
USCA1 Opinion

	




          December 29, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-1382                              CHRISTOPHER AMANN, ET AL.,                               Plaintiffs, Appellants,                                          v.                             STOW SCHOOL SYSTEM, ET AL.,                                Defendants, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ___________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ___________________               Richard Amann on brief pro se.               _____________               Scott  Harshbarger,  Attorney General,  and Pierce  O. Cray,               __________________                          _______________          Assistant Attorney General, on  brief for appellees  Commonwealth          of Massachusetts Bureau of Special Education  Appeals, Department          of Education, and Department of Public Health.               Kevin  M.  Hensley  and  Needham and  Warren  on  brief  for               __________________       ___________________          appellee Town of Stow.               Regina Williams Tate and Murphy, Hesse, Toomey and Lehane on               ____________________     ________________________________          brief for appellees Stow School System and Stow School Committee.                                  __________________                                  __________________               Per  Curiam.   This appeal presents  a challenge,  under the               ___________          Individuals with  Disabilities Education Act (IDEA),  20 U.S.C.            1400 et  seq., to the  adequacy of  an "individualized  education          program" prepared  by  the  Town of  Stow,  Massachusetts  for  a          learning-disabled  child who lives  in the  town.1   The district          court  ruled that  Stow had  followed the required  procedures in          formulating  the education  program,  that  the  Commonwealth  of          Massachusetts had given  the plaintiffs all the process  due them          in their administrative challenge  to the program's adequacy, and          that the  program provided a "free  appropriate public education"          for  the child.   It  therefore granted  summary judgment  to all          defendants.  This appeal followed.  We affirm.                                          I                                          _               The  IDEA  requires  states  that  receive  federal  special          education  funds to  provide  all handicapped  children in  their          jurisdictions  with a  "free appropriate  public education."   20          U.S.C.    1415(a); 20 U.S.C.   1401(a)(18).  This requirement has          both  procedural  and  substantive  components.    Burlington  v.                                                             __________          Department  of Education,  736  F.2d  773,  788 (1st  Cir.  1984)          ________________________          ("Burlington  II").   "The  primary safeguard  is the  obligatory            ______________          development  of  an   individualized  education  program  (IEP)."          Roland M. v.  Concord School  Committee, 910 F.2d  983, 987  (1st          _________     _________________________          Cir. 1990).   "An  IEP is a  program of  instruction and  related          services that  has been  specially designed  to  meet the  unique                                        ____________________               1The  IDEA  was   once  known  as  the  "Education   of  the          Handicapped Act."  See  Section 25(b) of Public Law  102-119, 105                             ___          Stat. 607 (substituting  "Individuals with Disabilities Education          Act" for "Education of the Handicapped Act").          needs  of the  child.    The  IEP document  contains  information          concerning the child's present levels of performance; a statement          of  annual  goals  and  short term  instructional  objectives;  a          statement of  the specific  educational services to  be provided,          and  the  extent  to  which  this can  be  done  in  the  regular          educational  programs; and  objective criteria for  measuring the          student's progress."  Hampton School District v. Dobrowolski, 976                                _______________________    ___________          F.2d 48, 50 (1st Cir. 1992).               The   IEP  is   developed  by   a  team   that  includes   a          representative  of  the  local  educational agency,  the  child's          teacher  and  parents,  and,  in  appropriate  cases,  the  child          himself.  20  U.S.C.   1401(a)(20).  The IEP  must be reviewed at          least  annually  and   revised  when  necessary.    20  U.S.C.             1414(a)(5);  34 C.F.R.   300.343(d).  The parents are entitled to          reject a  proposed  IEP,  and if  they  do, they  can  demand  an          "impartial   due   process   hearing"   on   its   adequacy   and          appropriateness.  20 U.S.C.   1415(b)(2).  In Massachusetts, such          hearings  are  conducted  by  the  Bureau  of  Special  Education          Appeals.   603 C.M.R.   28.400.0 et  seq.  Any party aggrieved by                                           ________          the decision of the administrative  hearing officer can appeal to          either state or federal court.  20 U.S.C.   1415(c).                Substantively, the IDEA itself requires courts evaluating an          IEP  to ask only whether the program is "reasonably calculated to          enable the  child to  receive educational  benefits."   