       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206             2       Berger, et al. v. Medina              Nos. 01-3874/3912
   ELECTRONIC CITATION: 2003 FED App. 0382P (6th Cir.)             City School Dist.
               File Name: 03a0382p.06
                                                                   Before: GUY and DAUGHTREY, Circuit Judges;
                                                                             LAWSON, District Judge.*
UNITED STATES COURT OF APPEALS
                                                                                _________________
              FOR THE SIXTH CIRCUIT
                _________________                                                     COUNSEL

TAMMY and STEVE BERGER,            X                       ARGUED: Stephen O. Walker, Beachwood, Ohio, for
as parents and legal guardians -                           Appellants. Julie Carleton Martin, SCOTT, SCRIVEN &
                                    -                      WAHOFF LLP, Columbus, Ohio, for Appellee. ON BRIEF:
for their minor child, Travis                              Stephen O. Walker, Beachwood, Ohio, for Appellants. Julie
                                    -  Nos. 01-3874/3912
Berger,                             -                      Carleton Martin, SCOTT, SCRIVEN & WAHOFF LLP,
          Plaintiffs-Appellants/ >                         Columbus, Ohio, for Appellee.
                                    ,
               Cross-Appellees, -
                                                                                _________________
                                    -
            v.                      -                                               OPINION
                                    -                                           _________________
MEDINA CITY SCHOOL                  -
                                    -                        RALPH B. GUY, JR., Circuit Judge. Plaintiffs, Tammy
DISTRICT,
                                    -                      and Steve Berger, appeal the judgment entered in this action
           Defendant-Appellee/ -
                                                           brought under the Individuals with Disabilities in Education
               Cross-Appellant. -                          Act (IDEA), 20 U.S.C. § 1415, which sought reimbursement
                                    -                      for the tuition plaintiffs paid to have their hearing-impaired
                                   N                       son, Travis, attend private school for the 1999-2000 school
       Appeal from the United States District Court        year. The district court found that although the Medina City
      for the Northern District of Ohio at Cleveland.      School District failed to offer Travis a free appropriate public
     No. 00-02508—John M. Manos, District Judge.           education (FAPE), plaintiffs were not entitled to tuition
                                                           reimbursement both because the private placement was not
              Argued: September 9, 2003                    proper and because plaintiffs failed to give notice of their
                                                           intention to withdraw their son from the public school.
         Decided and Filed: October 29, 2003
                                                             Plaintiffs’ appeal challenges the district court’s denial of
                                                           their requests for reimbursement and for attorney fees as a


                                                               *
                                                                The Honorable David M. Lawson, United States District Judge for
                                                           the Eastern District of Michigan, sitting by designation.

                           1
Nos. 01-3874/3912                    Berger, et al. v. Medina          3    4    Berger, et al. v. Medina            Nos. 01-3874/3912
                                           City School Dist.                     City School Dist.

“prevailing party.” Defendant Medina cross-appeals from the                 with the advice of counsel, in the development of an
determination that it failed to offer Travis a FAPE. After                  Individualized Education Program (IEP) during each of those
review of the record and the arguments presented on appeal,                 years. In his first-grade year, Medina provided a “back up”
we affirm.                                                                  FM system; speech and language therapy twice a week with
                                                                            Marjorie Kulbis, who had 25 years’ experience and a master’s
                                   I.                                       degree in speech and language pathology; and special
                                                                            education support in the classroom from Eileen Lehrer, a
   In September 1994, plaintiffs and their five-year-old son,               certified special education teacher, and her aides.
Travis, moved into the Medina City School District and
enrolled him in Medina’s Kindergarten Center. Travis, born                     At plaintiffs’ request, the IEP developed in his second-
July 31, 1989, has a profound hearing loss which entitles him               grade year added articulation goals for speech and language
to special education services under the IDEA.1 At plaintiffs’               therapy. In third grade, Ms. Ireland, who was then employed
insistence, Medina provided Travis with a frequency                         by defendant as a special education coordinator, provided in-
modulation (FM) system for Travis to use at school. The FM                  service training for the staff at Heritage Elementary who were
system allows a teacher or other student to speak into a                    working with Travis. Travis also began receiving separate
microphone that sends a radio signal to a receiver connected                articulation therapy with Gina Ellibee, who had bachelor’s
to Travis’s hearing aides. Its purpose is to overcome distance              and master’s degrees in communication disorders with an
and noise by functioning as if the speaker is only six inches               emphasis in speech and language pathology. Mrs. Berger
from the ear. The staff also was provided in-service training               attended most of those therapy sessions. An evaluation
by Jo Ann Ireland, a consultant from a resource center for                  completed at the end of third grade noted that Travis had
special education.                                                          demonstrated progress, but that he continued to have
                                                                            difficulty with comprehension and abstract concepts. His
  During the next four years, Travis attended first through                 scores on IQ and achievement tests at that time were in the
fourth grades at Medina’s Heritage Elementary School, which                 average or low normal range.
