## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 19 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MOLLY O’TOOLE, by and through her parents and legal guardians, KEVIN AND KATHY O’TOOLE,Plaintiff-CounterDefendant-Appellant,

v. No. 97-3125 OLATHE DISTRICT SCHOOLS UNIFIED SCHOOL DISTRICT NO. 233, Defendant-CounterClaimant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. NO. 96-2329-JWL)

Stephen Walker, Beachwood, Ohio (James Germer, Kans as Advocacy Program Services, Inc., Topeka, Kansas, with him on the ope ning brief), for plaintiffcounter-defendant-appellant. Gregory P. Goheen (Daniel B. Denk with him on the b rief), McAnany, Van Cleave & Phillips, P.A., Kansas City, Kansas, for d efendant-counter-claimantappellee.* The Honorable Thomas R. Brett, Senior District Judge, United States District

Court for the Northern District of Oklahoma, sitting by designation

1 The IDEA was substantially amended in 1997. SeeIndividuals with Disabilities Education Act Amendments of 1997, Pub. L. No. 105-17, 111 Stat. 37 (1997). We have held that the Amendments do not apply retroactively. Fowler v. Unified Sch. Dist. No. 259 , 128 F.3d 1431, 1436 (10th Cir. 1997). Because the events relevant to this case took place before the effective date of the Amendments, we apply the pre-Amendments version of the Act, and, unless otherwise indicated, all citations within this opinion are to that version. -2- Before ANDERSON and KELLY , Circuit Judges, and BRETT , * District Judge.

ANDERSON , Circuit Judge.

Plaintiff and appellant Molly O’Toole, by and throu gh her parents Kevin and Kathy Fulgham O’Toole, appeals the district cou rt’s grant of summary judgment to the defendant Olathe District Schools U nified School District No. 233 in this case involving the Individuals With Dis abilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1485. 1 Molly had challenged the adequacy, under both Kansas law and the IDEA, of the educational se rvices provided to her. We affirm.2 The IEP is “‘a written statement that sets forth the child’s present performance

level, goals and objectives, specific services that will enable the child to meet those goals, and evaluation criteria and procedures to determine whether the child has met the goals.’” Murray v. Montrose County Sch. Dist. RE-1J , 51 F.3d 921, 923 n.3 (10th Cir. 1995) (quoting Association for Community Living v. Romer, 992 F.2d 1040, 1043 (10th Cir. 1993)). -3- BACKGROUND Molly was born on May 6, 1982, and experienced heal th problems shortly after her birth. At thirty months of age, she was diagnosed with a hearing problem and soon thereafter began using hearing aid s. Subsequent evaluations revealed a moderate to severe sensorineural hearing loss in her right ear and a moderate to profound hearing loss in her left ear. In the fall of 1988, Molly entered the District’s h earing impaired program located at Scarborough Elementary School (“SEC”). While she attended SEC, an individualized educational program (“IEP”) was deve loped for her, in accordance with the IDEA. 2 During the 1991-92 school year, Molly was in botha regular and a resource room at SEC. In the summer of 1992, Mol ly’s biological mother died. In October of 1993 her father married Kathy Fulgham , a co-plaintiff in this case. This case primarily involves the adequacy of the IE P developed for Molly on February 23, 1993, and subsequently amended on A ugust 23, 1993. The IEP team which developed Molly’s February IEP included Kevin O’Toole, Kathy Fulgham, and a multi-disciplinary group of SEC pers onnel. The district court-4-

described the meeting as “pleasant and congenial.” O’Toole v. Olathe Dist. Schs. Unified Sch. Dist. No. 233 , 963 F. Supp. 1000, 1004 (D. Kan. 1997). At the conclusion of the February IEP meeting, Mr. O’Toole received a copy of the IEP and consented to Molly’s continued placement at SEC

. During the months following the February IEP meetin g, Mr. O’Toole and Ms. Fulgham received reports on Molly’s progress. As the district court noted, “these monitoring reports indicated that [Molly] me t certain objectives, made adequate progress toward certain objectives, and di d not make adequate progress toward other objectives.” Id. The district court further observed, and the reco rd supports, that “Mr. O’Toole kept in close contact w ith [Molly’s hearing impaired teacher Deb] Stryker concerning [Molly’s] academic progress between February and May of 1993.” Id. In June of 1993, Mr. O’Toole had Molly evaluated atthe Central Institute for the Deaf (“CID”), located in St. Louis, Missour i. The CID’s report recommended the following for Molly: 1. Molly is in need of full-time special education as a hearingimpaired child with children of similar age and abi lity. Her skills are insufficient for learning in a regular mainstream c lass placement. Placement in a regular fifth grade class in fall 19 93 is not appropriate. 2. Molly is in need of intensive, individualized r eading instruction by teachers experienced with hearing-impaired child ren.-5-

3. Molly’s language and reading should be re-evalu ated in one year. Her intellectual abilities should be re-evaluated i n three years. She will continue to require annual hearing and hearing aid evaluations. 4. Molly and her family should be proud of the lan guage level she has attained despite her profound hearing impairment and her learning problems. The prognosis for continued imp rovement in language is considered good if she is given appropr iate special education. The prognosis for improvement in readin g achievement, even given intensive, individualized instruction, i s guarded.

. . . . 6. Molly should continue using her hearing aids inboth ears on volume #3. Appellant’s App. Vol. 4 at 62-63. The CID’s evaluation included the assessment that Molly’s “nonverbal intellectual abilities are within the low average range and her verbal abilities are below the average range. . . . It is likely that Molly has learning problems in addition to her hearing impair ment.” Id. at 62. In July 1993 Molly was accepted as a full-time residential stude nt at the CID. When Mr. O’Toole inquired about reimbursement for tuition an d/or expenses incurred by attendance at the CID, the District informed him th at tuition reimbursement was unavailable and that it would inquire into expenses reimbursement. Mr. O’Toole and Ms. Fulgham then requested an IEP meeting in late August. The District assembled an IEP team consisting of many of the same people as attended the February IEP meeting, with a few ch anges. The district court found that at the August 23 IEP meeting, “the IEP t eam agreed to follow all of the3 The IDEA permits dissatisfied parents like the O’Tooles to request a due process

hearing before an independent hearing officer. See20 U.S.C. § 1415(b)(2). -6- CID’s recommendations.” O’Toole , 963 F. Supp. at 1005. The O’Tooles challenge this finding. In any event, various chan ges were made to Molly’s IEP, and at the end of the meeting, all members of the I EP team except the O’Tooles recommended that Molly remain at SEC. Mr. O’Toole disagreed and signed a form terminating the District’s services to Molly. There is some disagreement about whether Mr. O’Toole was notified of his rightto challenge the adequacy of the IEP through the IDEA’s and Kansas’ due process procedures. The O’Tooles thereafter enrolled Molly at the CID, where, accord ing to the O’Tooles, she flourished. At oral argument, her counsel represented that she has subsequently graduated from the CID and is currently attending t he Olathe public schools. Shortly after the August IEP meeting, the District notified Mr. O’Toole that his request for reimbursement of expenses for Molly ’s attendance at the CID was denied. Mr. O’Toole and Ms. Fulgham then requesteda due process hearing regarding Molly’s placement at the CID. 3 A thirteen-day hearing took place over a nine-month period, at the end of which the hearin g officer granted the District’s dispositive motion, concluding that: (1) Kan. Stat . Ann. § 72-962(f) does not create a greater duty to educate disabled students than does the IDEA; (2) the O’Tooles suffered no prejudice from the District’s alleged failure to inform them-7-

