Case: 09-40369 Document: 00511123803 Page: 1 Date Filed: 05/27/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 27, 2010
No. 09-40369
Lyle W. Cayce
Clerk
R.H., Unidentified Party, by His Parents and Next Friends;
EMILY H., Unidentified Party; and MATTHEW H., Unidentified Party,
Plaintiffs-Appellants,
versus
PLANO INDEPENDENT SCHOOL DISTRICT,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
Before JONES, Chief Judge, SMITH and ELROD, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
R.H., a minor, appeals the denial of tuition reimbursement for private pre-
schooling under the Individuals with Disabilities Education Act (“IDEA”). We
affirm.
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I. The IDEA.
Congress enacted the IDEA to ensure that children with disabilities will
have access to public education, including special education and related servic-
es. See 20 U.S.C. § 1400(d)(1)(A); Daniel R.R. v. State Bd. of Educ., 874 F.2d
1036, 1044 (5th Cir. 1989). The IDEA requires school districts in states receiv-
ing designated federal funds to implement procedures and policies that assure
that each disabled student receives a “free appropriate public education,” or
“FAPE.” 20 U.S.C. §§ 1412(a)(1), 1415(a). To ensure that a child receives a
FAPE, parents and school districts collaborate to develop an Individualized Ed-
ucation Plan (“IEP”) that is “reasonably calculated to enable the child to receive
educational benefits.”1
In Texas, a committee that develops an IEP is known as an Admissions,
Review, and Dismissal (“ARD”) Committee. Cypress-Fairbanks Indep. Sch. Dist.
v. Michael F., 118 F.3d 245, 247 (5th Cir. 1997). The ARD Committee consists
of the parents of the child; at least one of his regular education teachers; at least
one special-education teacher; a qualified representative of the school district;
an individual who can interpret “the instructional implications of evaluation re-
sults;” other individuals who have knowledge or special expertise regarding the
child (included at the discretion of the parent or agency); and, where appropri-
ate, the child. V.P., 582 F.3d at 580 n.1 (citations omitted).
The IDEA does not entitle a disabled child to an IEP that maximizes his
potential, but instead only guarantees a “basic floor” of opportunity “specifically
designed to meet the child’s unique needs, supported by services that will permit
him to benefit from the instruction.” Richardson Indep. Sch. Dist. v. Michael Z.,
580 F.3d 286, 292 (5th Cir. 2009) (citations omitted). The educational benefit,
1
Houston Indep. Sch. Dist. v. V.P. ex rel. Juan P., 582 F.3d 576, 583-84 (5th Cir. 2009)
(citation omitted), cert. denied, 78 U.S.L.W. 3546 (U.S. Mar. 22, 2010); see also 20 U.S.C.
§ 1415(b)(1).
2
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however, “cannot be a mere modicum or de minimis; rather, an IEP must be like-
ly to produce progress, not regression or trivial educational advancement.” Id.
(citation omitted).
One of the primary mandates of the IDEA, and the central focus in this
case, is “mainstreaming,” which is the requirement that an IEP place a disabled
child in the least restrictive environment (“LRE”) for his education:
In general[, t]o the maximum extent appropriate, children with dis-
abilities, including children in public or private institutions or other
care facilities, are educated with children who are not disabled, and
special classes, separate schooling, or other removal of children
with disabilities from the regular educational environment occurs
only when the nature or severity of the disability of a child is such
that education in regular classes with the use of supplementary
aids and services cannot be achieved satisfactorily.
20 U.S.C. § 1412(a)(5)(A). See Daniel R.R., 874 F.2d at 1039.
“By creating a statutory preference for mainstreaming, Congress also cre-
ated a tension between two provisions of the [IDEA],” the requirement that a
school district provide a FAPE on the one hand, and the requirement that, on
the other hand, it does so within the least restrictive environment. Id. at 1044.
“Even when school officials can mainstream [a] child,” however, “they need not
provide for an exclusively mainstreamed environment.” Id. at 1045. Rather,
“the [IDEA] requires school officials to mainstream each child only to the maxi-
mum extent appropriate. In short, the [IDEA]’s mandate for [FAPE] qualifies
and limits its mandate for education in the regular classroom.” Id. (citation
omitted).
