F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 17 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
SUSAN ERICKSON, individually and
on behalf of Michael Erickson,
Plaintiff-Appellant,
v. No. 98-2168
ALBUQUERQUE PUBLIC
SCHOOLS,
Defendant-Appellee.
APPEAL FROM UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CIV-96-1067-MV/RLP)
Maureen A. Sanders, Sanders & Westbrook, P.C., (Linda M. Vanzi, Vanzi &
Gagne, P.C., with her on the briefs), Albuquerque, New Mexico, for the appellant.
Michael L. Carrico, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque,
New Mexico, for the appellee.
Before KELLY, HOLLOWAY, and BRISCOE, Circuit Judges.
BRISCOE, Circuit Judge.
Susan Erickson, individually and on behalf of her son, Michael Erickson,
brought this action against the Albuquerque Public Schools (“the school district”)
for relief pursuant to the Individuals with Disabilities Education Act (IDEA), 20
U.S.C. § 1400 et seq. 1 Erickson appeals the district court’s determination that
Michael was not entitled to compensatory education because the school district
did not violate the IDEA and New Mexico stay-put provisions. We exercise
jurisdiction pursuant to 28 U.S.C. § 1291 and affirm the district court.
I.
Michael was 13 years old and in the seventh grade when this case began in
1995. He had been diagnosed with bipolar disorder and learning disabilities,
which allowed him the protections of the IDEA. 20 U.S.C. § 1401(a)(1)(A)(i).
The IDEA provides federal funds to the states for the education of children with
disabilities, guaranteeing disabled children between the ages of three and twenty-
one access to a free, appropriate public education (FAPE). 20 U.S.C. §§ 1400(c),
1412(1). A FAPE “emphasizes special education and related services designed to
meet [the child’s] unique needs.” 20 U.S.C. § 1400(c). A student’s needs in
1
The IDEA was substantially amended in 1997. See Individuals with
Disabilities Education Act Amendments of 1997, Pub. L. No. 105-17, 111 Stat.
37 (1997). The Amendments do not apply retroactively. Fowler v. Unified Sch.
Dist. No. 259 , 128 F.3d 1431, 1436 (10th Cir. 1997). Because the relevant
events in this case occurred before the effective date of the amendments, we
apply the pre-amendments version of the Act. Id. All citations within this
opinion are to the pre-amendments version. We note that the IDEA provisions
relevant to this appeal were not substantively changed by the amendments.
2
obtaining a FAPE are laid out in an individualized education program (IEP). 20
U.S.C. § 1401(a)(20). An IEP is a written statement developed in a meeting
attended by the student’s teacher, a special education professional, and the
student’s parents that summarizes the student’s abilities, outlines goals for the
student’s education, specifies the services the student will receive to achieve
those goals, and establishes criteria to evaluate the student’s progress. Id. ; 20
U.S.C. § 1414(a)(5).
Michael had received occupational therapy since he was in pre-school. In
October 1994, his IEP provided for two hours of occupational therapy per week,
without specifying the type of occupational therapy to be provided. One of the
hours provided was hippotherapy, an occupational therapy involving horses.
Michael’s June 1995 IEP again provided for two hours of occupational therapy
per week, with the type of occupational therapy not specified. 2
The June 1995
IEP was effective from August 1995 to June 1996. In September 1995, an IEP
meeting was held in which the school district reduced Michael’s occupational
therapy to one hour per week and discontinued hippotherapy. 3
Erickson objected
to the elimination of hippotherapy, but agreed to the reduction to one hour of
2
The June 1995 IEP also provided for eight sessions of hippotherapy
during the summer. This specific provision ended July 31, 1995, so it is not
relevant to this appeal.
3
The IEP meeting was originally scheduled for August 1995, but was
continued to September 1995.
3
occupational therapy per week. The school district immediately canceled
Michael’s hippotherapy.
Erickson requested a due process hearing, arguing the school district
violated the IDEA by terminating hippotherapy, discontinuing hippotherapy
during the pendency of the appeal, and failing to provide Michael with a FAPE.
See 20 U.S.C. § 1415(b)(2) (providing for appeal to impartial hearing officer).
The hearing officer found the school district violated the IDEA’s stay-put
provision, 20 U.S.C. § 1415(e)(3), by discontinuing hippotherapy during the
pendency of the administrative proceeding. The hearing officer also found the
school district failed to make an individualized decision regarding Michael’s
educational needs by predetermining that occupational therapy would be provided
at school, rather than at an outside facility. Because of these violations, the
hearing officer awarded Michael compensatory education of one semester of
hippotherapy. The hearing officer found that the school district provided
Michael with a FAPE.
