In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3096
M.B., by his Parents and Next Friends,
D AMIAN B ERNS and A MY B ERNS,
Plaintiffs-Appellants,
v.
H AMILTON S OUTHEASTERN S CHOOLS and
H AMILTON-B OONE-M ADISON S PECIAL S ERVICES,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:09-cv-00304-TWP-TAB—Tanya Walton Pratt, Judge.
A RGUED F EBRUARY 22, 2011—D ECIDED D ECEMBER 22, 2011
Before W ILLIAMS and T INDER, Circuit Judges, and
G OTTSCHALL, District Judge.
G OTTSCHALL, District Judge. Damian Berns and Amy
Berns, on behalf of their son, M.B.,1 appeal the
district court’s entry of summary judgment in favor of the
The Honorable Joan B. Gottschall, United States District Judge
for the Northern District of Illinois, sitting by designation.
1
We refer to M.B. by his initials, as he is a minor.
2 No. 10-3096
Hamilton Southeastern Schools and Hamilton-Boone-
Madison Special Services (collectively, the “School”),
arguing that they are entitled to reimbursement for
private education, therapy, and evaluation expenses, as
well as their attorneys’ fees, because the School violated
the Individuals with Disabilities Education Act, 20 U.S.C.
§§ 1400-1491 (the “IDEA”), and the provisions relating
to special education in the Indiana Administrative
Code, 511 Ind. Admin. Code § 7 (2007), by failing to
provide M.B. with a free appropriate public education
(or “FAPE”).2 For the reasons that follow, we affirm.
I. B ACKGROUND
In October 2007, at the age of four, M.B. was involved
in an accident that left him with a traumatic brain in-
jury. M.B. had not yet started kindergarten, and on Decem-
ber 7, 2007, M.B.’s parents asked the School about
special education services, including early childhood
and extended school year services.
2
20 U.S.C. § 1401(9) provides, “The term ‘free appropriate
public education’ means special education and related services
that—(A) have been provided at public expense, under public
supervision and direction, and without charge; (B) meet the
standards of the State educational agency; (C) include an
appropriate preschool, elementary school, or secondary school
education in the State involved; and (D) are provided in
conformity with the individualized education program
required under section 1414(d) of this title.”
No. 10-3096 3
Pursuant to Indiana law, once the School learned that
M.B. had a suspected disability, the School was to
obtain parental consent to evaluate M.B. and then, within
sixty instructional days, it was to convene a case confer-
ence committee meeting between M.B.’s parents and
School officials to develop an individualized education
program (“IEP”) for M.B. See 511 Ind. Admin. Code 7-25-
4(b), 7-27-3 (2007). The IEP is a document that describes
the child’s abilities and measurable goals, as well as the
services that a school will provide to assist the child
in reaching those goals. See 20 U.S.C. § 1414(d)(1)(A)(i).
Although M.B.’s parents did not consent to have the
School evaluate M.B. at that time, they did advise
the School that they had hired Dr. Bryan Hudson, a
neuropsychologist, to evaluate their son. Dr. Hudson
completed his evaluation on January 4, 2008, and con-
cluded that M.B. had a “borderline to mild, acute
neurocognitive impairment.” He warned that even
mild impairments often resulted “in major functional
consequences” if proactive measures to address the
potential issues were not taken, and that academic inter-
vention would likely “facilitate smooth transition from
the home to the formal academic environment.” (A.R. at
3102-03.)
Shortly thereafter, on January 24, 2008, M.B.’s parents
gave the School consent to evaluate M.B. The School’s
psychologist completed an initial educational evaluation
on April 2, 2008. Relying primarily on Dr. Hudson’s re-
port, the psychologist suggested that M.B. would benefit
from “persistence and consistency in his learning en-
4 No. 10-3096
vironments,” problem solving support, and level-headed
interactions with adults. (Id. at 1911.) The psychologist
encouraged the case conference committee “to consider
the information obtained from this evaluation, along
with the results of other multidisciplinary team evalua-
tions and classroom observations and performance,
when determining the most appropriate educational
programming.” (Id.)
A. The April Committee Meeting
The School convened its first case conference com-
mittee meeting for M.B. on April 30, 2008. The parents
recorded this conference. At that time, the committee
determined that M.B. was eligible for services based on
his primary disability of “traumatic brain injury” and his
secondary disability of “communicative disorder.”
Dr. Hudson, reporting via telephone, stated that he
expected M.B. to have difficulty solving problems and
that M.B. needed persistence in presentation, repetition,
and consistency. (Apr. CCC Recording Minute 0:22-0:23.) 3
Dr. Hudson noted that one of the easiest ways to
achieve those goals was to give M.B. “as much
schooling as possible.” (Id.) He emphasized that year-
round schooling would be useful, and that all-day kin-
dergarten would be “ultimate” or “optimal” for M.B. (Id.)