had an “open” classroom structure with dividers that did not
reach all the way to the ceiling. In each year, Travis was                    For fourth grade, Travis was placed in Joan Smith’s regular
educated in a regular education classroom with special                      classroom with the FM system and support from Mrs. Lehrer
education support; provided additional speech and language                  and her aides. As in the past, the IEP, signed in December
therapy; and offered some “pre-tutoring” of new vocabulary                  1998, continued to include speech and language therapy with
and concepts. Travis also received speech and language                      Ms. Kulbis, articulation therapy with Ms. Ellibee, and pre-
therapy through the summer breaks. Plaintiffs participated,                 tutoring of new vocabulary both in therapy and at home. Mrs.
                                                                            Smith provided plaintiffs some information on most Mondays
                                                                            for pre-tutoring purposes and had Travis keep a daily
    1
      Describing his hearing loss as profound, the Impartial Hearing        assignment book.
Officer (IHO) indicated that without his hearing aides Travis was unab le
to hear someone shouting two inches from his ear. W ith only his hearing      Although plaintiffs saw a slide in Travis’s grades and
aides, he could detect various vowel sounds in a quiet room at a distance   competency test scores from second grade on, it was during
of three feet but could not distinguish them. T ravis sup plemented his
hearing with some lip reading, but did not know sign language.
                                                                            the fourth grade that he lost his enthusiasm for school and
Nos. 01-3874/3912               Berger, et al. v. Medina      5    6      Berger, et al. v. Medina           Nos. 01-3874/3912
                                      City School Dist.                   City School Dist.

complained that he did not understand what he was being              Mrs. Lehrer, Mrs. Smith, Ms. Paul, and Ms. Ellibee all
asked to do. Travis began having at least two and sometimes        agreed that resource room placement would be appropriate.
as much as four hours of homework a night. In the first half       Each member of the IEP team, including plaintiffs, initialed
of the year, Travis was having difficulty with the math            and dated the IEP with the understanding that Travis would
curriculum and was receiving a “D” in math. As a result, the       be promoted to fifth grade and placed in the resource room for
IEP team met in February 1999 and agreed that Travis should        part of the day. Plaintiffs concede that they consented to this
receive specialized instruction from a math teacher, Alice         placement, did not advise the school that they rejected this
Paul, four times a week for thirty minutes a day. Because this     plan, and did not mention the possibility of removing Travis
math intervention program was a regular education program          from Heritage Elementary. The question of which fifth grade
for “at risk” students, the IEP was not amended to reflect it.     classroom Travis would be placed in was left open, but the
However, the IEP’s objectives for math were modified to            principal, Barbara Gunkelman, advised plaintiffs by telephone
allow Travis to use a calculator, number line, or                  during the summer that Travis would be in Mrs. Ellenberg’s
multiplication table in doing three-digit addition, subtraction,   regular fifth grade class without Mrs. Lehrer and her aides.
and multiplication. The IEP, with those changes, was signed
by everyone, including plaintiffs. In the last quarter of fourth     In a letter dated July 23, 1999, plaintiffs requested a due
grade, Travis received a “D” in written language, and an “F”       process hearing. The letter, sent to the superintendent,
in both math and reading. Plaintiffs made it known that they       Charles Irish, stated as follows:
thought Travis should be retained in fourth grade.
                                                                       My Wife and I are not happy and have not been happy
   On May 18, 1999, the IEP team, including plaintiffs, met to         with the program the Medina Schools have offered our
review the year’s progress and discuss placement for the               child. We believe that the service offered was not
following year. Ms. Ireland prepared an outline of reasons             sufficient to meet our child[’s] needs. I guess the last
why Travis should not be retained and reviewed them at the             straw was the school[’s] decision to pass him on to the
meeting. Emphasizing the importance of support from his                next grade. With the years of failure in the previous
peer group, she also suggested that repeating the fourth grade         program and our child[’s] growing unhappiness we have
would not change the fact that Travis was a “concrete thinker”         decided to look elsewhere to meet his needs. We are
who would struggle with an abstract curriculum. Ireland felt           requesting a due process hearing and as part of that
it was better to modify and adapt the fifth-grade curriculum           process we will be looking to the school to reimburse us
than to retain him in fourth grade. It was recommended that            for the cost of properly educating him elsewhere. We
Travis be promoted to fifth grade and placed in the resource           have “Whose Idea Is It Anyway” please send any other
room for part of the day to receive small group instruction in         documents pertaining to our rights.
math and language arts and to allow the instruction to be
presented in a more concrete form. There was also discussion       This letter was referred to Dr. Brad Garner, Medina’s Director
about whether Travis would be placed in a fifth-grade              of Student Services, who notified the state of plaintiffs’
classroom with or without support from Mrs. Lehrer. There          request for a due process hearing. He then called plaintiffs
was testimony that, either way, the resource room aides would      and offered to meet with them about their concerns, or, in the
be involved in Travis’s regular education classroom.               alternative, to submit the matter to the state’s mediation
                                                                   process. Mr. Berger declined, advising Dr. Garner that Travis
Nos. 01-3874/3912                Berger, et al. v. Medina      7    8       Berger, et al. v. Medina                   Nos. 01-3874/3912
                                       City School Dist.                    City School Dist.