II. Factual Background.
R.H. was born in December 2001. At age two, he received an evaluation
through Texas’s Early Childhood Intervention (“ECI”) program and was deemed
eligible for ECI services, namely, speech and occupational therapy.
3
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In June 2004, R.H. began attending TLC, a private preschool, and contin-
ued there until December of that year, when his parents convened with officials
from Plano Independent School District (“PISD” or “the district”) for an ARD
committee meeting. At the meeting, R.H. was determined to qualify for IDEA
services because of suspected autism and speech impairment. The ARD com-
mittee also developed R.H.’s IEP, which proposed placing him part-time in a
class at Beaty Early Childhood School (“Beaty”) that included both special edu-
cation and typically developing students. R.H. would also receive supplemental
services, including weekly speech therapy sessions. His parents agreed to the
IEP.
R.H. enrolled at Beaty in January 2005 and spent most of the spring sem-
ester there. The record reflects that, while at Beaty, he made some progress
toward the goals listed in his IEP. Nevertheless, his parents became concerned
that he was showing behavioral regression. During a parent-teacher conference
in March 2005, they expressed concern about the perceived regression and stat-
ed their belief that R.H. needed summer school.
In May 2005, after receiving no response from PISD about their concerns,
R.H.’s parents removed him from Beaty and re-enrolled him at TLC. By that
time, the spring curriculum had ended at TLC, and R.H. participated in a less
structured summer program, which a TLC employee referred to as “play time.”
R.H.’s teacher at TLC was not certified to teach in Texas public schools, was not
certified in special education, and did not have a college degree. TLC did not
have a speech or occupational therapist on staff. R.H.’s parents believed, how-
ever, that R.H. was better suited to be at TLC, in large part because the ratio of
typically developing students to special education students was higher than at
Beaty. During the summer, R.H.’s parents obtained private speech and occupa-
tional therapy for him.
At the end of the summer, PISD and R.H.’s parents held another ARD
4
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meeting to discuss modifications to the IEP. More ARD meetings followed
throughout the fall, until January 2006. R.H.’s parents wanted PISD to provide
R.H. with a full day’s schedule and 90 minutes of individual speech therapy and
30 minutes of group speech therapy each week. The district instead offered to
lengthen R.H.’s school day from 2 hours, 45 minutes to 3 hours, 45 minutes, in-
cluding supervised lunch time with other students to address some of R.H.’s dif-
ficulties with eating. The district also offered 15 minutes of individual speech
therapy and 75 minutes of group therapy each week. As an alternative, the dis-
trict offered a “dual enrollment” option, whereby R.H.’s parents could enroll him
at TLC at their own expense but receive supplemental services at Beaty at no
cost.
The parties could not reach an agreement. R.H.’s parents requested a due
process hearing pursuant to the IDEA, which was held before a special hearing
officer in April 2006. At the hearing, R.H. alleged that PISD had denied him a
FAPE. Specifically, he alleged that, in developing his IEP, the district had
failed to (1) consider the full continuum of placement options, including non-
special education environments; (2) offer an appropriate educational program at
Beaty during the spring of 2005; (3) place him in the LRE available for his edu-
cation; and (4) provide him with extended-school-year education for the summer
of 2005. R.H. requested reimbursement for his tuition at TLC and privately ob-
tained speech, occupational, and physical therapy from May 2005 onward, as
well as an order that PISD continue to pay for tuition and therapy until he be-
gan kindergarten in the fall of 2008.
The hearing officer found in favor of PISD on all but the extended-school-
year claim. Although the hearing officer found that the district had improperly
denied R.H. services for the summer of 2005, she did not award reimbursement,
because R.H. had failed to notify PISD of his intent to enroll at TLC during that
period as required by 20 U.S.C. § 1412(a)(10)(C)(iii).
5
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R.H. sued. Both parties moved for summary judgment after agreeing that
the evidence in the administrative record was sufficient. The magistrate judge
issued a report and recommendation in favor of affirming the ruling of the hear-
ing officer. The magistrate judge found that R.H.’s IEP provided him with a
FAPE, including an education in the LRE, and that R.H.’s failure to give notice
under § 1412(a)(10)(C)(iii) barred reimbursement for tuition at TLC during the
summer of 2005. Over R.H.’s objections, the district court adopted the report
and recommendation.