Incorporating both Dr. Hudson’s findings and the
parents’ suggestions, the committee developed fourteen
3
This citation is to the recording of the case conference com-
mittee meeting made by M.B.’s parents.
No. 10-3096 5
goals and objectives as part of M.B.’s IEP. The IEP included
goals in the areas of physical therapy, fine motor skills,
language development, and academics. (A.R. at 1963.)
School officials explained to M.B.’s parents that the
School wanted to place M.B. in an early childhood
program so that the School could further evaluate him
to determine a proper kindergarten placement. This
program would include four half-days of early childhood
classroom instruction, twenty minutes of occupational
therapy each week, an hour of speech therapy twice a
week, and twenty minutes of physical therapy each
week. School officials suggested convening another case
conference committee meeting in May, at which point
the committee would make a determination about the
services that the School would provide to M.B. during
his kindergarten year. The IEP would also enable M.B.
to receive extended school year services in June. The
parents signed a form indicating their assent to the
April IEP, which contained M.B.’s goals and recommenda-
tions for services for May 5, 2008 through May 5, 2009.4
Before leaving the April meeting, M.B.’s parents asked
that M.B. be allowed to attend both morning and after-
noon sessions of kindergarten in the fall so that M.B.
could obtain the repetitive instruction that Dr. Hudson
4
Although this IEP provided that M.B. would attend Sand
Creek Elementary for the next year, it did not otherwise
provide for kindergarten-level instruction. The IEP focused
upon services through June; summer and fall programming
was to be decided at the May committee meeting.
6 No. 10-3096
recommended.5 M.B.’s parents were informed that no
one who could respond to that request was present,
but that Casey Felus, the Assistant Director of Special
Education, would participate in the next committee
meeting. When M.B.’s mother expressed concerns about
Ms. Felus’ role in the decisionmaking process, School
representatives assured her that they would consider
Dr. Hudson’s recommendation, M.B.’s progress over the
next four weeks, and the parents’ input in determining
whether the School could provide such programming,
given that there was no “set full-day kindergarten” pro-
gram in the district. (Apr. CCC Recording Minute 2:02.)
Nonetheless, another School representative stated that
this process would be a “formality,” that full-day kinder-
garten had been provided in the past, and that full-
day kindergarten was not outside the realm of possi-
bility for M.B. (Id. 2:03-2:05.)
B. The May Committee Meeting
M.B. began receiving early childhood services on May 4,
2008. Approximately four weeks later, on May 29, 2008,
the School convened the May committee meeting; the
5
M.B.’s mother at times referred to this as “full-day kindergar-
ten,” although during the May committee meeting, it became
clear that she was requesting “double-session” kindergarten,
where M.B. would attend identical kindergarten sessions
in both the morning and afternoon. By contrast, full-day
kindergarten is a general education initiative that contains
varied instruction throughout the day.
No. 10-3096 7
parents also recorded this conference. Both parents,6
Casey Felus, and several other School officials attended.
Dr. Hudson was not present, nor had he observed M.B.
in the school setting.
During this conference, School officials reported that
M.B. had done well in his half-day early childhood educa-
tion sessions. Of the fourteen goals described in M.B.’s
IEP, the committee reported that M.B. fully accomplished
four of his goals, and he had made progress toward nine
others; of those nine goals, he was on track to meet all
of them, having made some progress toward six of them
and a little progress toward three of them. The only
goal for which M.B. had no recorded progress involved
moving to a cool-down area with prompting; this could
not be assessed because M.B.’s teachers did not ex-
perience behavioral problems with M.B.
Notwithstanding M.B.’s progress, M.B.’s mother again
requested that M.B. be allowed to attend both the
morning and afternoon sessions of kindergarten in the
fall. She reiterated Dr. Hudson’s opinion that a full day
of instruction would be appropriate for M.B.’s needs.
School officials informed her, however, that the School
did not offer this type of programming, that the School
had not allowed other students to attend both sessions of
kindergarten, and that any departure from the existing
programming would require superintendent approval.
6
While the district court stated that M.B.’s father did not
participate in this meeting, M.B.’s father can clearly be heard
on the audio recording.
8 No. 10-3096
Instead, the School offered to modify M.B.’s IEP to
include a half-day of kindergarten as well as additional
services (such as speech therapy, physical therapy, and
social skills training), some of which would be pro-
vided after the morning kindergarten session.7
M.B.’s parents declined the offer. They argued that
unless the School provided M.B. with a full day of in-
struction, the School would not be meeting M.B.’s
needs. While they held firm on the need for a full day
of instruction, they suggested that the instruction could
consist of a half day of kindergarten together with either
a half day of early childhood services or a half day of first
grade. School officials responded that the services the
School had provided under M.B.’s IEP were sufficient.
