Sandler v. Hickey ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JACOB SANDLER, a minor, by his 
parents and next friends, Jon and
Kay Sandler; JON SANDLER; KAY
SANDLER,
Plaintiffs-Appellants,
v.  No. 00-1156
MICHAEL HICKEY, officially as
Superintendent, Howard County
Public Schools; BOARD OF
EDUCATION OF HOWARD COUNTY,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-99-1816-S)
Argued: January 25, 2001
Decided: March 8, 2001
Before WILKINSON, Chief Judge, WILKINS, Circuit Judge,
and James H. MICHAEL, Jr., Senior United States District Judge
for the Western District of Virginia, sitting by designation.
Reversed and remanded by unpublished per curiam opinion.
COUNSEL
ARGUED: Michael Jeffrey Eig, EIG, PARKER & STARBUCK,
Washington, D.C., for Appellants. Jeffrey Alan Krew, Columbia,
Maryland, for Appellees.
2 SANDLER v. HICKEY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
In this action arising under the Individuals with Disabilities Educa-
tion Act (IDEA), see 20 U.S.C.A. § 1400-1487 (West 2000), Jacob
Sandler, by and through his parents Jon and Kay Sandler (collec-
tively, "the Sandlers"), appeals an order of the district court granting
summary judgment in favor of the Board of Education of Howard
County, Maryland and its superintendent (collectively, "the Board")
on the Sandlers’ claim for reimbursement of Jacob’s private school
tuition. We conclude that this action is not precluded by any failure
by the Sandlers to notify the Board of their intention to enroll Jacob
in nonpublic school. We accordingly reverse and remand for further
proceedings.
I.
A.
The IDEA is designed "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 and prepare them for employment and independent
living." Id. § 1400(d)(1)(A). See generally id. § 1400(c), (d) (describ-
ing need for and purposes of the IDEA). A state may qualify for fed-
eral funds under the IDEA by adopting "policies and procedures to
ensure that it meets" several enumerated conditions. Id. § 1412(a).
One condition is that all children with disabilities are provided a "free
appropriate public education" (FAPE). Id. § 1412(a)(1). Another con-
dition is that education agencies and intermediate educational units
provide assurance that they will develop an "individualized education
program" (IEP) for each eligible "child with a disability" at the begin-
ning of each school year. Id. § 1412(a)(4). If the local school system
does not make a FAPE available in a timely manner, parents of chil-
SANDLER v. HICKEY 3
dren who have previously received special education under authority
of a public agency may unilaterally enroll their child in private school
and seek reimbursement for the cost of enrollment. See id.
§ 1412(a)(10)(C)(ii).
As a participating state, Maryland has enacted laws designed to sat-
isfy the IDEA conditions. A provision of the Maryland Code states
in pertinent part:
(a) Basis for placement. — A child with a disability
who needs special education and related services that cannot
be provided in a public county, regional, or State program
shall be placed in an appropriate nonpublic educational pro-
gram that offers these services.
(b) Payment of cost — In general. — The cost of the
nonpublic educational program shall be paid by the State
and the county in which the child is domiciled in accordance
with § 8-415(d) of this subtitle, as appropriate.
Md. Code Ann., Educ. § 8-406 (1999). Reimbursement for private
school tuition in the absence of a referral by or consent from the local
school system is available if an impartial hearing officer or court
determines that the child "had previously received special education
and related services under the authority of the local school system"
and that "the local school system had not made FAPE available to the
student in a timely manner before the parent enrolled the student in
the nonpublic school." Md. Regs. Code tit. 13A,
§ 13A.05.01.16(B)(3)(d) (1999). Of particular relevance here is Md.
Code Ann., Educ. § 8-413(i)(1) (1999), which provides in pertinent
part that a parent who enrolls a child in nonpublic school is not enti-
tled to tuition reimbursement if the parent "does not provide to the
county board prior written notice rejecting the program proposed by
the county board, including the reason for the rejection, and stating
an intention to enroll the student in a nonpublic school."
B.
Jacob is a "child with a disability" as defined by the IDEA. See 20
U.S.C.A. § 1401(3)(A). Jacob was a student in the Howard County
4 SANDLER v. HICKEY
Public School System (HCPS) in Maryland during his first, second,
seventh, and eighth grade school years, the last year being the 1995-
96 school year. During the seventh and eighth grades, Jacob received
special education services from HCPS at Burleigh Manor Middle
School. However, because Jacob did not perform well at Burleigh
Manor, and on the recommendation of HCPS personnel, the Sandlers
removed Jacob from public school. For the 1996-97 and 1997-98
school years, Jacob was enrolled in a number of private schools at his
parents’ expense. On February 11, 1998, the Sandlers transferred
Jacob to the Grove School in Connecticut, a private residential educa-
tion program.
