226 F.3d 60 (2nd Cir.

2000)

M.C., by & through his parent & next friend Mrs. C, PlaintiffAppellee,
v.
VOLUNTOWN BOARD OF EDUCATION, DefendantAppellant.
Docket No. 99-9282
August Term, 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT
Argued: August 7, 2000
Decided: September 01, 2000

Appeal from a judgment of the United States District Court for the District
of Connecticut (Gerald L. Goettel, Judge of the United States District
Court for the Southern District of New York, sitting by designation),
ordering defendant to reimburse plaintiff for the costs of private school
tuition and private psychological counseling under the Individuals with
Disabilities Education Act, 20 U.S.C. 1400 et seq.
We vacate the judgment with respect to the costs of private school tuition
and remand for further proceedings consistent with this opinion, and we
reverse the District Court's judgment with respect to the costs of
psychological counseling.
HUGH W. CUTHBERTSON, Siegel, O'Connor, Schiff & Zangari, New
Haven, CT, for Defendant-Appellant.
ANDREW A. FEINSTEIN (David C. Shaw, on the brief), Law Offices of
David C. Shaw, Hartford, CT, for Plaintiff-Appellee.
Before: CALABRESI, CABRANES, and POOLER, Circuit Judges.
JOSE A. CABRANES, Circuit Judge:

The question presented is whether plaintiff M.C., a disabled child within the
1

meaning of the Individuals with Disabilities Education Act ("IDEA" or "the

Act"), 20 U.S.C. 1401(3)(A), is entitled to reimbursement under the IDEA
from defendant Voluntown Board of Education ("Voluntown" or "the Board")
for the costs of private school tuition and private psychological counseling.
Voluntown appeals from a judgment of the United States District Court for the
District of Connecticut (Gerald L. Goettel, Judge of the United States District
Court for the Southern District of New York, sitting by designation), entered
July 9, 1999, ordering Voluntown to reimburse M.C. for these costs. For the
reasons stated below, we vacate the District Court's judgment with respect to
the costs of private school tuition and remand for further proceedings consistent
with this opinion, and we reverse the judgment with respect to the costs of
psychological counseling.
I.

This case involves the nature and extent of a state's obligations under the IDEA
to reimburse a disabled child for the costs of private school tuition and private
psychological counseling. Before turning to the facts of this particular case, we
review the basic requirements of the Act.
A. The Statutory Scheme

The IDEA "is the most recent Congressional enactment in 'an ambitious federal
effort to promote the education of handicapped children.'" Walczak v. Florida
Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (quoting Board of
Educ. v. Rowley, 458 U.S. 176, 179 (1982)). Under the Act, states that receive
funding from Congress are required to provide "all children with disabilities"
with a "free appropriate public education." 20 U.S.C. 1412(a)(1)(A); see also
Rowley, 458 U.S. at 181.1 This "free appropriate public education" must
include "special education and related services" tailored to meet the unique
needs of the particular child, 20 U.S.C. 1401(8), and must be "reasonably
calculated to enable the child to receive educational benefits," Rowley, 458
U.S. at 207. The IDEA, however, does not require states to maximize the
potential of handicapped children. See id. at 197 n.21. As the Supreme Court
explained in Rowley, the purpose of the Act was "more to open the door of
public education to handicapped children on appropriate terms than to
guarantee any particular level of education once inside." Id. at 192.

The particular educational needs of a disabled child and the services required to
meet those needs must be set forth at least annually in a written individualized
education plan ("IEP"). See 20 U.S.C. 1414(d)(4)(A)(i). The IEP is

formulated by an "IEP Team" composed of, among others, the child's parents, a
school official qualified in special education, the child's teacher, and, where
appropriate, the child. See id. 1414(d)(1)(B). Although the child's parents
participate in formulation of the IEP, parents who are dissatisfied with a
proposed IEP may file a complaint with the state or local educational agency.
See id. 1415(b)(6). Any such complaint is resolved through an "impartial due
process hearing," id. 1415(f), at which school authorities have the burden of
supporting the proposed IEP, see Walczak, 142 F.3d at 122. Following
exhaustion of remedies available under state law, any party still aggrieved may
sue in either state or federal court. See id. 1415(i)(2)(A).
B. The Present Case
5

The facts relevant to the present appeal are essentially undisputed. M.C. is
currently seventeen years old and has been receiving special education services
from Voluntown since he was in fourth grade. M.C. has been diagnosed with
Attention Deficit Hyperactivity Disorder with a secondary diagnosis of Central
Auditory Processing Disorder. He is also reported to have a learning disability
in written expression and difficulty processing information, particularly verbal
information.

