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

### DEC 17 1999 

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

TENTH CIRCUIT

SUSAN ERICKSON, individually and on behalf of Michael Erickson, Plaintiff-Appellant,

v. ALBUQUERQUE PUBLIC SCHOOLS, Defendant-Appellee. No. 98-2168

APPEAL FROM UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. CIV-96-1067-MV/RLP)

Maureen A. Sanders, Sanders & Westbrook, P.C., (Lin da M. Vanzi, Vanzi & Gagne, P.C., with her on the briefs), Albuquerque, New Mexico, for the appellant. Michael L. Carrico, Modrall, Sperling, Roehl, Harri s & Sisk, P.A., Albuquerque, New Mexico, for the appellee.

Before KELLY, HOLLOWAY, and BRISCOE , Circuit Judges.

BRISCOE , Circuit Judge.

Susan Erickson, individually and on behalf of her s on, Michael Erickson,1 The IDEA was substantially amended in 1997. See Individuals with

Disabilities Education Act Amendments of 1997, Pub. L. No. 105-17, 111 Stat. 37 (1997). The Amendments do not apply retroactively. Fowler v. Unified Sch. Dist. No. 259 , 128 F.3d 1431, 1436 (10th Cir. 1997). Because th e relevant events in this case occurred before the effective d ate of the amendments, we apply the pre-amendments version of the Act. Id. All citations within this opinion are to the pre-amendments version. We note that the IDEA provisions relevant to this appeal were not substantively chan ged by the amendments. 2 brought this action against the Albuquerque Public Schools (“the school district”) for relief pursuant to the Individuals with Disabil ities Education Act (IDEA), 20 U.S.C. § 1400 et seq. 1 Erickson appeals the district court’s determinati on that Michael was not entitled to compensatory education because the school district did not violate the IDEA and New Mexico stay-put pr ovisions. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm the district court.
I. Michael was 13 years old and in the seventh grade w hen this case began in 1995. He had been diagnosed with bipolar disorder and learning disabilities, which allowed him the protections of the IDEA. 20 U.S.C. § 1401(a)(1)(A)(i). The IDEA provides federal funds to the states for the education of children with disabilities, guaranteeing disabled children betwee n the ages of three and twentyone access to a free, appropriate public education (FAPE). 20 U.S.C. §§ 1400(c), 1412(1). A FAPE “emphasizes special education and related services designed to meet [the child’s] unique needs.” 20 U.S.C. § 1400 (c). A student’s needs in2The June 1995 IEP also provided for eight session s of hippotherapy

during the summer. This specific provision ended J uly 31, 1995, so it is not relevant to this appeal.

3 The IEP meeting was originally scheduled for Augu st 1995, but was continued to September 1995. 3 obtaining a FAPE are laid out in an individualized education program (IEP). 20 U.S.C. § 1401(a)(20). An IEP is a written statemen t developed in a meeting attended by the student’s teacher, a special educat ion professional, and the student’s parents that summarizes the student’s abi lities, outlines goals for the student’s education, specifies the services the stu dent will receive to achieve those goals, and establishes criteria to evaluate the student’s progress. Id. ; 20 U.S.C. § 1414(a)(5). Michael had received occupational therapy since he was in pre-school. In October 1994, his IEP provided for two hours of occ upational therapy per week, without specifying the type of occupational therapyto be provided. One of the hours provided was hippotherapy, an occupational th erapy involving horses. Michael’s June 1995 IEP again provided for two hour s of occupational therapy per week, with the type of occupational therapy not specified. 2 The June 1995 IEP was effective from August 1995 to June 1996. I n September 1995, an IEP meeting was held in which the school district reduc ed Michael’s occupational therapy to one hour per week and discontinued hippotherapy. 3 Erickson objected to the elimination of hippotherapy, but agreed to the reduction to one hour of4

occupational therapy per week. The school districtimmediately canceled Michael’s hippotherapy. Erickson requested a due process hearing, arguing t he school district violated the IDEA by terminating hippotherapy, disc ontinuing hippotherapy during the pendency of the appeal, and failing to p rovide Michael with a FAPE.
See 20 U.S.C. § 1415(b)(2) (providing for appeal to impartial hearing officer). The hearing officer found the school district violated the IDEA’s stay-put provision, 20 U.S.C. § 1415(e)(3), by discontinuing hippotherapy during the pendency of the administrative proceeding. The hearing officer also found the school district failed to make an individualized de cision regarding Michael’s educational needs by predetermining that occupation al therapy would be provided at school, rather than at an outside facility. Bec ause of these violations, the hearing officer awarded Michael compensatory educat ion of one semester of hippotherapy. The hearing officer found that the s chool district provided Michael with a FAPE. The school district pursued an administrative appea l of the hearing officer’s conclusions that the school district fail ed to make an individualized decision regarding Michael’s educational needs, pre determined the occupational therapy to be provided, and violated the stay-put p rovision. The school district also appealed the award of compensatory education. See 20 U.S.C. § 1415(b),5