On appeal, R.H. argues that his placement at Beaty violated the IDEA
because it was not the LRE for his education and because PISD failed to follow
certain procedural requirements of the IDEA. R.H. also contends that the notice
requirement, which the district court held barred recovery for summer 2005 tui-
tion, does not apply.
III. Standard of Review .
The district court, reviewing the decision of a hearing officer under the
IDEA, accords “due weight” to the hearing officer’s findings but ultimately
reaches “an independent decision based upon the preponderance of the evi-
dence” that is “virtually de novo.” Michael F., 118 F.3d at 252. We review the
district court’s decision that the IEP’s placement of R.H. at Beaty was appropri-
ate under the IDEA de novo as a mixed question of law and fact.2 The findings
of underlying facts, “such as findings that a disabled student obtained educa-
tional benefits under an IEP,” are subject to clear error review. Id. (citations
omitted).
2
Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 347 (5th Cir. 2000) (citation omit-
ted); see also Brillion v. Klein Indep. Sch. Dist., 100 F. App’x 309, 312 (5th Cir. 2004) (“In our
view, compliance with the mainstreaming requirement presents a mixed question of law and
fact, review is de novo . . . .”).
6
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The role of the judiciary is not to second-guess the decisions of school of-
ficials or to substitute their plans for the education of disabled students with
the court’s. Flour Bluff Indep. Sch. Dist. v. Katherine M., 91 F.3d 689, 693 (5th
Cir. 1996) (citation omitted). Instead, the court’s role is limited to determining
whether those officials have complied with the IDEA. Id. (citation omitted).
The IDEA creates a presumption in favor of a school district’s educational plan,
placing the burden of proof, by preponderance of the evidence, on the party
challenging it. Salley v. St. Tammany Parish Sch. Bd., 57 F.3d 458, 467 (5th
Cir. 1995) (citation omitted).
If there is a violation of the IDEA, we review the district court’s decision
not to grant tuition reimbursement for abuse of discretion. St. Tammany Par-
ish Sch. Bd. v. Louisiana, 142 F.3d 776, 782-83 (5th Cir. 1998). Because we af-
firm the finding that PISD did provide R.H. with a FAPE, however, we need not
review the denial of reimbursement.
IV. Tuition Reimbursement for the Regular School Year.
Tuition reimbursement for private education is a remedy available to
courts and hearing officers where a school district fails to provide a child with
a FAPE.3 To receive reimbursement, R.H. must show that (1) his IEP’s public
placement at Beaty was inappropriate under the IDEA and (2) his private school
placementSSin this case, at TLCSSwas proper under the IDEA.4
3
“If the parents of a child with a disability, who previously received special education
and related services under the authority of a public agency, enroll the child in a private ele-
mentary school or secondary school without the consent of or referral by the public agency, a
court or a hearing officer may require the agency to reimburse the parents for the cost of that
enrollment if the court or hearing officer finds that the agency had not made a free appropriate
public education available to the child in a timely manner prior to that enrollment.” 20 U.S.C.
§ 1412(a)(10)(C)(ii).
4
Michael Z., 580 F.3d at 293; see also Florence County Sch. Dist. Four v. Carter ex rel.
(continued...)
7
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We determine whether R.H.’s IEP appropriately placed him at Beaty by
considering two additional questions. First, did PISD comply with the procedur-
al requirements of the IDEA? And second, was the IEP “reasonably calculated
to enable [R.H.] to receive educational benefits?” Michael Z., 580 F.3d at 293
(citing Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982)).
A. Did PISD Comply with IDEA’s Procedural Requirements?
R.H. alleges three violations of the IDEA that could be construed as “pro-
cedural.” He does not explicitly identify them as procedural, perhaps because
the district court held that he had not alleged procedural violations in his com-
plaint and had thus waived his right to pursue such claims. Though we are in-
clined to agree, we review R.H.’s procedural claims, assuming arguendo that
they were properly raised.
The first such claim is that PISD failed to consider the harmful effects of
placing R.H. at Beaty when developing his IEP, as required by “34 C.F.R.
