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L.B.,
and J.B., on behalf of K.B., Plaintiffs-Appellants,
v.
Nebo
School District; Nebo Board of Education; Collin Allan, as President
of Nebo Board of Education; Utah State Office of Education; Steven
O. Laing, ED.D., as State Superintendent of Public Instruction; Mae
Taylor, as State Director of Services for At Risk Students, Defendants-Appellees.
No. 02-4169
August
11, 2004
Appeal
from the United States District Court for the District of Utah (D.C.
No. 2:00-CV-889-DAK)
Gary
S. Mayerson, Mayerson & Associates, New York, New York, for Plaintiffs-Appellants.
Brent
A. Burnett, Assistant Attorney General (Mark L. Shurtleff, Utah Attorney
General, Alain Balmanno, Peggy E. Stone, Assistant Attorneys General,
with him on the brief), Salt Lake City, Utah, for Defendants-Appellees.
Before
Ebel, Circuit Judge, Brorby, Senior Circuit Judge, and Murphy, Circuit
Judge.
The opinion
of the court was delivered by: Murphy, Circuit Judge
I.
Introduction
Plaintiffs-Appellants
L.B. and J.B. are the parents of K.B., a child who was diagnosed with
autism spectrum disorder in 1997. After several meetings and the establishment
of K.B.'s individualized education program ("IEP"), which
is required by the Individuals with Disabilities in Education Act
("IDEA"), the Nebo School District ("Nebo") offered
to place K.B. in the Park View Special Education Preschool ("Park
View") starting in the fall of 1998. Although Nebo considered
the mainstream setting of Appellants' choice, Nebo offered Park View
[1] as the only school placement that it thought appropriate for K.B.
Park
View is populated mainly by disabled students, but includes thirty
to fifty percent typically developing children ("typical children")
who are present for the full length of the preschool classes. These
typical children interact with the disabled children. Nebo offered
to increase the ratio of typical children at Park View to accommodate
Appellants' concerns. Although K.B. functions academically at a higher
level than most of the disabled children at Park View, various skill
levels were taught at the school that could have met many of K.B.'s
needs and goals.
In addition
to the Park View placement, Nebo offered to provide K.B. with a few
hours per week of speech and occupational therapy and eight to fifteen
hours per week of Applied Behavioral Analysis ("ABA"). Both
parties agree that ABA was an appropriate method to teach K.B. during
the relevant time period. Nebo concedes that K.B. needed some level
of ABA to make academic progress. The parties disagree, however, about
how much ABA was required. Nebo argues that eight to fifteen hours
per week of ABA programming, in addition to ten classroom hours per
week at Park View, would have sufficed to meet K.B.'s needs. Appellants,
on the other hand, argue that the IEP goals could not have been met
with anything less than forty hours per week of ABA programming.
Appellants
declined the Park View placement offer and kept K.B. in a mainstream
private preschool where K.B. was progressing successfully with the
use of a supplementary aide and at-home ABA program. K.B. received
thirty-five to forty hours per week of ABA instruction ("intensive
ABA program"), which included ten classroom hours per week at
the mainstream private preschool. Despite subsequent IEP meetings,
Nebo never offered to pay for K.B.'s supplementary aide or to fund
her intensive ABA program in full.
In December
1999, Appellants requested an administrative due process hearing to
seek reimbursement for the cost of K.B.'s intensive ABA program [2]
and supplementary aide. Appellants requested reimbursement for their
expenditures from October 2, 1997 through the end of K.B.'s 1999-2000
preschool year. The due process hearing was held in March, May, and
July of 2000.
Hearing
officers preside over due process hearings. At the relevant time,
persons interested in becoming due process hearing officers could
present their candidacy by signing up for training. Utah's hearing
officer selection process is designed to avoid appointing hearing
officers who might be or appear to be biased. The Utah State Board
of Education's ("USBE") list of eligible hearing officers
consists of private attorneys, county attorneys, an attorney from
the Administrative Office of the Courts, retired university professors,
retired school district employees, as well as current school district
employees and attorneys. The record shows that from 1998 until K.B.'s
hearing in 2000, Utah parents and disability-advocates had expressed
concerns that USBE's list of hearing officers appeared to favor school
districts, and that certain hearing officers were more often chosen
to preside over hearings than others.
At the
time relevant to this appeal, the hearing officers underwent training
before they were allowed to preside over due process hearings. The
trainers were attorneys who represented both school districts and
parents, although most trainers represented school districts. Hearing
officers were trained to be impartial. When initially assigned a case,
the hearing officers were specifically asked if they could be impartial
in that particular case and were not selected if they could not be
impartial.
