St. Tammany Parish School Board v. Louisiana

776 (5th Cir.1989).4

product Foundry paid a com- 672 As the case before the for which reasons, price. entirely responsible For petitive potentially we hold court involves persons” appellants are not “covered parties, parties must seek contribution such under CERCLA. under section 9613. opinion below is reversed and the case Properly

Contribution Action under is remanded. 9613 or 9607 Section REVERSED AND REMANDED remand, court, al On though appellants from will dismiss

suit, apportion liability among must the re

maining parties apportion to the suit. That process guided

ment should be section

9613 rather than section 9607. 9607 Section “any person” response to recover all

allows any responsible parties,

costs from whose

liability generally joint is then and several. TAMMANY Cooper

OHM Remediation Servs. v. Evans ST. PARISH SCHOOL Co., Inc., (5th 1574, BOARD, Plaintiff-Appellee, age, 116 F.3d 1578 Cir. 1997); United States v. Alcan Aluminum v. (3d 252, Cir.1992); Corp., 964 F.2d 268 LOUISIANA; The STATE OF State Board Indiana, Rumpke Inc. v. Cummins En Elementary Secondary Edu- (7th Co., Inc., 1235, gine 107 F.3d 1240 Cir. cation; Edu- Louisiana 1997); United States v. Colorado & Eastern cation; The Louisiana (10th Co., 1530, Cir.1995); RR 50 F.3d 1535 Hospitals, Defendants-Ap- Health and Technologies Browning-Ferris v. In United pellants, (1st dus., Inc., 96, Cir.1994); 33 F.3d 100 Co., 2 United States v. Rohm & Haas F.3d v. Cir.1993). (3d 1265, 9613, 1280 Section add SLOCUM, Individually Donna and on be- 1986, ed creates a cause of SARA Slocum; half of her minor child Daniel “any per action for contribution from other Douglas Slocum, Individually and on be- potentially 42 son who is liable or liable.” Slocum, half of his minor child Daniel 9613(f)(1) added). (emphasis Defendants-Appellees. consistently courts have held that section by parties 97-30949, 9613 must be used who are them Nos. 98-30088. See, potentially responsible parties. selves Appeals, Court of United States Halliburton, County 111 New Castle v. F.3d Fifth Circuit. (3d Cir.1997); Carriers, 1116, Redwing 1120 1489, Apartments, 94 F.3d Inc. v. Saraland 27, May (11th Cir.1996); 1496 v. Colo United States Co., 1530, R.R. 50 F.3d 1536 rado & Eastern

(10th Cir.1995); Technologies Corp. United Indus., Inc., 96, Browning-Ferris

v. 33 F.3d (1st Cir.1994); Coatings,

99 Akzo Inc. v. (7th 761, Cir.1994);

Aigner Corp., 30 F.3d 764 Borden, Inc., 664,

Amoco v. 889 F.2d Oil Co. 9613, among resolving when section 4. Under section is allocated to claims). considered po- County, supra, potentially responsible parties New other and the Castle F.3d defendant, tentially responsible plaintiff "using equita- 1121-22. Unlike a section 9607 party appropri- need not demonstrate that ble factors as the court determines are section 9613 divisible, 9613(f)(1). polluted Rumpke ate.” 42 U.S.C. See also harm at the site is he need (section only guide Indiana,[supra,] present equitable 107 F.3d at considerations among liability. County, potentially responsi- the allocation New Castle 9613 allocates fault Eastern, [supra,] supra, citing, Redwing persons); 111 F.3d at 1121 n. ble Colorado & Carriers, (discussing supra, equitable at 1513. F.3d at 1536 & n. 5 factors 94 F.3d

778 Education, Secondary

mentary Loui- Education, siana and the Lou- Hospitals isiana of Health and defendants) (collectively, appeal regarding from four orders facility Daniel Slocum at residential Kansas, expense of the Louisiana Education, Department of pen- dency litigation. AF- of this We FIRM, proceed- and REMAND for further ings.

I. child, eligible is an autistic Daniel Slocum special for IDEA education related ser- 1996, April vices. he was educated in Until public in the schools self-contained classroom Parish, Tammany Louisiana. On 3 of St. 1996, April parents his and the Board School prepare an individualized edu- staff met (IEP) program for him. cation that, meeting, agreed At IEP it was recently-increased severity of because of behavior, self-injurious he Daniel Slocum’s Hammonds, Dennis L. Shelton Robert longer be in the self- could no educated LA, Sills, Blunt, Rouge, & Baton Hammonds IEP, Accordingly, the contained classroom. Bd., Tammany Sch. Plaintiff- for Parish St. Board, agreed the Slocums and the Appellee. placement provided that Daniel Slocum’s was Reasonover, V. K. Ambrose Charles “Hospital or other or Homebound Services Deutsch, Stiles, McCall, New Kerrigan & training providing assessment and institution Orleans, LA, Defendants-Appellants. The IEP stated further and treatment”. Hobson, Cunning- Cheryl V. Kathleen F. of site will be made that the “[selection Orleans, LA, Lewis, ham, & New Liskow provisions [State] of in accordance with Best, IL, Chicago, for Defen- 1706, 451(B)”; R. Margie and that Bulletin Section dants-Appellees. [the be made to Louisiana will also “[r]eferral Hospitals] and

