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August 13, 1984


The opinion of the court was delivered by: Bua, District Judge.


This order concerns the parties' cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated herein, both motions are denied.


The plaintiffs' initial complaint stated claims which, although based on various federal and state statutory and constitutional provisions, were primarily derived from the Education for All Handicapped Children Act (EAHCA).*fn1 20 U.S.C. § 1401 et seq. (1976). The EAHCA is a federal funding statute under which participating states receive federal funds to assist in providing educational and other related services to handicapped children. Any State educational agency receiving funds under the EAHCA must establish procedures whereby handicapped children and their parents may protect their rights to a "free and appropriate public education." 20 U.S.C. § 1415(a) (1976).

The plaintiffs are Max M., a handicapped child within the meaning of the EAHCA,*fn2 and his parents. The parties named as defendants in the original complaint were designated as the "State Defendants," the "Intermediate Defendants," and the "Local Defendants." The State Defendants included: (1) James R. Thompson, Governor of Illinois; (2) the Illinois State Board of Education (ISBE); (3) Donald Gill, the Illinois Superintendent of Education; and (4) Edward Copeland, the Chairperson of the Illinois State Board of Education. The Local Defendants were: (1) New Trier High School District # 203 (District # 203); (2) the New Trier District # 203 Board of Education; (3) Ronald Bickert, Superintendent of Schools in District # 203, and (4) James Walter, Director of Special Education for District # 203. The final group of defendants, the Intermediate Defendants, included: (1) the North Suburban Special Education District (NSSED); and (2) Stanley Bristol, Superintendent of the NSSED.

The relevant facts taken from the complaint and exhibits thereto have been set forth in this Court's published order of July 1, 1983, Max M. v. Thompson, 566 F. Supp. 1330, 1338 (N.D.Ill. 1983) (Max M. I) and are briefly recapitulated here. Max M. attended New Trier West, a public high school in Northfield, Illinois, from 1977 to 1981. Because of his disorganization, difficulty in writing, and anxiety, his academic performance was poor. During his freshman year, Max was referred to the District No. 203 Department of Special Education for evaluation. Intensive psychotherapy was recommended, but District 203 made no offer to provide the service at that time. The following summer, Max' parents formally requested District 203 to provide the recommended therapy during Max' sophomore year. District 203 developed an "individualized education plan" ("IEP") pursuant to the EAHCA for Max during his sophomore year, but the IEP did not include therapy. Max' condition worsened during his sophomore, junior, and senior years in high school. In the IEPs developed for each academic year, no provision was ever made for District 203 to provide intensive psychotherapy. Max' parents did not participate in the development of any of these IEPs. Ultimately, Max' parents themselves obtained private psychiatric treatment for Max at a cost to them of $8,855.

On May 15, 1981, District 203 notified Mr. and Mrs. M. of its decision to issue Max a high school diploma. Under the EAHCA, a handicapped child in Illinois becomes ineligible for continued benefits upon graduation. On May 21, 1981, Mr. and Mrs. M. requested a due process hearing, alleging violations of Max' right to a free appropriate public education. Subsequently, District 203 issued Max a diploma. On October 13, 1981, a state appointed hearing officer conducted a hearing, and ordered the diploma revoked, with services to continue based upon a new IEP. District 203 appealed the ruling to the Illinois State Board of Education, which, on February 19, 1982, reversed the decision of the hearing officer. Plaintiffs' complaint challenged this ruling on several grounds. This Court dismissed all claims against all defendants except for plaintiffs' claim against the Local Defendants under § 1415(e)(2) of the EAHCA for reimbursement of the $8,855 expended by Mr. and Mrs. M. for Max' psychiatric treatment. Max M. I, 566 F. Supp. at 1340.

In light of intervening Seventh Circuit precedent, the plaintiffs motioned for reconsideration of two of the previously dismissed claims. Basing their motion on the recent decision in Timms v. Metropolitan School District of Wabash County, Ind., 722 F.2d 1310 (7th Cir. 1983), the plaintiffs sought: (1) compensatory remedial educational services to compensate Max M. for the deprivation of EAHCA benefits while he was in high school (related to this claim, plaintiffs requested an injunction to rescind Max' high school diploma in order to reestablish Max' eligibility under the EAHCA); and, (2) injunctive relief prohibiting the Illinois State Board of Education employees from serving as members of the State Review Panel, thereby insuring impartial review.

