*1 MEN OF DEPARTMENT TENNESSEE MENTAL RETAR AND
TAL HEALTH Plaintiff-Appellant, DATION,
v. County The Hamilton B. and
PAUL Education, Defendants- Board of
Appellees.
No. 94-6040. Appeals, Court
United States Circuit.
Sixth
Argued 1996. Jan. July
Decided Rehearing
Rehearing Suggestion for Sept. 1996.* En Banc Denied * reasonsstatedin her dissent. rehearing Judge grant Batchelder would *2 history negative be- His
four occasions. stealing, running depression, havior included self-mutilation, kill fami- away, and threats to hospitalization oc- ly members. His first grade when he was the sixth curred *3 Valley Hospital, him in a parents placed Chattanooga, facility in private mental health for hospitalized seven Tennessee. He was 27, 18, April until weeks from March 1988, directly transferred when he was Institute, Health a Moccasin Bend Mental facility operated by respondent Bend, At he was en- TDMHMR. Moccasin briefed), (argued and B. Hubbard William School, a residential rolled in the Smallwood Hubbard, Weed, Berry Doughty, Nash- & institute, grounds on the of the school housed ville, TN, Dept, of Mental for Tennessee 27, April until he remained from where Mental Retardation. Health and time, 7,1988. At this Paul B. was November briefed), Gary (argued D. Buchanan he was not evaluated to determine whether Inc., Advocacy, seriously emotionally disturbed within the Tennessee Protection & meaning of the Individuals with Disabilities Nashville, TN, for Paul B. Act, seq. § 1400 et Education Mahn, Gary (argued D. Lander Michael J. (1995) (“IDEA” Act”) eligi- or “the and was Jr., briefed), Joseph SanFilippo, A. special under the ble for educational services TN, Bahner, Chattanooga, for & Chambliss Act. County Bd. of Educ. Hamilton discharged from After Paul B. was Small- NELSON, CONTIE, 1988, Before: he lived at home wood November BATCHELDER, Judges. private church school from Circuit and attended shortly expelled before his next which he was CONTIE, J., opinion delivered psychiatric admission. NELSON, J., joined. court, in which again B. November Paul was On 1479-1482), BATCHELDER, (pp. J. hospitalized at Moccasin Bend. This time he concurring in separate opinion delivered School, in the a residen- enrolled Pinebreeze dissenting part. part and adolescents, grounds tial on the school 8, February 1989 until from November CONTIE, Judge. Circuit discharged 1990. When Paul B. was to be Department Plaintiff-appellant, Tennessee Pinebreeze, County the Hamilton Retardation of Mental Health and Mental were notified at the time of dis- Schools (“TDMHMR”), appeals the district court’s charge and an evaluation was made summary judgment grant of to defendant- result, child. As a Paul B. was determined B.,1 defendant-appellee, appellee, Paul and to emotionally seriously disturbed within County of Education the Hamilton Board and, thus, meaning of the IDEA (“HCBE”), concerning action the edu- eligible special and related for free education emotionally seriously cational of a (“M- multidisciplinary A team services. reasons, following disturbed child. For the Team”) February convened on 1990 to summary judgment grant of we reverse the develop an Individualized Educational Pro- to the district court. remand (“IEP”) gram Paul B. The M-Team de- special in order to meet his termined that I. needs, required Paul B. a struc- seriously 16-year-old, emo- Paul B. was a day program at Johnson tured treatment child, tionally at the time of by disturbed who Academy, private operated school hospital- litigation in this case had been Joe Johnson Mental Health Center. by HCBE disability B.’s there was made ized as a result of his on least a fictitious name. district student is referred court, 1. Pursuant to an order of the by Home”), process through part the M-Team and was or “the which was of the Joe county pursuant Center, to the Act. Johnson Mental Health where Paul formerly B. had attended school at Johnson February M-Team decision of program. recorded on a document entitled the “M- waiting She Paul B. on the list for date, summary.” On same Team placement at the Home and took him on a B.’s father received “Statement Parental facility. tour of the statement, Rights.” According to this signature of Paul B.’s father on the M-Team In the staff at Pinebreeze summary placing ready had the effect his son determined that Paul B. was to be discharged “as recom- and informed his father that Paul psychotic remission, symptoms mended.” were in longer and he in danger harming was no *4 attending Paul B. at home resided while himself or others. The staff determined that 14, 1990, May Academy. On Paul Johnson completed program he had at Pinebreeze again B. was once admitted to the residential progressed point and had to the at which he program psychiatric treatment at Pinebreeze needed more interaction community. with the emergency on an basis. His father was un- Paul Betty Henry B.’s father indicated to psychiatric that residential aware treatment to the Director of the Children and Youth was reimbursable under the Act as a related Program at if Pinebreeze that Paul B. re- required if service it was to meet the child’s home, turned he and proba- the child would special In educational needs. June bly have to leave due to the strained environ- Danny Gaddy of HCBE him his .told son’s ment that resulted when Paul B. lived with psychiatric program residential treatment at family. possibly Pinebreeze was a related service Gaddy arranged IDEA. covered under the On Paul B.’s M-Team meeting for an M-Team on be convened reconvened to discuss after dis- 5,1990. developed June The IEP the M- charge from Pinebreeze. The team included placement Team recommended educational father, Paul representatives B.’s of Pine- at Pinebreeze retroactive to the date of the School, by TDMHMR, breeze which was run May admission. Because the M-Team deter- representatives of HCBE. The records psychiat- mined Paul B. needed a residential developed during meeting the M-Team indi- ric to meet his educational discussed, options cate that several in- were needs, stay TDMHMR for Paul B.’s at cluding option placing Paul B. in resi- Pinebreeze. dential treatment at Barton Avenue. The point record indicates that at one During the fall summer and discussion, representatives of Pinebreeze B.’s father became concerned about what School recommended at Bar- happen would to Paul B. when he was dis- Group Despite having ton Avenue Home. Pinebreeze, charged from because his son options discussed several for Paul B.’s next long history a being discharged had placement, educational the M-Team’s final then readmitted to facilities. His decision was drafted as family follows: cycle believed that this would continue requests unless Paul B. was in a residential M-Team at Johnson discharge after from Pinebreeze. program. They required therapeutic pro- up believed he a per We believe he will need to once gram day, counseling Long the entire which could not be week individual with Dr. addition, provided family In home. order to benefit from his educational they they placement. were concerned that would not be family
safe with Paul B. in the
home.
