                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 99-2599
                                   ___________

Stephen (Scott) Jasa; Ivy Jasa,         *
                                        *
      Petitioners - Appellees,          *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
Millard Public School District No. 17, *
                                        *
      Respondent - Appellant.           *
                                   ___________

                             Submitted: January 27, 2000

                                  Filed: March 23, 2000
                                   ___________

Before McMILLIAN, BOWMAN, and LOKEN, Circuit Judges.
                          ___________

LOKEN, Circuit Judge.

       A victim of spinal meningitis, Sean Jasa is a severely handicapped child who
needs constant medical care and supervision. Until January 1997, Sean lived with his
parents, receiving special educational services at home from the Millard Public School
District under an individualized education plan developed pursuant to the Individuals
with Disabilities Education Act (the IDEA), 20 U.S.C. §§ 1400 et seq., and the
Nebraska Special Education Act, Neb. Rev. Stat. §§ 79-1110 et seq. In January 1997,
Sean’s parents moved him for non-educational reasons to the Ambassador, a licensed
nursing facility. The Ambassador is located in Omaha’s Westside Public School
District, a few miles from the Jasas’ home in the Millard Public School District.

       After Sean’s move to the Ambassador, the Millard District declined to continue
to provide educational services at his place of residence. The Jasas protested, claiming
that Sean has a right to those services at the Ambassador under both the IDEA and
state law. After an administrative hearing, the state hearing officer denied the Jasas’
claims because they had unilaterally placed Sean at the Ambassador. The Jasas
petitioned for judicial review in a Nebraska state court. The Millard District removed
the case to the District of Nebraska, invoking that court’s jurisdiction under 20 U.S.C.
§ 1415(i)(2)(A).1 Though agreeing that Sean was being provided a free appropriate
public education at home, the district court nonetheless held that the IDEA and
Nebraska law require that the Millard District provide special education services at the
Ambassador. The Millard District appeals. We reverse.

                                I. The IDEA Claim

       The IDEA was enacted “to ensure that all children with disabilities have
available to them a free appropriate public education.” 20 U.S.C. § 1400(d)(1)(A). It
is undisputed that the Millard District was providing and remains willing to provide
Sean a free appropriate public education at its own facilities, or at the Jasas’ home.
Sean’s parents placed him at the Ambassador for non-educational reasons. They acted
unilaterally, that is, without the consent or approval of the Millard District or Sean’s
individualized education program team. The Jasas contend that the Millard District
must now provide Sean special education services at the Ambassador. This contention



      1
       In accord with the IDEA’s “stay-put” provision, the Millard District has
continued to furnish on-site educational services for Sean at the Ambassador during the
pendency of this litigation. See 20 U.S.C. § 1415(j).

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is foreclosed by the 1997 IDEA amendments as construed by this court in Foley v.
Special Sch. Dist., 153 F.3d 863 (8th Cir. 1998).

        The 1997 amendments resolved the question whether the IDEA requires public
school districts to provide special education services to children with disabilities whose
parents voluntarily place them in private schools. Congress decided that a
“proportionate amount of Federal funds” must be made available for such students, but
the IDEA “does not require a local educational agency to pay for the cost of education
. . . at a private school or facility if that agency made a free appropriate public
education available to the child and the parents elected to place the child in such private
school or facility.” 20 U.S.C. §§ 1412(a)(10)(A)(i)(I) & (C)(i); see 34 C.F.R. §
300.403(a). Thus, when parents unilaterally place a child with disabilities in a private
school or facility, they have “no individual right under IDEA to the special education
and related services in question [and therefore] no right to a federal court decree
mandating that those services be provided at a particular location.” Foley, 153 F.3d at
865; see 34 C.F.R. § 300.454(a)(1). The Jasas argue the 1997 amendments do not
govern this case because Sean was not placed in the Ambassador for educational
reasons. We disagree. Section 1412(a)(10)(C)(i) expressly applies to unilateral
placement in a “private school or facility.” The Jasas suggest that “facility” means
only an educational facility, but that is contrary to the word’s plain meaning. It would
also render the word “facility” coterminous with “school,” violating the principle of
statutory construction that avoids creating mere surplusage.