of their due process rights and they had no right t o be informed of the possibility of reimbursement for the costs of sending Molly to the CID; (3) Molly’s IEPs adequately set forth annual goals, short term objec tives, evaluative criteria, and present levels of functioning; (4) the O’Tooles fai led to establish that the related special education services were inappropriate, the level of services offered was inappropriate, or that she was denied necessary services; (5) Molly’s degree of academic progress did not equate with a denial of t he free appropriate public education (“FAPE”) to which she is entitled under the IDEA; and (6) the IEP developed in February and amended in August 1993 satisfied the requirements of both Kansas law and the IDEA. The O’Tooles appealed the hearing officer’s decisio n to a reviewing officer appointed by the state board of education. The O’T ooles requested the opportunity to present additional evidence. After reviewing the record, the reviewing officer denied the O’Tooles’ request to p resent new evidence, determining that additional evidence was unnecessary. The reviewing officer then affirmed the hearing off icer’s decision on all but three issues. On those three issues, the revie wing officer found that the annual goals and objectives, description of related services, and statement of present levels of functioning generated in the Febr uary and August IEPs failed to meet the procedural requirements of Kansas law and the IDEA. The reviewing-8-

officer therefore remanded the matter for a determi nation whether the O’Tooles were due the prospective relief of requiring that t he District comply with all procedural requirements in developing future IEPs. The O’Tooles thereafter sought review in federal di strict court, see 20 U.S.C. § 1415(e)(2), and the District filed a cross -appeal challenging the reviewing officer’s decision concerning the IEPs’ c ompliance with the IDEA and Kansas law and the availability of prospective reli ef. The district court granted the District’s motion for summary judgment, holding that: (1) Kan. Stat. Ann. § 72-962(f) did not establish a higher educational standard or obligation than the IDEA; (2) Molly’s IEPs “provided an adequate statem ent of [her] present educational performance levels;” (3) Molly’s IEPs “ adequately set forth annual goals;” (4) Molly’s IEPs “adequately set forth short-term instructional objectives and procedures by which [her] progress could be mea sured on at least a twelve week basis;” (5) Molly’s IEPs “contained an adequat e statement of what specific related services [Molly] was to receive;” and (6) t he District “has complied with the IDEA’s procedures and . . . [Molly’s] IEPs were reasonably calculated to enable [Molly] to receive more than de minimis educ ational benefits as required by the IDEA.” O’Toole , 963 F. Supp. at 1012-14. The court also denied t he O’Tooles’ motion for enlargement of time to file a formal written request to present additional evidence under 20 U.S.C. § 1415( e)(2), finding that the-9-

O’Tooles’ “counsel did not file this motion prior t o the expiration of discovery and . . . he has failed to show excusable neglect j ustifying his late filing.” O’Toole , 963 F. Supp. at 1014-15. The court further held that, procedural violations aside, the O’Tooles had “failed to justi fy the need for the additional evidence.” Id. at 1015. On appeal, the O’Tooles argue: (1) Kansas has adop ted a different and higher educational standard than that contained in the IDEA, as interpreted by Board of Educ. v. Rowley , 458 U.S. 176 (1982), and under that higher standard, Molly was denied a FAPE; (2) her IEPs were inadequate in a variety of ways; (3) the district court erred in refusing to consider ad ditional evidence; (4) the exclusion of evidence relating to the impact of the introduction of sign language in a hearing impaired child’s educational program d enies a FAPE and violates the IDEA’s due process requirements; and (5) the exclus ion of additional evidence in reliance on a local rule of court violates the IDEA

.

DISCUSSION The IDEA is designed to enable children with disabi lities to have access to a FAPE designed to meet their particular needs. Se e Murray , 51 F.3d at 925. The Supreme Court has held that the “‘basic floor of op portunity’ provided by the [IDEA] consists of access to specialized instructio n and related services which are4Among the many provisions amended by the 1997 IDEA Amendments were those

relating to the IEP. As indicated, however, we apply pre-Amendments law to this case. -10- individually designed to provide educational benefi tto the handicapped child.” Rowley , 485 U.S. at 201 (emphasis added). A state need n ot provide services “sufficient to maximize each child’s potential.” I d. at 198. States are, however, free to provide a higher level of education service s if they wish. See Fowler , 128 F.3d at 1438 (“‘State standards that impose a great er duty to educate disabled children, if they are not inconsistent with federal standards, are enforceable in federal court under the IDEA.’”) (quoting Seattle S ch. Dist. No. 1 v. B.S. , 82 F.3d 1493, 1499 n.2 (9th Cir. 1996)). “The IEP is the basic mechanism through which th[e] goal [of providing a FAPE] is achieved for each disabled child.” Murray , 51 F.3d at 925; see also 20 U.S.C. § 1401(a)(20). 4 The IEP is a written statement containing the fol lowing: (A) a statement of the present levels of educationa l performance of such child, (B) a statement of annual goals, including short-te rm instructional objectives, (C) a statement of the specific educational service s to be provided to such child, and the extent to which such child will be able to participate in regular educational programs, (D) a statement of the needed transition services . . ., (E) the projected date for initiation and anticipat ed duration of such services, and (F) appropriate objective criteria and evaluation p rocedures and schedules for determining, on at least an annual ba sis, whether instructional objectives are being achieved.-11-