Department of Health and agency”. any appropriate State other in the IEP states: Bulletin referenced KING, BARKSDALE Before apply to the systems [Louisi- must “School PARKER, Judges. Circuit Department Education] when stu- ana] [of placed in an to or is to be dent is referred BARKSDALE, HAWKINS RHESA day public nonpublic or residen- approved Judge: Circuit geographic area tial outside the school placement is in an system, unless the interlocutory appeals, con- school In these two operated by sys- approved cooperative school Edu- cerning the with Disabilities Individuals 1400, Implementation (IDEA), Regulations seq., § tems”. et cation Act 20 U.S.C. Act, Bulletin is, ruling Exceptional Children’s pending a primary issue (Office 1706, Special Educational merits, 451B payment of for a disabled stu- 7/1/94) Services, Dept, of Educ. Louisiana facility. placed an out-of-state dent added). Louisiana, (emphasis Ele- Board of April, day Administration, Governor, meeting, On after the IEP and the Secre- attorney tary the Slocums’ informed the School of the Louisiana of Health Hospitals Board letter that Slocums had en- School, rolled Daniel Slocum that, based on the circumstances Wichita, facility residential Kan- case, Louisiana, ... the State of the De- sas, pending selection of a site the School Education, partment Depart- and/or day, April, Board. That same the School ment Hospitals of Health and need to be formally requested Board the Louisiana De- parties made proceedings. partment of Education to assist it and the process hearing The due was conducted on locating facility Slocums in a residential September 1996, 18-20 and 13-15 November Slocum, Daniel requested guidance and also participation without the of the State placement on how the was to be funded. January defendants. Indepen- Hearing dent later, Officer ruled in favor of the April, A week on 11 Board, finding rec- that, responded of Education because the ommended for Daniel April Slocum the specific IEP did not place- indicate that a designed 1996 IEP primarily to address made, ment Depart- decision had been medical concerns required and was not carry ment responsibili- was unable to out its purposes. 1706, 451B; ties under Bulletin but once the IEP specific committee had made a appealed The Slocums to the Louisiana placement decision and the site selected was Education, Department assigned of a geographic determined to be outside the area three-member State Level Review Panel. In Board, Department of the School would 1997, April majority a of the Panel reversed then request. review the School Board’s Independent Hearing the decision of the Of- ficer, concluding that placement residential early May, In Superintendent of the Heartspring appropriate; at was and that requested School Board assistance from the obligated School Board was to reimburse Superintendent State of Education in deter- the Slocums for the costs of Daniel Slocum’s mining placement program a for Daniel education and related services there. The Slocum. stated, however, Panel that the School Board June, requested That the Slocums a due precluded asking was “not from sharing for a process hearing, seeking to have the School cost, expenses of or reimbursement from the pay Board for Daniel Slocum’s education and Authority, State Educational the State De- Heartspring. By related services at letter to Education, partment Department of of Education, Department of the School Resources, any Health and Human or other July Board in demanded late that the State entity agency they Louisiana or Federal assume those costs and advised that “the may apply to”. Department participate of Education should later, A week the Slocums filed an action in process hearing in possibility the due if the against federal court the State of Louisiana exists that the of might Louisiana Board, seeking and the damages responsible held for the cost of the residen- attorneys’ stayed fees. That action has been placement”. tial pending underlying resolution of the action Department of Education’s Office of (the interlocutory appeals in issue Special responded Educational Services in hereinafter described action filed in district early August that request the School Board’s court, IDEA, under for review of the Review participation process for State at the due decision). Panel’s hearing legal had been referred to the staff noted, 1997, April As in pursuant later for review and recommendation. In mid- IDEA, 1415(e)(2), § 20 U.S.C. the School August, Department declined the School in Board filed federal court the action which request Department Board’s participation spawned interlocutory appeals. in hearing. judicial action is for review of the State Level month, refusal, 1415(e)(2) despite