present
at
the M-
reasons,
Betty
meeting
signed
For these
his father asked
Team
the M-Team sum-
Henry,
mary, thereby
indicating
agreed
B.’s Liaison Teacher-Counselor
that he
with
Pinebreeze,
addition,
investigate community
resi-
the M-Team’s decision.
In
he
placements.
Henry
signed
separate
dential
portion
Ms.
located a
a
of the IEP on
home,
therapeutic group
legal rights
parent
Bar-
which several of his
as the
(“Barton
listed,
Group
handicapped
including
ton Avenue
Home
Avenue” of a
child were
for all costs
was liable
ed that TDMHMR
and review or
request mediation
right to
Avenue
with the Barton
associated
Hearing
disagreed
if
he
Process
a Due
based his con-
However,
placement. The ALJ
Paul Home
of the M-Team.
the decision
300.401(a)(2),
on 34 C.F.R.
clusion
that if he wanted
not notified
father was
agency recom-
decision,
provides that when
Paul B.
appeal the M-Team’s
facility, the
private
during
mends
Pinebreeze School
could remain
par-
to the
at “no cost
“stay
placement is to be
appeal pursuant
of the
pendency
that because
IDEA,
The ALJ reasoned
ents.”
provision of the
put”
placement at
had recommended
stay in TDMHMR
1415(e)(3),
a child to
which allows
meeting,
during M-Team
during Barton
placement”
educational
his “current
such a recommen-
had not made
challenge
but HCBE
parent’s
of a
judicial review
dation,
solely responsible for
TDMHMR was
change in
IEP that recommends
proposed
the costs.2
placement.
discharged
Paul B. was
In November
had
representatives
Although Pinebreeze
living
After
at home
Barton Avenue.
at Bar-
recommended
days,
moved
he and his father
meeting,
for four or five
M-Team
during the
ton Avenue
separately from the rest
B. into
and lived
nothing
get Paul
they
further to
did
early
shortly after the deci-
family. In
grandfather contacted
Home. Paul B.’s
*5
ALJ,
placed Paul B. at
HCBE
got Paul
sion of
on the Board and
person he knew
Connecticut,
private,
a
resi-
indepen- Grove School
father made
B. admitted. Paul B.’s
for children with serious emo-
at Barton
dential school
arrangements
place
to
his son
dent
all
problems,
costs associated
tional
his release from Pinebreeze.
Avenue after
including transportation.
placement,
January with this
placed at the Home on
Paul B. was
14, 1991, immediately
discharge
after his
TDMHMR
to
appealed the ALT’Sdecision
days after the M-
and seven
from Pinebreeze
court. The case was sub-
a Tennessee state
18, 1991,
Paul
meeting. On
Team
Dis-
sequently removed to the United States
a unilateral fee-for-
father entered into
B.’s
District of Ten-
for the Middle
trict Court
in which he
contract with the Home
services
Plaintiff TDMHMR contended
nessee.
provided to his
pay
to
for the services
agreed
B.
defendant
Paul
or
either defendant
stay
Barton Avenue
during his
there.
son
responsible for the cost of
HCBE was
the cost of his
Paul B.’s father for
son’s
billed
Avenue. Each
placement at Barton
stay.
summary judgment.
for
party filed a motion
father re-
September
Paul B.’s
In
granted
Paul B.’s and
The district
Hearing
an
a Due Process
before
quested
summary judgment,
for
HCBE’s motions
(“ALJ”),
pur-
judge
law
administrative
that TDMHMR was
agreeing with the ALJ
to determine who was
pose of which was
Home,
of the
but
solely liable for the costs
stay at
cost of Paul B.’s
responsible
The district
affirmed for different reasons.