20 U.S.C. § 1401(a)(20); see also 34 C.F.R. § 300.346(a). Judicial review in IDEA cases is not the typical ad ministrative review. The district court must “independently review the evide nce contained in the administrative record, accept and review additional evidence, if necessary, and make a decision based on the preponderance of the e vidence, while giving ‘due weight’ to the administrative proceedings below.” Murray , 51 F.3d at 927. Because we review the district court’s grant of sum mary judgment, we review the district court’s decision de novo, applying the sam e standard as it did. There is an added wrinkle in this case, however, be cause the reviewing officer and the hearing officer disagreed on whethe r the goals and objectives, the description of related services, and the present le vels of educational performance set forth in the IEPs met the procedural requiremen ts of the IDEA and Kansas law. Thus, the question arises whether the “due we ight” is to be given to the conclusion of the reviewing officer or the hearing officer on issues on which they disagreed. Some circuits “defer to the final decision of the s tate authorities,” observing that “it makes no difference that there m ay have been some disagreement among the state officers during the co urse of the state proceeding.” Heather S. v. Wisconsin , 125 F.3d 1045, 1053 (7th Cir. 1997) (quoting Thom as v. Cincinnati Bd. of Educ. , 918 F.2d 618, 624 (6th Cir. 1990)); see also Karl v.5 The issue of deference to reviewing versus hearing officer arises both in the

context of the reviewing officer’s obligation, if any, to defer to the hearing officer and in (continued...) -12- Board of Educ. , 736 F.2d 873, 877 (2d Cir. 1984). Other circuits have modified that general principle slightly, holding that altho ugh we should “defer to the appeals panel rather than the hearing officer in mo st circumstances,” deference to a hearing officer rather than a reviewing officer w ho disagrees with the hearing officer may be appropriate when “the hearing office r’s findings [are] based on credibility judgments unless the non-testimonial, e xtrinsic evidence in the record would justify a contrary conclusion or unless the r ecord read in its entirety would compel a contrary conclusion.” Carlisle Area Sch. v . Scott P. , 62 F.3d 520, 529 (3d Cir. 1995); see also Fort Zumwalt Sch. Dist. v. Clynes , 119 F.3d 607, 610 (8th Cir. 1997) (“Where there is a conflict between the findings and conclusions of the hearing panel and the final reviewing office r, a court may choose to credit the hearing panel’s findings based on observation o f the witnesses and reject the reviewing officer’s analysis if it does not appear to give sufficient weight to the views of the professional educators.”), petition fo r cert. filed(U.S. Dec. 29, 1997) (No. 97-1568); Doyle v. Arlington County Sch. Bd. , 953 F.2d 100, 104 (4th Cir. 1991) (disregarding reviewing officer’s finding contrary to hearing officer where the disagreement was as to credibility of witness w ho only testified before the hearing officer). 55 (...continued)

the context of the district court’s, and our court’s, review of the administrative proceedings. In this case, the District cross-appealed to the district court the issue of whether the reviewing officer exceeded the scope of his authority to review the hearing officer’s findings and conclusions. Because the District has not pursued that issue in this appeal, the issue of deference in this case only arises in our consideration of the “due weight” to be given the administrative proceedings. -13- Thus, we will give “due weight” to the reviewing of ficer’s decision on the issues with which he disagreed with the hearing off icer, unless the hearing officer’s decisions involved credibility determinat ions and assuming, of course, that the record supports the reviewing officer’s de cision. We review any legal conclusions, however, under our usual de novo stand ard. We also bear in mind the Supreme Court’s admonition, often repeated, that “courts must be careful to avoid imposing their view of preferable educational methods upon the States.” Rowley , 458 U.S. at 207.

I. Whether Kansas Has a Higher Educational Standar d At the time Molly’s IEPs were developed, Kansas pro vided as follows: “Exceptional children” means persons who . . . diff er in physical, mental, social, emotional or educational characteri stics to the extent that special education services are necessary to en able them to progress toward the maximum of their abilities or c apacities

. Kan. Stat. Ann. § 72-962(f)(2) (emphasis added). I n 1994, the section was amended to read as follows:-14-

“Exceptional children” means persons who . . . diff er in physical, mental, social, emotional or educational characteri stics to the extent that special education services are necessary to en able them to receive educational benefits in accordance with the ir abilities or capacities

. Id. (emphasis added). The O’Tooles argue that either version of the statute imposes a higher standard for the provision of spec ial education services than Rowley ’s “some benefit” standard under the IDEA. While t hey do not articulate a precise standard, the O’Tooles appear to argue thatKansas obligates school districts to provide special education services whi ch will maximize each child’s potential. We disagree. First, as another Kansas federal district court jud ge has stated in rejecting the identical argument, Kan. Stat. Ann. § 72-962(f) (2) “does not—by its terms—bind the State of Kansas to anything at all.” Logue v. Shawnee Mission Pub. Sch. Unified Sch. Dist. No. 512 , 959 F. Supp. 1338, 1350 (D. Kan. 1997). Rather, it simply defines “exceptional children.” It is Kan. Stat. Ann. § 72-966(a) which obligates school districts to “provide specia l education services for all exceptional children who are residents of the schoo l district.” Kan. Stat. Ann. § 72-966(a). Moreover, even were we to assume that § 72-962(f)(2 ) obligated school districts to educate exceptional children as define d therein, the language itself does not compel the conclusion that Kansas has adop ted a higher standard than6 The O’Tooles argue that the amended language, requiring exceptional children to

“receive educational benefits in accordance with their abilities,” is also a higher standard than the Rowley“individually designed to provide educational benefit” standard. See Rowley , 458 U.S. at 201. We fail to see any meaningful distinction between receiving (continued...) -15- that of Rowley . The pre-1994 amendment language defined exceptio nal children as those who need services “to enable them to progr ess towardthe maximum of their abilities.” Requiring “progress toward” thei r maximum abilities is not obviously different, and more demanding, than requi ring some educational benefit. Additionally, § 72-961 states the legislative intent behind Kansas’ special education statutes: “It is the purpose and intention of this act to provide for educational opportunities which will contribute to the development of each exceptional child in this state in accord with his or her abilities and capacities .” (emphasis added). That language is comparable to R owley ’s standard, and certainly indicates the Kansas legislature did not intend to obligate school districts to maximize the educational opportunities provided to exceptional children. Furthermore, while the O’Tooles urge us to make muc h of the fact that the amended language defining exceptional children as t hose requiring services “to enable them to receive educational benefits in acco rdance with their abilities,” seems more similar to Rowley ’s standard, we cannot conclude from the fact of th e amendment alone that the earlier standard was highe r. 6 Indeed, the parties direct6 (...continued)

educational benefits in accordance with a student’s abilities and receiving individually designed educational benefits. The “in accordance with” language of the Kansas statute, in our view, merely states the obvious—the services must be appropriate for, and designed to confer educational benefits in the context of, the individual’s particular abilities or capacities.