was going to attend another school and that Medina was              findings and conclusions were affirmed in a written decision
going to pay for it. Plaintiffs also sent a note to the principal   dated August 23, 2000.
dated August 24, 1999, which stated only that Travis would
not be attending Heritage Elementary that year.                       Plaintiffs commenced this action and defendant
                                                                    counterclaimed, each seeking review of adverse findings by
  Before writing to defendant, plaintiffs had visited Medina        the SLRO. On cross-motions for review of the administrative
Christian Academy (MCA), a private sectarian school, and            decision, the district court granted both motions in part and
arranged for Travis to repeat fourth grade in the fall. MCA         found, based on a modified de novo review, (1) that although
provided no special education services, but offered smaller         the procedural defects in the IEP were de minimus, the IEP
class sizes and a “closed” classroom building with carpeted         was substantively flawed so as to deprive Travis of a FAPE;
hallways. Plaintiffs took it upon themselves to arrange for         (2) that plaintiffs were not entitled to reimbursement both
Travis to continue receiving speech and language therapy            because MCA was not a “proper placement” and because
outside school.2                                                    plaintiffs unilaterally withdrew Travis without first giving
                                                                    defendant an opportunity to remedy the IEP; and (3) that
  Plaintiffs testified that Mrs. Chase, Travis’s fourth-grade       plaintiffs were not entitled to attorney fees as a “prevailing
teacher at MCA, received training on how to use the FM              party” under the IDEA. Judgment was entered accordingly
system and took care to speak directly into the microphone          on July 17, 2001. Plaintiffs appealed and defendant cross-
and to repeat questions or comments from classmates. Mrs.           appealed.3
Chase provided all of her students with detailed weekly
lesson plans, which plaintiffs used to pre-tutor Travis at                                              II.
home. Travis’s class at MCA had 18 students, while his
fourth-grade class at Heritage had 23 or 24 students.                 Board of Education v. Rowley, 458 U.S. 176, 206 (1982),
Plaintiffs testified that Travis did well at MCA, his grades        requires the district court to undertake a “modified de novo
improved, he learned his math facts, and he was reading at or       review” of the administrative decision in an action brought
above a fourth-grade level.                                         under the IDEA. In doing so, the district court must make an
                                                                    independent examination of the evidence and base its decision
  The due process hearing was conducted before an Impartial         on a preponderance of the evidence contained in the complete
Hearing Officer (IHO) over fourteen days between September          record, while giving “due weight” to the factual findings
and December 1999. In a written decision dated May 23,              made in the state administrative proceedings; particularly
2000, the IHO found that while defendant failed to provide          when educational expertise is essential to those findings. N.L.
Travis with a FAPE, plaintiffs were not entitled to
reimbursement. Both sides pursued an administrative appeal
to a State Level Review Officer (SLRO), but the IHO’s                   3
                                                                          Defendant also argued in the administrative pro ceed ings that it
                                                                    would violate the Establishment Clause to order reimbursement for tuition
                                                                    paid to a secular private school. Bo th the IH O and the SLR O rejected this
                                                                    defense in reliance on Peck v. Lansing School District, 148 F.3d 619 (6th
    2
                                                                    Cir. 1998) (provision of remedial services to disabled student in parochial
   Defendant prepared an application for “flow through” funds for   school would not violate the Establishment Clause). This argument has
MCA to use for special education services, but MCA declined.        been aba ndoned on ap peal.
Nos. 01-3874/3912               Berger, et al. v. Medina      9    10     Berger, et al. v. Medina            Nos. 01-3874/3912
                                      City School Dist.                   City School Dist.

v. Knox County Sch., 315 F.3d 688 (6th Cir. 2003); Knable v.       determination that the private school placement was not
Bexley City Sch. Dist., 238 F.3d 755, 764 (6th Cir.), cert.        proper, we turn first to the questions raised by defendant’s
denied, 533 U.S. 950 (2001); Burilovich v. Board of Educ. of       cross-appeal from the finding that the public school
Lincoln Consol. Sch., 208 F.3d 560, 565 (6th Cir.), cert.          placement violated the IDEA by denying Travis a FAPE.
