In the Matter of R. M. Kevin McCarthy, et al., Relators, vs. Independent School District 284 (Wayzata Public Schools), Respondent, Commissioner of Education, Respondent.

In the Matter of R. M. Kevin McCarthy, et al., Relators, vs. Independent School District 284 (Wayzata Public Schools), Respondent, Commissioner of Education, Respondent. A04-1882, Court of Appeals Unpublished, June 14, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1882

 

In the Matter of R. M.

 

Kevin McCarthy, et al.,

Relators,

 

vs.

 

Independent School District 284 (Wayzata Public Schools),

Respondent,

 

Commissioner of Education,

Respondent.

 

Filed June 14, 2005

Affirmed

Gordon W. Shumaker, Judge

 

Minnesota Department of Education

File Nos. MDE File 600; OAH #12-1300-15937-9

 

Katherine L. MacKinnon, 3744 Huntington Avenue, St. Louis Park, MN 55416-4918 (for relators)

 

Paul C. Ratwik, Sonya J. Guggemos, Ratwik, Roszak & Maloney, P.A., 300 U.S. Trust Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondent school district)

 

Mike Hatch Attorney General, Martha J. Casserly, Assistant Attorney General, 1200 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent commissioner)

           

            Considered and decided by Dietzen, Presiding Judge; Shumaker, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

            Relators appeal from a hearing officer's order determining that respondent Wayzata public school district's proposed educational plan was appropriate and that relators were not entitled to reimbursement for educational services they independently obtained.  Relators argue that respondents failed to provide their son, R.M., with a free and appropriate public education (FAPE) because (1) respondents did not comply with the procedural safeguards required by the Individuals with Disabilities Education Act (IDEA), and (2) respondents failed to create an appropriate individualized education program designed to provide R.M. with educational benefit.  Because the hearing officer did not err in determining that respondents provided FAPE to R.M. and in denying relators' claims for reimbursement and compensatory education, we affirm.

FACTS

Relators are the parents of R.M., a minor child currently attending Oakwood Elementary School in the Wayzata public school district, I.S.D. No. 284.  Relators disagreed with respondents' proposal for the provision of special-education services for R.M. and requested a due-process hearing.  The hearing officer determined that the educational plan and proposed special-education services offered by the district were appropriate and denied relators' request for compensatory education and reimbursement.

Eligibility for Special-Education Services

            R.M. has had difficulty reading since kindergarten. The school district became aware of R.M's reading issues in first grade (2000-01 school year) and recommended a program called Reading Recovery.  Throughout R.M.'s second- (2001-02) and third-(2002-03) grade years, the school district provided R.M. with additional remedial reading services, including Reading Recovery and Title I. 

            Relators were dissatisfied with the services that the school district offered and decided to have R.M. independently evaluated for learning disabilities.  R.M underwent a neuropsychological evaluation at the Fraser Child and Family Center on October 4 and 15, 2001. The report indicated that R.M. did not have a learning disability in reading or writing and recommended that R.M. be reevaluated in one year.  Because of the Fraser evaluation, relators obtained private tutoring for R.M. in reading through April 2003. 

            R.M. began third grade in the fall of 2002, and relators continued to be concerned with his reading difficulties.  At the fall 2002 parent-teacher conference, relators shared the Fraser Center evaluation report with the district and requested a special-education assessment.  On December 9, 2002, relators were given the required Notice of Educational Assessment form but were not given the Parent Rights and Procedural Safeguards brochure.  On February 4, 2003, a meeting was held to discuss the results of R.M.'s evaluation.  Relators acknowledge that they received the procedural safeguards brochure prior to the February meeting.  At that meeting, it was determined that R.M. did not qualify for special-education services based on the results of the evaluation.  The district explained that R.M. did not demonstrate a "severe discrepancy" between his academic achievement and his cognitive ability.  But district personnel did not inform relators that a team override was available if the assessment results were inconsistent with classroom performance.  Relators disagreed with the results of the assessment but did not request a due-process hearing. 

            Because R.M. did not qualify for special-education services, relators decided to have him privately evaluated in February 2003.  Dr. Lynne Ann Blum evaluated R.M. and stated that R.M. did not have a learning disability and was not dyslexic.[1]  

            Relators continued to be concerned about R.M.'s reading problems, and in August 2003, R.M. was evaluated for visual-and-auditory processing deficits by The Reading Center, which specializes in dyslexia.  The Reading Center determined that R.M. had mild dyslexia and recommended reading instruction using the Orton-Gillingham method. 

