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M.S. v. Utah Schools For The Deaf And Blind

United States Court of Appeals, Tenth Circuit

May 10, 2016

M.S., a minor, by and through her parent J.S., Plaintiff/Counter-Defendant/Appellant,
UTAH SCHOOLS FOR THE DEAF AND BLIND, Defendant/Counter-claimant/Appellee.


Chantel L. Alberhasky, The Alberhasky Law Firm, P.C., Springfield, Missouri (Erik Strindberg, Strindberg & Scholnick, LLC, Salt Lake City, Utah, with her on the briefs), for Plaintiff/Counter-Defendant/Appellant.

Bridget K. Romano, Utah Solicitor General (Sean D. Reyes, Utah Attorney General, with her on the brief), Salt Lake City, Utah, for Defendant/Counter-claimant/Appellee.

Before GORSUCH, MURPHY, and MORITZ, Circuit Judges.

MURPHY, Circuit Judge.


The Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq., "is a comprehensive statute enacted to ensure that all children with disabilities have access to a free appropriate public education [("FAPE")] . . . designed to meet their unique needs." Assoc. for Cmty. Living in Colo. v. Romer, 992 F.2d 1040, 1042-43 (10th Cir. 1993) (quotation omitted); see also 20 U.S.C. § 1401(9) (describing a FAPE). "To protect each child's right to a [FAPE], states . . . must establish procedures to ensure that parents have meaningful involvement in decisions concerning their children's educational programming and an opportunity to seek review of decisions they think are inappropriate." Assoc. for Cmty. Living, 992 F.2d at 1043. IDEA grants parents of disabled children the right to present a complaint "with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child." 20 U.S.C. § 1415(b)(6). "A parent who files a complaint is entitled to an impartial due process hearing conducted by either a state, local, or intermediate educational agency. . . . Parents who are dissatisfied with the state's decision may bring a civil action in . . . federal court." Assoc. for Cmty. Living, 992 F.2d at 1043 (quotation omitted); see also 20 U.S.C. § 1415(f) (describing the due process hearing); id. § 1415(i)(2) (providing right to bring a civil action in state or federal court).

J.S. is the mother of M.S., a child covered by IDEA. M.S. is a residential student at the Utah Schools for the Deaf and Blind ("USDB"). Believing USDB was not complying with IDEA's procedural requirements and was not providing M.S. with a FAPE, J.S. sought a due process hearing. See 20 U.S.C. § 1415(f). Unsatisfied with the limited relief she obtained in that hearing, J.S. filed a civil action in federal court. See id. § 1415(i)(2). J.S. now appeals from the district court decision granting her additional limited relief. She asserts the district court erred when it (1) delegated its authority to resolve the propriety of M.S.'s residential placement to members of the team tasked with developing M.S.'s individualized education program ("IEP")[1] and (2) granted her only a partial award of attorneys' fees.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we conclude the district court delegated the issue of M.S.'s residential placement to her IEP team and that such delegation is at odds with 20 U.S.C. § 1415. Thus, we remand this matter to the district court to resolve the issue of M.S.'s residential placement. Our remand makes it unnecessary to resolve the propriety of the district court's award of partial attorneys' fees. Nevertheless, we identify legal flaws in the district court's analysis of a proper fee award that may reoccur on remand.


M.S. is blind and hearing impaired and has been diagnosed with autism and a cognitive impairment. She has been a residential student at USDB since September 2004 and is working on basic life-skills. In early 2010, USDB informed J.S. it was closing its residential program. USDB's decision to eliminate its residential program caused continuing tension between USDB and J.S. After J.S. and other parents sought assistance from an advocacy group, USDB decided to keep its residential program open.

In May 2010, USDB audiologist Robert Shaw attempted to conduct an evaluation of M.S. The evaluation failed because M.S. would not tolerate anything in or near her ears. Several previous audiological tests on M.S. were also unsuccessful. As far back as 2003, a different USDB audiologist indicated an auditory brainstem response ("ABR") test would provide more definitive information about M.S.'s level of hearing sensitivity. After his unsuccessful evaluation of M.S. in May 2010, Shaw also recommended an ABR test.

During an IEP meeting in August 2010, J.S. indicated she was dissatisfied with USDB's evaluation of M.S. and with M.S.'s slow progress toward her goals. J.S. requested an Independent Educational Evaluation ("IEE") by experts in the areas of autism and blindness. See 20 U.S.C. § 1415(b), (d)(2)(A). J.S. also requested the performance of a sedated ABR test to determine if M.S. had hearing loss. USDB agreed to both requests. USDB also agreed that M.S.'s residential placement at USDB would not be changed until the IEE was completed. In February 2011, USDB sent J.S. a list of qualified evaluators for M.S.'s IEE. USDB indicated it would allow a maximum of $2000 for the IEE. See 34 C.F.R. § 300.502 (detailing, inter alia, when a state agency must pay for an IEE).

M.S. received a sedated ABR test in September 2010. The test revealed she has "a bilateral, mild to moderate, low frequency hearing loss that slopes to within normal limits at 2000 and 4000 hertz." M.S. ex rel J.S. v. Utah Sch. for the Deaf & Blind, 2014 WL 4216027, at *1 (D. Utah Aug. 25, 2014). In response to these results, M.S.'s long-time classroom teacher, Ms. Hadley, introduced thirty tactile signs and noted M.S. made progress in both receptively understanding the signs and in beginning to use them expressively. M.S.'s IEP was modified to add a classroom frequency modulated system ("FM ...

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