Erickson v. Albuquerque Pub.Schools

• Decision Date: 17 December 1999
• Docket Number: No. 98-2168,98-2168
• Citation: 199 F.3d 1116
• Parties: (10th Cir. 1999) SUSAN ERICKSON, individually and on behalf of Michael Erickson, Plaintiff-Appellant, v. ALBUQUERQUE PUBLIC SCHOOLS, Defendant-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1116

199 F.3d 1116 (10th Cir. 1999)

SUSAN ERICKSON, individually and on behalf of Michael Erickson, Plaintiff-Appellant, v. ALBUQUERQUE PUBLIC SCHOOLS, Defendant-Appellee.

No. 98-2168

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

December 17, 1999

APPEAL FROM UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. D.C. No. CIV-96-1067-MV/RLP

[Copyrighted Material Omitted] Maureen A. Sanders, Sanders & Westbrook, P.C., (Linda M. Vanzi, Vanzi & Gagne, P.C., with her on the briefs), Albuquerque, New Mexico, for the appellant.

Michael L. Carrico, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, New Mexico, for the appellee.

Before KELLY, HOLLOWAY, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Susan Erickson, individually and on behalf of her son, Michael Erickson, brought this action against the Albuquerque Public Schools ("the school district") for relief pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400 et seq.¹ Erickson appeals the district court's determination that Michael was not entitled to compensatory education because the school district did not violate the IDEA and New Mexico stay-put provisions. We exercise jurisdiction pursuant to 28 U.S.C. 1291 and affirm the district court.

I.

Michael was 13 years old and in the seventh grade when this case began in 1995. He had been diagnosed with bipolar disorder and learning disabilities, which allowed him the protections of the IDEA. 20 U.S.C. 1401(a)(1)(A)(i). The IDEA provides federal funds to the states for the education of children with disabilities, guaranteeing disabled children between the ages of three and twenty-one access to a free, appropriate public education (FAPE). 20 U.S.C. 1400(c), 1412(1). A FAPE "emphasizes special education and related services designed to meet [the child's] unique needs." 20 U.S.C. 1400(c). A student's needs in obtaining a FAPE are laid out in an individualized education program (IEP). 20 U.S.C. 1401(a)(20). An IEP is a written statement developed in a meeting attended by the student's teacher, a special education professional, and the student's parents that summarizes the student's abilities, outlines goals for the student's education, specifies the services the student will receive to achieve those goals, and establishes criteria to evaluate the student's progress. Id.; 20 U.S.C. 1414(a)(5).

Michael had received occupational therapy since he was in pre-school. In October 1994, his IEP provided for two hours of occupational therapy per week, without specifying the type of occupational therapy to be provided. One of the hours provided was hippotherapy, an occupational therapy involving horses. Michael's June 1995 IEP again provided for two hours of occupational therapy per week, with the type of occupational therapy not specified.² The June 1995 IEP was effective from August 1995 to June 1996. In September 1995, an IEP meeting was held in which the school district reduced Michael's occupational therapy to one hour per week and discontinued hippotherapy.³ Erickson objected to the elimination of hippotherapy, but agreed to the reduction to one hour of occupational therapy per week. The school district immediately canceled Michael's hippotherapy.

Erickson requested a due process hearing, arguing the school district violated the IDEA by terminating hippotherapy, discontinuing hippotherapy during the pendency of the appeal, and failing to provide Michael with a FAPE. See 20 U.S.C. 1415(b)(2) (providing for appeal to impartial hearing officer). The hearing officer found the school district violated the IDEA's stay-put provision, 20 U.S.C. 1415(e)(3), by discontinuing hippotherapy during the pendency of the administrative proceeding. The hearing officer also found the school district failed to make an individualized decision regarding Michael's educational needs by predetermining that occupational therapy would be provided at school, rather than at an outside facility. Because of these violations, the hearing officer awarded Michael compensatory education of one semester of hippotherapy. The hearing officer found that the school district provided Michael with a FAPE.

