Dibuo ex rel. Dibuo v. Board of Educ. of Worcester
| Decision Date | 28 October 2002 |
| Docket Number | No. 01-2473.,No. 02-1124.,01-2473.,02-1124. |
| Citation | 309 F.3d 184 |
| Parties | Mark DiBuo, a minor, by his parents and next friends, James and Wendy DiBuo; James DiBuo; Wendy DiBuo, Plaintiffs-Appellees, v. Board of Education of Worcester County; Jon Andes, Officially, Defendants-Appellants. Mark DiBuo, a minor, by his parents and next friends, James and Wendy DiBuo; James DiBuo; Wendy DiBuo, Plaintiffs-Appellees, v. Board of Education of Worcester County; Jon Andes, Officially, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Phillip Tyson Bennett, Reese & Carney, L.L.P., Annapolis, Maryland, for Appellants. Wayne Darryl Steedman, Callegary & Steedman, P.A., Baltimore, Maryland, for Appellees. ON BRIEF: Eric C. Brousaides, Reese & Carney, L.L.P., Columbia, Maryland, for Appellants.
Before MICHAEL, Circuit Judge, HAMILTON, Senior Circuit Judge, and Claude M. HILTON, Chief United States District Judge for the Eastern District of Virginia, sitting by designation.
Vacated and remanded with instructions by published opinion. Senior Judge HAMILTON wrote the opinion, in which Judge MICHAEL and Chief Judge HILTON joined.
In this action arising under the Individuals with Disabilities Education Act (the IDEA), 20 U.S.C. §§ 1400 et seq., Mark DiBuo (Mark), a minor child, and his parents, James and Wendy DiBuo, (collectively the DiBuos) sought $2,707.00 in reimbursement from the Board of Education of Worcester County, Maryland and its superintendent in his official capacity, Jon Andes, (collectively the School District) for the costs associated with the private placement of Mark in speech/language therapy and occupational therapy through Easter Seals during the summer of 2000.1 The district court granted summary judgment in favor of the DiBuos and awarded them $58,567.48 in attorneys' fees and other costs, pursuant to the IDEA's fee-shifting provision, 20 U.S.C. § 1415(i)(3)(B). For reasons that follow, we vacate the district court's judgment, vacate the award of attorneys' fees and other costs, and remand the case for further proceedings in accordance with this opinion.
The following facts are not in dispute. Mark was born on December 19, 1996. By age three, Mark exhibited interfering behaviors that impacted his ability to benefit from a normal educational program. The interfering behaviors included "great difficulty `attending' to a task, the inability to focus, squirming, kicking, hitting, moving away and otherwise not cooperating with learning strategies." (J.A. 392). Mark's problems led his parents to seek IDEA services for him from the School District. As a result, on February 8, 2000, an Individualized Education Program (IEP) team met regarding Mark.2 At this meeting, all agreed that Mark should be considered a student with a speech/language disability who requires special education services in order to receive a FAPE. Thus, on February 17, 2000, Mark began an interim placement at Buckingham Elementary School in the Language Stimulation Program for three year olds, pending another meeting of Mark's IEP team (Mark's IEP Team).
Mark's disability is classified as "Pervasive Developmental Disorder" (PDD), and it is suspected that he may also have neurofibromatosis. His PDD was diagnosed by expert physicians at the A.I. DuPont Hospital for children in March 2000. The A.I. DuPont physicians determined that Mark has a rather significant disability with language and also problems with auditory processing that were causing some behavioral problems. The A.I. DuPont physicians also determined that Mark's disability required that he receive speech/language therapy and occupational therapy.
From February 17, 2000 until March 29, 2000, Mark made remarkable progress in his Speech/Language Stimulation Program at Buckingham Elementary School, such that he became able to accompany his family to restaurants. After completion of an educational assessment by Holly Hermstedt, Mark's classroom teacher at Buckingham Elementary School, Mark's IEP Team met again on March 29, 2000 (the March 29, 2000 IEP Meeting) in order to prepare a formal IEP. At this meeting, Mark's IEP Team considered a speech/language and occupational therapy assessment conducted by Easter Seals in November 1999, as well as the educational assessment conducted by Holly Hermstedt. Based upon this information, Mark's IEP Team concluded that Mark's interfering behaviors and educational needs required speech/language therapy and occupational therapy. Thus, at the March 29, 2000 IEP Meeting, the School District members of Mark's IEP Team proposed an IEP for him (the Proposed IEP), which contained specific objectives to address Mark's weaknesses.3 In order to meet these specific objectives, the Proposed IEP provided that Mark should participate twelve hours per week in the Buckingham Language Stimulation Program4; receive one hour per week of speech/language therapy; and receive one hour per week of occupational therapy.