The hearing
officer who presided over K.B.'s due process hearing was Dr. Steven
Hirase. [3] Hirase is an assistant superintendent in the Murray School
District. Hirase does not work for the Utah State Office of Education
("USOE"). At the relevant time, Hirase was married to a
woman who worked in the Jordan School District, which is the same
school district that employed Nebo's autism expert witness, Melisa
Genaux. Despite this connection, there is no evidence that Hirase's
wife and Genaux had ever worked together. In fact, Appellants do not
even allege that the women knew each other.
Appellants
moved to disqualify Hirase. Hirase denied the motion and presided
over K.B.'s due process hearing. Hirase concluded that the 1998-1999
and the 1999-2000 IEP provided K.B. with a free and appropriate public
education ("FAPE") in a least restrictive environment (sometimes
referred to as "LRE").
Appellants
then filed a complaint in the United States District Court for the
District of Utah, seeking review of Hirase's decision and alleging,
inter alia, both procedural and substantive violations of the
IDEA. The substantive IDEA claim was premised on the theory that K.B.
was denied a FAPE in a least restrictive environment. The procedural
IDEA claim was premised on the theory that K.B. was denied an impartial
hearing because Hirase was biased. Appellants also argued that they
could not secure an impartial hearing officer because the USBE's list
of hearing officers was "aligned with the interests of school
districts." Appellants sought compensatory damages to reimburse
them for their expenditures on K.B.'s supplementary aide and intensive
ABA program, as well as costs and attorneys' fees. No claim was made
for the private preschool's tuition.
The parties
filed cross-motions for summary judgment. The district court affirmed
Hirase's decision and granted summary judgment to Nebo. In doing so,
the district court reasoned that the Park View placement was the LRE
for K.B and that Appellants were not entitled to reimbursement under
the IDEA for the 1997-1998 incomplete IEP. [4] The district court
also concluded that Hirase was not biased against K.B. in violation
of the IDEA's procedural safeguards or the Due Process Clause of the
Fourteenth Amendment. L.B. and J.B. appeal.
Exercising
jurisdiction pursuant 28 U.S.C. § 1291, this court affirms in
part and reverses in part the district court's grant of judgment to
Nebo. It grants judgment in part to Appellants and remands this case
to the district court for further proceedings consistent with this
opinion.
II.
Background
In October
1997, Appellants requested that Nebo pay only for K.B.'s speech and
occupational therapy. Nebo provided these services in Appellants'
home. During the 1997-1998 school year, Nebo also placed K.B. on a
waiting list for Park View.
In the
fall of 1998, Appellants placed K.B., at their own expense, in a private
preschool populated exclusively by typical children. [5] On October
10, 1998, after K.B. had already started private preschool, J.B. requested
that Nebo pay for K.B.'s intensive ABA program and supplementary aide.
Appellants never asked Nebo to pay for tuition at the private mainstream
school. [6] At an IEP meeting on October 28, 1998, Appellants once
again asked only that Nebo pay for K.B.'s intensive ABA program and
supplementary aide. Although Appellants generally agreed with the
goals of Nebo's proposed IEP, they expressed their disagreement with
Nebo's proposal to place K.B. at Park View for ten hours per week
and with Nebo's offer to pay for only eight hours per week of one-on-one
ABA services. [7] In November 1998, Appellants again told Nebo that
they were dissatisfied with the Park View placement offer and that
they felt K.B. would regress if she did not have an intensive ABA
program in addition to her mainstream preschool. Appellants noted
their desire to have the preschool portion of the IEP take place in
a setting with all typical children.
In January
1999, Appellants sent Nebo a letter indicating their intent to file
for a due process hearing. Thereafter, Nebo increased its offer to
fifteen hours per week of one-on-one ABA, but continued to offer Park
View as the school placement. In May 1999, Appellants accepted Nebo's
offer to pay K.B.'s private tutors for fifteen hours of one-on-one
ABA per week, and to continue paying for speech and occupational therapy,
without prejudice to their claim that this was insufficient.
In December
1999, Nebo sent its autism specialist, Melisa Genaux, to observe K.B.
once at her mainstream preschool and twice at her home ABA program.
Based on her observation of K.B. at preschool, Genaux opined that
K.B. sought too much reassurance from her aide and was not sufficiently
independent. During her in-school observation, Genaux was in the same
room as, and sometimes in close proximity to, K.B. and her aide. Genaux
testified that at-home placements are considered to be the most restrictive
of all learning environments. Genaux stated that in her opinion, Park
View met K.B.'s educational and developmental needs despite the presence
of other disabled children. Genaux admitted, however, that K.B. was
more high-functioning than any of the autistic children at Park View.
Other evidence in the record shows that K.B. needed to work on her
spontaneity, independence, communication, and social skills, but was
progressing at her mainstream school with very subtle prompting from
her aide.
K.B.
made very good academic progress at her mainstream preschool with
the assistance of her supplementary aide and intensive at-home ABA
program. [8] Academically, K.B. was the most advanced child at her
private, mainstream preschool, although she still had social deficits.
