                  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-
