Opposition Brief — C. M. ex rel. J. M. v. Board of Education
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No. 00-1762
In the
Supreme Court of the United States
CM, ETC., ET AL,
Petitioners,
Vv.
BOARD OF EDUCATION OF HENDERSON COUNTY, ETAL,
Respondents.
On Petition For Writ of Certiorari
To The Fourth Circuit Court of Appeals
BRIEF IN OPPOSITION
*Ann L. Majestic Christopher Z. Campbell
Tharrington Smith, LLP Cynthia S. Grady
P.O. Box 1151 Roberts & Stevens, PA
Raleigh, North Carolina 27602 P.O. Box 7647
919-821-4711 Asheville, North Carolina 28802
Attorneys for Respondent/ 828-252-6600
Defendant-Appellee Attorneys for Respondent/
Board of Education of Defendant-Appellee
Henderson County Buncombe County Board of
Education
ROY COOPER
North Carolina Attorney General
Joyce S. Rutledge
North Carolina Department of Justice
Post Office Box 629
Raleigh, North Carolina 27602-0629
Telephone: (919) 716-6920
July 23, 2001 *Counsel of Record
—-
——
i
RESPONDENTS’ BRIEF IN OPPOSITION
QUESTIONS PRESENTED
I. WHETHER THIS COURT SHOULD GRANT A
PETITION FOR WRIT OF CERTIORARI REGARDING THE
STATE STATUTE OF LIMITATIONS BORROWED BY THE
DISTRICT COURT, WHERE THE COURT OF APPEALS RULED
THAT SUCH STATUTE OF LIMITATIONS COULD NOT BE
APPLIED AGAINST PETITIONERS UNDER THE FACTS IN
THESE CASES.
Il. WHETHER THE MULTIPLE FEDERAL POLICIES
UNDERLYING THE INDIVIDUALS WITH DISABILITIES
EDUCATION ACT (IDEA) HAVE BEEN BALANCED
CONSISTENT WITH THE ACT, WHEN A _ STATE
LEGISLATURE REQUIRES AN AGGRIEVED PARTY, WHO
HAS RECEIVED WRITTEN NOTICE OF A FINAL SPECIAL
EDUCATION DECISION MADE BY SCHOOL AUTHORITIES
ALONG WITH CLEAR NOTICE OF THE PROCEDURES AND
TIME LIMIT FOR CONTESTING THAT DECISION, TO FILE A
REQUEST FOR AN ADMINISTRATIVE DUE PROCESS
HEARING WITHIN 60 DAYS OF RECEIPT OF SUCH NOTICE
IN ORDER TO PRESERVE THE RIGHT TO CONTEST THE
DECISION.
ii
LIST OF PARTIES
In the consolidated appeals decided by the Fourth Circuit, the
parties were:
Petitioners in this Court
CM, a minor, by and through her parents, JM and EM, and on
their own behalf (Plaintiffs-Appellants) in 99-2533
M.E. and P.E., on their behalf and on behalf of their son, C.E.
(Plaintiffs-Appellants) in 00-1101
Respondents in this Court
The Board of Education of Henderson County ef al.
(Defendants-Appellees) and The State of North Carolina
(Intervenor-Appellee) in 99-2533
The Buncombe County Board of Education (Defendant-
Appellee) and The State of North Carolina (Intervenor-Appellee) in
00-1101
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TABLE OF CONTENTS
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RESPONDENTS’ BRIEF IN OPPOSITION ............... l
EY CEU USERS a Nive deewhdeccesacenccss l
oe yy gs ere 2
A. Factual and Administrative Background of CM ..... 2
B. Disposition of CM in the District Court ........... 7
C. Factual and Administrative Background of ME. .... 8
D. Disposition of ME. in the District Court.......... 10
E. Decision of the Fourth Circuit Court of Appeals.... 11
REASONS WHY THE PETITION
Perec reer eee eres 12
II.
iV
PETITIONERS ARE NOT AGGRIEVED, FOR THE
REASON THAT THE CHALLENGED STATUTE WAS
FOLPE: AP REMES BAP BOUL siaises coke Nba ew ecsed’s
THERE IS NO CONFLICT IN THE CIRCUIT
OPINIONS AND THE CHALLENGED STATUTE
COMPORTS WITH EXISTING LAW AND POLICIES
MEN 6 ae AUER Che AREAS PEL RRC wR TER
A. The Fourth Circuit’s ruling is not in conflict
with Birmingham v. Omaha School District, 220
F.3d 850 (8th Cir. 2000), or with any relevant
Gaciehen GE on ie Ne EAI Ak
1. Unlike Birmingham, these cases concern the
time period for initiation of an administrative
ROUNTID 1 05 ak o Kes SOT Bek HERI BA
2. Unlike the procedures of the shorter Arkansas
statute rejected by the Eighth Circuit Court of
Appeals in Birmingham, the standard of review,
scope of review and evidentiary procedures for
a due process hearing in North Carolina are all
GUI I FE kbd hac de abnseesasarss
B. The Fourth Circuit’s ruling is consistent with
the decisions from many other federal courts
_ analyzing fundamental IDEA policies. ...........
C. The Fourth Circuit’s ruling properly considers
and attempts to account for all relevant federal
policies, rather than one single policy ............
15
20
Vv
D. There is no conflict with OSEP’s letter rulings ..... 25
CONCLUSION
vi
TABLE OF AUTHORITIES
CASES
Aaron v. Brown Group, Inc., 80 F.3d 1220
(8th Cir.), cert. denied, 519 U.S. 950,
117 S. Ct. 361, 136 L. Ed. 2d 252 (1996) ......
Adler v. Education Dep't of N.Y.,
7160 F.2d 454 (24 Cig. 1965S) 2... cccccccccess
Amann v. Town of Stow, 991 F.2d 929 (ist Cir. 1993)
Barr v. Matteo, 355 U.S. 171,
78 S. Ct. 204, 2 L. Ed. 2d 179 (1957) .........
Berkowitz by Berkowitz v. New York City Bd. of Educ.,
921 F. Supp. 963 (E.D.N.Y. 1996) ...........
Birmingham by Birmingham v. Omaha Sch. Dist.,
17 F. Supp. 2d 859(W.D. Ark. 1998),
aff'd in part and rev'd in part,
220 F.3d 850 (8" Cir. Ark 2000) .............
Bow Sch. Dist. v. Quentin W.,
750 F. Supp. 546 (D.N.H. 1990) .............
Buncombe County Bd. of Educ.,
88 F. Supp. 2d 493 (W.D.N.C. 1999) .........
CM v. Board of Educ. of Henderson County,
85 F. Supp.2d 574 (W.D.N.C. 1999) ..........
Cleveland Heights-University Heights City Sch. Dist.
v. Boss, 144 F.3d 391 (6th Cir. 1998),
aff'd in part and rev‘d in part,
ye De | Ty BPPPPTeve Tri Titi iriiee
Vii
Dell v. Board of Educ., 32 F. 3d 1053 (7th Cir. 1994) .. 21,23,24
Department of Educ. v. Carl D., 695 F.2d 1154
Pe a ek ae oe Or eee 21
Dreher v. Amphitheater Unified Sch. Dist.,
SB Ue BEG TOGO Bi bas vdsctinesticsevis 22
Eccles v. Peoples Bank, 333 U.S. 426,
GS S. Ce. 661, 92 L. BE. TES CIDE) 2. eccccccccccses 15
Elizabeth K. v. Warrick County, 795 F. Supp. 881
Ge Ee POU bs ndvnvedsbes dibs c couesl acvucsent 21
Gertel v. School Comm., 783 F. Supp. 701
Pe De EEN 00:6 0.0 ddes GUNS 804d d060NS db 03-0 21,25
Herbert v. Manchester, 833 F. Supp. 80 (D.N.H. 1993) ..... 21
LD. v. Westmoreland Sch. Dist.,
eo eS | eee 21
Janzen v. Knox City. Bd. of Educ.,
FIO Te TO MI 6c Vb cic cnc ctsccrcaccccin 19
K Mart Corp. v. Cartier, Inc., 486 U.S. 281,
108 S. Ct. 1811, 100 L. Ed. 2d 313 (1988) ............ 27
Kirkpatrick v. Lenoir County Bd. of Educ.,
BOS ee FO Ss BE 0 cn ccc ctbiscescbedcores 19
L.C. and K.C. v. Utah State Bd. of Educ.,
57 F. Supp. 2d 1214 (D. Utah 1999) ................ 21
Livingston Sch. Dist. v. Keenan,
ope fork. fg RS er re Peet Yee 21
Vill
Lujan v. Defenders of Wildlife, 504 U.S. 555,
bre Remi Be ©} UES rere 13
Meritor Sav. Bank v. Vinson, 477 U.S. 57,
106 S. Ce. 2399, 91 L. Ed. 2d 49 (1966) .............. 27
North Carolina v. Rice, 404 U.S. 244,
92 S. Ce. 402, 30 L. Ed. 26 413 (1971) ............... 13
Powers v. Indiana Dep't of Educ.,
Fe pty le || reer errr rey errr se 21
Providence School Dep't v. Ana C.,
gg thi lt PPO erreeerrr yer rrrr rs Tr 21
Reed v. United Transp. Union, 488 U.S. 319,
109 S. Ct. 621, 102 L. Ed. 2d 665 (1989) ............. 19
Schimmel v. Spillane, 819 F.2d 477 (4th Cir. 1987) ......... 24
Spiegler v. District of Columbia,
oe totes 3 | aPrererverrrrrery 21,25
S.V. v. Sherwood Sch. Dist., 75 F. Supp. 2d 1153,
ERGO BOUUE Ke dcectccdewesdcacnaseccoaseuns 22
Thomas v. Staats, 633 F. Supp. 797 (S.D. W. Va. 1985) ..... 21
United States v. Mead Corp., 533, U.S. ___,
121 3. Ce. 2164, Li. Bae CARRE) 2 cc ccccee.. 27
Virginia v. American Booksellers Ass'n, Inc.,
484 U.S. 383, 108 S. Ct. 636, 98 L. Ed. 2d 782 (1988) . 13
Wagner v. Logansport Community Sch. Corp.,
990 F. Supp. 1099 (N.D. Ind. 1997) ................. 21
Wills v. Ferrandino, 830 F. Supp. 116 (D. Conn. 1993) ..... 21
iX
Wilson v. Garcia, 471 U.S. 261,
105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985) ............. 19
Zipperer v. School Bd. of Seminole County,
pee eG ged Se A: | eee ee ne meer 21
FEDERAL CONSTITUTIONAL PROVISIONS
RAC AR I TO i en ek wh wh ea mire ee chad dew iwia 13
FEDERAL STATUTES, REGULATIONS AND
LEGISLATIVE HISTORY
SE a EE ok G0 eh cab bake conn ao R SA cas Kon kes 18
ee PE 83 5 banc Vek vs Chaka vende ees 18
RR ON Sorin 4 ods nh kes ahuenh sa mien bas 15,18
UR RE dacs Sea kan adae o's idee aces sata as 16
121 Cong. Rec. 19504 (June 1975)
(statement of Senator Sweiker) ..................... 25
STATE STATUTES
oe ee eee 16,17,20,
I RUPE ED ng vo 605 c'b'e kc k Kd sdaseuada ens 17,20,
on aac wa bay sd kde scene kana 20
ccc an EEE TE er EEE Ty oe eer rer eee ee 18
GRICE, ob onc cbaadayadddcnanecase ee 18
nn PT DAT OTT IE TT TOE 18
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NERS So a Se es 18
WORN SUES ee 18
NES SOUR. 5. ee Bee 17,19,24
MEGA NBR ea oss 20
ROGERS cs eee 20
EGE SU 3k co iden i ee 20
MORE CTE S555 es 17,20
EE CU om. io ssh ees aE re 20
ee eee ery eee eE oer Tero eT Te 20
l
RESPONDENTS’ BRIEF IN OPPOSITION
Respondents Board of Education of Henderson County,
Buncombe County Board of Education, and The State of North
Carolina respectfully request that the Court deny the Petition for
Writ of Certiorari seeking review of the decision of the United States
Court of Appeals for the Fourth Circuit.
OPINIONS BELOW
The opinion of the Fourth Circuit Court of Appeals is reported
at 241 F.3d 374 and is reprinted in Petitioners’ Appendix at A-1
through A-29. The opinion of the district court in CM v. Board of
Educ. of Henderson County is reported at 85 F. Supp. 2d 574
(W.D.N.C. 1999) and is reprinted in Petitioners’ Appendix at A-30
through A-70. The opinion of the district court in ME. v.
Buncombe County Bd. of Educ. is reported at 88 F. Supp. 2d 493
(W.D.N.C. 1999) and is reprinted in Respondents’ Appendix at la
through 14a. The opinion of the Administrative Law Judge in CM
is unpublished and is reprinted in Petitioners’ Appendix at A-71
through A-106. The opinion of the Administrative Law Judge in
M.E. is unpublished and is reprinted in Respondents’ Appendix at
ISa through 25a. The unpublished hearing review officers’
decisions in both cases are reprinted in ent Appendix at
27a through 83a.
2
STATEMENT OF THE CASES
A. Factual and Administrative Background of CM
CM was diagnosed with autism at approximately age two. In
June 1993, when CM was three years old, her parents moved the
family to Hendersonville, North Carolina to take advantage of
services from “TEACCH” (Treatment and Education of Autistic and
Related Communication in Handicapped Children) -- a nationally
renowned program for autistic students and their families developed
at the University of North Carolina. In August 1993, the parents
enrolled CM in a TEACCH preschool classroom in the Henderson
County Schools.
CM’s individualized education program (IEP) developed by the
parents and school staff called for a full-day program; however, her
parents only brought CM for half a day for the brief time she was
enrolled in the TEACCH preschool. At this same time the parents
read about the Lovaas program, a treatment approach that professes
to achieve “recovery” from autism. The Lovaas program involves
highly regimented one-on-one instruction in the home for 40 hours
per week. In November 1993, the parents removed CM from the
Henderson County Schools to begin Lovaas treatment. They did not
express discontent with the TEACCH program or indicate that the
school system program was not appropriate, but stated they believed
that the Lovaas approach was highly successful.
Over a year later, in December 1994, CM’s father contacted
school personnel to request that the school system begin paying for
the home-based Lovaas program. Since the school system had not
worked with CM for over a year and her IEP was now out of date,
federal law required that an IEP team be convened to develop a new
plan and decide the appropriate placement for CM. A series of
3
meetings was held over the next two months with a final IEP
meeting on February 15, 1995. The IEP team considered four
options: the parents’ program and three different school-based
programs. With the exception of the parents, the IEP team
recommended that CM be served in a full-day program for autistic
students with some mainstreaming in a regular kindergarten class.
The parents continued to insist upon reimbursement for their Lovaas
program.
The Director of Exceptional Children’s Programs sent the
parents a letter the day after the final IEP meeting. She
acknowledged the disagreement between the parties and detailed the
rationale for the team’s decision, She also enclosed a Handbook on
Parents’ Rights which details the process for challenging the IEP
team decision, including a clear statement of the 60-day statute of
limitations for initiating a “due process” hearing. The Director
explained that the parents could seek mediation or pursue a due
process hearing in light of their disagreement with the school
system’s offer of services.
The parents initially requested mediation but later declined to
schedule it. They also did not pursue a due process hearing. They
did request an independent evaluation at school system expense.
The Director proposed that the school system perform an evaluation
first and explained that the parents would be entitled to an
independent evaluation if they disagreed with the results.
The school evaluation was completed and reviewed with the
parents in October 1995. At the school system’s initiative, the
parents and school met in November 1995 to begin developing an
IEP to replace the one that would soon expire in January 1996. The
parents’ Lovaas consultant reviewed the IEP drafted by the school
staff based on the recent evaluation results. The consultant reported
4
that CM had already mastered many of the goals and objectives
proposed in the IEP. This claim was not supported by CM’s recent
testing, however.
In December 1995, the parents renewed their request for an
independent educational evaluation, stating that the evaluation
conducted by school personnel was insufficient. The Director
agreed that the parents could pursue an independent evaluation and
they would be reimbursed up to $1200 (the school system’s
maximum amount for independent evaluations). School personnel
and the parents agreed to postpone the development of the 1996-97
IEP until the independent evaluation was completed.
After rejecting all of the independent evaluators on the school
system’s list, in the spring of 1996, the parents selected Dr. Jan
Handleman, an educator and professor with Lovaas experience in
New Jersey. Dr. Handleman conducted no formal testing of CM.
Because Dr. Handleman’s report provided no information on CM’s
present level of educational performance -- a necessary element for
the development of an IEP -- and because the parents and their
Lovaas consultant had both indicated that CM had mastered many
of the goals and objectives on the proposed IEP, the Director sought
the assistance of Dr. Victoria Shea, an expert in autism, to
informally assess CM in order to provide information for IEP
development.
Dr. Shea completed her observation report in May and
recommended that IEP goals be written in several specific areas.
She found that the skills CM had “mastered,” according to her
parents and Lovaas consultant, had not been mastered in the school
environment. Due to the conflicting statements regarding CM’s
present level of performance, school personnel conducted additional
observations and informal assessments, and met again with CM’s
I a nee
5
mother in an effort to gather more information about CM’s present
level of performance prior to the development of the IEP.
The parents postponed an IEP meeting scheduled for June,
because they would not grant permission to school personnel to
conduct the testing recommended by Dr. Shea. They chose to have
the testing administered privately by Dr. Thomas Boyle, a private
psychologist in New Jersey who had worked with Dr. Lovaas. Dr.
Boyle admitted that he deviated from standard protocol in
administering the tests in order to try to elicit a response from CM.