The combination of an intensive ABA program and supplementary aide
worked to treat K.B.'s behavioral, social, and linguistic problems,
[9] and according to her expert, she was making "impressive gains."
Evidence shows that treating these problems was necessary to K.B.'s
ability to function in a mainstream school environment.
The supplementary
aide, Sarah Adolphson, was critical to ensuring that K.B.'s one-on-one
ABA gains were maintained in the mainstream preschool classroom. Whenever
K.B. engaged in maladaptive behaviors at school, Adolphson prompted
her to the proper response. In addition, Adolphson brought home information
about the areas in which K.B. needed improvement, thus ensuring that
the home portion of the ABA program focused on the skills K.B. needed
at school. During the school year of 1999-2000, K.B. relied less and
less upon Adolphson, who was being fazed out as an aide. There were
days when Adolphson did not even accompany K.B. to the private preschool.
On those days, the teacher identified some of K.B.'s problems and
attempted to re-direct her to the appropriate behavior.
In contrast,
Appellants' expert, Dr. James Mulick, testified that Nebo's proposed
eight hours per week of at-home ABA treatment would "have the
same effect as no treatment" for an autistic child. Mulick further
testified that forty hours per week of at-home ABA programming was
recommended for K.B. at the relevant time. Likewise, K.B.'s consultant,
Steven Michalski, testified that an ABA program of thirty to forty
hours per week would be less than optimal, but sufficient, for an
autistic child. Dr. John McEachin, who was an ABA consultant to K.B.
and who, as a graduate student, assisted in conducting the leading
ABA scientific study at the Lovaas clinic in California ("Lovaas
Study"), opined that thirty to forty hours per week is considered
the minimum therapeutic level of ABA. The Lovaas Study showed that
the vast majority of children who received only ten hours per week
of early ABA intervention could not be successfully integrated into
a mainstream classroom.
On the
other hand, Mulick admitted that he has known children who progressed
with only twelve to fifteen hours of ABA treatment. Nebo's expert,
Dr. Annette Jerome, opined that K.B. could have made progress with
as little as ten to twelve hours of one-on-one ABA per week, in conjunction
with the Park View preschool time. Another expert testified that the
forty-hour-per-week model is not used for all autistic children, and
that the necessary intervention level differs for each child. Genaux
testified that between September and December 1997, when K.B. was
only receiving twenty hours per week of ABA programming, [10] K.B.
mastered a number of skills, made significant progress, and received
educational benefit from the program. Genaux also opined that K.B.
would have "made very good gains" with ten hours per week
at Park View plus eight to ten hours per week of one-on-one ABA.
Although
some witnesses mentioned Nebo's limited resources when discussing
the services offered to K.B., Nebo's officials specifically testified
that costs did not determine which services were offered to K.B. Allen
Gurney, Nebo's coordinator of special education, testified that it
was never Nebo's position that "we don't [pay for K.B.'s full
intensive ABA program] because we don't have enough money." Nebo
specifically argued on appeal that "cost never entered into [its]
decision to provide services," and that it "never said it
would not provide a particular service solely because of cost concerns."
The hearing officer did not make any findings that Nebo considered
costs in suggesting the Park View placement for K.B. Nevertheless,
evidence shows that K.B.'s supplementary aide and intensive ABA program
cost $50,000 to $63,800 per year. Nebo's entire preschool budget is
$360,000 to $400,000 per year.
Evidence
presented at the due process hearing shows that autistic children
who are not integrated with typical children do not progress. Experts
testified that the nature of autism generally, and K.B.'s weaknesses
in particular, render a mainstream environment particularly well-suited
because such an environment is more likely to increase independence,
improve social skills, and increase the chances of future normal functioning.
K.B. was in fact progressing in her social interactions with her typically
developed peers at her mainstream preschool.
In contrast,
experts testified that K.B. would not have benefitted from a special
education program. Park View's predominantly disabled student body
could have caused K.B. to regress because of the risk that K.B. would
have emulated the disabled children's maladaptive behaviors and received
insufficient intervention for her own inappropriate behaviors. Park
View's students had a variety of disabilities and a wide range of
functioning abilities. One of the ABA instructors testified that Park
View would have been an inappropriate placement for K.B. given her
need to improve her social skills.
Park
View's teacher, however, testified that there were "more good
role models" at Park View than there were children with maladaptive
behaviors, and that K.B. would have benefitted from appropriate role
models at Park View. Nebo's experts testified that Park View would
have been an appropriate environment for K.B. that would have met
her needs "very well." A Nebo witness testified that the
presence of children with deficient linguistic skills would not have
deleteriously impacted K.B.