Later that this the Review Panel’s decision. Section alia, School Board provides, “[a]ny party ag- advised the Commissioner of inter defendants’ district court denied findings and decision” grieved right rehearing. have the agency “shall motion state educational ... State court a action bring civil appealed orders. The The State has both jurisdiction or in competent the State defendants’ district court denied 20 U.S.C. court of the United States”. stay pending appeal, and or- motion for defendants, 1415(e)(2). in addi- § Named dered immediate enforcement Slocums, of Louisi- were the State tion to Likewise, Supreme our court and the order. Elementary ana, and Sec- the State Board stay pending appeal. denied a Court Education, Louisiana ondary early October the State defen- Education, and the Louisiana authori- in the district court for dants moved Hospitals. Health and ty manage participate in Daniel Slo- moved, June, the Slocums On 30 Heartspring, then cum’s IEP conference merits, keeping resolution on That motion scheduled for mid-November. Heartspring, pursuant to 20 placement at moot, denied as because the November 1415(e)(3), “stay- § referred to as the postponed. conference was provides: provision. The section put” Next, early moved the State defendants any proceedings During pendency of requiring sched- an order November section, unless pursuant to conducted uling management of an IEP for and state agency and educational the State or local Slocum, asserting, on the basis of Daniel agree, guardian otherwise parents advertisement, his condi- then in the current the child shall remain dramatically improved warrant- had tion such child---- main- reevaluation. The State defendants ed added). 1415(e)(3)(emphasis 20 U.S.C. administration of Prozac tained that the motion, pursuant also In that February triggered Daniel Slocum 1415(e)(3), requested also Slocums self-injurious in his behavior the increase that, litigation, pendency of the the March, Tammany IEP when the St. that pay of Daniel Board the costs the School conducted; and that Daniel evaluation was at and related services education Slocum’s improved when he was condition Slocum’s from They did not seek relief Heartspring. Prozac, just prior enrollment off to his taken its of of the State Louisiana The Heartspring April 1996. State at But, Board countered Education. the School stay-put the also asserted defendants assess- should share the State appeal on while it was order was ineffective stay-put ment of such costs. our court. 1997, the court mid-August In district in late court denied the motion The district It granted motion. concluded the Slocums’ 1998, And, January of at the end December. of the State April 3 1997 date from the a for reconsideration. it motion denied (rendered a Panel’s decision Level Review appealed both have also State defendants year Heartspr- placement at after the initial orders. ing) proceedings, until resolution of the Daniel Slocum’s Trial set for 15 was is June § 1415(e)(3) placement”. “current educational (The prema- court that it would be decided II. ture for “cur- it Daniel Slocum’s to determine motion to consoli- defendants’ rent the time of placement” interlocutory appeals is these two date IEP, the earlier April because that 3 1996 the appeal, For based on each GRANTED. “would essentially deciding the merits of case, we con- and circumstances of facts the school challenge to the Review board’s” dubitante, clude, jurisdiction have that we decision.) Panel And, Depart- it ordered doctrine. under the collateral order ment Board, of Education, not the School pay Concerning the.appeal cost of from the Daniel education Slocum’s order, related v. Raelee Susquenita School Dist. services during this “current ed- see Cir.1996) (3d placement”. S., 78, (stay-put ucational n. 4 September, 96 F.3d 81 On 25 782 course, we, qualifies

order as a collateral order abuse of discretion. Of not conclusively pendent determines student’s parties, proper determine the standard of placement rights See, and tuition Vontsteen, reimbursement e.g., review. United States v. placement; with such (5th associated resolution of 1086, Cir.) (en banc) (“no 950 F.2d 1091 questions completely separate those is from party power has the to control our standard adequacy issues which merits focus on denied, 1223, review”), cert. 112 505 U.S. IEP; proposed propriety and the of the 3039,120 (1992). L.Ed.2d S.Ct. 908 placement pendent fi- and the concomitant responsibility effectively nancial are not re- ap court has not Our considered appeal on viewable of a the mer- decision on propriate standard review for such its). interlocutory provides orders. The Act “the court shall receive the records of the Similarly, appeal as for the concern proceedings, [state] administrative hear shall ing denial of the State defendants’ motion party, request additional evidence at the scheduling of a management of an state and, Slocum, its basing preponderance IEP decision on the for Daniel in issue orders evidence, conclusively deny grant of the shall as State defendants such relief right manage pend to schedule IEP appropriate”. court is determines merits-decision; ing 1415(e)(2). of that resolution Accordingly, we de have question separate merits-decision, from the 1415(e)(2) scribed district court’s re adequacy April focuses on “virtually view de Cypress-Fair novo ”. IEP; interlocutory and the order is not F., Indep. banks Sch. Dist. v. Michael effectively appeal reviewable on the mer — (5th denied, 245, Cir.1997), F.3d cert. its-decision. -, U.S. 118 S.Ct. 139 L.Ed.2d 636 (1998). And, novo, our court will “review de appeal, first defendants (1) question fact, as a mixed of law and following a district raise the issues: whether [merits-]decision court’s that a local school imposing erred appropriate IEP was or Education for interim district’s was not (2) merits-decision; whether and that an alternative or was (3) reasonable; those costs whether the inappropriate under the IDEA”. Id. Department can obtain reimbursement from if prevail Slocums defendants interlocutory appeals, For these how (4) merits; IDEA, as inter- ever, reviewing we are not the merits by court, preted the district is unconstitution- placement Daniel IEP or at Slocum’s his (5) al; whether the Slocums violated Instead, Heartspring. reviewing in we are by unilaterally placing IDEA Daniel Slocum terlocutory relating orders to Daniel Slo Heartspring, giving at without the School placement, cum’s interim to include the costs oppor- an Board State defendants and/or placement, pendency of such tunity make a site in to determination accor- circumstances, litigation. Under such dance the IEP. At in the second issue for See we will review abuse of discretion. appeal whether the district court erred 1415(e)(2) to (authorizing 20 U.S.C. court (1) by concluding order is “grant such relief as the court determines in appeal; remains effect while it is on appropriate”); School Committee Town of (2) refusing to allow the State defendants Burlington, Department Mass. v. of Educ. manage participate