Board  of                                                                  _________          Education  v. Rowley,  458 U.S.  176, 207  (1982).   Federal law,          _________     ______          however, merely  establishes a  floor upon which  the states  are          free  to  build.   See  Burlington  II, 736  F.2d  at  792.   The                             ___  ______________          Massachusetts  legislature has  gone  further  than Congress;  it          defines an appropriate education as one that assures the "maximum          possible development" of the child.  M.G.L. ch. 71B,   2.                                          II                                          __               Christopher Amann,  now fourteen  years old, lives  in Stow,          Massachusetts with  his parents, Richard  and Barbara Amann.   In          1983,  Christopher  enrolled in  kindergarten  in  a Stow  public          school.  It soon appeared that Christopher suffered from learning          disabilities.   This discovery  triggered the  Town's obligations          under the IDEA,  and in November 1983 Stow implemented an IEP for          Christopher.   Christopher's parents  accepted this  program, and          three subsequent annual revisions, and Christopher attended  Stow          schools through the third grade.               By  September 1987,  however, when  Christopher  entered the          fourth  grade,  his  parents  had become  disenchanted  with  his          educational progress, or lack  of it, in the Stow  school system.          Rather  than   return  him   to  public  school,   they  enrolled          Christopher  in  Carroll School,  a  private  school in  Lincoln,          Massachusetts that is devoted  to teaching children with learning          disabilities.   The Amanns  say that  some representative  of the          Stow school  system recommended sending Christopher  to a private          school.  However, the  Amanns never asked for or  obtained Stow's          formal  consent to the transfer, nor did they formally reject the          then-current IEP calling for Christopher to attend public school,          or request a hearing on its adequacy.               Christopher attended the fourth  and fifth grades at Carroll          School,  at his parents' expense.  During this time, neither Stow          nor Carroll School reviewed or revised the IEP that the Town  had          promulgated  in December  1986,  and that  would,  in the  normal          course  of events, have come up for examination in December 1987.          Stow considered Christopher's enrollment  at Carroll School to be          a  unilateral, private  placement  that extinguished  the  Town's          obligations under  the IDEA, while Carroll School does not create          IEPs for privately funded students.               This was the  status quo  until January 1989,  when, in  the          middle of Christopher's fifth-grade term,  the Amanns sent Stow a          letter  asking it to prepare an IEP for Christopher, and, "during          the pendency," to pay for his education at Carroll School.               Stow declined  to pay Christopher's  Carroll School tuition,          but  it did  respond to  the request  for an  IEP.   It evaluated          Christopher, convened a "team," and in March 1989  came up with a          new  IEP.  The Amanns neither accepted nor rejected this program.          Rather, they postponed their decision until after Christopher had          been  evaluated, at  Stow's  expense, at  Children's Hospital  in          Boston.   In the meantime,  Christopher finished fifth  grade and          entered sixth grade at Carroll School.               After the  evaluation, in  late 1989, Stow  produced another          IEP.   Under its terms,  Christopher would have  returned to Stow          and received his language arts and mathematics instruction from a          special education teacher who would also have provided him with a          daily "academic  support class."   However,  the  IEP would  have          "mainstreamed"  Christopher  into regular  education  classes for          social studies,  science, music, art,  and non-academic  subjects          such as physical education and industrial arts.               The Amanns  formally rejected this proposal and  asked for a          hearing.  Stow renewed the rejected IEP in April 1990.               A  hearing officer  at the  Massachusetts Bureau  of Special          Education  Appeals (BSEA) heard four days of testimony in May and          June  1990, and compiled  a formidable  documentary record.   The          Amanns were  represented by counsel.   At the end  of August 1990          the hearing  officer issued his decision.  He ruled that Stow had          no obligation, either to  pay for Christopher's private education          or to review or revise his IEP, between September 1987,  when the          Amanns placed  Christopher at  Carroll School, and  January 1989,          when they asked Stow for a new IEP.               The  hearing  officer  also  ruled  that  the  IEP Stow  had          proposed after receiving  the Children's Hospital  evaluation was          "appropriate  to address [Christopher's]  special education needs          so as to assure  his maximum possible educational development  in          the  least restrictive  educational environment."   