Tennessee Department of Mental Health and Mental Retardation v. Paul B. And the Hamilton County Board of Education

BATCHELDER, Circuit Judge,

concurring in part and dissenting in part.

Although I agree with the majority that the district court erred in holding the Tennessee Department of Mental Health and Mental Retardation (“TDMHMR”) responsible for payment of Paul B.’s residential home expenses, I do not agree with the ultimate disposition of this appeal. Accordingly, I concur in part and dissent in part.

I. FACTS AND PROCEDURAL HISTORY

Defendant-appellee Paul B. is an emotionally disturbed child within the meaning of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (1990 & Supp.1996) *1480(“IDEA”).1 During the 1980s, he was in and out of several institutions for emotionally disturbed children. A “multidisciplinary team,” or “M-Team,” placed him at Pinebreeze School, a residential institution which plaintiff TDMHMR operates, on June 5, 1990.

An M-Team which included Paul B.’s father, representatives of Pinebreeze, and representatives from defendant Hamilton County Board of Education (“Board”) met on January 7, 1991. Although the parties’ accounts of this meeting vary, we have two documents which are helpful: the “individualized education program” (“IEP”) and the “M-Team summary.” Both are dated January 7, 1991, and signed by M-Team members.

Under the IEP, Paul B. was to meet with his ease coordinator for 50 minutes twice per month, have an academic program for 3 hours and 50 minutes five times per week, have day treatment for three hours five times per week, have individual counseling with the Johnson Academy staff once a week for one hour and additional individual counseling with Dr. Long for one hour per week. The IEP reflects the M-Team’s belief that Paul B. needed a day-treatment program, outside counseling once per week, and a high level of support and structure.

The M-Team summary, in a section entitled “Decision,” states, “M-Team requests placement at Johnson Academy in the Day Treatment program. We believe that he will need up to once per week individual counsel-ing_” A section entitled “Continued Discussion” states, inter alia,

(7) We discussed that [Paul B.] may be able to continue at Pine Breeze in the evening transition to [Johnson Academy] or he may enter the group home now [illegible] there is an opening (8) We discussed that the M Team only can address educational placement & not place in the group home ... (10) Pine Breeze staff does recommend Johnson Academy & the group home ... (12) We discussed a week transition from Pine Breeze to [Johnson Academy] w/ parent providing transportation (13) Once [Paul B.] enters Barton Ave. Group Home — the group home will provide transportation_ (16) [Johnson Academy] is willing for [Paul B.] to begin at [Johnson Academy] on 1/14/91 — Parent to transport & will deliver academic information (17) Anticipated entry into Barton Ave. group Home is 1/18/91.

Later in January 1991, Paul B.’s father took Paul B. to the Barton Avenue Group Home and signed a contract agreeing to pay for the placement. The father claims he signed this contract under duress, because his son had been discharged from Pinebreeze and the family had “no place else for him to go, other than the family home which was neither appropriate or safe.”

The father later requested a due process hearing to decide who should pay the bill from the Barton Avenue Group Home. The state administrative-law judge (“ALJ”) ordered the TDMHMR to pay, because the Pinebreeze staff had recommended that Paul B. be in Barton Avenue. Citing 34 C.F.R. § 300.401(a)(2),2 the ALJ held that when a public agency recommends placement in a private facility, placement is at no cost to parents. The district court agreed with the ALJ’s conclusion but disagreed with his reasoning. Without citing case law, the district court held that the TDMHMR should pay, not because the Pinebreeze staff had recommended Paul B. be at Barton Avenue, but because the TDMHMR had not advised Paul B’s father of the stay-put rule, found in 20 U.S.C. § 1415(e)(3) (Supp.1996) and 34 C.F.R. § 300.513(a) (1995). Accordingly, the district court granted the defendants’, and denied the plaintiff’s, summary-judgment motions. The plaintiff appeals.

*1481II. DISCUSSION

After a lengthy discussion of underlying facts and procedural history, ante at 1468-1471, 1472, the court today reverses and vacates the district court’s ruling on summary judgment. Ante at 1479. The court holds, and I agree, that the district court erred in even considering the stay-put rule, because Paul B. did not contend3 that a residential program was necessary for him to benefit from the special education and related services which the IDEA guarantees him. Ante at 1473-1474; cf. Thomas v. Cincinnati Board of Educ., 918 F.2d 618, 625 (6th Cir.1990) (when the only procedural error is technical noncompliance which caused no substantive deprivation, there is no prejudicial error).4

However, the court then finds, following an extended review of the parties’ positions, ante at 1475-1477, that either (1) Paul B.’s father reasonably believed placement at Barton Avenue was part of the IEP and would be paid for under the IDEA, or (2) he was reasonably informed that residential psychiatric treatment was not in the IEP, and he unilaterally placed his son at Barton Avenue. The court then holds that there is a genuine issue of material fact about whether Paul B.’s father reasonably believed the discussion with the Pinebreeze staff about placement at the Barton Avenue Group Home was in his son’s IEP. Ante at 1477-1478.