7The O’Tooles point out that Rowleywas decided in 1982, and the Kansas legislature amended § 72-962 several times since then, but did not elect to change the definition of exceptional children until 1994, when it adopted the “receive educational benefits in accordance with their abilities” language. They argue these circumstances indicate that “Kansas quite clearly opted to keep a different standard (“progress toward the maximum of their abilities or capacities”) than that announced in Rowleyuntil 1994.” Appellant’s Br. at 26. The cases the O’Tooles cite in support of this argument, City of Lenexa v. Board of County Comm’rs , 703 P.2d 800 (Kan. 1985) and State v. Coley , 694 P.2d 479 (Kan. 1985), state the principle that in amending a statute the legislature is presumed to have “acted with full knowledge of judicial decisions concerning the statute,” City of Lenexa, 703 P.2d at 804, or “with full knowledge and information as to the subject matter of the statute, as to prior and existing legislation on the subject of the statute, and as to judicial decisions with respect to prior and existing law.” Coley , 694 P.2d at 482. They do not stand for the proposition that in amending a state statute a state legislature is unambiguously declining to follow a United States Supreme Court interpretation of a federal statute. Furthermore, as the district court held, the pre-1994 amendment language, which was in effect at the time Molly’s IEPs were written, was enacted before the IDEA and before Rowley . “[I]t is impossible to infer an intent to expand the federal scheme simply from the enactment of this statute when the language in question predates the federal scheme.” Doe v. Board of Educ. , 9 F.3d 455, 457-58 (6th Cir. 1993). -16- us to no language either in the statutes themselves or in any legislative history which explains the standard under either version of the statute, or explains the reason for the amendment. 7 The O’Tooles further argue that, even if their cons truction of § 72-962 is not compelled by the language and timing of amendme nts to the statute, a Kansas8 The regulation has since been amended to delete the emphasized part, upon which

the O’Tooles primarily rely. -17- administrative regulation, when read in conjunction with § 72-962, supports their argument. We disagree. According to the O’Tooles, the particular regulation provided as follows at the time relevant to this ca se: “Least restrictive environment” means educational placement in which, to the maximum extent appropriate, exception al children are placed in educational programs provided the most be nefitat the least distance away from regular educational placement. Kan. Admin. Regs. § 91-12.22(aa) (emphasis added). 8 The O’Tooles argue that the emphasized phrase indicates that Kansas has “expressly elected to go beyond the standards enunciated in Rowley .” Appellant’s Br. at 27. We fail to see how an administrative regulation, defining “least restr ictive environment” as the placement where an exceptional child receives the m ost benefit at the least distance away from a regular placement, evidences a n intent to obligate school districts to provide any particular level of specia l educational services. Rather, it appears to be a restatement of the need to balance the obligation to provide a FAPE with the obligation to place the child in an e nvironment closest to a regular educational setting. In sum, absent any other clear indication by the Ka nsas legislature that it so intended, neither the language of the relevant stat utes, nor the timing and content of any amendments to those statutes, convinces us that the legislature purposely9 The O’Tooles also cite a few decisions from other circuits where courts held that

the particular states had adopted higher substantive standards than the Rowleystandard. Those cases are distinguishable from this case. In Burke County Bd. of Educ. v. Denton , 895 F.2d 973 (4th Cir. 1990), the court observed that the North Carolina General Assembly had specifically stated that it was “the policy of the State . . . to ensure every child a fair and full opportunity to reach his full potential.” Id. at 983 (citing N.C. Gen. Stat. § 115C-106(a)). Furthermore, the North Carolina Court of Appeals had held that North Carolina’s statute imposed a higher duty than did Rowley . SeeHarrell v. Wilson County Schs. , 293 S.E.2d 687, 690 (N.C. Ct. App. 1982). Similarly, in David D. v. Dartmouth Sch. Comm. , 775 F.2d 411 (1st Cir. 1985), the First Circuit noted that the Massachusetts Supreme Judicial Court had interpreted state education law as requiring that special education programs be administered “‘to assure the maximum possible development of a child with special needs.’” Id. at 423 (quoting Stock v. Massachusetts Hosp. Sch. , 467 N.E.2d 448, 453 (Mass. 1984)). By contrast, we have no definitive interpretation by a Kansas court of the substantive standard imposed by Kansas special education statutes, nor has the Kansas legislature made the kind of broad declaration of policy as did the North Carolina General Assembly. SeeDoe , 9 F.3d at 458 (in holding that the state did not impose a higher standard than the IDEA, the court observed that “there are no Tennessee state court decisions interpreting the special education statute in the manner suggested by the appellant”). -18- adopted a standard requiring Kansas schools to prov ide educational services to exceptional children at a higher level than the IDE A requires. 9

II. Adequacy of the IEPs In reviewing the adequacy of an IEP, “[w]e begin . . . by asking whether the State complied with IDEA procedures, including whether the IEP conformed with the requirements of the Act. We then determine whe ther the IEP was reasonably calculated to enable [the student] to receive educational benefits.” Urban v.-19-

Jefferson County Sch. Dist. R-1 , 89 F.3d 720, 726 (10th Cir. 1996) (citation omitted). We have held, however, that “[t]echnical deviations from the requirements of section 1401(a)(20) . . . do not re nder an IEP entirely invalid; to hold otherwise would ‘exalt form over substance.’” Id. (quoting Doe v. Defendant I , 898 F.2d 1186, 1190 (6th Cir. 1990)). The Suprem e Court has explained the importance of compliance with the IDE A’s procedural requirements in this way: the congressional emphasis upon full participation of concerned parties throughout the development of the IEP, as w ell as the requirements that state and local plans be submitte d to the Secretary for approval, demonstrates the legislative convicti on that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP. Rowley , 458 U.S. at 206. Moreover, if we are evaluating an IEP prospectivelyonly, we agree with the Third Circuit which has said that “‘the measure and adequacy of an IEP can only be determined as of the time it is offered to the student, and not at some later date. . . . Neither the statute nor reason counten ance “Monday Morning Quarterbacking” in evaluating the appropriateness o f a child’s placement.’” Carlisle Area Sch. , 62 F.3d at 534 (quoting Fuhrmann v. East Hanover Bd. of Educ. , 993 F.2d 1031, 1040 (3d Cir. 1993)); see also Roland M. v. Concord Sch.
Comm. , 910 F.2d 983, 992 (1st Cir. 1990) (“An IEP is a s napshot, not a-20-

retrospective.”). However, an IEP is a program, co nsisting of both the written IEP document, and the subsequent implementation of that document. While we evaluate the adequacy of the document from the pers pective of the time it is written, the implementation of the program is an on -going, dynamic activity, which obviously must be evaluated as such. See Dixie Snow Huefner, Judicial Review of the Special Education Program Requirement s Under the Education for All Handicapped Children Act: Where Have We Been a nd Where Should We Be Going? , 14 Harv. J.L. & Pub. Pol’y 483, 493 (1991). Thus , we do not hold that a school district can ignore the fact that an IEP is clearly failing, nor can it continue to implement year after year, without change, an IE P which fails to confer educational benefits on the student. The Kansas regulations specify in more detail than the relevant statutes what an IEP must contain:

(1) a statement of the child’s present level of edu cational performance. The statement shall include, as appro priate, the following information about the child: (A) health; (B) vision; (C) hearing; (D) social and emotional status; (E) gener al intelligence; (F) educational performance; (G) communicative status; (H) motor abilities; and (I) vocational skills; (2) a statement of annual goals which describe the educational performance anticipated within a year’s time; (3) a statement of short-term objectives which are measurable, and intermediate steps between the present level of performance and the annual goals;10Appendix C has been rewritten by the Office of Special Education Programs