Dr. Boyle conducted an intelligence test of CM but, at the parents’
request and contrary to his normal practice, he did not report the
score. At the hearing it was revealed that after over two years of
Lovaas therapy CM scored in the mildly mentally handicapped
range. According to the Lovaas study one criterion for “recovery”
is achieving an IQ in the normal range after two to three years in the
program. In the summer of 1996 CM was not showing signs of
“recovery.”
School personnel and the parents met in August 1996 to begin
developing the IEP based on the evaluation reports, the observations,
and the parents’ input regarding CM’s progress in her home
program. A subsequent IEP meeting was held in mid-September at
the parents’ request so that their Lovaas consultant couid attend.
Although the parents and consultant did not reveal this during the
IEP meetings, at this time CM was displaying significant aggressive
behaviors at home in addition to at school. Also the home logs
revealed the mother’s concern that CM had “forgotten a lot of
information. Much of what she learned was never generalized
completely.” In addition, a questionnaire completed by CM’s
preschool teachers at the mother’s request showed that many of the
skills that the Lovaas therapist claimed CM had mastered in
6
December 1995 were still a problem for CM at the end of the 1995-
96 school year.
Ata final IEP meeting on September 23, 1996, the parents and
school personne! all agreed that the goals and objectives on the IEP
were appropriate. The parents continued to request that the school
system pay for their home Lovaas program. Both parents testified
that the only program they would have accepted for CM was the
Lovaas program. School personnel considered the parents’ request
but believed that the school system’s proposed program was more
appropriate. The school staff were concerned that the home program
was too intensive, requiring that CM undergo therapy for more than
40 hours a week. They also believed that the constant one-on-one
instruction caused CM to become too dependent on adults and that
CM’s social and communication skills were not being effectively
developed.
Petitioners filed a petition for a contested case in the Office of
Administrative Hearings on November 1, 1996, claiming that
Respondent Henderson County Board of Education (HCBE),
violated the requirements of IDEA, by failing to offer an appropriate
educational program to CM from November 1993 to the present.
Petitioners sought reimbursement for the cost of their in-home
program and part-time private school services provided to CM from
November 1993 through the 1996-97 school year.
The administrative law judge (ALJ) granted Respondent’s
motion for summary judgment on all of Petitioners’ procedural and
substantive claims prior to the development of the 1996-97 IEP
based on a failure to file these claims within the statutory limit and
laches. An 18-day trial was conducted before another ALJ in the
spring of 1997. The judge entered a final decision on December 11,
7
1997, concluding that HCBE’s proposed IEP for 1996-97 was
appropriate.
Petitioners appealed to the State Review Officer (SRO). The
SRO entered a decision on March 4, 1998, concluding that the
Henderson County Schools had offered CM a free and appropriate
public education and affirming all prior decisions of the ALJs.
B. Disposition of CM in the District Court
On April 3, 1998, Petitioners filed a 50-page complaint in
federal district court seeking to overturn the decisions of the ALJ
and SRO and claiming violations of the Americans with Disabilities
Act (ADA), § 504 of the Rehabilitation Act and § 1983 of the Civil
Rights Act and seeking a review of the educational programs for the
1997-98 and 1998-99 school years.
The district court dismissed Petitioners’ entire complaint in an
Order dated January 4, 1999. However, after reconsideration and by
Order dated March 9, 1999, the Court sua sponte vacated the
January 4, 1999 decision as erroneous as a matter of law and
established a timetable leading to a plenary hearing on May 14,
1999, at which the parties were given an opportunity to address all
pre-trial motions before the Court.
On June 15, 1999, the district court entered a new Order
dismissing: Petitioners’ claims under § 504, the ADA and § 1983;
all Petitioners’ claims against individual defendants; and Petitioners’
IDEA claims for the 1997-98 and 1998-99 school years. The court
also affirmed the decisions of the ALJ to dismiss the IDEA claims
for the 1993-94, 1994-95, and 1995-96 school years.
8
The district court entered a final Order on October 12, 1999,
dismissing Petitioners’ only remaining claim, the IDEA claim
regarding the 1996-97 school year. In this October 12, 1999 Order,
the court affirmed the decisions of the ALJ and SRO, concluded that
HCBE offered CM a free appropriate public education for the 1996-
97 school year, and dismissed Petitioners’ entire complaint with
prejudice.
C. Factual and Administrative Background of M.E.
P.E. and M.E. moved to Buncombe County, North Carolina in
1995. However, they did not inform the school system that they
were residing within the system until March |, 1996. In order to
continue C.E.’s Lovaas therapy, a therapist from Baltimore,
Maryland accompanied the family to Buncombe County. C.E.’s
therapy was administered by the therapist for 30 to 35 hours a week,
50 weeks a year.
In his first correspondence with Respondent Buncombe County
Board of Education (“Buncombe County Schools” and “school
system”), P.E., the father of C.E. and the attorney of record in the
administrative proceedings below, did not request special education
services for C.E. Instead, P.E. requested “reimbursement” for on-
going therapy services. The Buncombe County Schools treated
P.E.’s initial letter as a referral for special education services.
Over the next year and a half, Buncombe County Schools
offered P.E. and M.E. numerous individualized education plans for
C.E. In May of 1996, the school system offered a program of at
least 20 hours per week of direct special education including one-on-
one instruction. Yet, the only program acceptable to the Petitioners
was Lovaas. In fact, M.E. stated that she would reject a program
9
with acomparable amount of in-home, one-on-one instruction based
on the TEACCH method.
In February of 1997, school officials wrote to the parents asking
them to notify Buncombe County Schools if the individualized
education plan already given for C.E. was acceptable because
additional personnel would be needed to implement the program.
The parents never responded and no negotiations between the
parents and Buncombe County Schools regarding services took
place after February of 1997.
On June 12, 1997, C.E.’s IEP team determined that ‘ie no longer
qualified for services. Team members and M.E. and P.E. agreed
with the decision and another attorney who accompanied the parents
to the meeting was given a copy of the Handbook on Parents’ Rights
containing notice of North Carolina’s 60-day statute of limitations
for filing due process petitions in the Office of Administrative
Hearings (OAH). Although the parents later alleged C.E. was
denied an appropriate education from March of 1996 until June of
1997, they never instituted proceedings to challenge the school
system’s proposed program during the time period when C.E. was
eligible to receive services.
On July 29, 1997, P.E. wrote the school system another letter
demanding reimbursement for the cost of C.E.’s therapy. He
concluded, “[i]f you have not provided a written response to me
within ten days from the date of this letter, we will immediately
proceed to a due process hearing.” In response, the attorney for
Buncombe County Schools wrote to P.E. on two separate occasions:
on August 7, 1997 to inform P.E. of changes in the notice
requirements to schools under IDEA, and on August 8, 1997 to make
a counteroffer thereby rejecting the July 29, 1997 demand. P.E.
never responded to the August 8, 1997 letter and he filed for due
10
process on April 22, 1998, 257 days after his settlement demand had
been rejected. To file the petition on behalf of C.E., P.E. completed
a one-page form provided by OAH and attached a copy of his July
27, 1997 letter.
As of the August 8, 1997 date of the school system’s rejection
of his demand, P.E. had actual knowledge of North Carolina’s 60-
day statute of limitations for filing due process petitions under
IDEA. P.-E. is the attorney of record in the CM case, and by order
dated March 24, 1997, the ALJ in that case dismissed certain claims
asserted by the parents for failure to meet the 60-day statute of
limitations. Following a hearing on the school system’s motion for
summary judgment, the ALJ in ME. ruled that P.E. had actual
knowledge and written notice of the 60-day time limit and failed to
comply. The ALJ dismissed the petition in its entirety. Remarkably,
in the parents’ principal brief before the Fourth Circuit, P.E.’s
attorney represented to the court that if M.E. and P.E. had known
about the 60-day statute P.E. would have filed within the time
allowed.
D. Disposition of M.E. in the District Court
On December 17, 1999, the district court issued its opinion in
ME. on cross motions for summary judgment and dismissed the
action due to the parents’ failure to file their original petition in the
first-tier state administrative process under IDEA within the
prescribed time limit. In the district court action, the only factual
issue for resolution was whether the parents had timely filed for due
process.
After ruling that the petition was not timely filed, the court
discussed the parents’ argument that a 60-day statute of limitations
is too short and conflicts with the purposes underlying the IDEA.
Since IDEA does not contain a statute of limitations, the court ruled
that the 60-day statute applied by the ALJ was the most analogous
State statute. The court then ruled that application of the statute did
not conflict with the purposes underlying IDEA and that a 60-day
filing period is not so prohibitively short within the context of
administrative due process that it undermines the ability of parents
to protect their disabled children’s educational rights. Moreover,
school systems do have a legitimate interest in the speedy resolution
of disputes in order to ascertain the necessary expenditure of funds
for ail students. Although not dispositive, the court stated that the
father, P.E., was an attorney who purported to specialize in
education law and the parents were represented throughout the entire
proceedings, including negotiations for services and settlement
discussions. Finally, the district court held that dismissal was within
the discretion of the ALJ because Congress left to the States the
procedural mechanism for compliance with IDEA.
E. Decision of the Fourth Circuit Court of
Appeals
Both sets of Petitioners appealed to the Fourth Circuit. On June
13, 2000, the court granted the motion of The State of North
Carolina to intervene in ME. On June 14, 2000, the court granted
the motion of The State of North Carolina to intervene in CM. On
July 11, 2000, the Fourth Circuit Court of Appeals set the instant
cases for oral argument in seriatim and on December 22, 2000, the
court consolidated the cases for further action.
In a single opinion issued on February 21, 2001, a Fourth
Circuit panel held that the 60-day statute of limitations borrowed by
the district court was consistent with the federal policies behind the
IDEA and did not frustrate its goals. However, the court found in
favor of these Petitioners and ruled that neither set of them had been
12
properly notified of a final decision by the school system rejecting
their requests for reimbursement. Therefore, the 60-day statute of
limitations at issue had not been triggered and did not apply to either
case. The Court of Appeals remanded the case for further
proceedings consistent with its holding. Rather than take advantage
of the decision in their favor and have their cases heard on remand,
Petitioners petitioned this Court for certiorari on an issue which is
not in controversy in these cases and has no bearing on their ability
to have their cases decided on the merits.
_ REASONS WHY THE PETITION
SHOULD BE DENIED
The Court should deny the Petition for a Writ of Certiorari
because there is no case or controversy involving these Petitioners
at this time. The court below did not apply North Carolina’s statute
of limitations against Petitioners based on its strict application of
State notice requirements. Thus, these Petitioners are not aggrieved.
In the alternative, review by this Court is not warranted on the basis
of a purported split in authority. The Fourth Circuit’s ruling is not
in conflict with the Eighth Circuit’s decision, the only case cited by
Petitioners for this proposition. Nor is the ruling in conflict with any
relevant decisions of this Court or with federal IDEA policy. As the
Fourth Circuit’s ruling was proper in all respects, Respondents
respectfully urge this Honorable Court to deny the Petition for Writ
of Certiorari.
I. PETITIONERS ARE NOT AGGRIEVED, FOR THE
REASON THAT THE CHALLENGED STATUTE
WAS NOT APPLIED TO THEM.
Article III of the United States Constitution requires that the
jurisdiction of the United States Supreme Court be limited to actual
13
cases or controversies. U.S. CONST. art. III, § 2. Article III further
denies federal courts the "power to decide questions that cannot
affect the rights of litigants in the case before them." North
Carolina v. Rice, 404 U.S. 244, 246, 92 S. Ct. 402, 404, 30 L. Ed. 2d
413,415 (1971). Additonally, this Court has offered that in order to
meet the case or controversy requirement of Article III, the party
invoking the jurisdiction of this Court must have standing to bring
the matter before the Court. Lujan v. Defenders of Wildlife, 504 U.S.
555, 560, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351, 363-64 (1992).
There are three elements an aggrieved party must meet to establish
the minimum constitutional standing requirements:
First, the plaintiff must have suffered an “injury in fact” --
an invasion of a legally protected interest which is (a)
concrete and particularized, and (b) actual or imminent,
not ‘conjectural’ or ‘hypothetical’. Second, there must be a
causal connection between the injury and the conduct
complained of -- the injury has to be “fairly . . . trace[able]
- to the challenged action of the defendant, and not . . . the
result [of] the independent action of some third party not
before the court.” Third, it must be “likely,” as opposed
to merely “speculative,” that the injury will be “redressed
by a favorable decision.”
Id. at 560-61, 112 S. Ct. at 2136, 119 L. Ed. 2d at 364 (citations
omitted). A party seeking remedial action from this Court must have
suffered the specific injury he seeks to have redressed by this Court.
See Virginia v. American Bookseller's Ass'n, Inc., 484 U.S. 383,
392, 108 S. Ct. 636, 642, 98 L. Ed. 2d 782, 793 (1988).
As a result of the Fourth Circuit’s conclusion that the
Petitioners in both cases were not properly notified of the school
14
system’s conclusive decision regarding: reimbursement of
educational expenses, the U0-day statute of limitations does not bar
Petitioners from litigating the merits of their case in the proper
federal district court or administrative forum. In light of this holding
Petitioners are now free to bring their claims for reimbursement,
thereby ensuring that they have their cases heard on the merits.
With this procedural bar removed, Petitioners cannot now argue that
they have sustained a concrete and particularized harm as a result of
the 60-day statute of limitations period. There is no form of redress
that this Court may now provide to Petitioners that they have not
already received from the Fourth Circuit Court of Appeals.
If this Court were to render an opinion in this matter, despite
the fact that these Petitioners have not sustained an injury in fact, it
would be an advisory opinion. This Court has made it clear that a
request for an advisory opinion from a federal court, such as
Petitioners make to this Court, does not present a justiciable issue.
In Barr v. Matteo, 355 U.S. 171, 78 S. Ct. 204, 2 L. Ed. 2d 179
(1957), the Court stated:
[A]n advisory opinion cannot be extracted from a federal
court by agreement of the parties, . . . and no matter how
much they may favor the settlement of an important
question of constitutional law, broad considerations of
appropriate exercise of judicial power prevent such
determinations unless actually compelled by the
litigation before the Court. ... Many of the same reasons
are present which impel them to abstain from adjudicating
constitutional claims against a statute before it effectively
and presently impinges on such claims.
Id. at 172, 78 S. Ct. at 205-06, 2 L. Ed. 2d at 181 (emphasis added)
(citations omitted) (internal quotation marks omitted) (citing Eccles
a i 8
15
v. Peoples Bank, 333 U.S. 426, 432, 68 S. Ct. 641, 645, 92 L. Ed.
784, 789 (1948)). Because there is no actual live controversy or an
injury in fact arising from the 60-day statute of limitations, the
Petition should be denied.
Il. THERE IS NO CONFLICT IN THE CIRCUIT
OPINIONS AND THE CHALLENGED STATUTE
COMPORTS WITH EXISTING LAW AND
POLICIES UNDER IDEA.
A. The Fourth Circuit’s ruling is not in conflict with
Birmingham by Birmingham v. Omaha School
District, 220 F.3d 850 (8th Cir. 2000), or-with any
relevant decision of this Court.
1. Unlike Birmingham, these cases concern the
time period for initiation of an
administrative hearing.
The filing period at issue here is the time for initiating an
administrative due process hearing. In these cases, the court upheld
the limitations period specifically adopted by the North Carolina
General Assembly for the initiation of due process before the State’s
Office of Administrative Hearings (OAH) pursuant to IDEA. The
“petition” required to begin due process in North Caroliaa is a one-
page document that can be mailed to OAH. IDEA requires the
States to provide such a hearing for parents who disagree with a
school decision about a child’s special education. 20 U.S.C. §
1415(f).' The Eighth Circuit’s opinion in Birmingham, on the other
hand, established the appropriate limitations period for filing of
' Allreference to IDEA in this Brief are to the reauthorized Act of 1997.
16
Original action in federal district court in Arkansas following the
exhaustion of State administrative remedies. 20 U.S.C. § 1415(i)(2).
Since Congress has elected in IDEA not to legislate the time
limit for either type of filing, it is not surprising that, when looking
to the procedural law in the various states for the most analogous
State statutes of limitation, federal courts have borrowed limitations
periods of different lengths. It is likewise unremarkable, let alone
indicative of a circuit conflict, that limitations period borrowed by
the Fourth Circuit for an administrative hearing in North Carolina
differs in length from a limitations period borrowed by the Eighth
Circuit for a judicial filing in Arkansas. Such differences exist
whenever federal courts must “borrow” from analogous State
procedures, given the variety among the States. As in the present
case, such differences usually do not reflect actual conflicts.
2. Unlike the procedures of the shorter
Arkansas statute rejected by the Eighth
Circuit Court of Appeals in
Birmingham, the standard of review,
scope of review and _ evidentiary
procedures for a due process hearing in
North Carolina are all consistent with
IDEA.
The issues for due process under North Carolina law are: 1)
the identification of a child with special needs; 2) the
appropriateness of an IEP; 3) the implementation of an IEP; and 4)
all other issues relating to whether or not the child is receiving a
free, appropriate education. N.C.G.S. § 115C-116(c).? Discovery is
2 All references to the North Carolina General Statutes are to the 2000
compilation of the State code. The 60-day statute of limitations in its
17
permitted prior to a hearing on the merits, and the ALJ rules on all
issues without limitation. N.C.G.S. § 115C-116(c) and § 150B-28.
The scope of review for due process under North Carolina law and
is de novo.
The Eighth Circuit panel in Birmingham rejected a 30-day
statute of limitations for judicial review borrowed by the lower court
from the Arkansas Administrative Procedures Act because the
“AAPA is not closely analogous to the IDEA.” Unlike North
Carolina law pertaining to administrative actions pursuant to IDEA,
review under the Arkansas APA is limited to a review of the agency
record without additional discovery, and the relief available is
limited to affirming, reversing or modifying the State agency’s
actions. Birmingham, 220 F.3d at 854.
