educational staff are obviously dedicated and well-intentioned
and they may well have hired the additional teachers, carefully
programmed the additional hours, and settled on the appropriate
techniques to help T. achieve his goals. But there was little in
the plan to engender the parents' confidence in the system. Those
most familiar with T.'s history contributed only to the
development of the goals but not the implementing program. Sonya
Kallinikos, the district's speech pathologist, conceded that she
would have recommended an extended school year for T., but "[she]
wasn't running the meeting." (AR798). The psychologist who
administered the IQ tests left before the session had concluded.
(AR857). Ms. Gotha had spent a total of five minutes with T.
before the IEP was developed and confirmed in her testimony that
the district did not involve an autism expert in the
consideration of T.'s program, (AR898). The only early childhood
classroom teacher to attend the MDC acknowledged that she hadn't
met T., had not observed T., had spent little time before the IEP
learning about him, and hadn't read any of the experts' reports.
(AR1596-7). Despite the strong advice from doctors Pasternak and
Mulick that consistency was critical, the district made no
provision in the IEP for integration of T.'s ABA/DTT program into
his classroom curriculum, even as a transitional strategy.
If the time was too short at the initial session, another could
have been scheduled right away to. explore opportunities for
compromise.*fn14 Ongoing dialogue and earnest modification of
the draft IEP might have eliminated any need to initiate a due
process hearing. But based on the district's track record, it
would be unreasonable to expect T.'s parents to send him into a
questionable placement based on a pledge of later
individualization. Even the district's settlement offer missed
the point.*fn15 When the district offered to increase the hours
that T. would participate in the program, there was no indication
how these hours would be used. (AR 956). It was not clear to the
parents or district personnel, for example, whether the classroom
teachers typically repeated the curriculum from the morning
session in the afternoon session. In fact, Dr. Mittelhauser
appeared to be the only individual with information as to the
specific components of the settlement offer. He stated that the
amended IEP would provide "one half day of [regular] kindergarten
and the other half day I believe was special education . . . in a
five-year-old special education classroom," plus "other
services." (AR913). It is hard to believe that the district felt
it could answer the parents' concerns about T.'s readiness for a
classroom setting by placing him in a nonspecial education
classroom without an assistant.
iv. "Educational benefit"
The district argues that the review officer utilized an
incorrect definition of "educational benefit" when he required
the district's IEP to facilitate T.'s "progress in the areas of
the goals and objectives contained in his IEP, at a rate enabling
him to make a successful transition to a regular education
kindergarten and/or primary grades classroom." (Level II at 28).
He settled on this benchmark based upon "uncontested information
in the case record concerning the Student's needs and
capabilities, as well as upon the Level II Hearing Officer's
understanding of the preference, underlying the IDEA, for
integration of Students with educational disabilities into the
regular education environment." Id. He acknowledged that an IEP
need not provide "either the most successful or the most rapid
possible integration of the Student into a regular education
environment," id. (emphasis in original), it need only be
The district contends, however, that because T. showed some
improvement in the playgroup, he can likewise be expected to show
some improvement in the early childhood classroom. The review
officer's standard, the district asserts, incorrectly imposes an
obligation on the district to "cure" T. or to give him an optimal
program, neither of which is required under the IDEA. In
response, the parents offer an analogy to swimming lessons:
[T]he Level II hearing officer was not ordering the School
District to groom T.H. to become an Olympic swimming champion.
The goal is not to have T.H. sitting on the "steps" of the
pool. Nor is it to have T.H. drown in the deep end because he
was thrown into that environment before he was ready to do so.
The Level II hearing officer merely directed services which
were "reasonably calculated" to provide T.H. with a meaningful
opportunity to achieve some measure of success "swimming" with
typically developed children.
(plf.'s memo at 33 n., * 13). While we often find metaphors to be
of limited usefulness, this one does a good job of focusing our
attention on whether the district's IEP would help equip T. with
the tools he'll need to benefit from a public education.