(“OSEP”) in response to the 1997 Amendments. The Appendix C to which we refer accompanies the pre-Amendments version of the regulations. -21- (4) objective criteria, evaluation procedures, and data collection schedules for determining whether the sh ort-term objectives are being achieved; (5) a statement of the specific education services and related services needed by the child, even if not all of th ese services currently are available in the local education agen cy preparing the IEP. Any unique instructional media, methods, or b ehavior management procedures not ordinarily available to a ll students, but needed by this particular child for learning, shall be listed; (6) a description of the extent to which the child will participate in regular classroom instruction, and o ther academic and non-academic environments, with nonexceptional chil dren of the same age; (7) the projected date for the initiation of the pr escribed services and anticipated duration of the services, including a description of any extended school term services to be provided; and (8) for students age 14 and older, a statement of n eeded transition services. Kan. Admin. Regs. § 91-12-41(f). The Federal regulations echo the statutory requirem ents for an IEP, see 20 U.S.C. § 1401(a)(20); 34 C.F.R. § 300.346(a), but Appendix C to Part 300 of the federal regulations provides more detailed requirem ents in a question-and-answer format. 10 In response to a question about the required stat ement of the child’s present levels of educational performance, AppendixC leaves the content of such-22-

statements to “the discretion of participants in th e IEP meetings.” 34 C.F.R. § 300 App. C, question 36. It urges, however, the statement to “accurately describe the effect of the child’s disability on th e child’s performance in any area of education that is affected,” and avoid simple la bels like “mental retardation” or “deafness.” Id. It further says test scores are appropriately inc luded, but they should be self-explanatory or accompanied by an exp lanation. “[R]aw test scores would not usually be sufficient.” Id. Finally, “[t]here should be a direct relationship between the present levels of educatio nal performance and the other components of the IEP.” Id. The Appendix describes the purpose of the goals andobjectives requirement as providing “a way for the child’s tea cher(s) and parents to be able to track the child’s progress in special education. However, the goals and objectives in the IEP are not intended to be as spe cific as the goals and objectives that are normally found in daily, weekly, or monthl y instructional plans.” Id. question 37. The Appendix describes short term ins tructional objectives as “measurable, intermediate steps between the presentlevels of educational performance . . . and the annual goals,” which can “serve as milestones for measuring progress toward meeting the goals,” or “p rovide general benchmarks for determining progress toward meeting the annual goals.” Id. question 39. With respect to related services, the Appendix indi cates that “[t]he amount of-23-

services to be provided must be stated in the IEP.” Further, “[t]he amount of time to be committed to each of the various services to be provided must be (1) appropriate to that specific service, and (2) state d in the IEP in a manner that is clear to all who are involved.” Id. question 51. Finally, in response to the question whether there is a “prescribed format or length for an IEP,” the Appendix states: No. The format and length of an IEP are matters le ft to the discretion of State and local agencies. The IEP sh ould be as long as necessary to adequately describe a child’s program. However, as indicated [above] the IEP is not intended to be a d etailed instructional plan. The Federal IEP requirements c an usually be met in a one to three page form

. Id. question 56 (emphasis added).

A. Compliance with Procedural Requirements We consider first whether the IEPs conformed to the procedural requirements of the IDEA and Kansas law.

1. Present Levels of Performance Molly’s IEPs, as amended, contained a statement of her present levels of performance in a number of specific areas, includin g listing her strengths and needs. It included the pre-printed statement “See Special Ed. file for specialists’ reports.” Appellant’s App. Vol. 4 at 44. It descr ibed her general intelligence as-24-

“low-average to borderline ability.” Id. Under “Educational performance” it referenced scores ranging from 55 to 77 on various measures of educational achievement, such as reading and math. Id. They rated her motor skills as 5 years and 10 months. Id. at 66. The hearing officer determined that the statement o f present levels of educational performance was adequate. The reviewin g officer disagreed, finding that “[t]he strengths and needs listed do not accur ately or clearly describe the effects of M[olly]’s disability on her performance in the areas listed[;] [r]aw scores are reported to describe present levels of f unctioning[;] [and] [t]he raw scores reported are not self-explanatory and no exp lanation is included on the IEP.” Review Officer’s Decision at 15-16, Addendumto Appellant’s Br. at 40-
41. The district court in turn reversed the reviewing o fficer on this point, deciding that the O’Tooles “actively participated i n the formulation of [Molly’s] IEPs during which [her] present level of educationa l performance was thoroughly discussed and explained.” O’Toole , 963 F. Supp. at 1012. The court’s other rationale for reversing the reviewing officer on th is point was that Molly’s “IEPs also address all of the issues mentioned in [Kan. A dmin. Regs.] § 91-12-41(f)(1) with the requisite specificity.” Id.-25-

We agree with the reviewing officer that the IEP do es not clearly convey Molly’s present levels of educational performance i n a way that relates those present levels to her disability, nor does it, on i ts face, explain the import of the raw test scores contained therein. However, it doe s refer to the specialists’ reports, which presumably contain more detail and w hich the O’Tooles do not argue were unavailable for reference. Moreover, th ere is no doubt that Molly’s parents and her teachers were fully aware of Molly’ s present levels of educational performance and discussed them in detail in formulating her IEPs. Given that one of the primary goals of the procedural requirements of the IDEA is to ensure parental participation in the formulation of a chil d’s IEP, and to ensure that the program developed actually reflects, and is based upon, the child’s present levels of performance, we conclude that the statement of p resent levels of performance in the IEPs did not violate the procedural requirem ents of the IDEA and Kansas law.

2. Annual Goals and Short-Term Objectives The February IEP listed six annual goals: (1) to i mprove reading skills; (2) to improve English language skills; (3) to faci litate academics; (4) to facilitate language; (5) to improve articulation; and (6) to e nhance sport activities. Appellant’s App. Vol. 4 at 45. It listed three ite ms under “Long-range planning”:11 These short-term objectives were:

A—demonstrate mastery – 89%– on her end-of-book Whistles & Dreams test. B—pronounce each word and use it in a complete oral sentence 4 times during each unit. C—demonstrate mastery of Focus Up & Over end of book test of 89% acc[uracy]. D—sequence correctly or answer [questions] relating to time sequence with 90% accuracy. E—answer steps in a process questions with 90% accuracy. F—show comprehension of her reading selections by being able to draw an appropriate conclusion to a story with 100% accuracy. G—correctly identify different referents (he, she, there, . . .) within her reading selections with 100% accuracy. Appellant’s App. Vol. 4 at 48. The IEP stated that she was to pursue these short-term objectives five hours per week. Id.

