O'Toole By and Through O'Toole v. Olathe Dist. Schools Unified School Dist. No. 233

• Decision Date: 19 May 1998
• Docket Number: No. 97-3125,97-3125
• Citation: 144 F.3d 692
• Parties: 126 Ed. Law Rep. 673, 98 CJ C.A.R. 2530 Molly O'TOOLE, By and Through her parents and legal guardians, Kevin and Kathy O'TOOLE, Plaintiff-Counter-Defendant-Appellant, v. OLATHE DISTRICT SCHOOLS UNIFIED SCHOOL DISTRICT NO. 233, Defendant-Counter-Claimant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 692

144 F.3d 692

126 Ed. Law Rep. 673, 98 CJ C.A.R. 2530

Molly O'TOOLE, By and Through her parents and legal guardians, Kevin and Kathy O'TOOLE Plaintiff-Counter-Defendant-Appellant, v. OLATHE DISTRICT SCHOOLS UNIFIED SCHOOL DISTRICT NO. 233 Defendant-Counter-Claimant-Appellee.

No. 97-3125.

United States Court of Appeals Tenth Circuit.

May 19, 1998.

Stephen Walker, Beachwood, OH (James Germer, Kansas Advocacy Program Services, Inc., Topeka, KS, on the opening brief), for plaintiff-counter-defendant-appellant.

Gregory P. Goheen (Daniel B. Denk on the brief), McAnany, Van Cleave & Phillips, P.A., Kansas City, KS, for defendant-counter-claimant-appellee.

Before ANDERSON and KELLY, Circuit Judges, and BRETT, ^* District Judge.

STEPHEN H. ANDERSON, Circuit Judge.

Plaintiff and appellant Molly O'Toole, by and through her parents Kevin and Kathy Fulgham O'Toole, appeals the district court's grant of summary judgment to the defendant Olathe District Schools Unified School District No. 233 in this case involving the Individuals With Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1485. ¹ Molly had challenged the adequacy, under both Kansas law and the IDEA, of the educational services provided to her. We affirm.

BACKGROUND

Molly was born on May 6, 1982, and experienced health problems shortly after her birth. At thirty months of age, she was diagnosed with a hearing problem and soon thereafter began using hearing aids. Subsequent evaluations revealed a moderate to severe sensorineural hearing loss in her right ear and a moderate to profound hearing loss in her left ear.

In the fall of 1988, Molly entered the District's hearing impaired program located at Scarborough Elementary School ("SEC"). While she attended SEC, an individualized educational program ("IEP") was developed for her, in accordance with the IDEA. ² During the 1991-92 school year, Molly was in both a regular and a resource room at SEC.

In the summer of 1992, Molly's biological mother died. In October of 1993 her father married Kathy Fulgham, a co-plaintiff in this case.

This case primarily involves the adequacy of the IEP developed for Molly on February 23, 1993, and subsequently amended on August 23, 1993. The IEP team which developed Molly's February IEP included Kevin O'Toole, Kathy Fulgham, and a multi-disciplinary group of SEC personnel. The district court described the meeting as "pleasant and congenial." O'Toole v. Olathe Dist. Schs. Unified Sch. Dist. No. 233, 963 F.Supp. 1000, 1004 (D.Kan.1997). At the conclusion of the February IEP meeting, Mr. O'Toole received a copy of the IEP and consented to Molly's continued placement at SEC.

During the months following the February IEP meeting, Mr. O'Toole and Ms. Fulgham received reports on Molly's progress. As the district court noted, "these monitoring reports indicated that [Molly] met certain objectives, made adequate progress toward certain objectives, and did not make adequate progress toward other objectives." Id. The district court further observed, and the record supports, that "Mr. O'Toole kept in close contact with [Molly's hearing impaired teacher Deb] Stryker concerning [Molly's] academic progress between February and May of 1993." Id.

In June of 1993, Mr. O'Toole had Molly evaluated at the Central Institute for the Deaf ("CID"), located in St. Louis, Missouri. The CID's report recommended the following for Molly:

1. Molly is in need of full-time special education as a hearing-impaired child with children of similar age and ability. Her skills are insufficient for learning in a regular mainstream class placement. Placement in a regular fifth grade class in fall 1993 is not appropriate.

2. Molly is in need of intensive, individualized reading instruction by teachers experienced with hearing-impaired children.

3. Molly's language and reading should be re-evaluated in one year. Her intellectual abilities should be re-evaluated in three years. She will continue to require annual hearing and hearing aid evaluations.

4. Molly and her family should be proud of the language level she has attained despite her profound hearing impairment and her learning problems. The prognosis for continued improvement in language is considered good if she is given appropriate special education. The prognosis for improvement in reading achievement, even given intensive, individualized instruction, is guarded.

