Greenland School v. Amy N., (1st Cir. 2004)

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United States Court of Appeals

For the First Circuit



Nos. 03-1668

03-1697

GREENLAND SCHOOL DISTRICT,

Appellee, Cross-Appellant,

v.

AMY N., as parent and next friend of minor daughter, KATIE C.;

ROBERT N., as parent and next friend of minor daughter, KATIE C.,

Appellants, Cross-Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

Before

Lynch, Circuit Judge,

Campbell, Senior Circuit Judge, and

Lipez, Circuit Judge.

Scott F. Johnson, with whom Michael R. Chamberlain and Stein,

Volinsky & Callighan were on brief, for appellants.

Jeanne M. Kincaid, with whom Jennifer D. Sawyer and Bernstein

Shur, Sawyer & Nelson were on brief, for appellees.

Ronald K. Lospennato, with whom Wendy B. Paget was on brief,

for amici curiae the Disabilities Rights Center, the New Hampshire

Psychiatric Association, the Asperger's Association of New England,

and the National Alliance for the Mentally Ill, New Hampshire.

Diane M. Gorrow, with whom Steven R. Sacks and Soule, Leslie,

Kidder, Sayward & Loughman were on brief, for amici curiae the New

Hampshire Association of Special Education Administrators, New

Hampshire School Boards Association, and NEA-NH.

February 23, 2004

LYNCH, Circuit Judge. In 1997 Congress significantly

amended the Individuals with Disabilities in Education Act (IDEA),

20 U.S.C. 1400 et seq. The 1997 Amendments, Pub. L. No. 105-17,

111 Stat. 37 (1997), reinforced the principle that children should

not be removed unnecessarily from regular education environments,

20 U.S.C. § 1412(a)(5)(A), in part by eliminating "inappropriate

financial incentives for referring children to special education."

H.R. Rep. 105-95, at 90 (1997), reprinted in 1997 U.S.C.C.A.N. 78,

87. One specific purpose of the amendments was to control

government expenditures for students voluntarily placed in private

schools by their parents. See id. at 91-92.

At issue in this case is whether the parents of Katie C. (1)

are entitled to reimbursement from the Greenland, New Hampshire

School District for Katie's tuition at a private special-needs

school, the Learning Skills Academy, for part of the fifth grade

and all of the sixth grade. Katie's parents sought tuition

reimbursement after having unilaterally removed Katie from

Greenland Central School at the end of fourth grade and placed her

in private school, without ever before raising with Greenland

school officials the issue of special education services for Katie.

The district court, reversing the due process hearing officer, held

that Katie and her parents were not entitled to such reimbursement.

We affirm.

I.

Katie, born in March 1990, started first grade at the

Greenland Central School, a public school, in 1996. Although Katie

was a good student, her first grade teacher noticed that she had

difficulty focusing on classroom activities and was easily

distracted. During the summer after first grade, Katie's parents,

Mr. and Mrs. N., took Katie to a private psychologist who diagnosed

her with Attention Deficit Hyperactivity Disorder (ADHD). The

psychiatrist suggested several practical steps that Katie's

teachers could take to counteract her ADHD, including providing her

with a checklist of tasks to complete and seating her in the front

of the classroom.

Katie's second, third, and fourth grade teachers each

used techniques similar to those recommended by Katie's

psychiatrist to help Katie stay on task. They sat Katie in the

front of the classroom, provided her with a checklist of items she

was to complete, and maintained frequent contact with Mrs. N. about

Katie's performance. Some of her teachers also employed basic

behavior modification techniques to help improve Katie's

concentration, such as providing incentives for Katie with

stickers. Katie's teachers frequently used these and similar

methods to help other students focus too.

Mrs. N., who is herself a special education teacher at a

nearby high school, also spent a considerable amount of time

helping her daughter with her schoolwork. She spent 2-3 hours a

night helping Katie with her homework in second grade and provided

3-4 hours of assistance each night in the third grade. By the time

Katie was in fourth grade, her parents had hired a tutor to meet

with her twice a week.