They felt that M.B.’s performance over the last four
weeks established that M.B. was making progress
toward his IEP goals, and that M.B. was ready to advance
to kindergarten. M.B.’s parents rejected this conclusion.
Having reached an impasse, the meeting ended without
M.B.’s parents adopting the revised May IEP. Instead,
they declared that they would take the matter up with
the superintendent.
7
The School also suggested that M.B.’s parents enroll M.B. in
a program called kindergarten plus (K+), an after-school
program at the YMCA. As M.B.’s parents noted during the
May committee meeting, however, this program was not
provided by the School, as the program would have been at
the parents’ expense.
No. 10-3096 9
C. The Proposed June Committee Meeting
M.B. began receiving extended school year services on
June 9, 2008. In the meantime, M.B.’s parents pursued
their request for double-session kindergarten with both
the superintendent and with Tom Bell, the Director of
Special Education. On June 2, 2008, M.B.’s parents asked
Bell to review excerpts from the audio they had recorded
during the April and May committee meetings. They
explained to Bell that Dr. Hudson was concerned that
M.B. could exhibit up to 30% memory loss without repeti-
tion, and that double-session kindergarten would “mini-
mally accommodate [M.B.’s] needs.” (A.R. at 2014.) None-
theless, on Monday, June 9, 2008, the School once again
rejected the parents’ request, citing M.B.’s progress as
described during the May meeting. (Id. at 2015.) Bell
also stated that “[i]f [the case conference committee
members] saw that [M.B.] was struggling, then they
could always go back and change [the IEP].” (Id.) On
June 11, 2008, Bell offered to speak to Dr. Hudson, but
M.B.’s mother rejected the offer. (Id. at 2016.)
That same day, M.B.’s parents initiated proceedings
before the Indiana State Department of Education. (Id.
at 2017.) Dr. James Jacobs was appointed as the independ-
ent hearing officer (“IHO” or “hearing officer”) for M.B.’s
due process hearing, which was scheduled to take place
in August 2008.
Meanwhile, Bell had offered to convene a third case
conference committee meeting on June 19, 2010 to recon-
sider M.B.’s kindergarten placement. On June 18, 2008,
the parents rejected this offer on the advice of counsel.
10 No. 10-3096
(Id. at 2021.) Instead, the parents offered to attend a
mediation session. (Id.) The School refused. At this point
in time, the School had not provided M.B.’s parents with
any written explanation for its decision to deny M.B.
double-session kindergarten, nor had it provided
M.B.’s parents with his IEP.
M.B.’s extended school year services ended on June 26,
2008. At that point, M.B.’s teacher reassessed M.B.’s
performance based on the fourteen goals set forth in his
IEP. She believed that M.B. had “maintained or im-
proved his performance” with respect to all of them. (Id.
at 2027.) In mid-July, M.B.’s parents removed him from
the School and placed him in a Lindamood Bell
Learning Center. (A.R. at 962.)
On July 7, 2008, Dr. Hudson evaluated M.B. a second
time. In his subsequent report—which was based entirely
on Dr. Hudson’s observation of M.B. in his office—the
doctor concluded that M.B. had improved “very little
since last evaluated and, in fact, has experienced mild
decline in his overall level of functioning.” (Id. at 3153.)
Dr. Hudson opined that M.B. would “require an
extended school year given the deficits demonstrated in
working memory and consolidation, as [M.B.] will likely
lose much of what he has apparently learned if not rein-
forced in a highly repetitive fashion.” (Id. at 3154.) He
reported a decline in M.B.’s neuropsychological assess-
ment (“NEPSY”) scores as well. (Id. at 3155.) The
parents also obtained letters from pediatrician Victor
Nanagas and psychiatrist Laura Wilner; they wrote that
full-day kindergarten was “strongly recommended” and
No. 10-3096 11
“extremely necessary” to ensure that M.B.’s needs
were met. (Id. at 3159, 3132.)
D. The Due Process Hearing
The due process hearing took place over four days in
August. The purpose of the hearing was to determine
whether the School had denied M.B. a free appropriate
public education. Several witnesses, including Dr. Hud-
son, Tom Bell, M.B.’s mother, Tracey Mark (M.B.’s early
childhood teacher), Dr. Nanagas, and Dr. Christopher
Sullivan (the School’s neuropsychological witness), testi-
fied. All of the information available during both the
April and May case conference committee meetings was
admitted by the hearing officer; in addition, the hearing
officer adm itted the post-conference committee
evidence from Drs. Hudson, Nanagas, and Wilmer.