(c) (providing for appeal from hearing officer). T he administrative appeal officer found the school district’s predetermination that M ichael’s occupational therapy would be provided at school did not violate the IDE A, because school districts can change the location of services. The appeal of ficer concluded the September 1995 IEP provided Michael with a FAPE and the schoo l district did not violate the stay-put provisions, so Michael was not entitle d to compensatory education. Erickson then filed a civil complaint pursuant to 2 0 U.S.C. § 1415(e)(2), alleging the appeal officer erred in finding that the school district did not violate the stay-put provision, that the school district wa s not required to provide compensatory education, that the school district di d not predetermine Michael’s educational placement, and that Michael received a FAPE. The school district moved for summary judgment, arguing that it provide d Michael a FAPE, that the elimination of hippotherapy was not a change in ed ucational placement so the stay-put provision did not apply, and that Michael was not entitled to compensatory education. The district court granted the school district’s mo tion for summary judgment, adopting the findings of fact and conclus ions of law of the appeal officer, with one exception not relevant to this ap peal (involving payment of a psychologist for preparation and attendance at IEP meetings). The district court found the stay-put provision did not apply because elimination of hippotherapy4Erickson does argue that a procedural violation o f the IDEA precludes a

finding that the school district provided a FAPE. Erickson erroneously cites the Supreme Court’s decision in Board of Education v. Rowley , 458 U.S. 176 (1982), as providing a two-part test to determine whether aschool district has provided a student with a FAPE. The Court in Rowley set out two considerations for courts in suits under § 1415(e)(2). First, has the State complied with the procedures set forth in the Act?” Id. . at 206. “Second, is the individualized education al program developed through the Act’s procedures reas onably calculated to enable the child to receive educational benefits?” Id. at 206-07. When both requirements are met, the court can require no more. Id. at 207. Although a failure to meet one of these considerations may res ult in court ordered relief, it does not preclude a finding that a school district provided a FAPE under the IDEA.

5 Erickson contends the school district’s motion wa s only for partial summary judgment. The school district’s motion sou ght a determination that it provided Michael a FAPE, did not violate the stay-p ut provision, and Michael was not entitled to compensatory education. Althou gh Erickson asserts that disputed facts remain, the relevant facts were undi sputed: The school district (continued...) 6 was merely a change in methodology of services, nota change in educational placement. The district court concluded Michael wa s not entitled to compensatory education because he was not denied a FAPE. Erickson appeals the determination that Michael was not entitled to compensatory education. Erickson does not appeal the district court’s concl usion that the school district’s provision of services to Michael complied with the IDEA’s substantive requirement of a FAPE. 4
II. We are reviewing the district court’s grant of summ ary judgment to the school district. 5 Summary judgment is appropriate if “there is no g enuine issue5 (...continued)

reduced the number of hours of Michael’s occupation al therapy, eliminated hippotherapy, and did not provide hippotherapy duri ng the pendency of the administrative appeal. The school district’s motio n for summary judgment included all issues necessary to dispose of the act ion.

6The school district asks this court to depart fro m the standard enunciated in Murray and instead apply a clear error standard of review . However, one panel of this court may not overrule another panel, so the Murray standard applies. See United States v. Hargus , 128 F.3d 1358, 1364 (10th Cir. 1997), cert. denied , 118 S. Ct. 1526 (1998). Erickson contends the di strict court did not (continued...) 7 as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In reviewi ng a challenge under the IDEA, the district court engages in a modified de novo re view, in which it must “independently review the evidence contained in the administrative record, accept and review additional evidence, if necessary, and m ake a decision based on the preponderance of the evidence, while giving ‘due we ight’ to the administrative proceedings below.” Murray v. Montrose County Sch. Dist. RE-1J , 51 F.3d 921, 927 (10th Cir. 1995). We engage in de novo review of the district court’s grant of summary judgment, applying the same standard as the district court. Id. at 927-28. We give due weight to the appeal officer’s decision on the issues with which she disagreed with the hearing officer, unles s the hearing officer’s decisions involved credibility determinations and the record supports the reviewing officer’s decision. O’Toole v. Olathe Dist. Schs. Unified Sch. Dist.
No. 233 , 144 F.3d 692, 699 (10th Cir. 1998). 66 (...continued)

apply the correct standard of review and summarily dismissed her complaint without explanation. The district court thoroughlydetailed the facts of the case, acknowledged the appropriate standard of review, an d stated it had reviewed the due process hearing record, the administrative appe al record, the briefs on summary judgment, and the relevant case law. The d istrict court then adopted the findings of fact and conclusions of law of the appe al officer, with one exception. The district court sufficiently enunciated its reas oning for this court to review its decision.

