CM v. The Bd. of Education of Henderson County

• Decision Date: 04 December 2000
• Docket Number: N,No. 99-2533,99-2533
• Citation: 241 F.3d 374
• Parties: (4th Cir. 2001) CM, a minor, by and through her parents, JM and EM, and on their own behalf, Plaintiffs-Appellants, v. THE BOARD OF EDUCATION OF HENDERSON COUNTY, a/k/a Henderson County Public Schools; DAN G. LUNSFORD, Education Department Superintendent; LINDA R. HAWK, Chairman; JACKIE H. HORNSBY, Vice Chairman; ERVIN W. BAZZLE; BRENDA O. BROCK; ALLEN A. COMBS; THOMAS E. ORR; THOMAS B. PRYOR; JUDY DIANE HARTMAN COOK, in their official and individual capacities, Defendants-Appellees, STATE OF NORTH CAROLINA, Intervenor. M.E.; P.E., on their behalf and on behalf of their son, C.E., Plaintiffs-Appellants, v. THE BUNCOMBE COUNTY BOARD OF EDUCATION, a/k/a Buncombe County Public Schools, Defendant-Appellee, and STATE OF NORTH CAROLINA, Intervenor. UNITED STATES OF AMERICA; NORTH CAROLINA SCHOOL BOARDS ASSOCIATION, Amici Curiae. o. 00-1101. . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 374

241 F.3d 374 (4th Cir. 2001)

CM, a minor, by and through her parents, JM and EM, and on their own behalf, Plaintiffs-Appellants, v. THE BOARD OF EDUCATION OF HENDERSON COUNTY, a/k/a Henderson County Public Schools; DAN G. LUNSFORD, Education Department Superintendent; LINDA R. HAWK, Chairman; JACKIE H. HORNSBY, Vice Chairman; ERVIN W. BAZZLE; BRENDA O. BROCK; ALLEN A. COMBS; THOMAS E. ORR; THOMAS B. PRYOR; JUDY DIANE HARTMAN COOK, in their official and individual capacities, Defendants-Appellees STATE OF NORTH CAROLINA, Intervenor.

M.E.; P.E., on their behalf and on behalf of their son, C.E., Plaintiffs-Appellants, v. THE BUNCOMBE COUNTY BOARD OF EDUCATION, a/k/a Buncombe County Public Schools, Defendant-Appellee and STATE OF NORTH CAROLINA, Intervenor.

UNITED STATES OF AMERICA; NORTH CAROLINA SCHOOL BOARDS ASSOCIATION, Amici Curiae.

No. 99-2533, No. 00-1101.

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: December 4, 2000.

Decided: February 21, 2001.

Appeals from the United States District Court for the Western District of North Carolina, at Asheville.

Lacy H. Thornburg, District Judge. CA-98-66-1, CA-99-3) COUNSEL: ARGUED: Paul Lawrence Erickson, THE LAW FIRM OF PAUL L. ERICKSON, Asheville, North Carolina; Peter W.D. Wright, Deltaville, Virginia, for Appellants. Kevin Kendrick Russell, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus Curiae United States. Ann L. Majestic, THARRINGTON SMITH, L.L.P., Raleigh, North Carolina; Christopher Zemp Campbell, ROBERTS & STEVENS, P.A., Asheville, North Carolina, for Appellees. Joyce S. Rutledge, Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Intervenor. ON BRIEF: Michael F. Easley, Attorney General of North Carolina, Thomas J. Ziko, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Intervenor. Bill Lann Lee, Acting Assistant Attorney General, Mark L. Gross, Rebecca K. Troth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Judith A. Winston, General Counsel, Kala Shah Surprenant, UNITED STATES DEPARTMENT OF EDUCATION, Washington, D.C., for Amicus Curiae United States. Elaine M. Whitford, THARRINGTON SMITH, L.L.P., Raleigh, North Carolina; Allison B. Schafer, NORTH CAROLINA SCHOOL BOARDS ASSOCIATION, Raleigh, North Carolina, for Amicus Curiae Association.

Before WIDENER and MOTZ, Circuit Judges, and Terrence W. BOYLE, Chief United States District Judge for the Eastern District of North Carolina, sitting by designation.

Affirmed in part and reversed and remanded in part by published opinion. Judge Motz wrote the opinion, in which Judge Widener and Chief Judge Boyle joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

We consider today, as a matter of first impression, whether a state statute, providing that a request for a due process hearing must be filed within sixty days of an agency decision, is inconsistent with the Individuals with Disabilities Education Act (IDEA). We conclude that as long as a party seeking such a hearing is supplied with the required statutory notice, this limitations period does not conflict with federal policies embodied in the IDEA.

I.

Both cases before us involve requests for IDEA services on behalf of autistic children. The North Carolina public school system has developed a nationally recognized program for educating autistic children known as the TEACCH program. But the parents of both children involved in these cases concluded that the Lovaas program, a rival method for the education of autistic children, offered their children more hope for a normal life. Accordingly, the parents placed their children in Lovaas therapy. When the parents asked school officials to reimburse them for the cost of the Lovaas program under the IDEA, those officials refused. Both sets of parents continued to negotiate for a time with school administrators, and then filed petitions for due process hearings. State administrative law judges (ALJs) dismissed all or most of the claims in these petitions as untimely.