Park
View's student body was predominantly male. Typically, preschool boys'
social interactions are less sophisticated than those of similarly
aged girls. Experts testified that K.B. would make better progress
in a more gender-balanced environment, such as her mainstream private
preschool, where she was exposed to the more developmentally complex
social interactions in which girls engage. Nevertheless, K.B. could
have benefitted educationally from Park View despite the gender imbalance.
Based
primarily on Genaux's testimony, Hirase concluded that Nebo did not
violate the LRE requirement. He concluded that Appellants had failed
to present evidence that K.B. was progressing on her IEP goals at
the mainstream private preschool. Further, Hirase reasoned that because
K.B.'s experts testified that she needed thirty to forty hours of
ABA per week, and ten of those hours were spent at her mainstream
private preschool, she needed only twenty to thirty hours of at-home
ABA programming. Hirase therefore found that K.B. did not require
forty hours per week of at-home ABA programming.
III.
Discussion
The IDEA
sets up an unique standard for a federal court's review of the administrative
due process hearing. 20 U.S.C. § 1415(i)(2). A district court
applies a modified de novo standard in reviewing a hearing officer's
decision under the IDEA. Murray v. Montrose County Sch. Dist.,
51 F.3d 921, 927 (10th Cir. 1995). It looks at the record of the administrative
proceedings and decides, based on a preponderance of the evidence,
whether the requirements of the IDEA are met. Id. In so doing,
it must give "due weight" to the hearing officer's findings
of fact, which are considered prima facie correct. Id. at 927
n.11. Although the district court may accept additional evidence,
such evidence is merely supplemental to the administrative record.
See 20 U.S.C. § 1415(i)(2)(B); Ojai Unified Sch. Dist. v.
Jackson, 4 F.3d 1467, 1472-73 (9th Cir. 1993). The district court's
proceedings must maintain the character of review and not rise to
the level of a de novo trial. Ojai, 4 F.3d at 1473.
This
court reviews the district court's disposition of this case de novo,
applying the same standard employed by the district court. Murray,
51 F.3d at 928. Because the IDEA requires a district court to grant
a judgment on the record based on its own ascertainment of the preponderance
of the evidence, many IDEA claims do not fit into the typical summary
judgment standard of "no genuine issues of material fact."
See 20 U.S.C. § 1415(i)(2)(B); Loren F. v. Atlanta Indep.
Sch. Sys., 349 F.3d 1309, 1313-14 (11th Cir. 2003). Although the
district court called its disposition of this case a grant of "summary
judgment," the record shows that the disposition was in fact
a judgment on the administrative agency's record. The evidence relevant
to this court's disposition of this case, i.e., the least restrictive
environment, stems entirely from the administrative record. [11]
This
court need not decide whether all summary judgment dispositions under
the IDEA will always be "'better described as judgment[s] on
the record.'" See Loren F., 349 F.3d at 1313 (quoting
Beth B. v. Van Clay, 282 F.3d 493, 496 n.2 (7th Cir. 2002)
(holding that summary judgments in IDEA cases are truly judgments
on the record and are appropriate even when facts are in dispute,
based on a preponderance of the evidence)). Instead, this court merely
holds that, under the circumstances of this case, the district court
conducted a bench trial on the administrative record which this court
reviews de novo, applying the same IDEA standard that was employed
by the district court. See Ojai, 4 F.3d at 1472. The district
court's interpretations of the statute at issue are reviewed de novo.
Murray, 51 F.3d at 928.
"The
IDEA is a comprehensive statute enacted to ensure that all children
with disabilities have access to a free and appropriate public education
designed to meet their unique needs." Id. at 925 (quotations
and alterations omitted). The IDEA provides federal grants to states,
which the states then give to local educational agencies to assist
in educating students with disabilities. Fowler v. Unified Sch.
Dist. No. 259, 107 F.3d 797, 801 (10th Cir. 1997). The IEP is
the basic mechanism through which each child's individual goals are
achieved. Murray, 51 F.3d at 925. The IDEA contains both procedural
requirements to ensure the proper development of an IEP, and substantive
requirements designed to ensure that each child receives a FAPE. Id.
States must comply with the IDEA's requirements, including providing
each disabled child with a FAPE in an LRE, in order to receive funds
under the statute. 20 U.S.C. § 1412 (a)(1) and (a)(5).
On appeal,
Appellants argue that Nebo: (1) violated the IDEA's procedural mandates
because Hirase was not impartial and because of other procedural improprieties;
(2) failed to provide K.B. with a FAPE; and (3) failed to provide
an LRE for K.B by offering only the Park View placement with an ABA
supplemental program. Thus, they argue, the district court erred in
concluding, as a matter of law, that Nebo did not violate the IDEA.