7Effective September 30, 1997, the New Mexico stay -put provision no (continued...) 8 The Stay-Put Provision The first issue is whether the school district viol ated the stay-put provision by failing to provide hippotherapy to Michael durin g Erickson’s appeal. Both the IDEA and New Mexico regulations contain a stay-put provision for the pendency of appeals of educational services. The IDEA provi des that “during the pendency of any proceedings conducted pursuant to this secti on, unless the . . . agency and the parents . . . otherwise agree, the child shall remain in the then current educational placement of such child . . . .” 20 U.S.C. § 1415(e)(3)(A) (emphasis added). New Mexico Regulations provide that “[d]ur ing the pendency of any administrative or judicial proceeding regarding a h earing, unless the public agency and the parents of the child agree otherwise , the child involved in the hearing must have his or her present delivery of services continued.” New Mexico State Bd. of Educ. Reg. 90-2, amend. 5, Sect ion III (Q) (1994) (emphasis added). 7Erickson contends the stay-put provisions require d the school district to7 (...continued)

longer contains the term “present delivery of servi ces.” The regulation now follows the language of the IDEA and provides that “[d]uring the pendency of any administrative or judicial proceeding(s) govern ed by this regulation, the child must remain in his or her present educational placement unless the parent and the public agency agree otherwise or unless ordered by a hearing officer or court.” New Mexico State Bd. of Educ. Reg., § 10.11 (emphas is added).

8 Erickson signed the September 1995 IEP, but objec ted on the form to the “delivery model for OT.” The parties have not argu ed whether this had the effect of making the September 1995 IEP entirely effective or whether the June 1995 IEP continued in effect for failure of the parties to reach an agreement in September. However, the outcome is the same whethe r we consider the June 1995 IEP or the September 1995 IEP as determinative of Michael’s current educational placement or present delivery of servic es because both provide for occupational therapy, without specifying a type of occupational therapy. 9 continue providing two hours of occupational therap y per week, including one hour of hippotherapy, until her appeal was resolved. 8 The stay-put provision does not apply when the pare nt and the school district agree to changes in the services previousl y delivered. Erickson agreed to a reduction from two hours to one hour of occupatio nal therapy per week. Because the school district and Erickson agreed, implementation of the reduction of hours did not violate the stay-put provision. T he issue is whether the cancellation of hippotherapy violated the stay-put provision. The district court and the appeal officer found hippotherapy was a tre atment modality, not an educational placement or service delivery provision

. The purpose of the stay-put provision is to preventschool districts from “effecting unilateral change in a child’s educational program.” Susquenita Sch.10

Dist. v. Raelee S. , 96 F.3d 78, 83 (3d Cir. 1996) (quotation omitted) . The IDEA does not define “current educational placement” butsome courts hold that the dispositive factor is the IEP in place when the stay-put provision is invoked. See id. (quotation omitted). Although Erickson agreed to a reduction of occupational therapy to one hour, she did object to the eliminat ion of hippotherapy. The IEP provided for occupational therapy, but did not spec ify the providers or modalities. The elimination of hippotherapy, when occupational therapy was still provided, would not contravene the IEP. Other circuits use a fact-driven approach in stay-p ut cases, defining educational placement as “something more than the a ctual school attended by the child and something less than the child’s ultimate educational goals.” Board of Educ. of Community High Sch. Dist. No. 218 v. Illinois State Bd. of Educ. , 103 F.3d 545, 549 (7th Cir. 1996). Looking at the fact s, the school district continued to provide Michael with occupational therapy aimed at the goals listed in Michael’s IEP. An educational placement is changedwhen a fundamental change in, or elimination of, a basic element of the educational program has occurred. Sherri A.D. v. Kirby , 975 F.2d 193, 206 (5th Cir. 1992). The school di strict continued to provide Michael with occupational ther apy. Although in a different form than hippotherapy, the therapy was intended to address the same therapy issues as hippotherapy without changing a basic ele ment of Michael’s educational11

