                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 07a0816n.06
                               Filed: November 21, 2007

                                           No. 07-3198

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT




P.R. AND B.R., as parents and next               )
friends of a minor, C.R.,                        )
                                                 )    ON APPEAL FROM THE UNITED
       Plaintiffs-Appellants,                    )    STATES DISTRICT COURT FOR
                                                 )    THE NORTHERN DISTRICT OF
v.                                               )    OHIO
                                                 )
WOODMORE LOCAL SCHOOL                            )
DISTRICT,                                        )
                                                 )
       Defendant-Appellee.



BEFORE: DAUGHTREY and GILMAN, Circuit Judges; EDMUNDS,* District Judge

       PER CURIAM. This appeal is brought by P.R. and B.R. (“Parents”), who were

unsuccessful in a lawsuit filed on behalf of their child (“the Student”), in which they claimed that

he was a child with a disability within the meaning of the Individuals With Disabilities

Education Act (“IDEA”), 20 U.S.C. §§ 1400, et seq., and that they were entitled to

reimbursement for the cost of an independent educational evaluation (“IEE”). The sole issue on

appeal is whether the district court erred as a matter of law when it affirmed an administrative

agency decision that Parents were not entitled to be reimbursed for the cost of a privately

obtained IEE. Because there was no error, we AFFIRM the judgment of the district court.


       *
       The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District
of Michigan, sitting by designation.
I.     Background

       A.      Due Process Hearing Requests and Administrative Proceedings

       The facts are fully set forth by the district court in its eligibility and reimbursement

decisions. A brief summary is as follows.

       Student attended public schools in the Woodmore Local School District (“School

District”) from kindergarten until his graduation from high school in June, 2006. When the

Student was half-way through his junior year in high school, Parents made a written request to

the School District to have him tested for a learning disability. Shortly thereafter, in response to

disciplinary action against the Student, Parents requested a due process hearing seeking, among

other things, that the School District be ordered to perform the requested Student evaluation.

       Before the due process hearing could begin, several events occurred. The School District

completed a multi-factored evaluation (“Evaluation”) of the Student and concluded that he was

not eligible for special education services under the IDEA. Parents, unhappy with that decision,

hired someone to perform an IEE. They also amended their due process hearing request,

notifying the School District for the first time that they had obtained an IEE and were seeking

reimbursement for that privately obtained IEE.

       A due process hearing was then held before an Impartial Hearing Officer (“IHO”).

Despite the Student’s ADD and allergy problems, the IHO concluded that he did not qualify for

special education services under the Other Health Impairment (“OHI”) provisions of the IDEA

because his educational performance was not adversely affected. In light of this, the IHO

determined, Parents were not entitled to be reimbursed for the cost of their privately obtained

IEE. Parents appealed, and the State Level Review Officer (“SLRO”) affirmed the IHO’s

decisions as to eligibility and reimbursement.

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        Parents, unhappy with the SLRO’s decision, filed suit in the district court under the

IDEA.

        B.     District Court Decisions

        Parents brought suit under the IDEA in the district court arguing, inter alia, that the

School District improperly denied the Student special education services and improperly denied

their request for reimbursement of the cost of an IEE.1 The district court issued separate

decisions on these issues.

        1.     IDEA Eligibility Decision

        On August 28, 2006, the district court ruled on the parties’ cross-motions for summary

judgment. It granted the School District’s motion finding that the District’s IDEA eligibility

determination was appropriate. The court thus denied Parents’ motion on that issue, and further

denied as premature both parties’ motions as to the issue of reimbursement for the IEE.

        The parties’ primary dispute was whether the Student was eligible for IDEA special

education services under the OHI provision, and they focused on whether his ADD/ADHD

adversely affected his educational performance. Because educational expertise was required to

make that determination, the district court concluded that it was required to give “due weight” to

the IHO’s and the SLRO’s factual findings. Applying that standard of review, the district court

affirmed the SLRO’s IDEA eligibility determination.

        2.     Reimbursement Decision




        1
         Parents also appealed the SLRO’s reversal of the IHO’s decision requiring the School
District to implement a 504 plan. That issue is not relevant to this appeal and thus is not
discussed.

                                                  3
       On January 8, 2007, the district court issued an order determining that Parents were not

entitled under the IDEA to be reimbursed for the expense of their privately obtained IEE. Both

Parents and the School District relied on the federal regulations implementing the IDEA to

support their contrary positions. The district court first rejected the School District’s argument

that the regulations precluded reimbursement because Parents failed to first notify them that they

wanted an IEE. It then rejected Parents’ argument that the regulations required reimbursement

because the School District failed to initiate a due process hearing. Rather, the district court

held, the appropriateness of the School District’s evaluation had been tested and confirmed at its

earlier eligibility hearing. Moreover, because it had concluded that the Student was not eligible

for special education services, Parents were not entitled to be reimbursed for the cost of their

privately obtained IEE.

       Parents appeal only the reimbursement decision.