The school district pursued an administrative appeal of the hearing officer's conclusions that the school district failed to make an individualized decision regarding Michael's educational needs, predetermined the occupational therapy to be provided, and violated the stay-put provision. The school district also appealed the award of compensatory education. See 20 U.S.C. 1415(b), (c) (providing for appeal from hearing officer). The administrative appeal officer found the school district's predetermination that Michael's occupational therapy would be provided at school did not violate the IDEA, because school districts can change the location of services. The appeal officer concluded the September 1995 IEP provided Michael with a FAPE and the school district did not violate the stay-put provisions, so Michael was not entitled to compensatory education.

Erickson then filed a civil complaint pursuant to 20 U.S.C. 1415(e)(2), alleging the appeal officer erred in finding that the school district did not violate the stay-put provision, that the school district was not required to provide compensatory education, that the school district did not predetermine Michael's educational placement, and that Michael received a FAPE. The school district moved for summary judgment, arguing that it provided Michael a FAPE, that the elimination of hippotherapy was not a change in educational placement so the stay-put provision did not apply, and that Michael was not entitled to compensatory education.

The district court granted the school district's motion for summary judgment, adopting the findings of fact and conclusions of law of the appeal officer, with one exception not relevant to this appeal (involving payment of a psychologist for preparation and attendance at IEP meetings). The district court found the stay-put provision did not apply because elimination of hippotherapy was merely a change in methodology of services, not a change in educational placement. The district court concluded Michael was not entitled to compensatory education because he was not denied a FAPE. Erickson appeals the determination that Michael was not entitled to compensatory education. Erickson does not appeal the district court's conclusion that the school district's provision of services to Michael complied with the IDEA's substantive requirement of a FAPE.⁴

II.

We are reviewing the district court's grant of summary judgment to the school district.⁵ Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In reviewing a challenge under the IDEA, the district court engages in a modified de novo review, in which it must "independently review the evidence contained in the administrative record, accept and review additional evidence, if necessary, and make a decision based on the preponderance of the evidence, while giving 'due weight' to the administrative proceedings below." Murray v. Montrose County Sch. Dist. RE-1J, 51 F.3d 921, 927 (10th Cir. 1995). We engage in de novo review of the district court's grant of summary judgment, applying the same standard as the district court. Id. at 927-28. We give due weight to the appeal officer's decision on the issues with which she disagreed with the hearing officer, unless the hearing officer's decisions involved credibility determinations and the record supports the reviewing officer's decision. O'Toole v. Olathe Dist. Schs. Unified Sch. Dist. No. 233, 144 F.3d 692, 699 (10th Cir. 1998).⁶

The Stay-Put Provision

The first issue is whether the school district violated the stay-put provision by failing to provide hippotherapy to Michael during Erickson's appeal. Both the IDEA and New Mexico regulations contain a stay-put provision for the pendency of appeals of educational services. The IDEA provides that "during the pendency of any proceedings conducted pursuant to this section, unless the . . . agency and the parents . . . otherwise agree, the child shall remain in the then current educational placement of such child . . . ." 20 U.S.C. 1415(e)(3)(A) (emphasis added). New Mexico Regulations provide that "[d]uring the pendency of any administrative or judicial proceeding regarding a hearing, unless the public agency and the parents of the child agree otherwise, the child involved in the hearing must have his or her present delivery of services continued." New Mexico State Bd. of Educ. Reg. 90-2, amend. 5, Section III (Q) (1994) (emphasis added).⁷ Erickson contends the stay-put provisions required the school district to continue providing two hours of occupational therapy per week, including one hour of hippotherapy, until her appeal was resolved.⁸

The stay-put provision does not apply when the parent and the school district agree to changes in the services previously delivered. Erickson agreed to a reduction from two hours to one hour of occupational therapy per week. Because the school district and Erickson agreed, implementation of the reduction of hours did not violate the stay-put provision. The issue is whether the cancellation of hippotherapy violated the stay-put provision. The district court and the appeal officer found hippotherapy was a treatment modality, not an educational placement or service delivery provision.

The purpose of the stay-put provision is to prevent school districts from "effecting unilateral change in a child's educational program." Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 83 (3d Cir. 1996) (quotation omitted). The IDEA does not define "current educational placement" but some courts hold that the dispositive factor is the IEP in place when the stay-put provision is invoked. See id. (quotation omitted). Although Erickson agreed...