denied, 531 U.S. 957 (2000). We recently explained that in
applying this standard, the “administrative findings in an           1.    FAPE
IDEA case may be set aside only if the evidence before the
court is more likely than not to preclude the administrative         In determining whether the public placement violated the
decision from being justified based on the agency’s presumed       IDEA, the reviewing court must undertake a twofold inquiry:
educational expertise, a fair estimate of the worth of the         “First, has the State complied with the procedures set forth in
testimony, or both.” Burilovich, 208 F.3d at 567.                  the Act? And second, is the individualized educational
                                                                   program developed through the Act’s procedures reasonably
  On appeal, however, this court must apply a clearly              calculated to enable the child to receive educational benefits?”
erroneous standard of review to the district court’s findings of   Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982)
fact and a de novo standard of review to its conclusions of        (footnotes omitted). There is no violation of the IDEA if the
law. Knable, 238 F.3d at 764; see also Tucker v. Calloway          school district has satisfied both requirements. Id. at 207;
County Bd. of Educ., 136 F.3d 495, 503 (6th Cir. 1998); 20         Knable, 238 F.3d at 763.
U.S.C. § 1415(i)(2) (formerly 20 U.S.C. § 1415(e)(2)).
                                                                      With respect to the procedural prong, the district court,
A. Tuition Reimbursement under the IDEA                            agreeing with the SLRO, found that the IEP developed during
                                                                   Travis’s fourth-grade year was procedurally deficient because
   The Supreme Court has explicitly held “that IDEA’s grant        it failed to properly state present levels of educational
of equitable authority empowers a court ‘to order school           performance that specifically related to meaningful annual
authorities to reimburse parents for their expenditures on         goals or specific short-term objectives as was required by the
private special education for a child if the court ultimately      IDEA, 20 U.S.C. § 1414(d)(1)(A) (formerly § 1401(a)(20)).
determines that such placement, rather than a proposed IEP,        See Rowley, 458 U.S. at 182 & 206 n.27. Defendant has not
is proper under the Act.” Florence County Sch. Dist. Four v.       objected to this finding, perhaps because several of
Carter, 510 U.S. 7, 12 (1993) (quoting Sch. Comm. of               defendant’s witnesses conceded that the IEP was flawed, but
Burlington v. Dept. of Educ., 471 U.S. 359, 369 (1985)).           emphasizes the district court’s further finding that the
Parents who “unilaterally change their child’s placement           deficiencies were de minimus and did not violate the IDEA
during the pendency of review proceedings, without the             because the record was clear that “information absent from
consent of state or local school officials, do so at their own     the IEP was nonetheless known to all the parties.” Doe v.
financial risk.” Burlington, 471 U.S. at 373-74. In that           Defendant I, 898 F.2d 1186, 1191 (6th Cir. 1990).
situation, the parents are “entitled to reimbursement only if a
federal court concludes both that the public placement               Plaintiffs take issue with this further finding, arguing that
violated the IDEA and that the private school placement was        they are entitled under “equitable principles” to
proper under the Act.” Carter, 510 U.S. at 15. See also            reimbursement because of the “egregious nature” of
Knable, 238 F.3d at 763. Although plaintiffs appeal from the       defendant’s procedural violations. A procedural violation of
Nos. 01-3874/3912                      Berger, et al. v. Medina          11     12   Berger, et al. v. Medina             Nos. 01-3874/3912
                                             City School Dist.                       City School Dist.

the IDEA is not a per se denial of a FAPE. Knable, 238 F.3d                       The [SLRO] found, however, that the pre-tutoring
at 765. Rather, a procedural violation will constitute a denial                   services were offered only twice a week for twenty
of a FAPE only if it causes substantive harm to the child or                      minutes, and that what was offered by the school was
his parents; such as seriously infringing on the parents’                         haphazard and did not include assistance with all
opportunity to participate in the IEP process, depriving an                       subjects. The school district’s own witnesses, most
eligible student of an IEP, or causing the loss of educational                    notably Mrs. Ireland, Ms. Smith and Mrs. Kulbis,
opportunity. Id. at 765-66.                                                       admitted that pre-tutoring was often disorganized and
                                                                                  depended heavily on the parents’ involvement. This
  The evidence in this case showed that plaintiffs participated                   being so, the Court can find no reason to reject the
in the IEP meetings, had regular communication with the                           finding of the [SLRO] and holds that the school board’s
teachers and special education staff, and were engaged in                         program for Travis was not “reasonably calculated” to
Travis’s schooling on a daily basis. Travis’s educational                         provide Travis with “educational benefits.”
performance was being evaluated both in the classroom and
by standardized testing, and specific action was taken to                       (Citations and footnotes omitted.) The district court also
address the difficulties he was having in math. It was not                      observed that Mrs. Smith “went so far as to admit that she
clear error for the district court to find the procedural                       was not even sure what subjects were covered by the speech
deficiencies in the IEP did not deny Travis a FAPE.4                            therapist, the only school staff member doing any pre-tutoring
                                                                                with Travis, and never spoke with the parents concerning
  With respect to the substantive prong of the Rowley test, the                 their pre-tutoring efforts.”
