USCA1 Opinion

                  United States Court of Appeals

                      For the First Circuit

                       ____________________





No. 98-1006    



               KATHLEEN H., LARRY H. AND DANIEL H.,

                     Plaintiffs, Appellants,



                                v.



          MASSACHUSETTS DEPARTMENT OF EDUCATION, ET AL.,

                      Defendants, Appellees.



                       ____________________



           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



          [Hon. Richard G. Stearns, U.S. District Judge]



                       ____________________



                              Before



                     Torruella, Chief Judge,



                      Selya, Circuit Judge,



and Schwarzer, Senior District Judge.



                      _____________________



     Maureen A. Lee, with whom John P. Lee and Law Office of

John P. Lee were on brief, for appellants.

     Nicola Favorito, with whom Mary Ellen Sowyrda and Murphy,

Hesse, Toomey & Lehane were on brief, for appellees.





                       ____________________



                       September 4, 1998

                       ____________________          SCHWARZER, Senior District Judge.  Appellants Larry and

Kathleen H. reside in Mansfield, Massachusetts with Daniel H.,

their son.  Daniel is a child with disabilities within the meaning

of the Individuals with Disabilities Education Act (IDEA), 20

U.S.C.  1400-1485.  When Daniel's parents and the Mansfield

public school system were unable to agree on the services to be

provided Daniel, the parents removed him from the public school,

unilaterally enrolled him in the Learning Prep School (LPS) and

requested a hearing with the Massachusetts Bureau of Special

Education Appeals (BSEA).  Following the hearings, the BSEA ruled

in favor of the Mansfield School Committee (Mansfield), finding

that with some modifications to their program, Mansfield was and is

capable of meeting the child's needs, LPS was overly restrictive,

and the parents were not entitled to be reimbursed for the LPS

expenses.  Appellants then sought judicial review in district

court, which upheld the BSEA's decision and denied their

application for attorneys' fees.  They now appeal from the judgment

of the district court.  We have jurisdiction pursuant to 28 U.S.C.

 1331, and we affirm.

                             OVERVIEW

The IDEA was enacted to ensure that all children with disabilities

receive a "free appropriate public education [FAPE] . . . designed

to meet their unique needs."  20 U.S.C.  1400(c).  "While a state

may not depart downward from the minimum level of appropriateness

mandated under federal law, 'a state is free to exceed, both

substantively and procedurally, the protection and services to be

provided to its disabled children.'"  Roland M. v. Concord Sch.

Comm., 910 F.2d 983, 987 (1st Cir. 1990) (quoting Burlington v. 

Department of Educ., 736 F.2d 773, 784-85 (1st Cir. 1984)

("Burlington II")).  Massachusetts has chosen a higher standard: 

The Department of Education is required to administer programs that

"'assure the maximum possible development of a child with special

needs.'"  Stock v. Massachusetts Hosp. Sch., 392 Mass. 205, 211,

467 N.E.2d 448, 453 (1984) (quoting Mass. Gen. Laws ch. 71B  2);

see also Roland M., 910 F.2d at 987; David D. v. Dartmouth Sch.

Comm., 775 F.2d 411, 423 (1st Cir. 1985). 

          The FAPE is implemented through an individual education

plan (IEP), a written statement that sets out an educational

program to meet the particularized needs of a child with

disabilities.  20 U.S.C.  1301(a)(20).  In Massachusetts, an IEP

for a child is developed by TEAM, a group of individuals including

"the parents, the child's teacher, designated specialists, and a

representative of the [local education agency]."  Roland M., 910

F.2d at 988.  The IEP must be reviewed annually and revised when

necessary.  See id.

          Parents who are dissatisfied with their child's IEP can

present a complaint and obtain a due process hearing to resolve the

problem.  See 20 U.S.C.  1415(b)(1)(E) & (2).  In Massachusetts,

this function is performed by the BSEA.  See Roland M., 910 F.2d at

987.  During the pendency of proceedings under  1415, the child is

to "remain in the then current educational placement."  20 U.S.C.