Katie's academic performance during her four years at

Greenland ranged from average to above-average. In second grade,

Katie was grouped with students who had good reading skills,

although she had some difficulties with math. Her second grade

teacher viewed Katie as a "competent learner" and Katie received a

passing grade in all of her subjects. (2) Katie continued to perform

reasonably well in third and fourth grades, earning mostly A's and

B's on her report card. Katie's third grade teacher viewed her as

"very bright" and a "good learner" and her fourth grade teacher

said her academic performance was "between an eight and a nine" on

a ten-point scale.

Katie's academic marks were consistent with her scores on

the California Achievement Test, a national standardized test that

Katie took in the second and fourth grades. On both

administrations of the test, Katie scored in the average to above-average range on all of the tested subjects. She also received an

average score on all subparts of the New Hampshire End of Grade 3

Assessment, another standardized test.

Throughout her time at Greenland, though, Katie still

occasionally had difficulty maintaining her concentration on

discrete tasks. She also had problems making friends and was

sometimes teased by her classmates. In Katie's fourth grade year,

Mrs. N. became sufficiently concerned about peer harassment that

she contacted Katie's teacher.

At no point during Katie's time at Greenland did her

parents or any of her teachers request that she be evaluated for

special education services. Katie's second grade teacher noted

that Katie did not meet the general profile of a special education

student because there was not a gap between her apparent learning

ability and her academic performance. Similarly, her third grade

teacher said that Katie's difficulties with paying attention were

concerns for her physician and that she did not believe that Katie

required special education services.

In August of 2000, the summer that Katie completed fourth

grade, Katie's parents unilaterally removed her from the Greenland

Central School and enrolled her in Mont Blanc Academy. Mont Blanc

Academy is a private school that does not focus on special

education students and, when Katie's parents enrolled her there,

they "weren't looking for special education." When Katie started

fifth grade at Mont Blanc, the school instructed Mrs. N. not to

help Katie with her homework. As a result, Katie struggled with

some of her classes and failed her first quarter math class,

although she passed her other classes. In November, after Mrs. N.

learned of Katie's failing math grade, she resumed helping Katie

with her homework and Katie's math grade rose to a B.

For reasons unspecified in the record, Mont Blanc Academy

requested in February of 2001 that Katie's parents withdraw her

from the school. One month later, in March of 2001, Katie's

parents enrolled her at the Learning Skills Academy (LSA) for the

remainder of her fifth grade year. LSA is a private school that

has only about thirty enrolled students, most of whom either suffer

from a learning disability or ADHD. Tuition for Katie's spring

term at LSA was $16,000.

At approximately the same time that Katie started at LSA,

Mrs. N. contacted Melanie Lovering, the special education

coordinator for Greenland Central School, and requested that Katie

be evaluated by the psychologist on call with the school, Dr.

Secor. This was the first time that Katie's parents had notified

Greenland that Katie might need special education services. Mrs.

N., being a special education teacher and administrator herself,

was familiar with the processes associated with identifying

children who require special education. Katie's parents told

Greenland that their major concerns with Katie's development were

focused on "written language, organization and hyperactivity." The

school responded by scheduling a "disposition of referral meeting" (3)

to take place about two weeks later, on April 6, 2001.

At the April 6 meeting, three Greenland special education

teachers, two representatives from LSA, an occupational therapist,

Dr. Secor, Ms. Lovering, and Mrs. N. all met to discuss Katie's

eligibility for special education services at Greenland. The group

agreed that they did not at that point have sufficient information

to determine whether Katie should be coded as learning disabled.

Accordingly, they planned a battery of tests and evaluations that

Greenland school officials would conduct over the next several

weeks to gather more information on Katie's strengths and

weaknesses. These included multiple standardized tests in math and

written expression and, at Mrs. N.'s request, various psychological

assessments by Dr. Secor.

On May 23, 2001, the school district held a meeting with

Mrs. N. to assess the results of Katie's tests and evaluations and

determine whether Katie was eligible for special education services

at Greenland. The school officials in attendance, including Dr.

Secor, Ms. Lovering, and four others, unanimously determined that

even though Katie had ADHD and an anxiety disorder, those

conditions did not adversely affect her educational performance.