At the hearing, the School attempted to discredit the
June and July reports from M.B.’s doctors. For instance,
Dr. Nanagas admitted that M.B.’s parents had composed
his letter, that he had not seen M.B. for the four months
preceding the letter, and that he had no medical basis
substantiating his opinion. Likewise, Dr. Sullivan testi-
fied that Dr. Hudson’s credentials had been ques-
tioned, Dr. Hudson’s NEPSY data may not have been
methodologically sound, and that a practitioner should
not diagnose a neurological or educational deficit based
on the outcome of a single test. (A.R. at 1414-15, 1486,
1495.) He also noted discrepancies in the data between
Dr. Hudson’s July 2008 report and the conclusions being
drawn therefrom. (Id. at 1421.)
12 No. 10-3096
The hearing officer issued his opinion, which contained
160 findings of fact, on October 8, 2008. Most relevant
here are the following:
“As reflected by the School’s ongoing assessments and
further supported by testimony, [M.B.] acquired
benefit from [early childhood services] in multiple
areas. No convincing data to the contrary was pre-
sented by [M.B.].” (Finding of Fact No. 28);
“Each of the School’s witnesses testified that [M.B.]
made notable gains in all areas observed during the
period of time he participated in the School’s pro-
grams.” (Finding of Fact No. 93);
“The Parents chose to terminate the May [case confer-
ence committee meeting] prior to completing discus-
sion regarding [extended school year] services and
additional services being proposed for [M.B.] for the
2008-2009 school year. As a result, a revised IEP was
not completed at this meeting.” (Finding of Fact
No. 106);
“No regression of skills, social, academic, physical,
behavioral, or speech has been observed in the school
setting. No reliable data that can be attributed to the
extent or quality of services provided by the School
demonstrate regression in these areas since the in-
itiation of services provided by the school.” (Finding
of Fact No. 122); and
“The May [case conference committee] adjourned
without parties having reached agreement regarding
services to be provided [M.B.] for the 2008-2009
school year.” (Finding of Fact No. 160).
No. 10-3096 13
Several findings of fact acknowledged Dr. Hudson’s
July report, as well as the opinions of Drs. Nanagas and
Wilmer. (Findings of Fact 20-22, 59-68.) Although the
hearing officer found that the School committed some
procedural errors, such as initially failing to provide the
parents with a copy of M.B.’s IEP or written notice of its
decision to deny M.B. double-session kindergarten, the
hearing officer concluded that these errors “did not
result in substantive harm.” (A.R. at 3408, 3415.) The
hearing officer further found that the School had not
denied M.B. a free appropriate public education. Thus,
he denied any substantive relief to M.B., including reim-
bursement for M.B.’s placement in the Lindamood Bell
Learning Center.
E. The Board of Special Education Appeals
M.B.’s parents appealed the hearing officer’s decision
to the Indiana Board of Special Education Appeals (the
“Board”). The Board issued its decision on February 10,
2009. The Board noted that it could not disturb the
hearing officer’s findings of fact or conclusions of law
unless those conclusions were arbitrary and capricious,
an abuse of discretion, or unsupported by substantial
evidence. (Board Op. at 31 ¶ 1.) Applying this standard
of review, the Board upheld 157 of the hearing officer’s
160 findings, including those set forth above. The Board
reversed the hearing officer on a few points, however.
For instance, it determined that not all required partici-
pants were in attendance at the May committee meeting;
in particular, no general education kindergarten teacher
14 No. 10-3096
had been available to address the merits of a full-day
kindergarten placement. (Id. at 33 ¶ 11.)
Still, the Board concluded that M.B. failed to show that
any procedural violation “significantly impeded the
parents’ opportunity to participate in the decision-
making process” or “caused a deprivation of educational
benefits.” (Id. at 33 ¶ 14.) The Board confirmed that M.B.
did not require a full-time kindergarten program in
order to receive a free appropriate public education. (Id.
at 32 ¶ 10.) Thus, it too denied the parents’ requested relief.
F. The District Court
Following the Board’s decision, M.B.’s parents exercised
their statutory right to file suit in the district court. See
20 U.S.C. § 1415(i)(2)(A). Although they were allowed to
supplement the record, see id. § 1415(i)(2)(C)(ii), they did
not do so. The district court completed its own review
of the administrative record and, after according due
weight to the Board’s findings of fact and reviewing the
Board’s legal conclusions de novo, see Marshall Joint
Sch. Dist. No. 2 v. C.D. ex rel. Brian D., 616 F.3d 632, 636
(7th Cir. 2002), the court denied the parents’ request for
relief. See M.B. v. Hamilton Se. Schs., No. 1:09-cv-0304-
TWP-TAB, 2010 WL 3168666 (S.D. Ind. Aug. 10, 2010).