On September 14, 1995, M.C.'s IEP Team met to discuss M.C.'s IEP for the
1995-96 school year, when M.C. would be in seventh grade. Minutes from the
meeting reveal that the IEP Team recommended various accommodations for
M.C. in the regular classroom and "counseling on an as needed basis." In the
fall of 1995, however, M.C. began having difficulty in school and experiencing
severe depression. To address these problems, the IEP Team convened an
emergency meeting on February 8, 1996, and agreed that M.C. required a new
placement outside the Voluntown school system. Until an appropriate
placement could be found, the IEP Team decided to place M.C. on homebound
instruction with ten hours of tutoring per week.2

For the remainder of the 1995-96 school year, M.C. was instructed at home,
during which time his depression improved but his academic performance
declined even further. On June 17, 1996, when M.C.'s IEP Team convened to
develop M.C.'s IEP for the next school year, he had not yet satisfied the
requirements for advancing to the eighth grade. To ensure that M.C. advanced,
the IEP Team decided to give M.C. "incomplete[s]" in certain subjects with the
expectation that he would make up the work in these areas through summer
tutoring. Although one member of the IEP Team, a non-lawyer "advocate"
hired by M.C.'s parents, suggested instead that M.C. attend a five-week summer
program at the Rectory School-a private school in Pomfret, Connecticut-the

IEP Team approved summer tutoring at home for thirty hours or as long as
necessary for M.C. to pass the seventh grade. With respect to M.C.'s placement
for the 1996-97 school year, the IEP Team agreed again that M.C. needed a
placement outside of the Voluntown school system, but the Team was unable to
agree on a specific school. M.C.'s IEP for that year did, however, provide for
45 minutes of individual counseling per week with a school psychologist and
one hour per week of "social skills group."
8

Notwithstanding the IEP Team's recommendation for home tutoring during the
summer of 1996, and its rejection of the advocate's alternative suggestion of the
Rectory School, M.C.'s parents unilaterally enrolled M.C. in the Rectory
School's five-week summer program. M.C. successfully completed the program
and was able to advance to the eighth grade.3 Based in part on M.C.'s success in
the Rectory School summer program, Voluntown agreed that the Rectory
School would be an appropriate placement for the 1996-97 school year, but
specified that his placement there was contingent on the Rectory School's
signing a contract with Voluntown to follow M.C.'s IEP and otherwise be
accountable for M.C.'s progress. During the summer of 1996, Voluntown and
the Rectory School conducted negotiations over whether the school would sign
a contract. In September 1996, however, these negotiations broke down without
an agreement.

On August 26, 1996, while the contract negotiations between Voluntown and
the Rectory School were taking place, M.C.'s parents requested an impartial
due process hearing from the state educational agency to review the educational
placement proposed in M.C.'s IEP for the 1996-97 school year. See 20 U.S.C.
1415(b)(6). Around the same time, despite the lack of a contract between the
Rectory School and Voluntown, M.C.'s parents on their own enrolled M.C. as a
residential student for the 1996-97 school year at the Rectory School. M.C.
attended the Rectory School for the 1996-97 school year and, by all accounts,
made remarkable progress.

