to minimize his feelings of being overwhelmed. Please do not give him tests and avoid reminding him of all his back log [sic] of work. Please share the backlog with me so I can help him manage it.

I feel like getting him to school today is a major accomplishment[,] and I am trying not to overwhelm him. He is behind in every class[,] so I will need to figure out a plan on how to help him catch up, if I am successful in getting him to school routinely. (That's a big IF)[.]"²⁶⁸

Devon's graphic design teacher forwarded the email to the assistant principal, noting that she was not responding to it.²⁶⁹

268 Tr. 707, Email from Jed L. to Amy Lardie & Diane Wilson Dated Jan. 16, 2014.

269 See Tr. 707, Email from Amy Lardie to Bradley Hayes Dated Jan. 16, 2014.

On January 17, 2014, Devon's father emailed the assistant principal to inquire about Devon's plan to graduate under the Distinguished Plan, his class rank, whether he received the highest final exam grade for the fall semester in pre-calculus.²⁷⁰ The father said that he hoped to use the information to "motivate Devon and give him perspective on his struggles" and that it motivated the father to keep trying to reach Devon.²⁷¹ The assistant principal responded within an hour with answers to the questions posed.²⁷²

270 See Tr. 708-09, Email from Jed L. to Bradley Hayes Dated Jan. 17, 2014.

271 See id.

272 See Tr. 708, Email from Bradley Hayes to Jed L. Dated Jan. 17, 2014.

On February 3, 2014, Devon's father reminded Devon's astronomy teacher that Devon was struggling with physical and mental-health challenges.²⁷³ Devon's father stated that he was trying to keep Devon connected to school and hoped to work with Devon and the school to recover from "his latest challenges."²⁷⁴ In support of that effort, Devon's father asked the teacher to identify the most important three tests or assignments in order to narrow his work load and decrease his feelings of being overwhelmed.²⁷⁵ The father also reported that one of the anticipated surgeries was no longer necessary and that he was encouraging Devon to apply to colleges.²⁷⁶

273 See Tr. 1087, Email from Jed L. to Cindi Wood Dated Feb. 3, 2014.

274 Id.

275 See id.

276 See Tr. 1087-88, Email from Jed L. to Cindi Wood Dated Feb. 3, 2014.

Devon's astronomy teacher replied, stating that she sent a letter of recommendation to the University of Houston Clear Lake and that she switched Devon's class to completely online.²⁷⁷ The teacher told Devon's father to look at the assignments and decide what Devon could complete at home.²⁷⁸ She also noted that the tests were not timed and could be attempted an unlimited number of times; "so, there really [wa]sn't much pressure."²⁷⁹

277 See Tr. 1087, Email from Cindi Wood to Jed L. Dated Feb. 3, 2014.

278 See id.

279 Id.

On February 17, 2014, the assistant principal reached out to Devon's father about Devon's poor attendance.²⁸⁰ Devon's father said that he was keeping Devon connected to two classes, economics and astronomy.²⁸¹ The assistant principal developed a plan for completing high school with minimal attendance.²⁸²

280 See Tr. 1096, Timeline & Resp.

281 See id.

282 See id.

On February 25, 2014, Devon contacted his school counselor to inquire how he could transfer letters of recommendation for college application.²⁸³ Devon's school counselor explained the process.²⁸⁴ Devon's father sent an email to Devon's astronomy teacher, asking her to provide Devon with a letter of reference for college.²⁸⁵

283 See Tr. 1089, Email from Devon to Denisa Valenzuela Dated Feb. 25, 2014.

284 See Tr. 1089, Email from Denisa Valenzuela to Devon Dated Feb. 25, 2014.

285 See Tr. 715, Email from Jed L. to Cindi Wood Dated Feb. 26, 2014.

On March 7, 2014, Devon's school counselor emailed Devon's father:

I am concerned about Devon's progress. I know that you have been seeking help for him. However, as far as high school is concerned, what is the play? I realize he has been admitted [to] at least one university. However, they are going to want a final transcript showing that he actually graduated. He currently has several zeros and single digit grades for this nine weeks.²⁸⁶

The school counselor inquired whether Devon would be interested in taking high-school courses online through Texas Tech if he was unable to return to school. She also pointed out that "[n]ot graduating from high school can have a significant impact on his future college plans."²⁸⁷

286 Tr. 1090, Email from Denisa Valenzuela to Jed L. Dated Mar. 7, 2014.

287 Id.

Devon's father replied that his hope was that Devon could be accepted to college and defer for medical reasons until he could get the medical care needed to feel better.²⁸⁸ Devon's father reported that, in the meantime, he was "trying different school options that Devon [could] manage" and would mention the Texas Tech option again.²⁸⁹ Devon was accepted to Stony Brook University and University of Houston Clear Lake.²⁹⁰

288 See Tr. 715, Email from Jed L. to Cindi Wood Dated Mar. 7, 2014; Tr. 1090, Email from Jed L. to Denisa Valenzuela Dated Mar. 7, 2014.