The district court began its analysis by noting that
because the parents were seeking only compensatory
relief, the focus would be on whether the School
provided M.B. with a free appropriate public education,
not whether the School complied with all of the pro-
No. 10-3096 15
cedural requirements of the IDEA. In other words, any
procedural deficiencies were important only insofar as
those deficiencies denied M.B. a FAPE. Id. at *5. In
M.B.’s case, the court agreed with the Board that any
procedural errors were harmless; for instance, the lack
of a kindergarten teacher at the May committee meeting
was immaterial to the School’s denial of a double-
session kindergarten placement since that decision was to
a large extent based upon “M.B.’s positive progress”—an
issue about which the kindergarten teacher could not
have provided useful input at the May meeting. Id. The
court did not address every purported procedural error,
but it suggested that M.B.’s parents had played an active
role in the crafting of M.B.’s IEP, noting that they “had
participated in approving the progress goals and the IEP
to be followed.” Id. at *6. The district court also noted
that the School had satisfied its “child find” obligation
because it convened a case conference within sixty in-
structional days from receiving parental consent, as
required by the Indiana Administrative Code, 511 Ind.
Admin. Code § 7-25-4(b) (2007). M.B., 2010 WL 3168666
at *5.
The court concluded that deference was owed to the
hearing officer’s and Board’s determination that M.B.
was receiving a free appropriate public education. In
particular, at the time the parents “drew a line in the
sand” and decided to stop interacting with the case
conference committee, all indications were that M.B.’s
IEP was producing results, and there was no reason to
think that the proposed future plan “would not have
yielded similar positive results.” Id. at *7. Further, the
16 No. 10-3096
School remained amenable to monitoring and adjusting
M.B.’s IEP on an as-needed basis.
In addition, the parents had provided no evidence to
establish the propriety of M.B.’s Lindamood Bell place-
ment, and for this reason as well the court declined to
order the School to reimburse the parents. The parents
now appeal.
II. L EGAL S TANDARD
As we have often noted, our standard of review in IDEA
summary judgment cases differs from the norm. See
Todd v. Duneland Sch. Corp., 299 F.3d 899, 904 (7th Cir.
2002). In particular, where (as here) the district court
reviews only that evidence that was before the admin-
istrative tribunal, “ ‘[t]he motion for summary judgment
is simply the procedural vehicle for asking the judge
to decide the case on the basis of the administrative rec-
ord.’ ” Id. (quoting Heather S. v. Wisconsin, 125 F.3d 1045,
1052 (7th Cir. 1997)). While this court reviews legal
issues de novo, see Brian D., 616 F.3d at 636, we give
“due weight” to the factual determinations of the ad-
ministrative tribunals. Todd, 299 F.3d at 904. In other
words, we provide “ ‘the usual deference that reviewing
courts owe agencies when judicial review is limited to
the administrative record.’ ” Id. (quoting Sch. Dist. of
Wis. Dells v. Z.S., 295 F.3d 671, 675 (7th Cir. 2002)). This
review is equivalent to a “clear-error” or “substantial-
evidence” standard. See Z.S., 295 F.3d at 675. As a result,
the party challenging the outcome of the administrative
No. 10-3096 17
proceedings bears the burden of proof. See Alex R. v.
Forrestville Valley Cmty. Unit Sch. Dist. No. 221, 375 F.3d
603, 611 (7th Cir. 2004).
III. D ISCUSSION
M.B.’s parents advance several arguments on appeal.
First, they argue that M.B. was denied a free appropriate
public education due to the School’s violation of IDEA’s
procedural and substantive requirements. Second, they
argue that the School violated its “child find” obligations,
see 20 U.S.C. § 1412(a)(3), and the special education pro-
visions of the Indiana Administrative Code, see 511
Ind. Admin. Code 7-25-2 (2007), because, although
M.B.’s parents notified the school of M.B.’s injury by
early December 2007, the School did not provide M.B.
with services until May 2008. Third, M.B.’s parents
argue that M.B.’s placement in the Lindamood
Bell program was appropriate and that they should be
reimbursed. And finally, citing 20 U.S.C. § 1415(i)(3)(B)
and 511 Ind. Admin. Code 7-30-6 (2002), M.B.’s parents
contend that they are entitled to their attorneys’ fees.
A. Free Appropriate Public Education
Under the IDEA, “a state that accepts federal funding
to educate disabled children must provide such children
with an education that is free, public, and appropriate.”
Alex R., 375 F.3d at 606. “The school district, however, is
not required to provide the best possible education.” Todd,
18 No. 10-3096
299 F.3d at 905. Rather, the statute requires only that a
student’s IEP be “reasonably calculated to enable the
child to receive an educational benefit.” Evanston Comm.
Consol. Sch. Dist. No. 65 v. Michael M., 356 F.3d 798, 802 (7th
Cir. 2004); see Bd. of Educ. of Hendrick Hudson Cent. Sch.
Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 203 (1982)
(noting that a school satisfies the FAPE requirement
when it provides “personalized instruction with suf-
ficient support services to permit the child to benefit
educationally from that instruction”). There is both
a procedural and substantive component to the IDEA.
See Rowley, 458 U.S. at 206-07; Michael M., 356 F.3d at 802.
1. Procedural Adequacy
The IDEA seeks to “assure[ ] the parents an active and
meaningful role in the development or modification of
their child’s IEP.” Hjortness v. Neenah Joint Sch. Dist., 507
F.3d 1060, 1064 (7th Cir. 2007). But procedural defects
do not necessarily indicate that a child has been denied
a free appropriate public education; only those defects
that “result in the loss of educational opportunity” deny
a child a FAPE. Id. at 1065 (citing Bd. of Educ. v. Ross,
486 F.3d 267, 276 (7th Cir. 2007)).
First, M.B.’s parents argue that the School predetermined
M.B.’s placement in advance of the May conference
committee meeting. Such a predetermination may, in
some instances, be the type of procedural defect that
deprives a child of a FAPE. See, e.g., Deal v. Hamilton Cnty.
Bd. of Educ., 392 F.3d 840, 857 (6th Cir. 2004) (where a
No. 10-3096 19
“predetermination amounted to a procedural violation
of the IDEA” and had the effect of depriving the parents
of meaningful participation in crafting their child’s IEP,
the predetermination deprived the child of a FAPE).
But here, the parents have provided no evidence to
suggest that such a predetermination took place. Instead,
the facts establish that the School was willing to make
adjustments to M.B.’s IEP based upon input from
M.B.’s parents. Indeed, the School relied on Dr. Hudson’s
report to generate many of M.B.’s goals and objectives.
In short, the parents have not met their burden of estab-
lishing any type of procedural defect based upon pre-
determination, much less one that rises to the level of
a substantive denial of a FAPE.
Next, the parents point to the School’s failure to
include a general kindergarten teacher at the May com-
mittee meeting, and cite Deal to support their argu-
ment that this failure deprived M.B. of a free appro-
priate public education. But in Deal, the Sixth Circuit
specifically found that the teacher would have had a “real
impact on the decision-making process.” 392 F.3d at 861.
Here, by contrast, the district court found that a general
kindergarten teacher could have had no significant
input as to the appropriateness of a double-session kinder-
garten placement, because the School’s decision to
deny that request “was based on M.B.’s positive progress
and an administrative policy.” M.B., 2010 WL 3168666,
at *5. Thus, the court concluded, and we agree, that the
lack of a general kindergarten teacher at the May com-
mittee meeting did not affect M.B.’s placement. Id. As
such, the procedural error cannot amount to a denial of
a free appropriate public education.
20 No. 10-3096
M.B.’s parents also argue that M.B. was denied a FAPE
as a result of the School’s failure to include someone
who could “authorize” double-session kindergarten as
part of the May conference. Again, we agree with the
district court: the statute does not require the presence
of one who can authorize a proposed placement. Rather,
it merely requires the presence of an agency representa-
tive who “is knowledgeable about the general education
curriculum” and “about the availability of resources of
the local educational agency.” 20 U.S.C. § 1414(d)(1)(B)(iv).
Casey Felus met those requirements.
Moreover, M.B.’s parents claim that the School’s
failure to provide them with prior written notice of its
decision to deny a double-session kindergarten
placement denied them an opportunity meaningfully
to participate in crafting M.B.’s IEP. See 20 U.S.C.
§ 1415(b)(3)(B) (requiring written prior notice to be pro-
vided when the school district “refuses to initiate or
change”). But the purpose of this requirement is to
ensure that parents are aware of the decision so that
they may pursue procedural remedies. See, e.g., J.W. ex rel.
J.E.W. v. Fresno Unified Sch. Dist., 626 F.3d 431, 459 (9th
Cir. 2010) (suggesting that formal notice of a proposed
placement “will greatly assist parents in presenting
complaints” regarding that placement); A.K. v. Alexandria
City Sch. Bd., 484 F.3d 672, 682 (4th Cir. 2007) (noting
that the policies served by prior written notice include
“creating a clear record of the educational placement” and
“assist[ing] parents in presenting complaints”). Here,
M.B.’s parents were well aware of the School’s refusal
to provide double-session kindergarten, as evidenced by
No. 10-3096 21
their decision to initiate a due process complaint. The
lack of prior written notice did not impair the parents’
ability to participate in the process, and the hearing
officer did not clearly err when he determined that this
omission “in no way resulted in harm to the Student.”
(A.R. at 3415.)