district court agreed with the SLRO’s determination that the
IEP’s special education program and related services were                         The significance of pre-tutoring has to do with aiding the
“improperly and haphazardly executed” and therefore were                        normal process of auditory-cognitive closure, which is the
not reasonably calculated to enable Travis to receive                           unconscious filling in of gaps in our hearing based on prior
educational benefits. Defendant’s cross-appeal maintains that                   knowledge, language, and experience. Pre-tutoring involves
this determination was not supported by the evidence as a                       the introduction of new vocabulary or information before the
whole. The district court explained that                                        lesson or discussion in the classroom. According to Dr. Carol
                                                                                Flexer, an audiologist who testified on behalf of plaintiffs,
  a number of witnesses testified that daily “pre-tutoring”                     pre-tutoring is a “critical accommodation” that allows a child
  services were essential to Travis’s educational success.                      to participate and extract meaningful information from the
                                                                                teaching and discussions that occur in the classroom.
    4                                                                             Defendant does not dispute that pre-tutoring is a critical
      Com pare Cleveland Heigh ts-Univ. H eights City Sch. Dist. v. Boss,
144 F.3d 391, 39 9 (6th Cir. 1998) (failure of IEP to provide any               service for Travis and most hearing-impaired students.
app ropriate criteria for measuring the studen t’s progress was not             Instead, defendant argues, in essence, that the district court
technical, but “went to the heart of the substance of the plan”), with Kings    was not only wrong about what pre-tutoring Travis was
Loc al Sch. Dist. v. Zalazny, 325 F.3d 724 ,732 (6th C ir. 200 3) (failure to   receiving but also improperly focused on pre-tutoring to the
have parents present at a meeting caused no substantive harm where              exclusion of the other services and educational benefits that
parents were integrally involved in each step of the development and
implementation of the IEP).
                                                                                Travis was provided under the IEP. The adequacy of the
Nos. 01-3874/3912               Berger, et al. v. Medina     13    14       Berger, et al. v. Medina                   Nos. 01-3874/3912
                                      City School Dist.                     City School Dist.

abbreviated lesson plans sent home by Mrs. Smith was                 2.      Private Placement
contested in the due process proceeding, and the SLRO noted
the dispute as to how much pre-tutoring was or should have           Challenging the district court’s finding on this issue,
been provided by the parents based on the information sent         plaintiffs contend that their placement of Travis at MCA was
home by Mrs. Smith. Defendant emphasizes that, in addition         appropriate because it was “reasonably calculated to enable
to the twice-weekly pre-tutoring by Ms. Kulbis, Mrs. Lehrer        [Travis] to receive educational benefits.” Knable, 238 F.3d
and her aides assisted Travis on a daily basis by explaining       at 771 n.6. Plaintiffs are correct that the statutory
things when he did not understand, repeating or clarifying         requirements of a FAPE do not apply to private school
information, and looking over his class work. This assistance,     placements. Carter, 510 U.S. at 13-14. Even so, parents will
defendant argues, included “all the essential elements of pre-     not be entitled to reimbursement for a private school
tutoring.”                                                         placement unless it offers their disabled child “an education
                                                                   otherwise proper under [the] IDEA.” Id. at 12-13.5
   There was certainly evidence of shortcomings in the pre-
tutoring Travis received, whether from his parents, Ms.               Plaintiffs maintain that the placement at MCA met Travis’s
Kulbis, or Mrs. Lehrer and her aides, yet we cannot lightly        needs because it was a “quiet” school, with smaller classes
dismiss defendant’s contention that Travis was nonetheless         and a better, more attentive teacher. As proof of “educational
provided an IEP that was reasonably calculated to provide          benefit,” plaintiffs reported that Travis was getting better
educational benefit. The IEP provided Travis with speech           grades, had finally learned his “math facts,” and was reading
and language therapy, articulation therapy, accommodation in       at a fourth-grade level. Academic results have been
the classroom through the FM system and placement near the         recognized as an important factor in determining whether an
teacher, assistance during academic subjects from special          IEP is reasonably calculated to provide educational benefits.
education staff in the classroom, and individualized               See Defendant I, 898 F.2d at 1191 (quoting Rowley, 458 U.S.
instruction in math and language arts by placement in the          at 207 n.28); Roland M. v. Concord Sch. Comm., 910 F.2d
resource room for part of the day. Defendant also contends         983, 991 (1st Cir. 1990). Nonetheless, evidence of academic
that, notwithstanding the slide in his grades during the year he   progress at a private school does not itself establish that the
was in Mrs. Smith’s class, there was evidence that Travis was      private placement offers adequate and appropriate education
still making educational progress as demonstrated by his           under the IDEA. Rome Sch. Comm. v. Mrs. B., 247 F.3d 29,
standardized test scores; his increased participation in           33 (1st Cir. 2001).6 Nor are parents entitled to reimbursement
classroom discussions; and his progress in speech, language,
and articulation therapy. Because we conclude that the
outcome of this appeal does not depend on this issue,                   5
                                                                         Plaintiffs’ initial claim of error, that the private placement was
however, we assume without deciding that pre-tutoring              rejected for failure to satisfy statutory requirements, completely misreads
services were so critical to the IEP that the inadequacies in      the district court’s rationale on this issue.