They also unanimously concluded that Katie did not have a learning

disability because there was no evidence of a discrepancy between

Katie's ability and her achievement. The officials nonetheless

agreed to offer Katie a plan to address some of her organizational

weaknesses.

In a letter dated May 29, 2001, Katie's parents informed

Michelle Langa, the assistant superintendent of the Greenland

School District, that they disagreed with the district's decision

finding Katie ineligible for special education services. The

letter informed the district that Mr. and Mrs. N. had scheduled an

appointment with an independent psychiatrist named Dr. Spitzer, but

it did not request any specific further action on the part of

Greenland. Again, at the time Katie's parents sent this letter in

May 2001, Katie was already in private school, having been

withdrawn from public school in August 2000.

Dr. Spitzer evaluated Katie in May and sent a letter to

Michelle Langa on August 15, 2001 detailing her conclusions. Dr.

Spitzer confirmed Katie's diagnosis of ADHD, but she also concluded

that Katie suffers from Asperger's disorder. Asperger's disorder

is a developmental disability on the autism spectrum that is

associated with significant misperceptions of otherwise routine

elements of daily life. It is a permanent condition that is not

treatable with medication.

Meanwhile, Katie's parents decided to re-enroll Katie in

LSA for sixth grade, the 2001-2002 school year. Katie had done

well at LSA during the spring semester of her fifth grade year,

making significant strides in her academic and emotional

development. She no longer relied on her mother to assist her with

her homework, developed positive peer relationships, and was a

"much more confident, happier child."

On September 12, 2001, as Katie was starting sixth grade

at LSA, Greenland school officials met with Dr. Spitzer to review

her conclusion that Katie suffered from Asperger's disorder.

Although Dr. Secor, who also attended the meeting, disputed this

diagnosis, the team decided to reverse its earlier determination

that Katie did not qualify for special education services. Rather

than code Katie as "autistic," consistent with the diagnosis of

Asperger's disorder, the team agreed to code her as "other health

impaired."

Over the next several months, school officials met

several times with Mrs. N. and her advocate to develop an

Individual Education Plan (IEP) that would provide Katie with

appropriate special educational services at Greenland. Throughout

this process, Katie remained a student at LSA. By mid-November,

the team of school officials, in conjunction with Mrs. N. and her

advocate, had developed a working draft of Katie's initial IEP.

The draft provided for Katie to re-enroll in Greenland public

school and have a personal aide who would assist her with "social

pragmatic skills across a variety of settings and partners" and

help develop her "graphing and discourse skills."

On November 15, 2001, as the final details of Katie's IEP

were being worked out, Katie's parents filed a due process hearing

request. The letter requesting the hearing indicated that Katie's

parents appreciated the school's efforts in drafting an IEP for

Katie, and explained that they were seeking reimbursement for

Katie's tuition at LSA and were concerned that the time for filing

a hearing request would soon expire. Although surprised and

confused by the due process hearing request, school officials

completed the final version of Katie's IEP several weeks later. In

addition to providing Katie with services at Greenland, including

her own aide, the plan set forth a curriculum to help Katie learn

the difference between friendly joking and hurtful teasing, a

problem with which children suffering from Asperger's disorder have

particular difficulty. It also included counseling services for

Katie and speech/language services that Dr. Spitzer had

recommended. Even after Greenland completed the IEP, Katie

remained enrolled at LSA instead of returning to Greenland and

receiving the services outlined in the IEP.

II.

A. Administrative Proceedings

In response to Mr. and Mrs. N.'s due process hearing

request, the hearing officer held a prehearing conference on

January 15, 2002. At that conference, the parents said that, in

addition to seeking reimbursement, they were challenging the school

district's failure to identify Katie as eligible for special

education services in May of 2001 (when she was a student at LSA).

The parents also indicated that they were dissatisfied with the

plan that Greenland had developed in the Fall of 2001 to educate

Katie at Greenland because, despite its reliance on an aide to

assist Katie, no such aide had been hired.