10

On May 27, 1997, while the due process proceedings were pending, M.C.'s IEP
Team met to prepare his IEP for the 1997-98 school year, when M.C. would be
in ninth grade. During the meeting, M.C.'s parents requested that M.C. be
placed again at the Rectory School, citing his progress there during eighth
grade. In addition, for the first time, M.C.'s parents requested reimbursement
for the services of Dr. Sheldon Gardner, a private psychologist who had treated
M.C. for depression from sometime between April and June 1995 until
sometime between June and September 1996.4 The IEP Team rejected both
requests. First, with respect to the issue of placement, the IEP Team concluded
that the Rectory School would be inappropriate for the 1997-98 school year

because the school had refused to enter a contract with Voluntown. Instead of
the Rectory School, the IEP Team recommended that M.C. attend either the
Learning Center or a program that was open to students beginning in ninth
grade at the Norwich Free Academy ("NFA") (the designated high school for
Voluntown and seven other area towns) called the Alternative Curriculum for
Educational Success ("ACES"). Second, the IEP Team declined to grant
reimbursement to M.C.'s parents for Dr. Gardner's fees on the ground that the
IEP Team had not recommended or authorized "private counseling" as part of
M.C.'s IEP for the period he had been treated by Dr. Gardner. Notwithstanding
the IEP Team's placement recommendations, M.C. remained at the Rectory
School for ninth grade.5
11

On September 15, 1997, having held six days of hearings and having heard
testimony from eleven witnesses, the impartial due process hearing officer (the
"Hearing Officer") filed a Final Decision and Order finding partially in M.C.'s
favor and partially in Voluntown's favor. With respect to the 1996-97 school
year, the Hearing Officer ruled that the Rectory School was an appropriate
placement, and ordered Voluntown to reimburse M.C.'s parents for the costs of
tuition and tutoring.6 With respect to the 1997-98 school year, however, the
Hearing Officer concluded, in light of the school's refusal to sign a contract
with Voluntown, that the Rectory School was not an appropriate placement.
The Hearing Officer could not assess whether the Learning Clinic, one of the
two placements proposed for M.C.'s ninth-grade year by the IEP Team, was
appropriate because M.C.'s parents "would not allow a significant step in
determining that-a review of [M.C.'s] records as part of the intake process at
[the school]." Nevertheless, the Hearing Officer found that the other program
proposed by the IEP Team for that year-the ACES program at NFA-was
appropriate for M.C., and rejected M.C.'s request for reimbursement for the
costs of the Rectory School for 1997-98 on that basis. Finally, to the extent
relevant here, the Hearing Officer rejected the reimbursement request for
M.C.'s treatment from Dr. Gardner, apparently on the ground that Dr. Gardner's
services "were not called for in [the] IEP [for 1995-96] where only school
counseling was indicated."

12

Dissatisfied with several of the Hearing Officer's conclusions, in October 1997,

M.C. (by and through his mother) filed a complaint in the District Court under
20 U.S.C. 1415(i)(2).7 Following amendment of the complaint, both parties
moved for summary judgment. By opinion filed July 28, 1999, the District
Court granted partial summary judgment to each party on different issues. See
M.C. v. Voluntown Bd. of Educ., 56 F. Supp. 2d 243 (D. Conn. 1999). To the
extent relevant here, the District Court overruled two of the Hearing Officer's
conclusions that had been adverse to M.C. Specifically, the District Court held

that M.C. was, in fact, entitled to reimbursement from Voluntown for the costs
of both the Rectory School for the 1997-98 school year, see id. at 250-57, and
Dr. Gardner's psychological counseling from 1995 to 1996, see id. at 257-59. In
addition, the District Court ruled that M.C. was entitled to part of his attorney's
fees and costs. See id. at 260-62.
13

On September 9, 1999, the District Court entered judgment against Voluntown

in the amount of $19,025.00 plus attorney's fees and costs in the amount of
$35,081.65. Thereafter, Voluntown filed this timely appeal.
II.

14

Generally, two questions are relevant to a federal court's review of a challenged

IEP under the IDEA: (1) whether the state complied with the procedural
requirements of the Act; and (2) whether the challenged IEP was "reasonably
calculated to enable the child to receive educational benefits." Rowley, 458
U.S. at 206-07; accord Walczak, 142 F.3d at 129. In the present case, M.C.
does not allege that the Board violated any of the Act's procedural
requirements, so only the second, substantive question is at issue. Moreover,
the proceedings before the Hearing Officer and the District Court narrowed the
disputes between the parties so that there are only two matters remaining for
our consideration: (1) whether M.C. is entitled to reimbursement for the costs
of the Rectory School for the second year spent at that school (1997-98), when
M.C. was in the ninth grade; and (2) whether M.C. is entitled to reimbursement
for the costs of Dr. Gardner's psychological treatment from 1995 to 1996, when
M.C. was principally in the seventh grade.8