Rowley directs that the IEP must be "reasonably calculated to
enable the child to receive educational benefits." 458 U.S. at
206-207, 102 S.Ct. 3034 (emphasis added). And while the district
latches on to the Seventh Circuit's rephrasing of the requirement
in Heather S. as a singular "educational benefit," the floor
surely cannot be so low as to allow the district to squander T.'s
later potential for learning.*fn16
Indeed, the purpose of the IDEA is to "`open the door of public
education.'" Bd. of Educ. of Murphysboro Comm. Unit School Dist.
No. 186 v. ISBE, 41 F.3d 1162, 1166 (7th Cir. 1994), quoting
Rowley, 458 U.S. at 192, 102 S.Ct. 3034; dist. memo at 24. The
experts testified that there is a critical developmental window
for autistic children with language and behavioral deficits. See,
e.g., AR1007, 1010, 1021, 1094-1097. Without sufficient adult
intervention now to help reprogram T.'s young brain, his
opportunity for "meaningful access to education" may be
permanently foreclosed. See Irving Ind. School Dist. v. Tatro,
468 U.S. 883, 891, 104 S.Ct. 3371, 82 L.Ed.2d 664 (1984); see
also Walczak, 142 F.3d at 130.
This is the point of the parents' mainstreaming argument and
the review officer's definition of "educational benefit." The
IDEA explicitly provides that states receiving federal funds must
"establish procedures to assure that, to the maximum extent
appropriate, handicapped children . . . are educated with
children who are not handicapped." 20 U.S.C. § 1412 (5); Bd.
of Educ. of LaGrange School Dist. No. 105 v. ISBE, 1998 WL
792479, *6 (IDEA creates statutory presumption in favor of
mainstreaming) (N.D.Ill.). The experts who evaluated T. found
that with sufficient consistency and focus, T.'s young brain can
be reprogrammed to ameliorate some of the language and behavioral
disorders associated with autism. (AR1005). If his brain is given
these new pathways and strategies now, while it is still
developing, he will be able later to more fully participate in a
mainstream classroom. Until then, "group activities and
interactions with other children are of little present benefit to
[T.]." (AR719-22, 1010, 1043). The floor provided by the IDEA
requires the district to provide an IEP reasonably calculated to
enable T. to participate in a mainstream classroom to the maximum
extent appropriate. Neither IEP proposed by the district met that
Both administrative law judges agreed with T.'s doctors and
parents that the district's cross-categorical classroom would not
have enabled T. to achieve the goals set out in his IEP. While we
cannot say that the district's early childhood program could not
have been structured to provide T. with an appropriate education,
we can say that the preponderance of the evidence shows that
neither the April 21, 1997 IEP nor the settlement offer
constituted an appropriate placement for T. given his unique
needs and capacities. The incomplete IEPs failed to meet the
requirements of 20 U.S.C. § 1401 (20) and were not reasonably
calculated to enable T. to receive educational benefits in
preschool or beyond.
f. The parents' unilateral placement
Having carefully reviewed the record, we concur with the
and the review officer that the parents' placement for T. was
appropriate. The 38-hour ABA/DTT program was reasonably
calculated to enable T. to receive educational benefits. We find
the district's arguments as to the "non-variability" and lack of
"individualization" of the parents' program to be preposterous in
light of the evidence. The program designed by Ann Maxwell, T.'s
parents and the other experts with whom they consulted has
carefully targeted T.'s specific challenges and capacities. The
discrete trials at the heart of the program are constantly
refined according to T.'s individual progress. Indeed, the
guiding principle is to address T.'s specific linguistic,
cognitive, motor, and behavioral deficits so that he may
successfully transition to a mainstream classroom. The review
officer found that the therapists employed for the home-based
program received adequate training and noted T.'s "significant
educational gains" resulting from their work.
We also find unpersuasive the district's contention that the
program is inappropriate because it includes too many hours.
Although the number of hours that the parents chose to include as
compared to the experts' assessment as to what would constitute
an appropriate program is relevant for the purposes of
reimbursement, we find no evidence in the record to support the
notion that a 38-hour program would be inappropriate for T.
a. Reasonable Expenses
Having found that the district's proposed placement violated
the IDEA and that the parents' unilateral home-based placement
was appropriate, we are authorized to "grant such relief as the
court determines is appropriate." 20 U.S.C. § 1415 (e)(2).
