
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1414                                  KARL PIHL, ET AL.,                               Plaintiffs, Appellants,                                          v.                    MASSACHUSETTS DEPARTMENT OF EDUCATION, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                           and Barbadoro,* District Judge.                                            ______________                                 ____________________            Robert G.  Burdick with  whom Darryl  J. Dreyer  and Louis  Aucoin            __________________            _________________      _____________        were on brief for appellants.            Regina Williams Tate with  whom Lorna M.  Hebert was on brief  for            ____________________            ________________        appellees.                                 ____________________                                  November 16, 1993                                 ____________________                                    ____________________        *Of the District of New Hampshire, sitting by designation.               COFFIN, Senior  Circuit Judge.   Plaintiffs  Karl and  Diane                       _____________________          Pihl  filed  this  lawsuit  in  1987,  alleging  that  defendants          Massachusetts Department of  Education, Lowell School  Committee,          City  of Lowell and Lowell Special Education Administrator George          Tsandikos  denied educational  services due  Karl  as a  disabled          child.   They now appeal  from a district court  order dismissing          their complaint  for failure to  state a claim upon  which relief          could be granted,  presumably because moot, since  the challenged          educational  plan had  expired four years  earlier, and  Karl had          since passed the  age of entitlement for services.   We conclude,          after  review of  the  authorities,  that  the  Individuals  with          Disabilities Education  Act (IDEA)1  empowers courts  to grant  a          remedy in the form of compensatory education to disabled students          who  are beyond  the  statutory age  of  entitlement for  special          education services, and that  Karl Pihl has alleged  facts which,          if proven, state  a claim for relief.   We therefore reverse  the          district   court's   decision   to  dismiss,   and   remand   for          determination of the merits of his claim.                               I.  Factual Background2                                   __________________                                        ____________________          1The IDEA was formerly known  as the Education of the Handicapped          Act (EHA).  See Pub. L. 102-119,   25(b), Oct. 7, 1991, 105 Stat.                      ___          607 (substituting "Individuals  with Disabilities Education  Act"          for "Education  of the Handicapped  Act").  Except  when reciting          the history of the  case, or when quoting decisions which cite to          the EHA, the  parties cite to  the IDEA in  their briefs, and  we          join them in doing so.          2These  facts  are  drawn from  the  three  volume Administrative          Record filed by the parties in the district court on September 9,          1987, and the pleadings filed in this case.                                          -2-               Plaintiff  Karl Pihl is  a twenty-seven-year-old man  who is          emotionally disturbed and retarded, and who suffers from profound          hearing  loss  and  speech deficiencies.    Karl  began receiving          special education  services at  the age of  four, and  attended a          number of  different programs over  the years.  The  local school          system was  obligated by state  and federal law to  provide these          services to  him.  See infra at 7.   During the 1983 school year,                             ___ _____          Karl participated in a residential/educational program for multi-          handicapped deaf students  at the Perkins  School for the  Blind,          but was terminated due to aggressive  behavior.  He was placed at          the  Lighthouse School,  a  private day  facility, on  an interim          basis, until an  appropriate residential program could  be found.          In June 1985, dissatisfied with the educational services Karl was          receiving at the  Lighthouse School, Karl's mother  Diane removed          him from  school and  kept him  at home,  under the  care of  two          twenty-four  hour attendants.   While the Pihls  paid for twenty-          four hour  care, the  school system held  his place  open at  the          Lighthouse  School,  continuing  to  search  for  an  appropriate          program, or ways  to adapt the Lighthouse School  program to meet          Karl's needs.               In 1986, when Karl was  nineteen, his mother requested a due          process hearing  before the  Board of  Special Education  Appeals          (BSEA)  to review  her  claim  that Karl  was  not receiving  the          educational services to which he  was entitled by law.  Following          the  hearing, held  on July 15,  1986, Mrs.  