Manchester School District v. Crisman Ex Rel. Kimberli M.

             United States Court of Appeals
                        For the First Circuit

No. 01-2454
                      MANCHESTER SCHOOL DISTRICT,

                         Plaintiff, Appellant,
                                   v.
            MARGARET "PEGGY" CRISMAN, AS SURROGATE PARENT
           FOR KIMBERLI M., and PITTSFIELD SCHOOL DISTRICT,
                        Defendants, Appellees.


             APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF NEW HAMPSHIRE

            [Hon. Steven J. McAuliffe, U.S. District Judge]


                                Before
                          Lynch, Circuit Judge,
              Campbell and Magill,* Senior Circuit Judges.



     Dean B. Eggert with whom Paul L. Apple and Wadleigh, Starr &
Peters, P.L.L.C. were on brief for appellant.
     Lynn Zygomont with whom Ronald K. Lospennato and Disabilities
Rights Center, Inc. were on brief for appellee Margaret "Peggy"
Crisman.
     Jed Z. Callen with whom Baldwin, Callen, Hogan & Kidd,
P.L.L.C. was on brief for appellee Pittsfield School District.


                          September 23, 2002




     *
         Of the Eighth Circuit, sitting by designation.
             CAMPBELL, Senior Circuit Judge.             At issue in this appeal

is   whether      the    Manchester    School    District     ("MSD"),   a   school

district within the State of New Hampshire, has a continuing duty

to pay for the special education expenses of Kimberli M.

             Kimberli, now fourteen years old, is a developmentally

delayed child.          Since the age of seven months she has lived at the

Brock     Home,    a    state   licensed   home    for    children   located       in

Pittsfield, New Hampshire.             Because the home for children where

Kimberli lives is located within the Pittsfield School District,

she attends school there1; and because of her disabilities she
receives special education services under provisions of federal and

state     law.2        But   because   state    educational    authorities     have
determined that MSD was Kimberli's "sending district," as that term
is used in the relevant New Hampshire statutes, infra, the New

Hampshire      Department       of   Education   ("NHDOE")     requires      MSD   to
reimburse the Pittsfield School District for the cost of the
educational services furnished by the latter to Kimberli.




      1
      New Hampshire statutory law provides that a child placed in
a home for children shall attend school in the district where the
home is located.    N.H. Rev. Stat. Ann. §§ 193:12 V and 193:28
(1998). Those statutes and other relevant New Hampshire statutes
pertaining to the provision of special education services to
children with disabilities are cited and discussed in the body of
the opinion.    They are also set out, in material part, in an
Appendix at the end of this opinion.
      2
      See Individuals with Disabilities in Education Act ("IDEA"),
20 U.S.C. § 1412(a)(1)(A) (2000); N.H. Rev. Stat. Ann. § 186:C-1
(1998) (providing for the furnishing of a free appropriate public
education to children with educational disabilities).

                                         -2-
            MSD    strenuously       objects         to    being        held    financially

responsible for Kimberli's educational expenses.                           It points out

that Kimberli's parents are not New Hampshire residents.                             Born in
Colorado,    Kimberli    came,       as    an    infant,         with    her    parents     to

Manchester, New Hampshire in 1989, where she was severely injured

in an accident.      At the age of seven months, while her parents were
still in Manchester, she was placed, with the assistance of New

Hampshire    officials,        in    the    Brock         Home    in     Pittsfield,        New

Hampshire. Soon thereafter her parents left New Hampshire, leaving

Kimberli in the Brock Home where she has since resided.                              In 1995,

Kimberli's parents were divorced, with Kimberli's father being

awarded custody of the children, including Kimberli, in a divorce

decree issued by an Ohio court.             Her father resides in Akron, Ohio,
and apparently remains satisfied with Kimberli's placement in New

Hampshire.       Neither parent appears to be involved with her or to

contribute to her support.
            In    the   view    of       MSD,    Kimberli's        residence         has,    by

operation of law, become that of her father, making her an Ohio

resident.     MSD resents being forced to pay for the educational

expenses of a minor whom it regards as an out-of-state resident.

MSD challenges the correctness of the NHDOE's interpretation of New

Hampshire    statutory    law       so     as   to   charge       MSD     for    Kimberli's

educational expenses.

             After failing over a period of years to convince New

Hampshire    education     authorities           that      it    should        not   be   held

responsible for Kimberli's educational expenses, MSD sued under 20


                                           -3-
U.S.C. § 1415(i)(2)(A), in the United States District Court for the

District of New Hampshire.3   Acting on cross motions for summary

judgment, the district court agreed with the NHDOE's interpretation
of state law imposing liability for Kimberli's educational expenses

upon MSD in the present circumstances.   This appeal followed.   We

affirm.

I.        FACTS

          This case was disposed of in the district court on cross-

motions for summary judgment filed by the plaintiff-appellant, MSD,

on the one hand, and, on the other, by the defendants-appellees,
Margaret "Peggy" Crisman, as Surrogate Parent for Kimberli M., and

the Pittsfield School District.      We take the facts from the
documentary record made by the parties in connection with their
cross-motions.