The North Carolina Administrative Procedure Act (APA)
establishes a 60-day statute of limitations for contested case filings
by aggrieved parties receiving notice of an agency decision and
written notice of that time limit. N.C.G.S. § 150B-23(f). The North
_ Carolina General Assembly has expressly adopted this statute of
limitations for disputes regarding the provision of educational
services to students with disabilities. N.C.G.S. § 115C-116(d). The
Fourth Circuit upheld that limitations period, emphasizing that North
Carolina “courts would not countenance any departure from, or
relaxation of, statutory [notice] requirements.” Pet. App. at 20.
The current version of the North Carolina APA contains one
basic statute of limitations: “Unless another statute or federal
statute or regulation sets a time limitation for the filing of a petition
in contested cases against a specified agency, the general limitation
for the filing of a petition in a contested case is 60 days.” N.C.G.S.
present form has applied in North Carolina for more than 10 years.
18
§ 150B-23(f) (emphasis added).’ Thus, if IDEA contained a
limitations period for due process filings, North Carolina would use
that period. In enacting the IDEA, however, Congress elected to be
silent on the issue. In fact, Congress explicitly delegated to states
the obligation to develop an administrative hearing process and
submit a compliance plan to the Department of Education for
approval. North Carolina, unlike many other states, has adopted a
directly applicable statute of limitations for IDEA administrative
claims pursuant to its delegated authority from Congress and under
the supervision of the federal agency charged with monitoring dtate
compliance with federal law.‘
That IDEA does not contain a statute of limitations, 20 U.S.C.
§ 1415(e)(2), is not unusual. “Congress not infrequently fails to
supply an express statute of limitations when it creates a federal
cause of action. When that occurs, ‘[w]e have generally concluded
* Respondents note that the North Carolina 60-day statute is longer than
many limitation periods now engrafted onto the IDEA by federal case law
from those (see cases in note 3). In addition, other grievants in N.C.
administrative proceedings have shorter time limits for filing contested
cases. For example, personnel and employment-related contested cases
heard in the Office of Administrative Hearings have a 30-day statute of
limitations. N.C.G.S. § 126-38 (applying to career employees) and § 126-
7.2 (applying to non-career employees and applicants). This 30-day limit
also applies to certain cases involving disability discrimination in
employment, e.g., N.C.G.S. §§ 126-34.1(a)(2), -34.1(b)(3), -36.
* Compare 20 U.S.C. § 1412(a) (stating that “[a] state is eligible for
assistance under this part for a fiscal year if the State demonstrates to the
satisfaction of the Secretary that the State has in effect policies and
procedures to ensure that it meets” with § 1415(f) “Impartial Due Process
Hearing” (requiring that parents “shall have an opportunity for an impartial
due process hearing, which shall be conducted by the State educational
agency or by the local educational agency, as determined by State law or
by the State educational agency.”) (emphasis added).
19
that Congress intended that the courts apply the most closely
analogous statute of limitations under state law.’” Reed v. United
Transp. Union, 488 U.S. 319, 323, 109 S. Ct. 621, 625, 102 L. Ed.
2d 665, 673-74 (1989) (citation omitted). In the context of IDEA
actions, courts have stressed that borrowing a limitations period is
mandatory. “[F]ederal courts must adhere to the ‘borrowing’
doctrine, which requires a federal court to borrow from the state the
most analogous state statute of limitation.” Kirkpatrick v. Lenoir
County Bd. of Educ., 216 F.3d 380, 386 (4th Cir. 2000) (emphasis
added).
The Fourth Circuit properly employed a two-step analysis in
evaluating the most appropriate statute of limitations for borrowing
in this case, with some appropriate deference shown to the State.
Pet. App. at 22. Once a court has selected the most closely
analogous state cause of action, the second step requires a court to
“defer [under principles of federalism] to the state’s judgment about
how to balance the need to enforce the statute with the need to weed
out stale claims, by borrowing the statute of limitations for the most
closely analogous state cause of action, unless that statute would
frustrate the purposes of the federal statute on which the claim is
based.” Aaron v. Brown Group, Inc., 80 F.3d 1220, 1223 (8th Cir.),
cert. denied, 519 U.S. 950, 117 S. Ct. 361, 136 L. Ed. 2d 252 (1996).
“[B]y adopting the statute [of limitations] governing an analogous
cause of action under state law, federal law incorporates the
State’s judgment on the proper balance between the policies of
repose and the substantive policies of enforcement embodied in the
State cause of action.” Janzen v. Knox City Bd. of Educ., 790 F.2d
484, 489 (6th Cir. 1986) (emphasis added) (citing Wilson v. Garcia,
471 U.S. 261, 271, 105 S. Ct. 1938, 1944, 85 L. Ed. 2d 254, 263
(1985)).
20
As noted by the Fourth Circuit, “[lJogic virtually compels the
conclusion that a state special education statute, specifically enacted
to comply with the IDEA, like N.C. Gen. Stat. § 115C-i16,
constitutes the state statute most analogous to the IDEA.” Pet. App.
at 12. That same statute provides to parents a due process hearing
on the widest conceivable variety of issues including the
identification or misidentification of a child as a child with special
needs; the appropriateness of a child’s IEP; the failure to implement
an IEP; and the denial of an appropriate education. N.C.G.S. §
115C-116(c) and (e). This wide scope of review under North
Carolina’s statute further distinguishes this case from Birmingham,
in which the scope of review under Arkansas law.
This case is also distinguishable on the bases of standard of
review and evidence before the reviewing administrative officer.
Unlike the hearing provided for by the judicial review statute
rejected in Birmingham, the due process hearing in North Carolina
is not only a de novo review as to a broad variety of special
education issues but it is also a full evidentiary trial. N.C.G.S. §§
115C-116(d); 150B-25(c) and (d) (opportunity to present evidence,
cross-examine any witness, submit rebuttal evidence); 150B-27
(subpoenas of witnesses); 150B-28 (depositions and full discovery
under the standard rules of civil procedure); 150B-29 (documentary
evidence a part of the record); and 150B-33 (conduct of pre-trial
matters and hearings).
B. The Fourth Circuit’s ruling is consistent with
the decisions from many other federal courts
analyzing fundamental IDEA policies.
The Fourth Circuit correctly found North Carolina’s scheme
consistent with IDEA. Pet. App. at 13-22. North Carolina is in the
mainstream in utilizing its own APA as the source of the limitations
21
period, as is abundantly illustrated by other federal cases. In
determining the most analogous limitations period for purposes of
filing judicial actions under the IDEA, for example, numerous
federal courts similarly “have concluded that the state administrative
procedure laws are most analogous to the federal claims possible
under IDEA and that the ‘short’ limitations periods found within
such laws are consistent with the IDEA’s goals of prompt
resolution of disputes over the education of children with
disabilities.”’ Although the borrowed short time periods for IDEA
> See, e. g., Birmingham, \7 F. Supp. 2d at 863 (applying Arkansas’ 30-
day period) (citing Cleveland Heights-University Heights City Sch. Dist. v.
Boss, 144 F.3d 391, 396-97 (6th Cir. 1998) (applying Ohio’s 45-day
statute), aff'd in part and rev'd in part, 220 F.3d 850 (2000)(preferring a
longer statute under its facts); Zipperer v. School Bd. of Seminole County,
111 F.3d 847, 850-52 (11th Cir. 1997) (saying in dicta it would likely adopt
30-day period for appeal in administrative proceedings); Livingston Sch.
Dist. v. Keenan, 82 F.3d 912, 914-15 (9th Cir. 1996) (applying Montana’s
30-day limitation); Powers v. Indiana Dep't of Educ., 61 F.3d 552, 554-59
(7th Cir. 1995) (applying Indiana’s 30-day period); Amann v. Town of Stow,
991 F.2d 929, 931-34 (Ist Cir. 1993) (applying Massachusetts’ 30-day
limit); and Adler v. Education Dep't of N.Y., 760 F.2d 454, 455-60 (2d Cir.
1985) (applying NY’s 120-day statute)). See also Providence Sch. Dep't
v. Ana C., 108 F.3d 1 (Ist Cir. 1997) (applying Rhode Island’s 30-day
statute); Dell v. Board of Educ., 32 F. 3d 1053, 1060 (7th Cir. 1994)
(applying Illinois 120-day statute); Spiegler v. District of Columbia, 866
F.2d 461 (D.C. Cir. 1989) (applying 30-day statute); Department of Educ.
v. Carl D., 695 F.2d 1154 (9th Cir. 1983) (30 days); L.C. and K.C. v. Utah
State Bd. of Educ., 57 F. Supp. 2d 1214 (D. Utah 1999) (30 days); Wagner
v. Logansport Community Sch. Corp., 990 F. Supp. 1099 (N.D. Ind. 1997)
(30 days); Berkowitz by Berkowitz v. New York City Bd. of Educ., 921 F.
Supp. 963 (E.D.N.Y. 1996) (120 days); Herbert v. Manchester, 833 F.
Supp. 80 (D.N.H. 1993) (30 days); Wills v. Ferrandino, 830 F. Supp. 116
(D. Conn. 1993) (45 days); Elizabeth K. v. Warrick County, 795 F. Supp.
881 (S.D. Ind. 1992) (30 days); Gertel v. School Comm., 783 F. Supp. 701
(D. Mass. 1992) (30 days); /.D. v. Westmoreland Sch. Dist., 788 F. Supp.
632 (D.N.H. 1991) (30 days); Bow Sch. Dist. v. Quentin W., 750 F. Supp.
546 (D.N.H. 1990) (same); Thomas v. Staats, 633 F. Supp. 797 (S.D. W.
Va. 1985) (120 days).
99
sd
filings in court range from 30 to 45 to 120 days (see note 5), such
inconsistency arises directly from the congressional decision not to
legislate a uniform statute of limitations for the IDEA.
Finally, Congress is presumed to be aware of federal case law
as it impacts on the interpretation of federal statutes. And in re-
authorizing IDEA in 1997, without adding a statute of limitations to
the Act, Congress implicitly approved the numerous holdings
regarding short statutes of limitations. The courts have also noted
that such surface “‘inconsistency [is} probably attributable to the
fact-based analysis and the variety of state causes of action to
evaluate.”” S.V. v. Sherwood Sch. Dist., 75 F. Supp. 2d 1153, 1158
(D. Or. 1999) (quoting Dreher v. Amphitheater Unified Sch. Dist.,
22 F.3d 228, 231 n.4 (9th Cir. 1993)).
C. The Fourth Circuit’s ruling properly
considers and attempts to account for all
relevant federal policies, rather than one
single policy.
North Carolina’s 60-day time period for filing a due process
petition is clearly consistent with federal policies under the IDEA,
as repeatedly underscored in the case law deemed by the Fourth
Circuit to be “[t]he better-reasoned cases.” Pet. App. at 16. As
observed by the court below, “[t]he Act’s intent would obviously be
thwarted if placement decisions were not carried out until after a
child could benefit from those placements.” Pet. App. 13-14.
Petitioners assert that certiorari should be granted “to correct
the misapplication of the unconscionably short statute of limitations
which clearly undermines the underlying policy of the IDEA.” Pet.
at 15. First, the Fourth Circuit did not apply the 60-day statute in
these cases (see Argument |). Second, there is no single policy
23
underlying IDEA, and the various policies are in some tension. The
Fourth Circuit's opinion scrupulously examined the important
interests served by IDEA, Pet. App. at 13-16, as well as the resulting
policy tensions, and correctly concluded on balance that North
Carolina's due process scheme is consistent with the IDEA.
Some cases, it is true, emphasize promptness in decision-
making as the paramount consideration in selecting the most
analogous limitations period. There is virtue in that emphasis, as
long as it is understood to be non-exclusive. Promptness is indeed
important, as recognized by the Seventh Circuit:
[T]o succeed in safeguarding the student, the IDEA’s
policies encourage the prompt, rather than protracted,
resolution of disputes concerning the disabled student’s
education. See 121 Cong. Rec. 37416, 94th Cong., Ist
Sess. (Nov. 19, 1975) (statement in final Senate debate by
Senator Williams, the principal author of the bill, Stating
that delay in resolving education matters is detrimental to
the development of a handicapped child). The statute
establishes expeditious administrative reviews: a due
process hearing conducted within 45 days of the request,
and a review of that decision within 30 days of the request.
See § 1415(b) & (c); 34 C.F.R. § 300.512(a) & (b). ...
Moreover, because delay in the resolution of any
proceedings brought under § 1415 can delay a change in
the child’s educational program, see 20 U.S.C. §
1415(e)(3), n 17, a short limitations period is consistent
with the IDEA’s goal of prompt resolution of disputes
and proper placement of the child.
... Congress quite clearly intended that “all hearings
and reviews conducted pursuant to [the IDEA] be
24
commenced and disposed of as quickly as practicable.”
121 Cong. Rec. 37416 (1975) (statement of the
legislation’s principal author, Senator Williams). The
IDEA clearly reflects a goal of avoiding delay in
resolving education questions and in meeting the
educational needs of the disabled child.
Dell v. Board of Educ., 32 F.3d 1053, 1060 (7th Cir. 1994)
(emphasis added).
One reservation about borrowing “short” statutes of limitations
which appears in a handful of IDEA cases is a concern that
unrepresented parties might be disadvantaged or otherwise
unprotected against default on the ground of a procedural
technicality such as a short limitations period of which they “may be
unaware.” Schimmel v. Spillane, 819 F.2d 477, 482 (4th Cir. 1987)
(adding that it was “not clear” to the court, from its reading of the
predecessor statute to IDEA, that the Act imposed a duty to give
notice to parents of the applicable statute of limitations). However,
in North Carolina the 60-day limitation period only applies if the
grievant is given written notice thereof. N.C.G.S. § 150B-23(f).
And, finding that Petitioners did not have such notice, the Fourth
Circuit held this statute of limitations could not be invoked against
them under the facts in these two cases. Pet. App. at 29.
Other cases evincing concern over a short limitations period
have stressed another federal policy, that of parent participation in
educational planning. Nothing about North Carolina’s 60-day
limitations impedes that important participation or a parent’s right
to contest amy school decision regarding identification, the
appropriateness of an IEP, the implementation of an IEP or an
educational program, made at any stage in the process of evaluating,
determining eligibility, developing IEPs, placing the child, or
reviewing problems with services for the child as they arise.
25
Parents themselves must recognize the importance of providing
the earliest possible, undelayed services to children with special
needs, which is a clear theme in the congressional history. See, e. g..
remarks of Senator Schweiker (“much more could be done at an
earlier age to ameliorate, alter, or develop skills to compersate for,
certain handicapping conditions”) at 121 Cong. Rec. 19504 (June
1975). By means of its 60-day statute, the State of North Carolina
has made the considered judgment that disabled children’s education
rights are best protected when decisions are made as promptly as
possible with respect to the appropriateness of an IEP offered by a
school district. That judgment is supportable because IDEA is,
when all is said and done, most about the proper educational
placement of each eligible child.
A shorter limitations period clearly serves the goal of resolving
disputes “while a remedy is still available” within the school
district’s purview and before the child might lose ground. Gertel v.
School Comm. of Brookline Sch. Dist., 783 F. Supp. 701, 706 (D.
Mass. 1992). “The Act’s requirement of periodic and individualized
assessments of each handicapped child evinces a recognition that
children, particularly young children, develop quickly and that a
placement decision that may have been appropriate a year [or less]
ago may no longer be appropriate today.” Spiegler v. District of
Columbia, 866 F.2d 461, 466 (D.C. Cir. 1989).
D. There is no conflict with OSEP’s letter
rulings.
Petitioners take the further position that it is “significant” that
OSEP “has also twice ruled that a 60 day statute of limitations is
unenforceable under the IDEA.” Pet. at 12. Those short letter
rulings, commenting on proposed state legislation in two states, are
inapposite. Petitioners’ argument disregards the salient differences
Se na aT ROE Oe ee ee eS
26
between the facts responded to in the Raskin and Pawlisch letters,
implicating a one-time, absolute and close-ended 60-day period, and
the facts in Petitioners’ cases, implicating no such restrictions.®° A
second problem is that the 1991 OSEP letter, on which the 1997
® The Raskin letter (1991) (see Respondents’ Appendix at 85a)
commented on proposed legislation in New Hampshire which would have
limited any request for due process to the period within 60 days from “the
date parents must sign the documents indicating their assent to” IEPs.
OSERS noted that such a restriction conflicted with IDEA’s grant to parents
of the right to contest “any matter relating to the identification, evaluation,
or educational placement of the child, or the provision of a free appropriate
education to such child.” OSERS rightly saw a conflict between the New
Hampshire legislation and 20 U.S.C. § 1415(b)(1)(E) and 34 CFR §
300.506 “[s]ince we can envision many situations in which this 60-day
limitation would not be reasonable, e.g., problems with the IEP that would
not be apparent until much further into the school year.”
There is absolutely no such conflict between IDEA, its regulations and
the existing statutes in North Carolina, as N.C.G.S.§ 115C-116(c) gives
parents the right to obtain review in due process of decisions with which
they disagree at any time throughout the year, not just within 60 days of the
finalization of a particular IEP. Unlike the proposed New Hampshire
legislation, in North Carolina all decisions regarding identification, IEP
content, IEP implementation, or other denial of appropriate education are
grievable under § 115C-116(c), consistent with IDEA. The 60-day period
begins to run anew in North Carolina at any time the district makes a final
decision with which the parents disagree; the 60 days does not only begin
to run at the time of a meeting for signing the IEP as under the New
Hampshire statute.
The Pawlisch letter (1997) (see Respondents’ Appendix at 89a)
commented on proposed legislation in Wisconsin and observed merely that
“OSEP previously indicated in a letter to Raskin, OSEP 1991, that a 60-day
time limit in filing due process requests which had been proposed in New
Hampshire would be an unreasonable limitation upon Federal law.” The
1997 letter appears to overlook the peculiar features of the New Hampshire
legislation which made it objectionable. In any event, there is nothing
about OSEP’s comments in either of these letters which suggests that the
60-day limitation as enacted and applied in North Carolina offends federal
law or policies; and Petitioners have not shown otherwise.
