Dep't of Elementary and Secondary Education; Missouri School for the
R-12 School District; Andrew Lewis, Parent and Natural Guardian of
Katherine Lewis, a Minor Child; Martha Lewis, Parent and Natural Guardian
of Katherine Lewis, a Minor Child; Katherine Lewis, a Minor and a
Child with a Disability, Appellees.
from the United States District Court for the Western District of
Melloy, Hansen, and Smith, Circuit Judges.
of the court was delivered by: Smith, Circuit Judge.
June 9, 2003
Argued: March 1, 2004
Department of Elementary and Secondary Education (DESE) and the
Missouri School for the Blind (MSB) appeal the district court's 
order affirming an administrative panel's decision requiring them
to provide, participate in, and pay for the education of Katherine,
a severely-handicapped deaf and blind child, at a specialized private
school. We affirm in part and reverse in part.
of this case describe a parental nightmare Katherine's parents
watched as the scholastic needs of their child were processed through
the grinding machinery of state and local education bureaucracies.
Katherine resides within the Springfield R-12 School District (the
District). The District began providing educational services within
the school district to Katherine when she entered kindergarten for
the 1989-90 school year. The District attempted to provide an appropriate
educational program for Katherine, including hiring numerous outside
consultants and providing training programs for District staff. Despite
those efforts, Katherine's behavior deteriorated significantly during
the 1997-98 school year, and in February 1998, Katherine's parents,
the Lewises, removed Katherine from public school. The Lewises advised
the District that they intended to place Katherine in an out-of-state
residential setting at Perkins School for the Blind in Watertown,
Massachusetts (Perkins). The District agreed with the Lewises that
a residential placement was needed, but believed that MSB could provide
an appropriate residential program for Katherine due to its proximity
to the Lewises' home and its lower cost.
1998, the District referred Katherine for admission to MSB. Some three
months later, on July 2, 1998, MSB notified the District that it would
not accept Katherine. The school claimed it did not have an appropriate
program of services for Katherine, even though it previously hadand
advertised that it continued to havea program for deaf/blind
students. Rather than accept Katherine, MSB recommended that the District
consider placing Katherine at the Missouri School for the Deaf.
1998, Dr. John Heskett, then the Assistant Commissioner of Education,
Division of Special Education within DESE, told the District that
the rejection letter from MSB was "curious," and "he
was having difficulty understanding why [Katherine] would not be eligible
for services to Missouri School for the Blind." He assured the
District that MSB could provide an appropriate program for Katherine,
and that Katherine would be accepted at MSB. On September 14, 1998,
Dr. Yvonne Howze, MSB's Superintendent, wrote a letter to DESE administrators
and the District describing the type of program that would need to
be created to serve Katherine at MSB. The District and DESE interpreted
this as an acceptance letter for Katherine to attend school there.
However, Dr. Howze later denied that it was a letter of acceptance.
According to Dr. Howze, the letter merely described parameters for
a potential program. While the state and local education officials
debated their relative capabilities and responsibilities, the Lewises
placed Katherine at Perkins for the 1998-99 school year.
6, 1998, the Lewises filed a due-process request with DESE pursuant
to the Individuals with Disabilities Education Act, 20 U.S.C. §
1400 et. seq. ("IDEA"). The Lewises claimed that the District
could not provide Katherine with a legally-mandated free appropriate
education and that Perkins was the appropriate placement for her.
The District settled the claim with the Lewises by agreeing that it
would reimburse Lewises for the cost of Katherine's placement at Perkins
for the 1998-99 and 1999-2000 school years. In settling, the District
relied upon assurances from Dr. Heskett, on behalf of DESE, that DESE
would reimburse all of the District's eligible expenses for Katherine's
placement at Perkins. The District then planned to seek reimbursement
from a state fund called the Extraordinary Cost Fund. The District
subsequently filed an Extraordinary Cost Fund Application with DESE
for the 1998-99 school year.
18, 2000, representatives from the District and DESE again discussed
Katherine's placement options. Pursuant to DESE's request, the District
sent Katherine's individualized education program to DESE for review.