          Kimberli M. was born on September 5, 1988, to James and
Paula M. in Colorado.   In January 1989, while she and her parents
were in Manchester, New Hampshire, Kimberli was the victim of an

accident that left her blind and severely developmentally delayed.
Following several months of medical treatment in Manchester, New
Hampshire, and Boston, Massachusetts, Kimberli's parents, with the

aid of the New Hampshire Division of Children and Youth Services,
placed Kimberli in the Brock Home, located in Pittsfield, New


     3
      20 U.S.C. § 1415(i)(2)(A) states, in pertinent part, that a
party aggrieved by a decision of a State education agency regarding
the identification, evaluation, or educational placement of a
child, or the provision of a free appropriate education for a child
shall have the right to bring a civil action "in a district court
of the United States without regard to amount in controversy."

                               -4-
Hampshire, a "home for children" licensed by the New Hampshire

Department of Mental Health.     See N.H. Rev. Stat. Ann. § 193:27 I.4

On the application for placement, Kimberli's parents listed their
address as 213 Pine Street, Manchester, New Hampshire.             Although

the parents, James and Paula M., appear to have retained legal

custody of Kimberli at this time, they had little or no contact
with her after she went to the Brock Home.           Her parents moved to

South Carolina shortly after Kimberli was placed in the Brock Home.

           Because   of   her   several     disabilities,     Kimberli    was

entitled under federal and New Hampshire law to receive special

education services beginning at the age of three.           See 20 U.S.C. §

1412(a)(1)(A); N.H. Rev. Stat. Ann. § 186-C:1.5          In May 1992, the

Moore Center Services, Inc.,6 on behalf of Kimberli, requested the
NHDOE to make a so-called "district of liability" determination to

decide   which   school   district    in   New   Hampshire,   if   any,   was

responsible to pay for the expenses of Kimberli's education.              In a
letter dated May 15, 1992, the NHDOE, quoting N.H. Rev. Stat. Ann.




     4
      This statute is set out, in relevant part, in the Appendix at
the end of this opinion.
     5
      The New Hampshire statute is set out, in relevant part, in
the Appendix at the end of this opinion.
     6
      The Moore Center is an area agency established under rules
adopted by the New Hampshire Commissioner of Health and Human
Services.   It channels funds and services to individuals with
developmental disabilities, and helps with residential placement.
Kimberli has been a client of the Moore Center since April 1989.
Her placement at the Brock Home has been funded through, and
supervised by, the Moore Center. See N.H. Rev. Stat. Ann. § 171-
A:18 (set out, in relevant part, at the end of this opinion).

                                     -5-
§ 193:297, notified MSD that MSD was the district of liability for
Kimberli because it was the district in which Kimberli had "most

recently resided"   prior   to   her    placement    in    the   Brock   Home.
Unhappy with this determination, MSD appealed to the Commissioner

of Education, Charles H. Marston.        The Commissioner affirmed the

NHDOE's decision, and MSD sought no further review of the decision
at this time although entitled to do so.            Therefore, as matters

stood, while Kimberli would attend school in the Pittsfield School

District where the Brock Home was located, MSD had to pay for her

special education costs.

          In 1993, James M., Kimberli's father, relocated from

South Carolina to Akron, Ohio with his remaining children.                  On

February 1, 1993, Kimberli, along with Mrs. Brock of the Brock Home
and an assistant, traveled to Ohio to visit her family.            According

to MSD (but not appellees), there was some thought at the time to

place Kimberli in a facility located in Ohio.             The attempted Ohio
placement, if it was such, failed, and on February 4, 1993,

Kimberli was returned to the Brock Home.            MSD believed that the

out-of-state trip formed a basis for once again challenging the

1992 NHDOE's district of liability determination.             MSD argued, in

a letter to the NHDOE, that the four-day trip constituted a move

that altered Kimberli's residence, thereby relieving MSD of further

liability.    The   NHDOE   rejected     MSD's   characterization.          It

determined that the trip to Ohio was a mere visit that did not

     7
      This statute, together with § 193:27 defining "sending
district," is set out, in relevant part, in the Appendix at the end
of this opinion.

                                  -6-
constitute a change in residence.              Thus, the NHDOE determined that

MSD remained liable for Kimberli's educational expenses.                   MSD did

not seek review of this decision.
             Also   in   1993,     the    NHDOE    appointed   an    educational

surrogate parent, Margaret "Peggy" Crisman, to act in the place of

Kimberli's parents for purposes of making educational decisions.
See N.H. Rev. Stat. Ann. § 186-C:14 III.8              Since her appointment,

Ms. Crisman has acted on Kimberli's behalf in all matters related

to her education. In May 2000, Ms. Crisman became Kimberli's legal

guardian.9

             In 1995, James and Paula M. were divorced.              James M. was

awarded "residential and legal custody" of their four children,

including Kimberli.         Focusing on the 1995 divorce decree, MSD
petitioned    the   NHDOE    for    yet    another    district      of   liability

determination.      MSD argued that, because James M. had been awarded

"residential" custody, Kimberli, a minor, had become a resident of
Akron, Ohio, where her father resided.               MSD reasoned that Akron,

and   not    Manchester,     was    liable       financially   for       Kimberli's

education.      Consistent with this theory, MSD administratively

discharged Kimberli from special education in 1996, reiterating

that her residence, like her father's, was in Akron, Ohio.                       In


      8
      This statute is set out, in relevant part, in the Appendix at
the end of this opinion.
      9
      The parties have not raised any issue over the effect, if
any, Ms. Crisman's status as Kimberli's legal guardian may have on
the NHDOE's 1992 district of liability determination. Because the
parties do not raise the matter, we have no occasion to consider
it.