Pihl and  the Lowell          Public  Schools  signed  a consent  decree  requiring  the school                                         -3-          district to provide interim services to Karl while an appropriate          residential placement was sought.3  The interim agreement  was to          end on November  30, 1986, or earlier,  if Karl were placed  in a          residential  program acceptable to  his parent,  or ordered  by a          hearing officer, or  if the agreement was terminated  by order of          the  hearing  officer.    The  hearing   officer  was  to  retain          jurisdiction, and the  hearing would reconvene if Lowell  had not          presented  a program willing  to accept Karl  by that  date.  The          hearing  also would  reconvene at either  party's request,  or if          Diane Pihl were to reject a proposed program.               On  January  28,   1987,  the  hearing  was   reconvened  on          plaintiffs' motion, and the Massachusetts Department of Education          (DOE) was joined as a party.  Plaintiffs sought an order  that an          appropriate  program be  created for  Karl,  because no  existing          appropriate educational facility  had been  found for  him.   The          BSEA issued an  order the next day, January  29, requiring Lowell          to create a  home-based program.  The hearing  officer also noted          an agreement by  the parties that Mrs. Pihl  would receive monies          due her from Lowell as a result of payments made pursuant  to the          consent  decree.   The  BSEA deferred  decision  on five  issues,          including: whether  service  delivery  pursuant  to  the  consent          decree should  be adjudicated  inadequate and inappropriate;  and                                        ____________________          3 The consent decree specifically  stated that Mrs. Pihl did not,          by  this  agreement,  admit that  the  interim  services provided          pursuant to  the decree  were sufficient  or adequate  to fulfill          Lowell Public Schools' obligations under state and federal law.                                         -4-          whether Karl was entitled to  compensatory services for two years          following his 22nd birthday.                 Two  weeks later,  the school  district filed  a  motion for          reconsideration,  indicating  that  it  had found  a  residential          placement for Karl  at the Brown  School in  Austin, Texas.   The          same day, the  plaintiffs filed this  lawsuit, seeking to  compel          the  defendants to provide Karl with an appropriate education, in          accordance with the BSEA's January 29 decision.  The BSEA granted          the  motion  for  reconsideration,  and,  following  a  five  day          hearing, ruled  that the  program proposed  by defendants  was an          appropriate placement for Karl, and ordered Lowell to  prepare an          individualized educational program (IEP) for Karl reflecting this          placement.4                 On  May  11,  1987, plaintiffs  filed  an  amended complaint          alleging causes of action under the  Education of the Handicapped          Act (EHA),  20 U.S.C.     1401-1415, and  parallel provisions  of          Massachusetts law, Mass. Gen. L. Ch. 71B.  They claimed that Karl          had never been provided with  an appropriate IEP; that except for                                        ____________________          4 The IEP is a comprehensive written statement, developed jointly          by  the  child's   parents,  the  school  district,   and,  where          appropriate,  the  child,  which  outlines  the  child's  special          educational  needs,  and the  specially designed  instruction and          services to be provided by the school system to meet those needs.          20 U.S.C.   1401 (a)(20); 34 C.F.R.    300.340, 300.344, 300.346;          603 Code  Mass. Regs.     28.314.0,  28.322.0.  The  IEP must  be          reviewed, and, where appropriate, revised,  at least once a year,          in order to  ensure that  local agencies  tailor the  statutorily          required  "free  appropriate education"  to  each child's  unique          needs.   Honig v.  Doe, 484 U.S.  305, 311  (1988); 20  U.S.C.                      _____     ___          1413(a)(1,11), 1414(a)(5); 34 C.F.R.   300.343; Mass. Gen. L. Ch.          71B,   3.                                                         -5-          a  few  weeks of  intermittent  tutorial  services, he  had  been          without an  IEP, or  any education whatsoever,  for at  least two          years; and that  the Brown School placement was inappropriate and          in violation of state law, because of its great distance from the          Pihls' home,  its  restrictive (hospital-based)  nature, and  the          fact  that it  was not  approved  by Massachusetts  or Texas  for          education  of the  deaf, due  to the  lack of  properly certified          personnel.   Plaintiffs sought a preliminary injunction requiring          Lowell  to  maintain  interim services  until  resolution  of the          dispute;  an injunction against  the Brown School  placement that          would  require the defendants to provide an appropriate education          in the least restrictive setting as close as possible to home; an          injunction requiring compensatory education; an order for payment          of  out-of-pocket  educational, legal,  and  expert expenses  and          costs; and all other forms of relief that the court deemed just.               