However,  the          hearing  officer ordered Stow to make  two changes to the IEP: 1)          to  record  on  the  document   the  services  of  a  "mainstream          facilitator"  (a  teacher  designated  to  monitor  and   support          Christopher's progress  in regular education classes),  and 2) to          make  it   clear  that  Christopher  would   not  attend  regular          industrial arts classes without appropriate support to ensure his          safety  when using  power tools  or other  dangerous instruments.          Because  the proposed  IEP  was otherwise  adequate, the  hearing          officer concluded that Stow  was "not financially responsible for          [Christopher's continued] Carroll School placement."               In September 1990, Christopher  entered the seventh grade at          Carroll School.   His  parents, meanwhile, contested  the hearing          officer's   ruling.      Their   lawyer  filed   a   motion   for          reconsideration,  claiming  that   the  last  proposed  IEP   was          inadequate  because   it  did  not  provide   for  a  "mainstream          facilitator."2   The  hearing officer  denied this  motion.   Mr.          Amann then asked for  a "compliance hearing" to challenge  Stow's          implementation of the IEP.  The BSEA held a compliance hearing in          November  1990, and found that Stow had complied with the hearing          officer's decision  by making  the required modifications  to the          IEP  and thus had "implemented"  the program insofar  as that was          possible  given  Christopher's  continued  attendance  at Carroll          School.   Finally, the Amanns asked to re-open the proceedings in          order  to raise  new charges  of lead  contamination in  the Stow          public  schools.   The  BSEA heard  argument  on this  request in          December  1990, but refused to  reopen the case  because it found          that  the  Amanns  could, and  therefore  should,  have made  the                                        ____________________               2The Amanns' lawyer  bowed out after  filing the motion  for          reconsideration.   In all  subsequent administrative and judicial          proceedings, Mr. Amann, acting "pro se," represented himself, his          wife  and his  son.   We generally  do not  allow non-lawyers  to          represent litigants other than themselves, see Herrera-Venegas v.                                                     ___ _______________          Sanchez-Rivera, 681 F.2d 41,  42 (1st Cir. 1982), and  the Second          ______________          Circuit has applied this  principle to prohibit a parent  who was          not  a lawyer  from  representing his  child.   Cheung  v.  Youth                                                          ______      _____          Orchestra Foundation of Buffalo,  Inc., 906 F.2d 59, 61  (2d Cir.          ______________________________________          1990).  However,  because we affirm  on the  merits, we need  not          determine  whether Christopher  and  Barbara Amann's  appeals are          properly  before us.   See Norton v.  Mathews, 427 U.S.  524, 532                                 ___ ______     _______          (1976);  Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 8 n.5                   _________________________    ________          (1st  Cir.  1991).   Similarly, we  need  not decide  whether the          notice  of appeal, which named only "Christopher Amann et al." in          its caption, but was  signed by Mr. Amann,  adequately identified          Mr. Amann as an  appellant. See Torres v. Oakland  Scavenger Co.,                                      ___ ______    ______________________          487 U.S.  312 (1988); Santos-Martinez v.  Soto-Santiago, 863 F.2d                                _______________     _____________          174, 176 (1st  Cir. 1988) (court of  appeals lacks power  to hear          appeal from party not specified in notice of appeal, and "et al."          does not sufficiently identify an appellant).          charges earlier.               Even before  the BSEA proceedings had  concluded, the Amanns          went  to court.   Mr. Amann filed a  perfunctory complaint in the          United States District Court for the District of Massachusetts in          November  1990,  but  did  not   immediately  serve  it  on   the          defendants.  In  March 1991,  Mr. Amann filed  a lengthy  amended          complaint.  The amended  complaint named Christopher, Richard and          Barbara  Amann  as plaintiffs,  and the  Town  of Stow,  the Stow          School System, the Stow School Committee, and the Commonwealth of          Massachusetts (through the BSEA and  the Massachusetts Department          of Public Health) as defendants.               The  amended complaint  contained  more than  150 paragraphs          organized  into six counts.   Count One asserted a lead-poisoning          claim against the Town of Stow under the Safe Drinking Water Act,          42 U.S.C.    300j-8(a).  Count Two made a  claim against the Town          under the  IDEA, and Count  Three asked  for legal fees  from the          Town.   Counts Four and  Five asserted the liability  of the Stow          School  System and  the  Stow School  Committee  under the  IDEA.          Count Six  alleged that the Commonwealth had  failed to implement          its  regulations and ensure compliance with the IDEA.  The Amanns          asked for both monetary and injunctive relief.               In February 1992 the district court entered judgment for all          defendants  on all  counts.   