289 Tr. 1090, Email from Jed L. to Denisa Valenzuela Dated Mar. 7, 2014.

290 See Tr. 715, Email from Jed L. to Cindi Wood Dated Mar. 7, 2014.

Devon's school counselor issued a notice that Devon was in danger of not graduating due to failing grades and excessive absences.²⁹¹ The school counselor indicated on the notice that she had attempted to meet with Devon but that he had not been attending school.²⁹² Devon continued to attend his astronomy class and only his astronomy class, through the end of the spring semester.²⁹³

291 See Tr. 725, Graduation Deficiency Notice Dated March 2014.

292 See id.

293 See Tr. 1319, Hr'g Test. of Jed L.

In March 2014, Devon was assessed by an outside therapist, who found Devon to be "at a low imminent risk of suicide or serious self-injury" or violence to others.²⁹⁴ The therapist opined that Devon was "struggling with depression, anxiety, somatization, and reactive aggression."²⁹⁵ The recommended treatment plan included allowing Devon to make his own choices, engaging in social skills roll playing, exploring Devon's somatization symptoms as well as his presenting complaints, and conducting therapy in a room that does not have computers.²⁹⁶

294 See Tr. 723, Intake Assess.

295 Id.

296 See Tr. 724, Intake Assess.

Peter Simione, Ph.D., ("Dr. Simione"), a licensed psychologist, evaluated Devon over the course of three sessions in April and May 2014 and issued a report in November 2014.²⁹⁷ Dr. Simione employed numerous evaluation instruments, reviewed a variety outside medical and mental health documentation and school records, interviewed Devon and his father.²⁹⁸ Devon's astronomy teacher completed the socialization domain portion of the Vineland Adaptive Behavior Scales and ranked Devon in the superior range.²⁹⁹ She described Devon as becoming more outgoing over the past two years during which she was one of his teachers.³⁰⁰ She stated that, even though Devon stopped attending his other classes, he continued to attend astronomy throughout the spring semester in order to socialize with friends.³⁰¹

297 See Tr. 739-77, Psychological Eval. Dated Nov. 14, 2014.

298 See id.

299 See Tr. 758, Psychological Eval. Dated Nov. 14, 2014. Dr. Simione questioned the reliability of the teacher's responses on the Vineland Adaptive Behavior Scales. See Tr. 757, Psychological Eval. Dated Nov. 14, 2014.

300 See Tr. 758, Psychological Eval. Dated Nov. 14, 2014.

301 See id.

Among other findings, Dr. Simione found that Devon did not meet, by a small margin, the criteria for autism spectrum disorder and indicated that the evaluation did not conclusively state the presence or absence of an autism spectrum disorder.³⁰² Dr. Simione offered numerous recommendations in the categories of clinical, family/home, educational programming, behavioral programming, social skills development, and vocational/transition planning.³⁰³ He opined that the proper educational placement for Devon was in regular education with provision of "counseling, social skills training, and organizational monitoring and coaching."³⁰⁴ Additionally, he recommended situational arrangements such as placing him in the front row, providing occupational therapy, providing organizational coaching, using sound-blocking devices, and testing without time limits, among other suggestions.³⁰⁵ F. Due Process Hearing and Hearing Officer's Decision

302 See Tr. 754-55, 761, Psychological Eval. Dated Nov. 14, 2014.

303 See Tr. 762-65, Psychological Eval. Dated Nov. 14, 2014.

304 Tr. 762, Psychological Eval. Dated Nov. 14, 2014.

305 See Tr. 762-63, Psychological Eval. Dated Nov. 14, 2014.

On April 11, 2014, Plaintiff filed a Request for a Due Process Hearing.³⁰⁶ Plaintiff complained that CCISD failed to provide Devon with a free appropriate public education ("FAPE") because it: (1) did not recognize a diagnosis of autism spectrum disorder; (2) dismissed Devon from special education services in April 2012; (3) determined in April 2013 that Devon did not meet eligibility criteria for special education services; (4) violated the IDEA's mandate to identify, locate, and evaluate children with disabilities ("Child Find" provision);³⁰⁷ (5) failed to develop policies and prevention programs for students who are at high risk for committing suicide, especially victims of bullying; and (5) failed to stop the bullying of Devon or the effects of past bullying, failed to recognize [Devon's] deteriorating emotional state and increasing risk for dropping out.³⁰⁸

306 See 44, Req. for Special Educ. Due Process Hr'g.

307 See 20 U.S.C. § 1412(a)(3).

308 See Tr. 46-49, Due Process Suppl.

In support of these charges, Plaintiff specifically challenged the April 2013 finding that Devon did not qualify for special education services, stating:

[W]hat success [Devon] had achieved in his studies during the applicable period was due in large part to the intense efforts put forward by his parents in the home to work with him on his education and could not last, as his emotional stability continued to deteriorate. [Devon's] parents continued to warn [CCISD] of the . . . continuing difficulties and problems that would arise from failing to provide special education programming and relevant accommodations to their son. [CCISD] did not heed these warnings.
[CCISD's] decision in April 2013 has drastically affected [Devon's] educational opportunities and progress at school. His depression and anxiety reached new levels, in part as a result of the continued effects of past bullying events which [CCISD] took inadequate measures to address, leading to stifling and overwhelming isolation, such that [Devon] ultimately avoided going to school at all, except to the last periods of the day. He frequently forgets to take his medications and has increasing difficulties even with basic hygiene. He has lost any friends that he has had. He has almost no chance of successfully completing the school year and of then transitioning into a productive next stage of his life.
[CCISD's] failure to provide necessary special education services and an appropriate transition plan for [Devon] thus resulted in a serious decline in [Devon's] ability to function with respect to, among other things, his education, his social interactions, and both making and executing plans for his future. [CCISD's] approach violated applicable federal law, including the [IDEA] and

particularly including the Child Find provisions of the [IDEA], in that [CCISD] took inadequate measures in identifying [Devon's] disability and, in fact, blinded itself to the continuing and intensifying effects of disabilities it had previously recognized. [CCISD] also failed to identify [Devon] as a risk to dropping out of school and further failed to take appropriate measures to prevent this from occurring, which violates the standards of the state education agency.³⁰⁹

309 Tr. 47-48, Due Process Suppl.

Plaintiff sought as remedies: (1) reimbursement for private educational services accessed by Plaintiff, including private Spanish classes and social skills training; (2) access to and inclusion in special education services; (3) in-home teaching; (4) access to and inclusion in CCISD's dual credit program to help transition to other levels of education; (5) appropriate social skills training; (6) appropriate peer-to-peer support; (7) accommodations for anxiety, depression, and communication deficits; (8) support from CCISD's Autism Support Team; (9) evaluation for social communication disorder; (10) reimbursement for the April 2013 IEE; and (11) reasonable attorneys' fees.

On April 24, 2013, the parties participated in a resolution session but were unable to resolve their dispute.³¹⁰ On May 1, 2014, the hearing officer issued an order that dismissed all claims brought pursuant to any law other than the IDEA and the request for the award of attorneys' fees to the prevailing party.³¹¹ In the order, the hearing officer identified the pending issues as whether: (1) CCISD failed to meet its IDEA Child Find obligations by failing to identify all of Devon's disabilities in April 2013; and (2) CCISD wrongly denied Devon's eligibility for special education services and a FAPE.³¹² On the first issue, the hearing officer explained that the Child Find argument was clarified with the parties at a pre-hearing conference and determined to relate only to CCISD's April 2013 denial of special education services.³¹³

310 See Tr. 74, Letter from Amy C. Tucker to Hr'g Officer Dated Apr. 25, 2014.

311 See Tr. 78, Hr'g Officer Order No. 2.

312 See Tr. 6, Dec. of Hr'g Officer.

313 Tr. 6, Dec. of Hr'g Officer.

The hearing was held December 2-4, 2014, at CCISD's educational center.³¹⁴ Devon's father, three of Devon's teachers, Devon's school counselor, two LSSPs, and four school administrators testified at the hearing.³¹⁵ The hearing officer allowed the parties the opportunity to submit written closing arguments before issuing a decision.³¹⁶

314 See Tr. 8, Dec. of Hr'g Officer; Tr. 226, Hr'g Officer Order No. 10; Tr. 235, Letter from Amy C. Tucker to Mark Whitburn Dated Nov. 20, 2014.

315 See Tr. 16, Dec. of Hr'g Officer.

316 See Tr. 8, Dec. of Hr'g Officer.

The hearing officer issued her decision on February 20, 2015.³¹⁷ Before addressing her findings, she addressed the scope of the hearing, noting that Plaintiff expanded the Child Find issue in the written closing argument by extending it beyond the April 2013 ARDC decision into the 2013-2014 school year.³¹⁸ The hearing officer recounted seven actions identified in the brief as violative of the Child Find provisions during the 2013-2014 school year but found that Plaintiff's complaint in support of the request for a due process hearing did not "allege that [CCISD] should have, but failed, to refer [Devon] for special education services during the 2013-2014 school year" and that the issue was not properly before the hearing officer.³¹⁹

317 See Tr. 1-38, Dec. of Hr'g Officer.

318 See Tr. 6, Dec. of Hr'g Officer (stating that the closing argument brief stated that CCISD had the obligation throughout the year to address Devon's educational needs and to evaluate him whenever it was on notice of behavior that could indicate a disability and a need for special education services).