§ 300.552(d).” That regulation no longer exists. R.H. gives us no information
about whether it was effective at relevant times in the past. Because the claim
is inadequately briefed, it is waived. United States v. Martinez, 263 F.3d 436,
438 (5th Cir. 2001).
Even if we were to consider the argument, it is directly controverted by the
record. R.H.’s IEP from December 2004 contains a standard subsection entitled,
“Consideration of Potential Harmful Effects,” which indicates that the ARD com-
mittee membersSSincluding R.H.’s parentSSdiscussed the potential harmful ef-
fects of R.H.’s placement at Beaty.5
4
(...continued)
Carter, 510 U.S. 7, 12-13 (1993).
5
The potential harmful effects considered included lack of opportunity for appropriate
(continued...)
8
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R.H. also alleges that his IEP offered no “explanation of the extent, if any,
to which [R.H.] w[ould] not participate with nondisabled children in the regular
class,” in violation of 20 U.S.C. § 1414(d)(1)(A)(i)(V). Again, the IEP controverts
R.H.’s claim. It contains a standard section entitled “Committee Justification
for Removal from the General Education,” which explains that R.H.’s “needs/be-
haviors are such that he requires a full-time special education setting” but that
he would still be part of a “General Education Campus” with “opportunity to par-
ticipate with students without disabilities in all nonacademic and extracurricu-
lar activities to the maximum extent appropriate.” Therefore, R.H. has not met
his burden of proving a procedural violation in that respect.
Finally, R.H. claims his ARD committee violated the IDEA’s procedural re-
quirements because it did not consider placing him in a “regular,” as opposed to
special, educational setting with supplementary aids as needed. That argument
dovetails with R.H.’s principal substantive claim, that his IEP was not reason-
ably calculated to deliver educational benefits, because it violated the LRE re-
quirement of the IDEA. Because of that overlap, and because R.H. has not expli-
citly identified a distinct procedural claim in his briefing, we will consider this
claim as part of his allegation that PISD violated the substantive LRE require-
ment of the IDEA.6
5
(...continued)
role models, stigmatization, isolation from peers, diminished access to full range of curriculum,
decreased student self-esteem, and decreased access to the instructional opportunities avail-
able in integrated settings.
6
Citing Daniel R.R., 874 F.2d at 1043, the district court noted that this circuit “has
treated the failure to provide a continuum of educational services as a procedural, rather than
substantive, violation of IDEA.” Daniel R.R. is admittedly confusing on the procedural-versus-
substantive nature of the LRE requirement. One part of that opinion treats a school district’s
failure to provide a “continuum” of “alternative placements and supplementary services in con-
junction with regular class placement” as a procedural violation. Id. (citation omitted). An-
other part, however, considers the question “whether the state has taken steps to accommo-
date the handicapped child in regular education . . . [using] supplementary aids and services”
(continued...)
9
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B. Was the Substance of the IEP Reasonably Calculated?
We move from procedure to substance. The second question we address,
in reviewing the appropriateness of R.H.’s placement at Beaty, is whether the
substance of his IEP was “reasonably calculated to enable [him] to receive edu-
cational benefits.” Michael Z., 580 F.3d at 293.
1. The LRE Requirement in Michael F. and Daniel R.R.
At the outset, we must reconcile some of our precedent. We determine
whether an IEP was reasonably calculated using the four factors identified in
Michael F., 118 F.3d at 253: (1) Is the program individualized on the basis of the
student’s assessment and performance; (2) is the program administered in the
least restrictive environment; (3) are the services provided in a coordinated and
collaborative manner by the key “stakeholders”; and (4) are positive academic
and non-academic benefits demonstrated?
R.H. argues, however, that analysis under Michael F. is premature until
we examine whether his IEP satisfies the statute’s LRE requirement. He points
to Daniel R.R., 874 F.2d at 1045, in which we said the “two part inquiry”SSlook-
ing first to procedural violations and second to whether an IEP was reasonably
calculatedSSis “not the appropriate tool for determining whether a school district
has met its mainstreaming [i.e., LRE] obligations.” We then developed an inde-
pendent test for satisfying the LRE requirement.