The school district pursued an administrative appeal of the hearing
officer’s conclusions that the school district failed to make an individualized
decision regarding Michael’s educational needs, predetermined the occupational
therapy to be provided, and violated the stay-put provision. The school district
also appealed the award of compensatory education. See 20 U.S.C. § 1415(b),
4
(c) (providing for appeal from hearing officer). The administrative appeal officer
found the school district’s predetermination that Michael’s occupational therapy
would be provided at school did not violate the IDEA, because school districts
can change the location of services. The appeal officer concluded the September
1995 IEP provided Michael with a FAPE and the school district did not violate
the stay-put provisions, so Michael was not entitled to compensatory education.
Erickson then filed a civil complaint pursuant to 20 U.S.C. § 1415(e)(2),
alleging the appeal officer erred in finding that the school district did not violate
the stay-put provision, that the school district was not required to provide
compensatory education, that the school district did not predetermine Michael’s
educational placement, and that Michael received a FAPE. The school district
moved for summary judgment, arguing that it provided Michael a FAPE, that the
elimination of hippotherapy was not a change in educational placement so the
stay-put provision did not apply, and that Michael was not entitled to
compensatory education.
The district court granted the school district’s motion for summary
judgment, adopting the findings of fact and conclusions of law of the appeal
officer, with one exception not relevant to this appeal (involving payment of a
psychologist for preparation and attendance at IEP meetings). The district court
found the stay-put provision did not apply because elimination of hippotherapy
5
was merely a change in methodology of services, not a change in educational
placement. The district court concluded Michael was not entitled to
compensatory education because he was not denied a FAPE. Erickson appeals
the determination that Michael was not entitled to compensatory education.
Erickson does not appeal the district court’s conclusion that the school district’s
provision of services to Michael complied with the IDEA’s substantive
requirement of a FAPE. 4
II.
We are reviewing the district court’s grant of summary judgment to the
school district. 5
Summary judgment is appropriate if “there is no genuine issue
4
Erickson does argue that a procedural violation of the IDEA precludes a
finding that the school district provided a FAPE. Erickson erroneously cites the
Supreme Court’s decision in Board of Education v. Rowley , 458 U.S. 176 (1982),
as providing a two-part test to determine whether a school district has provided a
student with a FAPE. The Court in Rowley set out two considerations for courts
in suits under § 1415(e)(2). First, has the State complied with the procedures set
forth in the Act?” Id. . at 206. “Second, is the individualized educational
program developed through the Act’s procedures reasonably calculated to enable
the child to receive educational benefits?” Id. at 206-07. When both
requirements are met, the court can require no more. Id. at 207. Although a
failure to meet one of these considerations may result in court ordered relief, it
does not preclude a finding that a school district provided a FAPE under the
IDEA.
5
Erickson contends the school district’s motion was only for partial
summary judgment. The school district’s motion sought a determination that it
provided Michael a FAPE, did not violate the stay-put provision, and Michael
was not entitled to compensatory education. Although Erickson asserts that
disputed facts remain, the relevant facts were undisputed: The school district
(continued...)
6
as to any material fact and . . . the moving party is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c). In reviewing a challenge under the IDEA,
the district court engages in a modified de novo review, in which it must
“independently review the evidence contained in the administrative record, accept
and review additional evidence, if necessary, and make a decision based on the
preponderance of the evidence, while giving ‘due weight’ to the administrative
proceedings below.” Murray v. Montrose County Sch. Dist. RE-1J , 51 F.3d 921,
927 (10th Cir. 1995). We engage in de novo review of the district court’s grant
of summary judgment, applying the same standard as the district court. Id. at
927-28. We give due weight to the appeal officer’s decision on the issues with
which she disagreed with the hearing officer, unless the hearing officer’s
decisions involved credibility determinations and the record supports the
reviewing officer’s decision. O’Toole v. Olathe Dist. Schs. Unified Sch. Dist.
No. 233 , 144 F.3d 692, 699 (10th Cir. 1998). 6
5
(...continued)
reduced the number of hours of Michael’s occupational therapy, eliminated
hippotherapy, and did not provide hippotherapy during the pendency of the
administrative appeal. The school district’s motion for summary judgment
included all issues necessary to dispose of the action.