With respect  to the  Safe Drinking          Water Act claim, the court ruled that the Amanns had not provided          the notice that is a prerequisite to suit under the  statute.  42          U.S.C.   300j-8(b).   With respect to the IDEA  claims, the court          found 1) that  the defendants had satisfied  the Act's procedural          requirements by giving the Amanns a "fair opportunity to be heard          on  their claim,"  and 2)  that "the  IEP developed  by  the Stow          School  System and modified by the  BSEA is reasonably calculated          to enable Christopher Amann to receive educational benefits."               On  appeal, the  Amanns have  attacked both  the substantive          validity  of  the  IEP, and  the  Town's  and  the Commonwealth's          procedural  compliance  with the  IDEA;  however,  they have  not          challenged the dismissal  of their claim under the  Safe Drinking          Water Act.                                         III                                         ___               The  district  court  ruled  that Stow's  proposed  IEP  was          substantively adequate  because it was  "reasonably calculated to          enable  Christopher . . . to receive educational benefits."  This          was,  it appears,  a factually  unexceptionable  proposition, but          because it  applied the  federal "educational  benefits" standard          created  by  the IDEA,  rather than  the more  stringent "maximum          possible development" benchmark mandated by Massachusetts law, it          was  legally incorrect.   See Roland  M., 910 F.2d  at 987 (state                                    ___ __________          standards enforceable in  federal court insofar  as they are  not          inconsistent with federal rights).               However, the  BSEA hearing officer measured  the IEP against          the correct, Massachusetts,  standard.  Therefore, as long as the          record  supports the BSEA  decision, we  can affirm  the judgment          upholding it.  See Doe v. Anrig, 728 F.2d 30, 32 (1st Cir.  1984)                         ___ ___    _____          (appeals court is free to  affirm on any ground supported by  the          record).               The  Amanns contend  that  Stow's IEP  did  not satisfy  the          Massachusetts   requirement   that   it  maximize   Christopher's          development because  Christopher has  done, and will  continue to          do, better academically at Carroll School than in the Stow public          schools.   If he can  do better elsewhere,  they reason, then  it          follows logically  that  the Stow  program  does not  assure  his          maximum possible achievement.          _______               The Amanns have, in  essence, repeated an argument  made and          rejected in Roland  M. v.  Concord School Committee.   There,  we                      __________     ________________________          noted  that  "purely  academic progress  --  maximizing  academic          potential  --  is not  the  only indicia  of  educational benefit          implicated either by the Act or by state law."  910 F.2d at  992.          Rather, under  the IDEA, "[a]n  IEP must prescribe  a pedagogical          format  in   which,  'to  the  maximum   extent  appropriate,'  a          handicapped  student  is  educated  'with children  who  are  not          handicapped.'"   Id. (quoting 20 U.S.C.   1412(5)(B); 34 C.F.R.                             ___          300.550(b)(1)).  Massachusetts law states the same requirement in          different terms;  it calls  for "maximum possible  development in          the  least  restrictive  environment."   M.G.L.  ch.  71B,     2.          Federal  and state  law,  therefore,  both  dictate a  policy  of          "mainstreaming."   "[T]heir common objective is  the provision of          needed services promptly to learning-handicapped children through          the  free, local public school  system except where the resources          of those schools cannot appropriately meet the children's needs."          School  Committee of  Franklin v.  Commissioner of  Education, 17          ______________________________     __________________________          Mass. App. Ct. 683, 697 (1984).               Parents,  of course,  are free  to make  private educational          choices solely  to maximize their child's  academic progress, but          the  public  schools,  state  agencies and  courts  charged  with          administering  and  enforcing the  IDEA  do  not enjoy  the  same          liberty.   "Mainstreaming  may  not be  ignored, even  to fulfill          substantive  educational criteria."  Roland  M., 910 F.2d at 992-                                               __________          93.   "[T]he correlative requirements of  educational benefit and          least  restrictive  environment operate  in  tandem  to create  a          continuum of educational possibilities," id. at 993, and in order                                                   __          "[t]o  determine a particular child's place on the continuum, the          desirability of mainstreaming must be weighed in concert with the          Act's mandate for educational improvement."  Id.                                                       ___               In  deciding whether Stow's  IEP "reasonably calculated" the          balance   between  academic   progress   and  least   restrictive          environment,  the  district   court  had  to  bear  in  mind  two          additional considerations: 1) that the Amanns bore  the burden of          proving the IEP's inadequacy, see Burlington II, 736 F.2d at 794,                                        ___ _____________          and (2) that "the alchemy of 'reasonable calculation' necessarily          involves  choices  among  educational  policies and  theories  --          choices which courts, relatively speaking, are poorly equipped to          make."  