Burilovich v. Bd. Edu. Lincoln Consol. Schools, PLAINTIFFS-APPELLANT

• Decision Date: 04 November 1999
• Docket Number: DEFENDANTS-APPELLEES,No. 98-2187,V,PLAINTIFFS-APPELLANT,98-2187
• Citation: 208 F.3d 560
• Parties: (6th Cir. 2000) EDWIN BURILOVICH; LINDA BURILOVICH, AS NEXT FRIENDS ON BEHALF OF THEIR SON, BRADLEY BURILOVICH,BOARD OF EDUCATION OF THE LINCOLN CONSOLIDATED SCHOOLS; RON GREINER, INDIVIDUALLY, Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 560

208 F.3d 560 (6th Cir. 2000)

EDWIN BURILOVICH; LINDA BURILOVICH, AS NEXT FRIENDS ON BEHALF OF THEIR SON, BRADLEY BURILOVICH, PLAINTIFFS-APPELLANTS,

V.

BOARD OF EDUCATION OF THE LINCOLN CONSOLIDATED SCHOOLS; RON GREINER, INDIVIDUALLY, DEFENDANTS-APPELLEES

No. 98-2187

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: November 4, 1999

Decided and Filed: April 4, 2000

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 97-72191--Bernard A. Friedman, District Judge. [Copyrighted Material Omitted] Richard J. Landau (argued and briefed), Dykema Gossett, Ann Arbor, Michigan, for Plaintiffs-Appellants.

Michael A. Eschelbach (argued and briefed), Timothy R. Winship (briefed), Thrun, Maatsch & Nordberg, Lansing, Michigan, for Defendants-Appellees.

Before: Keith, Norris, and Clay, Circuit Judges.

OPINION

Alan E. Norris, Circuit Judge

Plaintiffs Edwin Burilovich and Dr. Linda Burilovich ("plaintiffs"), acting on behalf of their autistic son Bradley ("B.J."), sued the Board of Education of the Lincoln Consolidated Schools and its special education director ("defendants") under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et. seq. Plaintiffs challenge the district court's grant of summary judgment for defendants, maintaining that a proposal to place B.J. in a mainstream kindergarten violated procedural and substantive provisions of the IDEA. For the following reasons, we affirm the judgment of the district court.

I.

B.J. was born on November 15, 1990. At an early age, his parents noticed that his language skills were significantly delayed. When he was three, plaintiffs sought assistance from their local school district, Lincoln Consolidated Schools. B.J. was evaluated by a Multidisciplinary Evaluation Team ("MET") at Willow Run Community Schools, which was providing Preprimary Impaired ("PPI") services for Lincoln. The MET generated an Individualized Education Program ("IEP"), providing B.J. with nonclassroom PPI services, along with speech and language therapy.

On February 24, 1994, B.J. was evaluated by Dr. Luke Tsai at the University of Michigan Adult/Child Psychiatric Hospitals. Suzanne Boyer, B.J.'s teacher, was present for the last part of the appointment. Dr. Tsai diagnosed B.J. as autistic; Dr. Burilovich later hand-delivered a copy of Dr. Tsai's evaluation to Ms. Boyer. This evaluation was not placed in B.J.'s school file.

Plaintiffs began researching educational approaches to treating autism. They learned of an approach developed by Dr. Ivar Lovaas, called discrete trial training ("DTT"). DTT emphasizes heavy parental involvement, early intervention, and treatment in the home and elsewhere in the community, rather than in professional settings. Plaintiffs started a home-based DTT program for B.J.

In June 1994, Dr. Burilovich wrote to Willow Run's Superintendent, Dr. Yomtoob, expressing her concerns about the downsizing of the Willow Run infant-toddler program and B.J.'s being given only three hours of instruction a week. That letter also indicated that B.J. was autistic.

In September 1994, Lincoln notified B.J.'s parents that it was transferring B.J. from the Willow Run program to the Lincoln PPI program. On October 1, 1994, the parents consulted with Dr. Patricia Meinhold, a psychology professor at Western Michigan University, who concluded that B.J. was an appropriate candidate for DTT and suggested the parents request assistance from their school district. An IEP Committee meeting ("IEPC") was held with the school. The resulting IEP placed B.J. in the district's PPI program 2.5 hours a day, four days a week, with 40-80 minutes per week of speech and language therapy. The parents requested that part of B.J.'s school time be used for DTT, but the district did not include DTT in the IEP. B.J.'s teacher Betsy McMillin offered to, and did, provide DTT therapy for a half hour before the school day began.