Michael F. and Daniel R.R. are not in conflict. Michael F. interpreted the
LRE requirement as part of the FAPE requirement but did not alter Daniel
R.R.’s framework for determining whether a school district satisfies the LRE re-
quirement. Our analysis of the second Michael F. factor, then, is guided by Dan-
6
(...continued)
as a substantive matter. Id. at 1048. For purposes of this case, however, we need not digress
into the subtle distinctions between procedural and substantive LRE claims.
10
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iel R.R.
R.H. did not address the Michael F. factors in his briefing, insisting that
only Daniel R.R. is relevant. As we have just explained, we consider his argu-
ments as relating to the second Michael F. factor, whether the IEP satisfied the
statute’s LRE provision. As for the other Michael F. factors, nothing in R.H.’s
briefing could be construed as challenging the district court’s finding that PISD
satisfied the first (individualized program) and third (stakeholder involvement)
factors. R.H. does argue that he regressed during his time at Beaty, and this
could be construed as a challenge to the district court’s finding, under the fourth
factor, that R.H. demonstrated positive academic and nonacademic benefits un-
der his IEP. We therefore review the district court’s findings under the second
and fourth Michael F. factors.
2. Standard of Review Under Michael F.
We review the district court’s underlying factual findings under each of the
four Michael F. factors for clear error.7 We consider de novo any legal issues that
arise under the four factors. V.P., 582 F.3d at 584.
3. Michael F. Factor Two: the LRE Requirement.
In Daniel R.R., 874 F.2d at 1048, we stated a flexible, two-part test for
determining whether an IEP’s placement was in the LRE. “First, we ask wheth-
er education in the regular classroom, with the use of supplemental aids and ser-
vices can be achieved satisfactorily for a given child.” Daniel R.R., 874 F.2d at
1048. “If it cannot and the school intends to provide special education or to re-
7
V.P., 582 F.3d at 583 (reviewing the district court’s findings under each Michael F.
factor, including the LRE requirement, for clear error); but see Brillion v. Klein Indep. Sch.
Dist., 100 F. App’x 309, 312 (5th Cir. 2004) (“In our view, compliance with the mainstreaming
requirement presents a mixed question of law and fact, [and] review is de novo.”).
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move the child from regular education, we ask, second, whether the school has
mainstreamed the child to the maximum extent appropriate.” Id. At the outset
of step one, “we must examine whether the state has taken steps to accommo-
date the handicapped child in regular education . . . . If the state has made no
effort to take such accommodating steps, our inquiry ends, for the state is in vio-
lation of the Act’s express mandate to supplement and modify regular educa-
tion.” Id.
R.H.’s central argument is that PISD fails Daniel R.R. step one (and thus,
Michael F. factor two), because the district did not consider placing him any-
where except at Beaty. His class at Beaty, R.H. argues, is a “special education”
setting, not a “regular” setting. It follows that PISD took no “steps to accom-
modate [him] in regular education,” as required by the IDEA.
We disagree. The hearing officer found that PISD had considered placing
R.H. in a fully mainstreamed environment but rejected that option. That finding
was amply supported by evidence offered at the due-process hearing. Susie
Vaughn, the principal at Beaty and a member of R.H.’s ARD committee, testified
that the committee was aware of R.H.’s previous enrollment at TLC, but because
of the needs identified in R.H.’s IEPSSa low staff-to-student ratio, a special edu-
cation teacher with knowledge of autism, regular collaboration with a speech
pathologistSSthe committee could not be confident that the IEP could be imple-
mented in a private school setting, without PISD’s direct supervision.
At one point, Vaughn admitted that she personally “did not consider”
whether R.H.’s IEP “could be implemented in a typical pre-school setting.” But
she later clarified, “I wouldn’t say that it wasn’t that we couldn’t consider [imple-
menting the IEP at a private preschool], because we obviously did consider it.
It’s that we didn’t recommend it. We didn’t advise that because we couldn’t
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assure that we could implement that IEP as written in that preschool setting.”8
The picture that emerges from the due-process hearing transcript is of an
ARD committee marshaling a range of resources and services to ensure R.H. a
free appropriate public education. As the IEP developed, it seemed apparent to
the committee membersSSincluding R.H.’s motherSSthat the best place to imple-
ment the plan was at Beaty. The ARD committee was well aware of R.H.’s previ-
ous experience in private preschool, but considering all his newly identified
needs and newly offered resources, the committee did not recommend that he
continue at TLC. The hearing officer thus concluded that R.H. had not met his
burden to prove PISD failed to consider a full continuum of placement options.