6
The school district asks this court to depart from the standard enunciated
in Murray and instead apply a clear error standard of review. However, one
panel of this court may not overrule another panel, so the Murray standard
applies. See United States v. Hargus , 128 F.3d 1358, 1364 (10th Cir. 1997), cert.
denied , 118 S. Ct. 1526 (1998). Erickson contends the district court did not
(continued...)
7
The Stay-Put Provision
The first issue is whether the school district violated the stay-put provision
by failing to provide hippotherapy to Michael during Erickson’s appeal. Both the
IDEA and New Mexico regulations contain a stay-put provision for the pendency
of appeals of educational services. The IDEA provides that “during the pendency
of any proceedings conducted pursuant to this section, unless the . . . agency and
the parents . . . otherwise agree, the child shall remain in the then current
educational placement of such child . . . .” 20 U.S.C. § 1415(e)(3)(A) (emphasis
added). New Mexico Regulations provide that “[d]uring the pendency of any
administrative or judicial proceeding regarding a hearing, unless the public
agency and the parents of the child agree otherwise, the child involved in the
hearing must have his or her present delivery of services continued.” New
Mexico State Bd. of Educ. Reg. 90-2, amend. 5, Section III (Q) (1994) (emphasis
added). 7 Erickson contends the stay-put provisions required the school district to
(...continued)
6
apply the correct standard of review and summarily dismissed her complaint
without explanation. The district court thoroughly detailed the facts of the case,
acknowledged the appropriate standard of review, and stated it had reviewed the
due process hearing record, the administrative appeal record, the briefs on
summary judgment, and the relevant case law. The district court then adopted the
findings of fact and conclusions of law of the appeal officer, with one exception.
The district court sufficiently enunciated its reasoning for this court to review its
decision.
7
Effective September 30, 1997, the New Mexico stay-put provision no
(continued...)
8
continue providing two hours of occupational therapy per week, including one
hour of hippotherapy, until her appeal was resolved. 8
The stay-put provision does not apply when the parent and the school
district agree to changes in the services previously delivered. Erickson agreed to
a reduction from two hours to one hour of occupational therapy per week.
Because the school district and Erickson agreed, implementation of the reduction
of hours did not violate the stay-put provision. The issue is whether the
cancellation of hippotherapy violated the stay-put provision. The district court
and the appeal officer found hippotherapy was a treatment modality, not an
educational placement or service delivery provision.
The purpose of the stay-put provision is to prevent school districts from
“effecting unilateral change in a child’s educational program.” Susquenita Sch.
7
(...continued)
longer contains the term “present delivery of services.” The regulation now
follows the language of the IDEA and provides that “[d]uring the pendency of
any administrative or judicial proceeding(s) governed by this regulation, the child
must remain in his or her present educational placement unless the parent and the
public agency agree otherwise or unless ordered by a hearing officer or court.”
New Mexico State Bd. of Educ. Reg., § 10.11 (emphasis added).
8
Erickson signed the September 1995 IEP, but objected on the form to the
“delivery model for OT.” The parties have not argued whether this had the effect
of making the September 1995 IEP entirely effective or whether the June 1995
IEP continued in effect for failure of the parties to reach an agreement in
September. However, the outcome is the same whether we consider the June
1995 IEP or the September 1995 IEP as determinative of Michael’s current
educational placement or present delivery of services because both provide for
occupational therapy, without specifying a type of occupational therapy.
9
Dist. v. Raelee S. , 96 F.3d 78, 83 (3d Cir. 1996) (quotation omitted). The IDEA
does not define “current educational placement” but some courts hold that the
dispositive factor is the IEP in place when the stay-put provision is invoked. See
id. (quotation omitted). Although Erickson agreed to a reduction of occupational
therapy to one hour, she did object to the elimination of hippotherapy. The IEP
provided for occupational therapy, but did not specify the providers or
modalities. The elimination of hippotherapy, when occupational therapy was still
provided, would not contravene the IEP.
Other circuits use a fact-driven approach in stay-put cases, defining
educational placement as “something more than the actual school attended by the
child and something less than the child’s ultimate educational goals.” Board of
Educ. of Community High Sch. Dist. No. 218 v. Illinois State Bd. of Educ. , 103
F.3d 545, 549 (7th Cir. 1996). Looking at the facts, the school district continued
to provide Michael with occupational therapy aimed at the goals listed in
Michael’s IEP. An educational placement is changed when a fundamental change
in, or elimination of, a basic element of the educational program has occurred.
