Kathleen H. v. Massachusetts Dept. of Educ.

• Decision Date: 03 June 1998
• Docket Number: No. 98-1006,98-1006
• Parties: 129 Ed. Law Rep. 38 KATHLEEN H., Larry H. and Daniel H., Plaintiffs, Appellants, v. MASSACHUSETTS DEPARTMENT OF EDUCATION, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 8

154 F.3d 8

129 Ed. Law Rep. 38

KATHLEEN H., Larry H. and Daniel H., Plaintiffs, Appellants, v. MASSACHUSETTS DEPARTMENT OF EDUCATION, et al., Defendants, Appellees.

No. 98-1006.

United States Court of Appeals First Circuit.

Heard June 3, 1998.

Decided Sept. 4, 1998.

Maureen A. Lee, with whom John P. Lee and Law Office of John P. Lee were on brief, for appellants.

Nicola Favorito, with whom Mary Ellen Sowyrda and Murphy, Hesse, Toomey & Lehane were on brief, for appellees.

Before TORRUELLA, Chief Judge, SELYA, Circuit Judge, and SCHWARZER, ^* Senior District Judge.

WILLIAM W SCHWARZER, Senior District Judge.

Appellants Larry and Kathleen H. reside in Mansfield, Massachusetts with Daniel H., their son. Daniel is a child with disabilities within the meaning of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1485. When Daniel's parents and the Mansfield public school system were unable to agree on the services to be provided Daniel, the parents removed him from the public school, unilaterally enrolled him in the Learning Prep School (LPS) and requested a hearing with the Massachusetts Bureau of Special Education Appeals (BSEA). Following the hearings, the BSEA ruled in favor of the Mansfield School Committee (Mansfield), finding that with some modifications to their program, Mansfield was and is capable of meeting the child's needs, LPS was overly restrictive, and the parents were not entitled to be reimbursed for the LPS expenses. Appellants then sought judicial review in district court, which upheld the BSEA's decision and denied their application for attorneys' fees. They now appeal from the judgment of the district court. We have jurisdiction pursuant to 28 U.S.C. § 1331, and we affirm.

OVERVIEW

The IDEA was enacted to ensure that all children with disabilities receive a "free appropriate public education [FAPE] ... designed to meet their unique needs." 20 U.S.C. § 1400(c). "While a state may not depart downward from the minimum level of appropriateness mandated under federal law, 'a state is free to exceed, both substantively and procedurally, the protection and services to be provided to its disabled children.' " Roland M. v. Concord Sch. Comm., 910 F.2d 983, 987 (1st Cir.1990) (quoting Burlington v. Department of Educ., 736 F.2d 773, 784-85 (1st Cir.1984) ("Burlington II")). Massachusetts has chosen a higher standard: The Department of Education is required to administer programs that " 'assure the maximum possible development of a child with special needs.' " Stock v. Massachusetts Hosp. Sch., 392 Mass. 205, 211, 467 N.E.2d 448, 453 (1984) (quoting Mass. Gen. Laws ch. 71B § 2); see also Roland M., 910 F.2d at 987; David D. v. Dartmouth Sch. Comm., 775 F.2d 411, 423 (1st Cir.1985).

The FAPE is implemented through an individual education plan (IEP), a written statement that sets out an educational program to meet the particularized needs of a child with disabilities. 20 U.S.C. § 1301(a)(20). In Massachusetts, an IEP for a child is developed by TEAM, a group of individuals including "the parents, the child's teacher, designated specialists, and a representative of the [local education agency]." Roland M., 910 F.2d at 988. The IEP must be reviewed annually and revised when necessary. See id.

Parents who are dissatisfied with their child's IEP can present a complaint and obtain a due process hearing to resolve the problem. See 20 U.S.C. § 1415(b)(1)(E) & (2). In Massachusetts, this function is performed by the BSEA. See Roland M., 910 F.2d at 987. During the pendency of proceedings under § 1415, the child is to "remain in the then current educational placement." 20 U.S.C. § 1415(e)(3). If the school district cannot provide the FAPE itself, it can recommend that the child be placed in a private facility at no cost to the parents. See 34 C.F.R. § 300.401(a)(2). However, parents who " 'unilaterally change their child's placement during the pendency of review proceedings, without the consent of state or local school officials,' ... are entitled to reimbursement only if ... the public placement violated IDEA and [ ] the private school placement was proper under the Act." Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 15, 114 S.Ct. 361, 366, 126 L.Ed.2d 284 (1993) (quoting School Comm. v. Department of Educ., 471 U.S. 359, 373-74, 105 S.Ct. 1996, 2004-05, 85 L.Ed.2d 385 (1985)).