At the beginning of R.M.'s fourth-grade year, his parents requested a meeting with his teacher and shared The Reading Center's evaluation.  In October 2003, a full individualized education plan (IEP) meeting was held to discuss the possibility of conducting another evaluation to determine R.M's eligibility for special-education services.  Relators were given the Notice of Procedural Safeguards brochure at this meeting, and it was decided that a second evaluation would be conducted within 30 days.  In November 2003, using the team-override procedure, the IEP team informed relators that R.M. qualified for special-education services. 

The IEP

            After determining R.M.'s eligibility for special-education services, the IEP team reconvened to draft R.M.'s individualized education plan.  On December 1, 2003, the district presented its first proposed IEP.  The IEP contained one broad reading goal and six general accommodations, and it required R.M.'s progress to be reported twice a year.  The IEP provided for 2.5 hours of direct special-education services each week.  Relators rejected this IEP, claiming that the amount of service was inadequate. 

            On December 19, 2003, relators sent to the district their proposal for the IEP.  The IEP contained five goals and a number of objectives, mandated very specific instructional methodologies, and required parental approval of teaching methods and materials. 

            On January 7, 2004, the district responded with a second proposed IEP.  This IEP incorporated some of relators' suggestions, listed seven additional accommodations, and revised R.M.'s annual goal.  It did not increase the number of hours of direct special-education services.  At a February 20, 2004 IEP meeting, relators continued to disagree with the district's proposed IEP. 

            The district sent to relators a third IEP proposal on February 26, 2004, adding a second annual goal and an additional accommodation.  But the district refused to increase the number of hours of direct special-education services each week.  Relators informed the district by letter that the third proposed IEP did not meet R.M.'s educational needs.  They requested reimbursement for all past tutoring and evaluation costs and demanded that the district pay for all future private tutoring costs. 

            Relators and the district continued to correspond throughout March and April 2004, but were unable to resolve their disagreements as to the provision of special-education services to R.M.  Finally, relators requested a due-process hearing on May 12, 2004.  That hearing culminated in the order from which this appeal was taken.

D E C I S I O N

Standard of Review

            Under Minn. Stat. § 125 A. 09 (2002), subd. 10, an appeal from the decision of the hearing officer is allowed in accordance with chapter 14, the Minnesota Administrative Procedures Act.  Proceedings for judicial review under chapter 14 are instituted by filing a petition for a writ of certiorari.  Minn. Stat. §§ 14.63, .64 (2002).  In 2003, Minn. Stat. § 125 A. 09 was repealed and replaced by Minn. Stat. § 125 A. 091 (Supp. 2003).  Although Minn. Stat. § 125 A. 091 does not specify the appropriate method of obtaining judicial review, this court has recently held that review of a hearing officer's decision shall be by writ of certiorari and in accordance with chapter 14.  In re Chisago Lakes Sch. Dist., 690 N.W.2d 407, 409 (Minn. App. 2005). 

            Section 14.69 provides the standard of review for challenges to special-education due-process decisions:

            In a judicial review under sections 14.63 to 14.68, the court may . . . reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative finding, inferences, conclusion, or decisions are:

            (a) in violation of constitutional provisions; or

            (b) in excess of the statutory authority or jurisdiction      of the agency; or

            (c) made upon unlawful procedure; or

            (d) affected by other error of law; or

            (e) unsupported by substantial evidence in view of the     entire record submitted; or

            (f) arbitrary and capricious.

 

Minn. Stat. § 14.69 (2004).

Both parties urge this court to apply the standard of review provided in the IDEA, in 20 U.S.C. § 1415(i) (2000).  Under the IDEA, a court reviewing a special-education due-process hearing decision "(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate."  20 U.S.C. § 1415(i)(2)(B) (2000).  The reviewing court must give "due weight" to the administrative proceedings in determining whether the school district has complied with the requirements of the IDEA.  Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 102 S. Ct. 3034, 3051 (1982). 

We decline to adopt the federal standard of review outlined in the IDEA.  It is not within the province of this court to "hear additional evidence at the request of a party" as required by the IDEA.  This court may not adopt a portion of the standard of review and ignore the remainder, as suggested by the parties at oral argument.  Therefore, the decision of the hearing officer will be upheld unless unsupported by substantial evidence or arbitrary or capricious.  Minn. Stat. § 14.69.  The Minnesota Supreme Court has "endorsed the following definition of ‘substantial evidence':  (1)  [s]uch relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) [m]ore than a scintilla of evidence; (3) [m]ore than some evidence; (4) [m]ore than any evidence; and (5) [e]vidence considered in its entirety."  Cable Communications Bd. v. Nor-West Cable Communications P'ship., 356 N.W.2d 658, 668 (Minn. 1984).  "The reviewing court is not to retry the facts or make credibility determinations."  Senior v. City of Edina, 547 N.W.2d 411, 416 (Minn. App. 1996).