       Because the Millard District was providing Sean a free appropriate public
education at home, the IDEA provides the Jasas no right to a decree compelling the
Millard District to provide special education services at the Ambassador. Accordingly,
their IDEA claim must be dismissed, and the district court’s award of attorneys’ fees
must be reversed. See Warner v. Independent Sch. Dist. No. 625, 134 F.3d 1333,
1336-37 (8th Cir.), cert. denied, 119 S. Ct. 67 (1998).


                                           -3-
                              II. The State Law Claim

       The district court ruled, sua sponte, that Sean is entitled to special education
services at the Ambassador because the Nebraska Special Education Act requires the
Millard District to provide “visiting teachers for homebound children with disabilities.”
Neb. Rev. Stat. § 79-1129(1)(c). This state law theory was neither argued to nor
considered by the state hearing officer. Accordingly, the Millard District argues the
Jasas failed to preserve the issue for judicial review by exhausting their administrative
remedies. We disagree. The Jasas exhausted the available state administrative remedy,
and they urged the hearing officer to grant them relief under the Nebraska Special
Education Act. The issue is whether they waived a claim or theory by not specifically
arguing for state law relief under § 79-1129(1)(c). Under Nebraska law, “[t]he rule on
administrative waiver of claims later raised before the courts is a flexible one.” Ashby
v. Civil Serv. Comm’n, 492 N.W.2d 849, 853 (Neb. 1992). By not expressly relying
on § 79-1129(1)(c), the Jasas arguably deprived the reviewing court of input from both
the Nebraska Department of Education and the hearing officer as to the proper
interpretation of § 79-1129(1)(c). But interpreting the statute is a question of law on
which, in Nebraska, “a reviewing court is obligated to reach its conclusions
independent of the determination made by [an] administrative agency.” George Rose
& Sons Sodding & Grading Co. v. Nebraska Dep’t of Revenue, 532 N.W.2d 18, 23
(Neb. 1995). In these circumstances, we conclude this state law issue was not waived.

       Turning to the merits of the issue, we agree with the Millard District that the
district court misconstrued § 79-1129(1)(c). The statute provides in relevant part:

            § 79-1129. (1) The school [district] shall provide one of the
      following types of services to children with disabilities for whom the
      school district is the school district of residence:




                                          -4-
            [Subsections (a) and (b) provide for payment of transportation
      expenses when children with disabilities must travel to receive
      educational services];

             (c) Provide visiting teachers for homebound children with
      disabilities . . . ;

          (d) Provide correspondence instruction approved by the
      Commissioner of Education; or

          (e) Provide any other method of instruction approved by the
      Commissioner of Education.

First, we note that § 79-1129(1)(c) does not mandate provision of on-site teaching
services to “homebound” children. That is simply one of the authorized methods for
providing a free appropriate public education to children with disabilities. Second,
moving past the question whether Sean Jasa is “homebound” at the Ambassador within
the meaning of § 79-1129(1)(c),2 we note that the Nebraska Department of Education’s
latest regulations construe the Special Education Act as consistent with the 1997 IDEA
amendments on this issue. That is, state law:

      does not require a school district to pay for the cost of education,
      including special education and related services, of a child with a
      disability at a nonpublic school or facility if that school district made [a
      free appropriate public education] available to the child and the parents
      elected to place the child in a nonpublic school or facility.




      2
        The plain meaning of the term “homebound” — underscored in the context of
a statutory scheme in which the family residence determines which school district must
provide educational services, see Neb. Rev. Stat. § 79-1123 — counsels against its
application to a student residing at a nursing facility outside that school district.

                                          -5-
Neb. Admin. Code tit. 92, ch. 51, § 015.02A. Reading § 79-1129(1)(c) and (e) in
conjunction with this regulation, we conclude the Millard District complied with the
statute by making a free appropriate public education available to Sean at his home.
The regulation confirms that state law, like the IDEA, does not require the Millard
District to provide those same educational services at another private location
unilaterally selected by Sean’s parents.

       The judgment of the district court is reversed, and the case is remanded with
instructions to deny the Jasas’ petition for judicial review.

      A true copy.

            Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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