12 These short-term objectives were: A—capitalize proper nouns: days & months, I, states & cities, streets, and names with 90% acc[uracy]. B—use ending punctuation correctly to 100% accuracy (.?) C—identify nouns with 100% acc[uracy]. D—identify verbs with 100% acc[uracy]. E—Begin a sentence with a capital letter with 100% accuracy. F—discontinue writing run-on sentences by not using the word “and” in her writings to 80% accuracy. (continued...) -26- (1) “improve compliance behavior”; (2) “improve sel f concept”; and (3) “improve academic skills.” Id. at 46. To further the first annual goal (improvin g reading skills), the IEP listed seven short-term objectives

. 11 To implement her second annual goal (improving English language skills), the IEP listed eight short-term objectives. 12 To implement her third annual goal (facilitating academics), the12 (...continued)

G—write in her journal 3 to 4 times a week. H—improve her dictionary skills to 100% accuracy to the 3rd letter, lap, lag, laugh. Appellant’s App. Vol. 4 at 49. The IEP stated that she was to pursue these short-term objectives 21⁄2 hours per week. Id.

13 These short-term objectives were: A—have a modified Social Studies program. B—be excused from daily science work for the remainder of the 92-93 school year – remaining in the mainstream for “special projects, presentations, and demonstrations” at her teachers’ discretion. C—have a modified spelling list [start with 3 words and build up to 10 words]. D—review any vocabulary or concept from within her mainstream classes as needed. E—memorize 0-12 multiplication tests to 100% accuracy. Appellant’s App. Vol. 4 at 50. The IEP stated she was to pursue these short-term objectives 31⁄2 hours per week. Id.

14 These short-term objectives were: 1) Molly will demonstrate understanding of basic concepts at 90% accuracy[:] a) row b) farthest c) alike d) skip e) pair f) narrow g) few. 2) Molly will show understanding of the following language structures at 90% accuracy[:] a) passive-reversible — ex) The boy followed the dog. b) complex — relative clauses ex) The boy who got hit went to the nurse. c) deleted sentences — The boy hit the girl and ran away. Molly will show understanding of teacher selected vocabulary at 90% accuracy. (continued...) -27- IEP listed five short-term objectives. 13 To implement her fourth annual goal (facilitating language), Molly’s IEP listed two sho rt-term objectives. 14 To14 (...continued)

Appellant’s App. Vol. 4 at 51. The IEP stated Molly was to pursue these short-term objectives for 21⁄2 hours per week.

15 These short-term objectives were: 1) Molly will correctly articulate words from reading units at 90% accuracy as judged by SLP. 2) Molly will use appropriate loudness of speech as judged by SLP in speech room 90% of the time. 3) Molly will use s & z and sh in sentences at 90% accuracy. Appellant’s App. Vol. 4 at 52. The IEP stated she was to pursue these objectives for 21⁄2 hours per week.

16 These short-term objectives were: A—participate helping with younger children in a physical activity [younger P.E. class]. B—get involved in an outside sports activity this summer [Dad will set this up]. Appellant’s App. Vol. 4 at 53. -28- implement her fifth annual goal (improving articulation), Molly’s IEP listed three short-term objectives. 15 Finally, to implement her sixth annual goal (enha ncing sports activities), Molly’s IEP listed two short-te rm objectives. 16 The August 1993 addendum listed five annual goals: 1) to improve social skills; 2) to present functional level curriculum; 3) to facilitate language; 4) to improve articulation; and 5) to enhance sports acti vities. It reduced her time in regular classes from 56% to 25%. It contained a nu mber of short-term objectives17To implement the goal of improving social skills, the Addendum to the IEP

listed: a. At the end of the first 9 wks Molly will have a “Circle of Friends” with whom to interact. b. At the end of the semester, Molly will play a game with peers after initiating this activity. c. At the end of the 3rd nine weeks, Molly will appropriately take turns. d. At the end of the school year she will interact independently with her circle of friends. Appellant’s App. Vol. 4 at 72. To implement the annual goal of presenting functional level curriculum, the Addendum listed the following short-term objectives: Appropriate curriculum will be identified in all academic areas. This will be done on a year long basis. Objectives will be successful increments toward achieving the curriculum. a. Will demonstrate that she has achieved 25% of the curriculum via passing assessments at 80% level. b. Will demonstrate achievement on 50% of her curriculum at semester via passing assessment at 80% level. c. Will demonstrate achievement on 75% of her curriculum at 3rd grading period via passing assessment at 80% level. d. Will demonstrate achievement on 100% of her curriculum at year end via passing assessment at 80% level. Id. at 74. On a page labeled “Recommendations to Enhance the Instructional Program” the Addendum listed the following: 1. Modify Molly’s curriculum to her functioning level. 2. Consider implementing a “Circle of Friends.” 3. Increase time in Resource Room to 240 minutes/day. 4. Implement small group instruction with students at her functioning level. 5. Occupational Therapist screen current motor functioning. 6. Behavior Specialist consult with team as appropriate. 7. School Social Work services as appropriate. (continued...) -29- to implement each annual goal. 17It increased the number of related services to be17 (...continued)

8. School counseling as appropriate. 9. Annual audiology evaluation. 10. Inclusion facilitator as appropriate. 11. Continue current placement with amended goals and recommendation implemented. Id. at 70. -30- made available to Molly. The hearing officer held that while “more specific or more carefully tailored information could be provided . . . [t]her e is no rational basis to believe that procedural inadequacies compromised the student’s right to an appropriate education or that the parents’ opportunity to parti cipate in the formulation process has been hampered.” Memorandum and Order at 18, Ad dendum to Appellant’s Br. at 18. The reviewing officer held that certain of the short-term objectives listed under the annual goals did not set intermedi ate steps between the present levels of performance and the goals and/or did not “include objective criteria or evaluation procedures and data collection schedules for determining at least every 12 weeks whether the short-term objectives are bein g achieved.” Review Officer’s Decision at 14, Addendum to Appellant’s B r. at 39. The officer also concluded that the five annual goals were inadequat e, as they “give the parent absolutely no idea of what his child is supposed to be able to accomplish within a year’s time.” Id. at 16, Addendum to Appellant’s Br. at 41. The di strict court-31-

reversed the reviewing officer, stating “[b]ecause there is no legal authority [requiring the District to set more specific annual goals] and because the plaintiff’s parents played an active role in the fo rmulation of the plaintiff’s IEP, the court concludes that the plaintiff’s IEPs adequ ately set forth annual goals.” O’Toole , 963 F. Supp. at 1013. With respect to the short- term objectives, the court concluded that: [w]hile most of [them] do not contain a specific me chanism under which [Molly’s] progress is tested every twelve wee ks, they all contain objective criteria by which [her] progress can be measured. Moreover, the uncontroverted evidence indicates that one of the [District’s] representatives discussed [Molly’s] pr ogress with Mr. O’Toole in detail more than once every twelve weeks . Thus, although [Molly’s] IEPs did not specifically provid e for progress reports every twelve weeks, Mr. O’Toole clearly rec eived such and then some. Id. We agree with the district court that the annual go als and short-term objectives comply with the procedural requirements of the IDEA and Kansas law. As the court noted, there is no legal authority req uiring a particular level of specificity in the statement of annual goals. Whil e some of the goals were general (to facilitate academics, to facilitate lan guage, to present functional level curriculum), others clearly conveyed an articulable goal—to improve reading skills, to improve English language skills, to impr ove articulation, to improve social skills, to enhance sports activities. Moreo ver, while we agree that the18 There is no statutory requirement that evaluation of progress toward the goals be

