Tennessee Dept. of Mental Health and Mental Retardation v. Paul B.

• Decision Date: 12 September 1996
• Docket Number: No. 94-6040,94-6040
• Parties: 110 Ed. Law Rep. 1009, 17 A.D.D. 877 TENNESSEE DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION, Plaintiff-Appellant, v. PAUL B. and The Hamilton County Board of Education, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1466

88 F.3d 1466

110 Ed. Law Rep. 1009, 17 A.D.D. 877

TENNESSEE DEPARTMENT OF MENTAL HEALTH AND MENTAL

RETARDATION, Plaintiff-Appellant, v. PAUL B. and The Hamilton County Board of Education,

Defendants-Appellees.

No. 94-6040.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 23, 1996.

Decided July 12, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Sept.

12, 1996. ^*

William B. Hubbard (argued and briefed), Weed, Hubbard, Berry & Doughty, Nashville, TN, for Tennessee Dept. of Mental Health and Mental Retardation.

Gary D. Buchanan (argued and briefed), Tennessee Protection & Advocacy, Inc., Nashville, TN, for Paul B.

Michael J. Mahn, Gary D. Lander (argued and briefed), Joseph A. SanFilippo, Jr., Chambliss & Bahner, Chattanooga, TN, for Hamilton County Bd. of Educ.

Before: CONTIE, NELSON, and BATCHELDER, Circuit Judges.

CONTIE, J., delivered the opinion of the court, in which NELSON, J., joined. BATCHELDER, J. (pp. 1479-1482), delivered a separate opinion concurring in part and dissenting in part.

CONTIE, Circuit Judge.

Plaintiff-appellant, Tennessee Department of Mental Health and Mental Retardation ("TDMHMR"), appeals the district court's grant of summary judgment to defendant-appellee, Paul B., ¹ and to defendant-appellee, the Hamilton County Board of Education ("HCBE"), in this action concerning the educational placement of a seriously emotionally disturbed child. For the following reasons, we reverse the grant of summary judgment and remand to the district court.

I.

Paul B. was a 16-year-old, seriously emotionally disturbed child, who at the time of the litigation in this case had been hospitalized as a result of his disability on at least four occasions. His history of negative behavior included depression, stealing, running away, self-mutilation, and threats to kill family members. His first hospitalization occurred when he was in the sixth grade and his parents placed him in Valley Hospital, a private mental health facility in Chattanooga, Tennessee. He was hospitalized for seven weeks from March 18, 1988 until April 27, 1988, when he was transferred directly to the Moccasin Bend Mental Health Institute, a public facility operated by respondent TDMHMR. At Moccasin Bend, he was enrolled in the Smallwood School, a residential school housed on the grounds of the institute, where he remained from April 27, 1988 until November 7, 1988. At this time, Paul B. was not evaluated to determine whether he was seriously emotionally disturbed within the meaning of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (1995) ("IDEA" or "the Act") and was eligible for special educational services under the Act.

After Paul B. was discharged from Smallwood in November 1988, he lived at home and attended a private church school from which he was expelled shortly before his next psychiatric admission.

On November 20, 1989, Paul B. was again hospitalized at Moccasin Bend. This time he enrolled in the Pinebreeze School, a residential school on the grounds for adolescents, from November 20, 1989 until February 8, 1990. When Paul B. was to be discharged from Pinebreeze, the Hamilton County Schools were notified at the time of discharge and an evaluation was made of the child. As a result, Paul B. was determined to be seriously emotionally disturbed within the meaning of the IDEA and, thus, was eligible for free special education and related services. A multidisciplinary team ("M-Team") convened on February 8, 1990 to develop an Individualized Educational Program ("IEP") for Paul B. The M-Team determined that in order to meet his special educational needs, Paul B. required a structured day treatment program at Johnson Academy, a private school operated by the Joe Johnson Mental Health Center. Paul B.'s placement there was made by HCBE through the M-Team process and was paid for by the county pursuant to the Act.

The M-Team decision of February 8, 1990 was recorded on a document entitled the "M-Team summary." On that same date, Paul B.'s father received a "Statement of Parental Rights." According to this statement, the signature of Paul B.'s father on the M-Team summary had the effect of placing his son in the special education program "as recommended."