defendant’s delivery of pre-tutoring services denied Travis a           6
FAPE.                                                                     The district court observed that if educational progress was
                                                                   determinative, reimbursement would depend on the “mere happenstance”
                                                                   of whethe r the child “did well” in a private placem ent, which could mean
                                                                   the denial of reimbursement for even specialized educational programs for
                                                                   disab led stud ents if the child did no t show a cademic results. T his wou ld
Nos. 01-3874/3912                    Berger, et al. v. Medina         15     16   Berger, et al. v. Medina             Nos. 01-3874/3912
                                           City School Dist.                      City School Dist.

for private school just because the private placement is less                   We agree with the IHO’s assessment that although nothing
restrictive than the public school placement. See Milford Sch.               in Carter or Burlington indicates that a private school must be
Dist. v. William F., No. 97-1506, 1997 WL 696108, at **6                     readily identifiable as a “special education placement,” a
(1st Cir. Nov. 10, 1997) (unpublished disposition) (“Even if                 unilateral private placement cannot be regarded as “proper
the private school was less restrictive, it would still have to be           under the Act” when it does not, at a minimum, provide some
a placement deemed appropriate by an authorized decision                     element of special education services in which the public
maker in terms of educational benefit.”).7                                   school placement was deficient. See In re Owen J. Roberts
                                                                             Sch. Dist., 29 IDELR 742 (SEA Pa. 1998) (administrative
  The crux of the district court’s decision on this issue, like              appeal denying reimbursement for private school offering
those of the administrative hearing officers in this case, was               small class sizes, but no special education services). It must
the fact that MCA did not provide Travis with any of the                     be kept in mind that retroactive reimbursement is an equitable
special education services he needed; in particular, neither the             remedy for the failure of the public school to provide a FAPE
speech and language therapy that he undeniably needed, nor                   to a disabled student. Burlington, 471 U.S. at 371-74. As
the pre-tutoring services that were found to be lacking at                   such, a private school placement must be consistent with the
Heritage Elementary. MCA declined to apply for “flow                         purposes of the IDEA. See Gillette v. Fairland Bd. of Educ.,
through” funds that could be used to provide special                         932 F.2d 551, 554 (6th Cir. 1991) (“Removing a child from
education services for Travis, and plaintiffs arranged for his               a partially mainstreamed program at a public school, which
speech and language therapy outside school and provided pre-                 otherwise provides an appropriate academic instruction and
tutoring at home.                                                            the only objection to that program was a failure to fully
                                                                             mainstream, and placing that child in a non-mainstreamed
  On appeal, plaintiffs suggest that pre-tutoring was only                   program in a private school does not satisfy the goals of the
recommended to overcome problems caused by the                               Act.”)
“structurally flawed environment” at Heritage Elementary.
On the contrary, Dr. Flexer testified that pre-tutoring was an                 We agree with the district court that the placement MCA
essential service for most hearing-impaired students and is                  offered to Travis, although apparently a good education, was
required to remedy problems they have with auditory-                         not “proper under the IDEA.” As such, plaintiffs were not
cognitive closure. Moreover, after visiting Heritage, the IHO                entitled to reimbursement under Carter.
specifically found both that the classroom setting was
“relatively quiet” and that the FM system was intended to                    B. Notice to Defendant
overcome ambient noise.
                                                                                The district court also denied plaintiffs’ request for
                                                                             reimbursement for the separate and independent reason that
                                                                             plaintiffs failed to inform defendant that they objected to the
not be consistent with the purposes of the IDEA.                             IEP before removing Travis from the public school. Even
    7
                                                                             before the IDEA was amended to explicitly require such
     Converse ly, we have held that the fact that private school placement   notice, this court held that dissatisfied parents were required
is more restrictive will not bar parents from receiving reimbursement        to complain to the public school to afford the school a chance
under Burlington and Carter. See K nab le, 238 F.3d at 770; Cleveland
Heights-Un iv. Heigh ts Sch. Dist. v. Boss, 144 F.3d 39 1 (6th Cir. 1998).
                                                                             to remedy the IEP before removing their disabled child from
Nos. 01-3874/3912              Berger, et al. v. Medina    17    18       Berger, et al. v. Medina                     Nos. 01-3874/3912
                                     City School Dist.                    City School Dist.