Petitioner Paul B. contend-
Barton Avenue.
merely
TDMHMR had
court concluded that
respondents TDMHMR and HCBE
ed that
placed
that Paul B. be
at Bar-
recommended
pay
treatment
for his residential
should
However,
final
Avenue.
conclusion
ton
bill,
Paul B.’s
there. Of the
agree with this
the M-Team did not
recom-
$20,208
$4,500
family paid
remained due mendation,
developed
on Janu-
and the
on the account.
ary
that Paul B.’s educational
1991 stated
only
day
required
treatment
Hearing,
placement
Process
which was
After the Due
18, 1991,
with one-hour-
program at Johnson
an ALJ conclud-
held on December
services, including
psy-
residential
TDMHMR was
educatíonal
ALJ also determined that
2. The
AU found that because
responsible
chiatric treatment. The
the cost of Paul B.'s admissions
provi-
agency to which the
is a state
Health Institute from
TDMHMR
to Moccasin Bend Mental
7, 1988,
by
apply,
its
it violated the IDEA
April
sions of the Act
1988 to November
Therefore,
it was re-
February
to evaluate Paul B.
be-
failure
November
1989 until
though
quired
admissions even
to
for these
have evaluated Paul B.
cause TDMHMR should
by
they
an M-
occurred before his evaluation
upon
determine if he was
these admissions to
portion
the ALJ’s decision is not
seriously emotionally
Team. This
within the mean-
disturbed
and, therefore,
appeal.
eligible
ing
at issue in this
of the Act
appropriate.
not mum
counseling and did
extent
per-week of individual
psychiatric
1412(5)(B);
treatment.
provide
§
§§
for residential
34 C.F.R.
300.550-556.
found that one was
The district court
Notwithstanding the IDEA’S mandate that
to reimbursement
for residential
entitled
students be
in the least restrictive
on the
private
in a
home
placement
environment,
the IDEA does
for res-
at an M-
mere recommendation
basis of a
placement
placement
idential
if such a
is
placement
meeting, when residential
Team
necessary to meet the child’s individual edu-
of M-
not the final recommendation
cational
needs.
See
U.S.C.
However,
court concluded
the district
Team.
1401(a)(16)(A), 1413(a)(4)(B);
§§
34 C.F.R.
liable for the costs of
that TDMHMR was
§§ 300.302and 300.551.
B.’s residential
at Barton
controlling regulation provides:
Avenue,
Department
failed to
because
main-
Paul B.’s father that he could
inform
If
private
residen-
tain Paul B.’s current educational
program neeessary
provide spe-
tial
is
program at Pi-
in the residential
cial
related services
appeal
if he wished to
the M-
nebreeze
disability,
program,
child with
includ-
Paul B.’s IEP
Team’s decision
board,
ing non-medical care and room and
him
placing
parents
must be at no cost to the
Academy without a residential com-
Johnson
child.
ponent.
34 C.F.R.
300.302. To assess whether a
judgment of
appeals
TDMHMR now
appropriate,
is
a deter
pursuant
to 20
the district court
U.S.C.
mination must be made whether full time
jur-
1415(e)(2),
grants
federal courts
necessary
for edu
appeals
isdiction over
under the Act.
medical,
purposes
opposed
cational
as
so
*6
II.
cial,
problems
separa
or emotional
that are
learning process.
ble from the
McKenzie v.
This
arises under the Individuals with
ease
Smith,
Act,
(D.C.Cir.1985);
§
Disabilities Education
1400
771 F.2d
1534
(1995).
Act,
Dist.,
seq.
a student who
County
et
Under
Kruelle v. New Castle
School
eligible
special
(3d Cir.1981).
education because of a
is
642 F.2d
693
Under
disability
provided
appropri-
is to be
a “free
Act,
placement
residential
is “at no cost to
consisting
special
ate
education”
of
parents
only
of the child”
if it is neces
education and related services.
U.S.C.
sary
purposes.
for educational
1401(a)(18).
§
An
M-Team is a
development
implementation
The
individuals, including
and medical
educators
of the IEP are the cornerstones of the Act.
professionals
knowledge
with
of a child’s con-
Doe,
Honig v.
484 U.S.
S.Ct.
dition,
required
develop
are
an Indi-
who
(1988).
592, 597-98,
1473 argued it. that he misunderstood He that he IV. believed the M-Team had recommended an- in erred the district court We believe other residential at Barton Ave- determining the failure to inform that Therefore, nue. he had no reason to contest “stay put” rule was B.’s father of discharge Paul B.’s from his current residen- the outcome fact which determined material only tial at Pinebreeze. It was alleged that an viola this case. We find after the fact that Paul B.’s father insisted in “stay put” dispositive not of the rule is tion an affidavit before the district court that he ease, depends for present which instead challenged would have the M-Team decision a factual determination of its resolution on “stay put” had he known of the rule. meeting of at the M-Team what occurred 7,1991 pro other to assess whether In order for Paul B. to have had the guarantees of the Act were violated. cedural right to remain his current educational of materi there are contested issues Because “stay placement at Pinebreeze under the alleged procedural regarding these al fact Act, put” provision of the violations, summary grant we believe argue would have had to that his son re precluded is judgment to Paul B. and HCBE 24-hour-a-day, seven-day-a-week quired res proceedings. Anderson stage of the at this special idential treatment to meet his edu Inc., Liberty Lobby, 477 U.S. v. However, argument cational needs. no such at 2510-11. S.Ct. was made. The ALJ and district court failed why the district We will first discuss “stay put” provision to see that to invoke the alleged violation of focusing on the erred Act, Paul B.’s father had to contend “stay put” rule.3 The district court rea- that the M-Team’s recommended father had chosen to that if Paul B.’s soned psychiat inappropriate and a residential appeal M-Team’s recommendation necessary in order for Paul ric placement in the B. to benefit from the education and Academy, program at which did Johnson guaranteed services him under the related payment include for residential Cordrey IDEA. As this court stated v. Home, at the Barton Avenue services Euckert, (6th Cir.1990), 917 F.2d remained in his current Paul B. could have denied, 1391, 113 cert. 499 U.S. S.Ct. Pinebreeze, which (1991), provision “stay put” L.Ed.2d during pen- paid for would have been proce appear to one of the Act’s does not Therefore, equity re- dency appeal. requirements attempts to insure