903 F.2d 635 (9th Cir. 1990), 86-2747, Clovis Unified School Dist. v. California Office of Administrative Hearings

Docket Nº:86-2747, 86-2825, 86-2842, 87-1537 and 87-1554.
Citation:903 F.2d 635
Party Name:Fla. L. Week. D2682 CLOVIS UNIFIED SCHOOL DISTRICT, Plaintiff-Appellant, Cross-Appellee, v. CALIFORNIA OFFICE OF ADMINISTRATIVE HEARINGS; and Ronald Diedrich, Hearing Officer, Defendants-Appellees, William Honig, California State Superintendent of Public Instruction; and California State Department of Education, Defendants-Appellees, Cross-Appellan
Case Date:May 03, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 635

903 F.2d 635 (9th Cir. 1990)

Fla. L. Week. D2682

CLOVIS UNIFIED SCHOOL DISTRICT, Plaintiff-Appellant, Cross-Appellee,

v.

CALIFORNIA OFFICE OF ADMINISTRATIVE HEARINGS; and Ronald

Diedrich, Hearing Officer, Defendants-Appellees,

William Honig, California State Superintendent of Public

Instruction; and California State Department of

Education, Defendants-Appellees,

Cross-Appellants.

Michelle Shorey, Real Party in Interest-Appellee, Cross-Appellant.

Nos. 86-2747, 86-2825, 86-2842, 87-1537 and 87-1554.

United States Court of Appeals, Ninth Circuit

May 3, 1990

Submission Vacated April 7, 1988. Argued and Submitted Aug. 14, 1987.

Submission Vacated April 7, 1988.

Resubmitted March 12, 1990.

Page 636

[Copyrighted Material Omitted]

Page 637

Diana K. Smith, Lozano Smith Smith & Woliver, San Francisco, Cal., for Clovis Unified School Dist., plaintiff-appellant and cross-appellee.

Joyce Eckrem and Michael E. Hersher, California State Dept. of Educ., Sacramento, Cal., for William Honig, California State Superintendent of Public Instruction, and the California State Dept. of Educ., defendants-appellees and cross-appellants.

John K. Van de Kamp, Atty. Gen., and Richard M. Frank and Paul Dobson, Supervising Deputy Attys. Gen., Sacramento, Cal., for Michelle Shorey, Real Party in Interest, defendant-appellee and cross-appellant, and for the California Office of Administrative Hearings and Ronald Diedrich, Hearing Officer, defendants-appellees.

Ronald D. Wenkart, Costa Mesa, Cal., for the Anaheim City School Dist., et al., Amicus.

Andrea M. Miller, Kronick, Moskovitz, Tiedemann & Girard, Sacramento, Cal., for the California Ass'n of School Boards, Amicus.

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Appeal from the United States District Court for the Eastern District of California.

Before SCHROEDER, POOLE and CANBY, [*] Circuit Judges.

PER CURIAM:

INTRODUCTION

Three of the appeals addressed in this opinion are taken from the District Court's decision ordering Clovis Unified School District to pay for the placement of real-party-in-interest Michelle Shorey in King's View Hospital as a residential placement under the Education for All Handicapped Children Act, 20 U.S.C. Secs. 1400 et seq. (Education of the Handicapped Act, EHA, the Act). Two of the appeals are taken from the District Court's order granting attorneys' fees to Michelle as a prevailing party in an action brought under 20 U.S.C. Sec. 1415(e). The primary issue for decision is whether Michelle's placement was a "related service" or excluded as a "medical service" under the Act. Because we find that Michelle was hospitalized for medical, rather than educational purposes, we reverse the orders of the District Court.

STATUTORY BACKGROUND

The Education for All Handicapped Children Act of 1975, 20 U.S.C. Secs. 1400 et seq., provides funds and also regulates state assistance to handicapped students. Department of Education of the State of Hawaii v. Katherine D., 727 F.2d 809, 813 (9th Cir.1983), cert. denied 471 U.S. 1117, 105 S.Ct. 2360, 86 L.Ed.2d 260 (1985). To qualify for federal assistance for special education programs, a state must have in effect a policy that assures all handicapped children the right to a "free appropriate public education." 20 U.S.C. Sec. 1412(1). The state must adopt policies and procedures which assure that all children receive an appropriate education "regardless of the severity of their handicap." 20 U.S.C. Sec. 1412(2)(C).