                                         -7-
response, Ms. Crisman requested a due process hearing before a

hearing officer of the NHDOE.                That request had the effect of

temporarily maintaining the status quo as to Kimberli's placement
and MSD's liability for her education expenses.

              In January 1997, the hearing officer issued a decision

that    the   doctrines    of    res       judicata   and   collateral   estoppel
prevented MSD from re-litigating Kimberli's residency. The hearing

officer determined that the NHDOE's 1992 district of liability

decision constituted a final order binding upon MSD.               However, the

hearing officer allowed MSD to "produce evidence to demonstrate

changed circumstances occurring since the 1992 DOL determination

which might justify a different result . . . ."

              Seeking to demonstrate changed circumstances, MSD argued
that Kimberli's 1993 trip to Ohio and the divorce decree were new

circumstances     calling       for    a    different   district   of    liability

determination. The hearing officer disagreed. She determined that
the 1995 Ohio divorce decree, granting residential custody to

Kimberli's father,        did not affect the 1992 district of liability

determination.      She further concluded that any argument that the

1993 trip to Ohio constituted a move was barred by the statute of

limitations pursuant to N.H. Rev. Stat. Ann. § 186-C:16-b I.10
              MSD thereupon brought this action in the district court

against Crisman, as Kimberli's surrogate parent, and the Pittsfield

School District, contesting the hearing officer's conclusion.                  See


       10
      This statute is set out, in relevant part, in the Appendix
at the end of this opinion.

                                           -8-
note 3, supra.     MSD sought a determination that it was no longer

financially liable for the special education costs associated with

Kimberli's education.           While the case was pending in district
court, New Hampshire amended its state residency laws as they

related to school attendance. The district court remanded the case

to the hearing officer to determine
            whether the 1998 amendments to RSA 193:12 (in
            conjunction with the 1995 divorce decree)
            operated   to    effectuate   a   "change    in
            circumstances"    (i.e.   changed  the    legal
            residence of a minor child), rendering
            Kimberli M. no longer legally resident in New
            Hampshire for educational purposes, therefore
            relieving MSD of any future obligation to fund
            her special education (i.e. thereby justifying
            MSD's decision to prospectively discharge
            Kimberli from its educational responsibility).

Manchester Sch. Dist. v. Margaret Crisman, as surrogate Parent for

Kimberli M. and Pittsfield Sch. Dist., No. 97-632-M, slip op. at 11

(D.N.H. Mar. 5, 1999).

            On   remand,    the    hearing   officer   concluded   that   "MSD
remains legally liable for Kimberli's educational costs[] based on

her placement in a home for children pursuant to RSA 193:27-29."
In re Kimberli M., IDPH 96-32 at 15 (New Hampshire Dept. of Ed.

August 4, 1999).    The hearing officer concluded that the statutory

changes to New Hampshire residency law had no legal bearing on

Kimberli's right to special education in New Hampshire or MSD's

liability for that education.            As an alternative holding, the

hearing officer also ruled that, based on the facts before her,

Kimberli,    although      an     unemancipated   minor,   could   establish

residency in New Hampshire.            Id. at 12.      If this were so, the


                                       -9-
Pittsfield School District, and not MSD, would be liable for the

costs of Kimberli's education under New Hampshire law. Recognizing

the potential implications of her decision, the hearing officer
stated "this finding of Kimberli's residency is secondary to my

primary ruling that MSD is responsible for the cost of educating

Kimberli . . . and should not be construed as placing an obligation
upon Pittsfield . . . ."        Id. at 14.

            At MSD's request, the federal case was reopened and MSD

opposed the hearing officer's primary ruling that it was ultimately

liable for the costs of Kimberli's education.                 The Pittsfield

School District contested the hearing officer's secondary holding

that    Kimberli    could   establish   residency    in   Pittsfield.       The

parties, including Crisman on behalf of Kimberli, made cross-
motions for summary judgment.           MSD argued that, pursuant to the

newly amended section 193:12 II(a)(2)11 and the 1995 divorce decree,

Kimberli's legal residence was now Akron, Ohio and as such, Akron
and not MSD was liable for the costs of her special education.

Pittsfield contended that the hearing officer's conclusion that

Kimberli had become a resident of Pittsfield contradicted the

legislative purpose behind section 193:29.12          Crisman asserted that

the hearing officer had correctly interpreted and applied the law.

            After    requesting    additional      briefing   and    carefully

reviewing    the    statutory   language     and   relevant   case   law,   the

       11
      This statute is set out, in relevant part, in the Appendix
at the end of this opinion.
       12
      This statute is set out, in relevant part, in the Appendix
at the end of this opinion.

                                    -10-
district court agreed with the decision of the hearing officer and

granted Kimberli judgment as a matter of law.        Manchester Sch.

Dist. v. Margaret Crisman, as surrogate parent for Kimberli M., and

Pittsfield Sch. Dist., No. 97-632-M, 2001 WL 920056, at *3 (D.N.H.

July 31, 2001).    The district court concluded that Kimberli had a

"placement-based right" to special education in New Hampshire and
that MSD was liable for her educational costs.

