Department of Educ., State of Hawaii v. Katherine D. By and Through Kevin and Roberta D.

• Decision Date: 24 February 1984
• Docket Number: No. 82-4096,82-4096
• Citation: 727 F.2d 809
• Parties: 16 Ed. Law Rep. 378 DEPARTMENT OF EDUCATION, STATE OF HAWAII, Plaintiff, v. KATHERINE D., a minor, By & Through her natural parents & legal guardians, KEVIN & ROBERTA D., Defendants-Counterclaimants-Appellees, Department of Education, State of Hawaii & Donnis Thompson, in her capacity as Superintendent of Education, Counterclaimants-Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 809

727 F.2d 809

16 Ed. Law Rep. 378

DEPARTMENT OF EDUCATION, STATE OF HAWAII, Plaintiff, v. KATHERINE D., a minor, By & Through her natural parents &

legal guardians, KEVIN & ROBERTA D.,

Defendants-Counterclaimants-Appellees,

Department of Education, State of Hawaii & Donnis Thompson,

in her capacity as Superintendent of Education,

Counterclaimants-Defendants-Appellants.

No. 82-4096.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 21, 1982.

Decided Nov. 7, 1983.

As Amended Feb. 24, 1984.

Charleen M. Aina, Honolulu, Hawaii, for counterclaimants-defendants-appellants.

Paul Alston, Honolulu, Hawaii, for defendants-counterclaimants-appellees.

Appeal from the United States District Court for the District of Hawaii.

Before CANBY, NORRIS and REINHARDT, Circuit Judges.

NORRIS, Circuit Judge:

The Department of Education of the State of Hawaii (DOE), appeals from a district court judgment, 531 F.Supp. 517, holding it responsible for Katherine D.'s tuition at a private school. For the school years 1980-81 and 1981-82, Katherine had sought the "free appropriate public education" to which she was entitled under the Education for All Handicapped Children Act of 1975 (EAHCA or Act), 20 U.S.C. Sec. 1401 et seq. (1976). The district court found that the DOE's offers of education for both years were inadequate under the Act and that, consequently, Katherine's parents were entitled to tuition reimbursement for the private school Katherine attended during that time. We affirm the district court's judgment as to the 1980-81 school year but reverse the 1981-82 component. We also reverse the district court's award of attorneys' fees.

I Facts

Katherine, who was born in 1976, suffers from cystic fibrosis and tracheomalacia, which cause her windpipes to be floppy instead of rigid. Since 1978, Katherine has worn a tracheostomy tube, which allows her to breathe and to expel mucus secretions from her lungs two or three times a day. She is unable to vocalize normally, but has received speech therapy and since February 1981 has been able to speak very softly.

In the summer of 1980, Katherine was certified by the DOE as eligible for special education services under the EAHCA. As required by the Act, the DOE offered an Individualized Educational Program (IEP) to Katherine prior to the beginning of the 1980-81 school year. Based on the recommendation of its physician, the DOE determined that the medical services Katherine might require could not be provided at a public school and therefore proposed a homebound program consisting of speech therapy and parent counseling. Katherine's parents rejected the IEP and initiated a due process hearing under the provisions of 20 U.S.C. Sec. 1415(b)(2). During the course of that proceeding, Katherine continued to attend St. Philomena's Child Care Center, where she had been enrolled since 1979. Katherine's attendance at this private preschool was contingent on the presence of her mother. Mrs. D. was a teacher at St. Philomena's and thus was always available to provide for Katherine's health needs.

In October 1980 the administrative hearing officer decided that the DOE's offer of a homebound program did not constitute a "free appropriate public education" as required by section 1412(1) of the EAHCA because it did not provide for Katherine's placement in the "least restrictive environment" possible. He concluded that Katherine should continue to attend St. Philomena's and ordered the DOE to pay for her tuition there. The DOE refused to follow the hearing officer's order and, in November 1980, filed a petition for review by the district court under 20 U.S.C. Sec. 1415(e)(2). Katherine counterclaimed for enforcement of the hearing officer's order, attorneys' fees, and costs.

After the hearing officer had reached a decision, but before the trial in the district court, the DOE submitted an IEP for the 1981-82 school year to Katherine's parents. Under this IEP, the DOE proposed that Katherine attend Moanalua Elementary School and receive emergency health services, when needed, through the school's staff. The IEP outlined a plan to train the staff to dispense Katherine's medication, suction her lungs, and reinsert her tube should it become dislodged. The first of two planned training sessions was conducted by Dr. Light, Katherine's physician, on September 9, 1981.