For the
reasons stated below, this court concludes that Hirase was an impartial
hearing officer within the meaning of the IDEA. Therefore, K.B. was
not denied an impartial hearing in violation of the IDEA's procedural
safeguards. [12] Likewise, for the reasons stated in the district
court's order, neither the hearing officer selection and training
process nor Hirase's service as a hearing officer violated K.B.'s
due process rights. In addition, this court concludes that Park View
was not K.B.'s least restrictive environment. Because this conclusion
establishes a violation of the IDEA's substantive LRE provision, this
court need not address whether Nebo provided K.B. with a FAPE. [13]
1.
Alleged Procedural Violation of IDEA
Appellants'
argument that K.B. was denied an impartial hearing in violation of
the IDEA is unavailing. Hirase was an impartial hearing officer within
the meaning of the IDEA. [14] Under its procedural safeguards, the
IDEA sets out a minimum standard of impartiality which prohibits "an
employee of the State educational agency or the local educational
agency involved in the education . . . of the child" from conducting
the due process hearing. 20 U.S.C. § 1415(f)(3). Hirase was neither
an employee of USOE nor of the Nebo School District. Hirase's employment
at the Murray School District, which is a separate district from Nebo,
does not constitute employment at the "local educational agency."
Hirase therefore meets the minimum standard of impartiality set out
in the statute. Id.
Likewise,
Hirase did not have a personal or professional interest that would
conflict with his objectivity. The IDEA has been interpreted as prohibiting
"any person having a personal or professional interest that would
conflict with his or her objectivity in the hearing" from conducting
a due process hearing. 34 C.F.R. § 300.508(a)(2). Hirase's wife's
mere employment in the same school district as Genaux does not constitute
a conflicting interest, particularly because there is no evidence
that the women even knew each other. Therefore, K.B. was not denied
an impartial hearing within the meaning of the IDEA.
2.
LRE Requirement
In enacting
the IDEA, Congress explicitly mandated, through the least restrictive
environment requirement, that disabled children be educated in regular
classrooms to the maximum extent appropriate. 20 U.S.C. § 1412(a)(5)(A).
The LRE mandate provides that "removal of children with disabilities
from the regular educational environment occur only when the nature
or severity of the disability of a child is such that education in
regular classes with the use of supplementary aids and services cannot
be achieved satisfactorily." Id. Educating children in
the least restrictive environment in which they can receive an appropriate
education is one of the IDEA's most important substantive requirements.
Murray, 51 F.3d at 926. Thus, the LRE requirement is a specific
statutory mandate. It is not, as the district court in this case mistakenly
believed, a question about educational methodology. See Greer v.
Rome City Sch. Dist., 950 F.2d 688, 699 (11th Cir. 1991).
In determining
whether the least restrictive environment mandate in the IDEA has
been violated by a school district, circuit courts have developed
variations of an LRE test that weigh several different factors. The
Third and Fifth Circuits adopted the two-part Daniel R.R. test,
[15] in which the court: (1) determines whether education in a regular
classroom, with the use of supplemental aids and services, can be
achieved satisfactorily; and (2) if not, determines if the school
district has mainstreamed the child to the maximum extent appropriate.
Murray, 51 F.3d at 926 n.10 (quoting Daniel R.R. v. Bd.
of Educ., 874 F.2d 1036, 1048 (5th Cir. 1989)); Oberti v. Bd.
of Educ., 995 F.2d 1204, 1215 (3d Cir. 1993).
Those
circuits consider the following non-exhaustive factors in determining
whether the first prong of the Daniel R.R. test has been met:
(1) steps the school district has taken to accommodate the child in
the regular classroom, including the consideration of a continuum
of placement and support services; (2) comparison of the academic
benefits the child will receive in the regular classroom with those
she will receive in the special education classroom; (3) the child's
overall educational experience in regular education, including non-academic
benefits; and (4) the effect on the regular classroom of the disabled
child's presence in that classroom. Murray, 51 F.3d at 926
n.10; Oberti, 995 F.2d at 1216-17; Daniel R.R., 874
F.2d 1048-50.
The Ninth
Circuit applies a slightly varied version of the Daniel R.R.
test, which considers, in assessing the first prong of the test, the
costs of mainstreaming the child in addition to the four factors listed
above. [16] Sacramento Unified Sch. Dist. v. Rachel H., 14
F.3d 1398, 1404 (9th Cir. 1994). Likewise, the Eleventh Circuit considers
the cost of supplementary aides and services necessary to maintain
the child in the regular classroom alongside the other factors under
the first prong of the Daniel R.R. test for least restrictive
environment. Greer, 950 F.2d at 697. The Seventh Circuit has
also acknowledged that the cost of mainstreaming the child is relevant
to determining compliance with the LRE mandate. See Sch. Dist.
of Wis. Dells v. Littlegeorge, 295 F.3d 671, 672 (7th Cir. 2002).