to or in the formulation Mass., 359, 369-70, 471 105 S.Ct. U.S. of Daniel Slocum’s IEP. (1985) 2002-03, (interpreting L.Ed.2d 385 review, conferring IDEA discretion as “broad Regarding our standard of relief, including “appropriate” court” to order challenges assert that State defendants their parents” to for only “retroactive reimbursement legal questions, to the orders raise re- novo; in a placement the earlier costs respond viewed de the Slocums (inter school); F.3d 86-87 pursuant Susquenita, the orders to because were entered to permit stay-put provision, preting the IDEA functions IDEA to which injunction, only pending a merits-decision and as an automatic our is award review costs pending awarding stay-put a costs dis- include for abuse of assessment reviewing such merits-decision, cretion). concluding that “the con- support in of retro- cerns cited Court addition, considered court has not our including the in- reimbursement favor active court to permits a district IDEA responsibility of financial terim assessment of an interim payment of the order range of relief available under Be- prior to a merits-decision. placement, 96 F.3d at 86. Susquenita, IDEA”. Other challenge do not cause the State defendants Burlington, retroactive which déalt with than authority to award such court’s the district merits-decision, after reimbursement assume, costs, deciding, that such we without authority cite Susquenita court did not IDEA, as inter- under an award is authorized responsibility impose financial its decision Susquenita. preted by the Circuit Third prior to on the school district a merits-deci- sion. A. holding the

Concerning district court’s express IDEA not contain an does responsible solely Department reimbursement, of Education for the allo provision for Daniel Slocum’s payment of the costs of educational local and state cation between Heartspr- services at education and related such agencies responsibility of financial (the April the Review ing from 3 date of parents Reimbursement reimbursement. decision) (whether through pendency of this Panel retroac private school tuition merits-decision) maintain that litigation, the defendants equi is an tive (1) vicariously Department is not liable remedy, may imposed in which table (2) violations; Board’s Accordingly, discretion the district court. liability vio- imposition of language examine the and structure we must process, defen- whole, lates due light IDEA as a in the of its parties whether, the administrative dants were pending a purpose, to determine (3) hearings; evi- the district court excluded merits-decision, permits allocation of finan validity of the adminis- dence relevant to the responsibility for in cial (4) decision; procedure for deter- trative Gadsby by Gads costs. See terim improper; and mining (4th interim Grasmick, 940, 952 by v. 109 F.3d Cir. (5) concluding 1997). the district court erred (Gadsby considered cost-alloca the Review Panel decision constituted posture— procedural tion issue a different agreement merits-decision.) between the State and Slo- after appropriate was an cums that purpose of IDEA placement for Daniel Slocum. principally provide handicapped chil- public appropriate dren with a free edu- special emphasizes cation education 1415(e)(2) noted, § gives the dis As designed to their and related services meet authority relief “grant trict court contemplates unique The Act needs. appropriate”. 20 determines is U.S.C. [it] pos- provided where such education will 1415(e). Burlington, Supreme § In schools, regular public in with the sible language authorizing Court construed this as possible in participating child as much as to “order authorities to a district court school nonhandicapped the same activities as chil- parents expenditures for their on reimburse dren, provides place- but the Act also for if private special education for a child expense public ment in schools at place ultimately determines that possible. where this is not IEP, ment, proper is proposed rather than 369, 105 Burlington, 471 at S.Ct. at 2002 U.S. 369, Burlington, 471 at the Act”. U.S. under (internal quotation and omit marks citations added). (emphasis Bur 105 S.Ct. at 2002 ted). retroactive reimburse lington dealt with than, ment, here, Gadsby agree is “[t]here rather reimbursement We with that But, Susqueni- language pending nothing in in either the or the struc a merits-decision. ta, Burlington of IDEA court’s the Third Circuit extended ture that limits district 784

authority handicapped residing to award reimbursement children the area by agency. against agency], served such local educational educational [state agency], [local both in educational 1414(d)(1). § 20 U.S.C. particular Gadsby, case.” 109 F.3d at 955. provision, [a “Under this once local edu agree language