The district court, giving due weight to the hearing officer’s factual find-
ings but still conducting an independent review, left that finding in place and
found no violation of either the procedural or substantive requirements of the
IDEA. Michael F., 118 F.3d at 252. We review that underlying factual finding
for clear error and find none. Id.9 PISD satisfied Daniel R.R. step one by con-
sidering whether R.H.’s IEP could be satisfactorily implemented in a regular
classroom.
We disagree, moreover, with R.H.’s rigid interpretation of Daniel R.R. step
one, because he ignores an important factual distinction. In Daniel R.R., the dis-
trict had the option of placing the child in either of two pre-existing public class-
rooms: a regular pre-kindergarten class or a special education early childhood
class. Daniel R.R., 874 F.2d at 1039. R.H. asserts that “PISD offers no main-
8
See Hearing Transcript 150-53, 224-25.
9
R.H. argues that the clear-error standard of review is “not as heavy” here, because we
stand in the same shoes as did the district court in reviewing the administrative record. See
Sicula Oceanica v. Wilmar Marine Eng’g & Sales Corp., 413 F.2d 1332, 1333 (5th Cir. 1969).
The distinction is irrelevant, however, because, as our analysis above should make apparent,
we would uphold the district court’s finding that PISD satisfied Daniel R.R. step one even
under a more stringent review.
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stream public classes for preschool children.” In such a case, he argues, PISD
was required to begin with the presumption that it would place him in “[t]he
only mainstream placement available,” a “‘private’ placement at a preschool for
typically developing children,” and remove him from the private setting only if
it could not provide a satisfactory education there.
The IDEA, however, makes removal to a private school placement the ex-
ception, not the default. The statute was designed primarily to bring disabled
students into the public educational system and ensure them a free appropriate
public education.10 Courts should therefore be cautious before holding that a
school district is required to place a child outside the available range of public
options.
We do not read Daniel R.R. to flip the default of the IDEA in favor of a pri-
vate school placement in this case. Daniel R.R. does not consider or speak to the
circumstances at issue here, where the public preschool curriculum does not in-
clude a purely mainstream class. Since Daniel R.R. was decided, none of our
decisions involving LRE analysis addressed facts remotely similar to those in
this case.11 A rigid application of Daniel R.R. step one, therefore, is not as help-
ful or persuasive as R.H. contends.
R.H. hangs his LRE argument on a threshold challenge to Daniel R.R. step
one and has not advanced an alternative argument that PISD failed step two.
10
20 U.S.C. § 1400(c)(2)(B) (finding that disabled children were being “excluded entirely
from the public school system and from being educated with their peers”); W.S. ex rel. C.S. v.
Rye City Sch. Dist., 454 F. Supp. 2d 134, 148 (S.D.N.Y. 2006) (“Nothing in IDEA compels the
school district to look for private school options if the [district], having identified the services
needed by the child, concludes that those services can be provided by the public school.”).
11
See V.P., 582 F.3d at 586 (concluding that mainstream placement for hearing-im-
paired child did not provide a FAPE under the circumstances presented there); Brillon, 100
F. App’x at 311-15 (stating that removing a second-grader from mainstream social studies and
science classes because he could not keep pace with the curriculum did not violated the LRE
requirement).
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Accordingly, we affirm the district court’s finding that R.H. was mainstreamed
to the maximum extent appropriate, and R.H. has not met his burden under Mi-
chael F. factor two to show that his IEP was not implemented in the least re-
strictive environment.
4. Michael F. Factor Four: Academic and Non-academic Benefits.
We move to the fourth factor under Michael F., whether R.H. demonstrat-
ed positive academic and non-academic benefits under his IEP. Here again, we
agree with the district court that the record has evidence that R.H. made suffi-
cient progress during his one semester at Beaty to show that his IEP was provid-
ing a FAPE. R.H.’s teacher testified at the due process hearing, for instance,
that R.H. had made progress in a number of areas, including shape recognition,
counting, responding to his name, and socializing with other students.
