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).
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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
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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.
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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.
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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.
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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
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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.
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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
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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.
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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
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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
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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
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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.
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(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
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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."
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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.
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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.
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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
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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
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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
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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
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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.
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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
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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
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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
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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 . . . .
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