On May 15, 2000, representatives from the District and DESE again
met to discuss Katherine's placement. The District expressed its concerns
about the cost of the program at Perkins and indicated that the current
level of state support was insufficient. DESE took the position that
MSB "would have no way to defend refusing a referral if one were
made at that time." Despite these assurances, MSB again found
Katherine ineligible for placement after reviewing her individualized
education program and determined that Perkins was the appropriate
telephone conversation with District representatives on June 2, 2000,
Dr. Stephen Barr, the succeeding Assistant Commissioner of Education,
Division of Special Education for DESE, reversed MSB's refusal of
admission. He assured the District that MSB was an appropriate placement
option for Katherine and that she was eligible to attend the school
for the 2000-01 school year. Dr. Barr stated that MSB would be Katherine's
educational placement because he determined that: (a) the Lewises
and the District could not reach a reasonable agreement to educate
Katherine in the District; (b) MSB formerly had a program for deaf/blind
children; (c) if DESE had to spend a million dollars over five years
to educate Katherine, it should spend those funds to build capacity
in the state; and (d) legislators would be upset at spending $185,000
for an out-of-state program each year.
that day, during the scheduled individualized education program meeting
between the Lewises and the District, the District recommended a change
in placement to MSB for the 2000-01 school year, relying on DESE's
assurances that the necessary resources would be provided to develop
an appropriate program for Katherine in the State of Missouri. However,
the Lewises continued to recommend Perkins as the appropriate placement.
Disregarding the Lewises' recommendation, the District provided the
Lewises with a Notice of Action form that proposed changing Katherine's
placement from Perkins to MSB. On June 30, 2000, the Lewises filed
an IDEA due-process request that initiated the current proceeding.
a five-day due-process hearing, a three-member panel determined the
following pertinent matters:
could not provide a free appropriate public education to Katherine,
and Perkins was the appropriate placement for her;
(2) Katherine is a "severely handicapped child" as defined
under Mo. Rev. Stat. §162.675;
(3) DESE must provide special-educational services for all severely
handicapped students who are not being provided such services by a
local school district, either at a state-operated school or in private
placement, pursuant to Mo. Rev. Stat. § 162.725;
(4) Pursuant to Mo. Rev. Stat. § 162.740, the financial responsibility
of a local school district for educating a "severely handicapped
child" is limited to the amount of its local tax effort;
(5) DESE is responsible for the cost and expenses of Katherine's placement
at Perkins for school years 1998-99 and 1999-2000, minus the District's
local tax effort;
(6) DESE and MSB violated 34 C.F.R. § 300.344(a)(4) by failing
to provide at the June 2, 2000, individualized education program meeting
a representative who was knowledgeable about MSB's curriculum and
court affirmed the panel's decision in all respects relevant to this
appeal. The district court also awarded the Lewises their expert-witness
fees and expenses, copying costs, and exhibit costs to be paid by
DESE. This appeal involves interpretation of the IDEA, the planning
and pecuniary feud between state and local educational entities under
Missouri law, and litigation-expense responsibility under federal
and MSB raise three issues on appeal. First, they argue that the IDEA
requires neither of them to have a representative attend a student's
individualized education program meeting, to review and revise that
student's individualized education program, or to select the student's
least restrictive environment, when those agencies may only potentially
be a direct provider of educational services to the student. Second,
they argue that Missouri's education statutes require both the state
and local school districts to educate, and pay for the education of,
severely handicapped students. Finally, DESE and MSB contend that
the Lewises' expert witness fees and expenses associated with the
due-process hearing cannot be recovered as costs.
de novo the district court's decision. Indep. Sch. Dist. No. 284
v. A.C., 258 F.3d 769, 773 (8th Cir. 2001). However, this does
not mean that we start with a clean slate. Rather, we must give "due
weight" to the outcome of administrative proceedings, giving
particular consideration to state officials' educational judgments.
of Education v. Rowley, 458 U.S. 176, 206 (1982). This means
that a court should ordinarily defer to the administrative panel's
judgment in building the record, but it is within its discretion to
hear other evidence if a party provides "some solid justification"
for expanding the record. Indep. Sch. Dist. No. 283 v. S.D. by
J.D., 88 F.3d 556, 560 (8th Cir. 1996). A district court's determination
of whether an individualized education program meets the requirements
of IDEA is a mixed question of law and fact that we review de novo.
E.S. v. Indep. Sch. Dist., No. 196, 135 F.3d 566, 569 (8th
Cir. 1998). Absent a mistake of law, findings of fact are reviewed
for clear error. Id. Matters of law are reviewed de novo. Id.
