United States Court of Appeals
For the First Circuit
Nos. 03-1668
03-1697
GREENLAND SCHOOL DISTRICT,
Appellee, Cross-Appellant,
v.
AMY N., as parent and next friend of minor daughter, KATIE C.;
ROBERT N., as parent and next friend of minor daughter, KATIE C.,
Appellants, Cross-Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Lynch, Circuit Judge,
Campbell, Senior Circuit Judge, and
Lipez, Circuit Judge.
Scott F. Johnson, with whom Michael R. Chamberlain and Stein,
Volinsky & Callighan were on brief, for appellants.
Jeanne M. Kincaid, with whom Jennifer D. Sawyer and Bernstein
Shur, Sawyer & Nelson were on brief, for appellees.
Ronald K. Lospennato, with whom Wendy B. Paget was on brief,
for amici curiae the Disabilities Rights Center, the New Hampshire
Psychiatric Association, the Asperger's Association of New England,
and the National Alliance for the Mentally Ill, New Hampshire.
Diane M. Gorrow, with whom Steven R. Sacks and Soule, Leslie,
Kidder, Sayward & Loughman were on brief, for amici curiae the New
Hampshire Association of Special Education Administrators, New
Hampshire School Boards Association, and NEA-NH.
February 23, 2004
LYNCH, Circuit Judge. In 1997 Congress significantly
amended the Individuals with Disabilities in Education Act (IDEA),
20 U.S.C. § 1400 et seq. The 1997 Amendments, Pub. L. No. 105-17,
111 Stat. 37 (1997), reinforced the principle that children should
not be removed unnecessarily from regular education environments,
20 U.S.C. § 1412(a)(5)(A), in part by eliminating "inappropriate
financial incentives for referring children to special education."
H.R. Rep. 105-95, at 90 (1997), reprinted in 1997 U.S.C.C.A.N. 78,
87. One specific purpose of the amendments was to control
government expenditures for students voluntarily placed in private
schools by their parents. See id. at 91-92.
At issue in this case is whether the parents of Katie C.1
are entitled to reimbursement from the Greenland, New Hampshire
School District for Katie's tuition at a private special-needs
school, the Learning Skills Academy, for part of the fifth grade
and all of the sixth grade. Katie's parents sought tuition
reimbursement after having unilaterally removed Katie from
Greenland Central School at the end of fourth grade and placed her
in private school, without ever before raising with Greenland
school officials the issue of special education services for Katie.
The district court, reversing the due process hearing officer, held
1
The captioned plaintiffs in this case, Amy N. and Robert N.,
are Katie C.'s parents.
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that Katie and her parents were not entitled to such reimbursement.
We affirm.
I.
Katie, born in March 1990, started first grade at the
Greenland Central School, a public school, in 1996. Although Katie
was a good student, her first grade teacher noticed that she had
difficulty focusing on classroom activities and was easily
distracted. During the summer after first grade, Katie's parents,
Mr. and Mrs. N., took Katie to a private psychologist who diagnosed
her with Attention Deficit Hyperactivity Disorder (ADHD). The
psychiatrist suggested several practical steps that Katie's
teachers could take to counteract her ADHD, including providing her
with a checklist of tasks to complete and seating her in the front
of the classroom.
Katie's second, third, and fourth grade teachers each
used techniques similar to those recommended by Katie's
psychiatrist to help Katie stay on task. They sat Katie in the
front of the classroom, provided her with a checklist of items she
was to complete, and maintained frequent contact with Mrs. N. about
Katie's performance. Some of her teachers also employed basic
behavior modification techniques to help improve Katie's
concentration, such as providing incentives for Katie with
stickers. Katie's teachers frequently used these and similar
methods to help other students focus too.
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Mrs. N., who is herself a special education teacher at a
nearby high school, also spent a considerable amount of time
helping her daughter with her schoolwork. She spent 2-3 hours a
night helping Katie with her homework in second grade and provided
3-4 hours of assistance each night in the third grade. By the time
Katie was in fourth grade, her parents had hired a tutor to meet
with her twice a week.