Sherri A.D. v. Kirby , 975 F.2d 193, 206 (5th Cir. 1992). The school district
continued to provide Michael with occupational therapy. Although in a different
form than hippotherapy, the therapy was intended to address the same therapy
issues as hippotherapy without changing a basic element of Michael’s educational
10
program. The school district did not violate the stay-put provision by
discontinuing hippotherapy while continuing to provide occupational therapy.
Erickson then argues the “present delivery of services” language in the
New Mexico stay-put provision is broader than the IDEA stay-put requirement.
“‘State standards that impose a greater duty to educate disabled children, if they
are not inconsistent with federal standards, are enforceable in federal court under
the IDEA.’” Fowler v. Unified Sch. Dist. No. 259 , 128 F.3d 1431, 1438 (10th
Cir. 1997) (quoting Seattle Sch. Dist. No. 1 v. B.S. , 82 F.3d 1493, 1499 n.2 (9th
Cir. 1996)). This issue presents a question of statutory interpretation to which
we apply a de novo standard of review. See Mrs. B. v. Milford Bd. of Educ. , 103
F.3d 1114, 1122 (2d Cir. 1997) (stating that “the ‘due weight’ we ordinarily must
give to the state administrative proceedings is not implicated . . . because . . . the
proper interpretation of the federal statute and its requirements” concerns an
issue of law). Erickson offers no evidence of legislative intent to support her
proposition that the New Mexico provision was intended to create greater
protection than the IDEA.
The New Mexico regulations do not define “present delivery of services”
or “services.” The New Mexico regulations do require an IEP to contain “a
statement of the specific special education and related service(s) to be provided
to the child.” New Mexico State Bd. of Educ. Reg. 90-2, amend. 5, Section
11
IV(B)(G)(3) (1994). “Related services” are those services determined during the
IEP meeting as “required for a child with a disability to benefit from special
education,” and include occupational therapy. Id. at Section I(AA). The New
Mexico stay-put provision required the school district to maintain the present
delivery of services. Michael’s present delivery of services, as determined in his
IEP, was one hour of occupational therapy; his IEP did not specify hippotherapy
as necessary for him to benefit from special education. The school district
continued providing occupational therapy during the pendency of the appeal and
did not violate the New Mexico stay-put provision.
Individualized Placement Decision
The second issue we face is whether the school district made an
individualized placement decision concerning Michael. Erickson contends that
before the September 1995 IEP meeting, the school district decided to provide
occupational therapy only at the school and predetermined that it would decrease
the amount of Michael’s occupational therapy and eliminate hippotherapy.
Erickson raised this issue in her civil complaint, but the school district did not
seek summary judgment on whether it had provided an individualized placement
decision. However, the school district argued, and the district court found, that
compensatory education is not an appropriate remedy for a procedural violation
of the IDEA. The appeal officer found the school district predetermined that it
12
would end hippotherapy, but did not predetermine the amount of occupational
therapy. The ultimate issue is whether a failure to provide an individualized
placement decision is remediable by an award of compensatory education.
Compensatory Education
The district court properly found that compensatory education is not an
appropriate remedy for a procedural violation of the IDEA. In cases where the
challenged IEP is ultimately found to be appropriate, parents cannot be
reimbursed for any interim period in which their child’s placement violated the
stay-put provision. School Comm. v. Department of Educ. , 471 U.S. 359, 374
(1985); Carlisle Area Sch. v. Scott P. , 62 F.3d 520, 537 (3d Cir. 1995). In Urban
v. Jefferson County School District R-1 , this court found a school district’s
failure to comply with statutory IEP content requirements did not amount to a
substantive deprivation, so there was no violation of the student’s right to a
FAPE. 89 F.3d 720, 727 (10th Cir. 1996). This court then concluded that the
student was not entitled to compensatory education in the absence of a violation
of his right to a FAPE. Id.
“Appropriate relief is relief designed to ensure that the student is
appropriately educated within the meaning of the IDEA.” Parents of Student W.
v. Puyallup Sch. Dist., No. 3 , 31 F.3d 1489, 1497 (9th Cir. 1994). Erickson does
not contend Michael’s September 1995 IEP was deficient, nor does she appeal
13
the hearing officer’s determination that hippotherapy was not necessary to
provide Michael a FAPE. The award of compensatory education is not an
appropriate remedy for a failure to provide an individualized determination when
the school district provided the student with a FAPE. See Miener v. Missouri ,
800 F.2d 749, 753 (8th Cir. 1986) (finding compensatory education was
necessary to secure the student’s right to a FAPE).
III.
Erickson’s request for attorney fees is DENIED. The judgment of the
district court is AFFIRMED.
14