319 Tr. 6-7, Dec. of Hr'g Officer.

The hearing officer discussed the testimony and exhibits presented at the hearing.³²⁰ By a preponderance of the evidence, the hearing officer found that Devon was not a child with a disability enumerated in the IDEA, that CCISD properly considered the DePelchin IEE and other information in making its April 2013 determination that Devon was not in need of special education services, and that CCISD complied with its Child Find obligations.³²¹ Thus, she ruled in favor of CCISD, finding that it "met its Child Find obligation by taking adequate measures to identify [Devon's] disabilities before denying him special education services" and that it "correctly decided [Devon] was not eligible for special education services because there was no demonstrated educational need."³²² C. Appeal to this Court

320 See Tr. 16-23, Dec. of Hr'g Officer.

321 See Tr. 12, 37, Dec. of Hr'g Officer.

322 Tr. 36, Dec. of Hr'g Officer.

On May 21, 2015, Devon, by his parents, filed the present action.³²³ Plaintiff challenged the hearing officer's decision as "erroneously" denying Devon all requested relief.³²⁴ Plaintiff alleged that "CCISD failed in its obligations to evaluate Devon L. properly and to take the necessary steps to accommodate his disability and to provide him the tools he needed to access an education."³²⁵ Plaintiff took specific issue with CCISD's decision in April 2012 to terminate special education services that had been provided for Devon during the 2011-2012 school year pursuant to eligibility under the disability categories of emotional disturbance and other health impairment.³²⁶ Plaintiff also complained that the school's suggestions of a Student Support Group and "constant communication between school and home" for the 2012-2013 school year proved to be ineffective.³²⁷ Plaintiff further challenged CCISD's determination in April 2013 that Devon remained ineligible for special education services.³²⁸ The complaint listed the same requests for relief as presented to the hearing officer.³²⁹

323 See Doc. 1, Pl.'s Compl.

324 Id. p. 12

325 See id. p. 1.

326 See id.

327 Id. pp. 8, 10.

328 See id. pp. 1, 8-10.

329 See id. pp. 13-14.

III. Standard of Review

The courts' role is "purposefully limited" under the IDEA so that the "choice of educational policies and methods [is left] where it properly belongs—in the hands of state and local school officials." White ex rel. White v. Ascension Parish Sch. Bd., 343 F.3d 373, 377 (5^th Cir. 2003)(quoting Flour Bluff Indep. Sch. Dist. v. Katherine M. ex rel. Lesa T., 91 F.3d 689, 693 (5^th Cir. 1996)); see also R.H. v. Plano Indep. Sch. Dist., 607 F.3d 1003, 1010 (5^th Cir. 2010)("The role of the judiciary is not to second-guess the decisions of school officials or to substitute their plans for the education of disabled students with the court's."). The court's only task is to determine whether the school district complied with the IDEA. Id. (quoting Katherine M. ex rel. Lesa T., 91 F.3d at 693).

The IDEA directs courts, when reviewing a state hearing officer's decision, to receive the records of the administrative proceedings, to hear additional evidence at the request of a party, and to grant appropriate relief based on a preponderance of the evidence. 20 U.S.C. § 1415(i)(2)(C). The court must accord due weight to the hearing officer's findings, but also must review the evidence and must "reach an independent decision." Hous. Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 347 (5^th Cir. 2000)(quoting Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. ex rel. Barry F., 118 F.3d 245, 252 (5^th Cir. 1997)); see also Adam J. ex rel. Robert J. v. Keller Indep. Sch. Dist., 328 F.3d 804, 808 (5^th Cir. 2003). The Fifth Circuit refers to the district court's standard of review as "virtually de novo." Adam J. ex rel. Robert J., 328 F.3d at 808; Bobby R., 200 F.3d at 347 (quoting Michael F. ex rel. Barry F., 118 F.3d at 252).

Pursuant to the IDEA's presumption in favor of the school district's plan, the party challenging its appropriateness bears the burden of proof, by a preponderance of the evidence. See R.H., 607 F.3d at 1010-11; Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 292 n.4 (5^th Cir. 2009)(citing Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 62 (2005)); White ex rel. White, 343 F.3d at 377 (citing Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 132 (5^th Cir. 1993)); Adam J. ex rel. Robert J., 328 F.3d at. An IDEA case may be adjudicated on motion for summary judgment. Cf. Bobby R., 200 F.3d at 345, 351 (affirming summary judgment adjudication).

III. Analysis

Both parties move for summary judgment. CCISD argues that Plaintiff's complaints about the April 2012 decision to terminate special education services is precluded by the applicable statute of limitations. In support of its April 2013 decision not to find Devon eligible for special education services during his senior year, CCISD asserts that Devon did not exhibit any of the criteria for eligibility under emotional disturbance or demonstrate a need for special education services. CCISD also argues that the hearing officer was correct in refusing to consider Devon's closing argument that CCISD should have referred Devon for a special education evaluation during his senior year.