Under this provision, "equitable considerations are relevant in
fashioning relief." Burlington, 471 U.S. at 374, 105 S.Ct. 1996.
This includes reimbursing parents for the costs of private
special education if the court determines that such placement,
rather than the proposed IEP, is proper. Id. at 369, 105 S.Ct.
1996. We are not required to provide total reimbursement if a
portion of the cost was not reasonable or necessary. Florence,
510 U.S. at 16, 114 S.Ct. 361. On the other hand, financial
hardship on the part of the school district will not bar
reimbursement to the parents. As the Court made quite clear in
Florence, "[P]ublic educational authorities who want to avoid
reimbursing parents for the private education of a disabled child
can do one of two things: give the child a free appropriate
public education in a public setting, or place the child in an
appropriate private setting of the State's choice. This is IDEA's
mandate, and school officials who conform to it need not worry
about reimbursement claims." Id. at 15, 114 S.Ct. 361.
The district contends that the 38-hour program is excessive and
that if it is ordered to provide any reimbursement, we should
alter the administrative orders to include only 20 hours of
home-based therapy. The record does show some disagreement among the
experts as to the number of hours necessary to achieve sufficient
intensity for T. to make progress. The Lovaas program calls for
40 hours. Doctors Lord and Leventhal thought 25 hours might be
appropriate, while the children in the experimental group of the
Sheinkopf and Siegal study proffered by the parents and cited by
the district received anywhere from 12 to 43 hours of
intervention per week. Dr. Pasternak originally suggested that
T.'s program consist of 20-40 hours each week Plaintiffs note
that T.'s "every waking hour . . . could be dedicated to
promoting and reinforcing appropriate behaviors and
communications, and eliminating behaviors and social interactions
which are considered inappropriate." (plf. memo at 12).
We are obligated here to give due weight to the final
conclusion of the review officer that reimbursement for the full
program was justified. Because the parents' program does not
exceed the range of appropriate treatment levels recommended by
the experts and because the district does not argue that any
particular component is frivolous or superfluous, we find that
the expenses included within the Level I reimbursement order, as
modified by the Level II decision, were reasonable. Other
relevant equitable factors also cut in favor of full
reimbursement for the parents. The school district had an
opportunity to evaluate T. before recommending a program. See Ash
v. Lake Oswego School Dist., No. 7J, 980 F.2d 585, 589 (9th Cir.
1992). The parents were open to alternative placements and
proposed several ideas, while the school district maintained an
"uncooperative position," at least at the MDC. See Burlington,
736 F.2d at 799; Alamo Heights Indep. School Dist. v. State Bd.
of Educ., 790 F.2d 1153, 1161 (5th Cir. 1986); Murphy v.
Timberlane Regional School Dist., 973 F.2d 13, 16 (1st Cir.
1992). The parents promptly requested the due process hearing and
every decision since has been in their favor. See Ivan P. v.
Westport Rd. of Educ., 865 F. Supp. 74, 81 (D.Conn. 1994)
(collecting cases on this factor). We find no equitable
justification for reducing the level of the parents'
b. Clarification of the interim order
Both the district and the parents have asked us to clarify
components of our interim order. Although we have now ruled on
the merits and find that T.'s parents are entitled to permanent
reimbursement, we clarify the order on the chance that one or
more of the parties to this action appeals this decision to the
Seventh Circuit. In that case, the interim order would remain in
place until all judicial proceedings have concluded.
Additionally, some of the challenged expenses would be an issue
under either the interim or final order.
The district asks us to reconsider the start date of the
interim relief and makes a rather contorted argument for the use
of the Level II decision date. The district argues that the
stay-put provision refers to an agreement between the state and the
parents to change the then-current placement. 20 U.S.C. § 1415
(j). It further contends that the Level II hearing is the
"state level hearing" based on its reading of
34 C.F.R. § 300.510 (b) which provides
(b) Appeal of decisions; impartial review.