Katie's academic performance during her four years at
Greenland ranged from average to above-average. In second grade,
Katie was grouped with students who had good reading skills,
although she had some difficulties with math. Her second grade
teacher viewed Katie as a "competent learner" and Katie received a
passing grade in all of her subjects.2 Katie continued to perform
reasonably well in third and fourth grades, earning mostly A's and
B's on her report card. Katie's third grade teacher viewed her as
"very bright" and a "good learner" and her fourth grade teacher
said her academic performance was "between an eight and a nine" on
a ten-point scale.
Katie's academic marks were consistent with her scores on
the California Achievement Test, a national standardized test that
Katie took in the second and fourth grades. On both
administrations of the test, Katie scored in the average to above-
2
Second grade students at Greenland do not receive a letter or
number grade, but instead simply "pass" or "fail."
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average range on all of the tested subjects. She also received an
average score on all subparts of the New Hampshire End of Grade 3
Assessment, another standardized test.
Throughout her time at Greenland, though, Katie still
occasionally had difficulty maintaining her concentration on
discrete tasks. She also had problems making friends and was
sometimes teased by her classmates. In Katie's fourth grade year,
Mrs. N. became sufficiently concerned about peer harassment that
she contacted Katie's teacher.
At no point during Katie's time at Greenland did her
parents or any of her teachers request that she be evaluated for
special education services. Katie's second grade teacher noted
that Katie did not meet the general profile of a special education
student because there was not a gap between her apparent learning
ability and her academic performance. Similarly, her third grade
teacher said that Katie's difficulties with paying attention were
concerns for her physician and that she did not believe that Katie
required special education services.
In August of 2000, the summer that Katie completed fourth
grade, Katie's parents unilaterally removed her from the Greenland
Central School and enrolled her in Mont Blanc Academy. Mont Blanc
Academy is a private school that does not focus on special
education students and, when Katie's parents enrolled her there,
they "weren't looking for special education." When Katie started
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fifth grade at Mont Blanc, the school instructed Mrs. N. not to
help Katie with her homework. As a result, Katie struggled with
some of her classes and failed her first quarter math class,
although she passed her other classes. In November, after Mrs. N.
learned of Katie's failing math grade, she resumed helping Katie
with her homework and Katie's math grade rose to a B.
For reasons unspecified in the record, Mont Blanc Academy
requested in February of 2001 that Katie's parents withdraw her
from the school. One month later, in March of 2001, Katie's
parents enrolled her at the Learning Skills Academy (LSA) for the
remainder of her fifth grade year. LSA is a private school that
has only about thirty enrolled students, most of whom either suffer
from a learning disability or ADHD. Tuition for Katie's spring
term at LSA was $16,000.
At approximately the same time that Katie started at LSA,
Mrs. N. contacted Melanie Lovering, the special education
coordinator for Greenland Central School, and requested that Katie
be evaluated by the psychologist on call with the school, Dr.
Secor. This was the first time that Katie's parents had notified
Greenland that Katie might need special education services. Mrs.
N., being a special education teacher and administrator herself,
was familiar with the processes associated with identifying
children who require special education. Katie's parents told
Greenland that their major concerns with Katie's development were
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focused on "written language, organization and hyperactivity." The
school responded by scheduling a "disposition of referral meeting"3
to take place about two weeks later, on April 6, 2001.
At the April 6 meeting, three Greenland special education
teachers, two representatives from LSA, an occupational therapist,
Dr. Secor, Ms. Lovering, and Mrs. N. all met to discuss Katie's
eligibility for special education services at Greenland. The group
agreed that they did not at that point have sufficient information
to determine whether Katie should be coded as learning disabled.
Accordingly, they planned a battery of tests and evaluations that
Greenland school officials would conduct over the next several
weeks to gather more information on Katie's strengths and
weaknesses. These included multiple standardized tests in math and
written expression and, at Mrs. N.'s request, various psychological
assessments by Dr. Secor.
On May 23, 2001, the school district held a meeting with
Mrs. N. to assess the results of Katie's tests and evaluations and
determine whether Katie was eligible for special education services
at Greenland. The school officials in attendance, including Dr.