On  May 18, 1987,  the district court  dismissed plaintiffs'          section 1983 claim, since plaintiffs' exclusive avenue for appeal          and relief was provided  by the IDEA.   Nearly six years  later,5          on   March  9,  1993,   another  district  court   judge  allowed          defendants' second  motion to  dismiss.  In  a margin  order, the          court  stated that plaintiffs had  failed to show "entitlement to          any relief this court could  properly grant."  The district court          did not elaborate on the reasons for its decision.  It apparently                                        ____________________          5The case was initially set for trial on  September 28, 1987, but          was  postponed  due  to the  withdrawal  of  plaintiffs' counsel.          Except  for two  pro se  motions made by  plaintiffs in  1987 and          1988, no  further action  was taken on  this case  until November          1991, when a magistrate judge convened a status conference.                                         -6-          adopted,  however,  the  defendants'  position  that  plaintiffs'          complaint was  moot because the  challenged IEP had  expired four          years earlier, and because Karl was beyond the age of entitlement          for special educational services under the IDEA.6               On  this appeal,  plaintiffs address  only  their claim  for          compensatory  education.  They contend that, if Karl demonstrates          that  defendants   failed  to   provide   him  with   appropriate          educational  services during  the challenged  period,  he is  now          entitled  to  compensatory  services,   regardless  of  his  age.          Although they  acknowledge that the  BSEA has not  rendered final          decisions on the appropriateness of services provided during some          of the contested  period, they argue that they  should be excused          from  the usual exhaustion  requirement.  Defendants  continue to          argue that this case is  moot, because the challenged IEP expired          over  five years  ago, and  because  Karl is  beyond  the age  of          entitlement for services under the Act.                 When evaluating a motion to  dismiss under Rule 12(b)(6), we          take the  well-pleaded facts  as  they appear  in the  complaint,          extending plaintiff  every  reasonable inference  in  his  favor.          Coyne  v. City  of Somerville,  972  F.2d 440,  442-43 (1st  Cir.          _____     ___________________          1992).  We begin with a review of the statutory backdrop.                                   II.  Discussion                                        __________               A.   Statutory Framework                    ___________________                                        ____________________          6The  court  apparently  gave some  significance  to  the earlier          dismissal, noting that "defendants' earlier motion to dismiss . .          .  was previously  allowed  on  May 18,  1987."   That  decision,          however, had dismissed only the section 1983 claims.                                           -7-               The  IDEA requires  states,  as  a  condition  of  accepting          federal  financial  assistance,  to ensure  a  "free  appropriate          public  education" to all children  with disabilities.  20 U.S.C.              1400(c), 1412(1).   In Massachusetts, in  accordance with the          state's  responsibility under the  Act, disabled  children remain          eligible for special education services  up to the age of twenty-          two, provided they have not yet attained a high school diploma or          its equivalent.  Mass. Gen. Laws Ch. 71B,    1, 3.                The  Act  imposes   extensive  procedural  requirements   on          participating  state and local  agencies to safeguard  a disabled          student's  right to  a  free appropriate  public  education.   20          U.S.C.      1401(a)(20);   1412(2,4,5,7);  1415(a,b);  Board   of                                                                 __________          Education of Hendrick  Hudson Central School District  v. Rowley,          _____________________________________________________     ______          458  U.S.  176,  182-84  (1982).    These  procedural  safeguards          "guarantee  parents both an opportunity for meaningful input into          all  decisions affecting their child's education and the right to          seek review of any decisions they think inappropriate."  Honig v.                                                                   _____          Doe, 484  U.S. 305,  311-12  (1987); see  also Burlington  School          ___                                  ___  ____ __________________          Committee v. Mass. Dept. of Ed., 471 U.S. 359, 368 (1984).          _________    __________________               The IEP  is the primary  safeguard, Honig, 484 U.S.  at 311;                                                   _____          Burlington, 471 U.S. at 368; 20  U.S.C.   1401 (a)(20); 34 C.F.R.          __________            300.346 (1992); Mass. Gen. L. ch.  71B,   3, and parents have a          right  to  an  "impartial due  process  hearing"  to  resolve any          complaints about  a child's  IEP.   20 U.S.C.    1415(b)(2).   In          Massachusetts, this  function is  performed by the  BSEA.   Mass.          Gen. L. ch. 15,    1M (West Supp. 1993).   The BSEA's decision is                                         -8-          reviewable in either  state or federal court,  which tribunal has          broad discretion  to grant appropriate  relief.  20  U.S.C.  1415          (e)(2); see Burlington, 471 U.S. at 369.                  ___ __________               We now proceed with a general discussion of the availability          of compensatory  education under the  IDEA.  We next  discuss the          availability of this type  of relief following the  statutory age          of entitlement.               B.   Availability of compensatory education under the Act                    ____________________________________________________               In this case, the Pihls  claim that there was no appropriate          IEP for substantial periods of time, beginning from a time before          Karl's removal  from the  Lighthouse School in  June 1985.   They          contend  that the Supreme  Court's decision in  Burlington School                                                          _________________          Committee v. Mass. Dept. of  Ed., 471 U.S. 359 (1984) establishes          _________    ___________________          that a student who  fails to receive appropriate services  during          any  time  in which  he  is  entitled  to  them  may  be  awarded          compensation in the form of  additional services at a later time.          Plaintiffs claim  that Karl lacked  an appropriate IEP,  and thus          adequate educational services,  beginning with the period  before          his removal from  the Lighthouse School in 1985,  and through his          last school  year of eligibility  in 1987-1988.  They  claim that          even though he  is beyond the statutory age  of entitlement, Karl          is still  entitled to future  services to make up  for the school          district's failure to provide adequate services in the past.7                                        ____________________          7Defendants devote most of their  brief to arguing that this case          is moot, invoking cases suggesting that review is unavailable for          an expired IEP, except in special circumstances, such as when the          dispute  over the  development  and/or rejection  of  the IEP  is          likely to be  repeated in the same form  in the future.   None of                                         -9-               In Burlington, the Supreme Court held that courts' authority                  __________          to grant relief under the Act "includes the power to order school          authorities  to  reimburse  parents  for  their  expenditures  on          private school  education  for a  child if  the court  ultimately          determines that  such placement, rather  than a proposed  IEP, is          proper under the Act."  471 U.S.  at 369.  In the context of  the          comprehensive, and often  time-consuming, review process afforded          by  the IDEA, this  type of equitable relief  helps to secure the          child's right to a free  appropriate public education, as well as                             ____          the parents' right to meaningful participation in the development          of a proper  IEP, in accordance with the  congressional intent to          provide  relief that remedies deprivations  of these rights.  Id.                                                                        ___          at 370.               Courts of  appeal in the  Second, Third, Sixth,  Eighth, and          Eleventh  Circuits have extended the Supreme Court's rationale in          Burlington  to support  the award  of  compensatory education  as          __________          "appropriate relief" under the Act.  See Burr v. Ambach, 863 F.2d                                               ___ ____    ______          1071, 1078 (2d Cir. 1988), vacated and remanded sub nom. Sobol v.                                     _____________________________ _____          Burr, 492  U.S. 902 (1989),  reaff'd on reconsideration,  Burr v.          ____                         __________________________   ____          Sobol, 888 F.2d 258  (1989); Lester H. v. Gilhool,  916 F.2d 865,          _____                        _________    _______                                        ____________________          these  cases reject a  claim for  compensatory education  that is          ripe for review, and they consequently are entirely inapposite in          this context.   See, e.g.,  Straube v. Florida Union  Free School                          ___  ____   _______    __________________________          Dist., 801 F. Supp. 1164 (S.D.N.Y. 1992) (noting the availability          _____          of compensatory education  beyond a student's 21st  birthday, and          awarding  compensatory  education  after  graduation  from   high          school, based on  challenge to expired  IEP).  The issue  here is          not  how to  modify an  existing  inadequate IEP,  but whether  a          student  is  entitled  to  services  to  compensate  for  a  past          deficient program.                                         -10-          872-73 (3d Cir. 1990); Hall v. Knott County Bd. of Education, 941                                 ____    _____________________________          F.2d 402, 407  (6th Cir. 1991); Miener v. State  of Missouri, 800                                          ______    __________________          F.2d 749,  753 (8th Cir. 1986); Jefferson  County Bd. of Educ. v.                                          ______________________________          Breen, 853 F.2d 853, 857-58 (11th Cir. 1988).8           _____               In  likening   compensatory   education   to   the   tuition          reimbursement allowed in Burlington, the Eighth Circuit  reasoned                                   __________          that "imposing liability for compensatory educational services on          the  defendants `merely requires [them] to belatedly pay expenses          that [they] should have paid all along.'  Here, as in Burlington,                                                                __________          recovery  is necessary  to secure  the  child's right  to a  free          appropriate public education."  Miener, 800 F.2d at 753 (internal                                          ______          citations omitted).   Sensitive  to the  Act's intent to  provide          free, appropriate  education to  all children,  the Miener  court                                           ___                ______          asserted the  school district  should not  "escape liability  for          [educational]  services simply because [the parent] was unable to          provide  them in the first instance . .  .  We are confident that          Congress  did  not  intend  the child's  entitlement  to  a  free                                                                       ____          education  to turn  upon  her  parent's  ability to  `front'  its                                        ____________________          8The nature and  extent of compensatory education  services which          federal courts have recognized varies according to the  facts and          circumstances of a given case.   Such an award may include  extra          assistance in  the form of  tutoring, see Hall v.  Detroit Public                                                ___ ____     ______________          Schools, 823  F.Supp. 1377 (E.D.  Mich. 1993), or  summer school,          _______          see   Johnson v. Bismarck,  949 F.2d 1000 (8th  Cir. 1991), while          ___   _______    ________          students are  still within  the  age of  entitlement for  regular          services  under the  Act,  or an  extended  period of  assistance          beyond the statutory age of entitlement, see, Lester H., 916 F.2d                                                   ___  _________          at 873; Burr, 863 F.2d at 1078;  Jefferson County Bd. of Ed., 853                  ____                     ___________________________          F.2d at 857.  In awarding compensatory education  past the age of          entitlement,  courts have  directed  the  parties  to  take  into          account the student's  educational status and  needs at the  time          the  relief takes  effect.   See Straube,  801 F. Supp.  at 1181;                                       ___ _______          Puffer v. Raynolds, 761 F. Supp. 838, 853 (D. Mass. 1988).          ______    ________                                         -11-          costs."   Id.   Each of the other circuits adopting this view has                    ___          explained its ruling in a similar fashion.                 Although  the First Circuit has not ruled explicitly whether          compensatory  education is  available  under  the  Act,  we  have          assumed that  it is.   See Murphy  v. Timberlane  Regional School                                 ___ ______     ___________________________          Dist.,  973  F.2d   13,  16  (1st   Cir.  1992)  (citing   cases)          _____          (recognizing that "every  circuit which has addressed  this issue          since .  .  . [Burlington]  .  . .  has found  that  compensatory                         ___________          education  is available  under the  Act.").   With the  issue now          squarely  before  us, we  have  no  difficulty in  joining  those          circuits  that  have  decided  that   compensatory  education  is          available  to  remedy   past  deprivations.    For   the  reasons          articulated  by those courts,  and noted above,  we are persuaded          that Burlington  anticipates  the  availability  of  compensatory               __________          education  under the  IDEA.    We  therefore  reject  defendants'          suggestion that  this case  is moot simply  because the  time for          modifying the challenged  IEPs has passed.  If an IEP from a past          year is found to be deficient, the  Act may require services at a          future time to compensate for what was lost.                C.   Availability  of Compensatory  Education After  Passing                    _______________________________________________________                    the Age of Entitlement                    ______________________               Defendants   argue   that,   notwithstanding  a   right   to          compensatory  education under the  IDEA, Karl Pihl  is ineligible          and this  case is  moot because  Karl is  now beyond  the age  of          entitlement for services under the Act.  