No single factor, however, is dispositive. Greer, 950 F.2d
at 696. Nor are the above factors exhaustive. Id. at 697. These
circuits' LRE tests acknowledge the fiscal reality that school districts
with limited resources must balance the needs of each disabled child
with the needs of other children in the district. Id.
The Fourth,
Sixth, and Eighth Circuits apply the Roncker test, which states
that "[i]n a case where the segregated facility is considered
superior, the court should determine whether the services which make
that placement superior could be feasibly provided in a non-segregated
setting." Devries v. Fairfax County Sch. Bd., 882 F.2d
876, 879 (4th Cir.1989); A.W. v. N.W. R-1 Sch. Dist., 813 F.2d
158, 163 (8th Cir. 1987); Roncker v. Walter, 700 F.2d 1058,
1063 (6th Cir. 1983). "If they can, the placement in the segregated
school would be inappropriate under the Act." Roncker,
700 F.2d at 1063.
This
Circuit has not yet adopted a specific standard for determining whether
the LRE requirement has been met. See Murray, 51 F.3d at 927.
The facts of this case, however, directly involve a school district's
refusal to fund the level of supplementary aids and services which
Appellants allege were necessary to keep a child in a regular classroom
and its concomitant offer of placing the child in a mixed classroom
environment instead. These facts necessitate this court's adoption
of an LRE test. See id. at 930. This court does not adopt the
Roncker test for an LRE. The Roncker test is most apposite
in cases where the more restrictive placement is considered a superior
educational choice. See id. This feature makes the Roncker
test unsuitable in cases where the least restrictive placement is
also the superior educational choice. For that reason, the Roncker
test is not appropriate in all cases. The Daniel R.R. test,
on the other hand, better tracks the language of the IDEA's least
restrictive environment requirement and is applicable in all cases.
See Oberti, 995 F.2d at 1215.
This
court need not decide whether costs of mainstreaming should be one
of the factors considered in the LRE test because Nebo has explicitly
disclaimed on appeal that cost concerns determined the placement and
services it offered to K.B. As stated above, this court is persuaded
by the Daniel R.R. test and by the reasoning of the other circuits
which have adopted it. Because costs are not at issue in this case,
however, this court adopts and applies to this case only the non-cost
factors of the Daniel R.R. test for a least restrictive environment.
Nebo
argues that the Park View placement is less restrictive than K.B.'s
placement at the mainstream preschool, where she was "relying
heavily" on her supplementary aide and required the support of
an intensive at-home ABA program. This argument is unavailing. Genaux's
short observation of K.B. and resulting opinion that K.B. relied too
heavily on her aide is not persuasive on the issue of whether Park
View school was the LRE for K.B. The preponderance of the evidence
shows that K.B. did not rely heavily on her aide and that the aide
was being successfully phased out.
Thus,
this case turns on the first prong of the Daniel R.R. LRE test,
i.e., whether education in the regular classroom, with the use of
the supplemental aide and services, can be achieved satisfactorily.
This court therefore analyzes the factors set out above.
The Daniel
R.R. factors weigh in favor of a conclusion that Park View was
not the LRE for K.B. First, Nebo considered accommodating K.B. in
her regular private school. Nebo considered this option by sending
Genaux to evaluate K.B. at the mainstream school and by continuously
reevaluating K.B. and her IEP at her parents' request. These actions
tip the first factor in Nebo's favor.
A preponderance
of the evidence shows that the academic benefits which K.B. derived
from the mainstream classroom are greater than those she would have
received in Park View's classroom. Despite the hearing officer's contrary
conclusion, the evidence shows that K.B. was succeeding in the mainstream
classroom with the assistance of her aide and intensive ABA program.
The record shows that K.B. was the most academically advanced child
in her mainstream classroom. On the other hand, although Park View's
teacher adjusted her teaching to cater to various skill levels, Park
View's students functioned at a considerably lower level than K.B.
Thus, K.B. benefitted academically much more from her regular classroom
than she would have from Park View's hybrid classroom. This factor
strongly favors a conclusion that Park View was not the least restrictive
environment for K.B.
Likewise,
the non-academic benefits of K.B.'s mainstream classroom outweigh
the non-academic benefits she could have received at Park View. K.B.'s
primary needs involved improving her social skills. A preponderance
of the evidence shows that the mainstream classroom provided K.B.
with appropriate role models, had a more balanced gender ratio, and
was generally better suited to meet K.B.'s behavioral and social needs
than was Park View's hybrid classroom. [17] Thus, this factor strongly
weighs in favor of a conclusion that Park View was not K.B.'s least
restrictive environment.
Finally,
although she had some behavioral problems such as tantruming, K.B.
was not disruptive in the regular classroom. Thus, this factor also
weighs in favor of a conclusion that Park View was not the LRE for
K.B. Because a preponderance of the evidence shows that the LRE factors
weigh in Appellants' favor, this court concludes that K.B. was denied
an education in a least restrictive environment. Nebo thereby violated
the IDEA and the district court improperly granted judgment to Nebo.