27
letter relies without analysis, pre-dates the reauthorized IDEA,
An even more fundamental problem with any argument based
on the Raskin and Pawlisch letters, however, is that federal courts do
not defer to agency interpretation of federal law when the agency’s
interpretation would alter the express intent of Congress. See, e.g.,
K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S. Ct. 1811,
1817, 100 L. Ed. 2d 313, 324 (1988). An agency’s interpretive
guidance is “not controlling upon the courts by reason of their
authority.” Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65, 106 S. Ct.
2399, 2404, 91 L. Ed. 2d 49, 58 (1986). Similarly, this Court has
quite recently reiterated that an agenay’s letter ruling “has no claim
to judicial deference” under the Chevron doctrine, where there is “no
indication that Congress intended such a ruling to carry the force of
law.” United States v. Mead Corp., 533 U.S.__,___, 121 S.Ct.
2164, 2168, = -L. Ed. 2d — , __ (2001). ‘Ill-founded or
misguided agency notions must, then, yield to the well-grounded and
better reasoned contrary judicial interpretation of legislative intent
set out in the decision of the Fourth Circuit in these cases.
28
CONCLUSION
This Petition should be denied for failure to show an actual
controversy and injury in fact of these Petitioners, whose cases have
both been returned by the Fourth Circuit for trial.
In the alternative, this Court should find there is no conflict
between the Fourth Circuit’s decision and decisions of other circuits
or this Court. The Fourth Circuit correctly decided that North
Carolina has properly weighed all the relevant competing policies
embodied in IDEA. The Fourth Circuit’s ruling, upon a careful
balancing of those different policy considerations, is consistent with
the congressional goals of; mutual collaboration between schools
and parents in the identification and evaluation of children and
development of appropriate IEPs; provision of full information
about, and preservation of, all procedural rights; and of prompt
resolution of disputes regarding IEPs and educational programs, to
ensure that young and rapidly developing children with special needs
receive their statutoriiy guaranteed education when they can most
benefit from it. Petitioners have not shown otherwise, and no
countervailing concerns arise under the facts of this case.
For the foregoing reasons, the Petition should be denied.
Respectfully submitted,
*Ann L. Majestic
Tharrington Smith, LLP
Christopher Z. Campbell
Cynthia S. Grady
Roberts & Stevens, PA
July 23, 2001
29
ROY COOPER
Attorney General
Joyce S. Rutledge
Assistant Attorney General
*Counsel of Record
TABLE OF CONTENTS
ME. v. The Buncombe County Bd. of Educ., et al
Civil No. 1:99CV3, Memorandum and Order
of United States District Court for the
Western District of North Carolina
Asheville Division, December 17, 1999 ............... la-l4a
M.E. v. The Board of Educ. for Buncombe County, et al
File No. 98 EDC 0566, Final Decision
of the Office of Administrative Hearings
IIT oa re ee ae rad hk ce a a 1Sa-25a
M.E. v. The Board of Educ., et al
Decision of State Hearing Review
Officer for the State Board of
Education Pursuant to G.S. 115C-116
NE SD FGRe icici Beet oat. FH, 27a-40a
[Parents of CM] v. Henderson County Public Schools
Decision of State Hearing Review
Officer for the State Board of Education
Pursuant to N.C.G.S. 115C-16
a eee ae ag 4la-83a
U.S. Department of Education Letter Opinions
Letter to Ms. Judith Raskin, Executive Director
Parent Information Center
IE a Aik iota, Hisck ig'tess bith es kena packs Wreee Be 85a-88a
U.S. Department of Education Letter Opinions
Letter to Dr. Juanita S. Pawlisch
GOON Ta TOG ii i VARA ATER A 89a-92a
la
IN THE DISTRICT COURT OF THE UNITED
STATES FOR THE WESTERN DISTRICT OF NORTH
CAROLINA ASHEVILLE DIVISION
CIVIL NO. 1 :99CV3
M.E. and P.E., on their behalf
and on behalf of their son, C.E.,
)
)
)
Plaintiffs, )
)
Vs. ) MEMORANDUM
) AND ORDER
)
THE BOARD OF EDUCATION )
FOR BUNCOMBE COUNTY, _)
a/k/a BUNCOMBE COUNTY __)
PUBLIC SCHOOLS, )
)
Defendant. )
THIS MATTER is before the Court on the parties’ cross
motions for summary judgment. For the reasons stated herein,
the Court denies the Plaintiffs’ motion and grants that of the
Defendant.
I. PROCEDURAL HISTORY
ME and PE on behalf of CE, their autistic child, initiated
this action pursuant to the Individuals with Disabilities
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Education Act (IDEA), 20 U.S.C. §§ 1400, et. seg.! 20 U.S.C.
§ 1401 (a)(1 )(A)(i). Plaintiffs claimed the Buncombe County
Board of Education (County) denied a free appropriate public
education (FAPE) to their child, as required by the IDEA. 20
U.S.C. § 1401(a)(18).? On October 10, 1998, Administrative
Law Judge (ALJ) Beecher Gray found the Plaintiffs had failed
to initiate a proceeding for a due process hearing during the 60-
day statute of limitations prescribed by the North Carolina
Administrative Procedure Act, N.C. (Gen. Stat. § 1 S50B-23.
Plaintiffs filed an administrative appeal and State Review
Officer (SRO) J. Sherwood Dunham affirmed the ALJ’s
decision on December 3, 1998. Having exhausted their
administrative remedies, the parents brought this action
pursuant to the IDEA. 20 U.S.C. § 1415(e)(2).
II. STANDARD OF REVIEW
Section 1415(e)(2) of Title 20, United States Code,
provides in pertinent part that in “any action brought under this
[statute] the court shall receive the records of the administrative
* The disorder of autism is defined as a “preoccupation with inner
thoughts,...egocentric, subjective thinking lacking objectivity and
connection with reality.” Dorland 's Medical Dictionary (28th ed. 1994).
? That section defines the term “free appropriate public education” as
“special education and related services that- (A) have been provided at
public expense, under public supervision and direction, and without charge,
(B) meet the standards of the State educational agency, (C) include an
appropriate preschool, elementary, or secondary school education in the
State involved, and (D) are provided in conformity with the individualized
education program required under section 1414(a)5) of this title.”
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proceedings, shall hear additional evidence at the request of a
party, and, basing its decision on the preponderance of the
evidence, shall grant such relief as the court determines is
appropriate.” The parties here have agreed that no hearing is
necessary and that the matter may be determined on the basis
of the motions.
The Supreme Court has held that a proper review of the
state’s determination requires a twofold inquiry. Board of
Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley,
458 U.S. 176, 201 (1982). The district court must decide: (1)
whether the State complied with the IDEA’s procedural
requirements in developing and implementing the
Individualized Education Program (IEP) for the child at issue
and (2) whether the IEP is “reasonably calculated” to enable
that child to receive educational benefits. Id., at 206-07. The
Court also instructed reviewing courts to make “independent
decision[s] based on a preponderance of the evidence.” Jd. The
Fourth Circuit refined this standard in Doyle v. Arlington
County Sch. Bd., 953 F.2d 100 (4th Cir. 1991), where it held
that findings of fact by ALJ’s and hearing officers in IDEA
cases “are entitled to be considered prima facie correct, akin to
the traditional sense of permitting a result to be based on such
fact finding, but not requiring it.” Jd, at 105. In essence,
district courts must “‘make an independent decision based on
a preponderance of the evidence, while.giving due weight to
state administrative proceedings.”” Board of Educ. of
Montgomery County v. Brett Y, 155 F.3d 557 (table), 1998
WL 390553 **5 (4th Cir. 1998) (quoting Doyle, 953 F.2d at
103). As to conclusions of law, the determinations made in the
ta
administrative proceedings are reviewed de novo. Milford Sch.
Dist. v. William F., 129 F.3d 1252 (table), 1997 WL 696108
(1st Cir. 1997); Dell v. Bd. of Educ., T: ownship High Sch.
Dist. 113, 32 F.3d 1053, 1058 (7th Cir. 1994).
It. FINDINGS OF FACT
In August 1995, the Plaintiffs moved from Maryland to
North Carolina. Affidavit of Dr. Jane A. Stephens contained
in Administrative Record. In March 1996, PE contacted the
County to advise that his four year old son had been diagnosed
with autism and to request reimbursement for Lovaas? therapy
which had been provided for the child in their home for
between 35 and 40 hours per week. /d.; Petitioners’ First
Prehearing Statement, contained in AdministrativeRecord.
Dr. Stephens construed the letter as a referral for special
education services and initiated the evaluation process, to
which the Plaintiffs agreed. Stephens Affidavit. The parents
signed a consent for the evaluation and were provided with a
handbook on parental rights. Id.
On May 31, 1996, a meeting was held with the Plaintiffs
at which his proposed placement in a preschool classroom with
* Dr. Ivar Lovaas developed a form of treatment for autistic preschoolers.
“Discrete trial teaching (DTT) is one component of the Lovaas type of
[applied behavioral analysis}and involves a directive followed rapidly with
a consequence based on whether the student gives the correct response.”
TH v. Bd. of Educ. of Palatine Community Consol. Sch. Dist. 15,55
F.Supp.2d 830 (table), 1999 WL 342317 **14 n.8 (N.D. IIL 1999).
Lovaas therapy requires one-on-one instruction, often for as much as 40
hours per week.
Sa
a TEACCH* special education teacher was explained. Jd. The
Plaintiffs rejected this placement and opted to continue the
Lovaas program in their home. Jd. In June 1996, the County
offered to provide Extended School Year services to the child
or to provide in-home services three times per week. Jd. These
services were also rejected by the Plaintiffs by letter dated July
26, 1996. Id.; Petitioners’ First Prehearing Statement,
supra. However, in September 1996, the Plaintiffs elected to
receive limited services in the form of one and one-half hours
of direct special education and speech therapy. Stephens
Affidavit.
In October 1996, the Plaintiffs again asked the County to
consider funding the child’s Lovaas therapy. Petitioners’ First
Prehearing Statement. An IEP meeting was held in early
January 1997 at which time the parents presented a draft IEP
prepared at a Lovaas institution. Jd. At a meeting held on
January 28, 1997, the County proposed its IEP, made minor
modifications as requested by the Plaintiffs and asked them to
notify the County if the IEP was accepted because it would
entail the hiring of additional staff. Jd. In February 1997, the
attorney for the County wrote to the Plaintiffs and again asked
them to respond if they wished to implement the IEP. Jd. No
response was received to this letter. Plaintiffs admit that the
IEP was never implemented because they rejected it. Id.
Thereafter, the County sent the Plaintiffs an “Invitation to
Conference” letter to discuss whether the child would be placed
* Treatment and Education of Autistic and Related Communication
Handicapped Children program.
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in kindergarten. Stephens Affidavit. The Plaintiffsattendedthe
meeting and asked that the child's record be sealed. Id. A
follow-up meeting was set for June of 1997 at which time it
was determined the child no longer needed specia! education
services. Id. He was removed from the program and the
parents were again provided with a copy of the Handbook for
Parents’ Rights. Jd. On July 29, 1997, the Plaintiffs renewed
their request-for reimbursement for the Lovaas therapy and
threatened to initiate a due process petition in the event a
response was not received within ten days. Id. By letter of
August 7, 1997, the County declined to reimburse the Plaintiffs
for the full amount demanded and advised that a counteroffer
could not be proposed until approval was received from the
school board. Jd. The County attorney wrote:
Your letter states that we must respond to your offer
within ten (10) days or you will proceed immediately
to due process. You, of course, have the right to file a
due process petition at any time, however, the reality
of school systems requires that the governing board be
consulted and that process takes time. If you proceed
to due process, please be aware that the IDEA was
reauthorized by Congress in June and the new law
contains new notice provisions and provisions
regarding attorneys’ fees that are now in effect. I am
including a copy of the law in order to provide you
with notice of these provisions. In addition, the North
Carolina General Assembly has amended the
mediation provisions of state law and I have included
a copy of that legislation.
7a
Exhibit E, attached to Stephens Affidavit. The amendment to
which the attorney referred concerned new notice provisions
for filing a due process petition. The Plaintiffs filed a petition
for due process in April 1998. Id.
Stephen Grabenstein represented the Plaintiffs daring an
undisclosed portion of these proceedings. He has acknowledged
in an affidavit that he attended at least one IEP meeting with
the Plaintiffs at which he was provided the Handbook of
Parents’ Rights. Second Affidavit of Stephen J. Grabenstein,
Esquire, contained in Administrative Record. Inside the
front cover of that book was placed an addendum which
provided notification that a petition for a due process hearing
must be filed within 60 days of written notice of the contested
action. Id.
IV. DISCUSSION
The only factual issue for resolution is whether the
Plaintiffs have shown by a preponderance of the evidence that
their petition for due process was timely filed. The first
argument made by the Plaintiffs is that the County waived the
60-day statute of limitations. This argument is based on the
language in the County attorney’s letter to the effect that the
Plaintiffs, “of course, have the right to file a due process
petition at any time....” The entirety of the statement which is
quoted above shows the attorney was responding to the
Plaintiffs’ threat to initiate a due process petition within ten
days unless they had heard from the County. The attorney
explained that the school board would not be able to approve
any counteroffer within ten days and proceeded to provide
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Plaintiffs with copies of the provisions concerning the filing of
due process petitions. Plaintiffs’ argument, based on taking the
comment out of context, is disingenuous at best and is rejected.
As to the factual issue of whether the petition was filed
within 60 days of the August 7, 1997 letter, the undersigned
finds the determination of the ALJ and SRO was correct. Thus,
the only issue remaining is the legal question of which statute
of limitations should be applied. The IDEA provides that
parents may request an administrative due process hearing but
does not contain a time period within which to do so. 20
U.S.C. § 1415(b)(2). The Fourth Circuit has determined that
the absence of a limitations period in the Act does not mean no
limitations period should apply to the IDEA. Manning v.
Fairfax County Sch. Bd., 176 F.3d 235, 237 (4th Cir. 1999).
Indeed, when federal law provides no statute of limitations.
“the general rule is that a state limitations period for an
analogous cause of action is borrowed and applied to the
federal claim, provided that the application of the state statute
would not be inconsistent with underlying federal policies.”
Id, (citing Schimmel v. Spilane, 819 F.2d 477, 482-83 (4th
Cir. 1987) and quoting County of Oneida v. Oneida Indian
Nation, 470 U.S. 226, 240 ( 1985)).
Plaintiffs argue that under the holdings of Manning and
Schimmel, the 60-day period provided in the state
Administrative Procedures Act is too short and may not be _
applied. However, Plaintiffs do not state which analogous state
limitations period should apply. Dell, 32 F.3d at 1059
(“Notably, however, [the Plaintiffs} do not suggest a
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particular statute more analogous to the IDEA’s provisions
that the court should borrow. Indeed, had the defendants
pressed the point, they might well have been able to prevail
solely on the ground that the [Plaintiffs] had waived the use
of another statute of limitations by not having suggested
affirmatively a particular limitation more appropriate than
the one employed by the district court.”).
In Schimmel, the Fourth Circuit addressed the question of
the time within which an action in federal court pursuant to the
IDEA should be commenced following the exhaustion of state
administrative remedies. The defendant there urged the Circuit
to find that Virginia’s administrative procedures statute of
limitations of 30 days should apply. However, the Circuit noted —
that many parents are unrepresented during the administrative
proceedings and thus may be unable to retain an attorney and
make a determination concerning the initiation of a federal
action within the 30-day time frame. In response to the
defendant’s argumentthat the IDEA requires prompt resolution
of such matters, the Court held “the need for speedy resolution
of disputes does not outweigh the risk that a very short statute
of limitations may deny parties a fair opportunity to obtain
judicial review of adverse decisions rendered in administrative
due process proceedings.” Schimmel, 819 F.2d at 483.
_ In Manning, the issue was not the time within which to
initiate the federal action but, as here, the time within which to
petition for a due process hearing. The school did not argue that
the Virginia administrative proceedings act applied but instead
conceded the one year catch-all statute of limitations applied in
eT,
10a é
Schimmel was the appropriate one. Plaintiffs, on the other hand,
argued that one year was too short a period in which to require
parents to petition for a due process hearing and argued for a
five year statute of limitations. Thus, the Manning court did not
address whether the 30 day period in the Virginia
administrative procedures act should have been applicable; it
made a choice between a one and a five year statute of
limitations. “[W]e are of the opinion that the same one-year
limitations period is not so prohibitively short in the
administrative hearing context that it undermines the IDEA’s
policy of providing parents an opportunity to protect their
disabled children’s educational rights.” Manning, 176 F.3d at
239. :
Thus, the undersigned rejects the Plaintiffs’ argument that
the Manning decision negates the application of North
Carolina’s 60-day limitations period ‘pursuant to its
-Administrative Procedures Act. “A statute of limitations may
apply no matter whether proceedings are brought in a judicial
forum or in an administrative one.” Manning, 176 F.3d at 238.
The issue, then, is whether application of that 60-day period is
“so prohibitively short in the administrative hearing context
that it undermines the IDEA’s policy of providing parents an
Opportunity to protect their disabled children’s educational
rights.” Id., at 239,
Although the Schimmel and Manning courts did not
enumerate the balancing factors to be considered, each appears
to have followed the methodology set out in Amann v. Town of
Stow, 991 F.2d 929, 931-33 (1* Cir. 1993): the limitation
lla
period to be borrowed should be selected after balancing the
parental interest in participation, the school’s interest in speedy
resolution of disputes, and the child’s interest in receiving
educational entitlement. This case has an unusual posture
because the child received the services his parents’ deemed
necessary; the issue is whether his parents are entitled to
reimbursement. Moreover, the Plaintiffs, who rejected each
proposed IEP, did not petition for a due process hearing until
after the child had been determined to be ineligible for any
services. Thus, the child’s interest in receiving educational
entitlement is not impacted.