the school. See Wise v. Ohio Dept. of Educ., 80 F.3d 177, 185    assertion that Travis was not removed from the public school
(6th Cir. 1996); Hines v. Tullahoma City Sch. Sys., No. 97-      until plaintiffs sent a letter to the principal in late August
5103/04, 1998 WL 393814 (6th Cir. June 15, 1998)                 1999, stating that Travis would not be attending Heritage
(unpublished disposition). As amended, however, the IDEA         Elementary. We are satisfied that the district court did not err
provides that reimbursement for a private school placement       in finding that plaintiffs failed to provide the notice required
may be reduced or denied if parents did not provide notice,      by the IDEA.
either at the most recent IEP meeting prior to removal, or in
writing 10 business days prior to removal of the child from        In apparent reliance on the exceptions to the notice
the public school, “that they were rejecting the placement       requirement, plaintiffs claim an absence of proof in the record
proposed by the public agency to provide a [FAPE] to their       that they ever received information regarding the 1997
child, including stating their concerns and their intent to      amendments.8 The district court found that the proper
enroll their child in a private school at public expense.” 20    procedure for withdrawing a student, as well as the limitations
U.S.C. § 1412(a)(10)(C)(iii)(I)(aa) (effective June 4, 1997).    on reimbursement, were described in a pamphlet entitled
                                                                 “Whose IDEA is This?” Plaintiffs admitted to having
  The administrative decisions in this case denied               received the pamphlet and did not deny receiving a version
reimbursement in reliance on Wise and Hines, while the           that included information about the 1997 amendments. In
district court found plaintiffs had not complied with            fact, Mrs. Berger testified that they received a new copy of
§ 1412(a)(10)(C)(iii). The record is clear that at the           the pamphlet at the beginning of every school year. The
conclusion of the May 1999 IEP team meeting, plaintiffs          pamphlet that was distributed at the beginning of the 1998-
signed the IEP indicating their agreement with the decision to   1999 school year would have included the addendum with the
promote Travis to fifth grade and place him in the resource      relevant information. We find no error in the district court’s
room for part of the day. Plaintiffs admitted during the due     decision to deny reimbursement for failure to provide notice
process hearing that they did not inform the IEP team at the     as required by the IDEA.9
May 1999 meeting either that they rejected the placement, or
that they intended to enroll Travis in a private school.
                                                                      8
  Plaintiffs argue that the July 23, 1999 letter requesting a          The IDEA does not require parents to meet the notice requirement
due process hearing constituted written notice that satisfied    if one of the following exce ptions app lies: “(I) the p arent is illiterate and
the statute because Travis was not officially removed until      cannot write in English; (II) c omp liance . . . would likely result in
                                                                 physical or serious emotional harm to the child; (III) the school prevented
more than 10 days later. The evidence showed, however, that      the parent from providing such notice; or (IV) the parents had not
plaintiffs arranged to enroll Travis at MCA before requesting    received notice . . . of the notice requirement in clause (iii)(I).” 20 U.S.C.
the due process hearing or advising defendant of its specific    § 1412 (a)(10)(C)(iv).
objections and intent to remove their child from public
                                                                      9
school. Not only did the letter demonstrate that plaintiffs            W e need no t address the district court’s further finding that
were removing Travis from the public school, but their           plaintiffs’ refusal to engage in mediation provided an independent basis
subsequent rejection of the offer to either have another         for denying their request for reimbursement under 20 U.S.C.
                                                                 § 1412(a)(10 )(C)(iii)(III) (Reimbursement may also be reduced or denied
meeting or engage in mediation through the Department of         “upon a judicial finding of unreaso nableness with respect to actions taken
Education confirmed it. We are not persuaded by the              by the parents.”).
Nos. 01-3874/3912                Berger, et al. v. Medina     19    20    Berger, et al. v. Medina              Nos. 01-3874/3912
                                       City School Dist.                  City School Dist.

  In a final argument, plaintiffs strenuously argue that their      ordered without regard to either the appropriateness of the
failure to give notice required by the statute should be            private placement or the parents’ own violations of the
excused by defendant’s failure to comply with other technical       IDEA’s notice requirement.
requirements of the IDEA. Those alleged violations, making
placement decisions outside the IEP process and failing to            Particularly telling is the decision in Hall v. Vance County
give plaintiffs prior notice of the intention to change Travis’s    Board of Education, 774 F.2d 629 (4th Cir. 1985), in which
educational placement, will not relieve plaintiffs of the           the court found the parents’ failure to initiate proceedings was
requirement that they provide notice under the statute of their     a direct result of the public school’s noncompliance with
intention to unilaterally withdraw Travis.                          procedural safeguard requirements of the IDEA.