            Judgment originally entered on August 1, 2001.   Pursuant

to Fed. R. Civ. P. 59(e), Manchester filed a Motion to Alter or

Amend the Judgment and requested that the district court certify

the state law questions to the New Hampshire Supreme Court.       On

September 17, 2001, the district court issued an order denying the

motion.   Meanwhile, on August 15, 2001, Crisman filed a Motion for
Reasonable Attorneys' Fees.    The district court extended the time

for filing an appeal until disposition of this motion as allowed by

Rule 4(a)(4) of the Federal Rules of Appellate Procedure.          In
accordance with the orders entered August 1 and September 17, 2001,

post-judgment judgment was entered on October 10, 2001.      The time

for filing an appeal began to run at this time.   This appeal timely

followed.

II.         DISCUSSION

            The basic question on appeal, as it was below, is whether
MSD is financially liable for the costs of the special education

being furnished to Kimberli by the Pittsfield School District. All
parties agree that, while she is living at the Brock Home, Kimberli



                                 -11-
will attend school in the Pittsfield School District.13   The only

issue remaining, as a practical matter, is which school district

pays for the costs associated with the "free appropriate public
education" guaranteed to children with educational disabilities.

While MSD contends that Kimberli is an Ohio resident and that Ohio

should therefore provide and finance her special education, there
is no Ohio party involved here and no form of relief of this nature

is being sought or is available in this proceeding.

          MSD proffers several arguments to support its contention

that it is not financially liable for the costs of Kimberli's

education. MSD first argues that, pursuant to the Individuals with

Disabilities in Education Act ("IDEA"), 20 U.S.C. § 1412(1)(A)14,

and the recently amended New Hampshire law, a New Hampshire School


     13
      N.H. Rev. Stat. Ann. § 193:28 provides that "[w]henever any
child is placed and cared for in any home for children . . ., such
child, if of school age, shall be entitled to attend the public
schools of the school district in which said home is
located . . . ."     See also N.H. Rev. Stat. Ann. § 193:12 V
discussed below. The parties agree that the Brock Home is a "home
for children" located in the Pittsfield School District.

     14
       In 1997, Congress amended the IDEA significantly. Pub. L.
No. 105-17, 11 Stat. 37 (1997).      The litigation predates the
amendments. The Amendments specified that they would "take effect
upon the enactment of this Act," which was June 4, 1997.
Amendments, tit. II, § 201(a)(1). The Amendments nowhere state
that they apply retroactively, and courts addressing the effect of
the Amendments have held that they are prospective only.      See,
e.g., Padilla v. Sch. Dist. No.1, 233 F.3d 1268, 1271 n.3 (10th
Cir. 2000); Peter v. Wedl, 155 F.3d 992, 998 (8th Cir. 1998);
Heather S. v. Wis., 125 F.3d 1045, 1062 (7th Cir. 1997); Cypress-
Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 247 n.1
(5th Cir. 1997). The substance of the provisions at issue in this
opinion remain substantially the same as their counterparts in the
IDEA's present form. For ease of reference, we cite the current
version of the IDEA.

                               -12-
District is not liable for special education programming of a

student whose parents do not reside in the state.           Second, MSD

contends, even if a "placement-based right" exists under New
Hampshire law, it does not apply in Kimberli's case because she was

not properly "placed" at the Brock Home within the meaning of the

statute.    Third, MSD avers that, in the event this court agrees
that Kimberli was placed in the Brock Home, res judicata does not

bar   it   from   re-litigating   the    1992   district   of   liability

determination based on a significant change in circumstances.

Finally, MSD urges this court, in light of the recent amendments,

to certify to the New Hampshire Supreme Court the question of

whether a New Hampshire school district remains liable for the

costs of a student's special education if the parents reside out of
state.

            The district court rejected each of the above arguments.

It determined that state law, and not the IDEA, dictated the
financial liability of individual local school districts for the

costs of a free and appropriate public education.           Then, after

examining the relevant New Hampshire law, the court concluded, as

a matter of law, that the 1998 amendments to section 193:12 did not

affect the original district of liability determination made by the

NHDOE.     Based on the language of the New Hampshire statutes the

court determined that:     (1) New Hampshire law allowed for an in-

state school district to pay for the special education costs of a

child whose parents reside outside the state; and (2) Kimberli was

"placed" in the Brock Home as required by statute.          Finally, it


                                  -13-
denied MSD's post-judgment request for certification, viewing it as

a belated procedural maneuver designed to prolong litigation.

           Because this case involves only questions of law - the
interpretation of federal and state statutes - we review the

district court's conclusions de novo.   Rochester Ford Sales, Inc.

v. Ford Motor Co., 287 F.3d 32, 38 (1st Cir. 2002); G.D. v.
Westmoreland Sch. Dist., 930 F.2d 942, 945 (1st Cir. 1991).   While

our review is plenary, New Hampshire, like most states, gives some

deference to the reasonable interpretation of a state statute by

the state administrative agency charged with the responsibility of

enforcing that statute.   In re Markievitz, 606 A.2d 800, 802 (N.H.

1992); Chambers v. Geiger, 573 A.2d 1356, 1358 (N.H. 1990).     On

issues lacking an overriding federal concern, both federalism and
comity suggest we look at the NHDOE's interpretations in a similar

light.    The Supreme Court of the United States has admonished

federal courts, when reviewing cases under the IDEA, to take great
care not to displace the educational policy judgments made by state

and local public education officials.     See Bd. of Educ. of the

Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206

(1982).