Secor, Ms. Lovering, and four others, unanimously determined that
even though Katie had ADHD and an anxiety disorder, those
conditions did not adversely affect her educational performance.
3
A "disposition of referral meeting" is a procedure used by
Greenland following a request to determine whether a particular
child is eligible for special education services.
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They also unanimously concluded that Katie did not have a learning
disability because there was no evidence of a discrepancy between
Katie's ability and her achievement. The officials nonetheless
agreed to offer Katie a plan to address some of her organizational
weaknesses.
In a letter dated May 29, 2001, Katie's parents informed
Michelle Langa, the assistant superintendent of the Greenland
School District, that they disagreed with the district's decision
finding Katie ineligible for special education services. The
letter informed the district that Mr. and Mrs. N. had scheduled an
appointment with an independent psychiatrist named Dr. Spitzer, but
it did not request any specific further action on the part of
Greenland. Again, at the time Katie's parents sent this letter in
May 2001, Katie was already in private school, having been
withdrawn from public school in August 2000.
Dr. Spitzer evaluated Katie in May and sent a letter to
Michelle Langa on August 15, 2001 detailing her conclusions. Dr.
Spitzer confirmed Katie's diagnosis of ADHD, but she also concluded
that Katie suffers from Asperger's disorder. Asperger's disorder
is a developmental disability on the autism spectrum that is
associated with significant misperceptions of otherwise routine
elements of daily life. It is a permanent condition that is not
treatable with medication.
-8-
Meanwhile, Katie's parents decided to re-enroll Katie in
LSA for sixth grade, the 2001-2002 school year. Katie had done
well at LSA during the spring semester of her fifth grade year,
making significant strides in her academic and emotional
development. She no longer relied on her mother to assist her with
her homework, developed positive peer relationships, and was a
"much more confident, happier child."
On September 12, 2001, as Katie was starting sixth grade
at LSA, Greenland school officials met with Dr. Spitzer to review
her conclusion that Katie suffered from Asperger's disorder.
Although Dr. Secor, who also attended the meeting, disputed this
diagnosis, the team decided to reverse its earlier determination
that Katie did not qualify for special education services. Rather
than code Katie as "autistic," consistent with the diagnosis of
Asperger's disorder, the team agreed to code her as "other health
impaired."
Over the next several months, school officials met
several times with Mrs. N. and her advocate to develop an
Individual Education Plan (IEP) that would provide Katie with
appropriate special educational services at Greenland. Throughout
this process, Katie remained a student at LSA. By mid-November,
the team of school officials, in conjunction with Mrs. N. and her
advocate, had developed a working draft of Katie's initial IEP.
The draft provided for Katie to re-enroll in Greenland public
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school and have a personal aide who would assist her with "social
pragmatic skills across a variety of settings and partners" and
help develop her "graphing and discourse skills."
On November 15, 2001, as the final details of Katie's IEP
were being worked out, Katie's parents filed a due process hearing
request. The letter requesting the hearing indicated that Katie's
parents appreciated the school's efforts in drafting an IEP for
Katie, and explained that they were seeking reimbursement for
Katie's tuition at LSA and were concerned that the time for filing
a hearing request would soon expire. Although surprised and
confused by the due process hearing request, school officials
completed the final version of Katie's IEP several weeks later. In
addition to providing Katie with services at Greenland, including
her own aide, the plan set forth a curriculum to help Katie learn
the difference between friendly joking and hurtful teasing, a
problem with which children suffering from Asperger's disorder have
particular difficulty. It also included counseling services for
Katie and speech/language services that Dr. Spitzer had
recommended. Even after Greenland completed the IEP, Katie
remained enrolled at LSA instead of returning to Greenland and
receiving the services outlined in the IEP.
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II.
A. Administrative Proceedings
In response to Mr. and Mrs. N.'s due process hearing
request, the hearing officer held a prehearing conference on
January 15, 2002. At that conference, the parents said that, in
addition to seeking reimbursement, they were challenging the school
district's failure to identify Katie as eligible for special
education services in May of 2001 (when she was a student at LSA).