made every twelve weeks. However, the District’s IEP monitoring forms stated that they would be completed every twelve weeks. Def.’s Ex. 54, Appellant’s App. Vol. 4 at 56. The 1997 Amendments require parents to be given progress reports on their child as often as the school provides such progress reports to parents of non-disabled children. See20 U.S.C. § 1414(d)(1)(A)(viii)(II)(aa) (as amended). -32- short-term objectives for implementing the annual g oals did not contain specific criteria for evaluating progress at least every twelve weeks , they contained either explicit or implicit criteria for evaluating genera l progress toward achieving the goals. 18 Given that IEPs are not required to provide the l evel of detail found in monthly instructional plans, we cannot say that the goals and objectives were inadequate. While we recognize that “due weight” m ust be accorded the reviewing officer’s conclusion of inadequacy, our o wn review of the record convinces us that we cannot draw the same legal con clusion from the words contained in the IEPs.

3. Related Services A FAPE under the IDEA includes special education an d related services, if necessary. 20 U.S.C. §§ 1412, 1401(a)(18). The re gulations define “related services” as including “transportation and . . . sp eech pathology and audiology, psychological services, physical and occupational t herapy, . . . counseling services, . . . school health services, social workservices in schools, and parent-33-

counseling and training.” 34 C.F.R. § 300.16(a). State regulations require “a statement of the specific education services and r elated services needed by the child.” Kan. Admin. Regs. § 91-12-41(f)(5). Molly’s IEPs stated that she would receive speech/l anguage services for 30 minutes per day and transportation services. They also provided that an occupational therapist would “screen current motor functioning;” Molly would receive school social work services, school counsel ing and an inclusion facilitator “as appropriate;” she would receive an annual audio logy evaluation; and a behavior specialist would consult with the IEP team“as appropriate.” Appellant’s App. Vol. 4 at 70. The hearing officer found that “as appropriate” was “not a clear indication of the level of services to be provided.” Memorand um and Order at 19, Addendum to Appellant’s Br. at 19. She also found, however, that “[n]o evidence was introduced that a related service was requested and denied.” Id. The reviewing officer disagreed with the hearing office r’s ultimate disposition of this issue, finding that the IEPs did not meet the proce dural requirements in the IDEA and Kansas law for describing the related services, inasmuch as “[o]nly the description of speech/language services includes a statement of the amount of services to be provided.” Review Officer’s Decisio n at 17, Addendum to19 Of course, with respect to the time period after the August IEP meeting, when the

listing of related services “as appropriate” was added to Molly’s IEP, there is no evidence of the denial of a related service because the O’Tooles placed Molly at the CID. Thus, there was never an opportunity for the District to fulfill its obligation to provide services “as appropriate.” With respect to the period before the August IEP meeting, the O’Tooles present no evidence of the denial of a related service they sought. -34- Appellant’s Br. at 42. The district court held that the statement of related services complied with the IDEA and Kansas law because [t]he uncontroverted evidence indicates that [the O ’Tooles] had ample opportunity to explore the related services p rovided to [Molly] at [Molly’s] IEP meetings and that [Molly] was neve r denied any requested related services. Moreover, the stateme nts contained in the . . . IEPs describing the related services sati sfy the requirements in 34 C.F.R. § 300.346(a)(3) and K[an]. A[dmin]. R[ eg]. § 91-12- 41(f)(5). O’Toole , 963 F. Supp. at 1013-14. We agree with the reviewing officer that the term “ as appropriate” fails adequately to specify the level of related services the District committed to provide, as required by the IDEA and Kansas law. H owever, the record supports the findings by the hearing officer and the distric t court that Molly was never denied any related service her parents sought for h er. 19 “It is important to distinguish between the statement of [related] services in the IEP and the provision of

[related] services.” Urban , 89 F.3d at 726 (emphasis added). While we do not condone statements that related services will be provided “as appropriate,” and while we recognize that the Distr ict should specify in its IEPs20 The O’Tooles argue that the record shows Molly had made no progress or

actually regressed during the year. They refer us to Defendant’s Exhibits 56 through 62. Those exhibits in fact show improvement in raw scores on all but one testing instrument. Appellant’s App. Vol. 4 at 79-85. The O’Tooles suggest that by applying the standard (continued...) -35- the level at which such services will be provided, we hold that these technical irregularities did not produce, in this case, a vio lation of Kansas law or the IDEA.
See id. ; see also Roland M. , 910 F.2d at 994 (“Before an IEP is set aside, the re must be some rational basis to believe that procedu ral inadequacies compromised the pupil’s right to an appropriate education, seri ously hampered the parents’ opportunity to participate in the formulation proce ss, or caused a deprivation of educational benefits.”)
.

B. Whether the IEPs Were Reasonably Calculated to Provide a FAPE Besides having to consider procedural deficiencies, we must also consider whether the IEPs were reasonably calculated to prov ide a FAPE and whether Molly actually received educational benefits. See Urban , 89 F.3d at 726. Both the hearing officer and the reviewing officer found that Molly made various degrees of progress during the 1993 school year. While her progress was not steady in all areas, and her parents testified as t o the general difficulties, emotional and otherwise, that she had with school a nd school work, the record fully supports the officers’ conclusions by a prepo nderance of the evidence. 2020 (...continued)

error of measurement, the test data could show regression or lack of progress. They do not, however, pursue this argument in a helpful way. They do not provide the actual standard error of measurement for these testing instruments, nor do they explain why these particular instruments are in fact the type suited to show educational progress. While the improvement may not have been as great as the O’Tooles wished or expected, the test scores do not show regression or failure to progress. Additionally, the District’s IEP monitoring forms show that Molly was making adequate progress on most of her short-term objectives. Id. at 40, 56. The fact that she had not fully met most of those objectives does not indicate she was not getting educational benefit. As indicated, both administrative officers found she had received educational benefit. Moreover, we cannot overlook the fact that immediately prior to the time period in question, Molly’s biological mother had died, and Mr. O’Toole testified that Molly was understandably adversely affected by that tragedy. -36- The record also supports the finding, made by both administrative officers and the district court, that Molly’s parents were in consta nt communication with her teachers and were aware of Molly’s status at school