II.    Discussion

       A.      Standard of Review

       A district court initially reviewing an IDEA administrative finding “should make an

independent decision based on a preponderance of the evidence but also should give ‘due

weight’ to the determinations made at the state administrative process.” Bd. of Educ. of Fayette

County, Ky. v. L.M., 478 F.3d 307, 312 (6th Cir. 2007) (citations and quotation marks omitted),

petition for cert. filed, 76 U.S.L.W. 3199 (U.S. Oct. 3, 2007) (No. 07-465). “A district court thus

reviews IDEA cases under a modified de novo standard, meaning that it may set aside

administrative findings in an IDEA case only if the evidence before the court is more likely than

not to preclude the administrative decision from being justified based on the agency’s presumed

educational expertise, a fair estimate of the worth of the testimony, or both.” Id. at 312-13

                                                  4
(citation and quotation marks omitted). “More weight is due to an agency’s determination on

matters for which educational expertise is relevant.” Id. at 313 (citation and quotation marks

omitted).

       On appeal, we review the district court’s findings of fact for clear error, and its

conclusions of law are reviewed de novo. Id. Mixed questions of law and fact “are reviewed de

novo, although the panel should accord due deference to the state administrative hearing

officer’s decision.” Id. (citation and quotation marks omitted).

       B.        Statutory and Regulatory Framework

       In this appeal, Parents do not contest the district court’s eligibility determination.

Moreover, neither party contests Parents’ right to obtain an IEE. What is at issue is whether the

federal and state regulations require reimbursement to Parents of the cost of a privately obtained

IEE. The relevant regulations provide as follows:

       (b)       Parent right to evaluation at public expense.

                 (1) A parent has the right to an independent educational
                 evaluation at public expense if the parent disagrees with an
                 evaluation obtained by the public agency.

                 (2) If a parent requests an independent educational evaluation at
                 public expense, the public agency must, without unnecessary
                 delay, either –

                         (i) Initiate a hearing under § 300.5072 to show that
                         its evaluation is appropriate; or

                         (ii) Ensure that an independent educational
                         evaluation is provided at public expense, unless the
                         agency demonstrates in a hearing under § 300.507
                         that the evaluation obtained by the parent did not
                         meet agency criteria.


       2
           34 C.F.R. § 300.507 addresses procedures for impartial due process hearings.

                                                   5
               (3) If the public agency initiates a hearing and the final decision is
               that the agency’s evaluation is appropriate, the parent still has the
               right to an independent educational evaluation but not at public
               expense.

34 C.F.R. § 300.502(b)(1)-(3); see also Ohio Admin. Code § 3301-51-05(F)(3)-(6).

       C.      The District Court Did Not Err in Denying Reimbursement

       On appeal, Parents argue that, because the School District failed to initiate a due process

hearing as required under the regulations, it must reimburse them for the cost of their privately

obtained IEE. Specifically, Parents argue that the district court erred (1) by construing the

relevant federal and parallel state regulations in a manner that excused the School District from

initiating a due process hearing where it had the burden of proving the appropriateness of its

Evaluation, and (2) by concluding that the appropriateness of the School District’s Evaluation

had been tested and confirmed at a due process hearing and thus Parents were not entitled to

reimbursement.

       1.      District Court Properly Construed the Relevant Regulations

       The district court did not err, as a matter of law, when it determined that Parents were not

entitled to be reimbursed for the cost of their privately obtained IEE. See § 300.503(b)(3).

Contrary to Parents’ arguments here, the district court properly construed the federal and parallel

state regulations at issue in a manner that gave effect to their purpose.

       First, the district court rendered a decision that correctly fit the unique facts of this case

to the relevant law. Parents did not notify the School District in advance that they wanted to

obtain an IEE. Rather, they amended their pending request for a due process hearing, asking that

the IHO (1) find that the IEE they had already obtained was appropriate, (2) find that the Student

was eligible under the IDEA as a child with an Other Health Impairment, and (3) order the


                                                  6
School District to reimburse Parents for the cost of the privately obtained IEE. Without prior

notice of Parents’ desire to obtain an IEE, the School District was not able beforehand to initiate

a due process hearing where it could show that its Evaluation of the Student was appropriate.

Moreover, as the record reflects, this is not a situation where the School District chose not to

initiate a due process hearing. Rather, it made that recommendation upon learning that Parents

had obtained an IEE and were seeking reimbursement of its cost. It was Parents who protested

and insisted that these matters be addressed in the due process hearing that they had requested

and that was set to begin within a few days. The IHO agreed with the Parents, but adjourned the

scheduled hearing for a few days out of a sense of fairness to the School District so that it had

time to prepare for these newly added issues. There is no dispute that a due process hearing was

held, albeit at Parents’ request rather than the School District’s.