The hearing officer heard testimony from sixteen

witnesses over three days and issued a decision on February 20,

2002. The decision rejected Greenland's argument that it was not

obliged to develop an IEP for Katie because she was unilaterally

placed in a private school by her parents; it concluded that

Greenland had to offer Katie an IEP pursuant to its "child find"

obligations. The decision also found that Greenland had erred when

in May 2001 it failed to find Katie eligible for special education

services. Reasoning that Katie was in effect receiving specialized

education throughout her time at Greenland, the hearing officer

concluded that the team's reliance on the lack of an apparent gap

between Katie's ability and her performance was legally deficient.

The hearing officer also concluded that Katie would be

ill-served by returning to Greenland. He found that Greenland did

not have any aide or staff with whom it could place Katie if she

were to return to the school and that, even if an aide existed,

Greenland's proposed IEP would not provide Katie with a Free

Appropriate Public Education (FAPE). Based on these conclusions,

the hearing officer ordered Greenland to reimburse Mr. and Mrs. N.

for Katie's tuition at LSA for both the second semester of her

fifth grade year and the entirety of her sixth grade year. This

amounted to $48,000.

B. District Court Decision

Pursuant to 20 U.S.C. § 1415(i)(2), the school district

challenged in district court the hearing officer's decision. The

district court reversed the bulk of the hearing officer's holdings,

concluding that the hearing officer had incorrectly considered the

adequacy of the IEP offered by Greenland and the availability of

tuition reimbursement. The district court found that Katie was

enrolled in private school (Mont Blanc Academy) before her parents

ever raised the question of special education and that FAPE was not

"at issue" when Katie was removed from Greenland. On this basis,

the district court concluded that the hearing officer had only the

statutory authority to consider whether Greenland had violated its

"child find" obligation. 34 C.F.R. § 300.451.

The court affirmed the portion of the hearing officer's

opinion that concluded the school district erred in failing to code

Katie as a child with a disability in May 2001. Construing that

portion of the opinion as stemming from the school district's

"child find" obligation, the court determined that the hearing

officer had the authority to consider the issue. After reviewing

the hearing officer's decision on the merits, the court affirmed.

Because the district court denied reimbursement on other grounds,

this ruling did not affect the plaintiffs' claim for relief.

Katie's parents appeal the portion of the district

court's opinion reversing the hearing officer's determinations.

Greenland School District cross-appeals, arguing that the district

court incorrectly affirmed the hearing officer's determination that

Katie should have been coded as a child with a disability in May

2001.

III.

Our review is de novo, as this case only presents

questions of law. Manchester Sch. Dist. v. Crisman, 306 F.3d 1, 9

(1st Cir. 2002).

New Hampshire implements IDEA through its special

education law. N.H. Rev. Stat. Ann § 186-C. The state has adopted

by reference the federal regulations as to special education for

disabled students in private schools. N.H. Code Admin. Rules, Ed.

1117.03 (2003). Thus, Katie's rights under New Hampshire law are

the same as her rights under federal law and no greater. See Gary

S. v. Manchester Sch. Dist., 241 F. Supp. 2d 111, 122-23 (D.N.H.

2003).

This case turns on the 1997 IDEA Amendments. Those

amendments affect this case in three ways. First, the amendments

make clear that while local school systems have "child find"

obligations as to students with disabilities in private schools,

they do not have to provide such students with the full complement

of services that a student in public school with special needs

would receive. See 20 U.S.C. § 1412(a)(10)(A); 34 C.F.R. §

300.454(a)(1) ("No private school child with a disability has an

individual right to receive some or all of the special education

and related services that the child would receive if enrolled in a

public school."). Second, they establish that complaints about the

services a disabled student in private school is receiving after he

or she has been identified must be brought through the state

administrative complaint system rather than a due process hearing.

34 C.F.R. § 300.457 (a), (c). Finally and most importantly, the

amendments limit the circumstances in which parents who have

unilaterally placed their child in a private school are entitled to

reimbursement for that placement. See 20 U.S.C. § 1412(a)(10)(C).

A. Obligation to Provide Services to Disabled Private School

Children and the Proper Forum for Such Claims.

The district court vacated the hearing officer's

evaluation of the IEP that Greenland offered to Katie because it

concluded that this issue was not properly before the hearing

officer. That ruling was correct.