The parents also indicated that they were dissatisfied with the
plan that Greenland had developed in the Fall of 2001 to educate
Katie at Greenland because, despite its reliance on an aide to
assist Katie, no such aide had been hired.
The hearing officer heard testimony from sixteen
witnesses over three days and issued a decision on February 20,
2002. The decision rejected Greenland's argument that it was not
obliged to develop an IEP for Katie because she was unilaterally
placed in a private school by her parents; it concluded that
Greenland had to offer Katie an IEP pursuant to its "child find"
obligations. The decision also found that Greenland had erred when
in May 2001 it failed to find Katie eligible for special education
services. Reasoning that Katie was in effect receiving specialized
education throughout her time at Greenland, the hearing officer
concluded that the team's reliance on the lack of an apparent gap
between Katie's ability and her performance was legally deficient.
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The hearing officer also concluded that Katie would be
ill-served by returning to Greenland. He found that Greenland did
not have any aide or staff with whom it could place Katie if she
were to return to the school and that, even if an aide existed,
Greenland's proposed IEP would not provide Katie with a Free
Appropriate Public Education (FAPE). Based on these conclusions,
the hearing officer ordered Greenland to reimburse Mr. and Mrs. N.
for Katie's tuition at LSA for both the second semester of her
fifth grade year and the entirety of her sixth grade year. This
amounted to $48,000.
B. District Court Decision
Pursuant to 20 U.S.C. § 1415(i)(2), the school district
challenged in district court the hearing officer's decision. The
district court reversed the bulk of the hearing officer's holdings,
concluding that the hearing officer had incorrectly considered the
adequacy of the IEP offered by Greenland and the availability of
tuition reimbursement. The district court found that Katie was
enrolled in private school (Mont Blanc Academy) before her parents
ever raised the question of special education and that FAPE was not
"at issue" when Katie was removed from Greenland. On this basis,
the district court concluded that the hearing officer had only the
statutory authority to consider whether Greenland had violated its
"child find" obligation. 34 C.F.R. § 300.451.
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The court affirmed the portion of the hearing officer's
opinion that concluded the school district erred in failing to code
Katie as a child with a disability in May 2001. Construing that
portion of the opinion as stemming from the school district's
"child find" obligation, the court determined that the hearing
officer had the authority to consider the issue. After reviewing
the hearing officer's decision on the merits, the court affirmed.
Because the district court denied reimbursement on other grounds,
this ruling did not affect the plaintiffs' claim for relief.
Katie's parents appeal the portion of the district
court's opinion reversing the hearing officer's determinations.
Greenland School District cross-appeals, arguing that the district
court incorrectly affirmed the hearing officer's determination that
Katie should have been coded as a child with a disability in May
2001.
III.
Our review is de novo, as this case only presents
questions of law. Manchester Sch. Dist. v. Crisman, 306 F.3d 1, 9
(1st Cir. 2002).
New Hampshire implements IDEA through its special
education law. N.H. Rev. Stat. Ann § 186-C. The state has adopted
by reference the federal regulations as to special education for
disabled students in private schools. N.H. Code Admin. Rules, Ed.
1117.03 (2003). Thus, Katie's rights under New Hampshire law are
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the same as her rights under federal law and no greater. See Gary
S. v. Manchester Sch. Dist., 241 F. Supp. 2d 111, 122-23 (D.N.H.
2003).
This case turns on the 1997 IDEA Amendments. Those
amendments affect this case in three ways. First, the amendments
make clear that while local school systems have "child find"
obligations as to students with disabilities in private schools,
they do not have to provide such students with the full complement
of services that a student in public school with special needs
would receive. See 20 U.S.C. § 1412(a)(10)(A); 34 C.F.R. §
300.454(a)(1) ("No private school child with a disability has an
individual right to receive some or all of the special education
and related services that the child would receive if enrolled in a
public school."). Second, they establish that complaints about the
services a disabled student in private school is receiving after he
or she has been identified must be brought through the state
administrative complaint system rather than a due process hearing.