 1415(e)(3).  If the school district cannot provide the FAPE

itself, it can recommend that the child be placed in a private

facility at no cost to the parents.  See 34 C.F.R.  300.401(a)(2). 

However, parents who "'unilaterally change their child's placement

during the pendency of review proceedings, without the consent of

state or local school officials,' . . . are entitled to

reimbursement only if . . . the public placement violated IDEA and

[] the private school placement was proper under the Act." 

Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 15, 114

S. Ct. 361, 366, 126 L. Ed. 2d 284 (1993) (quoting School Comm. v. Department of Educ., 471 U.S. 359, 373-74, 105 S. Ct. 1996, 2004-

05, 85 L. Ed. 2d 385 (1985)).  

          Judicial review of the decision of the BSEA presents a

two-fold inquiry:  Whether the state has complied with the

procedures of the Act, and whether the IEP developed through those

procedures is "reasonably calculated to enable the child to receive

educational benefits."  Board of Educ. v. Rowley, 458 U.S. 176,

206-07, 102 S. Ct. 3034, 3051, 73 L. Ed. 2d 690 (1982).  The Act

imposes procedural requirements upon state and local education

agencies to "assure that children with disabilities and their

parents . . . are guaranteed procedural safeguards with respect to

the provision of free appropriate public education."  20 U.S.C.

 1415(a).  "The primary safeguard is the obligatory development of

an individualized education program (IEP)."  Roland M., 910 F.2d at

987 (citing Rowley, 458 U.S. at 181).  The IEP must contain

"statements about the child's current performance, long-term and

short-term instructional targets, and objective criteria for

measuring the student's advance."  Id. (citing 20 U.S.C.  1401(19)

and 34 C.F.R.  300.346); see also Rowley, 458 U.S. at 206 n.27. 

And, as noted, a school's programs must "assure the maximum

possible development of a child with special needs," subject to the

Act's preference for "mainstreaming," i.e., educating handicapped

children and non-handicapped children together "to the maximum

extent appropriate" and providing special education in "the least

restrictive environment."  Id. (citing 20 U.S.C.  1412(5) and 34

C.F.R.  300.552(d)).  

                  FACTUAL AND PROCEDURAL HISTORY

          Daniel H. suffers from a language-based learning

disorder.  From kindergarten through the sixth grade, Daniel

attended Mansfield public schools.  In the first, second and third

grades, Daniel received special education services in accordance

with his IEP with a 502.4 prototype.  In the fourth grade,

Daniel's TEAM modified his IEP to a 502.3 prototype, and he was

mainstreamed for mathematics.  In the fifth grade, Daniel was

mainstreamed in all content areas after he successfully completed

the Stevenson Reading and Literature Program, a special education

curriculum, in accordance with his 1992-93 IEP.

     In 1993, before Daniel entered the sixth grade, TEAM

determined that a 502.1 program would provide him with the least

restrictive appropriate educational environment.  The 1993-94 IEP

proposed that Daniel participate in a regular education program,

with one-half hour per week of speech and language monitoring and 

use of a notebook to exchange information between the home and the

school.  Daniel's parents deferred their approval of the IEP until

they could obtain an independent evaluation of Daniel by the New

England Medical Center (NEMC).

     NEMC evaluated Daniel in November 1993 and Daniel's

mother gave a copy of the evaluation to Mansfield school officials. 

NEMC determined that Daniel had difficulties processing auditory

information, retrieving words, and formulating sentences.  He

performed below average on reading and language tests but scored

well in mathematics.  NEMC recommended small group speech therapy

as well as weekly consultations between a speech pathologist and

Daniel's classroom teacher.  

     Around the same time, Daniel began having several

problems.  Academically, Daniel's mother felt that he was

struggling with his homework because it often took him three to

four hours to complete.  Socially, he incurred several disciplinary

infractions for fighting with other students and he began

defecating in his pants.  As a result, Kathleen H. arranged for

Daniel to be counseled by a psychologist.