15

We review the District Court's decisions on these issues de novo. See, e.g., J.D.
v. Pawlet Sch. Dist., No. 99-9263, 2000 WL 1145758, at *3 (2d Cir. Aug. 15,
2000). In doing so, however, we are mindful that the role of the federal courts
in reviewing state educational decisions under the IDEA "is circumscribed."
Muller v. Committee on Special Educ., 145 F.3d 95, 101 (2d Cir. 1998). Such
decisions are subject to "independent" judicial review, Rowley, 458 U.S. at
205, but this "is by no means an invitation to the courts to substitute their own
notions of sound educational policy for those of the school authorities which
they review," id. at 206. To the contrary, a federal court is required to give "due
weight" to the rulings of a local or state administrative hearing officer, id.,
mindful that the judiciary generally "lack[s] the specialized knowledge and
experience necessary to resolve persistent and difficult questions of educational
policy," id. at 208 (internal quotation marks omitted); accord Muller, 145 F.3d
at 101-02; Walczak, 142 F.3d at 129. Judicial deference "is particularly
appropriate when ... the state hearing officers' review has been thorough and

careful." Walczak, 142 F.3d at 129.

16

A. Reimbursement for the Costs of Private School Tuition

17

As noted, the District Court ruled, contrary to the Hearing Officer, that M.C. is
entitled to reimbursement for the costs of the Rectory School for the 1997-98
school year, when he was in the ninth grade. See M.C., 56 F. Supp. 2d at 25057. In making this ruling, the District Court declined to consider whether either
of the placements proposed by M.C.'s IEP for that year-the Learning Center or
the ACES program-was adequate under the IDEA. See id. at 250-51; see also
id. at 256. Instead, noting that M.C.'s IEP had failed to recommend or authorize
his placement when his parents first placed him at the Rectory School (in the
eighth grade), the District Court looked only at whether Voluntown had a valid
reason for rejecting the Rectory School as a placement for the ninth grade. See
id. at 251-56. Relying on Florence County Sch. Dist. Four v. Carter, 510 U.S. 7
(1993), the District Court concluded that Voluntown's sole reason for rejecting
the private placement-the absence of a contract between Voluntown and the
Rectory School-was insufficient to bar reimbursement under the IDEA. See
M.C., 56 F. Supp. 2d at 256-57.

18

We agree with Voluntown that the District Court's analysis was flawed. Under
the Supreme Court's decision in School Comm. of Burlington v. Department of
Educ. of Massachusetts, 471 U.S. 359, 370 (1985), whether the parents of a
disabled child are entitled to reimbursement for the costs of a private school
turns on two distinct questions: first, whether the challenged IEP was adequate
to provide the child with a free appropriate public education; and second,
whether the private educational services obtained by the parents were
appropriate to the child's needs. See, e.g., Muller, 145 F.3d at 104-05; Walczak,
142 F.3d at 129; Still v. DeBuono, 101 F.3d 888, 891 (2d Cir. 1996). If the
challenged IEP was adequate, the state has satisfied its obligations under the
IDEA and the necessary inquiry is at an end. See, e.g., Walczak, 142 F.3d at
134 (holding that because the challenged IEP was adequate, the defendant
school board could not "be ordered to reimburse the parents for expenses
incurred as a result of their decision to remove their child from the ...
program"). Only if a court determines that a challenged IEP was inadequate
should it proceed to the second question. See, e.g., T.R. v. Kingwood Township
Bd. of Educ., 205 F.3d 572, 582 (3d Cir. 2000). Then, reimbursement is
appropriate only if the parents' private placement was itself adequate under the
Act.