. Additionally, the August addendum to Molly’s IEP re flected a real attempt by the District to respond to the O’Tooles’ frustration with her progress. It incorporated a number of modifications based upon M olly’s CID evaluation, reduced her time in the regular classroom, provided more related services, and modified her curricular goals to reflect her functi oning level. We must evaluate this IEP prospectively only, however, since the O’T ooles’ removal of Molly immediately following the August IEP meeting render ed the District unable to actually implement the amended IEP. See Carlisle , 62 F.3d at 534. Viewed from-37-

that perspective, while some of the stated goals we re more general than the O’Tooles desired, we conclude that it was reasonabl y calculated to provide Molly with a FAPE. In sum, our review of the record in t his case convinces us that Molly’s IEPs, even if “not optimal,” id. at 535, were calculated to, and did, confer some educational benefits, as required by the IDEA and Kansas law. Furthermore, the fact that she made more progress, and by her parents’ account was happier, at the CID, does not compel th e conclusion that the CID was the appropriate placement for her under the IDEA an d Kansas law, and that her IEP as implemented at SEC was inappropriate. As we have said, “‘the “appropriate” education required by the Act is not one which is guaranteed to maximize the child’s potential.’” Urban , 89 F.3d at 727 (quoting Johnson v. Independent Sch. Dist. No. 4 , 921 F.2d 1022, 1025-26 (10th Cir. 1990)). And as the Second Circuit recently acknowledged, “[a] disa bled child is ‘not . . . entitled to placement in a residential school merely because the latter would more nearly enable the child to reach his or her full potential .’” Walczak v. Florida Union Free Sch. Dist. , __ F.3d __, No. 97-7155, 1998 WL 177971, at *20 ( 2d Cir. April 16, 1998) (quoting Abrahamson v. Hershman , 701 F.2d 223, 227 (1st Cir. 1983)); see also Heather S. , 125 F.3d at 1057 (“The school district is require d by the statute and regulations to provide an appropriate e ducation, not the best possible education, or the placement the parents prefer.”) ( citation omitted); Fort Zumwalt21 At oral argument the O’Tooles’ counsel suggested that the additional evidence is

evidence on how the introduction of sign language affects the spoken language skills of a hearing impaired child. -38- Sch. Dist. , 119 F.3d at 613 (“IDEA does not require the best possible education or superior results.”). Accordingly, an IEP is not in adequate “simply because parents show that a child makes better progress in a different program.” Walczak , 1998 WL 177971, at *21; see also Fuhrmann , 993 F.2d at 1039-40. We therefore hold that the record supports the conc lusion that Molly’s IEPs were reasonably calculated to confer educational be nefit on her and she made sufficient progress toward achieving her IEP goals in the 1993 school year. The IDEA and Kansas law require no more.

III. Exclusion of Evidence The O’Tooles next argue that the district court an d the hearing officer violated the IDEA by refusing to permit them to sub mit additional evidence, including evidence “relating to the impact of the i ntroduction of sign language into a hearing impaired child’s educational program .” Appellant’s Br. at 41. The O’Tooles first argue the district court erred i n refusing to admit additional evidence, although they do not specify e xactly what evidence they wished to have admitted. 21 As the District points out, the district court ac tually denied the O’Tooles’ motion for an enlargement of t ime in which to file a formal-39-

written request to submit additional evidence. Aft er granting summary judgment to the District, the district court held that the D istrict’s motion to prevent the O’Tooles from submitting additional evidence was mo ot. 20 U.S.C. § 1415(e)(2) provides that the district c ourt in an IDEA case “shall receive the records of the administrative pr oceedings [and] shall hear additional evidence at the request of a party.” We have held that the district court has discretion to determine if such additional evid ence is necessary. See Murray , 51 F.3d at 927; see also Monticello Sch. Dist. No. 25 v. George L. , 102 F.3d 895, 901 (7th Cir. 1996); Susan N. v. Wilson Sch. Dist. , 70 F.3d 751, 759-60 (3d Cir. 1995); Ojai Unified Sch. Dist. v. Jackson , 4 F.3d 1467, 1473 (9th Cir. 1993). The district court denied the O’Tooles’ motion for enla rgement of time to file a formal written request to present additional evidence beca use their counsel failed to explain “why he did not timely identify and produce such evidence during the discovery period, which closed over three months pr ior to the filing of this motion.” O’Toole , 963 F. Supp. at 1014. We review motions for an e nlargement of time for abuse of discretion. Buchanan v. Sherr ill , 51 F.3d 227, 228 (10th Cir. 1995). We find no abuse of discretion in the distri ct court’s decision in this case not to enlarge the time in which the O’Tooles could seek to submit additional evidence.-40-

The O’Tooles also argue that the hearing officer er red in precluding the presentation of “evidence as relates to the impact that sign language has on the development of spoken language skills.” Appellant’ s Br. at 41. They acknowledge that the Supreme Court has said that “ once a court determines that the requirements of the Act have been met, question s of methodology are for resolution by the States.” Rowley , 458 U.S. at 208; see also Lachman v. Illinois State Bd. of Educ. , 852 F.2d 290, 292 (7th Cir. 1988). They also do not dispute that, in general, the debate about whether sign lan guage or spoken language is the best way to educate the hearing impaired involves adispute about methodology. The O’Tooles attempt to distinguish Rowleyand the other cases by arguing that this case does not involve a dispute about the meth odology to be used in an appropriate placement, or in choosing between two appropriate placements, but rather, in this case, the choice of methodology itself renders the District’s placement (i.e., at SEC) inappropriate. Despite the O’Tooles’ effort to cast this methodolo gical debate as a debate about appropriate placement, we conclude that, in r eality, the O’Tooles’ complaint relates to the best methodology for educating a hearing impaired child. That is precisely the kind of issue which is proper ly resolved by local educators and experts. Thus, we perceive no error in the hea ring officer’s decision not to permit the introduction of evidence as to which met hodology best serves a hearing22As the Supreme Court acknowledged in Rowley , the question of which method

is best for educating the hearing impaired has been “long debated among scholars.” Rowley , 458 U.S. at 207 n.29. -41- impaired child. 22 We have held that the IDEA was not violated; hav ing held so, we decline to find error in the refusal by the admi nistrative officers to engage in a dispute about methodology.

IV. District Court’s Reliance on Local Rule Finally, the O’Tooles argue the district court erre d in relying on its local rule, D. Kan. R. 56.1, to exclude evidence in its c onsideration of the District’s motion for summary judgment. Rule 56.1 requires mo tions for summary judgment to identify disputed facts and provide citations to the record in support thereof. The O’Tooles’ argument appears to be that the distr ict court, in requiring compliance with Rule 56.1 and excluding evidence su bmitted in violation of the rule, somehow violated its obligation under the IDE A to conduct a modified de novo review of the administrative record and any ot her materials submitted by the parties and accepted by the court. The O’Tooles do not dispute, as they could not, that summary judgment can be granted in IDEA cases. However, as everyone acknowledges, summary judgment in such cases is somewhat unusual, in light of the district court’s obligation to independently review the record and r each a decision based on a-42-

preponderance of the evidence. We perceive neitheran inherent inconsistency between following a rule like Rule 56.1 and followi ng the requirements of the IDEA, nor do we perceive any actual failure by the district court in this case to exercise its review properly under the IDEA. In any event, we have conducted our own independent review of the record in affirmi ng the judgment of the district

court.

CONCLUSION For the foregoing reasons, the judgment of the district court is AFFIRMED.