Paul B. resided at home while attending Johnson Academy. On May 14, 1990, Paul B. was once again admitted to the residential psychiatric treatment program at Pinebreeze on an emergency basis. His father was unaware that residential psychiatric treatment was reimbursable under the Act as a related service if it was required to meet the child's special educational needs. In June 1990, Danny Gaddy of HCBE told him his son's residential psychiatric treatment program at Pinebreeze was possibly a related service covered under the IDEA. Gaddy arranged for an M-Team meeting to be convened on June 5, 1990. The IEP developed by the M-Team recommended educational placement at Pinebreeze retroactive to the date of the May admission. Because the M-Team determined Paul B. needed a residential psychiatric placement to meet his special educational needs, TDMHMR paid for Paul B.'s stay at Pinebreeze.

During the summer and fall of 1990, Paul B.'s father became concerned about what would happen to Paul B. when he was discharged from Pinebreeze, because his son had a long history of being discharged and then readmitted to psychiatric facilities. His family believed that this cycle would continue unless Paul B. was placed in a residential program after discharge from Pinebreeze. They believed he required a therapeutic program for the entire day, which could not be provided in the family home. In addition, they were concerned that they would not be safe with Paul B. in the family home.

For these reasons, his father asked Betty Henry, Paul B.'s Liaison Teacher-Counselor at Pinebreeze, to investigate community residential placements. Ms. Henry located a residential therapeutic group home, the Barton Avenue Group Home ("Barton Avenue" or "the Home"), which was part of the Joe Johnson Mental Health Center, where Paul B. had formerly attended school at Johnson Academy in the day treatment program. She placed Paul B. on the waiting list for placement at the Home and took him on a tour of the facility.

In January 1991, the staff at Pinebreeze determined that Paul B. was ready to be discharged and informed his father that Paul B.'s psychotic symptoms were in remission, and he was no longer in danger of harming himself or others. The staff determined that he had completed the program at Pinebreeze and had progressed to the point at which he needed more interaction with the community. Paul B.'s father indicated to Betty Henry and to the Director of the Children and Youth Program at Pinebreeze that if Paul B. returned home, he and the child would probably have to leave due to the strained environment that resulted when Paul B. lived with the family.

On January 7, 1991, Paul B.'s M-Team reconvened to discuss his IEP after discharge from Pinebreeze. The team included Paul B.'s father, representatives of Pinebreeze School, which was run by TDMHMR, and representatives of HCBE. The records developed during the M-Team meeting indicate that several options were discussed, including the option of placing Paul B. in residential treatment at Barton Avenue. The record indicates that at one point in the discussion, the representatives of Pinebreeze School recommended placement at the Barton Avenue Group Home. Despite having discussed several options for Paul B.'s next educational placement, the M-Team's final decision was drafted as follows:

M-Team requests placement at Johnson Academy in the day treatment program. We believe that he will need up to once per week individual counseling with Dr. Long in order to benefit from his educational placement.

Paul B.'s father was present at the M-Team meeting and signed the M-Team summary, thereby indicating that he agreed with the M-Team's decision. In addition, he signed a separate portion of the IEP on which several of his legal rights as the parent of a handicapped child were listed, including the right to request mediation and review or a Due Process Hearing if he disagreed with the decision of the M-Team. However, Paul B.'s father was not notified that if he wanted to appeal the M-Team's decision, Paul B. could remain at Pinebreeze School during the pendency of the appeal pursuant to the "stay put" provision of the IDEA, 20 U.S.C. § 1415(e)(3), which allows a child to stay in his "current educational placement" during judicial review of a parent's challenge to a proposed IEP that recommends a change in educational placement.

Although Pinebreeze representatives had recommended residential placement at Barton Avenue during the M-Team meeting, they did nothing further to get Paul B. into the Home. Paul B.'s grandfather contacted a person he knew on the Board and got Paul B. admitted. Paul B.'s father made independent arrangements to place his son at Barton Avenue after his release from Pinebreeze. Paul B. was placed at the Home on January 14, 1991, immediately after his discharge from Pinebreeze and seven days after the M-Team meeting. On January 18, 1991, Paul B.'s father entered into a unilateral fee-for-services contract with the Home in which he agreed to pay for the services provided to his son during his stay there. Barton Avenue billed Paul B.'s father for the cost of his son's stay.

In September 1991, Paul B.'s father requested a Due Process Hearing before an administrative law judge ("ALJ"), the purpose of which was to determine who was responsible for the cost of Paul B.'s stay at Barton Avenue. Petitioner Paul B. contended that respondents TDMHMR and HCBE should pay for his residential treatment there. Of the Barton Avenue bill, Paul B.'s family paid $4,500 and $20,208 remained due on the account.

After the Due Process Hearing, which was held on December 18, 1991, an ALJ concluded that TDMHMR...