34 C.F.R. § 300.457 (a), (c). Finally and most importantly, the
amendments limit the circumstances in which parents who have
unilaterally placed their child in a private school are entitled to
reimbursement for that placement. See 20 U.S.C. § 1412(a)(10)(C).
A. Obligation to Provide Services to Disabled Private School
Children and the Proper Forum for Such Claims.
The district court vacated the hearing officer's
evaluation of the IEP that Greenland offered to Katie because it
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concluded that this issue was not properly before the hearing
officer. That ruling was correct.
Because Katie was enrolled at LSA, a private school, when
she filed her due process hearing request, her rights under IDEA
are governed by 20 U.S.C. § 1412(a)(10). That subsection divides
children in private school into two categories: (1) children
enrolled in private schools by their parents, and (2) children
placed in or referred to private schools by public agencies. See
id. § 1412(a)(10) (A), (B). It is undisputed that Katie falls in
the former category, as she was not placed in or referred to Mont
Blanc or LSA by a public agency.
Participating school districts such as Greenland owe
children who fall within subsection (A) of § 1412(a)(10) a "child
find" obligation. See § 1412(a)(10)(A)(ii). This obligation
requires those districts to "locate, identify and evaluate all
private school children with disabilities" using methods that are
"comparable to activities undertaken for children with disabilities
in public school." 34 C.F.R. § 300.451(b). In the event that a
district fails to meet its "child find" obligations, a child's
parents can initiate a due process hearing under the procedures
outlined in §§ 300.504-300.515. See id. § 300.457.
Importantly, IDEA also provides that participating
districts must provide certain services to disabled children in
private school once those children have been identified through the
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child find process. See id. §§ 300.452 - 300.462. These services
are, not surprisingly, less extensive than the services that a
disabled child enrolled in public school is entitled to receive.
Not only are the services provided to students in these two
settings different in scope, but the procedure for review of claims
of a denial of services is also different. Parents of disabled
children voluntarily enrolled in private school cannot initiate a
due process hearing if they feel their child is not receiving the
services required by IDEA. See id. § 300.457(a). Rather, such
parents must proceed through an alternative procedure within the
state's administrative apparatus. See id. § 300.457(c). As the
comments to the draft of the regulations explain:
While there may be legitimate issues regarding the
provision of services to a particular parentally-placed
private school child with disabilities [that a local
education agency] has agreed to serve, due process should
not apply, as there is no individual right to these
services under the IDEA. Disputes that arise about these
services are properly subject to the State complaint
procedures.
64 Fed. Reg. 12406, 12605 (March 12, 1999).
As the district court recognized, any complaints that
Katie's parents had regarding Katie's IEP in the fall of 2001
should have been brought through the state complaint process. The
adequacy of the IEP was not an appropriate subject for the due
process hearing because it had nothing to do with Greenland's child
find obligation. Once Greenland identified Katie as a child with
a disability in September 2001, the district had performed every
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act reviewable by a hearing officer; any subsequent obligations it
had to provide educational services to Katie were matters for the
state administrative procedure, which would apply different
standards to evaluate the services provided than did the due
process hearing officer. See 34 C.F.R. § 300.457(c) (question in
state administrative procedure is whether the district met its
obligations under §§ 300.451-300.462). That decision, moreover,
would not be appealable to federal court. See Vultaggio v. Bd. of
Educ., 343 F.3d 598, 601 (2d Cir. 2003).
B. Tuition Reimbursement for Students Unilaterally Placed in
Private Schools4
The substantive question in this case is whether Katie's
parents were eligible for tuition reimbursement and, if so, whether
it was an abuse of discretion for the district court to deny
reimbursement for either Katie's fifth or sixth grade school year.5
We affirm the district court's determination on the ground that
Katie's parents were ineligible for reimbursement.
Until 1985, there was some uncertainty about whether the
remedy of reimbursement for private school tuition was available
4
Katie's parents do not make a claim for compensatory services
for past inadequacies. Cf. Maine Sch. Admin. Dist. No. 35 v. Mr.
R., 321 F.3d 9, 17-18 (1st Cir. 2003) (discussing such claims).