Roland M., 910 F.2d at 992.                  _________               On  this record,  and taking  the relevant  legal principles          into  account, we  find  ample  reason  to  affirm.    There  was          substantial  proof  from which  the  BSEA  could have  rationally          concluded  that the IEP was adequate and appropriate.  See Roland                                                                 ___ ______          M., 910  F.2d at 994.   First, there  is no question  that Stow's          __          plan envisioned a less restrictive environment  for Christopher's          education.  Its  program would have enabled Christopher  to spend          much   of  his  school  day  learning  alongside  non-handicapped          children.  This opportunity was not available at Carroll School.                Second, even  giving full  credit to the  Amanns' allegation          that  Christopher  enjoyed better  academic  progress  at Carroll          School than  he would have  had he returned  to Stow, "there  was          considerable room for the  BSEA, and the district court,  to find          that  the  advantages  inherent  in  the  IEP  did  not  severely          compromise  educational  benefits."   Id.    The evaluation  from                                                ___          Children's Hospital  reported  that Christopher's  "deficits  are          likely  to  have their  primary  impact  in domains  that  depend          heavily  on output skills," such as writing (but not reading) and          mathematics.  Stow's  IEP would have given  Christopher more than          ten  hours per  week of  special education  in language  arts and          mathematics.3   The  parties  agreed that  the special  education          teacher, Ms. Watskin, was experienced and capable in those areas.          Thus,  there would  seem to  be no  reasonable dispute  about the          adequacy and appropriateness of the Stow  program with respect to          the areas in which Christopher's disabilities were likely to have          the  greatest effect  on  his ability  to  learn and  to  perform          academically.               The  Stow program would have "mainstreamed" Christopher into          regular  classes   in  science,   social  studies,  music,   art,          industrial arts, and  physical education, but even there, the IEP          did  not  contemplate leaving  Christopher  entirely  to his  own          devices.   As  amended in  accordance with the  hearing officer's          instructions, the  IEP  designated Ms.  Watskin as  Christopher's                                        ____________________               3In contrast, the  1986-87 IEP  that was in  place when  the          Amanns first enrolled Christopher  at Carroll School provided for          slightly more than six hours of special education per week.          "mainstream  facilitator."   Had Christopher  returned to  public          school, Ms.  Watskin would have  observed his regular  classes to          track his  development and performance, worked  with the teachers          in  those classes  to help  ensure that  he  received appropriate          attention  and  instruction,  and  provided  Christopher  with an          "academic support" class to help him, among other things, prepare          for  his  mainstream  classes and  work  on  his  needs in  those          subjects.                "Where  the   evidence  permits  two  plausible   views  of          adequacy/appropriateness, the agency's choice between them cannot          lightly be ignored."   Roland M., 910 F.2d at  994.  An IEP  "may                                 _________          not  be the  only appropriate  choice, or  the choice  of certain                       ____          selected experts, or  the child's parents  first choice, or  even                                                     _____          the best choice," G.D. v. Westmoreland School  District, 930 F.2d              ____          ____    _____________________________          942,  948  (1st  Cir. 1991)  (emphasis  in  original),  yet still          provide a free appropriate  public education.  Our review  of the          record  assures  us that  the program  offered  by Stow  struck a          suitable balance between the  goals of mainstreaming and "maximum          possible development."  We need go no further.                                            IV                                          __               The Amanns claim that they can identify more than five dozen          procedural  violations   of  the   IDEA  and  state   or  federal          regulations,  but their  appellate  brief treats  only five  such          issues  in any  detail, and  we will  restrict our  discussion to          them.   See United  States v. Zannino,  895 F.2d 1,  17 (1st Cir.                  ___ ______________    _______          1990) ("issues adverted to in a perfunctory manner, unaccompanied          by some effort at developed argumentation, are deemed waived").               First, the Amanns  say that Stow ignored  its statutory duty          to "prepare"  an IEP for  Christopher between September  1987 and          January 1989.    