In late February 1998, the Sandlers requested that the HCPS con-
duct an evaluation "to fund Jacob’s schooling at Grove." J.A. 5. The
Sandlers submitted an enrollment form to the HCPS and attended
meetings to shape an appropriate IEP for Jacob in May and October
of 1998. In January 1999, HCPS approved an IEP for Jacob that rec-
ommended a 45-day diagnostic placement at Wilde Lake High
School. A subsequent meeting was then scheduled.
Before that meeting occurred, however, the Sandlers requested a
hearing regarding reimbursement for Jacob’s private placement at the
Grove School on the basis that HCPS had incorrectly determined that
Jacob did not require a residential placement. See Md. Code Ann.,
Educ. § 8-413(c)(1) (1999). The Board moved to dismiss before an
administrative law judge (ALJ), contending, inter alia, that the
Sandlers had failed to provide the Board with prior notification of pri-
vate placement as required by Md. Code Ann., Educ. § 8-413(i)(1).
Following a hearing conducted over the telephone, the ALJ granted
the motion to dismiss. The Sandlers then filed a complaint in district
court against the Board, primarily seeking reimbursement for Jacob’s
tuition at the Grove School for the 1998-99 school year. The district
court granted summary judgment in favor of the Board, determining
as a matter of law that the Sandlers had failed to comply with § 8-
413(i)(1).
II.
We review the grant of summary judgment de novo. See Figgie
Int’l, Inc. v. Destileria Serralles, Inc., 190 F.3d 252, 255 (4th Cir.
SANDLER v. HICKEY 5
1999). Summary judgment is appropriate "if the pleadings, deposi-
tions, 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 Sandlers contend that § 8-413(i)(1) does not apply to them
because no IEP had been proposed when the Sandlers enrolled Jacob
in the Grove School, and therefore there was no proposal to reject.
We agree.1
It is undisputed that no IEP had been proposed for Jacob when he
enrolled in the Grove School for the 1998-99 school year;2 accord-
ingly, no notice of rejection of any IEP was possible at that point. To
preclude the Sandlers from attempting to obtain reimbursement solely
because they failed to give notice that it was impossible for them to
give would be an absurd result, and we do not interpret the statute to
have that effect. See Smack v. Dep’t of Health & Mental Hygiene, 759
A.2d 1209, 1214 (Md. Ct. Spec. App. 2000) (explaining that in inter-
preting statutes, courts should seek to avoid absurd results). Rather,
we interpret § 8-413(i)(1) to apply only when an IEP has been pro-
posed prior to the time the child is enrolled in the nonpublic school.3
We note that interpreting § 8-413(i)(1) in this manner will not
allow parents simply to bypass the step of attempting to obtain a
FAPE within the context of the public school system: Parents who
unilaterally choose private school for their children may receive reim-
1
Because we reverse on this ground, we do not address the Sandlers’
other arguments.
2
The ALJ and district court interpreted § 8-413(i)(1) to require notice
prior to pursuit of a reimbursement action. However, the statute plainly
requires notice prior to the enrollment in the private school for which the
parent seeks reimbursement.
3
Furthermore, we note that the Board was in no way prejudiced by any
lack of notice here. The Board itself contends that from the beginning of
the IEP proceedings it was apparent that the Sandlers would be satisfied
with nothing less than placement in the private school Jacob was then
attending. Under these circumstances, any rejection of a proposed IEP
would have been little more than a formality.
6 SANDLER v. HICKEY
bursement only upon a finding by an impartial hearing officer or court
that "the local school system had not made FAPE available to the stu-
dent in a timely manner before the parent enrolled the student in non-
public school." Md. Regs. Code tit. 13A, 13A.05.01.16(B)(3)(d)(ii).
Accordingly, parents who enroll their children in nonpublic school
without affording the local school system an opportunity to provide
a FAPE in a timely fashion will not be entitled to reimbursement.4
III.
In sum, because we hold that § 8-413(i)(1) does not bar the
Sandlers’ reimbursement action, we reverse the grant of summary
judgment against them and remand for further proceedings consistent
with this order.
REVERSED AND REMANDED
4
We do not decide whether the Sandlers afforded the local school sys-
tem such an opportunity here.