Federal appellate court rules Indiana district’s substantive and procedural violations of IDEA did not amount to failure to provide FAPE
M.B. v. Hamilton Southeastern Sch., 10-3096 (7th Cir. Dec. 22, 2011)
Abstract: A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit (IL, IN, WI) has ruled that neither a school district’s procedural errors nor its substantive errors in developing a special education student’s individualized education plan (IEP) under the Individuals with Disabilities Education Act (IDEA) resulted in denial of a free appropriate public education (FAPE). The panel concluded that the student’s parents had failed to present sufficient evidence that the student was not making educational progress under the IEP.
The panel also rejected the parents’ argument that the school district had violated IDEA’s “child find ” provisions because the district conducted its evaluation of the student within 60 instructional days of receiving the parents’ consent to the evaluation. Lastly, it denied the parents’ claim for reimbursement for their unilateral private school placement on the ground that the parents had failed to carry their burden of showing the placement was appropriate.
Facts/Issues: After M.B. suffered traumatic brain injury in an accident at the age of four, M.B.’s parents contacted Hamilton Southeastern Schools (HSS) about special education services, including early childhood and extended school year services. Under state law, HSS was required to obtain parental consent to evaluate M.B. and, then, within sixty instructional days, it was to convene a case conference committee meeting between M.B.’s parents and school officials to develop an IEP. After some delay, the parents gave consent to the evaluation. A dispute between the parents and HSS subsequently arose over their request that M.B. be assigned to double session kindergarten.
As a result of this dispute, the parents requested a due process hearing to determine if HSS had provided M.B. with a FAPE as required by IDEA. Although the hearing officer found that HSS had committed some procedural errors, the hearing officer concluded that these errors “did not result in substantive harm.” The hearing officer further found that HSS had not denied M.B. a free appropriate public education. Thus, he denied any substantive relief to M.B., including reimbursement for M.B.’s private school placement.
On appeal to the Indiana Board of Special Education Appeals (IBSEA), IBSEA confirmed that M.B. did not require a full-time kindergarten program in order to receive a free appropriate public education. Thus, it too denied the parents’ requested relief. The parents appealed that decision to federal district court. The court agreed with IBSEA that any procedural errors were harmless. It concluded that deference was owed to the hearing officer’s and IBSEA’s determination that M.B. was receiving a free appropriate public education. In addition, the court declined to order HSS to reimburse the parents for their unilateral placement of M.B. in private school because they had provided no evidence to establish the propriety of the placement.
Ruling/Rationale: The Seventh Circuit panel affirmed the district court’s decision. Addressing the parents’ contention that M.B. was denied a FAPE because of HSS’s violations of IDEA’s procedural and substantive requirements, it first looked to see if the alleged procedural defects resulted in a loss of educational opportunity.
Alleged Procedural Defects
In regard to the parents’ argument that HSS predetermined M.B.’s placement, the panel conceded that predetermination might, in some instances, constitute a procedural defect that deprives a student of a FAPE. However, it found that the parents had not met their burden of establishing any type of procedural defect based upon predetermination, much less one that rises to the level of a substantive denial of a FAPE.
The parents also contended that HSS’s failure to include a general kindergarten teacher at the May committee meeting deprived M.B. of a free appropriate public education. The panel responded that “the court concluded, and we agree, that the lack of a general kindergarten teacher at the May committee meeting did not affect M.B.’s placement” and, thus, “the procedural error cannot amount to a denial of a free appropriate public education.”
It, likewise, rejected the parents’ argument that M.B. was denied a FAPE because of HSS’s failure to include someone who could “authorize” double-session kindergarten as part of the May conference. The panel agreed with the district court that IDEA does not require the presence of one who can authorize a proposed placement.
In addition, the panel found no denial of a FAPE as a result of HSS’s failure to provide the parents with prior written notice of its decision to deny a double-session kindergarten placement, as the purpose of the rule is to provide the parents notice of a decision, and the parents here were “well aware of the School’s refusal to provide double-session kindergarten, as evidenced by their decision to initiate a due process complaint.”
Finally, it stated: “[W]hile M.B.’s parents did not receive a copy of his IEP precisely on time, the plan was promptly delivered to the parents’ counsel, and counsel had it at their disposal for the duration of these proceedings. The same is true of M.B.’s educational records, which were obtained by counsel and are now part of the record.”
Alleged Substantive Defects
As to the substantive defects, the panel emphasized that the parents “must convince this court that the hearing officer, the Board, and the district court clearly erred in determining that M.B. was making progress under his IEP” to prevail. It concluded that there was nothing unreasonable about that determination. Relying on the record, the panel found that M.B. had made progress toward his IEP goals upon receiving early childhood services and while receiving extended school year services. It said, ”Given that M.B. was making progress toward his IEP goals while receiving half-day, early-childhood services, it was reasonable for the committee to conclude that M.B. did not require double-session kindergarten to meet his needs.”
Turning to the parents’ contention that HSS had violated the “child find” provisions of IDEA, the panel agreed with the district court’s conclusion that HSS had complied with the state law mandating that a school district evaluate a student within sixty instructional days of receiving parental consent for an evaluation, and thereby satisfied its ‘child find’ obligations.
Lastly, it rejected the parents’ reimbursement claim on the ground that “[e]ven assuming that the School violated the IDEA, M.B.’s parents failed to carry their burden of presenting evidence to show that M.B.’s placement at [the private school] was appropriate.”
M.B. v. Hamilton Southeastern Sch., 10-3096 (7th Cir. Dec. 22, 2011)
[Editor's Note: In contrast, in April 2011, Legal Clips summarized the decision of a three-judge panel of the U. S. Court of Appeals for the Fourth Circuit (MD, NC, SC, VA, WV) in Sumter Cnty Sch. Dist. 17 v. Heffernan, holding that a South Carolina district court did not err in finding that a school district had failed to provide a disabled student with a FAPE for the 2005-06 school year by failing to properly implement material portions of the IEP, and that the home placement provided by the parents was appropriate.]