Instead, the court should have granted judgment to Appellants on the
ground that Nebo violated the LRE requirement of IDEA.
K.B.'s
parents are entitled to reimbursement for the reasonable cost of the
services provided to K.B. in support of her mainstream preschool education.
See Florence
County Sch. Dist. v. Carter, 510 U.S. 7, 11, 15 (1993). Parents
are entitled to reimbursement under the IDEA if: (1) the school district
violated the IDEA; and (2) the education provided by the private school
is reasonably calculated to enable the child to receive educational
benefits. See id.; Sch.
Comm. of Burlington v. Dept. of Educ., 471 U.S. 359, 370 (1985).
In this case, Nebo violated the IDEA by failing to provide K.B. with
an LRE. In addition, K.B. benefitted significantly, both academically
and non-academically, from her private mainstream preschool. K.B.'s
performance at her private preschool far exceeded the legal measure
of an appropriate education, which is "progress from grade to
grade." Carter,
510 U.S. at 11 (quotation omitted). Therefore, the education provided
at the private school, supported by the supplementary aide and intensive
ABA program, is reasonably calculated to enable K.B. to receive educational
benefits.
For these
reasons, Appellants are entitled on remand to reimbursement for the
reasonable costs of the ABA and aide services provided to K.B. in
support of her private mainstream education. At the district court's
discretion, Appellants are also eligible for reasonable attorneys'
fees and litigation costs. See 20 U.S.C. § 1415(i)(3)(B). This
court notes, however, that the district court should determine whether
any equitable considerations limit the amount of reimbursement to
which Appellants are entitled. [18]
IV.
Conclusion
For the
foregoing reasons, this court affirms in part and reverses in part
the district court's grant of judgment to Nebo and remands this case
for further proceedings consistent with this opinion.
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Footnotes
[1]
Nebo does not have a mainstream preschool. All of its preschools are
mixed environments that focus on special education while incorporating
some typical children.
[2] Costs
of the ABA program for which Appellants sought reimbursement include:
(1) forty hours per week of ABA services; (2) seven and one-half hours
per week of preparation time for ABA therapists to plan for individual
sessions; (3) two and one-half hours per week for a team meeting with
K.B.'s five ABA therapists; (4) one day per month for an ABA consultant
to train the five therapists; (5) materials for ABA program; (6) one
hour of speech therapy per week; and (7) occupational therapy as needed.
[3] A
different hearing officer, Ralph Haws, had originally been selected
by the USBE to preside over K.B.'s hearing. Appellants moved for Haws'
recusal. Haws, however, recused himself because of a family illness.
In accordance with the USBE's hearing officer selection policy in
effect at the time, Hirase was appointed by USBE after the parties
failed to agree to a hearing officer.
[4] Hirase
concluded that the 1997-1998 IEP did not provide K.B. with a FAPE.
He nevertheless concluded that Appellants were not entitled to damages
for the 1997-1998 FAPE violation because they waived their right to
seek reimbursement. The district court affirmed Hirase's conclusions
regarding the 1997-1998 school year. In this appeal, Appellants do
not specifically challenge the district court's denial of reimbursement
for the 1997-1998 FAPE violation. As a consequence, this court does
not address, and this opinion does not affect, the portion of the
district court's grant of summary judgment to Nebo which pertains
to the 1997-1998 school year.
[5] During
the 1998-1999 school year, K.B. went to the private preschool for
five hours per week. During the 1999-2000 school year, K.B. attended
the private preschool for ten hours per week.
[6] The
private school tuition was $100 per month. On appeal, K.B.'s counsel
reiterated that Appellants never asked, and do not ask on appeal,
to be reimbursed for the private school tuition.
[7] Nebo
originally offered to pay for eight hours per week of one-on-one ABA,
which would have been provided by K.B.'s private tutors, who were
hired by Appellants.
[8] The
ABA program was provided by five different therapists. K.B.'s thirty-five
to forty hours of ABA were structured as follows: (1) K.B. spent ten
hours per week at the mainstream preschool with Sarah Adolphson's
assistance as her aide; (2) K.B. spent an additional ten to twenty
hours per week with Adolphson as part of her at-home, one-on-one ABA
program; (3) K.B. spent an average of five to ten more hours on at-home,
one-on-one ABA instruction with her other therapists; (4) starting
in the summer of 1998, K.B. spent approximately seven to ten hours
per week on peer play with a tutor who observed her interactions and
redirected her behavior when needed; (5) starting in the summer of
1999, K.B. also spent two and one-half to three and one-half hours
per week in a play group with tutors who observed and redirected her
conduct.
[9] K.B.'s
problems included inept social skills, inability to properly communicate
with other children and express subtle emotions, self-talk, and tantruming.