Because Katie was enrolled at LSA, a private school, when

she filed her due process hearing request, her rights under IDEA

are governed by 20 U.S.C. § 1412(a)(10). That subsection divides

children in private school into two categories: (1) children

enrolled in private schools by their parents, and (2) children

placed in or referred to private schools by public agencies. See

id. § 1412(a)(10) (A), (B). It is undisputed that Katie falls in

the former category, as she was not placed in or referred to Mont

Blanc or LSA by a public agency.

Participating school districts such as Greenland owe

children who fall within subsection (A) of § 1412(a)(10) a "child

find" obligation. See § 1412(a)(10)(A)(ii). This obligation

requires those districts to "locate, identify and evaluate all

private school children with disabilities" using methods that are

"comparable to activities undertaken for children with disabilities

in public school." 34 C.F.R. § 300.451(b). In the event that a

district fails to meet its "child find" obligations, a child's

parents can initiate a due process hearing under the procedures

outlined in §§ 300.504-300.515. See id. § 300.457.

Importantly, IDEA also provides that participating

districts must provide certain services to disabled children in

private school once those children have been identified through the

child find process. See id. §§ 300.452 - 300.462. These services

are, not surprisingly, less extensive than the services that a

disabled child enrolled in public school is entitled to receive.

Not only are the services provided to students in these two

settings different in scope, but the procedure for review of claims

of a denial of services is also different. Parents of disabled

children voluntarily enrolled in private school cannot initiate a

due process hearing if they feel their child is not receiving the

services required by IDEA. See id. § 300.457(a). Rather, such

parents must proceed through an alternative procedure within the

state's administrative apparatus. See id. § 300.457(c). As the

comments to the draft of the regulations explain:

While there may be legitimate issues regarding the

provision of services to a particular parentally-placed

private school child with disabilities [that a local

education agency] has agreed to serve, due process should

not apply, as there is no individual right to these

services under the IDEA. Disputes that arise about these

services are properly subject to the State complaint

procedures.

64 Fed. Reg. 12406, 12605 (March 12, 1999).

As the district court recognized, any complaints that

Katie's parents had regarding Katie's IEP in the fall of 2001

should have been brought through the state complaint process. The

adequacy of the IEP was not an appropriate subject for the due

process hearing because it had nothing to do with Greenland's child

find obligation. Once Greenland identified Katie as a child with

a disability in September 2001, the district had performed every

act reviewable by a hearing officer; any subsequent obligations it

had to provide educational services to Katie were matters for the

state administrative procedure, which would apply different

standards to evaluate the services provided than did the due

process hearing officer. See 34 C.F.R. § 300.457(c) (question in

state administrative procedure is whether the district met its

obligations under §§ 300.451-300.462). That decision, moreover,

would not be appealable to federal court. See Vultaggio v. Bd. of

Educ., 343 F.3d 598, 601 (2d Cir. 2003).

B. Tuition Reimbursement for Students Unilaterally Placed in

Private Schools (4)

The substantive question in this case is whether Katie's

parents were eligible for tuition reimbursement and, if so, whether

it was an abuse of discretion for the district court to deny

reimbursement for either Katie's fifth or sixth grade school year. (5)

We affirm the district court's determination on the ground that

Katie's parents were ineligible for reimbursement.

Until 1985, there was some uncertainty about whether the

remedy of reimbursement for private school tuition was available

when a school district had failed to provide appropriate services

to a disabled child in the public school. IDEA itself only

authorized the district court to "grant such relief as [it]

determine[d] is appropriate." 20 U.S.C. § 1415(e)(2) (1984),

recodified as amended 20 U.S.C. § 1415(i)(2)(B). In Burlington v.

Dep't of Educ., 471 U.S. 359 (1985), the Supreme Court held that

this clause authorized the equitable remedy of tuition

reimbursement. See id. at 369. It noted that the broad language

of the statute vested courts with significant discretion to craft

appropriate remedies and that, in cases where it would take a

significant amount of time for the school to offer appropriate

services, the Act's promise of a free appropriate public education

could justify the remedy of reimbursement for private school

tuition. Id. at 370. The Court also found that tuition

reimbursement was available even in some instances when parents had

unilaterally removed their child from public school. Id. at 372.