5
This issue was properly before the hearing officer on Katie's
parents' due process request. See 34 C.F.R. § 300.403(b)
("Disagreements between a parent and a public agency regarding the
availability of a program appropriate for the child, and the
question of financial responsibility, are subject to the due
process procedures of §§ 300.500-300.517.").
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when a school district had failed to provide appropriate services
to a disabled child in the public school. IDEA itself only
authorized the district court to "grant such relief as [it]
determine[d] is appropriate." 20 U.S.C. § 1415(e)(2) (1984),
recodified as amended 20 U.S.C. § 1415(i)(2)(B). In Burlington v.
Dep't of Educ., 471 U.S. 359 (1985), the Supreme Court held that
this clause authorized the equitable remedy of tuition
reimbursement. See id. at 369. It noted that the broad language
of the statute vested courts with significant discretion to craft
appropriate remedies and that, in cases where it would take a
significant amount of time for the school to offer appropriate
services, the Act's promise of a free appropriate public education
could justify the remedy of reimbursement for private school
tuition. Id. at 370. The Court also found that tuition
reimbursement was available even in some instances when parents had
unilaterally removed their child from public school. Id. at 372.
Uncertainty about the circumstances under which tuition
reimbursement was available remained even after Burlington. Before
the 1997 IDEA amendments, several circuits had held that
reimbursement for private school tuition depended on the parents
cooperating with school authorities in determining the proper
placement and educational plan for the child. See Patricia P. v.
Bd. of Educ., 203 F.3d 462, 468 (7th Cir. 2000) (listing cases
interpreting pre-amendment IDEA). As one court noted, "parents
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who, because of their failure to cooperate, do not allow a school
district a reasonable opportunity to evaluate their disabled child,
forfeit their claim for reimbursement for a unilateral private
placement." Id. at 469. Although few courts precisely defined the
level of cooperation necessary, most thought it clear that, at a
minimum, the parents had to inform the school district of their
concerns about their child's special needs and about the plan
proposed before removing the child from public school. See Berger
v. Medina City Sch. Dist., 348 F.3d 513, 523 (6th Cir. 2003) ("Even
before the IDEA was amended to explicitly require such notice, this
court held that dissatisfied parents were required to complain to
the public school to afford the school a chance to remedy the IEP
before removing their disabled child from the school."); M.C. ex
rel. Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir.
2000) ("[C]ourts have held uniformly that reimbursement is barred
where parents unilaterally arrange for private educational services
without ever notifying the school board of their dissatisfaction
with their child's IEP."); Ash v. Lake Oswego Sch. Dist., No. 7J,
980 F.2d 585, 589 (9th Cir. 1992); Evans v. District No. 17, 841
F.2d 824, 829 (8th Cir. 1988).
The 1997 Amendments endorsed this line of cases and
helped clarify the amount of parental cooperation required by
adding a section to IDEA entitled "Payment for education of
children enrolled in private schools without consent of or referral
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by the public agency." 20 U.S.C. § 1412(a)(10)(C); see H.R. Rep.
105-95, at 93, reprinted in 1997 U.S.C.C.A.N. 78, 90. See
generally Gary S., 241 F. Supp. 2d at 114-15. That section begins
with a general statement of policy explaining that IDEA does not
"require a local education agency to pay for the cost of education,
including special education and related services, of a child with
a disability at a private school or facility if that agency made a
free appropriate public education available to the child and the
parents elected to place the child in such private school or
facility." 20 U.S.C. § 1412(a)(10)(C)(i). This provision, taken
by itself, might be considered ambiguous as applied to a situation
where, as here, the local education agency was never informed while
the child was in public school that the child might require special
education services. But this seeming ambiguity disappears when
considered in light of the section's affirmative requirement that
"the parents of a child with a disability, who previously received
special education and related services under the authority of a
public agency" can receive reimbursement for their unilateral
placement of the child in private school only "if [a] 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." Id. § 1412(a)(10)(C)(ii).
These threshold requirements are key to this case:
tuition reimbursement is only available for children who have
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previously received "special education and related services"6 while
in the public school system (or perhaps7 those who at least timely
requested such services while the child is in public school).