They rely on  Honig, 484                                                                 _____          U.S.  at  318, in  which  the  Supreme Court  held  that an  IDEA                                         -12-          challenge  to  a  policy  allowing  indefinite  suspension  of  a          disabled student for violent and disruptive conduct stemming from          his disabilities was moot as to Doe, a 24-year-old man,  since he          was "no  longer entitled to  the protections and benefits  of the          [IDEA], which limits eligibility to disabled children between the          ages of 3 and 21."   Because the Act did not cover him, the Court          held, there  was no  reasonable likelihood that  Doe again  would          suffer  the  challenged harm.    He  therefore  had no  right  to          injunctive relief against such suspensions.  Id.                                                          ___               Defendants maintain that, like Doe,  Karl Pihl is beyond the          age of entitlement and thus  is ineligible for services under the          IDEA.  And, like  Doe, they claim, Pihl does not  fall within the          exception to the mootness doctrine  for conduct that is  "capable          of repetition, yet evading review," see Honig, 484 U.S. at 318-23                                              ___ _____          (discussing "capable of repetition, yet evading review" exception          to mootness),  as  he  ceased  to  be  eligible  for  educational          services under the IDEA in 1988,  when he turned 22.  Lowell  has          not since been, nor  ever will be again, required to negotiate an          IEP for Karl.               We  find  Honig  inapplicable to  a  claim  for compensatory                         _____          education.    The  Act  requires  a  state  to  provide  a  "free          appropriate  education"  to  every disabled  child,  and empowers          district  courts to provide  a remedy for  individual handicapped          children who are  deprived of that right.  20  U.S.C.    1400(c),          1412(1),  1415(e).  The crucial difference between Honig and this                                                             _____          case is the  nature of the relief  requested.  In Honig,  Doe was                                                            _____                                         -13-          asking the  court to make the school district comply with the Act          in  the  future.    But,  because  Doe  was  beyond  the  age  of          entitlement  for services,  he had  no right  to demand  that the          school district  comply with the  Act either presently or  in the          future.  By  contrast, Karl Pihl  is asking  only that the  court          compensate  him  for rights  that he  claims the  school district          denied him in the past.  See Lester H., 916 at F.2d at 872.                                   ___ _________               This past term, the Supreme Court implicitly recognized this          distinction in Zobrest v. Catalina Foothills School District, 113                         _______    __________________________________          S. Ct. 2464, 246?, n.3 (1993).  In Zobrest, the Court  found that                                             _______          a student's claim  under  the IDEA for reimbursement for services          presented  a live controversy,  notwithstanding the fact  that he          had graduated  from  high school,  and  therefore was  no  longer          eligible  for services  under the  Act.   Even before  Zobrest, a                                                                 _______          number of circuits  had held that a  student who was  deprived of          services to which he was entitled under the IDEA has a right to a          remedy, in the form of  compensatory education, regardless of his          eligibility for  current or future  services under the Act.   See                                                                        ___          Burr,  863 F.2d at  1078; Lester H.,  916 F.2d  at 873; Jefferson          ____                      _________                     _________          County Bd. of Ed., 853 F.2d at 857.            _________________               Common sense commands  such a conclusion.  In  order to give          meaning to a disabled student's right to an education between the          ages  of three  and twenty-one,  compensatory  education must  be          available beyond  a student's twenty-first birthday.   Otherwise,          school districts simply could stop providing required services to          older  teenagers,  relying  on  the  Act's time-consuming  review                                         -14-          process  to  protect  them from  further  obligations.   Although          students  able to  front  the costs  of an  appropriate education          later  could claim  reimbursement under  Burlington and  Zobrest,                                                   __________      _______          absent  a compensatory education award, courts would be powerless          to aid  intended beneficiaries who  were over twenty-one  but who          had  not  sought out  an  alternative educational  program.   