B.J.'s home program continued to develop. By Thanksgiving he was receiving at least 20 hours per week of DTT. The parents decided to reduce B.J.'s school participation to two days a week following Christmas vacation; his time spent on DTT increased to 20-25 hours a week. According to plaintiffs, in the first half of 1995, B.J. made progress with his language and imitative skills, but was not involved in classroom activities. By the last half of 1995, B.J. was averaging 25-30 hours of home-based DTT. On November 28, 1995, Mr. Burilovich visited B.J.'s classroom and made a videotape. The parents maintain that the behavior on the videotape confirmed Dr. Burilovich's concerns that B.J.'s behavior in school was more regressed than at home.

On July 1, 1995, defendant Ronald Greiner became the Director of Special Education for the Lincoln Consolidated Schools. He began working with the Burilovich family in the fall of 1995 and an IEPC for B.J. was held on December 1, 1995. On December 7, 1995, Mr. Greiner sent a letter to plaintiffs memorializing conversations he had with them and setting out the district's perspective on an appropriate program for B.J. The letter also indicated that the parents had mentioned they were having some medical evaluations completed addressing autism, and asked for access to that information. In response, plaintiffs requested an independent educational evaluation ("IEE") by Dr. Meinhold. Plaintiffs later provided Mr. Greiner with a copy of Dr. Tsai's March 1994 evaluation. In January 1996, Mr. Greiner initiated an evaluation of B.J. for autism. The evaluation included some home observation by the school psychologist, school social worker, and Mr. Greiner.

Another IEPC was scheduled for March 18, 1996. Before that meeting, Dr. Meinhold submitted a report that included a formal written program proposal for B.J. At the meeting, Mr. Greiner proposed a program predominantly consisting of DTT, accepting the goals and objectives developed by Dr. Meinhold, and providing for staff training by Dr. Meinhold. According to Mr. Greiner, he proposed the plan involving DTT because he wanted to avoid conflict and a due process hearing. The staff, however, did not support the proposal. While most of the meeting was taped, the proposal was not written in a formal IEP. The parties disagree over the reason why there was no written document. Nonetheless, the participants left with the understanding that Dr. Meinhold would begin training the staff the next week. That training session was later canceled, according to Mr. Greiner, because of recent snow days.

After the meeting, Mr. Greiner realized that the staff did not think DTT was a good program for B.J. Mr. Greiner met privately with his staff on April 16 and 26, 1996 to discuss DTT and develop a new proposal. A proposal was drafted and sent to the parents, with goals similar to those proposed by Dr. Meinhold, but without any DTT. Instead, the proposal placed B.J. in a mainstream kindergarten class with one-to-one support from a trained paraprofessional.

An IEPC was scheduled for May 17, 1996, to which Dr. Meinhold was not invited. At the May IEPC, plaintiffs had serious concerns about placing B.J. in a mainstream kindergarten program without any DTT and discussed why the proposal differed from the March proposal for B.J. According to defendants, Mr. Greiner tried to explain the rationale for the proposal, but the parents were not interested in hearing details. Plaintiffs signed the IEPC, noting their disagreement, on May 23, 1996.

Pursuant to the IDEA, the parents requested an impartial due process hearing before a local hearing officer ("LHO"). The LHO decided in favor of B.J.'s parents, finding that the March 1996 oral proposal was an IEP that should be implemented, and directing the district to reimburse the parents for the expenses of providing DTT at home. Both parties appealed aspects of the decision. The state hearing review officer ("SHO") reversed the LHO, finding that no IEP had been created in March and the May IEP was valid. The SHO determined that the May IEP was developed without procedural or substantive violations and provided a free appropriate public education ("FAPE") designed to maximize B.J.'s potential, in accordance with federal and state law. The SHO also denied reimbursement to the parents.

Plaintiffs filed a complaint in district court appealing the SHO's determination and alleging violations of the IDEA, the Rehabilitation Act of 1973, the Americans with Disabilities Act, 42 U.S.C. § 1983, and the Michigan Handicappers' Civil Rights Act. Defendants filed a motion for summary judgment addressing all counts of the complaint; plaintiffs filed a motion for partial summary judgment addressing their IDEA claim. The district court granted defendants' motion and denied plaintiffs' motions for partial summary judgment and for reconsideration. The court determined that the parents had the burden of proof. Looking at specific issues raised, the court first held that the timing of B.J.'s recertification as autistic was acceptable. Second, the court determined that the district had conducted a proper evaluation of B.J. and the professionals involved were qualified. Third, the court found that B.J.'s parents were sufficiently included in the IEPC process. Fourth, the court found that the district's proposal was designed to address B.J.'s unique needs. Finally, after an independent review of the evidence, the court agreed with the SHO that the May IEP allowed B.J. to attain his maximum potential. Because the school's IEP was appropriate, the court held that the parents were not entitled to reimbursement. The court dismissed the remaining claims, holding that they failed because the court had found in defendants' favor as to the IEP.

The district court apparently believed that the parties had submitted the case for review of the administrative decision on the record. Because plaintiffs dispute that the case was submitted in that...