Involvement in Individualized Education Program Planning and Implementation
first point on appeal, DESE and MSB argue that the district court
erred by determining that they violated the IDEA by: (1) failing to
have a representative present during the creation of Katherine's individualized
education program; (2) failing to review and revise the individualized
education program to consider the communication needs of a deaf-blind
child; (3) failing to consider any harmful effect on or quality of
services provided to a child when selecting the least restrictive
environment for learning; (4) determining that they were directly
involved in educating Katherine.
requires states that accept federal funding to provide a disabled
student with a free and appropriate education. Gill v. Columbia
93 Sch. Dist., 217 F.3d 1027, 1034 (8th Cir. 2000); Yankton
Sch. Dist. v. Schramm, 93 F.3d 1369, 1373 (8th Cir. 1996);
20 U.S.C. § 1412(a). Section 504 of the Rehabilitation Act requires
the same. 29 U.S.C. § 794(a); 34 C.F.R. § 104.33. A specialized
course of instruction must be developed for each disabled student,
taking into account that child's capabilities. 20 U.S.C. § 1414(d)(1)(A).
The services that a school district provides to a child are to be
summarized in a written individualized education program. Gill,
217 F.3d at 1034.
procedures ensure parents' participation in the ongoing development
of their child's educational program. Sch.
Comm. of the Town of Burlington v. Dept. of Educ. of Mass.,
471 U.S. 359, 368 (1985). If a child requires special education, the
entity responsible for that child's education must form a team to
formulate an individualized education program  in light of the
child's abilities and parental views about the child's education.
34 C.F.R. §§ 300.343(b)(2), 300.346(a)(1). The parents,
the child's teacher, and a school official knowledgeable about special
education must be included on the team that devises and reviews the
individualized education program, and parents are free to invite other
individuals with expertise to participate. Burlington,
471 U.S. at 368; 34 C.F.R. § 300.344. The individualized education
program must be reviewed at least once a year, and it should be periodically
revised in response to information provided by the parents and to
ongoing evaluations of the child's progress. 34 C.F.R. § 300.343(c)(2).
School districts and state education departments may be held liable
for failing to meet their obligation under IDEA. 20 U.S.C. §
suit by an aggrieved party under the IDEA, the court engages in a
twofold inquiry, asking (1) "has the State complied with the
procedures set forth in the Act?" and (2) is the individualized
education program "reasonably calculated to enable the child to
receive educational benefits?" Rowley,
458 U.S. at 20607." If these requirements are met, the
State has complied with the obligations imposed by Congress and the
courts can require no more." Id.
distinguishes between state education agencies (i.e. DESE) and local
education agencies (i.e. school districts). 34 C.F.R. § 300.2.
Typically, state education agencies oversee local education agencies
in educating disabled children, and state education agencies are given
the main responsibility in implementing IDEA requirements. 34 C.F.R.
§ 300.370. This case presents the less common situation in which
a local education agency is unable to educate a student, and the state
education agency then steps in to provide direct services to the student.
The IDEA contemplates such scenarios. For example, if a state education
agency oversees a local education agency's creation and implementation
of the individualized education program or if the state education
agency is providing direct services, the state education agency is
responsible for creating and implementing the individualized education
program. See 34 C.F.R. § 300.341 and § 300.370. Furthermore,
34 C.F.R. § 344 names those people who must be part of the individualized
education program development team, including a representative of
the public agency who (1) can provide or supervise specially designed
instruction to meet the child's needs, (2) is knowledgeable about
the general curriculum, and (3) knows about the availability of resources
of the public agency.
statutory scheme implementing IDEA supports the proposition that DESE
is responsible for providing a representative at the individualized
education program. To begin with, the parties do not dispute that
Katherine is a "severely handicapped" child. Because
Katherine is a "severely handicapped" child, Mo. Rev. Stat.
§ 162.725 establishes that DESE becomes the direct provider of
educational services to Katherine. Specifically, the statute provides
that DESE "shall provide educational services for all severely
handicapped children residing in school districts which are not included
in special districts provided that such school districts are unable
to provide appropriate programs of special instruction for severely
handicapped children...." Mo. Rev. Stat. § 162.725. Accordingly,
because the District could not provide an appropriate program for
Katherine and was not part of a special school district, DESE became
responsible as the direct provider of educational services to Katherine.
Once the District notified DESE and MSB that it could not adequately
educate Katherine, the IDEA and Missouri state law placed the onus
upon DESE and its divisions to provide Katherine with a free appropriate
public education, including the requirement that DESE provide a representative
at Katherine's individualized education program planning meeting.
Therefore, we affirm the administrative panel's and district court's
findings on this issue.