dural of resi- quired TDMHMR to the cost programs adequate individualized educational treatment at Barton Avenue. dential whose violation would constitute denial was based on the as- district court’s decision under appropriate of a free sumption Paul B.’s father understood Rather, “stay put” provision Act. it, decision, disagreed the M-Team *8 parent alleges only when a that activated appealed known of the would have it had he a substantive violation there has been “stay put” rule. judi and and has initiated administrative Act reasoning of the dis- that the We believe challenge the M-Team’s deci cial review following reasons. trict court is flawed for the sion. assumption that Paul The district court’s In the Town School Committee requested if he had would have review Educ., Dept. v. Burlington, Mass. Mass. “stay put” rule does not informed of the been 1996, 359, 385 85 L.Ed.2d 471 U.S. 105 S.Ct. support in the record. Before find factual (1985), par found that a Supreme the Court ALJ, argue that B.’s father did not the proposed IEP rejected the child’s wrong; argued ent who was he the M-Team decision pay for this viola- appellant or HCBE should difficulty that TDMHMR with this case is 3. The appel- contesting appeal appeal the district that TDMHMR is on contends on tion. TDMHMR However, who should for responsible court’s decision about for the costs. lee HCBE is Avenue, implicitly placement ac- at Barton B.'s cepting argued before the not what TDMHMR this is conclusion that the the district court’s district court. “stay put” and that either rule was violated 1474 unilaterally placed the child in We believe the district court erred because private school state-approved “stay
a could be re put” it failed to see that the rule is not imbursed for that under U.S.C. designed prolong “the current educational 1415(e)(2), parent pursued the ad because placement” genuine appeal- unless there is a process for ministrative due remedies the able issue “the current educational private placement, and school the courts la placement” appropriate is the un- private place that the school ter determined changed. der the Act should not To ment warranted under the Act. Id. at was decision, appeal a which one otherwise has contrast, 369-74, 105 at 2002. In in S.Ct. the disputed, keep in order to in a child case, reject present Paul B.’s father did not psychiatric program residential and avoid proposed IEP and claim that his son family purposes conflict undermines the appropriate public a free denied “stay put” provision of the Act. In the incorrectly discharged because he was case, present argument Paul B. made no treatment at Pinebreeze appropriate placement Pinebreeze was the program treatment at John changed and should not have been or that Academy. County son See Babb v. Knox special guaranteed services him under (6th Cir.) System, School 965 F.2d the Act were him denied because the M- (because parents showed school district failed longer Team determined he no needed relat- to create an sufficient to meet child’s psychiatric part ed residential services as needs, specialized parents reimbursement argument, his IEP.4 Without such an expenses placing incurred in in pri child “stay put” provision of the Act does not come warranted), program vate residential play, into Paul B. cannot show how he denied, cert. 506 U.S. 113 S.Ct. “stay was harmed his lack of notice of the (1992). L.Ed.2d 290 Paul B. has not asked put” rule. ALJ, court, the district or this private place determine whether “stay We find that lack of notice of the ment home at Barton Avenue put” equitable remedy only rule an warrants Act, was warranted under the as was the if appealable there is a colorable claim that Burlington. Although in appeal, case on the child appropriate pub was denied a free argues parent that like the lic education under the Act. Because no such Burlington, he was forced to a unilat make ease, present claim has been made placement, eral he has not claimed that his relying district court erred in on TDMHMR’s son’s educational needs would not give “stay put” failure to notice of the rule in have been met without at Barton finding responsible that TDMHMR was Avenue. As the court v. D.C. Lunceford costs, paying of Paul B.’s at the Educ., Board 745 F.2d Home. Paul B.’s father (D.C.Cir.1984) stated, identify one must allege did not grounds facts that he had change detrimental the elements of an challenging the M-Team decision based on educational in order for a chance to needs, his son’s challenge qualify “stay put” provision. for the Paul B. necessary “stay put” before the rule can be has not identified such detrimental reason, invoked.5 For this meaning within the decision of purpose of the Act. The grant summary judg Act is not to district court to free residential seriously ment to Paul B. for a emo and to HCBE because of *9 child, tionally provide “stay put” disturbed but to lack of notice of hereby his the rule is special educational needs. reversed. Instead,
4. Paul B.'s father's argued contention that Paul B. re- he that the M-Team mislead therapeutic program ceived a well-defined at agreeing placement him by into to the in goals Barton Avenue based on documented and failing notify psychiat- him that the residential objectives, goals objectives and that these and component being dropped ric was from Paul B.'s skills, daily living addressed his behavior and his reasonably and he believed that his son’s directly which were linked to his academic in- Group residential care at the Barton Avenue Academy, struction at Johnson is not sufficient to Home would be for. state such a claim. father conceded that the state- Paul B.’s V. summary about Bar- ments in the M-Team Instead, ease must be believe this we appear in a section headed “Dis- ton Avenue the Although court. district remanded cussion,” separate a section headed and “stay put” rule is not alleged violation Avenue, not mention Barton “Decision” does alleged other viola also Paul B. dispositive, place- requests states that the M-Team but Act in requirements of the of the notice tions Academy day at the treat- ment Johnson meeting of Jan M-Team with the connection argued Paul B.’s program. ment father B. is 7,1991. entitled uary Whether meeting him that at the told that no one these other depends on