(4) General. If the hearing required by § 300.507 is
conducted by a public agency other than the SEA [state
educational association], any party aggrieved by the
findings and decision in the hearing may appeal to the
(5) SEA responsibility for review. If there is an appeal, the
SEA shall conduct an impartial review of the hearing.
The district's reading is too strained. The regulation merely
requires that the state regime provide for at least one hearing
before the state educational association. Moreover, the text of
the Illinois statute which governed IDEA proceedings at the time
of T.'s IEP reveals that both the Level I and Level II hearings
are "state level" hearings. 105 ILCS 5/14-8.02. Accord Township
High School Dist. No. 211 Cook County, Illinois v. Ms. V., 1995
WL 103667, *3 (N.D.Ill.) (holding that "the two potential levels
of state hearings do not offend the IDEA"). Section (h) of that
provision, for example, established the procedures for the Level
I hearings and dictated that a request for a due process hearing
shall be forwarded by the local school district "to the State
Superintendent," after which "the State Board of Education shall
provide a list of 5 prospective, impartial hearing officers." 105
ILCS 5/14-8.02(h). The provision also details how the State is
to recruit, train, and pay these Level I hearing officers.
We also stand by our earlier conclusion that the principles
behind the Burlington decision argue for using the Level I
date as the starting point for the statutory injunction. 1998 WL
850819, *4-5 (N.D.Ill.), citing Burlington, 471 U.S. at 372-373,
105 S.Ct. 1996; see also Bernardsville Board of Educ. v. J.H.,
42 F.3d 149, 156 n. 12, 159-160 (3d Cir. 1994) (initiation of review
proceedings places school district on notice that parents intend
to pursue appropriate placement and reimbursement); Delaware
County Intermediate Unit No. 25 v. Martin K., 831 F. Supp. 1206
(E.D.Pa. 1993) (parents entitled to rely on state administrative
decision in their favor whether or not program was appropriate).
The district notes that two decisions cited in our interim order
utilize the date of the Level II hearing as the start date for
interim relief. See Board of Education of Oak Park & River Forest
High School Dist. No. 200 v. ISBE (Oak Park I), 10 F. Supp.2d 971,
982 (N.D.Ill. 1998); St. Tammany Parish School Bd. v. State
of La., 142 F.3d 776 (5th Cir. 1998). But in both of those cases
the review officer had reversed the findings of the first hearing
officer and ordered additional reimbursement for the parents. In
Oak Park I, the Level II review officer determined that the
parents were entitled to reimbursement for the room and board
associated with the student's placement at a residential
facility. See Board of Education of Oak Park & River Forest High
School Dist. No. 200 v. ISBE (Oak Park II), 21 F. Supp.2d 862,
873 (N.D.Ill. 1998). In St. Tammany, a review panel reversed the
decision of the independent hearing officer and concluded that
the school district was obligated to reimburse the student's
parents for the costs of his residential placement. 142 F.3d at
780, 787. Thus, in both cited cases, the date of the review
decision constituted the first date of agreement that, during the
pendency of the administrative and judicial proceedings, the
parents' placement was the appropriate educational placement for
the purposes of the stay-put provision.
With respect to the reimbursable expenses under our interim
order, we find that the parents have made the rather puzzling
decision to seek reimbursement for T.'s participation in a
cross-categorical private preschool classroom. The decision is not
necessarily inconsistent with their position during the due
process hearings because T. is apparently accompanied by a
full-time individual assistant, but without further explanation it
does undermine their opposition to the district's proposed
setting. Moreover, our interim relief order affirmed the parents'
right to reimbursement for the new "then-current educational
placement" as found by the Level I hearing officer. The private
preschool, as far as we can determine, was not proposed during
that hearing or incorporated in the Level I decision. (dist. memo
re clarification at 3). We find, therefore, that the district is
not required to reimburse T.'s parents for those expenses. To the
extent that the one-on-one aide would be working with T. at home
rather than in the preschool classroom, we assume this cost would
be subsumed within the 38-hour program.
