F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 11 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
L.B., and J.B., on behalf of K.B.,
Plaintiffs-Appellants,
v.
NEBO SCHOOL DISTRICT; NEBO
No. 02-4169
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.
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.
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
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.
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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.
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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
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.
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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.
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.
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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
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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.
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.
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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
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.
Nebo originally offered to pay for eight hours per week of one-on-one
7
ABA, which would have been provided by K.B.’s private tutors, who were hired
by Appellants.
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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
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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.
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.
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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
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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.
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.
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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.
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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.
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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
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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
The district court received some supplemental evidence as allowed under
11
the IDEA. The new evidence pertained to the issue of Hirase’s bias.
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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).
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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
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).
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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.”
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.”
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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,
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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
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.
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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
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.
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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
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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
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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 fazed 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
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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’
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.
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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.
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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
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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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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