We that also “both the and agency] unwilling cational is either unable or suggest the structure of IDEA that either or programs maintain establish and com may both entities be held for the fail- liable IDEA, pliance with educational [state provide appropriate public ure to a free edu- agency] directly providing responsible is cation, appropri- as the district court deems disabled in the services to children area.” considering ate after all relevant factors”. Gadsby, at 109 F.3d also Todd D. See Andrews, 1576, 1583 Id. Robert D. v. 933 F.2d (11th (state Cir.1991) agency educational First, places primary responsibility IDEA responsibility providing must take free agency, providing the state educational appropriate public education where disabled responsible assuring it “shall be by regional student is better served or state requirements subehapter of this are car- one); facility than local v. New Kruelle Cas 1412(6). § ried out”. U.S.C. 20 Dist., County tle Sch. 642 F.2d 696-98 (3d Cir.1981) (affirming court’s order language suggests ultimately, This it requiring agency provide state educational respon- is the agency]’s [state educational program student with full-time residential sibility to ensure that each child within its agency pro where local educational failed to jurisdiction provided appropriate is a free adequate program). vide Therefore, public education. seems In regard, requires state edu- agency] may clear that state [a educational agencies policies cational to establish and responsible if comply be held it fails to procedures for the administration of funds to duty with its to assure IDEA’S sub- agencies local educational and ensure that implemented. requirements stantive expended those funds are accordance with Gadsby, Gadsby, 109 F.3d at 952. provisions. IDEA’S See 20 U.S.C. support legisla- Fourth found in the Circuit 1413(a)(2). 1413(a)(13) 1413(a)(1), And, §§ § 1412(6), § history tive indicates that agencies directs state educational establish provision was included in the statute to “policies procedures developing and single responsibility “assure a line of implementing interagency agreements be- regard handicapped to the education of chil- agency tween the other Gadsby, (quoting dren”. 109 F.3d 953 appropriate agencies and local to ... S.Rep. 94-168, (1975)). at 24 No. responsibility define the financial each agency interagency ... [to] resolve dis- That err the district court did not inter- 1413(a)(13). But, putes”. al- impose preting IDEA to allow it to though regu- has established upon Department, rather than the School development procedures lations and Board, for the costs merits-deci- agreements, interagency appli- is no there 1414(d)(1): supported by sion is further interagency agreement covering cable dispute at hand. agency Whenever a State educational de- agency termines that local educational County Florence v. Dist. Four Car- unwilling ... establish unable ter, 7, 16, 361, 366, U.S. S.Ct. programs appropriate maintain of free (1993), “[c]ourts L.Ed.2d 284 directs that public require- education which meet the fashioning equitable relief under IDEA must provision appropri- ments the of a free [for In Gadsby, consider all relevant factors”. education], public ate ... the State edu- courts, the Fourth stated that Circuit payments agency cational shall the use in determining whether to allocate reim- state, have been to such against would available bursement costs the or the local, agency provide special agency, local educational to educational should consider directly agency responsibility education and related services “the relative of each for record, supported by as well a a decision is the provide child with ultimate failure the Gadsby, purpose. IDEA’S structure and public education”. appropriate free Circuit As the Fourth 109 F.3d at 955. line, reject Along we the State defen- this noted, be unfair “in instances it would some imposition dants’ contention the agency] liable educational [state to hold the liability Department violates interim private school for costs of reimbursement to IDEA the intent of the 1997 amendments tuition, agency] the educational [local where defendants, which, according to the State responsible failure”. primarily congressional require intent to state reflect hand, may “there be cases Id. On the other responsi- supervision continuing local while the [local would be unfair to hold which it assuming bility. Even those amend- costs, where, agency] liable for educational apply, they conten- support ments do not this facility example, appropriate no for there was Nothing prohibits a district tion. in them juris- ageney]’s within educational [local the exercising to allo- court from its discretion the child and the education- [state diction for liability Department, cate interim the an alternative.” agency] provide al failed to rather thán the Board. Id. Department, rath- determining that the Next, contend the State defendants Board, for should be liable er than the School imposition on a pending merits-deci- costs process, it was based violated due court, equi- sion, noting its broad the district they proceedings to which administrative relief, powers appropriate fashion table parties. were (1) following factors: considered requested had School Board that, although The State defendants assert hearings, participate in the administrative (West Supp.1997) per- 17:1952 La.Rev.Stat. refused; (2) a defendants had but it against in the adminis- a claim the State mits argue the orally opportunity full to brief and process, nor the trative neither Slocums (3) issue; pursuant cost allocation necessary steps to School Board took 1412(6), ultimately re- parties. That make the State defendants provi- sponsible implementing IDEA’S requires Department to statute Louisiana (4) ensuring sions; Congress’ goal of procedures regulations and establish prepare stability in a child’s consistency and disabled participation in the deter- parental to ensure interagency if special would be thwarted education for appropriate education mination of disrupt disputes allowed to not contain budgetary were It does children with disabilities. establishing procedur- financing child’s educational express provision of that that, day party to making after placement. We note also al mechanism Super- proceedings. meeting, IEP the School Board’s IDEA administrative the De- Special Education wrote to visor of line, regulations promulgat- Along Educational Ser- partment’s Special Office of process Department for hear- by the due ed vices, Department assist requesting that the ings administrative review and state level locate, Board to family and the School 1706, §§ 507-513. With Bulletin found evaluate, approve ultimately a residential hearings, they pro- respect process due facility for Daniel Slocum. vide: hearing process] [due initiates a parent A a merits-deei- conclude We LEA sending [lo- notice to the written its sion, court did not abuse the district agency]. LEA initi- cal responsibili- by allocating financial discretion by sending notice to hearing written ates ty Department, rather than the School to the Depart- parent [State and the SDE Board, edu- of Daniel Slocum’s Education], ment of services cation and related Ex- Implementation Regulations decision the Review Panel’s from the date of Act, 1706, § Bulletin litigation. ceptional Children’s through balance of this Services, (Office' Loui- factors, Educational Special its considered the relevant 7/1/94). merits, Dept, regula- siana of Educ. Those ation of issues related to the such as provisions procedur- IEP, tions do not or a adequacy meaning contain the and of the and al making party mechanism for the propriety placement State to the at Heartspr- of the proceedings. ing prior administrative date of State to the the Level Review Panel in of the decision favor Slo- Despite any the absence of Louisiana stat- cums, properly the refused to district regulation establishing proce- ute or such a in ruling stay-put consider such issues on dure, supra, described the as stated, placement. the As nature and rea- attempted Board to obtain State the defen- the sonableness of interim costs are dis- participation pro- dants’ in the administrative cussed infra. but, ceedings; the State defendants declined. however, They were, parties to made 4. federal court action—the School Board’s challenge The State defendants contend further to administrative decision—and opportunity participate had the interim cost issue should not have to through ordinary been proceeding placement award determined motion to (1) practice, ruling merits-decision. based solely proceedings, on the administrative sum, In the State defendants had notice (2) they parties; which were opportunity prior an to be heard to the by documents submitted the Slocums did not imposition liability interim cost at is- provide a determining factual basis for sue. process There was no due violation. spe Heartspring’s charges were for were, cial education and related services 3. instead, subject to the medical services exclu summarily State defendants as 1401(17) sion. (excluding See 20 U.S.C. sert refusing that the district court erred from definition of “related services” medical challenging to consider “merits” issues diagnosis services other than evalua validity rulings. administrative tion). The State defendants assert that the Moreover, they do not what state issues district court should have an conducted evi- considered; they should have been state dentiary hearing in they would have merely herein, that “the defenses set forth opportunity had the to submit evidence and others, well as should have been considered regarding cross-examine witnesses assessing the district court before interim Heartspring’s charges. liability”. cost We assume that the refer again, respect But first conten- enced issues include the reasonableness of tion, opportuni- the State had defendants costs, they subject and whether ty participate in the administrative hear- services, IDEA’S exclusion medical see 20 ings; they Accordingly, declined to do so. 1401(17), discussed infra. they parties fact were not to those In Susquenita, the Third Circuit stressed proceedings requiring not a is basis for an stay-put that the issues in a reviewed evidentiary hearing in court. narrow, proceeding involving practical “are contention, State defendants’ second concern- questions [the student] of where should at- ing the costs documentation submitted process pro- tend school while review Slocums, II.B., part is discussed infra. ceeds, pay placement, who for [the] must made”; payment when that must be and that 5. issues, adequacy “merits” such as imposition in The district court’s IEP, properly were not before based, upon terim