We also agree with the district's interpretation of the Level I
order that "annual parent training" (Level I order at 1F) does
not include the costs of both the January and March conferences,
unless only one parent attended each. We read the hearing
officer's order as providing one annual training conference,
workshop, or program for each parent. We assume that the parties
have worked out their disagreement as to covered educational
materials. (dist. memo re clarification at 4).
c. State or district responsibility for reimbursement
The district moves for summary judgment on its cross-claim
against the ISBE and its former Superintendent, Joseph
Spagnola,*fn17 claiming that if full reimbursement and
attorney's fees are owed to T.'s
parents they should be provided by the ISBE and not the school
district. The district rests its claim on two theories.*fn18
First, state regulations would have prohibited the district from
incorporating T.'s home-based program into his IEP because it was
not an approved program. Thus, if the district violated the IDEA,
it is the state's fault. Second, the district argues that the
State is in violation of the IDEA because it has not altered its
reimbursement procedures to account for the Supreme Court's
decision in Carter, 510 U.S. at 13-14, 114 S.Ct. 361 (affirming
that the parents unilateral placement need not be certified or
approved by the State to qualify for reimbursement). The gist of
the district's position is that it was stuck between a rock and a
hard place and should not have to pay a dime for maintaining the
only position legally available. Magistrate Judge Denlow
recognized a school district's predicament in those circumstances
in Oak Park II, 21 F. Supp.2d at 883.
We are sympathetic but ultimately unpersuaded by the district's
arguments. As our discussion above indicates, there was a
substantial opportunity to individualize a placement for T.
within the district's early childhood program given sufficient
creativity, dedication, and allocation of resources. If the
district was concerned about its ability to recoup expenses in
excess of the district per capita tuition charge for students not
receiving special education services, see 105 ILCS § 5/14-7.02,
it could have worked harder to develop an appropriate placement
that was approved by the state. At that point, it would have
been up to the parents to choose between the FAPE offered by
the school district and the ABA/DTT program they had initiated at
home. While we recognize that the state educational agency bears
the ultimate responsibility to see that IDEA goals and policies
are implemented, the district's failure to provide an
individualized, appropriate placement cannot here be charged to
the ISBE. Cf. Beard v. Teska, 31 F.3d 942, 954 (10th Cir. 1994)
(Shadur, J.) (concluding that "the sensible (and established)
reading of Section 1412(6)" does not make the state agency "an
absolute insurer required to make good the damage" every time a
local agency fails to comply with the requirements of the IDEA).
III. Attorneys Fees
The IDEA provides that a court may award reasonable attorney's
fees to the parents of a child with a disability who is the
prevailing party. 20 U.S.C. § 1415 (e)(4)(B); Hunger v.
Leininger, 15 F.3d 664, 670 (7th Cir.), cert. denied,
513 U.S. 839, 115 S.Ct. 123, 130 L.Ed.2d 67 (1994). Those costs and
attorneys fees may cover both the judicial and administrative
proceedings. Brown v. Griggsville Community Unit School Dist. No.
4, 12 F.3d 681, 683 (7th Cir. 1993). Any fee award must be based
on "rates prevailing in the community in which the action or
proceeding arose for the kind and quality of services furnished."
20 U.S.C. § 1415 (e)(4)(C). There is no doubt that the
plaintiffs here are the "prevailing party." We consequently award
plaintiffs all attorney fees from the two due process hearings
and the present action in federal district court.
We grant plaintiffs' motion for summary judgment and order the
district to comply with the Level I order as modified by the
Level II decision, our memorandum and order of December 2, 1998.
and our opinion today. This of course extends the period of
services eligible for reimbursement back to April 21, 1997, the
date of the IEP proposed by the school district and rejected by
T.'s parents. It also covers the March training workshop and the
educational materials purchased for T.'s program. It does not
include the costs of the private preschool program or duplicative
parent training programs. We deny the district's motions for
summary judgment against the ISBE and against the parents. We
grant plaintiffs' petition for attorney's fees in Case No. 98 C
4632 and extend the order to cover fees incurred while litigating
Case No. 98 C 4633. Plaintiffs may submit an updated petition for
fees and costs. With respect to all fees and costs sought, the
parties shall comply with Local Rule 47.