Missouri's Payment Schemes for IDEA Claims
and MSB next argue that the administrative panel and district court
erred in determining that DESE was responsible for the cost of Katherine's
tuition payments at Perkins for the 1998-99 and 1999-2000 school years.
They assert that Missouri's statutory scheme provides that both the
State and local school districts are required to educateand
pay for educatingseverely handicapped students. In other words,
DESE wants the District to shoulder the financial burden for educating
Katherine. We disagree.
and MSB assert that Missouri's statutes include provisions for both
the State and a school district to "contract" with public
or private agencies to provide services to severely handicapped children,
thus indicating that a school district can also be liable for the
full amount if it contracts with another agency. Their argument, however,
is only true in part. Two Missouri statutes apply here. First, the
State of Missouri may contract with "another public agency or
with a private agency" when doing so would be in the best interest
of the child. Mo. Rev. Stat. § 160.735. There is no restriction
on whether these agencies are in- or out-of-state. In comparison,
a school district may also contract with other districts or public
agencies for such special educational services, or "[i]f the board
of education of the district finds that no adequate program for handicapped
or severely handicapped children is available in nearby districts
or through public agencies, it may contract with any organization
within the state which has programs meeting the standards established
by the state board of education." Mo. Rev. Stat. § 162.705(1)
(Emphasis added). This provision, unlike section 160.735, restricts
a school district's ability to contract by indicating that the district
may only contract with in-state public or private entities that have
state-approved programs. A school district, on its own, cannot
contract with an outof-state entity under this statute, while DESE
is not restricted in such a manner. In addition, section 162.705(2)
costs of contractual arrangements shall be the obligation of the district
of residence, except districts which are part of a special school
district, or special district of residence; provided, however, that
if the contract is with another district or special district, the
district providing the services under contractual arrangements shall
include children served under such contractual arrangements in determining
the total per pupil cost for which the district of residence is responsible.
If the contract is with a public agency or an organization, the district
of residence shall be entitled to receive state aid as provided in
section 163.031, RSMo, and in section 162.980. Where the state board
of education contracts for special educational services pursuant to
subsection 1 of this section, the state board of education shall submit
to the responsible district a bill for the per pupil cost payable
by that district under the terms of this subsection. Failure of a
district to pay such cost within ninety days after a bill is submitted
by the state board of education shall result in the deduction of the
amount due by the state board of education from subsequent payments
of state moneys due such district or special district.
section further supports section 162.740, which limits a district's
cost per child by the local tax effort.
panel's and district court's decisions echo the same theme
no Missouri educational agency wanted to take responsibility for educating
this child, and all of them were attempting to "pass the buck,"
both figuratively and literally. Missouri statues make clear that
given the facts of the instant case, the "buck" stops with
the Missouri Department of Elementary and Secondary Education. We
affirm the administrative panel's and district court's decision that
DESE is responsible for the cost of Katherine's education for the
1998-99 and 1999-2000 school years, minus the District's local tax
effort for those years.
Payment of Fees and Costs
DESE and MSB argue that the district court erred in awarding the Lewises
their expert-witness fees and expenses as part of their costs in pursuing
this claim. DESE and MSB assert that the IDEA does not specifically
allow such an award and that Congress and the Supreme Court have not
specifically included expert-witness fees as part of the costs in
addressed and decided this precise issue in Neosho R-V Sch. Dist.
v. Clark, 315 F.3d 1022 (8th Cir. 2003). In Neosho, we
upheld the district court's denial of expert-witness fees as "costs"
under 20 U.S.C. § 1415(i)(3)(B), a general statute regarding
recovery of costs. We held that although "costs" include
something more than attorney's fees, Congress failed to specifically
include witness fees as part of the costs that can be recovered in
IDEA cases. The relevant facts in the instant case and Neosho are
indistinguishable. Neosho thus controls this issue. Consequently,
we reverse the district court's award of expert-witness fees, and
remand for the entry of a modified judgment that does not award any
expert witness a fee or expenses in excess of that authorized for
ordinary witnesses by 28 U.S.C. § 1821 and § 1920. In all
other respects the judgment of the district court is affirmed.
is a department of the State of Missouri. By state statute, it operates
three state-school programs for children with disabilities: MSB, the
Missouri School for the Deaf (MSD), and thirty-six State Schools for
the Severely Handicapped. When a student attends one of these state-school
programs, the local school district pays only its local tax effort,
and DESE pays the remainder of the cost for the student's education.
Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.
disabilities include the following: hearing impairment; visual impairment/legally
blind; cognitive/developmental delays; physical anomalies, including
repaired cleft lip and palate, ventricular sepal defect, skeletal
malformation and oral/facial anomalies; significant aggressive, self-abusive,
and non-compliant behaviors; severe language delays.
is a residential school that educates students who are blind, visually
handicapped, deaf-blind, or multi-handicapped blind. Perkins's student
body totals approximately 200 students, including over fifty deaf/blind
students. Perkins employs a staff of approximately 700 people.
Extraordinary Cost Fund is a fund appropriated by the state legislature
and established by regulation of the State Board of Education (5 CZAR
§ 70-742.170) for the purpose of reimbursing school districts
in Missouri for extraordinary costs associated with providing a free
appropriate public education to disabled students under the IDEA.
When a school district makes a claim to the Extraordinary Cost Fund
for reimbursement, it must assume responsibility for an amount equal
to five times its current per-pupil expenditure, or in the case of
the District, a total of approximately $25,000. Then, because the
total amount of requests for any given school year may exceed the
amount of money appropriated to the fund for that fiscal year, school
districts may be reimbursed on a prorated basis. The Extraordinary
Cost Fund is capped and does not provide dollar-for-dollar reimbursement.
total cost of Katherine's program at Perkins in 1998-99 was $175,363.77.
The Extraordinary Cost Fund reimbursed the District $106,267.69, leaving
unreimbursed costs of $69,096.08, for which the District was responsible.
If Katherine had attended MSB during the 1998-99 school year, the
only cost to the District would have been an amount equal to its local
tax effort for the year, or $2,644.82. During the 1999-2000 school
year, the total cost of Katherine's program at Perkins was $170,952.16.
The Extraordinary Cost Fund reimbursed the District only $67,763.02,
leaving $80,943.68 of the District's expenses unreimbursed and $22,245.46
of the Lewises' expenses unreimbursed. The District's local tax effort
for 1999-2000 was $2,828.19.
individualized education program is appropriate under the IDEA if
it offers instruction and supportive services reasonably calculated
to provide some educational benefit to the student for whom it is
458 U.S. at 201; Blackmon v. Springfield R-XII Sch. Dist.,
198 F.3d 648, 658-59 (8th Cir. 1999). Federal law does not mandate
that special education "maximize the capabilities" of disabled
children, but states are free to establish a program with such a mandate
if they wish. Rowley,
458 U.S. at 198; Fort Zumwalt Sch. Dist. v. Clynes, 119 F.3d
607, 612 (8th Cir. 1997). One purpose of the IDEA is "to ensure
that all children with disabilities have available to them a free
appropriate public education that emphasizes special education and
related services designed to meet their unique needs." 20 U.S.C.
§ 1400(d)(1)(A); Neosho R-V Sch. Dist. v. Clark, 315 F.3d
1022, 1026 (8th Cir. 2003). Congressional policies indicate a preference
for educating disabled children in a mainstreamed classroom whenever
possible. Gill, 217 F.3d at 1034; 20 U.S.C. § 1400(c)(5)(D).
C.F.R. § 300.341 provides that the state education agency shall
ensure that each public agency develops and implements an individualized
education program for each child served by that agency or by a private
school or, if the state education agency directly provides services
to the child, the state education agency is then responsible for developing
and implementing the individualized education program. In addition,
34 C.F.R. § 300.370 indicates that state education agencies must
use federal funds to support local education agencies or other state
agencies in meeting shortages or to provide "direct services"
to effectuate the IDEA. "Direct services" are defined in
this provision as "services provided to a child with a disability
by the State directly, by contract, or through other arrangements...."
DESE and MSB argue that they should not be responsible for Katherine's
education because there was never a judicial determination that Katherine
was a "severely handicapped" child, absolutely nothing in
the record indicates that either entity contested that Katherine was
severely handicapped. In fact, Katherine was so severely handicapped
that MSB did not have a program to meet her very extensive needs.
A "severely handicapped" child is a child under the age of
twenty-one"who, because of the extent of the handicapping condition
or conditions, as determined by competent professional evaluation,
are unable to benefit from or meaningfully participate in programs
in the public schools for handicapped children. The term'severely
handicapped' is not confined to a separate and specific category but
pertains to the degree of disability which permeates a variety of
handicapping conditions and education programs...." Mo. Rev.
Stat. § 162.675(3) (2000).
DESE and MSB fail to note that § 162.705 limits a school district's
ability to contract only with entities in the state.