The term "free appropriate public education" is defined to include "special education" and "related services." 20 U.S.C. Sec. 1401(a)(18). "Related services" in turn are defined by the statute as

[T]ransportation and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, and medical and counseling services, except that such medical services shall be for diagnostic and evaluation purposes only ) as may be required to assist a handicapped child to benefit from special education.... (emphasis added)

20 U.S.C. Sec. 1401(a)(17). 1 The Act contains no explicit definition of "medical services."

The EHA indirectly requires school districts to provide residential placements by defining elementary and secondary schools to include "residential schools." 20 U.S.C. Sec. 1401(a)(9) and (10). There is no further explanation in the Act, but the pertinent regulations provide that "[i]f placement in a public or private residential program is necessary to provide special education and related services to a handicapped child, the program, including non-medical care and room and board, must be at no cost to the parents of the child." 34 C.F.R. Sec. 300.302.

Under the Act an Individualized Educational Program (IEP) must be developed for each handicapped child. 20 U.S.C. Sec. 1401(a)(18). The program is developed by representatives of the educational agency, the teacher, the parents or guardians of the child, and when appropriate, the child. 20 U.S.C. Sec. 1401(a)(19).

The primary issue before us is whether Michelle Shorey's hospitalization at King's View Hospital constitutes either a "residential

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placement" or a "related service" which her local school district is required to pay for under the Act, or constitutes "medical services" excluded from the purview of the Act.

FACTS AND PROCEEDINGS BELOW

Michelle Shorey is a seriously emotionally disturbed child who is entitled to special education and related services under the Education of the Handicapped Act, 20 U.S.C. Secs. 1400 et seq. At the time of this appeal she was ten years old. There is no dispute that Michelle requires a residential placement in order to receive an appropriate education. Clovis Unified School District ("Clovis" or "the district") is the local educational agency responsible under the EHA for providing Michelle with an appropriate education, including a residential placement at no cost to her parents. See 34 C.F.R. Sec. 300.302.

The Shoreys adopted Michelle at the age of 4 1/2. Apparently as a result of an extremely unstable and chaotic childhood, including neglect and abuse in eight or nine different placements before her ultimate adoption, Michelle developed serious emotional problems. When they adopted Michelle, the Shoreys lived in Washington state, where Michelle started public schooling. 2 When the adoptive parents moved to Riverside, California in 1984, they enrolled the child in a mental health day treatment program. Shortly thereafter, however, because of her destructive behavior, she was placed in a mental health residential treatment program. In January 1985 the Shoreys moved to Fresno, leaving Michelle in Riverside. Although Michelle continued to perform adequately in the classroom, her emotional condition deteriorated considerably.

In March 1985, the Mental Health Director of the Riverside facility informed the Shoreys that Michelle's behavior had deteriorated to such an extent that the staff could no longer control her, even with medication. The Riverside staff recommended placement in an acute care facility. The Shoreys applied for Michelle's admission to King's View Hospital, an acute care psychiatric hospital in Reedley, California. In mid-March Michelle was discharged from the Riverside facility and placed at King's View. The costs of her placement there were paid primarily through the Shoreys' private medical insurance until about July, when that coverage was exhausted.

During her first few months at King's View, personnel from Clovis Unified School District, the Shoreys' district of residence, attempted to locate an appropriate residential school for Michelle's educational placement. They considered and suggested a number of options, of which the most appropriate were the State Diagnostic School, a temporary residential placement, and Re-Ed West, a residential school located in Sacramento. The Shoreys rejected these suggestions, believing that neither could provide Michelle with an appropriate education.

Instead the Shoreys requested that Clovis fund Michelle's placement at King's View. When Clovis refused to do so, Michelle's parents sought an administrative hearing pursuant to the "procedural safeguards" provisions of the EHA, 20 U.S.C. Sec. 1415(b), and Cal.Educ.Code Sec. 56501, to determine whether she was entitled to be placed at Clovis' expense at King's View as a residential school placement under the Act. At the administrative hearing, the parents argued for placement at King's View at a cost of $150,000 per year; the school district argued for placement at Re-Ed West or the Diagnostic School, at a cost of approximately $50,000. The administrative hearing officer ruled in favor of Michelle, ordering the District to pay for her hospitalization from August 16, 1985, through the 1985-86 school year.

Clovis appealed the hearing officer's decision to the United States District Court for the Eastern District of California pursuant to Cal.Educ.Code Sec. 56505(j) and 20 U.S.C. Sec. 1415(e)(2), seeking injunctive and declaratory relief against Superintendent of Public Instruction William Honig and the California State Department of Education

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("State Defendants"), the State Office of Administrative Hearings, Ronald Diedrich, the independent hearing officer, and Michelle. Clovis argued that placement at the hospital was for medical, rather than educational reasons, and that therefore the district was not obligated to fund such a placement. The State Defendants answered by admitting that the hearing officer's decision was erroneous. They have consistently supported Clovis' position throughout these proceedings.

Clovis first sought a...

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