Opinion
Civ. No. 03-2437 (JNE/JGL).
September 30, 2004
Sonja Kerr, Esq., Kerr Law Office, appeared for Plaintiff Amanda Wachlarowicz, by and through her parents, Jack and Grace Wachlarowicz.
Susan E. Torgerson, Esq., Rider Bennett, LLP, appeared for Defendant Independent School District No. 832, Mahtomedi, Minnesota.
Martha J. Casserly, Esq., Minnesota Attorney General's Office, appeared for Defendant Alice Seagren, Commissioner, Minnesota Department of Education.
ORDER
Jack and Grace Wachlarowicz on behalf of their daughter Amanda brought this action against Independent School District No. 832, Mahtomedi, Minnesota (District), asserting violations of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1487 (2000), and against the Minnesota Department of Education (MDE) asserting claims that MDE failed to establish and communicate a statute of limitations for due process hearings and that Minnesota Rule 3525.1331 (2002), it is inconsistent with the IDEA. The District cross-appealed. The case is before the Court on the District's motion for judgment on the administrative record and MDE's motion for summary judgment. For the reasons set forth below, the Court grants in part and denies in part the District's motion and grants MDE's motion.
I. BACKGROUND
Amanda is an eighteen-year old student who suffers from speech apraxia, bilateral high-frequency hearing loss, a central auditory processing disorder, and a seizure disorder. She lives with her parents within the geographic boundaries of the District. She attended school in the District until April 2003, and she received special education services pursuant to the IDEA.A school district that accepts federal funds under the IDEA must provide disabled children within its jurisdiction with a free appropriate public education (FAPE). 20 U.S.C. §§ 1400(d)(1)(A), 1412(a)(1)(A). To provide a FAPE, a school must formulate an individualized education plan (IEP) tailored to the child's needs. See id. § 1400(d)(1)(A). A child's IEP is regularly monitored by a child's IEP team and annually evaluated to accommodate any changing needs. In mid-April 2002, the District notified the parents that an IEP team meeting would convene for Amanda's annual IEP review. Shortly thereafter, Amanda's parents requested that the District accommodate them because their schedules would not permit them to attend a protracted IEP meeting. In response, the District, in a letter, suggested that they correspond via mail and meet on May 2, 2002, to finalize Amanda's 2002-03 IEP plan. Although Amanda's parents did not respond to this offer, the District forwarded the proposed IEP to the parents in late-April and noted the IEP team meeting scheduled for May 2, 2002. On May 1, 2002, without having submitted comments or revisions on the District's proposed IEP, Amanda requested a due process hearing to contest the educational program provided by the District. Specifically, Amanda objected to the IEP's failure to identify her as deaf and hard of hearing (D/HH) pursuant to Minnesota Rule 3525.1331 (2002). See 20 U.S.C. § 1415(f); Minn. Stat. § 125A.09 (2002) (repealed 2003 and replaced by Minn. Stat. § 125A.091). On May 2, 2002, counsel for Amanda notified the District by letter that the parents had requested a due process hearing and would not be attending the IEP meeting scheduled for that night.
A disabled child's IEP team consists of:
(1) The parents of the child; (2) At least one regular education teacher of the child. . . .; (3) At least one special education teacher of the child, . . .; (4) A representative of the public agency who — (i) is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities; (ii) is knowledgeable about the general curriculum; and (iii) is knowledgeable about the availability of resources of the public agency; (5) An individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in paragraphs (a)(2) through (6) of this section; (6) At the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and (7) If appropriate, the child.
34 C.F.R. § 300.344(a) (2000).
Under Amanda's past IEPs, she received special education relating to speech and language. These services addressed her hearing impairment, but she was never classified as D/HH.
At the time of Amanda's hearings, Minnesota had a two-tier administrative process whereby a party was permitted to appeal the IHO's decision to a Hearing Review Officer. See Minn. Stat. § 125A.09, subd. 6-7 and 9 (repealed May 2003). Since then, the statute authorizing the two-tier process has been repealed. Now, review of an IHO's decision is performed by a federal district court or the state court of appeals. See Minn. Stat. § 125A.091, subd. 24 (Supp. 2004).