[10]
During this time period, however, Appellants were working to teach
K.B. skills during "every waking moment," in addition to
the twenty hours per week of ABA. Evidence shows that parents are
a very important component of autism intervention because they can
informally extend therapy beyond the formal treatment sessions.
[11]
The district court received some supplemental evidence as allowed
under the IDEA. The new evidence pertained to the issue of Hirase's
bias.
[12]
Appellants argue on appeal that there were other procedural violations
of the IDEA. Although Appellants raised the issue of Hirase's alleged
bias at the district court, they did not present to the district court
any arguments regarding the other purported procedural violations
of the IDEA. For that reason, this court declines to address Appellants'
other procedural arguments. Lyons v. Jefferson Bank & Trust,
994 F.2d 716, 721 (10th Cir. 1993) (this court will normally not consider
an issue that was not presented to, considered, and decided by the
district court).
[13]
The IDEA requires both that the child be provided a FAPE and that
such a FAPE be provided in an LRE to the maximum extent appropriate.
See Murray v. Montrose County Sch. Dist., 51 F.3d 921, 925-26
(10th Cir. 1995). The IDEA's substantive provisions are violated if:
(1) the school district fails to provide a child with a FAPE; or (2)
a FAPE is provided, but not, to the maximum extent appropriate, in
a least restrictive environment. See 20 U.S.C. § 1412 (a)(1),
(a)(5); Murray, 51 F.3d at 925-26. Our reversal of the district
court's grant of judgment to Nebo rests solely on the ground that
Park View was not the LRE for K.B.
[14]
Because this court concludes that Hirase was an impartial hearing
officer, it need not address Appellants' secondary argument that they
could not secure an impartial hearing officer because the USBE's list
of hearing officers was "aligned in favor of the school districts."
[15]
Daniel R.R. interpreted the least restrictive environment requirement
of the IDEA's predecessor, the Education of the Handicapped Act ("EHA").
See Daniel R.R. v. Bd. of Educ., 874 F.2d 1036, 1038 (5th Cir.
1989). The Daniel R.R. test has, however, been adopted by the
Third Circuit in interpreting the IDEA's LRE requirement. See Murray,
51 F.3d at 926 n.10.
[16]
The Oberti and Daniel R.R. courts acknowledged that
the cost of mainstreaming may be relevant in determining whether a
school district has complied with the LRE mandate. Oberti v. Bd.
of Educ., 955 F.2d 1204, 1218 n.25 (3d Cir. 1993); Daniel R.R.,
874 F.2d at 1049 n.9. Those courts did not consider cost a factor,
however, because the facts of the cases before them did not involve
cost concerns. Oberti, 955 F.2d at 1218 n.25; Daniel R.R.,
874 F.2d at 1049 n.9.
[17]
This court does not mean to imply that only an exclusively mainstream
environment meets the IDEA's LRE mandate for all children. School
officials are not required to provide an exclusively mainstream environment
in every case, and partial integration may well constitute the provision
of an LRE to the "maximum extent appropriate." See T.R.
v. Kingwood Bd. of Educ., 205 F.3d 572, 579 (3d Cir. 2000) (IDEA
does not contemplate an all-or-nothing educational system in which
handicapped children attend either regular or special education);
Daniel R.R., 874 F.2d at 1045.
[18]
The Supreme Court held, in School
Committee of Burlington v. Department of Education and in
Florence
County School District v. Carter, that equitable considerations
can limit the amount of recovery. See Florence
County Sch. Dist. v. Carter, 510 U.S. 7, 16 (1993) (courts
fashioning equitable relief under the IDEA must consider all relevant
factors, including the appropriate and reasonable level of reimbursement);
Sch.
Comm. of Burlington v. Dept. of Educ., 471 U.S. 359, 370 (1985).
Nebo argued at the administrative hearing that equitable considerations
such as the intensity and cost of K.B.'s ABA program should be considered
in determining whether full reimbursement is proper. Upon remand,
the district court should consider equitable factors such as whether
K.B. needed forty hours of ABA per week in order to succeed in her
mainstream classroom. In considering this equitable factor, the district
court should give due deference to Hirase's finding that K.B. needed
only twenty to thirty hours of at-home ABA programming combined with
the Park View placement. Another appropriate equitable consideration
would be whether total reimbursement for K.B.'s ABA program and supplementary
aide for the 1998-1999 and 1999-2000 school years would impose a disproportionate
burden on Nebo's preschool budget. See Carter, 510 U.S. at
16 (total reimbursement is not appropriate if the court determines
that the cost of the child's education was unreasonable). Whereas
the issue of the allegedly unreasonable cost of K.B.'s ABA program
was not presented to the district court in the context of LRE, it
was presented in the context of equitable considerations under Burlington
and Carter.
As a consequence, in the latter context this issue has not been waived.
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