19

In the present case, the District Court erred by skipping directly to the second
step of the Burlington test-that is, by failing to consider first whether either of

the placements proposed in M.C.'s IEP for the ninth grade, the Learning Center
or the ACES program, was adequate. The fact that the Board did not "offer
M.C. an appropriate placement for the eighth grade," M.C., 56 F. Supp. 2d at
256 (emphasis added), when M.C. started at the Rectory School, makes no
difference to the required analysis. Since the IDEA requires a child's IEP Team
to formulate a new IEP at least every year, see 20 U.S.C. 1414(d)(4)(A)(i), the
adequacy vel non of an IEP-here, M.C.'s IEP for the ninth grade-is to be judged
on its own terms. Nor does the Supreme Court's decision in Carter, on which
the District Court relied, justify a departure from the Burlington test. As we
have explained, the Supreme Court in Carter held merely "that once the
Burlington two-factor test is satisfied, parents can obtain reimbursement for
privately obtained educational services, even if those services do not fully
satisfy the state educational agency's standards." Still, 101 F.3d at 892
(emphasis added); see also Walczak, 142 F.3d at 129 (noting that the holding in
Carter applies only "where both prongs of [the] Burlington test are [otherwise]
satisfied"). Thus, even under Carter, a court seeking to determine whether
parents are entitled to reimbursement must first ask whether the challenged IEP
was adequate; the holding in Carter comes into play only if the answer to this
threshold question is no. See T.R., 205 F.3d at 582 ("[Carter] gives parents the
right to reimbursement for a unilateral placement in a non-qualifying school
only 'if a federal court concludes both that the public placement violated IDEA
and that the private school placement was proper under the Act.' By its terms,
this is a two-pronged inquiry. ... The parental reimbursement mandate comes
into play only if [the public placement violated IDEA]." (quoting Carter, 510
U.S. at 15) (emphasis in T.R.)).
20

Although Voluntown urges us to reverse and enter judgment in its favor, we

conclude that vacatur of this part of the District Court's judgment and remand
for the District Court to consider whether either of the IEP's proposed
placements was adequate is more appropriate. M.C.'s parents refused to
disclose M.C.'s records to the Learning Center, so there is little evidence in the
present record with respect to whether the Learning Center would have been an
appropriate placement. As for the ACES program at the NFA, there is some
dispute over the extent to which the program integrates disabled children with
nondisabled children-a factor that is relevant to the inquiry in light of the
IDEA's "strong preference for children with disabilities to be educated, 'to the
maximum extent appropriate,' together with their non-disabled peers." Walczak,
142 F.3d at 122 (quoting 20 U.S.C. 1412(5)(A)). In addition, although the
Student Services Administrator of the NFA testified at the due process hearing
that the ACES program served some children, like M.C., with learning
disabilities, she testified also that the program primarily served children with
emotional disabilities or some level of emotional disturbance. Under these

circumstances, we believe that the task of determining whether the challenged

IEP satisfied the IDEA is better assigned to the District Court in the first
instance.
21

On remand, the District Court should therefore undertake to determine whether

either the Learning Center or the ACES program would have been an adequate
placement for M.C. in the ninth grade. In making this determination, the
District Court should, of course, give "due weight" to the finding of the
Hearing Officer that the ACES program was adequate. Walczak, 142 F.3d at
129. In addition, the District Court should consider the relevance, if any, of
M.C.'s parents' refusal to release M.C.'s records to the Learning Center. In this
connection, we note that the 1997 amendments to the IDEA-which may or may
not apply to M.C.'s claim for tuition reimbursement since some (though not all)
events relevant to the claim took place prior to June 4, 1997, when the
amendments became effective-provide that reimbursement for private
schooling "may be reduced or denied ... upon a judicial finding of
unreasonableness with respect to actions taken by the parents." 20 U.S.C.
1412(10)(C)(iii)(III); cf. Warren G. v. Cumberland County Sch. Dist., 190
F.3d 80, 86 n.3 (3d Cir. 1999) (declining to apply 1412(10)(C)(iii)(III)
"because all of the events in this case occurred prior to the effective date of the
amendment" (emphasis added)).

