Wise v. Ohio Dept. of Educ., s. 94-4045

• Decision Date: 10 June 1996
• Docket Number: 94-4096 and 94-4101,Nos. 94-4045,s. 94-4045
• Citation: 80 F.3d 177
• Parties: 108 Ed. Law Rep. 82, 16 A.D.D. 223 Leslie WISE, Sara Waters, David Wise, Patricia Wise, Lloyd Waters, and Barbara Dinkgrave, Plaintiffs-Appellees, v. OHIO DEPARTMENT OF EDUCATION (94-4101), Lorain County Board of Mental Retardation and Developmental Disabilities (94-4045), and Avon Local Board of Education (94-4096), Defendants-Appellants, Our Lady of the Wayside Children's Home, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 177

80 F.3d 177

108 Ed. Law Rep. 82, 16 A.D.D. 223

Leslie WISE, Sara Waters, David Wise, Patricia Wise, Lloyd Waters, and Barbara Dinkgrave, Plaintiffs-Appellees, v. OHIO DEPARTMENT OF EDUCATION (94-4101), Lorain County Board of Mental Retardation and Developmental Disabilities (94-4045), and Avon Local Board of Education (94-4096) Defendants-Appellants Our Lady of the Wayside Children's Home, Defendant-Appellee.

Nos. 94-4045, 94-4096 and 94-4101.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 5, 1996.

Decided April 4, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied June

10, 1996. ^*

On Appeal from the United States District Court for the Northern District of Ohio, Lesley Brooks Wells, Judge.

Susan L. Gragel (argued and briefed), Gold, Rotatori, Schwartz & Gibbons, Cleveland, OH, for Plaintiffs-Appellees.

John P. Ware (argued and briefed), Office of the Attorney General of Ohio, Columbus, OH, for Defendant-Appellant Ohio Department of Education.

John P. Ware, Office of the Attorney General of Ohio, Columbus, OH, Thomas M. Mangan (briefed), Office of the Prosecuting Attorney, Elyria, OH, for Defendants-Appellants Lorain County Board of Mental Retardation and Developmental Disabilities.

John P. Ware, Office of the Attorney General of Ohio, Columbus, OH, for Defendant-Appellant Avon Local Board of Education.

Richard T. Prasse (briefed), Hahn, Loeser & Parks, Cleveland, OH, for Defendant-Appellee Our Lady of the Wayside Children's Home.

David K. Smith, Warhola, O'Toole, Loughman, Alderman & Stumphauzer, Lorain, OH, for Defendant-Appellant Avon Local Board of Education.

Before: KENNEDY and SUHRHEINRICH, Circuit Judges; GILMORE, District Judge. ^**

KENNEDY, J., delivered the opinion of the court, in which SUHRHEINRICH, J., joined. GILMORE, D.J. (p. 186), delivered a separate dissenting opinion.

KENNEDY, Circuit Judge.

Defendants, the Ohio Department of Education, Lorain County Board of Mental Retardation and Developmental Disabilities, and Avon Local Board of Education, appeal the District Court's order awarding summary judgment to two sets of nonresident parents seeking to bar Ohio from collecting tuition for special education services provided in Ohio to the parents' children. ¹ The parents sought declaratory and injunctive relief on the grounds that OHIO REV.CODE ANN. § 3323.141 (Anderson 1994), which requires the state to seek reimbursement from private residential facilities for the cost of providing special education to children who live in the facility but whose parents reside outside Ohio, conflicts with the Individuals with Disabilities Education Act, 20 U.S.C.A. § 1400 et seq. (West 1995) ("IDEA"). The District Court held that Ohio may not irrebuttably presume that children whose parents reside outside Ohio are not Ohio residents; that IDEA requires participating states to provide special education and related services at no cost to parents, even when the parents reside outside the state; and that the parents of Leslie Wise and Sara Waters did not unilaterally change Leslie's and Sara's educational placement when they moved them to a residential facility in Ohio without first requesting a change in the children's placement from their school district in Michigan, because the parents were motivated by a desire to secure high quality residential care for the children rather than simply shopping around for the state offering the best possible special education services. For the following reasons, we reverse.

I

This dispute concerns the financial responsibility for special education services provided in Ohio to two children, Sara Waters and Leslie Wise, whose parents reside outside Ohio. ² Sara Waters was born on October 22, 1974 to Lloyd Waters and Barbara Dinkgrave. In a psychological re-evaluation ³ performed on October 7, 1980, in the Northville Public Schools, in Michigan, Sara was diagnosed as being a "cerebral palsied child," who is "mentally impaired and physically impaired." In a section of the October 13, 1980 report summarizing the October 7, 1980 evaluation entitled "Reason for Evaluation," the school psychologist wrote: "Sara was seen for a re-evaluation [of her] special education services based upon the mandate of Federal Act 94-142." ⁴ The psychologist's report recommended that Sara's then current educational placement at the Taft School in a severely multiply impaired classroom continue:

It is recommended by the examiner that her classroom placement continue in a severely multiply impaired classroom. This type of classroom atmosphere does appear to be appropriate for Sara and to afford the type of environmental stimulation that she needs at this time. The classroom teacher and staff feel comfortable with Sara as a member of the classroom....