According to R.H.’s parents, he was happier and developing better at TLC
than at Beaty. As we have already explained, however, the IDEA does not enti-
tle R.H. to a program that maximizes his potential. Michael Z., 580 F.3d at 292.
As long as PISD has provided R.H. with a “basic floor” of opportunity, “specifi-
cally designed to meet the child’s unique needs, supported by services that will
permit him to benefit from the instruction,” the district has fulfilled its obliga-
tions under the law. Id.
C. R.H.’s Placement at Beaty Did Not Violate the IDEA.
In summary, R.H. has not shown that PISD violated the procedural re-
quirements of the IDEA, nor has he shown that his IEP was not reasonably cal-
culated to enable him to receive educational benefits. It follows that the IEP’s
placement of R.H. at Beaty was not inappropriate under the IDEA, and R.H. is
not entitled to tuition reimbursement for his time at TLC. We need not and do
not decide, therefore, whether TLC’s school-year curriculum offered a proper
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Case: 09-40369 Document: 00511123803 Page: 16 Date Filed: 05/27/2010
No. 09-40369
private placement under the IDEA.
V. Tuition Reimbursement for Summer 2005.
In addition to normal school-year tuition reimbursement, R.H. seeks reim-
bursement for summer enrollment at TLC in 2005. As explained above, we an-
alyze requests for reimbursement by asking first, whether the IEP’s placement
(or in this case, lack thereof) was appropriate under the IDEA, and second,
whether the private school placement at TLC was proper under the statute. Mi-
chael Z., 580 F.3d at 293.
The hearing officer held that PISD violated the IDEA when it failed to re-
spond to the request of R.H.’s parents that the district provide an extended
school year for R.H. in the summer of 2005. Nevertheless, the hearing officer
held that reimbursement for R.H.’s enrollment at TLC that summer was inap-
propriate because R.H. had not given notice to PISD that he would be enrolled
at TLC during that time period, as required by 20 U.S.C. § 1412(a)(10)(C)(iii).
That part of the statute provides, in relevant part, that a court or hearing officer
may reduce or deny an otherwise valid reimbursement request if
at the most recent IEP meeting that the parents attended prior to
removal of the child from the public school, the parents did not in-
form the IEP Team that they were rejecting the placement proposed
by the public agency to provide a free appropriate public education
to their child, including stating their concerns and their intent to
enroll their child in a private school at public expense; or . . . 10 bus-
iness days . . . prior to the removal of the child from the public
school, the parents did not give written notice to the public agency
of the information described [above].
20 U.S.C. § 1412(a)(10)(C)(iii)(I). The district court affirmed the denial of reim-
bursement.
On appeal, R.H. argues, as he did before the district court, that the notice
requirement did not apply to him, because PISD never organized an ARD meet-
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No. 09-40369
ing specifically to address his request for an extended school year in 2005. He
could not have possibly rejected the placement proposed by PISD per the notice
requirement, when there was no summer placement proposal to reject in the
first place.
We agree, instead, with the district court that the lack of extended school
year services was part and parcel of R.H.’s IEP at the time he re-enrolled at TLC
in May 2005, and he was thus required to give notice to PISD of his intent to re-
ject the terms of his existing IEP. We note, moreover, that the decision to award
private tuition reimbursement is a matter left to the discretion of courts and
hearing officers.12
And even if we were convinced by R.H.’s argument that he was not re-
quired to give notice of enrollment at TLC for the summer of 2005, we are skepti-
cal that he has met his burden to show that TLC was an appropriate private
placement, worthy of reimbursement. The record reflects that TLC’s regular
curriculum ended in May 2005 and that the summer program was mere “play
time.”
VI. Conclusion.
PISD satisfied its obligations under the IDEA to develop an IEP for R.H.
that offered him a FAPE during the school year. R.H. is barred from receiving
reimbursement for private summer preschool tuition, because he did not give
proper notice. R.H.’s request for attorney’s fees is denied.
There is no error. The judgment is AFFIRMED.
12
20 U.S.C. § 1412(a)(10)(C)(ii) (stating that “a court or a hearing officer may require
the [school district] to reimburse the parents for the cost of [private] enrollment if the court
or hearing officer finds that the agency had not made a free appropriate public education avail-
able”) (emphasis added).
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