     After receiving NEMC's evaluation, Kathleen H. asked TEAM

to modify the 1993-94 IEP to incorporate NEMC's recommendations. 

TEAM met in December 1993 and rewrote the IEP to reflect the

special services that Daniel was then actually receiving, which

included thirteen forty-minute support periods each week in the

mainstream classroom, but refused to formally adopt NEMC's

recommendations.  In turn, Daniel's parents rejected the modified

IEP on January 2, 1994.  On February 7, 1994, the school offered to

supplement Daniel's special education program by providing small

group speech and language services twice a week, to fund regular

consultations between NEMC evaluators and Mansfield personnel, and

to provide Daniel with a homework organization sheet to supplement

his notebook.  Daniel's parents never responded to this offer.

     TEAM met again in March 1994, to prepare Daniel's seventh

grade IEP.  The 1994-95 IEP proposed a 502.2 prototype program

consisting of the thirteen forty-minute support periods per week in

the mainstream classroom he was then receiving, supplemented by two

forty-minute periods of speech and language instruction and

consultation to Daniel's classroom teachers by the speech and

language providers.  Attached to the IEP were NEMC's

recommendations which Mansfield would implement "where

appropriate," and Mansfield offered to fund consultations between

Daniel's teacher and NEMC evaluators.  Daniel's parents rejected

the proposed IEP on March 31, 1994, and enrolled Daniel at LPS for

the 1994-95 school year.  

     Daniel's parents then appealed to the BSEA.  Following

hearings, the hearing officer issued her decision.  Her salient

findings were that (1) with some modifications, Mansfield is and

was capable of meeting Daniel's needs; (2) while Mansfield made

procedural errors in the 1993-94 and 1994-95 IEPs, they did not

rise to the level of noncompliance; (3) LPS was overly restrictive;

and (4) the parents should not be reimbursed for the LPS expenses

incurred during the 1994-95 period.  The hearing officer found that

given Daniel's progress during his first five years, it was

reasonable for Mansfield to place him in an integrated class. 

However, she faulted Mansfield for placing too much emphasis on

Daniel's classroom performance as an evaluation tool and agreed

with appellants that the special services provided Daniel in the

sixth grade were insufficient to maximize his potential.  She

listed several technical deficiencies in the IEPs:  (1) They failed

to specify Daniel's current level of performance and his learning

style; (2) they failed to provide sufficient criteria for measuring

his achievement; (3) they failed to specify one-on-one instruction

in speech and language skills and individualized counseling on

issues associated with adolescence; and (4) they failed to gather

all this relevant information before writing Daniel's sixth grade

IEP.  Nevertheless, she found, that Mansfield had not acted in bad

faith and that the IEPs lack of specificity did not deny Daniel

substantive services.  And she concluded, "The procedural mistakes

in the writing of the IEP are not grave enough to assume that

[Mansfield] lacks the capacity to develop or implement a special

education program for Daniel."

     Daniel's parents then sought judicial review.  The

district court upheld the BSEA decision, finding that (1)

appellants had failed to show that the 1993-94 and 1994-95 IEPs

were not adequate and appropriate for Daniel, and (2) the drafting

deficiencies were matters of form rather than substance and do not

impeach the results actually achieved.  Because it found that

Daniel thrived in the mainstream experience and Mansfield was

willing and able to provide the further help he needed, it held

that Daniel's parents were not entitled to recover the cost of

enrolling Daniel in LPS.  Finally, the court determined that

Daniel's parents were not prevailing parties, and therefore not

entitled to recover their attorneys' fees and costs.

                            DISCUSSION

I.   BSEA DECISION

     A.   Standard of Review

     "The ultimate question for a court under the Act is

whether a proposed IEP is adequate and appropriate for a particular

child at a given point in time."  Burlington II, 736 F.2d at 788. 