By agreement, the parties first delayed the due process hearing in order to complete an overdue reevaluation of Amanda. The parties met in May 2002 and developed an evaluation plan, Amanda was evaluated in May and June 2002 and the evaluation report issued June 7, 2002. Thereafter, the parties again postponed the due process hearing and instead met on August 20, 2002. At that meeting, the parties discussed Amanda's IEP but did not arrive an IEP acceptable to Amanda.
At the end of September 2002, in anticipation of the commencement of the due process hearing, the independent hearing officer (IHO) ruled on two motions for partial summary judgment. First, he held that Amanda did not qualify under Minnesota Rule 3525.1331, subp. 2(A)(4) to receive D/HH status and second the IHO determined that a two-year statute of limitations applied to Amanda's due process hearing. After a four-day hearing conducted in October 2002, the IHO concluded inter alia that although that the District committed two procedural violations, Amanda received a FAPE. Nonetheless, the IHO also ordered that a D/HH teacher be placed on Amanda's IEP team and that the District reimburse her parents for a private evaluation they had obtained for Amanda.
Both parties appealed the IHO's decision to a hearing review officer (HRO). See Minn. Stat. § 125A.09, subd. 9 (repealed 2003). The HRO adopted all of the IHO's findings of fact and affirmed all of the IHO's conclusions except the conclusions concerning the addition of a D/HH teacher to Amanda's IEP team and the monetary reimbursement. In March 2003, Amanda brought this action seeking review of the HRO's decision, see 20 U.S.C. § 1415(i)(2); Minn. Stat. § 125A.09, subd. 10 (repealed May 2003 and replaced by Minn. Stat. § 125A.091, subd. 24), and she added MDE as a defendant. The District cross-appealed, also seeking this Court's review. The District now moves for judgment on the record, and MDE moves for summary judgment.
II. DISCUSSION
A. District's Motion for Judgment on the Record
In an action brought pursuant to § 1415(i)(2), a district court must review the state administrative record, hear additional evidence if requested, and grant such relief as it deems appropriate based on the preponderance of the evidence. 20 U.S.C. § 1415(i)(2)(B); CJN ex rel. SKN v. Minneapolis Pub. Sch., 323 F.3d 630, 636 (8th Cir. 2003). "Although a district court should independently determine whether the child has received a FAPE, it must give `due weight' to agency decision-making." CJN, 323 F.3d at 636. This is so because "the administrative panel had an opportunity to observe the demeanor of the witnesses and because the court should not substitute its own educational policy for those of the school authorities that they review." Id. Under a two-part test set forth in Board of Education v. Rowley, 458 U.S. 176 (1982), a district satisfies its obligations under the IDEA (1) if it complies with the statute's procedural requirements and (2) if the IEP is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207; CJN, 323 F.3d at 634. Before analyzing the District's procedural and substantive compliance, the Court must first address two interrelated issues raised by the parties.
1. Propriety of a motion for judgment on the record
First, Amanda contends that the instant motion should be dismissed because the District has improperly moved for a motion for judgment on the record. According to Amanda, the Court must review this motion under a summary judgment standard because the parties have not stipulated to the record, there are disputed questions of fact, and she has requested additional evidence be included in the record. The Court disagrees.
The Eighth Circuit Court of Appeals in Independent School District No. 283 v. S.D., 88 F.3d 556, 560 (8th Cir. 1996), addressed a similar challenge to the propriety of a district court granting judgment on the administrative record. In that case, S.D. argued that because there were material facts in dispute and because she wished to present additional evidence, the district court erred in ruling on a motion for judgment on the record. Id. In concluding that the district court's review was appropriate, the Eighth Circuit noted that S.D. failed to "present solid justification to expand the administrative record," and that "[j]udicial review of agency action may be conducted on the administrative record even if there are disputed issues of material fact." Id. at 560-61.