Stow  had last  reviewed  Christopher's  IEP  in          December  1986, and  the  IDEA requires  responsible  educational          agencies  to  re-examine IEPs  at least  annually.   20  U.S.C.            1414(a)(5).  However, federal  regulations promulgated under  the          IDEA  also   say  that  public  officials   need  "develop[]  and          implement[]" an IEP  for a child  in private school  only if  the          child  was  "placed in  or referred  to  [the] private  school or          facility by a public  agency."  34 C.F.R.    300.341(b) (emphasis                   ___________________          added).                 By  December 1987, when the 1986 IEP  would have come up for          its annual  review, Christopher  had enrolled at  Carroll School.          He  was not placed there by a public agency; his parents enrolled          him unilaterally, without challenging the IEP or obtaining Stow's          consent to the  transfer.  According to regulation,  their action          relieved  the   Town  of  its  responsibility   to  "develop  and          implement" an IEP for  Christopher; and if Stow was  not required          to create  an IEP for Christopher, then  it follows that the Town             ______          had no obligation  to review or revise the IEP already in place.4                                        ____________________               4  Our decision  in Burlington  II is  not to  the contrary.                                   ______________          There,  the parents placed their  child in a  private school, but          they also invoked their right to an impartial due process hearing          on the adequacy of the Town's  IEP.  We said "that pending review          of an earlier IEP, local  educational agencies should continue to          review  and revise IEPs, in accordance with applicable law."  736          F.2d  at 794.   The review  process may  take several  years, and          "[w]ithout an IEP as a starting point, the court [would be] faced          with a mere hypothesis of what  the Town would have proposed  and          effectuated during the subsequent  years."  Id.  The  pendency of                                                      ___          review,  not the placement in private school, creates the need to               Second,  the Amanns  accuse  the BSEA  of  denying them  due          process  by refusing  to  re-open its  proceedings to  hear their          allegations  of  lead poisoning  in  the water  supply  of Stow's          public  schools.    The BSEA  refused  to  convene  a hearing  to          consider  the  lead-contamination   issue  because,  the  hearing          officer said:               Any issues bearing on  Stow's capacity to implement the               BSEA decision concerning the 1990-1991 IEP should  have               been presented  at the compliance hearing.   The parent               may not now raise new objections based on evidence that               was available to the  parties at the time of  the prior               compliance hearing,  but which the parent  chose not to               present  or  argue.    Conservation  of  administrative               resources, as  well as  the principles of  fairness and               finality, demand closure of this matter at this level.               The "impartial due process hearings" guaranteed by 20 U.S.C.            1415(b)(2) "are to be conducted in accordance  with state law .          . . ."   Burlington II, 736 F.2d at 781.   In Massachusetts, "the                   _____________          granting  of  a  rehearing  is discretionary  with  the  agency."          Brookline v. Commissioner of Department  of Environmental Quality          _________    ____________________________________________________          Engineering,  387 Mass. 372, 385  (1982).  Although  the BSEA has          ___________          not published  regulations defining  a petitioner's right  to re-          open  an agency  proceeding,  a notice  attached  to the  hearing          officer's initial  decision informed  the Amanns that  motions to          re-open  would  be  limited  to  "newly-discovered  evidence,  in          existence at the time  of the hearing,  but which could not  have          been discovered with due diligence."                                         ____________________          maintain and update the IEP.  Because the Amanns did not complain          formally about the IEP,  or invoke their right to  a BSEA hearing          concerning its adequacy, there  was no administrative or judicial          review pending between September 1987 and January 1989, and hence          no obligation to review and revise.               The BSEA did  not abuse  its discretion in  so limiting  the          Amanns'  rights.    Other  Massachusetts  agencies  have  imposed          similar restrictions, see  J.C. Hillary's  v. Massachusetts  Com.                                ___  ______________     ___________________          Against Discrimination,  27 Mass.  App. Ct.  204 (1989), and  the          ______________________          Massachusetts   statute  governing  judicial   review  of  agency          decisions  says that  a  court should  reopen  a matter  to  hear          additional  evidence  only  if it  finds  "good  reason" for  the          failure to offer it earlier.  M.G.L. ch. 30A,   14(6).               Nor  did  the  BSEA  abuse its  discretion  by  denying  the          specific  request at issue here.   The affidavits  that Mr. Amann          submitted  to the  district  court showed  that  he knew  of  the          alleged lead problem no later than the "Spring of 1990."  