There is no dispute that neither Katie's parents nor anyone else
requested an evaluation for Katie while she was at Greenland.
There is also no dispute that she was removed from Greenland for
reasons having nothing to do with any issue about whether Katie was
receiving FAPE. Whether some of the techniques used for Katie in
the regular classroom (such as the use of checklists) may also be
techniques used in special education is beside the point. The
point is that there was no notice at all to the school system
6
The full text of § 1412(a)(10)(C)(ii) is:
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 elementary 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.
7
Despite the language of the statute, some legislative history
suggests that Congress meant to include children who had requested
but not yet received special needs services during their period in
the public schools. See H.R. Rep. 105-95, at 91-93, reprinted in
1997 U.S.C.C.A.N. 78, 89-90. That issue does not need to be
resolved in this case, as Katie's parents never requested special
education services for Katie while she was at Greenland.
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before Katie's removal from Greenland that there was any issue
about whether Katie was in need of special education.
Even for children who received special education services
in the public schools before the private school placement, the 1997
Amendments implemented several additional limitations on
reimbursement. Those limitations reinforce our conclusion that
Katie and her parents are not eligible for tuition reimbursement.
The statute provides that reimbursement may8 be denied or reduced
if the parents do not give the school district notice of their
intent to remove their child from public school before they do so.
Id. § 1412(a)(10)(C)(iii)(I); see Rafferty v. Cranston Pub. Sch.
Comm., 315 F.3d 21, 27 (1st Cir. 2002). That notice can be
provided either "at the most recent IEP meeting that the parents
attended prior to removal of the child from the public school" or
by written notice ten business days prior to such removal. 20
U.S.C. § 1412(a)(10)(C)(iii)(I). The statute also creates
exceptions to this notice requirement, such as when the parents are
illiterate or the child will face physical or serious emotional
harm by providing notice. Id. § 1412(a)(10)(C)(iv). None of those
exceptions is presented here.
8
There may be extreme cases where it is obvious to a school
that a child is a special needs child but the school fails to
inform parents, who are ignorant of their rights under IDEA.
Whether this situation would warrant an exception to the general
rule as an exercise of equitable jurisdiction is something we need
not address.
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These statutory provisions make clear Congress's intent
that before parents place their child in private school, they must
at least give notice to the school that special education is at
issue. This serves the important purpose of giving the school
system an opportunity, before the child is removed, to assemble a
team, evaluate the child, devise an appropriate plan, and determine
whether a free appropriate public education can be provided in the
public schools. See Patricia P., 203 F.3d at 468; Schoenfeld v.
Parkway Sch. Dist., 138 F.3d 379, 381-82 (8th Cir. 1998); cf.
Burlington, 471 U.S. at 373 (discussing the importance of reviewing
a child's educational needs while the child is in the regular
public school classroom).
Reading IDEA as plaintiffs propose would destroy those
safeguards. Here, the parents, well acquainted with IDEA, gave no
notice that Katie might need special education services. Indeed,
they were not even looking for such services when they removed
Katie from public school. Several courts, relying on the parents'
failure to challenge the IEP's adequacy, have found insufficient
notice to the school district even when the parents requested an
evaluation and received an IEP before removing their child. See,
e.g., Berger, 348 F.3d at 523-24 (affirming a denial of
reimbursement when the child's parents agreed to the IEP proposed
by the school and only informed the school district of their
concerns after they arranged for the child's enrollment in private
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school); see also M.C., 226 F.3d at 68 (denying reimbursement for
psychological counseling that the court assumed necessary for the
child to benefit from special education because the parents had
failed to raise the issue in the child's IEP before the counseling
started). If the parents' conduct provided inadequate notice in
these cases, then there was clearly insufficient notice here, where
the parents never even raised the issue of special education before
removing Katie from Greenland.9
The regulations promulgated under IDEA, to which we must
give deference, Irving Indep. Sch. Dist. v. Tatro, 468 U.S. 883,
892 & n.9 (1984), are consistent with our reading of the statute.