interlocutory Susquenita, 96 appeal. F.3d at part, on purposes its conclusion determination, Level ruling stay-put placement, the Review Panel’s decision constituted “agreement” district court considered the narrow issues between the Slocums and the properly appropriate that were before it. To the extent is the sought defendants consider- for Daniel Slocum. The State de- conclusion, claiming expenses squarely on the challenge foeusfes] this substan- fendants and, thus, question liability” Hearing and Review tive of was not Independent the Officer independent properly ruling before it in on the completely are Panel members that, implies This motion. at trial Department. of the merits, will given the State defendants be an discussed, “stay-put” provision IDEA’S As opportunity challenge the interim to costs states, pertinent part: (i.e., they subject are to IDEA’S any proceedings During pendency the exclusion). medical services See section, pursuant to this unless conducted 1401(17) § (excluding from definition of “re- agency and state or local educational the services, lated services” medical other than guardian agree, parents or otherwise the evaluation). diagnosis for or shall in the then current the child remain child____ placement of such respect With to the reasonableness of the costs, added). 1415(e)(3) interim district court stated: (emphasis § In 20 U.S.C. expenses [Slocum’s] “Whether Daniel interim Burlington, that Supreme Court stated are of law at excessive as matter is not agency’s decision the state administrative issue; during IDEA that makes clear these unilaterally had parents, of the who favor stay Heartspring proceedings, Daniel is to at in a school after placed their child expense expenses public long at as those proposed by IEP the school rejecting the properly implies are This that documented”. district, agreement “would seem constitute expenses, matter properly documented no placement”, change of to the excessive, whether unreasonable or must be longer in parents “were no that paid by during stay-put period. the State 1415(e)(3)” the date violation of after Slocums maintain that the reasonable- agency’s decision in their administrative fa- properly ness of interim costs is not consid- 105 S.Ct. at 2004. vor. U.S. but, they during stay-put period; ered Burlington, the district Consistent may acknowledge reasonableness be- not abuse its discretion conclud- court did portion merits come issue 1415(e)(3), that, ing purposes litigation. “agree- Panel decision constituted an Review State and the Slocums ment” between the it Although the district court stated that action, that, during pendency this oversight purpose of would “retain Heartspring appropriate educational was the disputes re- resolving over reimbursement placement. documented”, quests, properly must oversight includes is unclear whether