whether or not relief for his meant he would have to be true as factual are allegations found at Barton Ave- placement son’s residential matter. nue, M-Team was recommend- or that the at of what occurred two versions There are longer B. no needed residen- ing that Paul ar- meeting. Paul B.’s father M-Team the in order to meet psychiatric tial treatment reasonably the believed that that he gued needs, only need- special his but educational 7, January 1991 included developed on program at Johnson day treatment ed at Barton Ave- home group the Academy. that Paul B.’s father contended psychiatric component nue as the residential reasonably that recommen- he believed the placement plan. He his son’s educational Academy the Bar- for Johnson dations meeting a document that at contended Home, Group were both Avenue ton Summary” produced. entitled “M-Team Mental Health Cen- part of the Joe Johnson following state- The document included ter, complementary, and would be were both (1) does recom- “Pinebreeze staff ments: county by under the paid for the state group Academy and the mend Johnson IDEA. provisions of the ” (2) added); Paul B. (emphasis “Once home Home, Group Barton Avenue enters this ver- TDMHMR and HCBE contested transportation”; group home will and the of the facts before the ALJ sion (3) entry into “anticipated date of Barton They argued it is clear that district court. B.’s Group is 1-18-91.” Paul Home Avenue that on from the record M-Team doc- argued the written that longer that Paul B. no re- MTeam decided request that his provided indication ument no quired treatment residential Barton B.’s residential for Paul needs, special educational his order meet refused, it- when document Avenue new edu- could be met his which instead is recom- states that self pro- day treatment cational entry mended, into for Paul sets a date They argued Academy. gram Johnson transporta- describes the program, M-Team portion of the that the decision made. arrangements that were tion child summary clearly indicated that individualized according highly structured argued that needed also coun- along with outside rights he received parental to a statement of They Long. with Dr. February seling once a week meeting on prior M-Team after a sec- although the M- contended discussion signature on that he believed summary stated of the M-Team placing his tion summary the effect of had Team Johnson staff “does recommend pro- Pinebreeze educational in a son home,” group the discus- Mental Health Cen- gram at the Joe Johnson “only can also stated that the M-Team ter, sion including the place placement and Academy “as address educational recom- Home and Johnson They argued that Paul home.” group M- argued that the official mended.” He unilaterally arranged for a resi- B.’s father the Pine- reflected Team documents for non- Barton placement at dential staff breeze recommended reasons, the record and that home and that *10 began ar- shows that placement at Barton arrangements for this placement before rangements for such a M-Team meet- were finalized at the meeting convened. M-Team ing.
TDMHMR and HCBE relied on the testi- was discussed at the Gaddy, mony Danny the case meeting, coordinator M-Team Paul B.’s father was told HCBE, for who testified as follows: longer required part that it was no as
Q. guaranteed educational services his Did the M-Team According respondents, ever decide that a residential son under the Act. treatment facility necessary was, thus, for verbally was the educational Paul B.’s father given purposes for family, [Paul notice that not TDMHMR or BJ? HCBE, would have to for No, Barton Ave- people A. there were from the men- They argued nue. that it was system
tal clear from the health attendance at the M-Team discussion My understanding that the Barton Avenue M-Team. was that Group ready part Home was not discharged was to be of Paul B.’s edu- [Paul BJ personal and that cational Pinebreeze would not be reasons, family pursuant as a provi- his felt like he should not related service come home. sions of the IDEA. explained I that all an M-Team can do is TDMHMR and HCBE also contended that decisions, to make educational and I be- the record indicates B.’s father unilater- I it lieve wrote into the discussion that I ally placed Avenue, Paul B. at Barton aware specifically noted that we could not responsibility payment, because the make decisions related to Barton Ave- placement completely any unrelated home, nue. That’s a mental prior negotiation between them and the question place- is not a of educational part Home as of his son’s IEP. For this ment. argument, they testimony relied on the Q. So to achieve the goals Fontana, Don who was the CEO at the Joe necessary itwas for there to be Johnson Mental Health Center. He testified accomplish that before the ALJ as follows: education? simply I did a favor for a friend of mine A. No. grandson who having had that was diffi- TDMHMR and HCBE also relied on the culty. family having difficulty, following support argu- evidence of their out, help and he asked me if I could and I They pointed ment. out that the M-Team said sure. expressed its final decision in the M-Team And that’s how got placed [Paul in the BJ summary as follows: Home. It was not requests placement M-Team at Johnson by any done other referral from the school day program. treatment or from the Board of Education or from We believe that he up per will need to once just the Pinebreeze staff. It was did it —I counseling week individual Long with Dr. personally. in order to benefit from his education. argued TDMHMR and HCBE although that They argued that Paul expressed B.’s father the Pinebreeze staff had located and recom- agreement in this final signed decision and mended Barton appropriate Avenue as an summary. They the M-Team argued that he residence for Paul B. family due to his cir- knew, reasonably known, should have that cumstances, it was clear that this was done decision, this was the final only because not reasons, for social or emotional not for edu-
was it memorialized in the M-Team sum-
reasons,
cational
require
which alone would
mary, but also it was written into the IEP in
reimbursement under the Act.
describing
block
provid-
the services and
ers
Moreover,
as follows: “academics and
Betty
Henry,
affidavit of
Jo
Academy.