For the most part, the regulations provide little additional
guidance in interpreting the statute because they merely repeat the
statute's language. Compare, e.g., 20 U.S.C. § 1412(a)(10)(C),
with 34 C.F.R. § 300.403. However, the regulations do provide one
interpretive clue by organizing the statutory provisions dealing
with reimbursement under the heading "Children with Disabilities
9
Katie's parents rely on James ex. rel. James v. Upper
Arlington City School Dist., 228 F.3d 764 (6th Cir. 2000), for the
proposition that they should not be required to re-enroll Katie in
the Greenland schools to reestablish her legal rights to an
appropriate educational program. However, James concerned events
before the 1997 Amendments and also involved the refusal by the
school system to do an IEP evaluation before enrollment of the
child in private school. Id. at 768. That issue is not involved
here. In fact, in this case there were no disagreements, due
process hearing requests, or administrative review proceedings
ongoing at the time Katie was removed from the public schools, so
the "stay put" provisions of IDEA, 20 U.S.C. § 1415(j), are not at
issue, unlike in James.
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enrolled by their parents in private school when FAPE is at issue."
See 34 C.F.R. § 300.403 (emphasis added). This formulation
indicates that the Department of Education views notice as
critically important in the statutory scheme: it is difficult to
imagine FAPE being "at issue" when neither the school nor the
child's parents have ever raised the question of FAPE. Even more
than the statute, the regulations suggest that a child like Katie
who is removed from her school without her parents or her school
ever questioning the availability of FAPE is not within the
category of children eligible for tuition reimbursement.
Katie's parents argue that even if they did not give
sufficient notice to Greenland for Katie's fifth grade year, they
did provide sufficient notice that Katie would be attending LSA by
the time of her sixth grade year. Although Greenland was certainly
aware that Katie might be attending LSA for the fall semester of
her sixth grade year, that fact is beside the point. The purpose
of the notice requirement is to give public school districts the
opportunity to provide FAPE before a child leaves public school and
enrolls in private school. See Patricia P., 203 F.3d at 468
(emphasizing the importance of cooperation between parents and the
school district before the child is removed from public school);
Schoenfeld, 138 F.3d at 381-82 (same); Town of Burlington v. Dep't
of Educ., 736 F.2d 773, 799 (1st Cir. 1984) (noting the distinction
"between a unilateral parental transfer made after consultation
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with the school system . . . and transfers made truly unilaterally,
bereft of any attempt to achieve negotiated compromise and
agreement"), aff'd, 471 U.S. 359 (1985). Once a child's parents
have unilaterally removed the child from public school, subsequent
notice almost a year after removal does little good.
As the Supreme Court warned almost twenty years ago,
"parents who unilaterally change their child's placement . . .
without the consent of state or local school officials, do so at
their own financial risk." Burlington, 471 U.S. at 373-74. This
case demonstrates that the Court's admonition remains no less true
today.
The district court also reached the issue whether Katie
should have been classified as a special needs student in May 2001.
Given our conclusion that tuition reimbursement is unavailable due
to the parents' lack of notice to the school system while Katie was
enrolled there, the issue whether Greenland should have coded Katie
as disabled in May 2001 is of no moment to this case.
In fact, the analysis that would be required if we
reached that issue is both difficult and sensitive. Very helpful
amicus briefs, taking opposing views, have been submitted by the
New Hampshire Association of Special Education Administrators, the
New Hampshire School Boards Association, and NEA-NH on behalf of
Greenland, and by the Disabilities Rights Center, the New Hampshire
Psychiatric Association, the Asperger's Association of New England,
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and the National Alliance for the Mentally Ill on behalf of Katie's
parents. These briefs point out the complications involved in
determining whether any child should be coded as a special needs
child on a particular date. They also discuss the concern that
admirable techniques used in general education can be bootstrapped
into supporting a special education finding and the converse danger
that the identification of special needs students will be hidden
behind the veil that all students receive some individualized
training. Each side argues that an interpretation going against
its position would undercut the provision of services to students
in need. This is an extremely important and nuanced question of
law that we leave for another day.
IV.
Affirmed. Costs are awarded to Greenland.
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