Plaintiff takes a contrary position, arguing that, in April 2012 and April 2013, CCISD improperly based its determination that Devon did not qualify for special education under the category of emotional disturbance solely on its finding that Devon suffered no adverse educational impact. Plaintiff further disagrees with CCISD's conclusion that he suffered no adverse educational impact. Plaintiff contends also that CCISD failed to meet its IDEA Child Find obligations during Devon's senior year. Regarding his closing argument that CCISD should have reevaluated Devon during his senior year, Devon argues that he did raise it in his Due Process Complaint. A. IDEA Legal Standards

The main thrust of the IDEA is to ensure that states provide disabled children with a FAPE in the least restrictive environment possible. 20 U.S.C. § 1400(d)(1)(A); see also 20 U.S.C. §§ 1412(a), 1415(a); Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 (5^th Cir. 1989). The IDEA imposes a duty on the states, through their local educational agencies, to implement policies and procedures to identify, locate, and evaluate all children with disabilities who are in need of special education and related services. 20 U.S.C. § 1412(a)(3)(A); 34 C.F.R. § 300.111(a); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 245 (2009).

In order to evaluate compliance with this Child Find duty, the court determines whether the local educational agency had reason to suspect that a student was disabled as defined by the regulations implementing the IDEA and had reason to suspect that special education services might have been needed. Dallas Indep. Sch. Dist. v. Woody, CIVIL ACTION NO. 3:15-CV-1961-G, 2016 WL 1530311, at *14 (N.D. Tex. Apr. 15, 2016)(citing W.B. v. Matula, 67 F.3d 484, 501 (3^d Cir. 1995), abrogated on other grounds by A.W. v. Jersey City Pub. Schs., 486 F.3d 791 (3^d Cir. 2007)); see also 20 U.S.C. § 1401(3)(A); 34 C.F.R. §§ 300.8(a)(1), 300.111(a), (c)(1); Alvin Indep. Sch. Dist. v. A.D. ex rel. Patricia F., 503 F.3d 378, 382 (5^th Cir. 2007); El Paso Indep. Sch. Dist. v. Richard R., 567 F. Supp.2d 918, 950 (W.D. Tex. 2008). Only if the local educational agency had reason to suspect both a disability and the need for special education services³³⁰ does the court then determine whether the local educational agency evaluated the student within a reasonable time after becoming aware of behavior that likely indicated a disability. See Woody, 2016 WL 1530311, at *14 (citing Richard R., 567 F. Supp.2d at 950); C.P. v. Krum Indep. Sch. Dist., CASE NO. 4:13cv63, 2014 WL 4651534, at *10 (E.D. Tex. Sept. 17, 2014)(unpublished)(quoting Richard R., 567 F. Supp.2d at 950).

330 If a child does not need special education services but needs only a related service (such as counseling), that child is not considered to be a child with a disability. 34 C.F.R. § 300.8(a)(2); see also 20 U.S.C. § 1401(26).

The regulations implementing the IDEA enumerate and define thirteen disability categories, including emotional disturbance, other health impairment, and autism. See 34 C.F.R. § 300.8. Emotional disturbance is defined as a condition with characteristics exhibited "over a long period of time and to a marked degree that adversely affects a child's educational performance." 34 C.F.R. § 300.8(c)(4)(i). The relevant characteristics are:

(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors.

(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.

(C) Inappropriate types of behavior or feelings under normal circumstances.

(D) A general pervasive mood of unhappiness or depression.

(E) A tendency to develop physical symptoms or fears associated with personal or school problems.

34 C.F.R. § 300.8(c)(4)(i).

A student is eligible under other health impairment if he has "limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli" due to chronic or acute health problems including ADHD "that results in limited alertness with respect to the educational environment" and "[a]dversely affects a child's educational performance." 34 C.F.R. § 300.8(c)(9). The category of autism applies to any student with "a developmental disability significantly affecting verbal and nonverbal communication and social interaction . . . that adversely affects a child's educational performance." 34 C.F.R. § 300.8(c)(1)(i).

If the local educational agency finds that a child has an eligible disability, it must determine whether the child needs special education services. See 34 C.F.R. § 300.306(c). That determination is based on an interpretation of the FIE that draws upon information from "aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the child's physical condition, social or cultural background, and adaptive behavior." 34 C.F.R. § 300.306(c)(1). Special education is "specially designed instruction" that adapts "the content, methodology, or delivery of instruction" to address the "unique needs of a child with a disability" and to ensure access to "the general curriculum, so that the child can meet the educational standards . . . that apply to all children" in that jurisdiction. 34 C.F.R. § 300.39(a)(1), (b)(3).

If both disability and need are established, the local educational agency creates an IEP that, among other things, explains the child's academic achievement and functional performance, states measurable annual goals, describes how and when to measure progress, identifies the special education services and supplementary aids to be implemented, and, if necessary, delineates the extent of nonparticipation in general education classes. 34 C.F.R. § 300.320.