By Order dated February 11, 2004, the magistrate judge denied Amanda's request to expand the record in her case against the District. Given that, in the face of genuine issues of material fact, a court may conduct judicial review as a judgment on the record, see id., the Court will do so.
2. The August 20, 2002 meeting
Second, the District contends that the HRO first erred by not construing the August 20, 2002 meeting between the parties as a conciliation conference, and subsequently by not admitting the IEP proposed at the meeting into the record. The parties do not dispute that they met on August 20, 2002, that they discussed a new IEP for Amanda, and that a new IEP was proposed but not finalized. The crux of the dispute is whether the meeting constituted a conciliation conference as defined by Minn. Stat. § 125A.09, subd. 4 (2002) (repealed 2003 and replaced by Minn. Stat. § 124.091, subd. 7) and Minnesota Rule 3525.3700.
The District argues that Amanda's parents attended the August 20, 2002 meeting with the understanding that it was a conciliation conference and that Amanda and her parents later recast the meeting as a settlement conference to gain a tactical advantage in the due process hearing. In support, the District relies in part on the notice letter sent to Amanda in anticipation of the meeting. However, the District failed to include a copy of that letter in its motion papers. Moreover, although the letter was discussed at the IHO hearing, it was excluded by the IHO officer and was not made part of the record before the Court. See Trans. 462 (IHO marking the letter as Ex. 130 and indicating to the District's counsel that it was her responsibility to make the letter part of the administrative record for purposes of appeal). Accordingly, the Court did not, and could not review the letter. In response to the District's argument, Amanda contends that the August 20 meeting could not have been a conciliation conference because there was no proposed IEP before the meeting to conciliate. Given this, Amanda contends that this was a settlement hearing.
The Court is persuaded by Amanda's argument that a conciliation conference requires something to conciliate — i.e., an IEP — and the testimony that no proposed IEP was attached to the District's notice. Moreover, after extensive testimony and based in part on credibility determinations he made regarding the veracity of the witnesses' testimony, the IHO concluded that the District had not shown by a preponderance of the evidence that the August 20 meeting was a conciliation conference. The HRO affirmed his finding. The Court affords the IHO's decision its due weight. See Moubry v. Indep. Sch. Dist. No. 696, 9 F. Supp. 2d 1086, 1105 (D. Minn. 1998) ("A Court may afford greater weight to the fact findings of the [IHO] as opposed to the HRO in view of his opportunity to observe the demeanor of the witnesses and to render believability determinations.") (internal quotations omitted). Therefore, giving due weight to the agency decision-making, the Court concludes that the District has not shown by a preponderance of the evidence that the August 20 meeting was a conciliation conference and that the August 20, 2002 proposed IEP was properly excluded from the due process hearing. Procedural compliance
In so holding, the Court is not making a determination that the District failed to comply with a request for a conciliation conference or that the District failed to offer a conciliation conference when faced with the rejection of an IEP. See Minn. Stat. § 125A.09, subd. 4 (repealed 2003 and replaced by Minn. Stat. § 125A.09, subd. 7) ("If the parent or guardian refuses efforts by the district to conciliate the dispute with the district, the requirement for an opportunity for conciliation or other alternative dispute resolution must be deemed to be satisfied.").
The Court now turns to the first part of the Rowley test, whether the District complied with the IDEA's procedural requirements. See Rowley, 458 U.S. at 207. The parties agree that the District, through a clerical error, failed to provide Amanda with a three-year evaluation as required by 20 U.S.C. § 1414(a)(2), and that the District failed to provide certain audiological services specified in Amanda's 2001-02 IEP — namely, five minutes of direct services from an audiologist per week. The parties agree that these failures constitute procedural violations under the IDEA. In this case, Amanda challenges the HRO's conclusion that even though the District committed procedural errors, she was not denied a FAPE.