A.         Federal Law and Financial Liability

           In its brief, MSD asserts that "[a] New Hampshire school
district is not required by the [IDEA] to pay for the special

education programming of a student whose parents did not and do not
reside in either that district or the State of New Hampshire." MSD

argues from this assumption that the IDEA dictates that financial

                               -14-
liability for special education be determined by a student's legal

residency and not by any other criterion. Because Kimberli is not,

in MSD's view, a "legal resident" of New Hampshire, MSD says that
it cannot be held liable for her education costs.

           Contrary to MSD's position, however, the IDEA contains no

provision dictating which district or agency within a state must
assume financial liability for special education services.              The

IDEA nowhere purports to allocate financial liability among the

multitude of school districts housed within the fifty states.           And

while the IDEA, as a condition of federal funding for any state,

requires a state to provide a free appropriate public education to

children   with    disabilities     "residing     in    the   State,"     §

1412(a)(1)(A), it does not purport to limit the provision of such
an   education    to   children   who    fit   that    standard,   however

interpreted. "Residing in" could, of course, include children like

Kimberli, who have resided since infancy in a New Hampshire home.
But even if the phrase were interpreted to exclude a minor like

Kimberli the IDEA does not forbid a state from providing and

funding a free appropriate public education to a disabled child who

may not be a domiciliary of that state even if, arguably, the state

is not required to do so and the child may in fact be a charge

under the IDEA upon the custodial parent's state.15

     15
      Whether Kimberli "resides in" New Hampshire or in Ohio, as
that phrase is used in the IDEA, is therefore not a question we
need decide here and we do not do so. Congress's intent in the
IDEA was, at a minimum, to provide a free appropriate public
education to all disabled children residing in the state. Given
Congress's overall wish to assist children with disabilities, it
would make little sense to read into the IDEA an implied

                                  -15-
             The federal statute, as we say, leaves the assignment and

allocation of financial responsibility for special education cost

of local school districts to each individual state's legislature.
The IDEA provides states with federal funds to help defray the

costs of educating children with disabilities.         It requires, as a

condition of the receipt of federal financial assistance, that a
State enact the policies and procedures necessary to ensure that

the mandates of the statute are met.          See 20 U.S.C. § 1412; 34

C.F.R.   §   300.600(b).    This    duty   includes   the   allocation   of

financial responsibility for certain special education services. §

1412(a)(12)(A)(ii).     But it is the New Hampshire legislature, and

not Congress, that assigns and allocates liability for the expenses

incurred by a school district administering the mandates of the
IDEA.

             The cases cited by MSD are not to the contrary.         See,

e.g., Catlin v. Sobol, 93 F.3d 1112, 1115 (2d Cir. 1996); Wise v.
Ohio Dept. of Ed., 80 F.3d 177, 182 (6th Cir. 1996); Newton Pub.

Schs., 25 IDELR 107 (1996).        While each court assigned financial

liability to the school district where the parent resided, the

determination was based on an interpretation of the law of the

relevant state and the particular facts of the case.           Catlin, 93

F.3d at 1114 (interpreting New York law); Wise, 80 F.3d at 182


prohibition forbidding a state from providing public educational
services to children like Kimberli who are present in the state
although their parents are elsewhere. Whether New Hampshire is
more generous than is strictly required for it to meet the IDEA's
minimum standard for state funding is not a matter that offends
against Congress's purposes in the IDEA nor does it offend any
specific language in the IDEA.

                                   -16-
(interpreting         Ohio   law);   Newton     Pub.   Schs.,   25    IDELR   at   107

(interpreting Massachusetts law).                  While courts have sometimes

suggested that there is a presumption that the residency of the
student's      parents       dictates    which     school   district       bears   the

responsibility for meeting the requirements of the IDEA, see

Catlin, 93 F.3d at 1122, no court has stated that the IDEA itself
mandates that a state make determinations of school district

liability based invariably on the parent's residency.

              We therefore agree with the district court that the IDEA

neither dictates the financial liability of particular school

districts nor prevents a state from enacting laws providing for the

payment of the special education costs of a child living at a

school within the state whose parents reside outside the state.
Put another way, it is to New Hampshire law, not federal law, to

which we must look to determine whether MSD must pay for Kimberli's

special education costs.

B.            State Law and Liability

              The New Hampshire legislature has provided a statutory
framework for assigning responsibility for special education costs
as part of the state's responsibility to ensure that children with

educational disabilities receive a free appropriate education as
mandated by federal law.             See N.H. Rev. Stat. Ann. § 186-C:1, et

seq.        Section    186-C:1316,      entitled    "Liability       for   Expenses,"

provides that when a child with educational disabilities is placed


       16
      This statute is set out, in relevant part, in the Appendix
at the end of this opinion.

                                         -17-
in a "home for children" the liability for expenses is determined

in accordance with section 193:29.        Section 193:29 states that for

any child "placed and cared for in a home for children, the sending
district shall make payments to the receiving district."                The

statute defines sending and receiving district as follows:

           193:27 Definitions

                   IV.     "Sending   district"    means   the
                           school district in which the child
                           most recently resided other than
                           in a home for children, the home
                           of a relative or friend in which
                           the child is placed by the
                           department of health and human
                           services or a court of competent
                           jurisdiction . . ., health care
                           facility, or state institution, if
                           such child is not in the legal
                           custody of a parent or if the
                           parent resides outside the state;
                           if the child is retained in the
                           legal custody of a parent residing
                           within    the    state,    "sending
                           district"     means   the    school
                           district in which the parent
                           resides . . . .
                   V.      "Receiving district" means the
                           school district in which the home
                           for   children  or   health  care
                           facility is located . . . .
                   VI.     "School district" means a school
                           district in the state.