B. review for reasonableness excessiveness. deny- example, For in a footnote its order The State defendants note ing denying the of the order reconsideration only per year per State receives about $400 manage an IEP defendants’ motion education, so special student (as II.G., part infra), the dis- discussed in greatly exceeds the unfunded that reasonableness trict court indicated line, Along they contest funding. federal reviewable, that, if costs was interim findings making not the district court’s merits, they the State defen- succeed on the $12,000 (ranging from paid to might dants be able to recover funds month) $20,000 per primarily for were Heartspring: medical, educational, purposes. rather than Likewise, they that the court either assert complain that The state defendants rejected ignored questions concerning the requests submitted reimbursement costs, by apparently reasonableness increased, recently justifying have Slocums position stay-put pur taking Heartspring records defendants’ access subject poses, they to review. are pro- IEP greater involvement requests If are reasonable cess. denying defendants’ motion documented, however, the state properly rehearing, court stated that the district obligated pay, with sue- medical defendants of educational or the “determination costs, remaining stay-put cess on the merits if avenue some of the even (In recovery of these prevail funds. defendants on the merits. regard, the State defendants contend that hand, part On the other in as discussed required the district court should have II.C., infra, the district court also stated post security Slocums a bond to as for such ultimately even if the State defendants reimbursement.) potential This discussion prevail on the merits Level II.B., overlaps in part with that because it Review to Panel decision is held be errone- possible certainly does not seem not —and ous, they are not be entitled to reimbursed stage litigation advisable —at this of the to by the Slocums the interim costs of Dan- attempt distinguish between unreasonable iel Slocum’s education and related services at pertain that excessive costs to discrete or Heartspring. episodic incidents, opposed events It is not clear whether the State defen- unreasonable or excessive that costs are on- requested dants have the district court to going stay-put and fundamental to the facili- any disputes rule specific over reimburse- ty. court, in It is for the district the first requests. ment The Slocums assert instance, to make that call. not; they have but the record reflects that In ruling that the is not enti- apparently the State defendants believe that by tled to be reimbursed the Slocums for they lack upon sufficient data which to base a costs, if the even State defendants specific challenge. For in example, their mo- prevail words, other even if the Review —in rehearing denying tion for of the order their decision, Panel which is the basis motion manage to conduct and an IEP con- stay-put order and the award interim ference, requested the State defendants costs, is court reversed —the reasoned as fol- produce the court order Slocums to docu- lows: support mentation Heartspring’s invoices. By virtue of the State Level Review Pan- it Accordingly, is unclear whether the dis- decision, agreed el’s the state has as a trict court intends allow the State defen- placement. matter of law the child’s by dants to be reimbursed the Slocums for if eventually Even were to Court de- any Heartspring during stay- of the error, panel’s cide that the decision inwas put period, regardless of whether such costs agreement an period still exists unreasonable, excessive, or covered up leading time to this Court’s decision exclusion, IDEA’S medical services and irre- parents [on the and the would not merits] spective pre- of whether the State defendants be deemed in violation law event, any vail on merits. some parents, therefore, that time The frame. point proceedings, in these the State defen- should made not be to reimburse the state given meaningful opportuni- dants must be a placement or school for a board with which ty challenge both the nature the rea- agreed the state and for which no violation sonableness costs. The place. period, of law took In this interim is, course, timing an opportunity of such parents are deemed in compliance with matter to be determined the district free, IDEA and Daniel is to a entitled court, in the exercise of its discretion. sound education____ appropriate public But, reach, ruling, in so we do not nor do we primary purpose stay-put provi- A on, express opinion an whether protect being put sion is to a child from defendants are entitled under IDEA to reim- placement possibly unsuitable in- challenged stay-put bursement for curring awaiting lengthy harm while costs. litigation. parents outcome of If who compliance are in with the IDEA are re- C. quired to reimburse school district or troubling state, The most parents issue is without substantial district court abused its discretion con- means could forced be to leave child cluding required they Slocums will not the less suitable pay reimburse the for at least cannot afford to interim Review Panel ruled in Additionally, parents may be when the State Level

placement. favor of the Slocums. their child to withdraw from forced expressly determining not agree noted that was they the state placement which compliance might whether the Slocums were parents appropriate because the date, April repay with IDEA resources to have the before financial costs which accumulate the educational assert further that State defendants litigation. directly is con- This the expect pay cannot the State to the Slocums trary purpose of IDEA. to the Heartspring, of because there the costs added.) (Emphasis has never a determination that the been appropriate not have an State defendants do Obviously, a lies merits-decision whether, facility to meet Daniel program Slocum’s future, address we do not now the goes Again, such a determination to needs. De- prevail, the defendants should State of all, appropriateness the merits of the Daniel some, if not partment can recover IEP, is, therefore, properly not Slocum’s 96 F.3d stay-put Susquenita, See costs. however, note, us. that the State before We Restated, premature. n. 10. issue is acknowledged post-argu- defendants their following presented it be to our court Should is no state ment brief in our court that “there merits-decision, subject to review it will be a facility specifically designated for operated then. is “[t]here also no children with autism” whereby specific interagency agreement a D. agency provides educational state educational Next, as claim the State defendants to with autism”. services children court, un- interpreted the district liability constitutionally an unfunded creates F. authority, exceeding in violation federal They Amendments. and Eleventh the Tenth interlocutory appeal their In second however, concede, existing is record (State IEP), management of an significant determining such inadequate for claim raise two The first defendants issues. scope of federal issues constitutional stay- is that IDEA limits the duration authority imposing absolute and unfund- specific proceed three put determination to States, ed States hearings; ings: process due state adminis beyond being provide forced to services and, for proceedings; review trative review legitimacy fed- competence, and the their decisions, brought in ing civil actions such resulting in regulation of eral state education 1415(b), § or federal court. state budgeting deci- federal redirection state (e). IDEA, (c), according to the Under sions. defendants, action” does the term “civil appeals ap courts of have not had not include circuit the State defendants Because Therefore, develop on as opportunity peals. the record State defendants a fair “stay-put” issues, placement or not them. interim we do address sert pursuant to 20 U.S.C. judgments entered 1415(e)(3)by dissolve once a district court E. (Of course, appealed. judgment a stay-put appeal For the from the appealing.) is the State that is order, the final issue raised is whether contention, support of that In unilateral of Daniel Slo Slocums’ Spe- rely v.H. Franklin con defendants on Kari IDEA and cum at violated (table), Dist., pay 125 F.3d 855 right cial School of their to seek stitutes waiver (6th Cir.1997) (unpublished). At WL 468326 stay-put costs. This issue is not ment of stay-put in Kari H. was whether interlocutory appeal. issue on properly before us the district apply provision continued Slocum at enrolled Daniel The Slocums after on the merits stay-put court had ruled April Heartspring on 4 after For appealed that decision. parents had only period deals with the time order at issue starters, later, pursuant to the Sixth Circuit’s April year on 3 commencing a Rules, unpublished opinions to such agency citation the local respect with any event, is disfavored. in contrast performance of IEP-related functions. case, stay-put reviewing we are order pro- relies regulations State also prior to trial on merits. mulgated by the United States Restated, Education, yet provide: has appropriate placement ruled on the for Dan- disability After a child enters a note, also, iel Slocum. that this We conten- private facility, any meetings school (and tion is inconsistent with our court’s may review and revise child’s IEP Court’s) Supreme denial of the State defen- initiated and conducted stay stay-put dants’ motion to order facility school or at the discretion pending appeal. public agency. Whether order remains in 300.348(b)(1). 34 C.F.R. appeal effect an aof merits-decision respond The Slocums that the State defen- properly is not only before us. At issue can dants are not entitled to such relief because interlocutory appeal be whether an of that (1) Daniel Slocum is current on his IEP and stay-put say, dissolves order it. Needless to (2) evaluation; there is no for an need the Otherwise, it party unhappy does not. fact that the responsible is ruling, stay-put the in this instance the stay-put period the does not defendants, simply State could seek to frus- support sought type by the of assessment the purpose stay-put by trate the orders tak- (3) defendants; legal State and is there no interlocutory ing appeals. support They for such evaluation. con- stay-put injunction pro-