Finally, while M.B.’s parents did not receive a copy of
his IEP precisely on time, the plan was promptly delivered
to the parents’ counsel, and counsel had it at their
disposal for the duration of these proceedings. The same
is true of M.B.’s educational records, which were ob-
tained by counsel and are now part of the record. Like the
provision for prior written notice, the purpose of the
IDEA’s record disclosure provision is to ensure that
parents can review a school district’s decisions and
pursue due process remedies for those decisions with
which they do not agree. That purpose has been
fulfilled here. The parents have provided no reason to
believe that any procedural errors substantively pre-
vented M.B. from receiving a FAPE.
In sum, the hearing officer, the Board, and the district
court concluded that M.B. was not substantively
affected by any procedural errors, and it is the par-
ents’ burden to convince this court otherwise.
M.B.’s parents have not carried that burden.
2. Substantive Adequacy
Even if the district’s procedural missteps did not deny
M.B. a free appropriate public education, we still must
22 No. 10-3096
consider whether M.B.’s IEP substantively provided him
with a FAPE. We reiterate that an IEP is reasonably
calculated to enable the child to receive an educational
benefit “when it is ‘likely to produce progress, not regres-
sion or trivial educational advancement.’ ” Alex R., 375
F.3d at 615 (quoting Cypress-Fairbanks Indep. Sch. Dist. v.
Michael F., 118 F.3d 245, 248 (5th Cir. 1997), and citing
Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 (2d
Cir. 1998)). To prevail on their substantive claim, then,
M.B.’s parents must convince this court that the hearing
officer, the Board, and the district court clearly erred in
determining that M.B. was making progress under his
IEP. See M.B., 2010 WL 3168666, at *7 (citing Rowley,
458 U.S. at 209-20, and Todd, 299 F.3d at 905-07).
We conclude that there is nothing unreasonable about
that determination. The record establishes that M.B.
made progress toward his IEP goals not only upon re-
ceiving early childhood services, but also while
receiving extended school year services. Given that M.B.
was making progress toward his IEP goals while
receiving half-day, early-childhood services, it was rea-
sonable for the committee to conclude that M.B. did not
require double-session kindergarten to meet his needs.
While other evidence—particularly Dr. Hudson’s
July NEPSY findings—suggests that M.B. had regressed
during May and June 2008, there is no reason to give
Dr. Hudson’s report or testimony dispositive weight.
First, Dr. Christopher Sullivan’s testimony called into
question many of Dr. Hudson’s conclusions. Second, this
court has expressed the view that it is inappropriate to
No. 10-3096 23
defer to the opinion of a single psychologist, particularly
where that opinion is in conflict with the opinions of
“teachers and other professionals.” See Heather S., 125 F.3d
at 1057 (“[T]he deference is to trained educators, not
necessarily psychologists. While the latter certainly have
a role to play, and can contribute meaningful insight to
the evaluation of a student, the school district is
required to bring a variety of persons familiar with a
child’s needs to an IEP meeting, including, specifically,
teachers.”); see also Brian D., 616 F.3d at 641 (“[Although]
a physician’s diagnosis and input on a child’s medical
condition is important and bears on the team’s informed
decision on a student’s needs . . ., a physician cannot
simply prescribe special education . . . .”). In fact, the
School was obliged to consider a broad range of evidence
in assessing M.B.’s progress, and was precluded from
relying upon “any single measure or assessment as the
sole criterion for determining . . . an appropriate ed-
ucational program for the child.” See 34 C.F.R.
§ 300.304(b)(1)-(2).
In any event, the appropriateness of an IEP “can only be
judged by examining what was objectively reasonable
at the time” the case conference committee created the
IEP. M.B., 2010 WL 3168666, at *6 (citing Roland M. v.
Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990)). That
is, an IEP must be “evaluated prospectively and not in
hindsight.” See Bd. of Educ. of Comm. Consol. Sch. Dist.
No. 21 v. Ill. State Bd. of Educ., 938 F.2d 712, 717 n.4 (7th
Cir. 1991). With that in mind, it was reasonable to
discount Dr. Hudson’s July report and subsequent testi-
24 No. 10-3096
mony in considering whether the May IEP denied M.B. a
FAPE. Because the record supports the conclusion that
M.B. was making progress toward his IEP goals as of
the May committee meeting, it was reasonable for the
administrative tribunals to conclude both that M.B. did
not require double-session kindergarten, and that the
proposed IEP was reasonably calculated to confer an
educational benefit on M.B.
B. The School’s Child-Find Obligations
M.B.’s parents further argue that the School violated its
“child find” obligations because, although it learned of
M.B.’s injury by December 2007, it did not begin to provide
M.B. with services until May 2008. The district court
concluded that the School complied with 511 Ind. Admin.