Uncertainty about the circumstances under which tuition

reimbursement was available remained even after Burlington. Before

the 1997 IDEA amendments, several circuits had held that

reimbursement for private school tuition depended on the parents

cooperating with school authorities in determining the proper

placement and educational plan for the child. See Patricia P. v.

Bd. of Educ., 203 F.3d 462, 468 (7th Cir. 2000) (listing cases

interpreting pre-amendment IDEA). As one court noted, "parents

who, because of their failure to cooperate, do not allow a school

district a reasonable opportunity to evaluate their disabled child,

forfeit their claim for reimbursement for a unilateral private

placement." Id. at 469. Although few courts precisely defined the

level of cooperation necessary, most thought it clear that, at a

minimum, the parents had to inform the school district of their

concerns about their child's special needs and about the plan

proposed before removing the child from public school. See Berger

v. Medina City Sch. Dist., 348 F.3d 513, 523 (6th Cir. 2003) ("Even

before the IDEA was amended to explicitly require such notice, this

court held that dissatisfied parents were required to complain to

the public school to afford the school a chance to remedy the IEP

before removing their disabled child from the school."); M.C. ex

rel. Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir.

2000) ("[C]ourts have held uniformly that reimbursement is barred

where parents unilaterally arrange for private educational services

without ever notifying the school board of their dissatisfaction

with their child's IEP."); Ash v. Lake Oswego Sch. Dist., No. 7J,

980 F.2d 585, 589 (9th Cir. 1992); Evans v. District No. 17, 841

F.2d 824, 829 (8th Cir. 1988).

The 1997 Amendments endorsed this line of cases and

helped clarify the amount of parental cooperation required by

adding a section to IDEA entitled "Payment for education of

children enrolled in private schools without consent of or referral

by the public agency." 20 U.S.C. § 1412(a)(10)(C); see H.R. Rep.

105-95, at 93, reprinted in 1997 U.S.C.C.A.N. 78, 90. See

generally Gary S., 241 F. Supp. 2d at 114-15. That section begins

with a general statement of policy explaining that IDEA does not

"require a local education agency to pay for the cost of education,

including special education and related services, of a child with

a disability at a private school or facility if that agency made a

free appropriate public education available to the child and the

parents elected to place the child in such private school or

facility." 20 U.S.C. § 1412(a)(10)(C)(i). This provision, taken

by itself, might be considered ambiguous as applied to a situation

where, as here, the local education agency was never informed while

the child was in public school that the child might require special

education services. But this seeming ambiguity disappears when

considered in light of the section's affirmative requirement that

"the parents of a child with a disability, who previously received

special education and related services under the authority of a

public agency" can receive reimbursement for their unilateral

placement of the child in private school only "if [a] court or

hearing officer finds that the agency had not made a free

appropriate public education available to the child in a timely

manner prior to that enrollment." Id. § 1412(a)(10)(C)(ii).

These threshold requirements are key to this case:

tuition reimbursement is only available for children who have

previously received "special education and related services" (6) while

in the public school system (or perhaps (7) those who at least timely

requested such services while the child is in public school).

There is no dispute that neither Katie's parents nor anyone else

requested an evaluation for Katie while she was at Greenland.

There is also no dispute that she was removed from Greenland for

reasons having nothing to do with any issue about whether Katie was

receiving FAPE. Whether some of the techniques used for Katie in

the regular classroom (such as the use of checklists) may also be

techniques used in special education is beside the point. The

point is that there was no notice at all to the school system

before Katie's removal from Greenland that there was any issue

about whether Katie was in need of special education.

Even for children who received special education services

in the public schools before the private school placement, the 1997

Amendments implemented several additional limitations on

reimbursement. Those limitations reinforce our conclusion that

Katie and her parents are not eligible for tuition reimbursement.

The statute provides that reimbursement may (8) be denied or reduced

if the parents do not give the school district notice of their

intent to remove their child from public school before they do so.

Id. § 1412(a)(10)(C)(iii)(I); see Rafferty v. Cranston Pub. Sch.