22

B. Reimbursement for the Costs of Psychological Counseling

23

The District Court also ruled, contrary to the Hearing Officer, that M.C. is
entitled to reimbursement for the costs of his psychological treatment by Dr.
Gardner from 1995 to 1996, when M.C. was principally in the seventh grade.
See M.C., 56 F. Supp. 2d at 257-59. Under the IDEA, a disabled child is
entitled to psychological counseling at no cost if such services are "required to
assist [the child] to benefit from special education." 20 U.S.C. 1401(22); see
also T.G. v. Board of Educ. of Piscataway, 576 F. Supp. 420, 422-24 (D.N.J.
1983), aff'd, 738 F.2d 425 (3d Cir. 1984) (table). Reviewing the record, the
District Court concluded that "there is a substantial connection between M.C.'s
depression [for which he was treated by Dr. Gardner] and his progress, or lack
thereof, in school." M.C., 56 F. Supp. 2d at 258; see also id. at 258-59 ("[T]here
is evidence ... that M.C.'s depression was linked to his failures at school."). On
this basis, the District Court ordered Voluntown to reimburse M.C. for the costs
of his psychological counseling with Dr. Gardner.

24

Even assuming for the argument that (1) psychological counseling was
"required to assist [M.C.] to benefit from special education" during the period
he was treated by Dr. Gardner, 20 U.S.C. 1401(22); and (2) M.C.'s IEPs for

that period failed adequately to address this need for counseling, we conclude
that M.C. is barred as a matter of law from reimbursement for Dr. Gardner's
services. It is well established that "equitable considerations are relevant in
fashioning relief" under the IDEA. Burlington, 471 U.S. at 374; see Carter, 510
U.S. at 16 ("Courts fashioning discretionary equitable relief under IDEA must
consider all relevant factors, including the appropriate and reasonable level of
reimbursement that should be required."); see also Board of Educ. of LaGrange
Sch. Dist. No. 105 v. Illinois State Bd. of Educ., 184 F.3d 912, 917-18 (7th Cir.
1999). Although such considerations will often weigh in favor of parents
seeking relief under the Act, see, e.g., Warren G., 190 F.3d at 85-86, courts
have held uniformly that reimbursement is barred where parents unilaterally
arrange for private educational services without ever notifying the school board
of their dissatisfaction with their child's IEP. See Ash v. Lake Oswego Sch.
Dist., No. 7J, 980 F.2d 585, 589 (9th Cir. 1992); Mary P. v. Illinois State Bd. of
Educ., 934 F. Supp. 989, 992 (N.D. Ill. 1996); Garland Indep. Sch. Dist. v.
Wilks, 657 F. Supp. 1163, 1168 (N.D. Tex. 1987); see also Bernardsville Bd. of
Educ. v. J.H., 42 F.3d 149, 158 (3d Cir. 1994) ("[A]s a practical reality, and as a
matter of procedural law ... , the right of review contains a corresponding
parental duty to unequivocally place in issue the appropriateness of an IEP.");
Town of Burlington v. Dep't of Educ., 736 F.2d 773, 799 (1st Cir. 1984) (noting
that a distinction should be made "between a unilateral parental transfer made
after consultation with the school system, yet still an action without the
system's agreement, and transfers made truly unilaterally, bereft of any attempt
to achieve negotiated compromise and agreement"), aff'd, 471 U.S. 359 (1985);
cf. Ivan P. v. Westport Bd. of Educ., 865 F. Supp. 74, 82 (D. Conn. 1994)
(holding that the plaintiff parents were entitled to reimbursement for the period
prior to seeking due process review because "[t]he record in this case reflects
significant efforts at communication between the plaintiffs and the [defendant
school board] .... Thus, this is not a case where the parents failed to voice their
dissatisfaction with a placement ...."), aff'd, 101 F.3d 686 (2d Cir. 1996) (table).
As the district court explained in Wilks, parents "cannot, in fairness, expect to
recover for expenses [they] incurred prior to contacting the school board about
[their] dissatisfaction with [their child's] IEP." Wilks, 657 F. Supp. at 1167.
25

In the present case, M.C.'s parents failed to raise any issue with respect to the
extent or nature of the psychological counseling services provided for M.C. in
his IEPs until May 27, 1997-at least eight months after M.C.'s treatment with
Dr. Gardner had ended. Because M.C.'s parents failed to place in issue the
appropriateness of M.C.'s IEPs, "it is impossible to determine with any certainty
whether [their] expenditures were indeed necessary, or whether a prompt
complaint ...might have obviated the need for those expenditures," Wilks, 657
F. Supp. at 1168. Under these circumstances, we conclude that M.C. is not

entitled to reimbursement for the costs of his treatment with Dr. Gardner.9
III.
In sum, for the reasons stated above, we:
26

(1) Vacate the judgment of the District Court insofar as it ordered Voluntown to
reimburse M.C. for the costs of private school tuition for the 1997-98 school
year;

27

(2) remand for further proceedings consistent with this opinion; and

28

(3) reverse the judgment of the District Court insofar as it ordered Voluntown
to reimburse M.C. for the costs of private psychological counseling.