Code § 7-25-4(b) (2007), which mandates that a school
district evaluate a student within sixty instructional days
of receiving parental consent for an evaluation, and
thereby satisfied its “child find” obligations. We agree.
Indiana required school districts to obtain consent prior
to evaluating a student for purposes of crafting an IEP. Id.
Here, the School did not receive consent until January 24,
2008, and the School completed its evaluation on or
about April 2, 2008—within the sixty instructional day
limit. Thus, the School satisfied its obligation.
M.B.’s parents, however, argue that the School was
required to be more proactive even without their formal
consent. At the time M.B.’s parents first began to
explore special education services for M.B., Indiana law
required a public agency to take additional steps when it
No. 10-3096 25
was unable to obtain parental consent. See 511 Ind. Admin.
Code. § 7-25-1 (2007) (“No student shall be denied a free
appropriate public education as a result of a public
agency’s inability to obtain parental consent for an initial
evaluation . . . . The public agency may pursue mediation
but shall pursue a due process hearing in an effort to
resolve the issue of the public agency’s inability to
secure parental consent for an initial evaluation.”). But
here, M.B.’s parents never refused to provide consent;
rather, as the parents admit, they clearly indicated to the
School that they intended to give permission to evaluate
their child, and they did so on January 24, 2008. This is not
a situation like E.N. ex. rel. Nesbitt, an Indiana case inter-
preting § 7-25-1 and noting that, in a case where a parent
flatly refused to consent to an IEP, the school was not
relieved of its duty to evaluate a student. See E.N. ex rel.
Nesbitt v. Rising Sun-Ohio Cty. Comm. Sch. Corp., 720 N.E.2d
447, 453 (Ind. Ct. App. 1999). Without any indication
that the School would be unable to obtain parental
consent for the initial evaluation, the School’s obligation
to pursue mediation or a due process hearing was never
triggered. Because the School conducted its evaluation
within sixty instructional days of receiving parental
consent, it fully complied with its “child find” obligations.
C. Reimbursement
As previously noted, M.B.’s parents removed M.B. from
the School and placed him in a Lindamood Bell Learning
Center. They seek reimbursement for this placement.
M.B.’s parents are not entitled to any reimbursement.
26 No. 10-3096
Parents “who unilaterally change their child’s place-
ment without state or local school officials’ consent are
‘entitled to reimbursement only if a federal court con-
cludes both that the public placement violated the IDEA
and that the private school placement was proper under
the Act.’ ” Todd, 299 F.3d at 905 (quoting Florence Cnty.
Sch. Dist. Four v. Carter, 510 U.S. 7, 15 (1993) (second
emphasis added)). Even assuming that the School
violated the IDEA, M.B.’s parents failed to carry their
burden of presenting evidence to show that M.B.’s place-
ment at Lindamood Bell was appropriate.
Counsel conceded at oral argument that the evidence
M.B.’s parents provided to establish the propriety of the
Lindamood Bell placement was “general” and “deficient
in detail.” Although M.B.’s parents claim that M.B.’s
alternative placement must have been successful because
he performed well in the second grade in another school
district, the only evidence offered in support of this
assertion is Lindamood Bell’s good reputation and
general information about the program from M.B.’s
parents.8 This is not enough. And while M.B.’s parents
contend that they did not have an adequate opportunity
to present evidence to the hearing officer, nothing pre-
8
M.B.’s mother testified that M.B. was attending “an intense
one-on-one program” through Lindamood Bell for three
hours per day, five days a week; M.B.’s father offered
www.lindamoodbell.com as a source of additional information;
and M.B.’s mother conceded that she did not think she or
her husband had any specific information about the program.
(A.R. at 1176, 1185.)
No. 10-3096 27
vented M.B.’s parents from submitting additional evi-
dence to the district court. See 20 U.S.C. § 1415(i)(2)(C)(ii).
D. Attorneys’ Fees
Finally, citing 20 U.S.C. § 1415(i)(3)(B) and 511 Ind.
Admin. Code 7-30-6 (2002), M.B.’s parents contend that
if they prevail on any aspect of the question of whether
the School denied M.B. a free appropriate public
education, then they will be considered the prevailing
party and are entitled to attorneys’ fees. As they have not
prevailed on any aspect of their claim, M.B.’s parents are
not entitled to attorneys’ fees. See Hensley v. Eckerhart,
461 U.S. 424, 436 (1983) (noting that “the most critical
factor” in determining the reasonableness of a fee
award “is the degree of success obtained”).
IV. C ONCLUSION
The hearing officer, the Board, and the district court
unanimously agreed that the School did not deny M.B. a
free appropriate public education. Given both Rowley
and our standard of review, we cannot disagree with
that conclusion. Thus, this court affirms the judgment
of the district court.
12-22-11