The report also indicates that public school officials had convened Educational Planning and Placement Committee meetings for Sara on October 15, 1975, September of 1976, November 3, 1977, and June 19, 1979. Moreover, when Sara began receiving special education at the Taft school, "an Individual Educational Plan meeting was held and Sara was to be provided occupational therapy services 1-3 times weekly, physical therapy 1 time weekly, and speech 1-5 times weekly."

In June of 1982, after giving birth to a second handicapped child, and concluding that they could not care for Sara at home, Sara's parents placed her in a private residential facility, Our Lady of the Wayside Children's Home ("OLW"), in Avon, Ohio. Sara began receiving special education in September of 1982 at the Murray Ridge School, which is operated by the Lorain County Board of Mental Retardation and Developmental Disabilities. Sara has been living at OLW and receiving special education services at the Murray Ridge School since 1982. Now age 20, Sara functions below the level of a two-year-old child; she cannot speak, nor can she walk, feed, or care for her own hygiene without assistance from others.

Leslie Wise was born on November 15, 1977 to David and Patricia Wise in Lakewood Colorado, where she lived until December of 1978. She then moved to Canton, Michigan, where she lived until December 31, 1981. In a November 18, 1980 psychological re-evaluation ⁵ performed in the Northville Public Schools, in Michigan, Leslie was classified in the severely multiply impaired range of special education classifications. In a section of the November 18, 1980 report entitled "Reason for Evaluation," the psychologist wrote: "Leslie Wise was referred for reevaluation to update her file and to assess the appropriateness of her current placement." After noting that Leslie "is making progress in her current placement at Taft School in the Severely Multiply Impaired classroom," the report "recommended that this placement be continued with ancillary services in occupational therapy, physical therapy, and speech therapy to be continued."

When Leslie's parents determined that they could no longer care for her at home, they moved her to OLW on December 31, 1981. After residing in OLW for three years, OLW, the Avon Local Board of Education ("ABLE"), and the Lorain County Board of Mental Retardation and Developmental Disabilities ("LMRDD") developed an Individual Education Placement ("IEP") recommending that Leslie receive special education services at the Murray Ridge School, which is operated by LMRDD. Leslie has been living at OLW since 1982 and has been receiving special education at the Murray Ridge School since 1985. Now age 17, Leslie is profoundly retarded and functions at or below the level of a one-year-old infant; she cannot speak, and she is unable to walk, eat, or use the toilet without aid from others.

Leslie and Sara attended the Murray Ridge School without charge from the time they were admitted until the fall of 1989. At that time, ABLE billed OLW for the cost of Leslie and Sara's special education. At present, ABLE has billed OLW approximately $90,000 for special education services provided to Leslie and Sara for the 1989-90, 1990-91, and 1991-92 school years. In response, OLW informed Leslie's and Sara's parents that they were responsible for any tuition payments it was required to pay Ohio. ⁶

Leslie's and Sara's parents brought suit in federal court seeking a declaration that the statute under which Ohio sought to collect tuition from OLW, OHIO REV.CODE ANN. § 3323.141, was pre-empted by IDEA; the parents also sought to enjoin Ohio from attempting to bill OLW for the special education services already provided. After a lengthy discovery period, the parties submitted cross motions for summary judgment.

The District Court adopted a magistrate judge's finding that IDEA prevented Ohio from collecting tuition payments for special education services, even when the parents of children receiving such services reside outside Ohio. In granting the parents' summary judgment motion, the District Court held that Ohio cannot irrebuttably presume that a child is a non-resident when her parents or legal guardians have never resided in Ohio; that because IDEA requires participating states to provide special education services at no cost to parents, Ohio could not instead bill OLW because OLW would ultimately seek reimbursement from the parents; and that the parents did not unilaterally place the children in OLW without following established procedures for seeking a change in the children's placement from the school district in Michigan. We review the District Court's conclusions de novo. City Management Corp. v. United States Chem. Co., Inc. 43 F.3d 244, 250 (6th Cir.1994).

II

IDEA provides states federal funds to help defray the costs of educating children with disabilities. 20 U.S.C.A. § 1411. To receive federal funds under IDEA, states must abide by a host of regulations governing the provision of educational services. States are required to identify, locate, and evaluate "all children residing in the State who are disabled ... and who are in need of...