"Congress intended that IDEA's procedural safeguards be enforced so that parents of a handicapped child will have adequate input in the development of the child's IEP." S.D., 88 F.3d at 562. In reviewing a district's procedural compliance, the Eighth Circuit Court of Appeals has established what amounts to harmless error standard, see Moubry, 9 F. Supp. 2d at 1102; that is, a denial of FAPE resulting from procedural deficiencies occurs only when the "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." S.D., 88 F.3d at 562. Minnesota law is consistent with that standard, providing "a district is not liable for harmless technical violations . . . if the school district can demonstrate on a case-by-case basis that the violations did not harm the student's educational progress or the parent's right to notice, participation or due process." Minn. Stat. § 125A.091, subd. 28 (Supp. 2004).
The standard was the same under Minn. Stat. § 125A.09. See Minn. Stat. § 125A.09, subd. 15.
Accordingly, the Court's inquiry is whether the District's procedural violations impaired Amanda's right to an appropriate education or deprived her of educational benefits, or whether her parents were deprived of participation or due process. With regard to Amanda, the record reflects that the District demonstrated through the testimony of Amanda's general education teacher, Dick Zgonc, and Amanda's case manager, Holly Luidwigson, that Amanda made progress in her general education classes and on her IEP goals. For instance, she mastered one of her goals when she completed the basic standards test in reading. The record also reflects that Amanda's grades were commensurate with her abilities and that she finished the year with a 2.94 grade point average.
Amanda's parents also appeared to believe that Amanda was obtaining educational benefit. The District received several emails from Amanda's father that included statements such as: "[w]e do appreciate the outstanding education out daughter is getting;" "[w]e feel Amanda is doing quite well giver her disability; and that he "VERY much [appreciates] the excellent education opportunities that the staff at Mahtomedi are trying to provide students and particularly [their] dedication and concern in working with [his] daughter." In sum, the Court affirms the findings of the IHO and HRO that Amanda made progress and was not denied educational benefit.
As for the parents' opportunity to participate in the formulation process, the record reflects the parents' constant participation in the process as well as the District's frequent solicitation of their participation. It also reveals the possibility that the delay in Amanda's reevaluation in part resulted from the parents' October 2001 request that the District conduct no further assessments of Amanda.
Giving due weight to the agency decision-makers, the Court finds that the District demonstrated by a preponderance of the evidence that Amanda made meaningful progress and received educational benefit, and that her parents were not only provided with opportunity to participate. Accordingly, the Court concludes that Amanda was not denied a FAPE.
In its cross-appeal, the District does not challenge the HRO's conclusion that Amanda was not denied a FAPE but instead contends that the IHO mistakenly referred to the procedural violations as a "limited denial of FAPE." The Court agrees with the District. The IHO's statement that the procedural failures resulted in a "limited denial of FAPE" is inconsistent with his conclusion that Amanda's right to an appropriate education was not compromised and that she received educational benefit, and that Amanda's parents had an opportunity to participate in the process. Accordingly, the Court concludes that the District did not deny Amanda a FAPE based on procedural deficiencies.
Substantive compliance
Turning to the second prong of the Rowley test, the Court reviews whether Amanda's IEP was reasonably calculated to enable her to receive educational benefits. See Rowley, 458 U.S. at 207. The IDEA requires neither the provision of the best possible education at public expense nor the maximization of the child's potential. See Fort Zumwalt Sch. Dist. v. Clynes, 119 F.3d 607, 612 (8th Cir. 1997). "As long as a student is benefiting from his education, it is up to the educators to determine the appropriate methodology." Id. at 614. Whether a child makes academic progress is an "important factor" in ascertaining whether a disabled student's IEP was reasonably calculated to provide educational benefit. Rowley, 458 U.S. at 202.
With regard to substantive compliance, the parties' central dispute concerns Amanda's eligibility for D/HH status under Minnesota Rule 3525.1331, subpart 2(A)(4). This regulation enumerates several technical specifications for when a child's hearing loss qualifies for D/HH disability status. Amanda contends that without D/HH benefits, the District cannot meet her educational needs. In response, the District contends that pursuant to subpart 2(A)(4), the only provision argued to the hearing officers, Amanda does not qualify for D/HH status.
