Pihl v. Massachusetts Dept. of Educ.

• Decision Date: 10 September 1993
• Docket Number: No. 93-1414,93-1414
• Citation: 9 F.3d 184
• Parties: , 87 Ed. Law Rep. 341, 3 ADD 1042 Karl PIHL, et al., Plaintiffs, Appellants, v. MASSACHUSETTS DEPARTMENT OF EDUCATION, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 184

9 F.3d 184

62 USLW 2334, 87 Ed. Law Rep. 341, 3

ADD 1042

Karl PIHL, et al., Plaintiffs, Appellants, v. MASSACHUSETTS DEPARTMENT OF EDUCATION, et al., Defendants, Appellees.

No. 93-1414.

United States Court of Appeals, First Circuit.

Heard Sept. 10, 1993.

Decided Nov. 16, 1993.

Robert G. Burdick with whom Darryl J. Dreyer and Louis Aucoin were on brief, for plaintiffs, appellants.

Regina Williams Tate with whom Lorna M. Hebert was on brief, for defendants, appellees City of Lowell, Lowell School Committee and George Tsandikos, Special Education Administrator.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and BARBADORO, ^* District Judge.

COFFIN, Senior Circuit Judge.

Plaintiffs Karl and Diane Pihl filed this lawsuit in 1987, alleging that defendants Massachusetts Department of Education, Lowell School Committee, City of Lowell and Lowell Special Education Administrator George Tsandikos denied educational services due Karl as a disabled child. They now appeal from a district court order dismissing their complaint for failure to state a claim upon which relief could be granted, presumably because moot, since the challenged educational plan had expired four years earlier, and Karl had since passed the age of entitlement for services. We conclude, after review of the authorities, that the Individuals with Disabilities Education Act (IDEA) ¹ empowers courts to grant a remedy in the form of compensatory education to disabled students who are beyond the statutory age of entitlement for special education services, and that Karl Pihl has alleged facts which, if proven, state a claim for relief. We therefore reverse the district court's decision to dismiss, and remand for determination of the merits of his claim.

I. Factual Background ²

Plaintiff Karl Pihl is a twenty-seven-year-old man who is emotionally disturbed and retarded, and who suffers from profound hearing loss and speech deficiencies. Karl began receiving special education services at the age of four, and attended a number of different programs over the years. The local school system was obligated by state and federal law to provide these services to him. See infra at 187. During the 1983 school year, Karl participated in a residential/educational program for multi-handicapped deaf students at the Perkins School for the Blind, but was terminated due to aggressive behavior. He was placed at the Lighthouse School, a private day facility, on an interim basis, until an appropriate residential program could be found. In June 1985, dissatisfied with the educational services Karl was receiving at the Lighthouse School, Karl's mother Diane removed him from school and kept him at home, under the care of two twenty-four hour attendants. While the Pihls paid for twenty-four hour care, the school system held his place open at the Lighthouse School, continuing to search for an appropriate program, or ways to adapt the Lighthouse School program to meet Karl's needs.

In 1986, when Karl was nineteen, his mother requested a due process hearing before the Board of Special Education Appeals (BSEA) to review her claim that Karl was not receiving the educational services to which he was entitled by law. Following the hearing, held on July 15, 1986, Mrs. Pihl and the Lowell Public Schools signed a consent decree requiring the school district to provide interim services to Karl while an appropriate residential placement was sought. ³ The interim agreement was to end on November 30, 1986, or earlier, if Karl were placed in a residential program acceptable to his parent, or ordered by a hearing officer, or if the agreement was terminated by order of the hearing officer. The hearing officer was to retain jurisdiction, and the hearing would reconvene if Lowell had not presented a program willing to accept Karl by that date. The hearing also would reconvene at either party's request, or if Diane Pihl were to reject a proposed program.

On January 28, 1987, the hearing was reconvened on plaintiffs' motion, and the Massachusetts Department of Education (DOE) was joined as a party. Plaintiffs sought an order that an appropriate program be created for Karl, because no existing appropriate educational facility had been found for him. The BSEA issued an order the next day, January 29, requiring Lowell to create a home-based program. The hearing officer also noted an agreement by the parties that Mrs. Pihl would receive monies due her from Lowell as a result of payments made pursuant to the consent decree. The BSEA deferred decision on five issues, including: whether service delivery pursuant to the consent decree should be adjudicated inadequate and inappropriate; and whether Karl was entitled to compensatory services for two years following his 22nd birthday.