A
Johnson
32.5 hour school
the Liaison Teacher-Counselor
at Pine-
specified.” Thus,
week
breeze,
is also
there was no
stated that she recommended that
summary
indication
the M-Team
pay-
residentially
Paul B. be
placed at Barton
ment for
psychiatric placement
a residential
family
Avenue due to his
circumstances and
part
Barton Avenue was
of Paul B.’s IEP.
the strained environment that resulted when
TDMHMR
argued
although
HCBE
the child returned home and did not make
*11
live,
to
going
he’s
address where
cannot
necessary part of
aas
recommendation
this
could not
felt like he
father]
because
Stoegbauer,
[his
Gary
placement.
his educational
That’s not an edu-
accept him at home.
Youth Pro-
and
Children
of
Director
question.
cational
Pinebreeze,
in his affidavit
swore
grams
1990,
at Pine-
the staff
in December
that
testimony, TDMHMR
Based on
more
Paul B. needed
that
determined
breeze
the record
argued it is clear from
HCBE
community and that he
interaction
unilaterally
decided to
that Paul B.’s father
stated:
discharged. He
be
should
though it was
in
Home even
his
place
son
conversa-
understanding from
my
It was
IEP.
part of his
not
B. that re-
of Paul
the father
tions with
14,1991,
January
that on
It is uncontested
was not
to his home
turning
child
Home,
placed Paul B.
B.’s father
Paul
the child’s
option, not because
good
fee-for-
days
into a
later entered
and four
needs,
of his fami-
but because
agreed
pay
in which he
to
contract
services
ly situation.
son, including
provided to his
services
However, Paul B.’s
and board.
fees for room
discharged
to be
needed
the child
Since
duress.
did
under
that he
so
argued
home,
go
not
and could
Pinebreeze
from
unexpected-
was
that when he
He contended
to
tried
assist
staff
the Pinebreeze
for the
sign a contract
ly asked to
facility in
finding a suitable
parents in
B.
had no choice because
placement, he
reside.
the child could
which
from Pine-
already
discharged
been
had
go
him
breeze,
place for
there was no
prior
request
parents’
to the
Pursuant
home,
family
was nei-
other than the
meeting,
January
M-Team
appropriate, nor safe.
ther
arranged to have
the Pinebreeze staff
facts concern-
contested
that these
We find
for Barton
waiting list
on the
placed
B.
7,1991,
January
meeting of
ing the M-Team
Group Home.
Avenue
(1)
reason-
Paul B.’s father
indicate either:
meeting of
the M-Team
After
his
that
ably
from the discussion
believed
Pine-
understanding that the
my
it is
part
Barton
was
Avenue
son’s
steps
place
any
take
staff did not
breeze
be
that would
was
service
of his IEP and
the child
(2)
Act;
Paul B.’s
under the
paid for
Home.
the deci-
reasonably
informed
father was
before
Also,
testified
Gaddy
HCBE
Mr.
drop residential
sion to
ALJ as follows:
unilaterally
IEP and
his son’s
that his wife said
My understanding The evidence
Barton Avenue.
his son at
home, and he at
come
could
B.]
[Paul
go-
two discussions
there were
indicates that
it would
felt like
that he
the time indicated
between
meeting
M-Team
ing on at the
—one
now,
that he’s in
the kind
situation
be
staff
father and
Pinebreeze
Paul B.’s
home with
leave the
have to
that he would
reside, and one
should
his son
about where
problem.
B.],
a home
and that’s
[Paul
Whether
concerning
educational needs.
his
problem.
not an educational
That’s
reasonably
that the
believed
staff concern-
with the Pinebreeze
discussion
meetings
essentially two
[sic]
There was
was a rec-
Barton
placement at
ing
M-Team,
was an
One
son’s
going on at once.
his
was included
ommendation
negotiations
was
between
Act is a
the other
for under
IEP and would
health
and the mental
Act
father]
fact.
[Paul
of material
issue
contested
son, who
now
par-
people as to where
protections to
provides procedural
hospital,
discharged from the
ready
in the form
to be
handicapped child
ents
living.
going to be
in an
about
adequate notice
allegedly violated
were
protections
and these
clarify the issue and
And in order
at the
made
ambiguous statements
I
responsibility, wrote
order to delineate
meeting.
M-Team
the M-Team
be—or
that I cannot
there
*12
highly
The facts
described before When the
specific
elaborate and
argument
consistent with
procedural safeguards
the ALJ are
his
embodied in
properly
[setting
that he was not
notified about the
requirements
out the
of written
argued
M-Team’s decision. Paul B.’s father
parents
guardian,
process
notice to
or
due
proper description
that he did not receive a
hearing,
judicial
and administrative and
re-
proposed
of the
action and that he had such a
general
view] are contrasted with the
§§
right under 34 C.F.R.