           The district court concluded that MSD was the "sending

district" and thus liable for the special education services that
Kimberli receives from the Pittsfield School District. MSD attacks
the   district   court's    determination    that   it   is   the   "sending

district" in three ways.       First, MSD argues that it can no longer


                                   -18-
be considered the "sending district" because the 1998 amendments to

section 193:12 establish that Kimberli is not a "legal resident" of

New Hampshire.     Second, MSD avers that it is not the "sending
district" because, based on the new definition of "legal resident"

contained in 193:12, Kimberli never "resided" in Manchester prior

to her placement at the Brock Home.           Third, it contends that
Kimberli was not "placed" in the Brock Home within the meaning of

the statute because her placement was not facilitated by the New

Hampshire Department of Health and Human Services or by court

order.

            MSD's first two arguments, that the amendments to section

193:12 relieve it of liability, are without merit.        MSD's attempt

to make section 193:12, and the definition of "legal resident" for
purposes of school attendance, the focal point of the financial

liability determination for special education costs is a red

herring.    The definition of legal resident contained in section
193:12 does not affect the particular statutory provisions on which

MSD's liability to Kimberli turns.

            Section 193:12 makes provisions for where students may

attend school.     The 1998 amendments17 to 193:12 provided that a

child may not attend a school in a district in which he or she is

not a legal resident except in defined circumstances.          One of the

defined    circumstances,   of   particular   relevance   to   Kimberli's


     17
      Previously, 193:12 provided that "No person shall attend
school, or send a pupil to school, in any district in which he is
not an inhabitant, without the consent of the district or of the
school board except as herein otherwise provided."

                                   -19-
situation, is that a child placed and cared for in a home for

children may attend the public school in which the home for

children is located.       § 193:12 V.     Thus, pursuant to section
193:12,   Kimberli   is    appropriately   attending   school   in   the

Pittsfield School District - an issue not in dispute.

          To the extent that section 193:12 addresses financial
liability rather than only the place of school attendance, it

follows the framework developed in section 186-C:13.       Paragraph X

of section 193:12, also added in 1998, provided that "[f]or the

purpose of determining liability for a child placed or cared for in

any home for children or health care facility, the provisions of

RSA 193:29 shall apply." The legislature thus retained in 1998 the

existing provision fixing the liability for the education of
students, like Kimberli, placed in a home for children.         Section

193:29, as already noted, provides that for any "child placed in a

home for children, the sending district shall make payment to the
receiving district."      Thus, whether the liability analysis begins

with section 186-C:13 or section 193:12, it proceeds to section

193:29 and, eventually, to the definition of "sending district."

          MSD's further contention, that it is no longer the

"sending district" because the new definition of "legal resident"

contained in section 193:12 altered the meaning of "resided" for

purposes of determining the "sending district," is unavailing.

According to MSD, because Kimberli's parent were never "legal

residents" of Manchester, Kimberli could not have "resided" in

Manchester prior to her placement.


                                  -20-
           Contrary to MSD's position, the definition of "sending

district" explicitly accounts for a situation in which a child

attends school in New Hampshire and the parents reside outside the
state.     In those cases, the "sending district" is the school

district in which the child "most recently resided" prior to

placement in the home for children.                 The New Hampshire Supreme
Court has interpreted the phrase "most recently resided" to mean

the district in which the child lived prior to his or her placement

- regardless of legal residency.             See In re Gary B., 466 A.2d 929,

932 (N.H. 1983) (concluding in the context of 193:27 that resided

"refers to the place where the a child actually lived . . . rather

than to legal residence or domicile").              Accord New Hampshire Att'y

Gen. Op. No. 85-17 (1985).
           The    legislature,        when   it    amended   the     definition    of

"sending district" in 1998, kept the language "in which a child

most recently resided."         The Legislature is presumed to have been
cognizant of the judicial interpretation placed upon the phrase

"most recently resided" and "to have adopted that construction, in

the   absence    of   any    change    in    the   phraseology     used    or   other

competent evidence of a different purpose."                  Waterman v. Town of

Lebanon,   95    A.   657,    658   (N.H.     1915);   see    also    In   re   Cigna

Healthcare, Inc., 777 A.2d 884, 889 (N.H. 2001).                       If the New

Hampshire legislature had intended to alter the law with regards to

liability determinations, as it did for attendance, it would have

amended the language of the statute to reflect such a change.                     It

did not.


                                        -21-
           MSD's third argument, that Kimberli was not "placed" in

the Brock Home within the meaning of the statute because her

placement was not facilitated by the New Hampshire Department of
Health and Human Services or by court order, is not supported by

the statute or the record.        MSD grounds its argument in the 1998

amendments to section 193:27 that inserted into the definition of
"sending district" the phrase "the home of a relative or friend in

which the child is placed by the department of health and human

services or a court of competent jurisdiction" following a "home

for   children."     MSD   argues   that   the    phrase    "placed   by   the

department of health and human services or court of competent

jurisdiction" now modifies the phrase "home for children."