However, the undersigned concludes that the school has a
legitimate interest in the speedy resolution of disputes. The
County on more than one occasion asked the Plaintiffs to
advise whether they would accept the proposed IEP because
acceptance would necessitate the hiring of additional staff. The
inability of the school to ascertain the necessary expenditure of
funds for staff impacts more than the Plaintiffs’ child.
Moreover, although not dispositive, the parents here are
not typical. The child’s father is an attorney who purports to
_ specialize in education law. They were represented during the
proceedings and their attorney has admitted the receipt of
information providing notice of the 60-day deadline. The
parents were actively involved in the child’s education, to the
point of rejecting the IEP and insisting on the therapy of their
choice.
12a
It is compelling that this case does not involve the time
within which to obtain judicial review of the state
administrative proceedings. Althoughthe IDEA instructs states
to make a FAPE available, it has left to the states the
procedural mechanisms for putting the same in place. It was
thus within the ALJ’s discretion to dismiss the petition as
untimely under the North Carolina APA. L. M. v. Brownsburg
Community Sch. Corp., 28 F.Supp.2d 1107, 1110 (S.D. Ind.
1998). “Just as all deadlines throughout the administrative
process are short, the review of that process also should take
place within a short period of time.” Dell, 32 F.3d at 1061
(applying Illinois’ 120-day time limitation for judicial
review of administrative decision to parent's
reimbursement claim under the IDEA.). Thus, applicationof
the North Carolina Administrative Procedures Act 60-day
limitation is not inconsistent with the underlying policies of the
IDEA.
The purpose of requesting a due process hearing is to
challenge an aspect of a child's education and to put
the school district on notice of a perceived problem.
Once the school district receives notice, it has the
Opportunity to address the alleged problem. Under
[Plaintiffs’] theory, a school would be potentially
liable for unanticipated costs for alleged problems of
which it is totally unaware. “Recovery tuition for
costs] is a remedy only if the ([FAPE) guarantee has
been violated, exhaustive administrative remedies
have been tried before placement, and the schoo! has
been notified.”... While (the Lovaas therapy] may
13a
have been of great benefit to [the child], we cannot
agree that a school district must reimburse a parent for
- unchecked educational expenses.
Thompson v. Bd. of Special Sch. Dist. No. 1 (Minneapolis),
144 F.3d 574, 579 n. 3 (8" Cir. 1998) (quoting Cindy L.
Skaruppa, Ann Boyer & Oliver Edwards, Tuition
Reimbursement for Parent’ Unilateral Placement of
Students in Private Institutions: Justified or Not?, 114 Educ.
Law Rep. 353, 354 (West 1997)). The Plaintiffs here seek
reimbursement for therapy which they unilaterally chose and
implemented during a time when there were no proceedings
pending with the County.
We, of course, recognize that the school district has
the duty in the first instance to provide an appropriate
IEP, and moreover, to demonstrate by a
preponderance at a due process hearing that the IEP it
offered was indeed appropriate. With that foremost in
mind, we must nevertheless also recognize that as a
practical reality, and as a mater of procedural law of
which [the child’s] parents were fully apprized, the
right of review contains a corresponding parental duty
to unequivocally place in issue the appropriateness of
an IEP. This is accomplished through the initiation of
review proceedings within a reasonable time of the
unilateral [choice of therapy] for which
reimbursement is sought.
l4a
_ Bernardsvile Bd. of Educ. v. J.H., 42 F.3d 149, 158 (3"¢ Cir.
1994) (footnote omitted); accord, Lewisville Indep. Sch. DisL
v. Brooke P., 16 Educ. for the Handicapped Law Rep. 1313,
1315-16 (E.D. Tex. 1990) (parents’ failure to request due
process hearing constitutes waiver of right to
reimbursement for cost of extended school year services
prior to initiation of due process proceedings); Warren G.
v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3"¢ Cir.
1999). Thus, the undersigned cannot conclude that application
of North Carolina’s 60-day period is “so prohibitively short in
the administrative hearing context that it undermines the
IDEA’s policy of providing parents an Opportunity to protect
their disabled children’s educational rights.” Manning, supra.
V. ORDER
IT IS, THEREFORE, ORDERED that the Plaintiffs’
motion for summary judgment is hereby DENIED; and
IT IS FURTHER ORDERED that the Defendant’s
motion for summary judgment is hereby GRANTED.
A Judgment dismissing this case in its entirety is filed
herewith.
THIS the 17" day of December, 1999.
/s/ LACY H. THORNBURG
UNITED STATES DISTRICTCOURT
JUDGE
15a
STATE OF NORTH CAROLINA
COUNTY OF BUNCOMBE
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
FILE NO. 98 EDC 0566
M. E. and her husband, P.E.,
individually, and on behalf
of their son, C. E..,
Petitioners,
VS. FINAL DECISION
THE BOARD OF EDUCATION
FOR BUNCOMBE COUNTY
a/k/a BUNCOMBE COUNTY
PUBLIC SCHOOLS, et al
Respondent.
THIS CONTESTED CASE coming on for hearing before
the Honorable Beecher R. Gray, Administrative Law Judge
' Presiding, on Respondent’s Motion for Summary Judgment on
September 14, 1998, in Hendersonville, North Carolina. After
reviewing the pleadings, affidavits, and supporting memoranda
_of law and hearing the oral arguments of counsel, the
Undersigned is of the opinion that the Respondent’s Motion is
well-founded in fact and law, and the Undersigned enters the
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following Final Decision granting summary judgment in favor
of the Respondent, Buncombe County Public Schools.
APPEARANCES
For Petitioners: Paul L. Erickson
The Law Firm of Paul L. Erickson, P.A.
Building One, Suite Three
1998 Hendersonville Rd.
Asheville, N.C. 28803-2192
Ann M. Paradis
Wilkins & Wellons
141 East Market Street
P.O. Box 1046
Smithfield, North Carolina 27577
For Respondent: Cynthia S. Lopez
Christopher Z. Campbell
ROBERTS & STEVENS, P.A.
P.O. Box 7647
Asheville, N.C. 28802
ISSUES TO BE RESOLVED ON SUMMARY
JUDGMENT
. 1. Whether the Petitioners’ action is time barred by the
applicable statute of limitations;
2. If not, whether the Petitioners fail to state a claim for
which relief can be granted under the Individuals with Disabilities
17a
Education Act (“IDEA”) in that Petitioners sought public funding
for a particular educational methodology; and
3. Whether this Court has jurisdiction to hear claims
brought pursuant to the United States and North Carolina
Constitutions, Section 504 of the Rehabilitation Act, the
Americans with Disabilities Act, and Section 1983.
BURDEN OF PROOF
Upon a motion for Summary Judgment the Movant has the
burden of establishing that there is no genuine issue as to any
material fact and that it is entitled to summary judgment as a
matter of law. Once the Movant satisfies its burden, the Non-
Movant may not rely on its allegations but must produce a
forecast of evidence sufficient to establish the existence of a
genuine issue of material fact requiring trial.
Based on the uncontroverted evidence appearing of record,
to which consideration may be given under G.S. § 150B-(33)(3a),
26 N.C.A.C. 3 .0101(1) & 3 .0105(6), and G.S. § 1A-1, Rule 56
of the N.C. Rules of Civil Procedure, including pleadings,
depositions, answers to interrogatories, together with affidavits,
and having considered the legal memoranda and oral argument of
counsel for both parties, the Undersigned, Administrative Law
Judge Presiding, makes the following:
PROCEDURAL BACKGROUND
1. OnAugust 27, 1998, the Respondent filed its Motion for
Summary Judgment with supporting affidavits.
18a
2. On September 2, 1998, the Respondent filed its Brief in
Support of Motion for Summary Judgment.
3. On or about September 9 - 11, the Petitioners served
affidavits and a Brief in Opposition to Respondent’s Motion,
4. On Monday, September 14, 1998, the Undersigned
conducted an on-the-record hearing in the Henderson County
Courthouse, Hendersonville, North Carolina.
5. The venue for this proceeding was suggested by the
Petitioners and agreed to by the Respondent.
UNDISPUTED FACTS
1. MLE. and P.E. first presented their son C.E. to the
Respondent in March of 1996 (“time of presentment”). At the
time of presentment C.E. was four years old and was receiving an
in-home program of Lovaas Therapy funded by the Petitioners.
2. On September 22, 1994 and September 23, 1994, C.E.
was evaluated at the Kennedy Kreiger Institute and was
diagnosed with Pervasive Developmental Disorder, not otherwise
specified (PDD/NOS). The Kennedy Kreiger evaluation referred
to C.E. as “high functioning”.
3. On February 27, 1995, C.E. was evaluated by Division
TEACCH in Chapel Hill, North Carolina. TEACCH determined
that C.E. met the criteria for Autism.
19a
4. On March |, 1996, P.E. wrote to the Respondent
“requesting reimbursement for CE’s program which at that time
was being privately funded by CE’s family.” Petitioners’ First
Prehearing Statement, Factual Allegations, { 18. The letter
describes C.E.’s in-home Lovaas program as “quite expensive to
_ fund privately.” Letter dated March 1, 1996, attached to Jane
Stephens’s Affidavit as Exhibit A.
5. The Respondent accepted P.E.’s letter of March 1, 1996
as a referral for special education and thereafter evaluated C.E.,
determined the extent of his eligibility for special services,
developed numerous Individualized Education Plans (IEPs) for
C.E., and offered a placement that it felt was appropriate to meet
C.E.’s special needs. Although the Petitioners allege that the
Respondent did not offer C.E. a free and appropriate public
education, they never instituted proceedings available under the
Individuals with Disabilities Education Act and G.S. 115C,
Article 9 to challenge the educational program offered by the
Respondent during the time period that C.E. was eligible to
receive services under IDEA.
6. Atthe time of this hearing on the Respondent’s Mosion,
neither expert witness for the Petitioners had reviewed any of the
proposed services offered by the Respondent, and the Petitioners
did not present additional affidavits at this hearing from these, or
any other experts, opining that the program offered by the
Respondent was inappropriate for C.E. .
7. Atno time did the parents accept the placement offered
by the Respondent for C.E. electing to continue with their in-
home Lovaas program. The Petitioners never requested that the
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school system implement their program but only requested that
the Respondent “fund” the Petitioners’ program.
8. On October 23, 1996, P.E. wrote the Respondent “in an
effort to get [the Respondent] to seriously consider the requests
to fund CE’s ‘Lovaas’ program”. iti * Fi i
Statement, Factual Allegations, | 36. The letter also suggested
that the Respondent contact its attorney for advice. Id.
9.- On June 12, 1997, the Respondent reevaluated C.E. at
the Petitioners request and determined that C.E. was no longer
eligible for special education services under IDEA. The
Petitioners consented to this decision.
10. On July 29, 1997, Petitioners wrote to the Respondent
to “make one final attempt” to convince the Respondent to
“reimburse” them for C.E.’s private, in-home Lovaas program
provided to C.E. The letter concludes, “If you have not provided
a written response to me within ten days from the date of this
letter, we will immediately proceed to a due process hearing.”
Letter dated July 29, 1997 attached to Petition.
11. On August 7, 1997, Counsel for the Respondent wrote
to the Petitioners on Respondent's behalf and rejected their
request for the Respondent to fully reimburse them for the in-
home Lovaas Program. The letter informed the Petitioners that
the school system believed that the program offered to C_E.
during his period of eligibility provided a free and appropriate
public education and Counsel also informed the Petitioners of
new notice requirements for filing due process under IDEA and
provided them with a copy of the revised law. Tue
2la
12. On August 8, 1997, Counsel for the Respondent again
wrote to the Petitioners on Respondent's behalf and again rejected
the Petitioners’ “final attempt” to receive “reimbursement” and
made a counteroffer. The Petitioners never responded to this
counteroffer.
13. According to the Affidavit of Petitioner M.E., on a
number of occasions the Respondent provided either M.E. or her
attorneys with copies of the Handbook on Parents’ Rights with
“July 1993" stamped on the front cover. The education record of
C.E. indicates that either M.E. or P.E. acknowledged receipt of
the Handbook on March 25, 1996 and June 12, 1997.
14. The Petitioner P.E. is also an attorney of record in this
matter.
15. According to the Amended Affidavit of Jane Stephens,
the Handbooks available to parents in 1996 and 1997 were the
1993 revised version and the 1994 version both of which inform
parents of the sixty (60) day statute of limitations incorporated by
G.S. §115C-116. The 1993 revised Handbook contains an
Addendum inside the front cover or title page. That Addendum
states as follows:
Addendum to July, 1993 Edition of Handbook on Parents’
Rights.
The introduction and Part A of the section ‘entitled “Impartial Due
Process Hearing and State Review” (page 12) have been rewritten
as follows:
22a
Impartial Due Process Hearing and State Review. A parent or
public agency may file a petition for an impartial due process
hearing (sometimescalled administrative review or contested case
hearing) to challenge the identification, evaluation, evaluation, or
placement of a child or the provision of a free appropriate public
education for the child. This kind of hearing places the
responsibility for resolving the conflict on an administrative law
judge in the Office of Administrative Hearings, an agency that
has no relationship with the education agency or with the State
Department of Public Instruction.
A. In order to exercise the right to a due process hearing, the
parent must file a petition within 60 days of written notice of the
contested action with the Office of Administrative Hearings (424
N. Blount Street, P.O. Drawer 27447, Raleigh, N.C. 27611-7447.
For additional information concerning the filing of a petition,
parents should contact the Office of Administrative Hearings,
telephone 919/733-2698.
16. According to the initial Affidavit of Stephen J.
Grabenstein, Attorney for the Petitioners, he was given a copy of
the 1993 Handbook at an IEP meeting that he attended on behalf
of the Petitioners. The copy of the Handbook attached to the
Affidavit did not include the Addendum.
17. According to a subsequent, revised affidavit of Stephen
J. Grabenstein, he acknowledged that he received a copy of the
1993 Handbook with the Addendum from. the Respondent at an
IEP meeting.
23a
18. The Petition in this matter was filed on April 22, 1998,
two hundred and fifty-seven (257) days following the
Respondent’s final rejection of the Petitioners’ request for full
reimbursement on August 8, 1997.
CONCLUSIONS OF LAW
1. Although he is not held to a higher standard than the
Petitioner M.E., the knowledge of facts held by P.E. as attorney
is considered knowledge held by P.E. as Petitioner.
2. The Undersigned has jurisdiction over this matter
pursuant to Chapter 115C and 150B of the North Carolina
General Statutes and 20 U.S.C. § 1400 et. seq., the Individuals
with Disabilities Act (IDEA).
3. Pursuant to G.S. §115C-116(c) the Undersigned does
not have jurisdiction over Petitioner’s claims made pursuant to
the United States and North Carolina Constitutions, Section 504
of the Rehabilitation Act, the Americans with Disabilities Act,
and Section 1983.
4. Pursuant to 20 U.S.C. §1415 (1997) and 34 C.F.R.
§300.504 & §300.505, written notice under IDEA is required only
when an agency “proposes to initiate or change; or refuses to
initiate or change; the identification, evaluation, or educational
placement of the child, . . . or the provision of a free appropriate
public education to the child” under the provisions of IDEA.
5. Upon the facts of this case, the Respondent was not
required to provide the Petitioners with “prior written notice”
24a
under IDEA in order for the applicable statute of limitations to
begin running against Petitioners.
6. The applicable state law, N.C.G:S. §115C-116(d),
clearly states that any administrative review shall be initiated and
conducted in accordance with Article 3 of Chapter 150B, the
Administrative Procedures Act. Applied to this case, §150B-23
of the Act requires that, unless the federal or state law provides
otherwise, the limitation for the filing of a petition is within sixty
(60) days of notice of the contested action.
7. IDEA does not specify atime limit and G.S. §115C-116
specifically adopts the 60 day limitation. When §115C-116(d)
and §150B-23 are read together, it is clear that the North Carolina
statutory scheme strikes a necessary balance between the need for
speedy resolution of special education disputes and the need to
allow the parties a fair opportunity to obtain due process under
state and federal law.
8. The Respondent provided the Petitioners with the —
requisite notice pursuant to §150B-23.
9. The April 22, 1998 Petition filed in this matter is not a
timely challenge as to any action taken by the Respondent prior
to the sixty (60) days of that date. Giving these Petitioners every
reasonable inference from the evidence presented upon
Respondent’s Motion for Summary Judgment, the sixty (60) day
Statute ran over two hundred days prior to the filing of this
Petition.
25a ~
IT IS THEREFORE, ORDERED, ADJUDGED AND
DECREED thatthe Respondent’ sMotion for Summary Judgment
is hereby GRANTED and the Petition in this matter is hereby
dismissed in it’s entirety.
NOTICE
In order to appeal this Final Decision, the person seeking
review must file a written notice of appeal with the North
Carolina Superintendent of Public Instruction. The written notice
of appeal must be filed within thirty (30) days after the person is
served with a copy of this Decision. G.S. §115C-116(h) and (I).
THIS the 30th day of September, 1998.
Beecher R. Gray
Administrative Law Judge Presiding
26a
[This page intentionally left blank. ]
27a
STATE OF NORTH CAROLINA
BEFORE A STATE HEARING REVIEW OFFICER
FOR THE STATE BOARD OF EDUCATION
PURSUANT TO GSS. 115C-116
M.E. AND P.E. ON BEHALF
OF THEIR SON C.E.,
Petitioner
DECISION
98 EDC 0566
)
)
)
)
)
)
THE BOARD OF EDUCATION )
for Buncombe County a/k/a )
Buncombe County Public )
Schools, et al, )
Respondent )
This is an appeal of the following Final Decision, File No.