       Next, the district court properly rejected the School District’s argument and the SLRO’s

legal conclusion that, pursuant to § 300.502(b)(2), Parents were not entitled to reimbursement

for the IEE because they failed to first notify the School District that they disagreed with its

Evaluation and wanted an IEE. This argument has been rejected by several Circuit Courts of

Appeal. See Bd. of Educ. of Murphysboro Cmty. Unit Sch. Dist. No. 186 v. Ill. State Bd. of

Educ., 41 F.3d 1162, 1169 (7th Cir. 1994) (citing Hudson v. Wilson, 828 F.2d 1059, 1065 (4th

Cir. 1987), and observing that “parents can initiate an evaluation before notifying a school

district that they disagree with the district’s evaluation”); and Warren G. v. Cumberland County

Sch. Dist., 190 F.3d 80, 87 (3d Cir. 1999) (observing that “[t]o accept the [School] District’s

argument would render the regulation pointless because the object of parents’ obtaining their

own evaluation is to determine whether grounds exist to challenge the [appropriateness of the

School] District’s”).

                                                  7
       Finally, the district court properly rejected Parents’ argument that the regulations require

the School District to reimburse the cost of their IEE because it failed to initiate the due process

hearing where the appropriateness of its Evaluation was tested and confirmed. The district

court’s construction of § 300.502(b)(2)(i) and (b)(3) is consistent with the construction of §

300.502(b)(2) in Board of Education of Murphysboro and Hudson. To accept Parents’ argument

here would render these regulations pointless. Their object is to afford Parents an opportunity to

challenge and the School District to defend the appropriateness of its Evaluation in an impartial

hearing, and that was done here. As long as the object of the regulations is accomplished, there

is no reason to exalt form over substance. Their purpose is not served by holding that there must

be reimbursement at public expense when it is the parents rather than the public agency that

initiates the due process hearing where the appropriateness of the School District’s Evaluation is

challenged and confirmed. This is especially true under these facts where the School District’s

attempt to initiate a due process hearing on these very issues was rejected because of Parents’

objections.

       Under the IDEA, parents of a child who may have a disability have the right to obtain an

independent educational evaluation of the child. 20 U.S.C. § 1415(b)(1). The district court

properly construed the implementing regulations as stating that, if there is a hearing where the

parent was afforded due process and the final decision “is that the agency’s evaluation is

appropriate, the parent still has the right to an independent educational evaluation but not at

public expense.” § 300.502(b)(3).

       2.      The Appropriateness of the School District’s Evaluation Has Been Tested
               and Confirmed




                                                  8
       Contrary to Parents’ arguments otherwise, the appropriateness of the School District’s

Evaluation was considered in the IDEA due process hearing they requested. Both Parents and

the School District had a full and fair opportunity to present evidence and arguments regarding

the School District’s Evaluation, Parents’ privately obtained IEE, and the appropriateness of

both. As a result, the district court properly concluded that Parents were not entitled to

reimbursement under § 300.502(b)(3).

       Parents’ first opportunity to challenge the appropriateness of the School District’s

Evaluation presented itself at the due process hearing they initiated. In fact, that was the purpose

of their IEE. They disagreed with the School District’s Evaluation and paid to have an IEE.

They used that IEE, both in the administrative proceedings and in the district court, to challenge

the appropriateness of the School District’s Evaluation and to defend the appropriateness of their

privately obtained IEE. The School District did the converse.

       At the two-day due process hearing before the IHO, numerous exhibits were introduced

and numerous witnesses testified about the School District’s Evaluation testing process and

conclusions. Witnesses included the Student’s mother, the school psychologist, the athletic

director, the special education director, the special education teacher, the Student’s guidance

counselor and his teachers for economics/government, math, chemistry, and English. There is

no evidence that the District failed to undertake the burden of defending the appropriateness of

both its Evaluation and its eligibility determination at the due process hearing.

       Witnesses at that hearing also included Dr. Garner, the licensed clinical psychologist

hired by Parents to perform the IEE. There is no evidence that Parents were denied the

opportunity to fully and fairly challenge the appropriateness of the School District’s Evaluation



                                                 9
and the correctness of its eligibility determination by arguing that their privately obtained IEE

was more credible and its contrary eligibility conclusion factually supported.

       Based on evidence presented at the impartial due process hearing, however, the IHO

found that the School District’s Evaluation was more credible and thus more “appropriate” than

the IEE. The SLRO concluded that the IHO’s factual findings were not clearly erroneous.

Giving the IHO’s and SLRO’s factual findings “due weight” because educational expertise was

required, the district court confirmed the appropriateness of the School District’s Evaluation in

its August 28, 2006 decision. Thus, in the administrative proceedings and in the district court,

Parents challenged and the School District successfully proved both the appropriateness of its

Evaluation and its decision, based on that Evaluation, that the Student was not eligible for

special education services under the IDEA. Accordingly, the district court did not err when it

held that Parents were not entitled to be reimbursed for the cost of their privately obtained IEE.

Because there was a hearing where Parents were afforded due process and the final decision was

that the School District’s Evaluation was appropriate, “the parent still has the right to an

independent educational evaluation but not at public expense.” § 300.502(b)(3).3

III.   Conclusion

       For the foregoing reasons, we affirm the judgment of the district court.




       3
        In light of this conclusion, it is not necessary to discuss the School District’s additional
argument that reimbursement of the IEE is improper because it was introduced solely in the form
of an expert opinion at the initial due process hearing, and expert fees are not recoverable under
the IDEA.

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