program. The school district did not violate the s tay-put provision by discontinuing hippotherapy while continuing to prov ide occupational therapy. Erickson then argues the “present delivery of servi ces” language in the New Mexico stay-put provision is broader than the I DEA stay-put requirement. “‘State standards that impose a greater duty to edu cate disabled children, if they are not inconsistent with federal standards, are en forceable in federal court under the IDEA.’” Fowler v. Unified Sch. Dist. No. 259 , 128 F.3d 1431, 1438 (10th Cir. 1997) (quoting Seattle Sch. Dist. No. 1 v. B.S. , 82 F.3d 1493, 1499 n.2 (9th Cir. 1996)). This issue presents a question of statutory interpretation to which we apply a de novo standard of review. See Mrs. B. v. Milford Bd. of Educ. , 103 F.3d 1114, 1122 (2d Cir. 1997) (stating that “the ‘ due weight’ we ordinarily must give to the state administrative proceedings is notimplicated . . . because . . . the proper interpretation of the federal statute and it s requirements” concerns an issue of law). Erickson offers no evidence of legi slative intent to support her proposition that the New Mexico provision was inten ded to create greater protection than the IDEA. The New Mexico regulations do not define “present d elivery of services” or “services.” The New Mexico regulations do requi re an IEP to contain “a statement of the specific special education and rel ated service(s) to be provided to the child.” New Mexico State Bd. of Educ. Reg. 90-2, amend. 5, Section12

IV(B)(G)(3) (1994). “Related services” are those s ervices determined during the IEP meeting as “required for a child with a disabil ity to benefit from special education,” and include occupational therapy. Id. at Section I(AA). The New Mexico stay-put provision required the school distr ict to maintain the present delivery of services. Michael’s present delivery o f services, as determined in his IEP, was one hour of occupational therapy; his IEP did not specify hippotherapy as necessary for him to benefit from special educat ion. The school district continued providing occupational therapy during the pendency of the appeal and did not violate the New Mexico stay-put provision. Individualized Placement Decision The second issue we face is whether the school dist rict made an individualized placement decision concerning Michae l. Erickson contends that before the September 1995 IEP meeting, the school d istrict decided to provide occupational therapy only at the school and predete rmined that it would decrease the amount of Michael’s occupational therapy and el iminate hippotherapy. Erickson raised this issue in her civil complaint, but the school district did not seek summary judgment on whether it had provided an individualized placement decision. However, the school district argued, andthe district court found, that compensatory education is not an appropriate remedyfor a procedural violation of the IDEA. The appeal officer found the school d istrict predetermined that it13

would end hippotherapy, but did not predetermine th e amount of occupational therapy. The ultimate issue is whether a failure t o provide an individualized placement decision is remediable by an award of compensatory education. Compensatory Education The district court properly found that compensatoryeducation is not an appropriate remedy for a procedural violation of th e IDEA. In cases where the challenged IEP is ultimately found to be appropriat e, parents cannot be reimbursed for any interim period in which their ch ild’s placement violated the stay-put provision. School Comm. v. Department of Educ. , 471 U.S. 359, 374 (1985); Carlisle Area Sch. v. Scott P. , 62 F.3d 520, 537 (3d Cir. 1995). In Urban v. Jefferson County School District R-1 , this court found a school district’s failure to comply with statutory IEP content requir ements did not amount to a substantive deprivation, so there was no violation of the student’s right to a FAPE. 89 F.3d 720, 727 (10th Cir. 1996). This cou rt then concluded that the student was not entitled to compensatory education in the absence of a violation of his right to a FAPE. Id. “Appropriate relief is relief designed to ensure th at the student is appropriately educated within the meaning of the IDEA.” Parents of Student W. v. Puyallup Sch. Dist., No. 3 , 31 F.3d 1489, 1497 (9th Cir. 1994). Erickson doe s not contend Michael’s September 1995 IEP was defici ent, nor does she appeal14

the hearing officer’s determination that hippotherapy was not necessary to provide Michael a FAPE. The award of compensatory education is not an appropriate remedy for a failure to provide an indi vidualized determination when the school district provided the student with a FAPE. See Miener v. Missouri , 800 F.2d 749, 753 (8th Cir. 1986) (finding compensatory education was necessary to secure the student’s right to a FAPE).
III. Erickson’s request for attorney fees is DENIED. Th e judgment of the district court is AFFIRMED.