98 EDC 0566:
The order issued by Administrative Law Judge, Beecher R.
Gray granting Summary Judgement in favor of the Respondent,
Buncombe County Public Schools, 30 September 1998.
Case Records were received by the Review Officer on
November 17, 1998. They included the Official Record, Judge
Gray’s Final Decision, transcripts of oral arguments,
depositions, and numerous documents related to the substance
of the contested case. On November 25, 1998, written
28a
arguments were received from the Petitioner and the
Respondent.
Having reviewed the records of the case, the Hearing
Review Officer for the North Carolina State Board of
Education finds the following;
FINDINGS OF FACT
1. A Petition for a Contested Case Hearing was filed on April
22, 1998 by M. E. on behalf of her son C. E. vs. the
Buncombe County Board of Education.
2. On August 27, 1998, the Respondent filed a Motion for
Summary Judgement with supporting affidavits.
3. On September 2, 1998, the Respondent filed its Brief in
Support of Motion for Summary Judgement.
4. On or about September 9-11, 1998, the Petitioners filed
a Brief with supporting affidavits in Opposition to
Respondent’s Motion.
5. A Hearing was held before Administrative Law Judge, the
Honorable Beecher Gray in the Hendersonville County
Courthouse, Hendersonville,N.C. on Monday, September
14, 1998.
6. The Hearing was held pursuant to Chapter 115C and 115B
of the North Carolina General Statutes, and the Individuals
10.
11.
12.
13.
29a
with Disabilities Education Act (IDEA), 20 U.S.C. § 1400
et. sea.
The Petitioner for a Contested Case Hearing complained
that the, “Respondent failed to provide FAPE.”
The Respondent’s Brief in Support for Summary
Judgement, argued, in part, “the Petition is untimely.”
C. E. (hereafter referred to as the child) was born January
10, 1992 in Maryland.
M. E. observed that at the age of 18 months the child,
“wasn’t speaking, he didn’t make eye contact... he didn’t
play with toys.”
The child was evaluated at the Kennedy Kreiger Institute
on September 22, 1994 and September 24, 1994. He was
diagnosed with Persuasive Developmental Disorder and
evaluated as “high functioning”. The child at that time was
two and a half years in age.
Approximately five months later on February 27, 1995, the
child was evaluated at the University of North Carolina,
Chapel Hill. The University’s Division TEACH concluded
that the child suffered from Autism.
In August of 1995, the child and his family moved to
North Carolina.
14.
15.
16.
17.
18.
30a
Before moving to North Carolina, M.E. had investigated
. the Lovaas program for the treatment of Autism, and had
initiated the child’s Lovaas therapy in early 1995.
On March 1, 1996, Paul L. Erickson, the child’s father
wrote to Dr. Jane Stephens, Director of Special Education,
Buncombe County Public Schools. He stated, “We have
been doing an in-home behavioral modification program
with C. E.”, and, “I am writing this letter to ask that you
assist me in obtaining reimbursement for this in-home
program.”
On March 1, 1996, the child was four years old. North
Carolina law requires that children with disabilities ages 3-
20 be provided a free appropriate public education
(FAPE). (Handbook on Parents’ Rights Public Schools of
North Carolina, 1997, p. 2)
The Respondent's agent, Dr. Stephens, initiated evaluation
procedures to determine if the child met the criteria for
special education services. M. E. consented to the
evaluation and was provided with a copy of the Handbook
on Parents’ Rights.
At a meeting on May 31, 1996 attended by school
personnel and the child’s parents, it was determined that
the child was eligibie for special education services as a
child with Autism. An Individualized Education Plan
(IEP) was developed. The parents did not accept the plan.
19.
20.
21.
22.
23.
24.
25.
3la
On June 12, 1996, the Respondent offered to provide
Extended School Year (ESY) sponsored by the Autism
Society of North Carolina. The parents rejected the
proposal.
On September 16, 1996, an IEP was signed by parents
with the caveat added, “all rights reserved re. Lovaas.”
On October 23, 1996, Mr. Erickson wrote the Respondent
and requested reimbursement for the in-home Lovaas
program and for the child’s attendance at a private
preschool.
Subsequent IEP meetings on January 6, 1997 and January
28, 1997 were conducted. The parents did not respond to
the Respondent’s suggestion that the IEP be implemented.
At the parents’ request, the child was reevaluated. On June
12, 1997, the Respondent’s IEP team determined the child
no longer qualified for special education services. He was
exited from the program.
On July 29, 1997, Paul L. Erickson, Esquire, wrote the
Respondent’s attorney, Ms. Cynthia Lopez, “to make one
fina! attempt to convince you and your client to reimburse
M.E.”, for the child's in-home educational program.
In the July 29, 1997 letter, Mr. Erickson stated, “We are
asking that your client agree to reimburse (M.E.) in the
amount of $37,804.12 within ten days of the date you
26.
27.
28.
29.
32a
receive this letter...”. He concluded, “If you have not
provided a written response to me within ten days from the
date of this letter, we will immediately proceed to a due
process hearing.”
On August 7, 1997, the Respondent rejected Mr.
Erickson’s request for reimbursement for the in-home
Lovaas program. The Respondent informed Mr. Erickson
that the school system believed the program offered the
child during his eligibility period satisfied all requirements
of FAPE. The letter also contained a copy of the
reauthorized IDEA, and the new notice provisions for
filing a due process petition.
The following day, August 8, 1997, the Respondent’s
counsel wrote the Petitioners and rejected their request for
reimbursement, but made a counter offer. The Petitioners
did not respond.
Depositions of Petitioner's expert witnesses, Dr. Andrew
L. Egel and Dr. Stephen L. Luce were taken on August 17-
18, 1998. Neither expert had received any materials related
to the program offered by the Respondent's school system
in this case. Neither were prepared to testify as to the
appropriateness of the Respondent's program for the child.
In the amended September 8, 1998 affidavit of Dr. Jane
Stephens, she stated at least two copies of the Handbook
on Parents” Rights had been provided to the Petitioners in
this matter. The Handbooks were the 1993 version and the
33a
1994 version. Both editions contained the same
information concerning the sixty (60) day statute of
limitations for filing a petition. (G.S. § 115C-116)
Impartial Due Process Hearing and State Review
A parent or public agency may file a petition for an
impartial due process hea.ing (sometimes called administrative
review or contested case hearing) to challenge the
identification, evaluation, or placement of a child or the
provision of a free appropriate public education for the child.
This kind of hearing places the responsibility for resolving the
conflict on an administrative law judge in the Office of
Administrative Hearings, an agency that has no relationship
with the education agency or with the State Department of
Public Instruction.
A. Inorder to exercise the right to a due process hearing,
the parent must file a petition within 60 days of written
notice of the contested action with the Office of
Administrative Hearings (424 N. Blount Street, P. 0.
Drawer 27447, Raleigh, NC 27611-7447. For additional
information concerning the filing of a petition, parents
should contact the Office of Administrative Hearings,
telephone 919/733-2698.
(Handbook on Parents’ Rights, North Carolina Department of
Public Instruction. 1993 Addendum; 1994, p. 12.)
30. In the September 8, 1998 affidavit of Petitioner M. E., she
affirmed that copies of the Handbook were provided to
31.
32.
33.
34.
35.
34a
“me or my attorneys” on a number of occasions by
representations of the Buncombe County Board of
Education. The child’s education record includes
acknowledged receipt of the Handbook ( 1994, p. 12; 1997,
P. 26-27) by either P. E. or M. E. on March 25, 1996 and
June 12, 1997. |
P. E. is also an attorney of record in this matter.
On September 8, 1998, Attorney Stephen J. Gabenstein
revised his previous affidavit, and conceded he had
received a 1993 copy of the Handbook which included
information in the addendum about the sixty day statute of
limitations.
Petition for a Contested Case Hearing was filed by M. E.
on behalf of her son C. E., vs. the Buncombe County
Board of Education, two hundred fifty seven (257) days
after Respondent's August 8, 1997 rejection of the
Petitioner's request for reimbursement.
At the September 14, 1998 Hearing, the Court ruled that
Paul. L. Erickson be named a party in interest on the
Petition. Mr. Erickson’s law firm served as the Petitioner's
counsel.
Mr. Erickson objected to being named a party. He argued,
“If | am named & party, Your Honor, there is a case that
says that I may not recover attorney's fees for my time...”
35a
36. Counsel for Petitioners and the Respondent submitted
Written Arguments on November 25, 1998.
37. Upon review to the Review Officer for the North Carolina
State Board of Education, the issues to be decided were:
1. Whether the Petitioners’ action is time barred by the
applicable statute of limitations;
2. Ifnot, whether the Petitioners fail to state a claim for
which relief can be granted under the Individuals with
Disabilities Education Act (“DEA”) in that Petitioners
sought public funding for a particular educational
methodology; and
3. Whether this Court has jurisdiction to hear claims
brought pursuant to the United States and North
Carolina Constitutions, Section 504 of the
Rehabilitation Act, the Americans with Disabilities
Act, and Section 1983.
CONCLUSIONS OF LAW
1. The Administrative Law Judge has jurisdiction with regard
to this case pursuant to Chapters 115C and 150B of the
North Carolina General Statutes and 20 U.S.C. § 1400 et.
seq, the Individuals with Disabilities Education Act
(IDEA).
36a
The Court does not have jurisdiction over Petitioners’
claims made pursuant to the Americans with Disabilities
Act (ADA), the Constitution of the United States and the
State of North Carolina, Section 504 of the Rehabilitation
Act, Section 1983. (G.S. 115C-116(c), and Section 1983)
By letter dated November 9, 1998 and received November
19, 1998, the Director of the North Carolina Exceptional
Children Division appointed the undersigned Review
Officer to review the case.
the Review Officer has jurisdiction with regard to this
case pursuant to Chapters 115C and i50B of the North
Carolina Statutes and 20 U.S.C. § 1400 et. seg, (IDEA).
The procedures at the hearing were consistent with the
requirements of due process. (N.C.G.S. 115C-116:
ieaaid
with Special Needs, 1996; 20 U.S.C. § 1415: 34 CFR
300.500 et. seq,)
The Respondent rejected the Petitioners’ “final attempt” to
receive “reimbursement” for the in-home Lovaas Program
on August 8, 1997. The A.L.J. did not err in his decision
that on August 8, 1997, the time limitation on the statute
of limitations in this case began to run. 3
On April 22, 1998, the date on which the Petition for a
Contested Hearing was filed, the child was not a child
with a disability, and therefore did not meet the criteria for
10.
37a
special educational needs. The child was a child without
disabilities on August 8, 1997.
The Petition complained that the “Respondent failed to
provide FAPE.” In this case, prior written notice by the
Respondent, which could signal the time limitations on the
statute of limitations to co nce, is not required under
IDEA. Written notice by the Respondent to the Petitioner
is required only when the agency, “Proposes to initiate or
change the identification, evaluation, or educational
placement of the child on the provisions of FAPE, or
refuses to initiate or change the identification, evaluation,
or educational placement of the child on the provisions of
FAPE (34 C.F.R. 300.504-505; 20 U.S.C. § 1415; GS.
115C-115; Handbook on Parents” Rights; Procedures
Governing Programs and Services for Children with
Special
Since the child was a child without disabilities on August
8, 1997, and April 22, 1998, the Respondent was not
required to provide the Petitioners with “prior written
notice.”
IDEA is silent on time limits imposed upon Petitioners
when requesting a review of a contested case. Hence, State
law prevails, N.C. G. S. 115C-116(d) states, “the
administrative review shall be initiated and conducted in
accordance with Article 3 of Chapter 150B of the General
Statutes, the Administrative Procedures Act.” 150B-23(f)
clearly states, “Unless another statute or a federal statute
38a
on regulation sets a time limitation for the filing of a
petition in contested cases against a specified agency, the
general limitation for the filing of a petition in a contested
case is 60 days.”
11. The 60 day time limitation is stated in all copies of the
Handbook on Parents’ Rights provided to M.E. andP.E.,
and counsel, on numerous occasions by the respondent.
12. The time period between August 8, 1997, the date on
which the statutes of limitations began to run, and April
22, 1998, when the Petitioners filed the Contested Case,
without question exceeds the 60 day time limitation.
DISCUSSION
The issue in this Contested Case is, “Whether the
Petitioners’ action is time barred by the applicable statute of
limitations.”
The case is not about FAPE. It is not methodology,
reimbursement, an I.E.P., Lovaas or TEACH, depositions or
expert witnesses, or all other case law, exhibits, and arguments
not related to “timeliness”.
The undersigned Review Officer must decide:
What applicable North Carolina statutes govern the
matters in this case?
39a
N.C.G.S. 115C-116(d) directs the Court, Counsel, and
Review Officer to the Administrative Procedures Act, 150B-23
for clarification. The APA establishes a 60 day limitation for
the filing of a petition from the date of notice.
Was Notice provided by the Respondent which would
trigger the statute of limitations?
Since the child on August 8, 1997, and March 30, 1998
was not a child with special educational needs, prior written
notice under IDEA (1997) Section 615(b)(3) was not required.
The August 8, 1997 letter from the Respondent which rejected
Petitionersclaims for reimbursement, satisfied the requirements
of § 150B-23.
Were the Respondents and Counsel informed of their due
process rights?
The Review Officer rules in the affirmati[ve]. The
Handbook on Parents’ Rights, which describes and explains the
parents due process rights, was provided to M.E. and P.E., and
their counsel on several verifiable occasions.
Was the March 30, 1998, Petition timely?
The Petition exceeded the 60 day APA limitation by 197
days.
Pe ee
40a
Therefore, based on the F indings of Fact and Conclusions
of Law, the Review Officer makes the following:
DECISION.
The Administrative Law Judge did not err in deciding that
the Respondents’ Motion for Summary Judgement be granted.
NOTICE
Any party aggrieved by this Decision may institute a civil
action in State court as provided by North Carolina Statutes
115G. 116 within 30 days after receipt of this decision.
This the 3" day of December, 1998.
J. Sherwood Dunham
State Review Officer
4la
STATE OF NORTH CAROLINA
BEFORE A STATE HEARING REVIEW OFFICER
FOR THE STATE BOARD OF EDUCATION
PURSUANT TON.C.G:S. 115C -16
[PARENTS OF CM] )
Petitioners, )
)
v. ) DECISION
)
HENDERSON COUNTY PUBLIC )
SCHOOLS
Respondent. )
This is an appeal of the following Decision and Orders:
1. The December 11, 1997 Final Decision of the contested
case heard by Administrative Law Judge, Meg Scott Phillips.
2. The Order issued March 24, 1997 by Chief Administrative
Law Judge, Julian Mann, III. granting Partial Summary
Judgment for the Respondent.
3. The Order issued March 24, 1997 by Chief Administrative
Law Judge, Julian Mann, III. denying Petitioners’ Motion for
Sanctions for Affidavit Presented in Bad Faith and Petitioners’
Motion for Reconsideration, Rehearing and Relief from
Judgment.
42a
Two cases, 96 EDC 0766 and 96 EDC 1708, involving
common questions of law and fact were consolidated by Order
of Chief Administrative Law Judge, Julian Mann, III on
November 14, 1996. The case 96 EDC 0766 was incorporated
in its entirety in case 96 EDC 1708. |
The records of the case that were received included: nineteen
(19) volumes of transcripts of the hearing; one (1) volume of
the transcript of the hearing on motions; the Official Record of
the case issued by the Office of Administrative Hearings, sets
of exhibits from each of the parties; and additional written
arguments submitted by both parties to the Review Officer. The
Official Record contained the Final Decision of Judge Phipps,
Orders of Chief Administrative Law Judge, Julian Mann, III,
written arguments, and documents related to the procedures
followed in the contested case.
Having reviewed the records of the case, the Hearing Review
Officer for the State Board of Education finds makes the
following:
FINDINGS OF FACT
1. A hearing on motions was held on F ebruary 27, 1997 by
Chief Administrative Law Judge, Julian Mann, III. The
nineteen day hearing in the contested case of [Parents of CM]
v. Henderson Counter Public Schools was held on March 17,
18, 19, 20, 21, 24, 25, 26, 27 and April 3, 4, 5, 7, 8, 9, 10, 14,
15, 16 by Administrative Law Judge Meg Scott Phipps. All
43a
hearings were held in Hendersonville, North Carolina. The
hearings were held pursuant to Chapter 115C and 150B of the
North Carolina General Statutes and the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. §1400 et. sea.
2. The appeal of this contested case involved the provision of
a free appropriate public education to C.M., who at the time of
the hearing was 7 years old, having been born on January 10,
1990. (hereinafter C.M. will often be referred to as the child)
3. The Petitioners are the parents of the child, C.M., and are
citizens and residents of Henderson County, North Carolina.
(hereinafter the Petitioners will often be referred to as the
parents)
4. The Respondent, Henderson County Public Schools, is a
local education agency (LEA) receiving monies pursuant to the
Individuals with Disabilities Act, 20 U.S.C. Section 1400 et
seg. (IDEA), and is the agency responsible for providing
special education to the child pursuant to North Carolina's
Special Education Act, N.C.G.S. 115C, Article 9. (hereinafter
the Respondent will often be referred to as the LEA or the
school system)
5. The issues in the Petitioners’ original petition for the
contested case were: '
a) Whether the Respondent failed to reimburse the
Petitioners for the cost of an independent evaluation.
44a
b) Whether the Respondent should be required to
maintain the child in the Petitioners’ private setting since
the Respondent failed to offer a placement that would
provide the child with a free appropriate public education.