Mark's parents, for their part, agreed with the Proposed IEP as far as it went, but expressed their strong feelings that Mark should receive ESY Services during the summer of 2000. In support of their position, Mark's parents produced written evaluations from the following professionals: (1) Stephen Falchek, M.D., (Dr. Falchek) dated December 27, 1999, March 14, 2000, and March 23, 2000; (2) Susan Stine, M.D., (Dr. Stine) dated March 7, 2000; and (3) Jill Linden, Ph.D. in psychology, (Dr. Linden) undated.5 In one of his evaluations, Dr. Falchek stated that he feared that Mark would "lose significant ground" if he did not receive ESY Services during the summer of 2000. (J.A. 44). In another of Dr. Falchek's evaluations, he opined that Mark should receive ESY Services for the summer of 2000 because Mark was "quite tenuous" in his development. (J.A. 43). Dr. Stine recommended that Mark be considered for ESY Services during the summer of 2000. Dr. Linden opined that "it is important that [Mark] continue in a school program that includes classroom time plus speech and occupational therapies all year round, with no summer break." (J.A. 33).
The School District members of Mark's IEP Team staunchly refused to read or review any of these professional evaluations submitted by Mark's parents. According to Kathy Simon, a representative of the Worcester County School System who was present at the March 29, 2000 IEP Meeting, the School District members of Mark's IEP Team refused to consider the evaluations because they believed that Mark was simply not eligible for ESY Services.
Mark's parents refused to sign the Proposed IEP because it did not include ESY Services for the summer of 2000. Nevertheless, with the consent of his parents, Mark continued to receive interim services for the remainder of the regular 1999-2000 school year that were basically consistent with those contained in the Proposed IEP. Then, at their own expense, Mark's parents obtained speech/language therapy and occupational therapy for Mark through Easter Seals during the summer of 2000.6
On October 19, 2000, the DiBuos requested a due process hearing before an administrative law judge (the ALJ) to consider their claim that the School District must reimburse them for the ESY Services (speech/language therapy and occupational therapy) that they privately obtained for Mark during the summer of 2000.7 On November 9, 2000, the School District responded with a motion to dismiss and an alternative motion for a summary decision. The DiBuos opposed these motions and on November 16, 2000, filed their own motion for summary decision.
On December 1, 2000, the ALJ denied the parties' respective motions and set the case for a full hearing on the merits. At the hearing, which was conducted on December 7 and 8, 2000, the ALJ heard testimony and received exhibits on behalf of the respective parties.
On January 5, 2001, the ALJ issued a final decision. Of relevance in the present appeal, the ALJ found that the staunch refusal of the School District members of Mark's IEP Team to consider the DiBuos' ESY Services Evaluations at the March 29, 2000 IEP Meeting, violated the IDEA's related mandates that the parents of a child under review be afforded the opportunity to participate in all IEP team meetings and that the IEP team review all evaluations and information provided by parents of a child under review. 20 U.S.C. §§ 1414(c)(1)(A), 1415(b); see also 34 C.F.R. § 300.502(c). Then, citing our decision in Gadsby v. Grasmick, 109 F.3d 940 (4th Cir.1997), for the proposition that not every procedural violation of the IDEA warrants granting the relief requested, the ALJ also found that Mark "was not denied [a] FAPE as a result, because the evidence [did] not establish that ESY [S]ervices were warranted under the legal standard." 8 (J.A. 399). The ALJ made this finding after considering and analyzing the expert written opinions and testimony offered by the DiBuos during the hearing (which included the DiBuos' IEP Services Evaluations) and the expert testimony offered by the School District at the hearing. Near the end of the ALJ's final decision, she formally concludes that the Proposed IEP offered Mark a FAPE. Accordingly, the ALJ declined to grant the DiBuos the reimbursement they were seeking.
As parties aggrieved by the ALJ's final decision, the DiBuos filed the present civil action against the School District, pursuant to 20 U.S.C. § 1415(i)(2)(A), in the United States District Court for the District of Maryland. On cross motions for summary judgment, the district court granted the DiBuos' motion for summary judgment and denied the School District's motion for summary judgment. Thus, the district court ordered the School District to pay the DiBuos the reimbursement they were seeking, and also awarded the DiBuos $58,567.48 in attorneys' fees and other costs pursuant to the IDEA's fee-shifting provision.
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