           MSD's suggested interpretation is not supported by the
structure or language of the statute.            As noted by the district

court, the use of commas to separate the phrases plainly shows an

intent   by   the   legislature     to   limit   the    placed-by-the-state
qualifier to the "home of a relative or friend."                 The state-

involved limitation on the placement of a child with a relative or

friend was apparently intended to curb potential abuse of the

educational system.     When children are placed with a relative or

friend other than by state or court direction the parents may

simply be sending their children off to cities or towns with better

schools so as to obtain a public education believed to be superior

to that available in the parents' hometown.            In that instance, the

district where the parents reside should not be, (and pursuant to

193:27 is not), financially liable for the child's education and


                                    -22-
thus would not qualify as the "sending district."            In contrast,

placing a child in a home for children is not likely to be a

subterfuge for securing whatever extra educational benefits the
home's school district may provide.     And to require a child living

at such a home to attend school elsewhere, perhaps at a great

distance, could be either impossible or enormously difficult.
          While, therefore, the clause cited by MSD calling for

departmental or court placement does not apply to minors like

Kimberli placed in a home for children, we note that the instant

record reveals that the New Hampshire Department of Health and

Human Services was involved with Kimberli's placement in the Brock

Home. A file memorandum from the Moore Agency, dated May 22, 1989,

states that Kimberli was placed in the Brock Home "by her parents[]
following the recommendation of State Welfare."         Paula M., in a

letter to the New Hampshire Bureau of Special Education Services

dated May 26, 1992, states that she and Kimberli's father placed
Kimberli at the Brock Home with the assistance of the Department of

Children and Youth Services. Further, Kimberli was and is a client

of the Moore Center Services, Inc., an agency which is part of the

State of New Hampshire's service delivery system for persons with

development   disabilities,   which     has   funded   and     supervised

Kimberli's placement since April 11, 1989. Thus, however one reads

the statute, Kimberli's placement in a home for children was

closely under the auspices of the state.

          Given   New   Hampshire's    statutory   framework,    we   find

ourselves in accord with the rulings of the district court.            The


                                -23-
1998 amendments to the definition of "legal resident" for purposes

of school attendance in no way served to relieve MSD of its

financial responsibility under New Hampshire's statutory scheme.
Our statutory interpretation and that of the district court comport

with that of the NHDOE, the state agency responsible for the

administration of the state laws in question.                See N.H. Rev. Stat.

Ann. § 186-C:3-a.      In 1992, the NHDOE determined that Manchester

was the district of liability and financially responsible for the

costs of Kimberli's special education.            It found that "[t]he most

recent residence of Kimberli other than a licensed home was 213

Pine Street, Manchester, where she lived with her parents from

birth to April 11, 1989."            MSD concedes that it did not, as it

could have, appeal from this decision to the State Board of
Education or to a court of competent jurisdiction.                Consequently,

the NHDOE's decision became a final order and is binding upon MSD.

            Not only has there been no change in the New Hampshire
statutory    landscape    that       would    alter    the    NHDOE's    original

determination,   MSD     has   not    proffered       any   relevant    change   in

circumstances since the NHDOE's 1992 decision that would entitle it

to a different finding.        MSD, moreover, is also now collaterally

estopped from challenging the NHDOE's 1992 district of liability

determination.   Under New Hampshire law, administrative decisions

are subject to the doctrine of collateral estoppel. Findings of an

administrative agency may be given preclusive effect.                  Day v. N.H.

Ret. Sys., 635 A.2d 493, 495 (N.H. 1993).                     Pursuant to this

doctrine, MSD is not now free to challenge NHDOE's finding, made a


                                       -24-
decade ago, that the district in which Kimberli most recently

resided prior to her placement in the Brock Home was Manchester.

The    doctrine   of     res   judicata    has    also     been   applied   to
administrative decisions in New Hampshire.           Morin v. N. Heating &

Plumbing Co., 309 A.2d 153, 155 (N.H. 1973).             Under this doctrine,

MSD is barred from challenging the NHDOE's conclusion that it was
the district of liability for the costs associated with Kimberli's

special education.

III.       Certification

           MSD requests this court to certify to the New Hampshire
Supreme Court the question of whether the New Hampshire legislature

intended to adopt a "residence-based theory of liability for a
student's special education."        We decline to do so.         Not only is
certification unnecessary, as discussed below, it was MSD, the

party that initiated this action in the federal court, that now
seeks certification to the state court.          We have said that "one who
chooses to litigate his state action in a federal forum must

ordinarily accept the federal court's reasonable interpretation of
extant   state    law     rather   than    seeking   extensions      via    the
certification process."        Santiago v. Sherwin Williams Co., 3 F.3d

546, 548 (1st Cir. 1993); Corteau v. Olin Corp., 884 F.2d 45, 46
(1st Cir. 1989).        Under the IDEA, MSD had the option to bring a
civil action "in any State court of competent jurisdiction or in a

district court of the United States."        20 U.S.C. § 1415(i)(2). MSD
moved to re-litigate this issue in the state court only after



                                    -25-
extensive proceedings in the district court and after it became

clear that it would not prevail there.

            Moreover, certification is not warranted here in any
event.      The state law at issue is not ambiguous. See Basic

Controlex Corp., Inc. v. Klockner Moeller Corp., 202 F.3d 450, 452

(1st     Cir.   2000).   There   is   controlling   state   precedent
interpreting the New Hampshire statute allocating the financial

liability for the education of an educationally disabled child.

See Trull v. Volkswagen of Am., Inc., 187 F.3d 88, 104 (1st Cir.

1999).     When state law is sufficiently clear, as it is here, to

allow a federal court to predict its course, certification is both

inappropriate and an unwarranted burden on the state court.     Hugel

v. Milberg, Weiss, Bershad, Hynes & Lerach, LLP, 175 F.3d 14, 18
(1st Cir. 1999).