1.         A Free and Appropriate Public Education

            The IDEA provides federal funds to help states in the education of disabled children.  E.S. v. Indep. Sch. Dist. No. 196, 135 F.3d 566, 569 (8th Cir. 1998).  States are required to provide all disabled students a "free and appropriate public education" (FAPE) through the creation of an individualized education plan (IEP) specifically drafted to meet the student's educational needs.  20 U.S.C. § 1412(a)(4) (2000 & Supp. 2005).  FAPE is defined as:

[S]pecial 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(d) of this title.

 

20 U.S.C. § 1401(9) (Supp. 2005).

The United States Supreme Court has determined that whether FAPE is met is a two-part inquiry:  (1) whether the state has complied with the procedures set forth in the Act; and (2) whether the IEP developed through the Act's procedures is "reasonably calculated to enable the child to receive educational benefits."  Rowley, 458 U.S. at 206-07, 102 S. Ct. at 3051.  Further, federal courts must be careful to avoid imposing their views of preferable methods on the states.  Id. at 207, 102 S. Ct. at 3051.  The responsibility for "formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child's needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child."  Id.

a.         District compliance with the procedures outlined in the IDEA

            Relators argue that the school district failed to comply with the procedures established by the IDEA when:  (1) the district failed to provide them with the Notice of Procedural Safeguards brochure at the start of the assessment process in February 2003;  (2) the district failed to provide them with adequate written notice of whether R.M. qualified for special-education services; and (3) the district failed to respond to their reasonable inquiry regarding methods to qualify R.M. for special-education services. 

            The IDEA contains numerous procedural requirements to ensure that disabled children receive FAPE.  Specifically, the IDEA requires that the procedural safeguards include the following:

(3) written prior notice to the parents of the child whenever such agency

            (A) proposes to initiate or change; or

            (B) refuses to initiate or change;

the identification, evaluation, or educational placement of the child, in accordance with subsection (c) of this section, or the provision of a free appropriate public education to the child.

 

20 U.S.C. § 1415(b)(3) (Supp. 2005).  The intention of Congress in the enforcement of the IDEA's procedural safeguards is that "parents of a handicapped child will have adequate input in the development of the child's IEP."  Indep. Sch. Dist., No. 283 v. S.D., 88 F.3d 556, 562 (8th Cir. 1996).  Although the importance of the procedural guidelines outlined in the IDEA cannot be underestimated, the Eighth Circuit has adopted "what amounts to a harmless error standard, by which to review claimed procedural deficiencies . . . ."  Moubry v. Indep. Sch. Dist. 696, Ely, Minn., 9 F. Supp. 2d 1086, 1102 (D. Minn. 1998).  Further, procedural inadequacies will warrant action only when the deficiencies "compromised the pupil's right to an appropriate education, seriously hampered the parents' opportunity to participate in the formulation process or caused a deprivation of educational benefits."  S.D., 88 F.3d at 562 (quoting Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994 (1st. Cir. 1990)).

            Relators argue that their procedural rights were violated because they were not given the Notice of Procedural Safeguards brochure prior to R.M.'s initial assessment meeting in February 2003.  Although the failure to provide the procedural safeguards brochure at the start of the assessment process is a violation of the IDEA, relators have failed to demonstrate any substantial harm.  Relators assert that they would have been better advocates for R.M. had they received the brochure.  But relators had been staunch and active advocates for R.M. since his first-grade year.  The Fraser Center provided relators with information about PACER, a parent-advocacy organization, and recommended that they contact PACER as an additional resource for academic assistance.  Relators have fully participated in R.M.'s educational progress and have been involved in all of the district's attempts to assist R.M. with his reading difficulties.  Beginning with R.M.'s first-grade year, relators requested additional reading assistance for him.  They enrolled R.M. in Reading Recovery and Title I in first grade and expressed their concerns about R.M.'s reading to district staff.  Because of relators' zealous advocacy, R.M. received several interventions to address his reading ability, even before he became a candidate for special-education services.  Furthermore, relators did not dispute the initial assessment in December 2002, but rather contested the determination in February 2003[2] that R.M. was not eligible for special-education services.  The failure to receive the procedural-safeguards brochure at the start of the assessment process did not compromise R.M.'s education or result in any deprivation of educational benefit. 