During this training session, Dr. Light formed the impression that the staff was reluctant to perform the necessary emergency health services for Katherine. He consequently recommended that Katherine not be sent to Moanalua.

A short time later, three unions representing Moanalua employees filed grievances with the DOE seeking clarification whether their contracts required them to perform health services for Katherine or similarly situated students. Those grievances had not been resolved by the time of trial.

The district court affirmed the findings of the hearing officer as to the 1980-81 school year and held that the DOE had not made an adequate offer for a "free appropriate public education" for either 1980-81 or 1981-82. The district court thus ordered the DOE to reimburse Katherine's parents for the cost of enrolling her in private school during both years, ¹ and granted attorneys' fees to appellees. The DOE appeals on all counts.

II Did the DOE Offer Katherine a "Free Appropriate Public Education"?

The EAHCA "both funds and regulates state assistance to handicapped students." Mountain View-Los Altos Union High School Dist. v. Sharron B.H., 709 F.2d 28, 29 (9th Cir.1983). Under section 1412(1) of the EAHCA, a state may qualify for federal assistance for special education programs only if it "has in effect a policy that assures all handicapped children the right to a free appropriate public education." The term "free appropriate public education" is defined as special education plus such "related services" "as may be required to assist a handicapped child to benefit from special education." 20 U.S.C. Sec. 1401(17), (18). The term "related services" is further defined by regulation to include "school health services," i.e., "services provided by a qualified school nurse or other qualified person." 34 C.F.R. Sec. 300.13(b)(10) (1982). Katherine's need both for speech therapy and for maintenance of her tracheostomy tube falls within these definitions. See Hymes v. Harnett County Board of Education, 664 F.2d 410 (4th Cir.1981) (replacement of tracheostomy tube and suctioning of mucus assumed to be "related services" school board was obligated to provide). Under section 1412(5)(B) of the Act, furthermore, participating states must establish "procedures to assure that, to the maximum extent appropriate, handicapped children ... are educated with children who are not handicapped," and that handicapped children are not removed from the "regular educational environment" unless "the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily ...."

These provisions set forth the DOE's obligations in offering Katherine a special education program under the EAHCA. Noticeably absent from the Act is any requirement that the DOE provide the best possible education for the eligible handicapped child. Because budgetary constraints limit resources that realistically can be committed to these special programs, the DOE is required to make only those efforts to accommodate Katherine's needs that are "within reason." Tokarcik v. Forest Hills School Dist., 665 F.2d 443, 455 (3d Cir.1981), cert. denied, 458 U.S. 1121, 102 S.Ct. 3508, 73 L.Ed.2d 1383 (1982) (related services). As noted by the Supreme Court in its first interpretation of the terms of the EAHCA,

furnishing handicapped children with only such services as are available to nonhandicapped children would in all probability fall short of the statutory requirement of "free appropriate public education"; to require, on the other hand, the furnishing of every special service necessary to maximize each handicapped child's potential is, we think, further than Congress intended to go.

Board of Education v. Rowley, 458 U.S. 176, 198, 102 S.Ct. 3034, 3047, 73 L.Ed.2d 690 (1982) (emphasis added) (holding that the EAHCA does not require the states "to maximize the potential of each handicapped child commensurate with the opportunity provided nonhandicapped children"). The Court concluded

that the "basic floor of opportunity" provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.

Id. at 201, 102 S.Ct. at 3048. See also Doe v. Anrig, 692 F.2d 800, 806 (1st Cir.1982) (in determining appropriate placement of an individual handicapped child, the child's needs must be weighed against the realities of limited public monies).

We turn now to a consideration of the appropriateness of the IEP's the DOE offered to Katherine D. ² In determining whether the DOE's proposed programs met the statutory standard, we consider the two relevant school years separately because the programs offered in 1980-1981 and 1981-1982 were significantly different. We hold that the DOE's offer for 1980-81 was inadequate but that the 1981-82 plan offered Katherine a "free appropriate public education."

A. 1981-82 School Year ³

For the 1981-82 school year, the DOE offered to enroll Katherine in a regular public school program and to train the school staff to respond to her medical needs. The district court held that this offer did not satisfy the EAHCA's "free appropriate public education" requirement because

the attitude of the school's personnel toward the plan made it completely unworkable and ineffectual [and] the plan self-destructed with the filing of the grievance by the school administrators and teachers involved.

Appellees agree with the district court's conclusion, arguing that...