Abrahamson v. Hershman

701 F.2d 223 (1983) | Cited 53 times | First Circuit | February 24, 1983

CAMPBELL, Circuit Judge.

Daniel Abrahamson is a severely retarded 16-year-old child whose parents have brought a civil action in the United States District Court for the District of Massachusetts under the authority of the Education for All Handicapped Children Act of 1975 (the Act), 20 U.S.C. § 1401 et seq. (1978). The Abrahamsons challenge the individualized educational plan (IEP)1 which Daniel's local school board, in Sharon, Massachusetts, proposes for him and which was upheld as sufficient by various Massachusetts reviewing agencies. Instead of day school training only, Daniel's parents seek a residential placement for him. The district court ruled that Daniel's right to a "free appropriate public education" within the meaning of the Act would not be met by the proposed IEP and ordered a residential placement. The Sharon School Commmittee (hereinafter Sharon), which bears the primary financial responsibility for any program provided to Daniel, has appealed.2


The district court found that Daniel has the mentality of a one- to four-year old, cannot dress, eat, go to the bathroom or otherwise care for himself unaided, and except for uttering one or two sounds, which he probably does not understand, cannot speak. He sometimes responds to simple commands like "stop," "wait," "sit down," and "stand up," but his responses are erratic and unpredictable. He does not recognize danger to himself and may step in front of traffic, move through open windows, or be burned while investigating a stove. He exhibits compulsive running behavior, although this has somewhat diminished recently. The district court ended its description of Daniel as follows:

Running is only one of many types of conduct that significantly interfere with Daniel's ability to learn. His behavior, past and present, is replete with examples that, taken together, indicate a lifelong pattern of engaging in what has been described as "manipulative attention-seeking behavior." This pattern of behavior, combined with Daniel's history of exhibiting ritualistic behavior such as obsessive sorting and stacking, supports the characterization of Daniel's mechanisms for coping as "autistic-like." These serious emotional problems, Daniel's severe mental retardation, and his educational disorders in combination make Daniel a truly "atypical child" for whom learning is extraordinarily difficult.

* Of the Sixth Circuit, sitting by designation.

1. Under 20 U.S.C. §§ 1401(18) & (19) (1978) and Mass. Gen. Laws ch.71B § 3 (1982), school authorities must annually formulate an IEP outlining the educational goals and services that will be provided for the year for each handicapped child.

2. Massachusetts places responsibility for the education of handicapped children on local school boards, although some reimbursement is provided for by the state. See Mass. Gen. Laws ch.71B et seq.

3. CHARMSS is run by a consortium of Massachusetts school committees.

4. The DOE claimed that Daniel's residential needs should be provided for by the Massachusetts Department of Mental Health (DMH). The Department of Mental Health, whose programs are not available to all eligible residents, argued that the DOE was responsible for Daniel's residential care.

5. The DOE, technically an appellee, joins with Sharon in challenging the district court's order.

6. A preliminary matter concerns the fact that the IEP at issue was for the 1979-80 school year, which has long since passed. Nevertheless, as we decided in Doe v. Anrig, 692 F.2d 800, 804 (1st Cir. 1982), this case is not moot. The 1979 IEP, to our knowledge, has not been superseded, and may be treated as being in effect until changed. Id. ; 20 U.S.C. § 1415(e) (3).

7. Placing a child in a residential program when that is unnecessary for enabling the child to make educational progress may also violate the Act's mainstreaming provisions, 20 U.S.C. § 1412(5), see infra.

8. The district court noted that even the IEP proposed by Sharon stated its educational goals for Daniel as improvements in activities of daily living.

9. Sharon also argues that group homes do not fall within the Act because Congress intended one agency to administer all services provided for by the Act, and in Massachusetts the DMH rather than the DOE licenses group homes. We do not find this argument persuasive. While Congress left state departments of education ultimately responsible for the carrying out of the provisions of the Act, 20 U.S.C. § 1412(6), Congress did not require state agencies to be the provider of all services. Indeed, the legislative history supports the opposite conclusion. The Senate Report on the Act stated the Act "is not to be construed to prohibit charges by the educational agency to insurers, public programs, and others for hospital care, health services, rehabilitation, and other non-educational services. States are encouraged to utilize all sources of support for comprehensive services for handicapped students." S. Rep. No. 168, 94th Cong., 1st Sess. 1, reprinted in 1975 U.S. Code Cong. & Ad. News 1425, 1456.

10. 20 U.S.C. § 1415(5) requires states to establish procedures to assure that, to the maximum extent appropriate, handicapped children, including children in public or private institutions or other care facilities, are educated with children who are not handicapped, and that special classes, separate school, or other removal of handicapped children from the regular educational environment occurs only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. On its face, the statute is inapplicable here. All parties agree that Daniel cannot be educated in regular classes. Nevertheless, Department of Education regulations interpret the statute as requiring state agencies to "insure that a continuum of alternative placements is available to meet the needs of handicapped children." 34 C.F.R. § 300.551. The continuum required by the regulations distinguish between special classes within regular schools and special schools, indicating that the former is preferential in terms of mainstreaming. 34 C.F.R. § 300.442.

11. Programs located close to the child's home are apparently favored. 34 C.F.R. § 300.552(a) (3).

12. The Act provides for federal assistance for the education of handicapped students in states opting to comply with the Act's requirements. 20 U.S.C. § 1421(a) (1). For a discussion of the federal-state relationship envisioned by the Act, see Rowley, 458 U.S. 176, 102 S. Ct. 3034, 73 L. Ed. 2d 690, 50 U.S.L.W. at 4926-27.

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