Relators argue that the district failed to comply with the IDEA's procedural requirements when it did not disclose the team-override provision for determining eligibility for special-education services.  A school district must provide the parents with notice before it either initiates or declines to initiate or change the educational placement of a student with a disability.  Minn. Stat. § 125 A. 091, subd. 2 (2000).  Prior written notice must

(1)  describe the action the district proposes or refuses;

(2) explain why the district proposes or refuses to take the action;

(3)  describe any other option the district considered and the reason why it rejected the option;

(4)  describe each evaluation procedure, test, record, or report the district used as a basis for the proposed or refused action;

(5) describe any other factor affecting the proposal or refusal of the district to take the action;

(6)  state that the parent of a child with a disability is protected by procedural safeguards and, if this notice is not an initial referral for evaluation, how a parent can get a description of the procedural safeguards; and

(7)  identify where a parent can get help in understanding this law.

 

Minn. Stat. § 125 A. 091, subd. 3.  Relators argue that the school district should have disclosed the team-override provision and the reasons why it was not used to qualify R.M. for special-education services.  To qualify a student using the team-override provision, certain requirements must be met:

            (A) The pupil's record must contain documents that explain why the standards and procedures used with the majority of pupils resulted in invalid findings for this pupil.

 

            (B) The record must indicate what objective data were used to conclude that the pupil has a disability and is in need of special instruction and related services.  These data include, for example, test scores, work products, self-reports, teacher comments, medical data, previous testings, observational data, ecological assessments, and other developmental data.

 

            (C)  Because the eligibility decision is based on a synthesis of multiple data and not all data are equally valid, the team must indicate which data had the greatest relative importance for the eligibility decision.

 

            (D) The team override decision must be signed by the team members agreeing to the override decision.  For those team members who disagree with the override decision, a statement of why they disagree and their signature must be included.

 

Minn. R. 3525.1354, subpt. 1 (2003). 

The hearing officer correctly determined that the district did not fail to inform relators that qualification for special-education services could be accomplished using the team-override provision.  Based on the results of R.M.'s assessment, his classroom performance was consistent with his standardized test scores and therefore he would have remained ineligible for special-education services even under the team-override provision.  This is consistent with the findings of the parents' privately retained psychologist, Dr. Lynne Ann Blum, who also assessed R.M.'s reading needs.  Dr. Blum's report that R.M. did not have a learning disability and was not dyslexic further supported the school district's conclusion in February 2003 that placement in special education was unwarranted. 

Finally, relators contend that the district's failure to respond to their inquiry about other methods of determining eligibility for special education also violated the procedural guidelines of the IDEA.  At the February 2003 meeting, R.M.'s father asked district staff if there was any way around the severe-discrepancy formula for determining eligibility for special-education services.  Relators argue that the district should have informed them at that time of the existence of the team-override provision.  But the district correctly states that the IEP team is not required to review inapplicable methods of qualification for special-education services.  Based on the evaluations and observations by district staff, as well as the private evaluations obtained by relators, R.M. was not entitled to special-education services.

b.         The educational benefit of the proposed individualized education program

            The second part of the court's inquiry under Rowley is whether the IEP is "reasonably calculated to enable the child to receive educational benefits."  458 U.S. at 207; 102 S. Ct. at 3051.  Although the IDEA requires that school districts provide a free and appropriate education to disabled students, "it does not require a school district to provide a child with the specific educational placement [the] parents prefer."  Blackmon v. Springfield R-XII Sch. Dist., 198 F.3d 648, 658 (8th Cir. 1999).  Further, the IDEA does "not require that a school either maximize a student's  potential or provide the best possible education at public expense."  Fort Zumwalt Sch. Dist.  v. Clynes, 119 F.3d 607, 612 (8th Cir. 1997).  Therefore, the requirements of the IDEA are satisfied when a district offers individualized education and services sufficient to provide disabled children with some educational benefit.  Id.

            Relators argue that the district failed to provide R.M. with educational benefit because the proposed IEP did not include Orton-Gillingham instruction and ten hours of direct special-education services each week.  The entire IEP team supported the proposed IEP.  Although relators believe that Orton-Gillingham instruction is the best possible methodology to improve R.M.'s overall reading, the district is not required to provide "a potential-maximizing education."  Rowley, 458 U.S. at 197 n.21, 102 S. Ct. at 3046 n.21.  Additionally, relators were unable to demonstrate that Orton-Gillingham instruction was the only teaching strategy that would provide R.M. with educational benefit.  In fact, the hearing officer determined that over-reliance on one specific strategy may have impeded R.M.'s reading progress.  Further, the amount of service requested by relators would remove R.M. from his regular-education classroom, thereby negating the IDEA's "strong preference that handicapped children attend regular classes with children who are not handicapped."  S.D., 88 F.3d at 561; see also Rowley, 458 U.S. at 202-03, 102 S. Ct. at 3049 (discussing the "mainstreaming preference" of the IDEA).  The hearing officer correctly determined that the district's proposed IEP would provide R.M. with educational benefit required by the IDEA.