                                                                    Consequently, the procedural violations themselves were
  As for the claim that defendant made placement decisions          found sufficient to establish a failure to provide a FAPE under
outside the IEP process, plaintiffs have not shown it was clear     Rowley. Id. at 635. In a footnote, the court took care to note
error to find that there was an IEP and that the May 1999           there was no question that the private placement was
meeting was an IEP meeting. More importantly, the fact that         appropriate. Id. at 636 n.7. See also Ash v. Lake Oswego Sch.
school personnel conferred informally before the May 1999           Dist., 980 F.2d 585, 589 (9th Cir. 1992) (addressing
meeting, formulated opinions, and came to the meeting with          procedural violations and approving district court’s opinion,
recommendations concerning Travis’s placement for the               which specifically found the private placement was “proper
following year does not demonstrate either a violation of the       under the Act”); Babb v. Knox County Sch. Sys., 965 F.2d
IDEA, or “serious infringement” of plaintiffs’ right to             104, 109 (6th Cir. 1992) (as a direct consequence of failure to
participate in the IEP meeting. N.L. v. Knox County Schs.,          adhere to procedural requirements, child deprived of an IEP).
315 F.3d 688, 692 (6th Cir. 2003) (applying Burilovich, 208
F.3d at 568-69).                                                      Plaintiffs rely on the statement that “reimbursement after a
                                                                    unilateral placement can be appropriate, upon a finding of
  Next, plaintiffs correctly observe that the IDEA requires         sufficiently serious procedural failures by the school district.”
that parents be provided prior written notice whenever the          Doe v. Metro. Nashville Pub. Sch., 133 F.3d 384, 388 (6th
school district proposes or refuses to initiate or change the       Cir. 1998) (violation of “child find” obligations). That
educational placement of the child. See 20 U.S.C.                   statement, however, was supported by citation to both Hall
§ 1415(b)(3); 34 C.F.R. § 300.503. Without determining              and Ash. Also, the court reversed summary judgment on the
whether or not this provision was in fact violated, the district    question of the impact of the defendant’s procedural
court found that no substantive harm to plaintiffs’ ability to      violations without indicating that any challenge had been
participate meaningfully in the IEP meetings resulted. As           made to the private placement. See also Tenn. Dep’t of
such, any technical violations were also found insufficient to      Mental Health v. Paul B., 88 F.3d 1466, 1475 & 1478 (6th
excuse the parents’ obligation to complain before unilaterally      Cir. 1996) (question of fact existed whether failure to give
withdrawing from the public school. While we agree with             notice of proposed change in placement caused ambiguous
this assessment, close examination of the case law relied on        statements at the IEP meeting to mislead the parents about
by plaintiffs reveals that those cases actually address the first   what decision was being made at that time). These cases do
Rowley prong, whether the procedural violations denied the          not stand for the proposition that the parents’ failure to
child a FAPE, and do not hold that reimbursement may be             comply with the notice requirement in the statute may be
Nos. 01-3874/3912                Berger, et al. v. Medina     21    22    Berger, et al. v. Medina              Nos. 01-3874/3912
                                       City School Dist.                  City School Dist.

excused by demonstrating a school’s violation of procedural         increased speech and occupational therapy. Id. at 850. We
requirements under the IDEA.                                        find no error in the district court’s determination that
                                                                    plaintiffs were not prevailing parties eligible for attorney fees
C. Attorney Fees                                                    under the IDEA.
   Plaintiffs may be considered “prevailing parties” for              AFFIRMED.
purposes of attorney fees “if they succeed on any significant
issue in litigation which achieves some of the benefit the
parties sought in bringing suit.” Hensley v. Eckerhart, 461
U.S. 424, 433 (1983). The “touchstone” of this inquiry is
“the material alteration of the legal relationship of the
parties.” Texas State Teachers Ass’n v. Garland Indep. Sch.
Dist., 489 U.S. 782, 792-93 (1989). The IDEA provides that
a court, “in its discretion, may award reasonable attorneys’
fees as part of the costs to the parents of a child with a
disability who is the prevailing party.”         20 U.S.C.
§ 1415(i)(3)(B) (formerly 20 U.S.C. § 1415(e)(4)).
   It is clear that both the administrative proceedings and this
lawsuit were brought to recover the cost of educating Travis
at the private school for the 1999-2000 school year. Having
determined that plaintiffs were not entitled to reimbursement,
the district court found plaintiffs were not “prevailing parties”
eligible for attorney fees under the IDEA. Plaintiffs maintain
they were prevailing parties by virtue of their success in
demonstrating that defendant failed to provide Travis with a
FAPE. That finding, while favorable to plaintiffs, does not
constitute success on a significant issue in this litigation.
   Plaintiffs’ heavy reliance on Krichinsky v. Knox County
Schools, 963 F.2d 847 (6th Cir. 1992), is misplaced as it is
easily distinguished from the case at bar. There, the parents
contested the IEP and sought to force the school to place their
child in a residential facility, but did not remove him from the
school. As a result, even though the parents did not succeed
in forcing a change to residential placement, they were found
to have succeeded on two significant issues because they
convinced the court to order defendant to provide their child