¢) -Whether the Respondent should provide the child
with compensatory education, due to the Respondent's
failure to develop and appropriate IEP, and its ongoing
failure to place her in an appropriate educational setting.
d) Whetherthe Respondent shouldreimburse Petitioners
for the costs incurred in the Petitioners’ private program.
6. Following Partial Summary Judgment granted to the
Respondent and Orders issued by Chief Administrative Law
Judge, Julian Mann, II] on March 24, 1997, the issue for the
Hearing before Administrative Law Judge Meg Scott Phipps
was whether the program offered by the Respondent for the
school year 1996-97 was appropriate for the child.
7. Upon appeal to the Review Officer for the State Board of
Education, the issues to be decided were:
a) Whether the Chief Administrative Law Judge
properly granted Partial Summary Judgment for the
Respondent and thus foreclosed claims against the
Respondent prior to the 1996-97 IEP.
b) Whether the Chief Administrative Law Judge
properly denied Petitioners’ Motions for Sanctions for
45a
Affidavit Presented in Bad Faith and Petitioners’ Motion
for Reconsideration, Rehearing and Relief from Judgment.
c) Whether Administrative Law Judge Meg Scott Phipps
erred in her Decision that the Respondent's proposed IEP
for 1996-97 was appropriate.
8. On numerous occasions the Petitioners were provided a
copy of the Handboak of Parent's Rights. As of May, 1995 and
throughout the remainder of the proceedings of this case, the
Petitioners were represented by counsel.
9. The child, C.M., was diagnosed with autism at
approximately age two. During the 1992-93 school year, she
attended a Montessori preschool in New Hampshire three days
a week for three hours a day. She was accompanied to the class
by an assistant who was not trained in autism.
10. Mr. William White, a psychologist with experience in
autism, consulted monthly with the staff at the Montessori
school to discuss C.M.'s autism and assist in her educational
programming.
11. The Petitioners moved to Hendersonville, North Carolina
in June 1993 in order to take advantage of services from the
Treatment and Education of Autistic and Related
Communication Handicapped Children (TEACCH) program.
They learned of the TEACCH program by attending
conferences on autism and researching available programs.
They moved based on their understanding that TEACCH is a
46a
nationally known program for autistic students and their
families.
12. The TEACCH program, begun with support of the North
Carolina legislature in 1972, is a comprehensive system that
provides treatment, education and support for autistic children,
adults and their families. TEACCH provides evaluations and
consultation to school systems throughout North Carolina, the
U.S. and the world.
13. The TEACCH philosophy focuses on using meaningful
routines and visual clarity to teach autistic individuals to
function independently. Through the use of structure and
clarity, the autistic person is taught to understand concepts,
work skills and expectations. The skills that are learned at the
preschool level are built upon as the individual with autism
grows older, leading to greater independence and adaptability
in the classroom, home setting, group home, vocational or
supported employment. settings. The TEACCH approach
focuses on the student's strengths and on what children with
autism personally find motivating or interesting and utilizes
these in a creative manner to teach new skills.
14. In July 1993, C.M. was evaluated by Sloan Burgess at the
TEACCH center in Asheville, North Carolina. Sloan Burgess
had extensive experience working with individuals with autism.
She conducts diagnostic evaluations, provides consultation to
school systems, provides parent and professional training and
organizes and conducts support groups for families. Ms.
Burgess testified that during the testing C.M. showed areas of
47a
substantial deficit in social relatedness. She displayed no
functional language except for the word "no" but she babbled
throughout the evaluation.
15. In August 1993, the Petitioners along with Sloan Burgess,
met with school personnel to develop an IEP for C.M. The
Petitioners, Ms. Burgess and school personnel agreed that
C.M. should be served in the TEACCH preschool classroom
which was just being developed at the Helping Hand Center, a
private contracted program housed in one of the Respondent's
schools. C.M.'s IEP called for her to be in a full day program
specially designed for students with autism. This was the first
time C.M. had been placed in a class specially designed for
autistic students. A typical class day involved group time and
individualized instruction for each student. C.M.'s IEP also
called for two half-hour sessions of speech therapy weekly.
16. William White, the parents’ previous consultant in New
Hampshire, also advocated placement of C.M. in the Helping
Hand TEACCH class. In a consultation report provided to
school personnel in August 1993, he gave numerous
suggestions. These were incorporated into C.M.'s IEP.
17. The Helping Hand classroom had a program of reverse
mainstreaming wherein regular students would spend periods
of time in the special class in order to. provide opportunities for
interaction with appropriately developing children. Two
students in the special class were also mainstreamed for short
periods of time each day. Ms. Arledge, the classroom teacher,
and Ms. Burgess testified that in their opinion mainstreaming
48a
was not appropriate for C.M. at the beginning of the school
year, but it would have been an option later in the year if she
gained enough skills to make it appropriate.
18. Although C.M.'s IEP called for a full-day program, the
Petitioners only brought her for half day during most of the
time she was enrolled.
19. Although the Petitioners dispute the fact, the record is clear
C.M. was making some progress in the schools program in the
Fall of 1993. Some language was beginning to emerge and
C.M. was learning some skills. There also were-no behavioral
problems. It is also clear that the parents were riot satisfied and
were continuing their search for a program that they thought
would be better for their child. The parents, however, did not
voice their concern to school officials that they thought the
program being provided for C.M. was not appropriate.
20. On November 23, 1993, the Petitioners removed C.M.
from the Helping Hand classroom. In a letter of that date to the
supervisor for Exceptional Children's program for the
Respondent's schools, the father indicated there were two
reasons for removing C.M. These were the published results of
Studies that the behavioral (Lovaas) approach is highly
successful, and the Petitioners’ belief that the Montessori
classroom was the best placement for C.M. He did not express
any discontent with the TEACCH program or infer that the
program being provided by the Respondent was not
appropriate.
49a
21. Prior to the unilateral removal by the Petitioners, C.M.
spent approximately three months in the Respondent's
classroom, half-days for much of that time rather than full-days
as specified in the IEP. Several creditable experts testified at
the hearing that this was not a sufficient amount of time to
judge the success of C.M.'s program in light of her age and her
lack of prior enrollment in a structured classroom for students
with autism.
22. The Petitioners had learned of the Lovaas program in
October 1993 by reading a book by Catherine Maurice in which
Ms. Maurice recounts the "recovery" of her two children from
autism. After reading the book, in mid-October 1993, the
Petitioners arranged for a Lovaas training workshop. The
workshop was scheduled for December 1993. Shortly thereafter
the Petitioners began the Lovaas program in their home, along
with part-time enrollment in a private school. This program
continues through the time of the contested case hearing.
23. The Lovaas program is described in program literature as
a "treatment" approach that specializes in helping preschool
children who are autistic and/or mildly to moderately retarded.
The program uses behavioral techniques derived from the
research of Dr. Ivar Lovaas of the UCLA Psychology
Department conducted in the 1970's. The Lovaas research,
published in 1987, claimed that 47% of the i9 subjects in his
study achieved normal educational and intellectual functioning
by 7 years of age. The program emphasizes discrete-trial
teaching, involving the use of repeated verbal prompts to elicit
specific verbal or behavioral responses. Positive reinforcers
50a
such as candy, tickles and verbal praise are used to reward
correct responses. Contingent aversive NO's spoken in a loud
voice are used as negative reinforcers. Other negative
consequences are delivered for unacceptable behavior.
24. Dr. Lovaas has established a for-profit center to provide
Lovaas workshops, designed to help families set up treatment
programs of their own. Through the workships, parents and
staff members (recruited by the parents) are trained in the
Lovaas method. Staff members are referred to as "therapists."
They do not require any special credentials or previous
experience to be fied qualified to be therapists. The Lovaas
Clinic recommends dependable college students as good
candidates. In addition to training the staff, the Lovaas program
provides a UCLA consultant who visits the home site quarterly
to monitor and advise regarding the program. The consultants
may be graduate students or recent college graduates who have
worked in the Clinic.
25. Although C.M. was no longer receiving special education
services from the Respondent's schools following her unilateral
removal from the school program, the Respondent agreed to
continue to provide speech language services. In January 1994,
an IEP meeting was held to develop a new speech IEP for C.M.
and her speech service time was increased to two hours a week.
The Petitioners have been satisfied with the speech services
provided by the Respondent, which have continued through the
time of the contested case hearing.
Sla
26. On December 21, 1993, the Petitioners began
implementing the Lovaas program with C.M. for 20 hours a
week. Initially, they were contracting with a consultant out of
Chicago for the Lovaas program, for they could not get services
directly from Dr. Lovaas’ program at UCLA. They were on a
waiting list with the UCLA program, and in August 1994 were
able to drop the services of the Chicago consultant and contract
for services with the UCLA program.
27. The Petitioners testified that they knew the Lovaas
program was working for C.M. because she went from being
nonverbal to using words within the first months of the
program. The mother testified that C.M. was unable "to imitate
a single thing" or to repeat any words "on command" prior to
starting Lovaas. The records, however, of the speech therapist,
Karen Perella, show that C.M. was able to both imitate motions
and to say certain words in October and November 1993. Ms.
Perella testified that C.M.'s language was emerging at that time
prior to her beginning the Lovaas program.
28. In August 1994, as the Petitioners began working with the
UCLA Lovaas program, C. M.'s therapy was increased to 40
hours a week and her amount of time in school decreased. The
father met with Candy Priest, the special education supervisor
for the Respondent, and requested a copy of C.M.'s student
records. At that time, Ms. Priest informed the father that the
school system could provide special education services to C.M.
at her private school. The father declined the offer, indicating
that he and his wife did not want the private school to know
that C.M. had autism.
52a
29. In December 1994, the father contacted Candy Priest to
request that the school system begin paying for the Lovaas
program. Ms. Priest indicated that it would be necessary for the
parents and school personnel to meet to discuss C.M.'s
educational needs and to determine an appropriate educational
placement for her. In January and February 1995 the parents
and school personnel held a series of meetings to develop an
IEP for C.M.
30. While in the process of developing the IEP, Judy Cook, the
Director of Exceptional Children's Programs, and Sharon
Burlingame, a special education teacher, visited the Petitioners’
home to observe the use of Lovaas therapy with C.M. Judy
Cook testified that C.M. appeared very tired during the therapy
and hit herself in the face several times out of apparent
frustration and weariness .
31. On February 15, 1995, a final IEP meeting was held. At
that time, the school based committee considered four possible
programs for C.M.: the Helping Hand Classroom, Sharon
Burlingame's classroom, the TEACCH classroom at Bruce
Drysdale school and the Lovaas program. The committee
recommended that C.M. be placed in a full-day program for
autistic students at Bruce Drysdale school with some
mainstreaming in a regular kindergarten classroom. The
Petitioners continued to request that the school system pay for
the Lovaas program. Judy Cook indicated in the meeting that
it was her belief that the Lovaas program was too restrictive for
C.M. and that the program offered by the school system was
more appropriate. The parents pointed to the Lovaas study and
53a
indicated that unless the school system could provide
comparable data showing 47% of the students becoming
indistinguishable from regular education students then they felt
the Lovaas program was the best option. From testimony of the
parents, it was clear that they thought their daughter could
"recover" from autism.
32. The next day, February 16, Judy Cook sent the Petitioners
a letter detailing the rationale behind the school-based
committee's decision. Mrs. Cook enclosed a Parent's Rights
Handbook and explained in the letter that the Petitioners could
pursue a due process hearing in light of their disagreement with
the school system's offer of services. No attempt was made by
the parents to pursue the due process hearing, even though they
disagreed with the Respondent's proposed program.
33. The Petitioners initially indicated in the spring of 1995 that
they would like to pursue mediation with the school system
over the placement decision. Although attempts were made to
schedule a mediation, it never occurred. In May 1995, the
Petitioners wrote to Judy Cook and stated that they had
obtained representation by the Governor's Advocacy Council
and that they were not available for mediation. The Petitioners
never pursued mediation after that point.
34. Atthe end of June 1995, the Petitioners requested that the
school system pay for an independent educational evaluation of
C.M.. Because the most recent evaluation of C.M. was at that
point over a year and a half old, Judy Cook requested that the
school system be allowed to test C.M. first and that the
54a
Petitioners could obtain an independent evaluation if they
disagreed with the results of the school System's evaluation.
35. Anevaluation of C.M. was conducted by school personnel
in August and September 1995. In October 1995 the
Petitioners and school personnel met to review the results of
the evaluation. The mother requested that one portion of the
testing be readministered. It was redone but the results did not
markedly change.
36. Because the IEP offered by the schools in February 1995
and rejected by the parents was to expire in January 1996,
school personnel invited the parents to meet in November 1995
to begin developing an new IEP. A school-based committee
meeting was held in November and at that time school
personnel presented to the Petitioners a draft IEP to begin the
discussions. The Petitioners stated that C.M. had already
mastered many of the proposed goals and objectives. Some
time after the meeting, the Petitioners provided school
personnel with a copy of the draft IEP that had been reviewed
by Michael Guiou, their UCLA Lovaas consultant, and on
which Mr. Guiou indicated many areas that C.M. had
"mastered."
37. The concept that skills had been "mastered" was discussed
at length during hearing. It is apparent that the Lovaas program
uses the term "mastered" in a very unique fashion. If a child is
successful in demonstrating the skill in the Lovaas therapy
using discrete trial teaching (one-on-one), the skill is
considered mastered. Extensive records were maintained by the
55a
Petitioners regarding this "mastery." The record, however,
clearly shows that C.M. could not perform many of those
"mastered" skills in other environments, such as the school
setting. Also, a significant discrepancy was noted between the
performance of the child on standardized instruments used in
evaluations and the parents records showing mastery. Many or
the skills reported as "mastered" in the parents therapy records
were not actually "mastered."
38. December 1995 the Petitioners renewed their request for
an independent educational evaluation stating that the
evaluation conducted by school personnel was insufficient.
Judy Cook replied that the parents could pursue an independent
evaluation and they would be reimbursed up to $1200 (the
school system's maximum amount for independent
evaluations).
39. On January 3, 1996 the Petitioners and school personnel
jointly agreed to postpone the development of C.M.'s full IEP
for the 1996-97 year until the independent evaluation was
completed. C.M.'s speech therapy IEP was reviewed and
services continued to be provided by Respondent.
40. Judy Cook provided the Petitioners with a list of licensed
professionals in the area who could perform an independent
evaluation. The Petitioners rejected all those listed, and
informed Ms. Cook that they were obtaining an evaluation
from outside the state. Ms. Cook again notified the parents of
the $1,200 reimbursement limit for independent evaluations.
From testimony of the Petitioners, it was apparent that they did
56a
not want an unbiased evaluator to evaluate C.M. They clearly
wanted an evaluator who had been involved with the Lovaas
program and would favor that methodology.
41. In January 1996, long before the independent evaluation
was complete, the Petitioners wrote to Michael Guiou, their
Lovaas consultant, stating that C.M. will be attending a small
private school next year with eight or nine children and that the
teacher of the class would be working with C.M. over the
summer.
42. In March 1996, Dr. Jan Handleman, an educator and
professor in New Jersey, conducted an assessment of C.M. Dr.
Handleman had prior experience with the Lovaas program.
His assessment consisted of areview of C.M.'s file, a videotape
provided by the Petitioners, and an observation of C.M.
working with her Lovaas therapist. Dr. Handleman conducted
no formal testing. The assessment, provided to school
personnel in early April 1996, provided no information on —
C.M.'s present level of educational performance, a necessary
element for the development of an IEP. The primary
recommendation of Dr. Handleman's report was that C.M.
continue to be served by the Petitioner's Lovaas program.
43. The Petitioners were reimbursed for a total of $1,200 for
Dr. Handleman's assessment. The total cost, including related
travel expenses, was alleged to be $2,648.21. The Petitioners
provided no unique circumstances for such a high cost of the
assessment, especially since many qualified local professionals
could have performed the assessment for $1,200 or less. The
57a
Respondent introduced evidence that there were numerous
evaluators who could have performed the evaluation within this
cost limit. Because of the Respondent’s refusal to reimburse
the full amount, the Petitioners filed their first Petition for a
Contested Case Hearing on June 25, 1996. Initial proceedings
for the case, 96 EDC 0766, were begun by Judge Mann. No.
hearing was held in this initial case, for in the interim, the
Petitioners filed a subsequent Petition for the case, for in the
interim, the Petitioners filed a subseqquent Petition for the case,
96 EDC 1708, and asked for the cases to be consolidated.
Judge Mann consolidated the two cases, including the initial
case in its wntirety within 96 EDC 1708.
44. The parents and their Lovaas consultant, Mr. Guiou, had
both indicated that C.M. had mastered many of the draft goals
and objectives on the last proposed IEP, and this was
inconsistent with the most recent testing that was done in
Augustand September of 1995. School officials were expecting
to obtain relevant information from Dr. Handleman's report.
Such was not the case. Dr. Handleman's report was not
sufficient to assist in IEP development. As a result, the school
system sought the assistance of Dr. Victoria Shea, an expert in
autism, to informally assess C.M. in order to provide
information for IEP development.
45. The Petitioners agreed to Dr. Shea's involvement. Dr. Shea
reviewed all of the records available on C.M. and observed her
in both her home program and at her private school on May 20,
1996. Dr. Shea also observed in two public school classrooms
that could possibly be used as placements for C.M. Dr. Shea
58a
noted that C.M. was very compliant during the observation
period but that she became quite confused when whe was not
given prompts: C.M. did not initate any contact with her peers
during the observation period at school. It appeared that C.M.
had memorized some language but was unable to use that
language functionally in many cases.
46. Dr. Shea recommended that IEP goals be written in several
specific areas. In particular, C.M. needed work in developing
independence and functional language. Self-help skills and
academics should also be emphasized.
47. Although Mr. Guiou and the Petitioners indicated that
C.M. had mastered numerous skills, C.M. was not able to
perform those skills when Dr. Shea observed her. In light of the
conflicting information regarding C.M.'s performance levels,
Dr. Shea advised that C.M. should be given more assessments
to gauge her present level of functioning.