See                                                                        ___          Lester H., 916  F.2d at 872; Burr, 863  F.2d at 1078.   We cannot          _________                    ____          believe that Congress, in establishing a disabled student's right          to public education, would allow a school district to suspend the          educational rights  of such disabled eighteen-  or nineteen-year-          olds without  a remedy.   See  id.   In addition,  as the  Eighth                                    ___  ___          Circuit has  noted,  compensatory education  is  consistent  with          Congress' intent to channel available resources to activities and          programs that benefit disabled students.  See Miener, 800 F.2d at                                                    ___ ______          753,  citing  Smith  v. Robinson,  468  U.S.  992, 1020  (1984),9                ______  _____     ________          quoting 121 Cong. Rec. 19501 (1975).          _______               Thus, if Karl Pihl can prove that the school district denied          him his right  to an appropriate education under  the IDEA during          the  challenged period,  he could  claim  relief in  the form  of          compensatory education, notwithstanding  the fact that he  is now          twenty-seven years old.                     III.  Exhaustion of administrative remedies                            _____________________________________                                        ____________________          9The 1986  amendments to the  IDEA superseded  Smith by  allowing                                                         _____          pursuit  of federal  statutory rights  and  remedies outside  the          IDEA, see Handicapped Children's Protection Act of 1986, P.L. 99-                ___          372  3, 100 Stat. 796  (1986), but they support the congressional          language quoted in Smith.                             _____                                         -15-               There is no question that  the IEP ordered for the 1987-1988          school year is ripe for  judicial review, because the BSEA issued          a   final  decision   upholding  the   Brown  School   placement.          Defendants  maintain,  however, that  plaintiffs failed  to raise          their claim for compensatory education for the period before June                                                                ______          1987-June 1988 at the administrative level, and that this failure          bars the court from hearing that portion of the claim.  See David                                                                  ___ _____          D. v.  Dartmouth School  Committee, 775 F.2d  411, 424  (1st Cir.          __     ___________________________          1985)  (since the  District Court's  role in an  IDEA case  is to          provide something short of a trial  de novo, issues first must be                                              _______          presented to the  administrative hearing officer to  be preserved          for judicial review).                 Our  review  of  the  record  supports  plaintiffs' contrary          contention that they in fact raised this issue in a timely manner          before the administrative agency.  In its January 29, 1987 order,          the BSEA explicitly  deferred decision on five  specific matters,          including  "[w]hether service  delivery pursuant  to the  Consent          Decree should be  adjudicated inadequate and inappropriate,"  and          "[w]hether  Karl is  entitled to  compensatory  services for  two          years  following  his  22nd  birthday."    Therefore,  it is  not          automatically  barred  from consideration.    The BSEA,  however,          never made a final determination on the pre-1987 time period, and          the  rules regarding  exhaustion of  administrative remedies  may          constrain  the  district  court's   evaluation  of  the  services          provided during that time.                                         -16-               While   parties  ordinarily   must  exhaust   administrative          remedies  under the  IDEA  before  initiating  court  action,  in          certain cases, they may bypass the administrative process to seek          judicial  relief.   See  Honig,  484  U.S.  at 326-27;  Smith  v.                              ___  _____                          _____          Robinson,  468 U.S.  992,  1014 n.17  (1984);  Christopher W.  v.          ________                                       ______________          Portsmouth School Committee, 877 F.2d 1089, 1094 (1st Cir. 1989);          ___________________________          Ezratty v. Commonwealth of Puerto Rico, 648 F.2d 770, 774-75 (1st          _______    ___________________________          Cir. 1981).  Exhaustion may not be required  where the pursuit of          administrative  remedies would  be  futile  or inadequate;  waste          resources, and work  severe or irreparable harm  on the litigant;          or when  the issues raised  involve purely legal questions.   