Reevaluations occur either when the local educational agency determines that the child's educational or related services needs warrant a reevaluation or when a parent or teacher requests one. 34 C.F.R. § 300.303(a). However, unless the parent and local educational agency agree otherwise, a reevaluation may not occur sooner than a year after a prior evaluation and must occur at least every three years. 34 C.F.R. § 300.303(b). B. Discussion

The parties arguments boil down to three issues: (1) whether review of the April 2012 ARDC decision is barred by limitations; (2) whether the April 2013 ARDC decision complied with the IDEA requirements; and (3) whether CCISD failed its Child Find obligations after the 2013 ARDC decision.

1. April 2012 ARDC Decision

Under Texas statutory law, a parent must request a special education due process hearing within one year of the date on which the parent "knew or should have known about the alleged action that serves as the basis for the request." 19 Tex. Admin. Code § 89.1151(c). In this case, then, the limitations period began to run on April 11, 2013, one year prior to the date that Plaintiff filed the request for a due process hearing.

Thus, all complaints about CCISD's actions or inaction with regard to Devon's educational placement and services any time prior to April 11, 2013, were not timely filed. Specifically, Plaintiff complained about the April 2012 ARDC decision to dismiss Devon from special education. Claims based on that decision are barred by limitations.

The hearing officer correctly applied the statute of limitations.

2. April 2013 ARDC Decision

In making a decision on the eligibility of a child for special education services, the ARDC determines whether the child was disabled as defined by the IDEA. See A.D. ex rel. Patricia F., 503 F.3d at 382. All three of the disability categories considered during Devon's high school tenure have two aspects to their definitions. See 34 C.F.R. § 300.8(c)(1), (4), (9). The first aspect consists of relevant characteristics for each identified disability, and the second aspect is whether those defining characteristics adversely affect the child's educational performance. See 34 C.F.R. § 300.8(c)(1), (4), (9). If the child's condition meets both aspects, the analysis turns to whether special education is needed. See 34 C.F.R. § 300.306(c). If the child does not need special education, the school district does not violate the IDEA by not providing it, even if the child has a qualifying disability. See T.C. v. Lewisville Indep. Sch. Dist., Case No. 4:13cv186, 2016 WL 705930, at *12 (E.D. Tex. Feb. 23, 2016)(slip copy).

Focusing only on the emotional disturbance category,³³¹ Plaintiff complains that the ARDC "effectively based its conclusions on the adverse impact analysis rather than on any finding that [Devon] no longer showed any of the five characteristics which define the category of emotional disturbance" and that the ARDC found no adverse educational impact.³³² Plaintiff argues that the ARDC focused on "a snapshot in time" rather than on "the inevitable effects of [Devon's] long-term emotional difficulties" and takes issue with the ARDC's reliance on grades and teacher reports over outside professionals.³³³ Plaintiff argues that Devon was able to "function adequately in structured settings for a period of time" because of his intelligence and the support he received at home but that "disastrous consequences" were the inevitable result of failing to provide Devon special education services.³³⁴

331 Both the DePelchin IEE and Dr. Simione's evaluation concluded that Devon was not autistic, and neither found that he demonstrated the characteristics of the other health impairment category. In the due process complaint, Plaintiff challenged CCISD's failure to recognize a diagnosis of autism spectrum disorder but did not raise that issue in the complaint before this court. Plaintiff never challenged the ARDC's finding that he did not fall within the category of other health impairment.

332 Doc. 18, Pl.'s Mot. for Summ. J. p. 15.

333 Id. p. 17.

334 Id. pp. 16, 18.

Plaintiff fundamentally misunderstands the legal requirements for determining whether Devon was a child with a disability and mischaracterizes the ARDC's deliberation. To begin with, the April 2013 ARDC considered the DePelchin IEE findings and acknowledged that the IEE evaluator found Devon qualified for special education under the category of emotional disturbance, thereby adopting the finding that Devon exhibited sufficient characteristics of emotional disturbance to a degree that adversely affected his education. The ARDC then moved to the second part of the eligibility analysis, whether special education services were needed.

The ARDC correctly considered Devon's educational performance since the last ARDC decision in 2012 that dismissed him from special education. Consideration of his educational performance during his junior year up to the date of the ARDC meeting is significantly more than "a snapshot in time."

During his junior year, as discussed by the ARDC, Devon's grades improved in spite of his dismissal from special education and even though he had not accessed any generally available support services. The ARDC discussed Devon's above-average score on the PSAT, his progress on the Distinguished Achievement Plan for graduation, and positive teacher reports regarding academics. The ARDC also discussed the improvement in Devon's peer interactions, which Devon's father acknowledged. Devon's teachers reported that he was successful both behaviorally and socially in class. Contrary to Plaintiff's suggestion, the ARDC did not focus exclusively on Devon's grades but properly also considered achievement tests, teacher recommendations, and social interactions. See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 207 n.28 (1982)("When the handicapped child is being educated in the regular classrooms of a public school system, the achievement of passing marks and advancement from grade to grade will be one important factor in determining educational benefit.").