Comm., 315 F.3d 21, 27 (1st Cir. 2002). That notice can be

provided either "at the most recent IEP meeting that the parents

attended prior to removal of the child from the public school" or

by written notice ten business days prior to such removal. 20

U.S.C. § 1412(a)(10)(C)(iii)(I). The statute also creates

exceptions to this notice requirement, such as when the parents are

illiterate or the child will face physical or serious emotional

harm by providing notice. Id. § 1412(a)(10)(C)(iv). None of those

exceptions is presented here.

These statutory provisions make clear Congress's intent

that before parents place their child in private school, they must

at least give notice to the school that special education is at

issue. This serves the important purpose of giving the school

system an opportunity, before the child is removed, to assemble a

team, evaluate the child, devise an appropriate plan, and determine

whether a free appropriate public education can be provided in the

public schools. See Patricia P., 203 F.3d at 468; Schoenfeld v.

Parkway Sch. Dist., 138 F.3d 379, 381-82 (8th Cir. 1998); cf.

Burlington, 471 U.S. at 373 (discussing the importance of reviewing

a child's educational needs while the child is in the regular

public school classroom).

Reading IDEA as plaintiffs propose would destroy those

safeguards. Here, the parents, well acquainted with IDEA, gave no

notice that Katie might need special education services. Indeed,

they were not even looking for such services when they removed

Katie from public school. Several courts, relying on the parents'

failure to challenge the IEP's adequacy, have found insufficient

notice to the school district even when the parents requested an

evaluation and received an IEP before removing their child. See,

e.g., Berger, 348 F.3d at 523-24 (affirming a denial of

reimbursement when the child's parents agreed to the IEP proposed

by the school and only informed the school district of their

concerns after they arranged for the child's enrollment in private

school); see also M.C., 226 F.3d at 68 (denying reimbursement for

psychological counseling that the court assumed necessary for the

child to benefit from special education because the parents had

failed to raise the issue in the child's IEP before the counseling

started). If the parents' conduct provided inadequate notice in

these cases, then there was clearly insufficient notice here, where

the parents never even raised the issue of special education before

removing Katie from Greenland. (9)

The regulations promulgated under IDEA, to which we must

give deference, Irving Indep. Sch. Dist. v. Tatro, 468 U.S. 883,

892 & n.9 (1984), are consistent with our reading of the statute.

For the most part, the regulations provide little additional

guidance in interpreting the statute because they merely repeat the

statute's language. Compare, e.g., 20 U.S.C. § 1412(a)(10)(C),

with 34 C.F.R. § 300.403. However, the regulations do provide one

interpretive clue by organizing the statutory provisions dealing

with reimbursement under the heading "Children with Disabilities

enrolled by their parents in private school when FAPE is at issue."

See 34 C.F.R. § 300.403 (emphasis added). This formulation

indicates that the Department of Education views notice as

critically important in the statutory scheme: it is difficult to

imagine FAPE being "at issue" when neither the school nor the

child's parents have ever raised the question of FAPE. Even more

than the statute, the regulations suggest that a child like Katie

who is removed from her school without her parents or her school

ever questioning the availability of FAPE is not within the

category of children eligible for tuition reimbursement.

Katie's parents argue that even if they did not give

sufficient notice to Greenland for Katie's fifth grade year, they

did provide sufficient notice that Katie would be attending LSA by

the time of her sixth grade year. Although Greenland was certainly

aware that Katie might be attending LSA for the fall semester of

her sixth grade year, that fact is beside the point. The purpose

of the notice requirement is to give public school districts the

opportunity to provide FAPE before a child leaves public school and

enrolls in private school. See Patricia P., 203 F.3d at 468

(emphasizing the importance of cooperation between parents and the

school district before the child is removed from public school);

Schoenfeld, 138 F.3d at 381-82 (same); Town of Burlington v. Dep't

of Educ., 736 F.2d 773, 799 (1st Cir. 1984) (noting the distinction

"between a unilateral parental transfer made after consultation

with the school system . . . and transfers made truly unilaterally,

bereft of any attempt to achieve negotiated compromise and

agreement"), aff'd, 471 U.S. 359 (1985). Once a child's parents

have unilaterally removed the child from public school, subsequent

notice almost a year after removal does little good.