48. The evidence showed that the skills that Mr. Guiou and the
Petitioners claimed C.M. had "mastered" in February of 1996,
were not mastered in the school environment as documented by
C.M.'s teachers at the preschool in which she was then enrolled.
The teachers, responding to a questionnaire from the mother,
noted that many of the goals which had been proposed for
C.M.'s IEP in November 1995 were either not attained or were
emerging by May 1996. Mr. Guiou's report of C.M.'s mastery
was not reliable. The evidence also showed that the skills
claimed as "mastered" by Petitioners at the time of the hearing,
were not "mastered" in the school environment or across all
59a
settings but rather only mastered in the one-on one therapy
environment. These inconsistencies caused the school system
to question the evaluation information being provided by the
Petitioners and it became even more important for school
personnel to do additional observations or informal assessments
in order to develop an IEP.
49. On May 29, 1996, Laurie McDanel and Janna Forst visited
the Petitioners’ home in order to observe C.M. in her Lovaas
program. The purpose of the visit was to gather more
information on C.M.'s present level of performance for the IEP
development. Ms. McDanel testified that when she and Ms.
Forst entered C.M.'s therapy room, C.M. did not look up or
acknowledge their presence. She noted that the therapy
appeared to elicit information from C.M.'s rote memory, rather
than eliciting spontaneous communication. As a professional
educator, Ms. McDanel believed the therapy to be too intense
in light of the limited amount that C.M. was able to do during
the time period.
50. In order to follow up on the visit, Ms. McDanel met again
with the mother prior to the IEP meeting to discuss C.M.'s
present level of performance and her needs. This information
was used in developing the IEP.
51. An IEP meeting was scheduled for June 5, 1996.
Following Dr. Shea's recommendation, Judy Cook requested
that a teacher administer the Brigance test with C.M. prior to
the meeting so that the IEP committee would have very current
information on C.M.'s current level of academic functioning.
60a
The Petitioners would not agree to the administration of the
Brigance by school personnel and instead stated that they
would have it done privately and requested that the IEP
meeting be rescheduled.
52. In late July 1996, the Petitioners took C. M. to be
evaluated by Dr. Thomas Boyle, a private psychologist in New
Jersey who had worked with Dr. Lovaas. Dr. Boyle conducted
intelligence and achievement testing with C.M. Dr. Boyle
admitted in his report and in his testimony that he deviated
from standard administration of the tests in several areas in
order to try to elicit responses from C.M. He also
acknowledged that these deviations from the norms could have
resulted in inflating C. M.'s scores on the testing. At the
parents’ request, Dr. Boyle did not report C. M.'s IQ score in his
evaluation report. Her IQ placed her in the mildly mentally
handicapped range. Her achievement scores indicated that she
was functioning at the beginning kindergarten level in math and
reading. Dr. Boyle testified that C.M. needed lots of prompting
during the testing and that sometimes he had to reword
questions to elicit responses from her.
53. Dr. Boyle's report recommended continuation of the
Lovaas program with C.M. including 15-20 hours of one-on-
one discrete trial teaching. There was nothing in Dr. Boyle's
testing results which would lead to the conclusion that the only
appropriate program for C.M. would be the Lovaas therapy
using discrete trial teaching or 15-20 hours of one-on-one.
6la
54. The Petitioners also hired Dr. Jan Blacker, an education
professor from California, to visit the Respondent's classrooms
for autistic students and to observe C.M. in her home program.
Dr. Blacker testified that her area of expertise is not autism. In
her correspondence with the parents and prior to visiting the
school system or having any contact with C.M., Dr. Blacker
stated that she would do everything she could to assist them in
getting funding for their home program. Dr. Blacker visited the
classrooms in August 1996, however, none of the opinions or
information gathered in Dr. Blacher’s visit were shared with
school personnel during the IEP development process in
August and September 1996.
55. An IEP meeting was held on August 14, 1996. The
Petitioners attended with their attorneys. At that time the
committee began developing goals and objectives for the IEP
based on the evaluation reports, the observations, and the
parents’ input regarding C.M.'s progress in her home program.
The present level of performance in many areas of the IEP was
based solely on parent report because no other information
about C.M.'s skill levels was available.
56. At the time of the IEP meeting, the mother’s monthly
documentation in the home program noted that "C.M. has
forgotten a lot of information. Much of what she learned was
never generalized completely." The mother testified that she
realized C.M. had not generalized skills after receiving Dr.
Boyle's report.
62a
57. After the August 14 meeting the Petitioners requested that
another meeting be held in mid-September so that their Lovaas
consultant, Michael Guiou, could attend and participate in the
IEP development. A meeting was held on September 13, 1996,
which the parents attended along with Mr. Guiou.
58. Ample evidence was admitted in the hearing through both
testimony and exhibits that C.M.'s immediate needs, at the time
of the IEP meeting, was the development of her social and
communication skills. She also needed to become more
independent and not have to rely so much on constant
prompting by adults.
59. Despite the fact that C.M. was having significant behavior
problems at home and in school at that time, the Petitioners did
not share that information with school personnel. The mother
also indicated that she could not recall if she had shared
information on C.M.'s aggressive behaviors with Dr. Boyle and
Dr. Handleman. Dr. Boyle testified that he had no information
about C.M.'s behavioral status at the time of his evaluation. The
Petitioners later criticized school personnel for not having
created a behavioral management plan in the IEP, even though
school personnel had no way of knowing C.M.'s behavior was
a problem. Behavioral management plans are necessary
components in the IEP only if the child's behavior interferes
with the child's ability to participate in the educational
program.
60. On September 23, 1996, a final IEP meeting was held. The
Petitioners attended along with their attorneys. At that time,
63a
both the parents and school personnel agreed that the goals and
objectives on the IEP were appropriate. The committee then
discussed possible placements for C.M. There was extensive
discussion of her need for one-on-one instruction and her need
for development of social and communication skills. The
committee proposed that C.M. spend half of the school day in
a regular kindergarten class with a one-on-one assistant; one
hour a day working independently with monitoring in Laurie
McDanel's classroom for autistic students, and one and a half
hours a day receiving one-on-one instruction in academic areas
in a separate room with Laurie McDanel. Ms. McDanel's class
was structured according to the TEACCH model and
consultative services were available from TEACCH. The IEP
also called for three hours a week of speech services (two hours
of direct services and one hour of consultation between the
speech therapist and C.M.'s teachers).
61. The kindergarten time would be used to work on C.M.'s
social skills and communication skills because in the classroom
she would have opportunity for peer modeling and interaction.
The one-on-one instruction could include some discrete trial
teaching but would not be limited to that one method of
instruction. In guided practice, C.M. would work in her specific
work area in the classroom doing work that had been taught in
the one-on-one setting.
62. Laurie McDanel's classroom has two teaching assistants,
both of whom have been trained to work with autistic students.
A primary goal in Ms. McDanel's classroom is to teach the
students to work independently. Each student works
64a
independently for part of the day. Data is kept by the teacher
and teaching assistants as to how well the student is completing
his or her individual work and progress is noted on the student's
IEP. A daily anecdotal log is kept of the each mainstreamed
Student’ s progress in the regular classroom.
63. Although there was agreement that the goals and
objectives of the IEP were appropriate, the Petitioners rejected
the placement offered by the Respondent. The Petitioners made
it clear in the IEP meeting and later in testimony during the
hearing that the only placement acceptable to them was in their
Lovaas program. Their goal throughout the process was to
obtain funding from the Respondent for their Lovaas program.
64. Following the IEP meeting and up to the time of the
hearing, the Petitioners chose to maintain C.M. in their Lovaas
program and half-day enrollment in a private school. The
Lovaas program was being maintained for as much as 47 hours
each week, including the discrete trial teaching, the private
school program, peer play, and speech therapy. A Lovaas
therapist accompanied C.M. at all times in the school setting
for the purpose of providing the necessary prompts and to
control behavior. The father testified that the total expected cost
of the home program for the 1996-97 school year would be
between $45,000-$50,000.Althoughthe Petitionersrejected the
placement offered by the Respondent, they chose to utilize the
goals and objectives of the IEP in their program. Clearly they
felt that the IEP was appropriate.
65a
65. Following their rejection of the placement offered by the
Respondent, the Petitioners filed a second Petition for a
Contested Case Hearing on November 1, 1996.
66. In February 1998, just before the hearing, the Petitioners
had C.M. reevaluated by Dr. Boyle. The testing showed that
C.M.'s academics were still on beginning kindergarten level (as
they had been during his testing eight months earlier).
Although C.M. could decode words at the beginning second
grade level she was completely unable to perform on the
comprehension tests. In other words, she could read words at
the beginning second grade level, but was unable to
comprehend what she was reading. The IQ testing again
showed C.M. to be functioning in the mild mentally
handicapped range. Dr. Boyle also conducted some testing of
C.M.'s expressive and receptive language. Comparing Dr.
Boyle's results with the results of the testing done by the speech
therapist in 1995, C.M. had made little progress, particularly in
her receptive language.
67. Throughout the hearing before the ALJ, extensive
testimony was given contrasting the methodology used in the
Lovaas program with that used in the TEACCH program. More
time was devoted to this issue than the primary issue to be
decided, whether the Respondent offered a free appropriate
public education to C.M.
68. Although the hearing was to focus on the appropriateness
of the 1996-97 IEP, extensive testimony was given and
exhibits entered that pertained to the the entire history of the
66a
relationship between the Petitioners and Respondent. The
Petitioner was able to enter, often over objections by the
Respondent, a rather detailed record of C.M.'s education since
1993. Thus the Review Officer was able to get a relatively clear
understanding of events and educational programming that
technically had been foreclosed because the Partial Summary
Judgment that was granted by Judge Mann on March 24, 1997.
69. Following the filing of the Petition for a Contested Case
Hearing on November 1, 1996, extensive discovery
proceedings ensued. The hearing was initially scheduled to
begin on January 7, 1997. Several motions were made,
continuances granted, and orders issued. The hearing was
rescheduled several times.
70. On February 14, 1997, the Respondent filed a Motion for
Summary Judgment. A Hearing on Motions was held by Judge
Mann on February 27, 1997, following which Judge Mann
granted partial summary judgment for the Respondent. As the —
time for the hearing was approaching and his ruling would have
a definite impact on the proceedings, Judge Mann announced
his ruling in a phone conference with the parties on March 5,
1997. He issued his formal Order on March 24, 1997.
71. In his February 27, 1997 Order, Judge Mann granted
summary judgment for the Respondent regarding Petitioners
alleged cost of an independent evaluation over and above the
Respondent's payment of $1,200. This action effectively
dismissed the original contested case that was filed June 25,
1996.
67a
72. In his February 27, 1997 Order, Judge Mann also granted
summary judgment for the Respondent on all of Petitioners’
procedural and substantive claims prior to the development of
the 1996-97 IEP. This action effectively limited the issue in the
subsequent hearing to the appropriateness of the 1996-97 IEP.
73. As the hearing began on March 17, 1997, Judge Mann
heard arguments related to Petitioners' Motions for Sanctions
for Affidavit Presented in Bad Faith and Petitioners’ Motion for
Reconsideration, Rehearing and Relief from Judgment. Judge
Mann denied these motions. A formal Order was issued on
March 24, 1997.
74. The Orders of Judge Mann issued March 24, 1997 granting
Partial Summary Judgment, denying Petitioners’ Motions for
Sanctions for Affidavit Presented in Bad Faith and Petitioners'
Motion for Reconsideration, Rehearing and Relief from
Judgment later became issues that were appealed.
75. By Order on March 17, 1997, following a hearing on
Petitioners’ motions, at 12:37 P.m Judge Mann reassigned the
case to Judge Meg Scott Phipps. Judge Phipps conducted the
remainder of the nineteen day hearing.
76. Following the hearing, Judge Phipps accepted Arguments
and Proposed Findings of Fact and.Conclusions of Law from
both parties. Judge Phipps announced her decision by letter on
November 19, 1997 and requested the Respondent's counsel to
assist in preparing the final decision. Judge Phipps accepted the
majority of the proposed findings and conclusions provided by
68a
Respondent's counsel, and with minor editing and additions,
issued her Final Decision on December 1 1, 1997.
77. Based on Findings of Fact and Conclusions of Law, the
Decision of Judge Phipps favored the Respondent and included
the following:
a. C.M.'s proposed IEP for the 1996-1997 school year
was appropriate.
b. In order for the IEP to provide the maximum
educational benefit to her, the’ one-on-one aide should be
trained in the Lovaas method (discrete trial method) in
order to assist C.M. in the transition to the public school
system and the TEACCH program.
78. On December 20, 1997 the Petitioner filed Notice of
Appeal with the State Superintendent of Public Instruction. F or
reasons not known, but possibly because of the Christmas
holiday period, the request for review was not received in the
Exceptional Children Division office until January 9, 1998.
That office has responsibility for initiating the review.
79. By letter dated January 12, 1998, and received January 24,
1998, the State Superintendent of Public Instruction appointed
the undersigned Review Officer to review the case.
80. On January 26, 1998, the Review Officer requested written
arguments concerning the ALJ's Decision from both parties. As
the 30 day time limit allotted for the review had already passed,
the Review Officer also extended the time for completion of the
69a
review. The review was to be completed within 30 days of
receipt of case records. The records of the case were received
from the Office of Administrative Hearings on January 30,
1998.
81. Counsel for both Petitioners and Respondent submitted
written arguments on February 20, 1998.
Based on the Findings of Fact, the undersigned Review Officer
makes the following:
CONCLUSIONS OF LAW
1. The Administrative Law Judge and the Review Officer
have jurisdiction with regard to this case pursuant to Chapters
115C and 150B of the North Carolina General Statutes and 20
U.S.C. §1400 et. sec., the Individuals with Disabilities
Education Act (IDEA).
2. The Respondent is subject to the provisions of applicable
federal and state laws, specifically 20 U.S.C. §1400 et. sec.
(IDEA) and N.C.G.S. 115C, Article 9. These acts prohibit
discrimination because of disabilities and require the
Respondent to provide a free appropriate public education for
those children in need of special education residing within the
jurisdiction of the local educational agency (LEA). The
Respondent is the LEA responsible for providing educational
services in Henderson County.
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3. The child, a resident of the LEA, is achild witha disability
for the purposes of IDEA, 20 U.S.C. §1400 et. sea. and a child
with special needs within the meaning of N.C.G.S. 115C,
Article 9. Being classified as autistic, she is entitled to a free
appropriate public education.
4. The due process requirements for parents and children of
N.C.G.S. 115C116; Section .1517 of The State Procedures
Governing Programs and Services for Children with Special
Needs; 20 U.S.C. §1415; and 34 C.F.R. 300.500 et. sec,. were
provided to Petitioner. This included provision of a Parent's
Handbook to the Petitioners several times.
5. With regard to the partial summary judgment denying
reimbursement for an independent evaluation, the Petitioners
provided no unique circumstances that justified a
reimbursement in excess of the reasonable limit set by the
Respondent. The parents were indeed entitled to an
independent evaluation of their child, at the expense of the
schools, to assist in the provision of an appropriate education
for their child. (34 C.F.R § 300.503) This was even
acknowledged by the Director of the Exceptional Children's
Program in a letter to the Petitioners. The reasonable limit of
$1,500 was clearly communicated to the Petitioners prior to the
parents choosing to go to New Jersey to obtain an independent
evaluation. It is permissible for a school district to establish
reasonable maximum allowable charges for independent
evaluations, as long as the districtprovidesadvance notification
of that limitation and gives parents an opportunity to
demonstrate unique circumstances for exceeding that limit. The
Tla
sole reason for the Petitioners’ choice of the psychologist in
New Jersey is to utilize an examiner known to be favorable to
their chosen methodology for teaching their child. This is not
a unique circumstance.
6. The evaluation of a child for the purpose of determining
the educational needs of that child is independent of a particular
methodology that may be used in delivering the educational
program to that child. Several licensed psychologists, with no
affiliation with the school system or the TEACCH
organization, were available in the region and in North
Carolina. A list of available professionals was also provided to
the Petitioners prior to their choosing the psychologist in New
Jersey. These independent psychologists were capable of
evaluating the child. The record is clear that they could and
would have evaluated the child for a cost at or below the
$1,200 limit established by the Respondent. The Petitioners
argument that they are entitled to the excessive costs is without
merit.
7. The partial summary judgment for the Respondent
regarding the appropriateness of the educational program
offered prior to the 1996-97 IEP was in accordance with
established law in North Carolina. The 60 day deadline for
filing for a contested case hearing is clearly spelled out in the
Handbook on Parents’ Rights, which had been provided to the
Petitioners. It is unquestioned that the Petitioners unilaterally
withdrew C.M. from the Respondent's program in November
1993. At that time they did not express any dissatisfaction with
the program being offered with the Respondent. In the ensuing
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period, up until November 1, 1996, the Respondent made offers
of educational programs for C.M. on several occasions. In each
instance, except for the acceptance of speech services, the
Petitioners refused the IEP’s offered by the Respondent.
Although the record is clear that the Petitioners did not like the
IEP's offered because their preferred methodology was not
included, they never instituted proceedings available under
IDEA and N.C.G.S. 115C, Article 9 to challenge the
educational program offered by the Respondent. It was not
until November 1, 1996, following the refusal of the 1996-97
IEP, that the Petitioners finally instituted these proceedings.
Again, the Petitioners were well informed of their rights. They
had received the Handbook on Parents’ Rights. They were
informed in letters from the Respondent of their rights. As of
the Spring of 1995, the Petitioners were also represented by
counsel. It is interesting to note that the parents initially filed a
due process petition in June 1996, but only for reimbursement
of excessive costs of an independent evaluation. It was not until
November 1, 1996 that the parents fi
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