The ARDC did not reject the findings in the DePelchin IEE in favor of grades and teacher reports. The ARDC discussed the IEE in detail, and assumed, in deference to the IEE,³³⁵ that Devon qualified under emotional disturbance. On the issue whether Devon needed special education, the IEE deferred to the school, stating that the ARDC was responsible for determining educational need. Nothing in the later evaluation by Dr. Simione, which was not available to the ARDC in April 2013, contradicted the 2013 ARDC's determination.

335 The DePelchin IEE stated only that it was "likely" that Devon still met the eligibility criteria of the emotionally disturbed category. Tr. 964, IEE Dated Mar. 19, 2013.

Importantly, the determination of educational need was not for an outside provider to make but was within the judgment of the ARDC. See Marshall Joint Sch. Dist. No. 2 v. C.D. ex rel. Brian D., 616 F.3d 632, 640-41 (7^th Cir. 2010)(explaining that a physician's diagnosis bears on the decision, but the "physician cannot simply prescribe special education" because that decision belongs to the team of parent(s), teacher(s), and school administrator(s)). The observations of teachers who spend time daily with Devon in the educational setting are more reliable regarding educational need than those outside providers who base their opinions on isolated in-school observations and parent-provided information and documentation. Cf. A.D. ex rel. Patricia F., 503 F.3d at 384 (finding that the testimony of teachers who observed the child's educational progress first-hand was more reliable than physician testimony); Michael F. ex rel. Barry F., 118 F.3d 253-54 (crediting the opinions of "those individuals who had the most immediate knowledge of [the student's educational] performance" including "the teachers who worked with [the student] on a daily basis").

Plaintiff contends that Devon's success was due to his parents' "intense efforts" and "extraordinary support."³³⁶ The evidence establishes that the support provided by Devon's father simply amounted to assistance in preparing to complete homework and in staying on task, as well as a significant amount of encouragement. Similar assistance and encouragement were provided to Devon at school in the general education setting.

336 Doc. 18, Pl.'s Mot. for Summ. J. p. 17; Tr. 47, Due Process Suppl.

Plaintiff's argument about the inevitability of "disastrous consequences" from not providing special education looks toward the wrong time period for assessment. The issue is whether Devon had a present need for special education at the time of the evaluation, not whether he might decompensate in the future. The special education team leader correctly explained that the ARDC's focus was on Devon's "immediate or foreseeable needs."³³⁷ In a similar vein, the unfortunate conclusion to Devon's senior year was not the inevitable consequence of the ARDC's decision and, more importantly, was not foreseeable at the end of Devon's junior year. The ARDC's decision cannot be judged in hindsight.

337 Tr. 806, ARDC Meeting Mins. Dated Apr. 15, 2013.

In the interest of monitoring Devon's progress and addressing future needs, the ARDC decided to continue the SST, which found Devon performing well in school at each of its three 2012 meetings. The ARDC discussed the other concerns of Devon's father and suggested generally available options for addressing each. The ARDC also specifically considered the educational recommendations in the IEE, ultimately deciding that those recommendations could be provided through the functioning of the SST.

The hearing officer properly considered all relevant evidence and correctly concluded that CCISD did not violate the IDEA by denying Devon special education in April 2013.

3. Child Find Obligations after April 2013

The regulations implementing the IDEA disallow raising "issues at the due process hearing that were not raised in the due process complaint" except by agreement of the parties. 34 C.F.R. § 300.511(d).

In the motion briefing before this court, Plaintiff points to two phrases in the due process complaint, arguing that they challenged CCISD's approach to Devon's education after April 2013: (1) "failure to provide necessary special education services and an appropriate transition plan for [Devon] thus resulted in a serious decline in [Devon's] ability to function;" and (2) "failed to identify [Devon] as a risk to dropping out of school and further failed to take appropriate measures to prevent this from occurring."³³⁸

338 Doc. 18, Pl.'s Mot. for Summ. J. p. 25 (quoting Tr. 48, Due Process Suppl.). --------

In context, these phrases were part of the due process complaint that listed various issues allegedly resulting from the ARDC's April 2013 decision. The sentence containing the second of the two phrases (regarding drop-out risk) ended in the allegation that CCISD violated the standards of the state education agency, not the IDEA's Child Find provisions. Additionally, the due process complaint failed to connect drop-out risk with the need for special education. The references to the IDEA's Child Find provisions in that portion of the due process complaint all related to the April 2013 decision.

This fact was confirmed during a pre-hearing conference at which the parties clarified this very point, agreeing that the Child Find argument related only to CCISD's April 2013 denial of special education services. This clarification was memorialized in an order of the hearing officer dated May 1, 2014, which stated that the only two issues to be heard were whether CCISD failed to meet its IDEA Child Find obligation by failing to identify all of Devon's disabilities in April 2013 and whether CCISD wrongly denied Devon's eligibility for special education services and a FAPE.