300.504-505 to
imprecise
somewhat
substantive admoni-
notice, including
description
written
“a
Act,
of the
tions contained in the
we think that
proposed
by
agency.”
action
or refused
the
importance Congress
the
attached to these
argued
summary
He
that the M-Team’s
did
procedural safeguards
gainsaid.
cannot be
description
him with a clear
of
It
exaggeration
seems to us no
say
the
agency
drop
the
action to
the residential
Congress placed every
empha-
bit as much
IEP,
component from his son’s
because the
upon compliance
sis
procedures giv-
place-
document itself stated that residential
ing parents
guardians
large
measure
recommended,
ment at the
home was
participation
every
of
stage
at
of the ad-
Home,
entry
set a date for his son’s
into the
process
ministrative
upon
as it did
the
transportation arrangements.
and described
resulting
measurement of
against
IEP
Paul
B.’s
contended that he was not
a substantive standard. We think that the
given proper
request
pay-
notice that his
congressional emphasis upon
partic-
full
ment
son’s residential
ipation
treatment at
parties
of
throughout
concerned
M-Team,
by
Barton Avenue was refused
IEP,
development
of the
as well as the
when the written document
oppo-
stated the
requirements that
plans
state and local
site.
Secretary
submitted to the
approval,
legislative
demonstrates
conviction
allegations
We believe these
create a
adequate
compliance
proce-
with the
issue,
dispositive
which the district court
prescribed
dures
would in most cases as-
must
on
Contrary
address
remand.
sure much if
Congress
not all of what
contention,
dissent’s
we believe it does mat
way
wished
of substantive content in
ter what Paul B.’s father deduced from the
an IEP.
discussion with Pinebreeze staff at the M-
Bd.
7,1991.
Rowley,
205-06,
Educ. v.
meeting
Team
of
458 U.S.
Under 34
of
3034, 3050-51,
300.504-505,
102 S.Ct.
§§
C.F.R.
description
a clear
L.Ed.2d 690
(1982)
added).
(emphasis
proposed
As
by
agency
the action
the Doe court
refused
out,
pointed
Supreme
given
pas
should have been
to Paul
Court
this
B.’s father.
sage recognized
importance
both the
procedural requirement
Whether or not this
procedural requirements,
Act’s
pur
fulfilled is contested.
If
provi
the notice
pose of
requirements:
those
partic
sions of the Act were
“full
alleged
violated as
ipation of
parties throughout
concerned
B.’s father was mislead as a conse
development
quence,
we
the IEP.”
believe Paul B.’s
harmed PROCEDURAL AND I. FACTS meeting were M-Team at the made ments HISTORY provide allegedly failed ambiguous and B. an emotion- is Defendant-appellee M-Team’s indication with a clear him meaning of the ally child within disturbed drop a residential decision Act, Education Disabilities Individuals this his son’s component from (1990 Supp.1996) seq. & et regard, amake determination cannot (“IDEA”).1 1980s, During the he inwas does recommend Johnson & the emotionally (12) of several institutions for out dis- group ... home We discussed a week team,” A “multidisciplinary turbed children. transition Pine Breeze to [Johnson “M-Team,” placed him at Pinebreeze Academy] parent providing transporta- w/ School, a residential plain- institution which (13) tion Once [Paul B.] enters Barton Ave. operates, tiff TDMHMR on June Home —the home will (16) transportation_ [Johnson Acade- An M-Team which included Paul B.’s fa- my] willing for [Paul B.] to begin ther, Pinebreeze, representatives rep- Academy] [Johnson on resentatives from 1/14/91 —Parent defendant Hamilton Coun- *14 transport (“Board”) & will ty deliver academic Board of informa- Education met on (17) Anticipated tion Although parties’ entry 1991. the ac- into Barton meeting vary, group counts Ave. we have two Home is 1/18/91. helpful: documents which are the “individu- January 1991, in Later (“IEP”) program” alized education and the took Paul toB. the Barton Group Avenue summary.” “M-Team Both are dated Janu- signed Home and agreeing a contract pay to ary signed by and M-Team mem- placement. for the The father he claims bers. signed duress, this contract under because the Paul Under B. was to meet with his son had discharged been from Pinebreeze his ease coordinator for 50 per minutes twice family and place the had “no else for him to month, have an program academic for 3 go, other than family the home which was week, and 50 per hours minutes five times appropriate neither or safe.” have hours three five week, per times have counseling individual requested The father later process a due the Academy with Johnson staff once a week hearing to pay decide who should the bill for one hour and additional individual coun- from the Barton Home. The seling Long with Dr. per for one hour week. (“ALJ”) state judge administrative-law or- IEP reflects the The M-Team’s belief that pay, dered the TDMHMR to because the day-treatment Paul B. needed a program, Pinebreeze staff had recommended that Paul week, counseling per outside once high and a B. inbe Citing Barton Avenue. 34 C.F.R. support and level structure. 300.401(a)(2),2 § the ALJ held that when a public agency recommends summary, The M-Team section enti- private “Decision,” facility, placement states, is at no to tled cost requests “M-Team parents. agreed The district at court Day Johnson with the the program. ALJ’s disagreed Treatment conclusion but We that he with believe will his rea- up per soning. need to once citing law, week Without individual counsel- case the district ing_” A section entitled “Continued Dis- court held that the pay, TDMHMR should alia, states, inter cussion” not because the Pinebreeze staff had recom- Avenue, mended Paul B. be at Barton (7) but We discussed that may [Paul B.] because the TDMHMR had not advised Paul to