tend further that the G. tects from Daniel Slocum unwarranted as- defendants, that, by sessment State the and second, last, and issue raised permit them to convene an IEP confer- interlocutory the appeal second concerns the stay-put concept. ence the would void entire characterizing district court State the defen right meeting regulations require dants’ to conduct an IEP as a The Act and the discovery proceeding. annually, issue the merits IEPs be reviewed at least 20 They 1401(20); ruling, § contend that the regular bars U.S.C. and that reevalu- any meaningful participation years, them from in every ations be conducted or three warrant, process the IEP until frequently resolution the mer more whm conditions or its, highly prejudicial prohibits parent is it requests because when a teacher such re- or defendants, non-parties during the § C.F.R. evaluation. 300.534. Daniel having any process, Tammany administrative from ac Slocum’s last St. IEP was devel- oped According cess or in April involvement IEP on 3 1996. to the decisions, Slocums, despite developed May the fact that IEP entire another being burden Heartspring, financial is borne 1996 at and most recent Department. May Heartspr- developed IEP was 1997 at ing, participation. with the Board’s defendants assert that IDEA The Slocums that Daniel Slocum was assert grants authority them to convene and man- 1996, April is not due last reevaluated in and and, IEP, age necessary, if to initiate a April for another until 1999. reevaluation They reevaluation of Daniel main- Slocum. court, improvement in tain that a dramatic his con- of the district it was words reevaluation; persuaded permits dition such a “not that IDEA the relief warrants 1401(20) 1414(a)(5) §§ provide For two reasons the defendants seek”. below, process procedures IEP do given involves continuous we not decide whether relief, any date, may grant that are not as of and contem- court such either fixed plate periodic authority pursuant the need for review assess- to the cited which, that, defendants, 1415(e)(2), progress; § ment of a stat- child’s ed, paying Heartspr- grants is discre- the district “broad services, ing supplant “grant relief as determines [it] should tion” 1415(e)(2); appropriate”. Plaintiff-Appellee- 369, SNYDER, Burlington, 471 U.S. at 105 S.Ct. at James Cross-Appellant, 2002. v. revision, and,

First, necessary, if a review place in IEP is to take of Daniel Slocum’s al., TREPAGNIER, Sidney et 1998; agreed May parties have Defendants-Appellees, will School Board and State defendants Orleans, City Defendant- participate process. in this New be allowed to (1997). Second, parties Appellant-Cross-Appellee. C.F.R. 300.344 discovery in an- apparently commenced have No. 96-30935. is, ticipation of 15 June trial. It there- discovery, fore, likely during such Appeals, Court United States much of the can discover State defendants Fifth Circuit. they seek.

information May

III. reasons, subject to foregoing

For opinion, expressed concerns AFFIRMED, and appealed from are

orders to the district court

the case is REMANDED with this proceedings consistent

for further

opinion. and REMANDED.

AFFIRMED

KING, concurring: Judge, specially Circuit opin- judgment in the

I in the concur II.C,

ion, except Parts II.B and De- implying that Louisiana dicta

contain may entitled

partment of Education part all from Slocums

recoup paying incurred

expenses that it stay-put

Heartspring placement interlocutory ap-

period. Resolution require us to address issue

peals does what circumstances under Department’s may authorize

the IDEA during the costs incurred

recoupment of period.

Case Details

Case Name: St. Tammany Parish School Board v. Louisiana

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 27, 1998

Citation: 142 F.3d 776

Docket Number: 97-30949, 98-30088

Court Abbreviation: 5th Cir.