29

We decline to award costs of this appeal to either party. See FED. R. APP. P.
39(a)(4).

Notes:
1

In 1997, the IDEA was amended and its sections renumbered. See Individuals
with Disabilities Education Act Amendments of 1997, Pub. L. No. 105-117,
111 Stat. 37. Although most of the events in this case took place prior to June 4,
1997, the effective date of the amendments, we refer throughout this opinion to
the current version of the Act for the sake of convenience. We discuss one
potentially relevant aspect of the amendments below.

Although the February 8, 1996 IEP refers to weekly "[c]onsultation" with

M.C.'s "case manager" and teachers, it does not appear from the record that the
IEP Team recommended, or arranged for, any psychological counseling for
M.C. while he was on homebound instruction. During oral argument, however,
counsel for Voluntown suggested that such counseling would have been
available during this period from a school psychologist, notwithstanding M.C.'s
absence from school. For reasons discussed below, the availability vel non of
school psychological counseling during M.C.'s period of homebound
instruction is immaterial for purposes of this appeal.

After a state mediation in the fall of 1996, Voluntown agreed to reimburse M.C.
for the costs of the Rectory School summer program. Accordingly, those costs
are not at issue on this appeal.

There is some dispute over when M.C.'s treatment from Dr. Gardner began and
ended. M.C.'s mother testified during the due process hearing that M.C. had
seen Dr. Gardner from April or May 1995 until about September 8, 1996. Dr.
Gardner, on the other hand, testified that he had treated M.C. from June 1995
until M.C. started summer school at the Rectory School, on June 24, 1996. For
reasons discussed below, this dispute is immaterial for purposes of this appeal.

The Rectory School operates only through ninth grade. In the fall of 1998, M.C.
enrolled in the regular tenth-grade education program at NFA. M.C.'s
placements for that year and subsequent years are not at issue on this appeal.

The Hearing Officer ruled that M.C. was not entitled to reimbursement for the
costs of the residence program at the Rectory School. That ruling, which was
affirmed by the District Court, is not at issue on this appeal.

Voluntown did not seek judicial review of the Hearing Officer's ruling
requiring reimbursement for the costs of the Rectory School for the 1996-97
school year.

Voluntown does not challenge on appeal the District Court's decision to grant
M.C. attorney's fees.

We note that the practical, long-term effect of our holding in this case may be
limited. In 1997, Congress amended the IDEA to provide in relevant part:
(iii) Limitation on reimbursement
The cost of reimbursement [for private educational services] . . . may be
reduced or denied (I) if (aa) at the most recent IEP meeting that the parents attended prior to removal of
the child from the public school, the parents did not inform the IEP Team that
they were rejecting the placement proposed by the public agency to provide a
free appropriate public education to their child, including stating their concerns
and their intent to enroll their child in a private school at public expense; or
(bb) 10 business days . . . prior to the removal of the child from the public
school, the parents did not give written notice to the public agency of the
information described in division (aa);
....

(III) upon a judicial finding of unreasonableness with respect to actions taken

by the parents.
20 U.S.C. 1412(a)(10)(C)(iii). This amendment appears to codify the
previously recognized discretion of a court to reduce or bar reimbursement
where parents fail to raise the appropriateness of an IEP in a timely manner.
The amendment does not apply to M.C.'s psychological services reimbursement
claim, however, because all events relevant to that claim occurred prior to June
4, 1997, the effective date of the 1997 amendments. See, e.g., Warren G., 190
F.3d at 86 n.3. Accordingly, we need not, and do not, consider the effect, if any,
of 1412(a)(10)(C)(iii) on this case.