able continue at Pine Breeze in the rule, B’s stay-put found in 20 evening Academy] transition to [Johnson 1415(e)(3) § (Supp.1996) U.S.C. may or he enter 34 home and now 300.513(a) (1995). (8) § C.F.R. [illegible] there is an opening Accordingly, the We dis- granted cussed that the district only defendants’, M Team can address and place educational & plaintiff’s, denied the summary-judgment (10) group home ... Pine plaintiff Breeze staff appeals. motions. The statute, 1. now called “the Individuals with agency] [state "Each shall ensure Act,” 1400(a) disability § Disabilities Education that a with a U.S.C. child who is in or (Supp.1996), private formerly faciliiy by referred to a school or called "the Education agency provided [i]s Handicapped 1400(a) ser- of the (1990). § Act.” 20 U.S.C. parents[.]” [a]t vices no cost 34 C.F.R. 300.401(a)(2) (1995) § (citing 1413(a)(4)(B)). in his Group Home was
II. DISCUSSION IEP. Ante at 1477-1478. son’s underlying lengthy discussion After a 1468- ante history, at procedural facts respectfully holding I dis- this latter From today reverses the court out, majority opinion points As the sent. ruling on sum court’s the district vacates his father Paul B. nor contends neither The court at 1479. judgment. Ante mary necessary program was district court holds, agree, I special education from the B. to benefit rule, stay-put considering the even erred under he is entitled to which services related that a not contend3 B. did because 1473-1474, is no IDEA, and there ante him to necessary for program support such in the record evidence and relat special education benefit obligation of made. The if it were contention him. guarantees IDEA services ed a residential agency of the state an v. Thomas Cincinna 1473-1474; Ante cf. necessity of upon dependent (6th is Educ., program F.2d ti Board of child for the disabled in order Cir.1990) (when error only procedural upon agreed no from the services which caused noncompliance benefit technical (1995) (citing prejudi is no 300.302 *15 there See deprivation, IEP. 34 C.F.R. substantive 1413(a)(4)(B)). error).4 1412(2)(B), Ab- §§ cial evidence, matter what it does not sent such finds, following an However, then the court from the discussion father Paul B.’s deduced positions, parties’ review of extended may abe There Pinebreeze staff. (1) with the Paul B.’s 1475-1477, that either ante at believed, it is he but not dispute what at about placement Bar- reasonably believed father fact under Fed. issue material and would of genuine the IEP part of R. was ton Avenue (2) IDEA, he was or for under Civ. P. 56(c).5 psychi- reasonably that residential informed of the IDEA provision is no other There IEP, and he not was atric treatment Board or the TDMHMR requires the which at Barton Avenue. his son unilaterally placed Group Home bill Avenue pay the Barton genuine is a that there holds then The court I would before us. under the circumstances Paul B.’s fact about whether material of issue order court’s the district and vacate reverse discussion reasonably believed instructions action with at remand staff about the Pinebreeze or the state local course, ceedings, consent of contention, without the not suffice would A3. mere officials, own financial so at their summary judgment. R. do See Fed. school aon motion County v. Four Car School Dist. Florence risk.” Civ. P. 56(c). 7, -, ter, 126 114 S.Ct. U.S. 510 (1993) (quoting Comm. School L.Ed.2d 284 the Barton Ave whether not 4. We consider need 359, Educ., 471 U.S. Department Burlington v. "then current Group Paul B.’s Home was nue 1996, 2004-05, 373-74, 385 85 L.Ed.2d 105 S.Ct. rule, stay-put placement” under the (1985)). "They reimbursement entitled to are 625-26, Thomas, at generally 918 F.2d see that the both only concludes a federal court if Group Avenue the Barton whether IDEA, and that placement violated generally See in the IEP. was included Home under the proper was private school (6th 1460, Euckert, 1468 F.2d Cordrey Cir.1990) 917 v. require that the child not law Act.” Id. The does Longview Gregory School (citing K. v. public expense; education at (9th Cir.1987)), a “Cadillac” 1307, receive Dist., cert. 1314 811 F.2d 1391, "reasonably edu calculated 938, denied, an IEP 111 S.Ct. 113 499 U.S. Doe, at 460. 9 F.3d suffices. (1991). benefits” cational 447 L.Ed.2d appropri was that the IEP determines If a court ate, to reimburse parents not entitled are did court the district observe that 5. I also place period any interim ment the Barton whether consider 1415(e)(3) (Supp. U.S.C. violated 20 ment B. appropriate for Paul was an Home Comm, 1996), stay-put Bur rule. School parents bear child and held that the We have 2004; see at 105 lington, at S.Ct. 471 U.S. by preponderance proving the burden hand, Doe, if a On other at 898 F.2d v. inappropriate. Doe evidence family placement the that the determines Cir.1993) (6th Educ., 458 9 F.3d Board of family may be reim appropriate, the 1469; chose v. Doe Cordrey, F.2d (citing Defen proper See retroactively situation. Cir.1990)). (6th bursed I, 898 F.2d dant Burlington, U.S. Comm. School "unilaterally their child’s who Parents at 2003. pro- 105 S.Ct. pendency during of review judgment enter for the TDMHMR and the
Board.
Betty JASS, Plaintiff-Appellant,
v. PLAN,
PRUDENTIAL HEALTH CARE
INCORPORATED, corporation, Karen
Margulis Anderson, M.D., Peter J.
Defendants-Appellees.
No. 95-2471.
United States Appeals, Court of
Seventh Circuit.
Argued Nov. 1995. July
Decided