IV.         Conclusion

            The judgment of the district court is affirmed.




                                 -26-
                                Appendix

All references below are to provision of the N.H. Rev. Stat. Ann.

(1998).

171-A:18   Area Agency Responsibilities and Operations

           I.      The commissioner [of the Department of Health and
                   Human Services] may designate . . . one area
                   agency    which   shall   be   responsible    for
                   administering area-wide programs and services for
                   developmentally disabled persons.      Each area
                   agency so designated shall be the primary
                   recipient of funds . . . for establishing,
                   operating or administering such programs and
                   services.

186-C:1    Policy and Purpose

                   It is hereby declared to be the policy of the
                   state that all children in New Hampshire be
                   provided with equal educational opportunities.
                   It is the purposes of this chapter to insure that
                   the state board of education and the school
                   districts of the state provide a free appropriate
                   public education for all educationally disabled
                   children while taking into consideration the cost
                   of    that     education     when    determining
                   appropriateness.

186-C:3-a Duties

                   [Because of the length of the provision and its
                   tangential nature to the outcome of the opinion,
                   we do not include it.]

186-C:13   Liability for Expenses

           I.      All expenses incurred by a school district in
                   administering the law in relation to education
                   for educationally disabled children shall be paid
                   by the school district where the child resides,
                   except as follows:

                   (a)   When an educationally disabled
                         child is placed in a home for
                         children or health care facility
                         as defined in RSA 193:27, the
                         liability for expenses for such

                                  -27-
                       child shall be determined      in
                       accordance with RSA 193:29

186-C:14   Surrogate Parents

           III.   When, in the opinion of the commissioner of
                  education, or designee, an educationally disabled
                  child as defined in RSA 186-C:2. needs special
                  education and the parent or the guardian of child
                  is unknown or unavailable . . . the commissioner
                  or designee shall appoint a surrogate parent who
                  shall represent the child in the educational
                  decision-making process.

186-C:16-b I      Due Process Hearing; Appeal

           I.     Any action against a local school district
                  seeking to enforce special education rights under
                  state or federal law shall be commenced by
                  requesting an administrative due process hearing
                  from the department of education within 2 years
                  from the date on which the alleged violation was
                  or reasonably should have been discovered.

193:12     Legal Residence Required

           I.     Notwithstanding any other provision of law, no
                  person shall attend school, or send a pupil to
                  the school in any district of which the pupil is
                  not a legal resident, without the consent of the
                  district or of the school board except as
                  otherwise provided in this section.

           II.    For purposes of this section, the legal residence
                  of a pupil shall be as follows:

                  (a) In the case of a minor, legal
                  residence is where her or her parents
                  reside, except that
                       (2) In a divorce decree . . . . If a parent
                       is awarded sole or primary physical custody
                       . . . legal residence of a minor child is
                       the residence of the parent with the sole or
                       primary custody. If the parent with sole or
                       primary physical custody lives outside the
                       state of New Hampshire, the pupil does not
                       have residence in New Hampshire.
                  (b) No minor placed in a home for
                  children or a health care facility, as

                               -28-
               defined in RSA 193:27, by another state
               which   charges   the   state   of   New
               Hampshire . . . for the regular or
               special   education   costs    for   New
               Hampshire children placed in that
               state, shall be considered a legal
               resident   for   purposes   of    school
               assignment, unless the sending state
               agrees to reimburse the receiving
               district, as defined in 193:27, for
               regular education and special education
               costs.
                            * * *


         V.    Except as provided in subparagraph II(b), nothing
               shall limit or abridge the right of any child
               placed and cared for in any home for children, as
               defined in RSA 193:27, or of any child placed in
               the home of a relative of that child by the
               department of health and human services, or
               placed in the home of a relative or friend by a
               court . . . , to attend the public schools of the
               school district in which the home for children or
               home of the relative or friend in which a child
               is placed . . . .

                             * * *
         X.    For the purposes of determining liability for a
               child placed and cared for in any home for
               children or health care facility, the provision
               of RSA 193:29 shall apply.

193:27   Definitions

         I.     "Home   for   children"   means   an   orphanage;
                institution for the care, treatment or custody of
                children, child care agency as defined by RSA
                186:11, 170-E:25, II and III; or any residential
                school approved under RSA 186:11, XXIX.
                             * * *

         IV.    "Sending district" means the school district in
                which the child most recently resided other than
                in a home for children, the home of a relative or
                friend in which the child is placed by the
                department of health and human services or a
                court of competent jurisdiction . . ., health
                care facility, or state institution, if such

                             -29-
                child is not in the legal custody of a parent or
                if the parent resides outside the state; if the
                child is retained in the legal custody of a
                parent residing within the state, "sending
                district" means the school district in which the
                parent resides . . . .

         V.     "Receiving district" means the school district in
                which the home for children or health care
                facility is located . . . .


         VI.    "School district" means a school district in the
                state.

193:28   Right of Attendance

                Whenever any child is placed and cared for in any
                home for children . . . such child, if of school
                age, shall be entitled to attend the public
                schools of the school district in which said home
                is located . . . .

193:29   Liability for Education of Children in Homes for Children
         or Health Care Facilities

         I.     For any child placed and cared for in any home
                for children or health care facility, the sending
                district shall make payments to the receiving
                district . . . .




                               -30-