....

6. Molly should continue using her hearing aids in both ears on volume # 3.

Appellant's App. Vol. 4 at 62-63. The CID's evaluation included the assessment that Molly's "nonverbal intellectual abilities are within the low average range and her verbal abilities are below the average range.... It is likely that Molly has learning problems in addition to her hearing impairment." Id. at 62. In July 1993 Molly was accepted as a full-time residential student at the CID. When Mr. O'Toole inquired about reimbursement for tuition and/or expenses incurred by attendance at the CID, the District informed him that tuition reimbursement was unavailable and that it would inquire into expenses reimbursement. Mr. O'Toole and Ms. Fulgham then requested an IEP meeting in late August.

The District assembled an IEP team consisting of many of the same people as attended the February IEP meeting, with a few changes. The district court found that at the August 23 IEP meeting, "the IEP team agreed to follow all of the CID's recommendations." O'Toole, 963 F.Supp. at 1005. The O'Tooles challenge this finding. In any event, various changes were made to Molly's IEP, and at the end of the meeting, all members of the IEP team except the O'Tooles recommended that Molly remain at SEC. Mr. O'Toole disagreed and signed a form terminating the District's services to Molly. There is some disagreement about whether Mr. O'Toole was notified of his right to challenge the adequacy of the IEP through the IDEA's and Kansas' due process procedures. The O'Tooles thereafter enrolled Molly at the CID, where, according to Shortly after the August IEP meeting, the District notified Mr. O'Toole that his request for reimbursement of expenses for Molly's attendance at the CID was denied. Mr. O'Toole and Ms. Fulgham then requested a due process hearing regarding Molly's placement at the CID. ³ A thirteen-day hearing took place over a nine-month period, at the end of which the hearing officer granted the District's dispositive motion, concluding that: (1) Kan. Stat. Ann. § 72-962(f) does not create a greater duty to educate disabled students than does the IDEA; (2) the O'Tooles suffered no prejudice from the District's alleged failure to inform them of their due process rights and they had no right to be informed of the possibility of reimbursement for the costs of sending Molly to the CID; (3) Molly's IEPs adequately set forth annual goals, short term objectives, evaluative criteria, and present levels of functioning; (4) the O'Tooles failed to establish that the related special education services were inappropriate, the level of services offered was inappropriate, or that she was denied necessary services; (5) Molly's degree of academic progress did not equate with a denial of the free appropriate public education ("FAPE") to which she is entitled under the IDEA; and (6) the IEP developed in February and amended in August 1993 satisfied the requirements of both Kansas law and the IDEA.

the O'Tooles, she flourished. At oral argument, her counsel represented that she has subsequently graduated from the CID and is currently attending the Olathe public schools.

The O'Tooles appealed the hearing officer's decision to a reviewing officer appointed by the state board of education. The O'Tooles requested the opportunity to present additional evidence. After reviewing the record, the reviewing officer denied the O'Tooles' request to present new evidence, determining that additional evidence was unnecessary.

The reviewing officer then affirmed the hearing officer's decision on all but three issues. On those three issues, the reviewing officer found that the annual goals and objectives, description of related services, and statement of present levels of functioning generated in the February and August IEPs failed to meet the procedural requirements of Kansas law and the IDEA. The reviewing officer therefore remanded the matter for a determination whether the O'Tooles were due the prospective relief of requiring that the District comply with all procedural requirements in developing future IEPs.

The O'Tooles thereafter sought review in federal district court, see 20 U.S.C. § 1415(e)(2), and the District filed a cross-appeal challenging the reviewing officer's decision concerning the IEPs' compliance with the IDEA and Kansas law and the availability of prospective relief. The district court granted the District's motion for summary judgment, holding that: (1) Kan. Stat. Ann. § 72-962(f) did not establish a higher educational standard or obligation than the IDEA; (2) Molly's IEPs "provided an adequate statement of [her] present educational performance levels;" (3) Molly's IEPs "adequately set forth annual goals;" (4) Molly's IEPs "adequately set forth short-term instructional objectives and procedures by which [her] progress could be measured on at least a twelve week basis;" (5) Molly's IEPs "contained an adequate statement of what specific related services [Molly] was to receive;" and (6) the District "has complied with the IDEA's procedures and ... [Molly's] IEPs were reasonably calculated to enable [Molly] to receive more than de minimis educational benefits as required by the IDEA." O'Toole, 963 F.Supp. at 1012-14. The court also denied the O'Tooles' motion for enlargement of time to file a formal written request to present additional evidence under 20 U.S.C. § 1415(e)(2), finding that the O'Tooles' "counsel did not file this motion prior to the expiration of discovery and ... he has failed to show excusable neglect justifying...