On April 4, 1984, this Court ordered that the plaintiffs' claim for compensatory remedial educational services under EAHCA be reinstated against the State, Local and Intermediate Defendants. Max M. v. Thompson, 585 F. Supp. 317 (N.D.Ill. 1984) (Max M. II). The plaintiffs' prayer for an injunction to revoke Max' diploma was also reinstated. Id. at 15. However, the plaintiffs' claim for injunctive relief with respect to the appointment of State employees to the State Review Panel was denied and remained dismissed as to all defendants. Id. at 16. The motions presently before the Court, however, are only concerned with the plaintiffs' claim against the Local Defendants under § 1415(e)(2) of the EAHCA for reimbursement of the $8,855 expended by Max' parents for Max' psychiatric treatment.


Three basic issues are raised in the parties' cross-motions for summary judgment: Whether psychiatric services are required to be provided as a related service under § 1401(17) of the EAHCA; whether the Local Defendants have failed to comply with the procedural safeguards required under § 1415 of the EAHCA; and, if a failure to comply with the procedural safeguards has occurred, whether the failure was in an egregious fashion leading to the conclusion that the defendants acted in bad faith. Although the plaintiffs do raise an issue as to the availability of damages for the cost of Max' private psychotherapy under state regulations, this Court has already dismissed similar state law arguments asserted by the plaintiffs in Max M. I, 566 F. Supp. at 1338. Responding to the argument in Max M. I that Illinois law allowed an action for damages even if the EAHCA did not, this Court interpreted Ill. Rev.Stat. ch. 122, § 14-1.01 et seq. as follows:

  The state act's language, while not duplicating
  the language of the EAHCA verbatim, parallels the
  EAHCA in substance. As with the EAHCA, the state
  act's concern appears to be ensuring proper
  educational placement for handicapped children.
  Absent a persuasive argument to the contrary, it
  must be assumed that § 14 of the Illinois School
  Code, a mere creature of the EAHCA, is a reflection
  of the EAHCA on the state level. As such, it can
  confer no more rights than can the EAHCA itself.
  Since damages are allowed only in limited form
  under the EAHCA, this Court does not believe that
  expanded monetary relief is provided by § 14 of the
  Illinois School Code. Max M. I, 566 F. Supp. at

In their present argument, the plaintiffs cite various sections of the Rules and Regulations to Govern the Administration and Operation of Special Education, Ill.Admin.Reg.Vol. 3, Issue 5 (Feb. 2, 1979) in an attempt to establish that psychiatric services are required under state regulations if not under the EAHCA. Specifically, plaintiffs contend that provisions found in State Rule 5.10(3) and 5.01(6)(a) mandate the availability of psychiatric services for handicapped children in Illinois. Yet, this Court is of the opinion that the state regulations enacted pursuant to the EAHCA do not confer greater rights to therapeutic services than those mandated directly by the EAHCA. Nothing in the state regulations unequivocally provides for psychiatric therapy. As no greater rights to psychiatric therapy are conferred by the state regulations, this Court dismisses the plaintiffs' arguments for independent summary judgment under the state regulations as duplicative.

Defendants, on the other hand, argue that the 1980 revisions of the state regulations expressly disavow a school district's responsibility to provide the therapeutic services Max privately received. See, Emergency Rules and Regulations to Govern the Administration and Operation of Special Education, Ill.Admin.Reg.Vol. 4, Issue 39 (Sept. 26, 1980). However, state laws, regulations, or procedures cannot conflict with the provisions of the EAHCA. Monahan v. Nebraska, 491 F. Supp. 1074 (D.C.Neb. 1980). Thus, irrespective of the defendants' interpretation of the 1980 regulations, the state regulations as a matter of law cannot limit the defendants' responsibility to provide services required by the EAHCA. Accordingly, the Court dismisses the arguments of the defendants concerning the application of the state regulations to this issue and the Court proceeds to the issues raised directly under the EAHCA.

A. The Psychiatric Services Issue

A motion for summary judgment may only be granted when a moving party establishes that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; County of Milwaukee v. Northrup Data Systems, 602 F.2d 767, 774 (7th Cir. 1979). In the present case, both sides agree that among the related services specified in § 1401(17) of the EAHCA,*fn3 psychological services, including psychotherapy, are to be made available to handicapped children identified as requiring such services.*fn4 The dispute between the sides arises over the question of whether psychotherapy rendered by a ...

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