If this          knowledge came  too late  to bring  the issue  up at the  initial          hearing in May and June,  it certainly came in time to  raise the          alleged contamination  in the  context of  either  the motion  to          reconsider or the compliance hearing.               The Amanns' three other procedural contentions share a basic          flaw.  We have said that courts "must strictly scrutinize IEPs to          ensure their procedural integrity.   Strictness, however, must be          tempered   by  considerations   of  fairness   and  practicality:          procedural  flaws  do not  automatically  render  an IEP  legally          defective.    Before an  IEP  is set  aside, there  must  be some          rational   basis   to   believe   that   procedural  inadequacies          compromised  the  pupil's  right  to  an  appropriate  education,          seriously hampered the parents' opportunity to participate in the          formulation  process,  or  caused  a  deprivation  of educational          benefits."  Roland M., 910 F.2d at 994.                      _________               None of  the remaining alleged procedural lapses  had such a          significant consequence.  Stow  may have violated a Massachusetts          regulation by "unilaterally" modifying the IEP to conform  to the          hearing  officer's instructions, rather  than convening  the full          "team" (including  the parents)  to perform  the task.   See   28                                                                   ___          C.M.R.      28.404.5  ("The  TEAM  which   completed  the  school          evaluation shall write the IEP incorporating  the decision of the          hearing  officer").  But any  error was harmless,  as the hearing          officer  found,  because in  making  the  modifications --  which          recorded  the  services of  a  "mainstream  facilitator" and  the          restriction on Christopher's use of power tools in shop classes -          -  Stow merely "fulfilled a ministerial  function and rendered no          independent judgment . .  . ."  Had the full  team met, it "would          have  had  no discretion  to expand,  amplify  or alter  the IEP"          beyond  the  terms  set by  the  hearing  officer.   The  Amanns'          absence, in other words, did not "seriously hamper" their ability          to participate meaningfully in the formulation process.               Similarly, the BSEA  committed at worst a  harmless error by          failing to  give the  Amanns a  transcript of  a hearing  held on          December 7, 1990, at which the BSEA heard the Amanns'  request to          re-open the proceedings.   The hearing was recorded but  the BSEA          apparently lost the  tape.   The lack  of a  transcript may  have          violated  the IDEA, see 20  U.S.C.   1415(d)(3)  (party to agency                              ___          hearing  has "right to a written or electronic verbatim record of          such hearing"), but, because  the hearing officer spelled  out in          writing her  reasons  for denying  the  request to  re-open,  and          because we have found that she  was within her discretion to make          the   denial,  the   BSEA's  procedural   negligence  caused   no          substantive injury.               Finally,  the  Amanns complain  that  the  BSEA rendered  an          untimely   decision.     A  federal   regulation,  34   C.F.R.             300.512(a)(1), requires agencies like the  BSEA to reach a  final          decision  with respect  to  the "impartial  due process  hearing"          within  45 days  after  it  has received  a  request for  such  a          hearing.   The BSEA indisputably missed this deadline. The Amanns          requested  the  initial hearing  on  February  8, 1990,  and  the          hearing officer did not issue his decision until August 31, 1990,          204 days after the request was made.               The Amanns  say  that  the  BSEA's tardiness  in  issuing  a          decision caused them prejudice because the decision, dated August          31,  1990, "was  not  delivered to  the  parents until  they  had          already paid the tuition  and started Christopher in Carroll  for          the term . . . ."   The implication is that the Amanns might have          complied  with the BSEA decision and enrolled Christopher in Stow          for the  1990-91 school year,  saving themselves the  tuition, if          only the BSEA had made a decision before the school year started.               However, the record gives  us no reason to believe  that the          Amanns  would  have responded  to  a timely  adverse  decision by          sending  Christopher back to Stow.  They submitted no evidence to          that effect, and their appellate brief indicates that Christopher          remained in private school not only in 1990-91, but for the 1991-          92 school  year as well.  If the Amanns enrolled Christopher in a          private  school in September 1991, a year after they learned that          the BSEA had confirmed  the adequacy of  Stow's IEP, then we  can          only infer that they would not have returned him to public school          in 1990, regardless  of the outcome of the BSEA  hearing.  And if          the hearing officer's late decision had no effect on their choice          of  schools  for  the 1990-91  school  term,  then  it caused  no          remediable harm.               Affirmed.               ________