To be eligible for D/HH benefits under that provision, a child must show audiological documentation that she suffers from "a sensorineural hearing loss with unaided pure tone thresholds at 35 decibels hearing level (HL) or greater at two or more adjacent frequencies (500 hertz, 1000 hertz, 2000 hertz or 4000 hertz) in the better ear." Minn. R. 3525.1331, subp. 2(A)(4). The parties agree that Amanda has hearing loss in both ears and that her audiogram registered her loss with unaided put tone thresholds at 35 decibels HL at frequencies of 4000 hertz, and above. Because she does not have two or more adjacent frequencies at 500 hertz, 1000 hertz, 2000 hertz or 4000 hertz, Amanda's hearing loss falls outside the enumerated frequencies provided for in Minnesota Rule subpart 2(A)(4). Whether Amanda might be eligible under one of the other classifications in Rule 3525.1331 — or under the "Team Override" contained in Minnesota Rule 3525.1354 — or whether a new audiogram would yield different results are not issues properly before the Court in Amanda's Complaint against the District. Giving due weight to agency decision-making and on the administrative record before the Court, the Court finds that Amanda's test results fell outside the D/HH rule's parameters and therefore concludes that the District did not deny Amanda a FAPE by not providing her D/HH status. The Court therefore affirms the HRO's order on this issue.
Having concluded that the disputed D/HH provision is inapplicable to Amanda, her remaining substantive challenges may be dealt with summarily. First, she contends that the June evaluation is flawed because it "was not conducted consistent with standards for children of D/HH." Because Amanda is not D/HH eligible, her evaluation need not have been conducted under that format. Thus, the Court affirms the HRO's decision that the June evaluation was appropriate. Second, Amanda contends that a D/HH teacher should be on her IEP team. Because she is not D/HH qualified, the HRO properly concluded that it was unnecessary for a D/HH teacher to be on Amand's IEP team. Accordingly, the HRO's decision is affirmed on that issue.
In sum, the Court concludes that Amanda's argument that her IEP could not meet her educational needs because of the absence of D/HH eligibility is not supported by the evidence in the administrative record. Rather, the record reflects that Amanda's IEP, although not labeled D/HH, provided essential accommodations for her hearing impairment, including preferred seating, FM amplification system and assistive technology developed by an audiologist. Accordingly, giving due weight to agency decision-making, the Court concludes that the District demonstrated by a preponderance of the evidence that Amanda received a FAPE.
Remedies
Having evaluated the District's procedural and substantive compliance, the Court now addresses the issue of remedies. Amanda contends that the HRO erred in denying her request for compensatory education. The district court has broad discretionary authority to "grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(B)(iii). The rationale for granting compensatory damages is that an award of such damages merely requires the educational services provider to pay for services that should have been paid for in the past. See Miener v. State of Missouri, 800 F.2d 749, 753 (8th Cir. 1986). Having already concluded that Amanda was not denied a FAPE, the Court denies Amanda's request for compensatory education.
The parties also dispute whether Amanda should be reimbursed for costs incurred from an independent educational evaluation (IEE), namely a neuropsychological exam performed by a Dr. Howard Dickman. Under 34 C.F.R. § 300.502(b), a parent may have a right to reimbursement for an IEE. This regulation provides that if a parent notifies a school district that he or she disagrees with the District's evaluation results and requests an IEE at public expense, the school district must, without unnecessary delay, do one of the following: (1) instigate a hearing to show that its evaluation is appropriate; or (2) immediately provide for an IEE at public expense. 34 C.F.R § 300.502(b). If the evaluation is appropriate, the District is under no obligation to pay for a private IEE. See id.
After Amanda's June reevaluation and pursuant to § 300.502(b), Amanda's parents notified the District by letter dated June 10, 2002 that they disagreed with the June reevaluation results. In particular, they requested an IEE that included a neuropsycholgoical exam. With Amanda's due process hearing already pending, the District responded by letter dated June 11, 2002, that it was rejecting the Parent's request because it believed that its evaluation was appropriate and comprehensive. After receipt of this letter, Amanda's parents arranged for an evaluation by Dr. Dickman. Dr. Dickman completed Amanda's evaluation on July 11, 2002, and her parents requested reimbursement for that exam at the due process hearing in October.