Two weeks later, the school district filed a motion for reconsideration, indicating that it had found a residential placement for Karl at the Brown School in Austin, Texas. The same day, the plaintiffs filed this lawsuit, seeking to compel the defendants to provide Karl with an appropriate education, in accordance with the BSEA's January 29 decision. The BSEA granted the motion for reconsideration, and, following a five day hearing, ruled that the program proposed by defendants was an appropriate placement for Karl, and ordered Lowell to prepare an individualized educational program (IEP) for Karl reflecting this placement. ⁴

On May 11, 1987, plaintiffs filed an amended complaint alleging causes of action under the Education of the Handicapped Act (EHA), 20 U.S.C. Secs. 1401-1415, and parallel provisions of Massachusetts law, Mass.Gen.L. Ch. 71B. They claimed that Karl had never been provided with an appropriate IEP; that except for a few weeks of intermittent tutorial services, he had been without an IEP, or any education whatsoever, for at least two years; and that the Brown School placement was inappropriate and in violation of state law, because of its great distance from the Pihls' home, its restrictive (hospital-based) nature, and the fact that it was not approved by Massachusetts or Texas for education of the deaf, due to the lack of properly certified personnel. Plaintiffs sought a preliminary injunction requiring Lowell to maintain interim services until resolution of the dispute; an injunction against the Brown School placement that would require the defendants to provide an appropriate education in the least restrictive setting as close as possible to home; an injunction requiring compensatory education; an order for payment of out-of-pocket educational, legal, and expert expenses and costs; and all other forms of relief that the court deemed just.

On May 18, 1987, the district court dismissed plaintiffs' section 1983 claim, since plaintiffs' exclusive avenue for appeal and relief was provided by the IDEA. Nearly six years later, ⁵ on March 9, 1993, another district court judge allowed defendants' second motion to dismiss. In a margin order, the court stated that plaintiffs had failed to show "entitlement to any relief this court could properly grant." The district court did not elaborate on the reasons for its decision. It apparently adopted, however, the defendants' position that plaintiffs' complaint was moot because the challenged IEP had expired four years earlier, and because Karl was beyond the age of entitlement for special educational services under the IDEA. ⁶

On this appeal, plaintiffs address only their claim for compensatory education. They contend that, if Karl demonstrates that defendants failed to provide him with appropriate educational services during the challenged period, he is now entitled to compensatory services, regardless of his age. Although they acknowledge that the BSEA has not rendered final decisions on the appropriateness of services provided during some of the contested period, they argue that they should be excused from the usual exhaustion requirement. Defendants continue to argue that this case is moot, because the challenged IEP expired over five years ago, and because Karl is beyond the age of entitlement for services under the Act.

When evaluating a motion to dismiss under Rule 12(b)(6), we take the well-pleaded facts as they appear in the complaint, extending plaintiff every reasonable inference in his favor. Coyne v. City of Somerville, 972 F.2d 440, 442-43 (1st Cir.1992). We begin with a review of the statutory backdrop.

II. Discussion

A. Statutory Framework

The IDEA requires states, as a condition of accepting federal financial assistance, to ensure a "free appropriate public education" to all children with disabilities. 20 U.S.C. Secs. 1400(c), 1412(1). In Massachusetts, in accordance with the state's responsibility under the Act, disabled children remain eligible for special education services up to the age of twenty-two, provided they have not yet attained a high school diploma or its equivalent. Mass.Gen.Laws Ch. 71B, Secs. 1, 3.

The Act imposes extensive procedural requirements on participating state and local agencies to safeguard a disabled student's right to a free appropriate public education. 20 U.S.C. Secs. 1401(a)(20); 1412(2, 4, 5, 7); 1415(a, b); Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 182-84, 102 S.Ct. 3034, 3038-39, 73 L.Ed.2d 690 (1982). These procedural safeguards "guarantee parents both an opportunity for meaningful input into all decisions affecting their child's education and the right to seek review of any decisions they think inappropriate." Honig v. Doe, 484 U.S. 305, 311-12, 108 S.Ct. 592, 598, 98 L.Ed.2d 686 (1987); see also Burlington School Committee v. Mass. Dept. of Ed., 471 U.S. 359, 368, 105 S.Ct. 1996, 2002, 85 L.Ed.2d 385 (1984).

The IEP is the primary safeguard, Honig, 484 U.S. at 311, 108 S.Ct. at 597-98; Burlington, 471 U.S. at 368, 105 S.Ct. at 2002; 20 U.S.C. Sec. 1401(a)(20); 34 C.F.R. Sec. 300.346 (1992); Mass.Gen.L. ch. 71B, Sec. 3, and parents have a...