8 F.3d 369 (6th Cir. 1993), 92-1148, Phelan v. Bell

Docket Nº:of Terry Phelan, Plaintiff-Appellant (92-1148),
Citation:8 F.3d 369
Party Name:Susan PHELAN, individually and in her capacity as guardian
Case Date:October 26, 1993
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 369

8 F.3d 369 (6th Cir. 1993)

Susan PHELAN, individually and in her capacity as guardian

of Terry Phelan, Plaintiff-Appellant (92-1148),



George BELL (92-1218) and Wayne-Westland Community Schools

(92-1322), Defendants-Appellees, Cross-Appellants,

Michigan Protection and Advocacy Service, Inc., Proposed Intervenor.

Nos. 92-1148, 92-1218 and 92-1322.

United States Court of Appeals, Sixth Circuit

October 26, 1993

Argued March 25, 1993.

Rehearing and Suggestion for Rehearing

En Banc Denied Dec. 8, 1993.

Page 370

Richard J. Landau, Dykema, Gossett, Spencer, Goodnow & Trigg, Ann Arbor, MI (argued and briefed), for Susan and Terry Phelan.

Page 371

Thomas H. Schwarze, Robert A. Lusk (argued and briefed), Keller, Thoma, Schwarze, Schwarze, Dubay & Katz, Detroit, MI, for George Bell.

Stewart R. Hakola, Michigan Protection & Advocacy Service, Marquette, MI, for Michigan Protection and Advocacy Service, Inc.

Russell S. Slatkin (briefed), Stewart Slatkin, Collins, Blaha & Slatkin, Southfield, MI, for Wayne-Westland Community Schools.

Before: KENNEDY and SUHRHEINRICH, Circuit Judges; SPIEGEL, District Judge. [*]

SUHRHEINRICH, Circuit Judge.

Plaintiff Susan Phelan challenges the district court's order awarding only a portion of her attorney's fees from administrative proceedings brought under the Individuals With Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1485. For the following reasons, we AFFIRM in part, and REVERSE in part.


Plaintiff Susan Phelan is the mother of Terry Phelan, a severely handicapped eighteen-year old boy. Terry engages in severe Self-Injurious Behavior (SIB) by striking his head up to 120 times per minute.

The Wayne-Westland Community School District, Terry's resident district, contracts with the Northville Public Schools to care for and educate Terry. Concerned that Northville's programs were not sufficient to control Terry's SIB, plaintiff sought alternative treatments and learned of the Self-Injurious Behavior Inhibiting System (SIBIS), an electronic device that straps to the head and generates a mild, brief electrical shock in response to each instance of SIB.

In October 1989, the schools held an Individual Educational Planning Conference (IEPC) for Terry. See 34 C.F.R. § 300.343 (1992); Michigan Admin.Code R. 340.1721c (Supp.1987) (requiring IEPC for disabled children). During the IEPC, the schools proposed an Individualized Education Program (IEP) for Terry which would have continued prior ineffective programs. Dissatisfied, plaintiff proposed use of SIBIS. Northville's Human Rights and Behavior Modification Review Committee refused to authorize SIBIS because it violated school guidelines against the use of contingent electric shock, as well as Michigan's Corporal Punishment Act, Mich.Comp.Laws Ann. § 380.1312 (West Supp.1992). 1

In response to Northville's decision, plaintiff filed a complaint in district court on November 13, 1989, seeking declaratory and injunctive relief requiring use of SIBIS. 2 On November 21, 1989, the district court dismissed this action without prejudice, and directed plaintiff to exhaust her administrative remedies. The following day, administrative hearings began, during which plaintiff argued that Terry's present IEP was inadequate and that SIBIS was necessary to treat Terry's SIB. On December 26, 1989, plaintiff filed a second suit seeking the same relief as the first, as well as a preliminary injunction requiring use of SIBIS. The district court refused to issue the injunction, and the hearings continued.

After plaintiff concluded her presentation, defendants proposed a new IEP using an "educative" approach not yet pursued. The

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Michigan Protection and Advocacy Service (MPAS) intervened and proposed a second new approach called "functional communication training." Neither proposal included SIBIS. Plaintiff continued to urge the use of SIBIS.

After the hearings concluded, the hearing officer issued his decision, which summarizes the issues as follows:

  1. What is an appropriate IEP for Terry which will meet his unique needs and the requirements of both the [IDEA] and Michigan's Mandatory Special Education Act (MMSEA)?

    . . . . .

  2. Does Michigan's Corporal Punishment Act ... prohibit utilization of the SIBIS device ...?

    . . . . .

  3. Do the Northville School District's "Guidelines for the Use of Behavioral Techniques" ... prohibit utilization of the SIBIS device ...?

    . . . . .

  4. If the SIBIS device is utilized as a component of a student's behavior management program, does it constitute a "related service" within the meaning of [the IDEA], MMSEA, or both, and, if so, must it be provided at no cost to the parent?

    As to the first issue, the hearing officer held that an appropriate IEP for Terry must include the approaches proposed by defendants and the MPAS, and ordered the parties to hold an IEPC to implement these approaches. The hearing officer did not order the use of SIBIS, but as to issues two and three, the hearing officer did find that neither Michigan's Corporal Punishment Act nor the school guidelines prohibited SIBIS. The officer added that the device could be used only after all reasonable alternatives had failed. Finally, the hearing officer held that SIBIS was not a "related service" under the IDEA.

    In June 1990, an IEPC was held to develop the new IEP. Plaintiff objected to certain specifics of the IEP. On September 21, 1990, the hearing officer issued a second decision which addressed plaintiff's objections, but left the first decision otherwise unchanged. The parties agreed to the final IEP on November 28, 1990.

    On August 23, 1990, plaintiff filed a motion for attorney's fees under IDEA, 20 U.S.C. § 1415(e)(4)(B). 3 On December 26, 1990, the district court dismissed plaintiff's second complaint without prejudice. 4 On December 27, 1990, plaintiff sought a hearing on her motion for attorney's fees. The district court...

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