Having already concluded that the June evaluation was appropriate, the Court finds that the parents are not entitled to reimbursement for Dr. Dickman's evaluation. Accordingly, the Court affirms the HRO's order on this issue.
B. MDE's motion for summary judgment
MDE moves for summary judgment on Amanda's two remaining claims against it: first, that MDE is required to establish and communicate a statute of limitations for due process hearings; and second, that Minnesota Rule 3525.1331 is inconsistent with the IDEA. Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party "bears the initial responsibility of informing the district court of the basis for its motion," and must identify "those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies its burden, Rule 56(e) requires the nonmoving party to respond by submitting evidentiary materials that designate "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In determining whether summary judgment is appropriate, a court must look at the record and any inferences to be drawn from it in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
1. Statute of Limitations
With regard to the statute of limitations issue, MDE asserts that it is entitled to summary judgment because the hearing officer appropriately provided a two-year statute of limitation, which therefore required no notice. In response, Amanda argues Reinholdson v. State of Minnesota, Civ. No. 02-795, 2002 WL 31026580 (D. Minn. Sept. 9, 2002) is "the law of the case." According to Amanda, Chief Magistrate Judge Lebedoff's August 1, 2003 Report and Recommendation, which was adopted by this Court, designated the use of Reinholdson in this case. A review of that Report and Recommendation reveals no such holding. In fact, Reinholdson is inapposite to the issue in this case. Reinholdson dealt with the statute of limitation for a party to appeal the decision of a hearing review officer to the federal district courts — not the statute of limitation for a student to request a due process hearing. Id. at *3.
After reviewing the record and relevant case law, the Court agrees with MDE. Consistent with Eighth Circuit precedent, the IHO properly provided a two-year statute of limitations for bringing a due process hearing. See Strawn v. Missouri State Bd. of Educ., 210 F.3d 954, 957 (8th Cir. 2000) (holding that under Missouri law a two-year statute of limitation for bringing a due process hearing is appropriate whereas a five-year statute of limitation frustrates the purposes of the IDEA because it is too long); Birmingham v. Omaha Sch. Dist., 220 F.3d 850, 855 (8th Cir. 2000) (holding that a 30-day statue of limitations for bringing a due process hearing violated the principles of IDEA because it was too short to be meaningful). Moreover, where the statute of limitations period is one year or longer, no notice is required. See R.R. v. Fairfax County Sch. Bd., 338 F.3d 325, 331 (4th Cir. 2003) (no notice necessary with 2-year limitation period); Schimmel ex rel Schimmel v. Spillane, 819 F.2d 477, 482-83 (4th Cir. 1987) (no notice necessary with one-year limitation period). Compare, e.g., Scokin v. Texas, 723 F.2d 432, 438 (5th Cir. 1984) (notice necessary with 30-day limitation period); C.M. ex rel E.M. v. Bd. of Educ. of Henderson County, 241 F.3d 374, 383-84 (4th Cir. 2001) (notice necessary with 60-day limitation period); Powers v. Indiana Dep't of Educ., 61 F.3d 552, 559 (7th Cir. 1995) (notice necessary with less than 120-day limitation period). Accordingly, the Court grants MDE's motion for summary judgment on this issue.
2. Invalidity of Minnesota Rule 3525.1331
Next, MDE asserts that it is entitled to summary judgment on Amanda's claim that Minnesota Rule 3525.1331 (Rule) is more restrictive than the IDEA and that it is ambiguous. As stated above, a school district that accepts federal funds under the IDEA must provide disabled children within its jurisdiction with a FAPE. See 20 U.S.C. §§ 1400(d)(1)(A), 1412(a)(1)(A). In general, the IDEA is implemented through its federal regulations as well as by a statutory requirement that state educational agencies set forth standards for special education and related services for a FAPE. See 20 U.S.C. § 1401(8). MDE is that state educational agency for Minnesota.