We first briefly outline the statutory scheme at issue here and then the specific relevant facts of the two cases before us.

A.

The IDEA creates a federal grant program to assist state and local agencies in educating disabled children. See 20 U.S.C. S 1412 (1994 & Supp. IV 1998). To receive funds under the IDEA, states must provide disabled children with the opportunity to receive a "free appropriate public education," S 20 U.S.C. S 1412(a)(1), by providing special education and related services in an "individualized education program" (IEP). 20 U.S.C. S 1412(a)(4). "[T]o ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of free appropriate public education," the IDEA requires states to establish and follow certain procedures. 20 U.S.C. S 1415(a). Among these is the requirement that, if parents of a disabled child and an educational agency disagree as to the appropriateness of an IEP or a question of financial responsibility, parents have the right to resolve the matter at an "impartial due process hearing, which shall be conducted by the State educational agency or by the local educational agency, as determined by State law or by the State educational agency." 20 U.S.C. S 1415(f).

North Carolina has implemented the IDEA in N.C. Gen. Stat. S 115C-111, et seq. (1999). In this statute, as instructed by the IDEA, North Carolina has provided parents the right to an impartial due process hearing, which is referred to in state law as a "[r]ight of [r]eview" at a "contested case" hearing. N.C. Gen. Stat. S 115C-116(c); N.C. Gen. Stat. S 150B-23.

The IDEA itself imposes no time limit on the period in which parents may request a due process hearing. The chapter of the North Carolina code implementing the IDEA, however, directs that "[e]xcept as otherwise provided in this section, the administrative review shall be initiated and conducted in accordance with Article 3 of Chapter 150B of the General Statutes, the Administrative Procedure Act [APA]." N.C. Gen. Stat. S 115C-116(d).

The North Carolina APA, in turn, provides that "a contested case shall be commenced by filing a petition." N.C. Gen. Stat. S 150B23(a). It further provides:

Unless another statute or a federal statute or regulation sets a time limitation for the filing of a petition in contested cases against a specified agency, the general limitation for the filing of a petition in a contested case is 60 days. The time limitation, whether established by another statute, federal statute, or federal regulation, or this section, shall commence when notice is given of the agency decision to all persons aggrieved who are known to the agency by personal delivery or by the placing of the notice in an official depository of the Unites States Postal Service wrapped in a wrapper addressed to the person at the latest address given by the person to the agency. The notice shall be in writing, and shall set forth the agency action, and shall inform the persons of the right, the procedure, and the time limit to file a contested case petition. When no informal settlement request has been received by the agency prior to issuance of the notice, any subsequent informal settlement request shall not suspend the time limitation for the filing of a petition for a contested case hearing.

Id. S 150B-23(f) (emphasis added).

B.

In M.E., the family moved to North Carolina from Maryland in August 1995, after C.E. had been diagnosed as autistic at a TEACCH center in North Carolina. When the family arrived in North Carolina, C.E.'s parents initially placed C.E. in a Lovaas program. Pleased with C.E.'s progress, in March 1996 his parents contacted the Buncombe County school authorities seeking funding for the Lovaas program under the IDEA. Extensive negotiations followed, including several meetings, letters, and the preparation of a draft IEP. C.E.'s parents repeatedly rejected any proposed placement of C.E. other than in the Lovaas program.

In June 1997, the parents decided that C.E. had substantially recovered because of the Lovaas therapy and wished him placed in regular public school classes. In that same month, C.E. was medically reevaluated and school officials agreed with the parents that C.E. was no longer disabled.

In July 1997, the parents again requested funding for C.E.'s past participation in the Lovaas program. The parents and attorneys for the Buncombe County Board of Education exchanged letters in August 1997 discussing "settlement" of this claim. In neither the August letters, nor in any prior or subsequent correspondence, did the Board state that it was providing written notice of its final decision to deny all but nominal reimbursement for the Lovaas program or that the applicable limitations period for filing a petition for a due process hearing was sixty days from the date of that denial. The Board did forward with one of the August letters a copy of the current IDEA notice and attorneys' fees provisions, as well as recently amended North Carolina "mediation provisions."

In April 1998, the parents filed a petition for a due process hearing, seeking reimbursement for C.E.'s Lovaas therapy. A state ALJ found that one of the Board's August 1997 "settlement" letters was "final rejection" of the parents' reimbursement claim, and that their petition had been filed 257 days after the August letter, on April 22, 1998. The ALJ concluded that the Board provided the parents "with the requisite notice pursuant to S 150B-23." Accordingly, the ALJ held that the parents' petition was untimely. A state review officer affirmed this decision. The parents then filed a complaint in the district court, which granted summary judgment to the Board, reasoning that the ALJ had correctly ruled that the 60-day limitations period barred the claim.

The facts of CM are similar to those in M.E. CM...