Only after the completion of the hearing was the contention that CCISD violated the IDEA's Child Find provisions by failing to address Devon's educational needs or to reevaluate him whenever CCISD became on notice of behavior that could indicate a disability and a need for special education. In support of the argument, seven actions during Devon's senior year were cited as violative of CCISD's Child Find obligations. However, none had been listed in the due process complaint as violations of the IDEA's Child Find provisions, and CCISD did not agree to litigate the additional issues. The hearing officer correctly enforced 34 C.F.R. § 300.511(d) to deny consideration of these new issues.

The court further notes that these issues were not raised in the complaint filed in this court. Plaintiff complained of the school's response to Devon's attendance problems, alleged the failure of the SST and communication efforts, and blamed the pre-calculus teacher's response to Devon's late work for Devon's refusal to attend class. These were presented as results of the ARDC's wrongful decision not to provide Devon with special education and did not assert that CCISD failed during that time to refer Devon for special education or for a reevaluation. Only in motion briefing before this court did Plaintiff raise that contention and list the very same seven actions listed in the hearing's written closing argument. Thus, Plaintiff failed to challenge the hearing officer's decision on that issue.

Nevertheless, the court addresses Plaintiff's concerns that Devon should have been referred to special education or reevaluated during his senior year. Regarding the failure to reevaluate Devon, one significant problem undermines Plaintiff's argument. The problem is that a reevaluation is required only if the local educational agency "determines that the educational or related services needs, including improved academic achievement and functional performance, of the child warrant a reevaluation" or if a parent or teacher requests one. The court finds no indication that CCISD determined that Devon's educational need warranted reevaluation or that one of Devon's parents or teachers requested one.

Furthermore, the court finds that the evidence does not suggest that Devon demonstrated a need for special education during his senior year. In the fall, the assistant principal sent the teachers an email that explained the concerns of Devon's father. Devon's father was in constant communication with Devon's teachers, school counselor, and assistant principal, who were responsive and helpful. The teachers gave Devon's father positive reports about Devon's academics and peer interactions and, with the exception of the pre-calculus teacher, consistently allowed Devon additional time when requested. The assistant principal immediately addressed an incident in which Devon was threatened with physical harm.

When Devon's father requested Section 504 reconsideration, the process began immediately, and Section 504 accommodations allowing additional time on assignments and tests were reinstated for the spring semester. When Devon's father requested an SST meeting, one was held within a few days. When Devon's father requested accommodations for Devon due to anxiety during finals, including the ability to make up missed examinations, the teachers were receptive and allowed Devon to complete his schoolwork.

At the end of the semester, Devon's grades were three As, three Bs, and one C. Devon's father viewed the process as evidence of the failure of the SST and of the communication with the school personnel. However, that is not the case; the efforts and flexibility of the school personnel and the allowance of accommodations as needed resulted in Devon's successful completion of the semester with passing grades.

Near the end of the fall semester, Devon's school counselor and assistant principal rearranged Devon's schedule so that he did not have a first period class in the spring semester. When the spring semester began, absences were an immediate problem. Devon's father attributed them to anxiety, but Devon attributed them to his desire to remain home rent free without having to go to school or to work. Devon's school counselor, assistant principal, and at least one teacher reached out to Devon in an attempt to re-engage him in school. The school counselor and the assistant principal attempted to meet with him but his absences thwarted their efforts.

Devon was offered online options to complete his classes with minimal attendance. As the semester progressed and Devon stopped attending all but one of his classes, the school counselor encouraged Devon to complete his high school education and offered online options for doing so. Devon received letters of recommendation for college and assistance with the application process.

The court finds no indication that CCISD determined that Devon's educational need warranted reevaluation or that special education would help him with his attendance issues. CCISD's efforts during Devon's senior year were more than sufficient to satisfy the IDEA's Child Find provisions.

IV. Conclusion

For the reasons explained above, the court finds that a preponderance of evidence supports the decision reached by the hearing officer, and her decision should be affirmed. The court RECOMMENDS that Defendant's motion be GRANTED and Plaintiff's motion be DENIED.

The Clerk shall send copies of this Memorandum and Recommendation to the respective parties who have fourteen days from the receipt thereof to file written objections thereto pursuant to Federal Rule of Civil Procedure 72(b) and General Order 2002-13. Failure to file written objections within the time period mentioned shall bar an aggrieved party from attacking the factual findings and legal conclusions on appeal.

The original of any written objections shall be filed with the United States District Clerk electronically. Copies of such objections shall be mailed to opposing parties and to the chambers of the undersigned, 515 Rusk, Suite 7019, Houston, Texas 77002.

SIGNED in Houston, Texas, this 16^th day of August, 2016.

/s/_________

U.S. MAGISTRATE JUDGE