The IDEA, through its federal regulations, defines hearing impairment as "an impairment in hearing, whether permanent or fluctuating, that adversely affects a child's educational performance but that is not included under the definition of deafness in this section." 34 C.F.R. § 300.7(c)(5). "Deafness" is defined as "a hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification, that adversely affects a child's educational performance." Id. § 300.7(c)(3).
The Minnesota Rules define deaf and hard of hearing as "a diminished sensitivity to sound, or hearing loss, that is expressed in terms of standard audiological measures. Hearing loss has the potential to affect educational, communicative, or social functioning that may result in the need for special education instruction and related services." Minn. R. 3525.1331, subp.1 (2002). The Rule requires that a child demonstrate through audiological documentation that his or hear hearing loss falls within one of the four technical levels. Id. at subp. 2(A)(1-4). The Rule also requires that the child demonstrate that the hearing loss affects educational performance, use or understanding of spoken English, or age-appropriate adaptive behavior. Id. at subp. 2(B-D). This, however, is not the end of the road for a child with hearing loss. There is another regulation, known as the "Team Override" provision, which provides: "[an IEP] team may determine that a pupil is eligible for special instruction and related services because the pupil has a disability and needs special instruction even though the pupil does not meet the specific requirement in [the Rule]." Accordingly, if a child is not eligible under the criteria in the Rule, the child's IEP team may override that finding and qualify the child as D/HH.
In support of her assertion that the Rule is too restrictive, Amanda contends that "[w]hile it is acceptable to have specific audiological measures . . . these cannot be used as strict determiners." Having reviewed the relevant rules, the Court concludes that, when taking into account the Team Override provision, MDE is not improperly restricting the IDEA. Because a child's IEP team may challenge a result based on the audiological measures by using the Team Override provision, a child with a hearing impairment is not limited to the enumerated criteria in the Rule.
Having concluded the Rule is not impermissibly restrictive, the Court turns to Amanda's assertion that the Rule is ambiguous. As evidence of the ambiguity, Amanda relies on an expanded record not before the hearing review officers which shows that different districts reached differing conclusions about her qualifications as D/HH. Specifically, she focuses on the conclusion reached by the District that she did not qualify D/HH under subpart 2(A)(4) and on the conclusion reached by White Bear Lake School District, ISD No. 624 (ISD 624) that she did qualify as D/HH under subpart 2(A)(1). These different conclusions, however, do not demonstrate ambiguity in the Rule. Rather, they demonstrate simply that use of different subsections of the Rule can lead to differing results. As discussed above, the Rule enumerates multiple technical qualifications. There is no requirement that two districts use the same provision of the Rule. Here, ISD 624 used subpart 2(A)(1) based on Amanda's April 2003 audiogram, and the District used subpart 2(A)(4) based on a previous audiogram. Given this, the Court concludes that Minnesota Rule 3525.1331 is unambiguous. The Court therefore grants MDE's motion for summary judgment on this issue.
That the hearing officers did not contemplate whether the District should have used different provisions to qualify Amanda is an argument not properly before MDE. See 34 C.F.R. § 300.661(c)(2); Renollett ex rel Renollett v. State of Minnesota, Civ. No. 03-6452, 2004 WL 1576716 *6 (D. Minn. June 13, 2004) (holding that MDE is not liable for the content of hearing officers' decisions); Lillibask v. Sergi, 117 F. Supp. 2d 192, 198 (D. Conn. 2000) ("State Defendants are not liable for the decision, even though erroneous, on the part of an independent, impartial hearing officer. Liability may not flow from decisions over which State Defendants have no control and can not legally influence.")
III. CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated above, IT IS ORDERED THAT:1. The District's Motion for Judgment on the Record [Docket No. 63] is GRANTED in part, DENIED in part.
2. MDE's Motion for Summary Judgment [Docket Nos. 80, 89] is GRANTED.
3. Amanda's Amended Complaint [Docket No. 50] is DISMISSED.
LET JUDGMENT BE ENTERED ACCORDINGLY.