2.         Reimbursement and compensatory education

            Relators argue that they are entitled to reimbursement for their out-of-pocket expenses in having R.M privately evaluated and tutored.  They also request compensatory education because R.M. was denied FAPE in his first-grade year. 

Reimbursement is proper when a student, identified as eligible for special education, is denied a free and appropriate public education, forcing the parents to obtain private educational services.  Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 369, 105 S. Ct. 1996, 2002 (1985).  "Reimbursement for private education costs is only appropriate when public school placement under an individual education plan (IEP) violates IDEA because a child's needs are not met."  Schoenfeld v. Parkway Sch. Dist., 138 F.3d 379, 382 (8th Cir. 1998); see also Gill v. Columbia 93 Sch. Dist., 217 F.3d 1027, 1037 (8th Cir. 2000) (explaining that parents are not entitled to reimbursement unless the district has failed to offer FAPE).  To state a claim for reimbursement, the parents must show that the district failed to offer FAPE and that their private placement was appropriate.  Gill, 217 F.3d at 1037.

Here, reimbursement is not appropriate for the private services relators obtained before R.M. was found eligible for special-education services.  Relators argue that the school district should have qualified R.M. for special-education services as early as the first grade.  They emphasize the testimony of Dr. Linda Siegel[3] that R.M. should have been identified as dyslexic by the end of his first-grade year.  But the label of "dyslexia" is not a guarantee that special-education services are mandatory or even appropriate.  As the hearing officer noted, it is not the label that is important but whether "the [reading] difficulty should have been considered serious enough to qualify for special education earlier . . . ."  After determining that the district staff provided persuasive opinions on an appropriate educational plan for R.M., the hearing officer concluded that the district did not fail to qualify R.M. for special-education services.  Further, relators' own privately obtained evaluations stated that R.M. did not have a learning disability and was not dyslexic.  The Fraser Center evaluation, done in 2001, stated that R.M.'s "academic achievement skills are commensurate with his intellectual abilities and do not suggest the presence of a learning disability."  Dr. Blum's evaluation in February 2003 also stated that R.M. "did not meet the diagnostic criteria for dyslexia."  Therefore, relators have not demonstrated that the district failed to appropriately identify R.M. as eligible for special-education services before November 2003. 

Compensatory education is proper when "the hearing officer finds that the district has not offered or made available to the child a free appropriate public education in the least restrictive environment and the child suffered a loss of educational benefit."  Minn. Stat. § 125 A. 091, subd. 21.  Here, the hearing officer determined that the school district's IEP proposals were appropriate and relators were unable to demonstrate that the proposed services would not provide R.M. with educational benefit.  Numerous educational professionals stated that the proposed IEP would more than adequately meet R.M.'s educational needs.  Specifically, special-education teacher Fuerstenberg and school psychologist Allen both testified that R.M. did not require ten hours of direct service each week.  Furthermore, the record supports the conclusion that the Orton-Gillingham instructional methodology was unwarranted when there was testimony that other teaching strategies could prove beneficial.  The hearing officer determined that Fuerstenberg had substantial experience teaching students with learning disabilities and "appears to be fully capable of being a good teacher for [R.M.] and for his dyslexia."  Fuerstenberg testified that she had experience with both the Reading Mastery and Read Naturally programs and believed R.M. would benefit educationally from Reading Mastery.  "As long as a student is benefiting from her education, it is up to the educators to determine the appropriate methodology."  E.S., 135 F.3d at 569.  Because relators cannot demonstrate that R.M. would not achieve some educational benefit from the district's proposed IEP, they are not entitled to compensatory education for R.M.

            We hold that the decision of the hearing officer is supported by substantial evidence and is not arbitrary or capricious or in violation of the law.  The record supports the determination that the district followed the procedural requirements of the IDEA and drafted an IEP that would have provided R.M. with educational benefit.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] The report by Dr. Blum was not admitted into evidence at the hearing but portions of it were read into the record. 

[2] Relators acknowledge that they received the Notice of Procedural Safeguards brochure in February 2003, at the time of the eligibility determination. 

[3] Dr. Siegel is a professor at the University of British Columbia in Vancouver and specializes in the assessment and early detection of learning disabilities in children.