See                                                                        ___          id.10    We have  also  noted  that  exhaustion is  not  normally          __          required  where  the  agency  has  prevented  the  litigant  from          pursuing  her claim  at the  administrative level.   Ezratty, 648                                                               _______          F.2d at 775.                 Plaintiffs,  in effect,  claim  to  fall  within  this  last          exception,  arguing that  any failure  to exhaust  administrative                                        ____________________          10The legislative  history of  the IDEA  supports  the view  that          exhaustion is not a rigid requirement.  During  the debate on the          Senate Conference  Report, Senator Williams, the  Act's principal          author, stated that "exhaustion of the administrative  procedures          established  under  this part  should  not  be  required for  any          individual  complainant filing a  judicial action in  cases where          such exhaustion  would be futile  either as a legal  or practical          matter."   121 Cong.  Rec. 37416 (1975),  quoted in  Ezratty, 648                                                    _________  _______          F.2d at 774.  Similarly, the House Report for the 1986 amendments          recited  permissible exceptions  to  the exhaustion  requirement,          including where using administrative procedures would be  futile;          where  an agency's  policy or  practice is  contrary to  law; and          where it  is improbable that  adequate relief can be  obtained by          pursuing administrative remedies (e.g., the hearing officer lacks          the  authority to grant the  relief sought).   H.R. Rep. No. 296,          99th Cong.,  1st Sess.  7 (1985), quoted  in Christopher  W., 877                                            __________ _______________          F.2d at 1094.                                         -17-          remedies  with respect  to the  issue  of compensatory  education          prior to the Brown School placement is due to the BSEA's error or          intransigence.  It  is not clear, however, that  the agency bears          sole  responsibility for this  failure.  The  record does support          plaintiffs' claim  that once the hearing officer had reserved the          issue of Karl  Pihl's entitlement to compensatory  education, she          never returned to  it.  However, in evaluating  BSEA's failure to          address  this issue,  plaintiffs'  own  actions  should  also  be          considered.  See, e.g., Plaintiffs' letter accompanying motion in                       ___  ____          opposition to  reconsideration, dated February 17,  1987 (waiving          any determination  by the BSEA  at this time  regarding questions          other  than those  relative to  Karl  Pihl's current  appropriate          educational placement); see also supra at  6, n. 5.  Moreover, it                                  ___ ____ _____          is open to question whether plaintiffs could have sought an order          from the court  requiring the BSEA to convene in order to resolve          the issue  of plaintiffs'  entitlement to  compensatory education          for the earlier period.  See Ezratty, 648 F.2d at 777 n.7.                                   ___ _______               We  believe  the  exhaustion  issue  is  more  appropriately          resolved by the district court, which already will be considering          the 1987-1988 IEP.  We note, however, that our preliminary review          suggests  that   the  factual   record   regarding  Karl   Pihl's          educational  placement during the  two years  prior to  the Brown          School IEP is substantially developed, and the court may not need          the "peculiar  expertise of  an administrative  hearing officer,"          see Lester H.,  916 F.2d at 425,  to aid in its  determination of          ___ _________          this claim.  Moreover, the  Act empowers courts sitting in review                                         -18-          of  administrative complaints  to supplement  the  hearing record          with additional evidence  at trial.  See 20  U.S.C.   1415(e)(2);                                               ___          Roland M.  v. Concord  School Committee, 910  F.2d 983  (1st Cir.          _________     _________________________          1990) (describing the  thorough, yet deferential, district  court          review of administrative  determinations under the Act);  Town of                                                                    _______          Burlington v. Dept.  of Educ., Comm. of Mass.,  736 F.2d 773, 790          __________    _______________________________          (1st Cir.) (same),  aff'd, 471 U.S. 359 (1984);  see also Rowley,                              _____                        ___ ____ ______          458 U.S. at  205.  The court  also may conclude that  any further          delay  in this  already  protracted  litigation  would  serve  no          purpose.          Reversed  and  remanded for  further proceedings  consistent with          _________________________________________________________________          this opinion.          _____________                                         -19-