As the Supreme Court warned almost twenty years ago,

"parents who unilaterally change their child's placement . . .

without the consent of state or local school officials, do so at

their own financial risk." Burlington, 471 U.S. at 373-74. This

case demonstrates that the Court's admonition remains no less true

today.

The district court also reached the issue whether Katie

should have been classified as a special needs student in May 2001.

Given our conclusion that tuition reimbursement is unavailable due

to the parents' lack of notice to the school system while Katie was

enrolled there, the issue whether Greenland should have coded Katie

as disabled in May 2001 is of no moment to this case.

In fact, the analysis that would be required if we

reached that issue is both difficult and sensitive. Very helpful

amicus briefs, taking opposing views, have been submitted by the

New Hampshire Association of Special Education Administrators, the

New Hampshire School Boards Association, and NEA-NH on behalf of

Greenland, and by the Disabilities Rights Center, the New Hampshire

Psychiatric Association, the Asperger's Association of New England,

and the National Alliance for the Mentally Ill on behalf of Katie's

parents. These briefs point out the complications involved in

determining whether any child should be coded as a special needs

child on a particular date. They also discuss the concern that

admirable techniques used in general education can be bootstrapped

into supporting a special education finding and the converse danger

that the identification of special needs students will be hidden

behind the veil that all students receive some individualized

training. Each side argues that an interpretation going against

its position would undercut the provision of services to students

in need. This is an extremely important and nuanced question of

law that we leave for another day.

IV.

Affirmed. Costs are awarded to Greenland.



1. The captioned plaintiffs in this case, Amy N. and Robert N.,

are Katie C.'s parents.

2. Second grade students at Greenland do not receive a letter or

number grade, but instead simply "pass" or "fail."

3. A "disposition of referral meeting" is a procedure used by

Greenland following a request to determine whether a particular

child is eligible for special education services.

4. Katie's parents do not make a claim for compensatory services

for past inadequacies. Cf. Maine Sch. Admin. Dist. No. 35 v. Mr.

R., 321 F.3d 9, 17-18 (1st Cir. 2003) (discussing such claims).

5. This issue was properly before the hearing officer on Katie's

parents' due process request. See 34 C.F.R. § 300.403(b)

("Disagreements between a parent and a public agency regarding the

availability of a program appropriate for the child, and the

question of financial responsibility, are subject to the due

process procedures of §§ 300.500-300.517.").

6. The full text of § 1412(a)(10)(C)(ii) is:

If the parents of a child with a disability, who

previously received special education and related

services under the authority of a public agency,

enroll the child in a private elementary or

secondary school without the consent of or referral

by the public agency, a court or a hearing officer

may require the agency to reimburse the parents for

the cost of that enrollment if the court or hearing

officer finds that the agency had not made a free

appropriate public education available to the child

in a timely manner prior to that enrollment.

7. Despite the language of the statute, some legislative history

suggests that Congress meant to include children who had requested

but not yet received special needs services during their period in

the public schools. See H.R. Rep. 105-95, at 91-93, reprinted in

1997 U.S.C.C.A.N. 78, 89-90. That issue does not need to be

resolved in this case, as Katie's parents never requested special

education services for Katie while she was at Greenland.

8. There may be extreme cases where it is obvious to a school

that a child is a special needs child but the school fails to

inform parents, who are ignorant of their rights under IDEA.

Whether this situation would warrant an exception to the general

rule as an exercise of equitable jurisdiction is something we need

not address.

9. Katie's parents rely on James ex. rel. James v. Upper

Arlington City School Dist., 228 F.3d 764 (6th Cir. 2000), for the

proposition that they should not be required to re-enroll Katie in

the Greenland schools to reestablish her legal rights to an

appropriate educational program. However, James concerned events

before the 1997 Amendments and also involved the refusal by the

school system to do an IEP evaluation before enrollment of the

child in private school. Id. at 768. That issue is not involved

here. In fact, in this case there were no disagreements, due

process hearing requests, or administrative review proceedings

ongoing at the time Katie was removed from the public schools, so

the "stay put" provisions of IDEA, 20 U.S.C. § 1415(j), are not at

issue, unlike in James.

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