Judicial review of the decision of the BSEA presents a two-fold inquiry: Whether the state has complied with the procedures of the Act, and whether the IEP developed through those procedures is "reasonably calculated to enable the child to receive educational benefits." Board of Educ. v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3034, 3051, 73 L.Ed.2d 690 (1982). The Act imposes procedural requirements upon state and local education agencies to "assure that children with disabilities and their parents ... are guaranteed procedural safeguards with respect to the provision of free appropriate public education." 20 U.S.C. § 1415(a). "The primary safeguard is the obligatory development of an individualized education program (IEP)." Roland M., 910 F.2d at 987 (citing Rowley, 458 U.S. at 181, 102 S.Ct. 3034). The IEP must contain "statements about the child's current performance, long-term and short-term instructional targets, and objective criteria for measuring the student's advance." Id. (citing 20 U.S.C. § 1401(19) and 34 C.F.R. § 300.346); see also Rowley, 458 U.S. at 206 n. 27, 102 S.Ct. 3034. And, as noted, a school's programs must "assure the maximum possible development of a child with special needs," subject to the Act's preference for "mainstreaming," i.e., educating handicapped children and non-handicapped children together "to the maximum extent appropriate" and providing special education in "the least restrictive environment." Id. (citing 20 U.S.C. § 1412(5) and 34 C.F.R. § 300.552(d)).

FACTUAL AND PROCEDURAL HISTORY

Daniel H. suffers from a language-based learning disorder. From kindergarten through the sixth grade, Daniel attended Mansfield public schools. In the first, second and third grades, Daniel received special education services in accordance with his IEP with a 502.4 prototype. ¹ In the fourth grade, Daniel's TEAM modified his IEP to a 502.3 prototype, and he was mainstreamed for mathematics. In the fifth grade, Daniel was mainstreamed in all content areas after he successfully completed the Stevenson Reading and Literature Program, a special education curriculum, in accordance with his 1992-93 IEP. ²

In 1993, before Daniel entered the sixth grade, TEAM determined that a 502.1 program would provide him with the least restrictive appropriate educational environment. The 1993-94 IEP proposed that Daniel participate in a regular education program, with one-half hour per week of speech and language monitoring and use of a notebook to exchange information between the home and the school. Daniel's parents deferred their approval of the IEP until they could obtain an independent evaluation of Daniel by the New England Medical Center (NEMC).

NEMC evaluated Daniel in November 1993 and Daniel's mother gave a copy of the evaluation to Mansfield school officials. NEMC determined that Daniel had difficulties processing auditory information, retrieving words, and formulating sentences. He performed below average on reading and language tests but scored well in mathematics. NEMC recommended small group speech therapy as well as weekly consultations between a speech pathologist and Daniel's classroom teacher.

Around the same time, Daniel began having several problems. Academically, Daniel's mother felt that he was struggling with his homework because it often took him three to four hours to complete. Socially, he incurred several disciplinary infractions for fighting with other students and he began defecating in his pants. As a result, Kathleen H. arranged for Daniel to be counseled by a psychologist.

After receiving NEMC's evaluation, Kathleen H. asked TEAM to modify the 1993-94 IEP to incorporate NEMC's recommendations. TEAM met in December 1993 and rewrote the IEP to reflect the special services that Daniel was then actually receiving, which included thirteen forty-minute support periods each week in the mainstream classroom, but refused to formally adopt NEMC's recommendations. In turn, Daniel's parents rejected the modified IEP on January 2, 1994. On February 7, 1994, the school offered to supplement Daniel's special education program by providing small group speech and language services twice a week, to fund regular consultations between NEMC evaluators and Mansfield personnel, and to provide Daniel with a homework organization sheet to supplement his notebook. Daniel's parents never responded to this offer.

TEAM met again in March 1994, to prepare Daniel's seventh grade IEP. The 1994-95 IEP proposed a 502.2 prototype program consisting of the thirteen forty-minute support periods per week in the mainstream classroom he was then receiving, supplemented by two forty-minute periods of speech and language instruction and consultation to Daniel's classroom teachers by the speech and language providers. Attached to the IEP were NEMC's recommendations which Mansfield would implement "where appropriate," and Mansfield offered to fund consultations between Daniel's teacher and NEMC evaluators. Daniel's parents rejected the proposed IEP on March 31, 1994, and enrolled Daniel at LPS for the 1994-95 school year.

Daniel's parents then appealed to the BSEA. Following hearings, the hearing officer issued her decision. Her salient findings were that (1) with some modifications, Mansfield is and was capable of meeting Daniel's needs; (2) while Mansfield made procedural errors in the 1993-94 and 1994-95 IEPs, they did not rise to the level of noncompliance; (3) LPS was overly restrictive; and (4) the parents should not be reimbursed for the LPS expenses incurred during the 1994-95...