From this latter holding I respectfully dissent. As the majority opinion points out, neither Paul B. nor his father contends that a residential program was necessary for Paul B. to benefit from the special education and related services to which he is entitled under the IDEA, ante at 1473-1474, and there is no evidence in the record to support such a contention if it were made. The obligation of an agency of the state to pay for a residential program is dependent upon the necessity of the program in order for the disabled child to benefit from the services agreed upon in the IEP. See 34 C.F.R. § 300.302 (1995) (citing 20 U.S.C. §§ 1412(2)(B), 1413(a)(4)(B)). Absent such evidence, it does not matter what Paul B.’s father deduced from the discussion with the Pinebreeze staff. There may be a dispute about what he believed, but it is not a genuine issue of material fact under Fed. R. Civ. P. 56(c).5

There is no other provision of the IDEA which requires the TDMHMR or the Board to pay the Barton Avenue Group Home bill under the circumstances before us. I would reverse and vacate the district court’s order and remand this action with instructions to *1482enter judgment for the TDMHMR and the Board.

. The statute, now called “the Individuals with Disabilities Education Act,” 20 U.S.C. § 1400(a) (Supp.1996), was formerly called "the Education of the Handicapped Act.” 20 U.S.C. § 1400(a) (1990).

. "Each [state educational agency] shall ensure that a child with a disability who is placed in or referred to a private school or faciliiy by a public agency [i]s provided with special education services [a]t no cost to parents[.]” 34 C.F.R. § 300.401(a)(2) (1995) (citing 20 U.S.C. § 1413(a)(4)(B)).

. A mere contention, of course, would not suffice on a motion for summary judgment. See Fed. R. Civ. P. 56(c).

. We need not consider whether the Barton Avenue Group Home was Paul B.’s "then current educational placement” under the stay-put rule, see generally Thomas, 918 F.2d at 625-26, or whether placement in the Barton Avenue Group Home was included in the IEP. See generally Cordrey v. Euckert, 917 F.2d 1460, 1468 (6th Cir.1990) (citing Gregory K. v. Longview School Dist., 811 F.2d 1307, 1314 (9th Cir.1987)), cert. denied, 499 U.S. 938, 111 S.Ct. 1391, 113 L.Ed.2d 447 (1991).

. I also observe that the district court did not consider whether the Barton Avenue Group Home was an appropriate placement for Paul B. We have held that the child and his parents bear the burden of proving by a preponderance of the evidence that the IEP was inappropriate. Doe v. Board of Educ., 9 F.3d 455, 458 (6th Cir.1993) (citing Cordrey, 917 F.2d at 1469; Doe v. Defendant I, 898 F.2d 1186, 1191 (6th Cir.1990)). Parents who "unilaterally change their child’s placement during the pendency of review proceedings, without the consent of the state or local school officials, do so at their own financial risk.” Florence County School Dist. Four v. Carter, 510 U.S. 7, -, 114 S.Ct. 361, 366, 126 L.Ed.2d 284 (1993) (quoting School Comm. of Burlington v. Department of Educ., 471 U.S. 359, 373-74, 105 S.Ct. 1996, 2004-05, 85 L.Ed.2d 385 (1985)). "They are entitled to reimbursement only if a federal court concludes both that the public placement violated IDEA, and that the private school placement was proper under the Act.” Id. The law does not require that the child receive a “Cadillac” education at public expense; an IEP "reasonably calculated to provide educational benefits” suffices. Doe, 9 F.3d at 460. If a court determines that the IEP was appropriate, the parents are not entitled to reimbursement for any interim period in which the placement violated 20 U.S.C. § 1415(e)(3) (Supp. 1996), the stay-put rule. School Comm, of Burlington, 471 U.S. at 374, 105 S.Ct. at 2004; see Doe, 898 F.2d at 1192. On the other hand, if a court determines that the placement the family chose was appropriate, the family may be reimbursed retroactively in a proper situation. See School Comm. of Burlington, 471 U.S. at 370, 105 S.Ct. at 2003.