The district court's resolution of that question is a mixed

question of law and fact that we review for clear error "[a]bsent

a showing that the wrong legal rule was employed."  Roland M., 910

F.2d at 990.  We "accept a district court's resolution of questions

anent adequacy and appropriateness of an IEP so long as the court's

conclusions are not clearly erroneous on the record as a whole." 

Id. at 990-91. 

     B.   Merits

     Appellants contend that the district court erred in

concluding that the IEPs were adequate and appropriate to maximize

Daniel's development in the least restrictive environment and claim

the court's decision is unsupported by the record.  They fail,

however, to demonstrate clear error.

     With regard to the 1993-94 IEP, appellants claim that the

court erred in finding that Daniel made encouraging progress in the

regular classroom in the first through fifth grades.  They allege

that Daniel "was being taught in a resource room outside of the

regular education classroom" during these years, and that the court

"totally ignored the facts contained in the record regarding

Daniel's lack of progress during the sixth grade."  The court's

finding was based on the detailed findings of the hearing officer

who reached the same conclusion.  Its review was appropriately

"thorough yet deferential."  Roland M., 910 F.2d at 989. 

Appellants have failed to demonstrate that the court committed

error.

     With respect to the 1994-95 IEP, appellants contend that

the court erred in finding that the changes ordered by the hearing

officer simply gave a more accurate account of the services Daniel

had actually received.  The hearing officer ordered Mansfield to

adopt certain NEMC recommendations regarding increased speech and

language instruction, small-group reading and writing instruction,

and bi-weekly counseling.  She also found, however, that with

proper accommodations, Daniel's needs can be met at Mansfield,

which is the least restrictive environment for him.  And she

concluded that Mansfield's procedural errors did not rise to the

level of noncompliance.    Thus, even if the IEP was initially

deficient, our focus in assessing its adequacy is on the IEP as it

emerges from the administrative review process.  See Roland M., 910

F.2d at 988; see also Amann v. Stow Sch. Sys., 982 F.2d 644, 650-51

(1st Cir. 1992) (IEP adequate and appropriate even though hearing

officer ordered modifications).  We discern no error.   

     Appellants also rest their argument on the IEP proposed

for 1995-96, pointing out that its recommendation to place Daniel

in a 502.4 prototype program (as opposed to the 502.2 prototype in

the 1994-95 IEP) contradicts the court's findings.  Under the

IDEA's scheme, however, an IEP must be reviewed annually and

revised when necessary.  The fact that Mansfield revised Daniel's

IEP between the 1994-95 and the 1995-96 school years is not

evidence that the IEP for the previous year was inadequate.

     We conclude that appellants have failed to demonstrate

clear error in the district court's ruling that the IEPs were

adequate and appropriate.  See Burlington II, 736 F.2d at 794

(parents bear burden of proving IEP's inadequacy); see also Amann,

982 F.2d at 650 (same).  As we stated in Roland M., "[b]efore an

IEP is set aside, there must be some rational basis to believe that

procedural inadequacies compromised the pupil's right to an

appropriate education, seriously hampered the parents' opportunity

to participate in the formulation process, or caused a deprivation

of educational benefits."  910 F.2d at 994.  The district court was

satisfied that appellants' showing failed to meet that test and we

see no clear error in its conclusion.II.  ATTORNEYS' FEES AND COSTS

     The IDEA provides that a "prevailing party" may be

awarded attorneys' fees and costs:

     In any action or proceeding brought under this

     subsection, the court, in its discretion, may

     award reasonable attorneys' fees as part of

     the costs to the parents or guardian of a

     child or youth with a disability who is the

     prevailing party.



20 U.S.C.  1415(e)(4)(B).  The standards governing the award of

attorneys' fees under 42 U.S.C.  1988 are applicable to awards

under the IDEA.  See Hensley v. Eckerhart, 461 U.S. 424, 433 n.7,

103 S. Ct. 1933, 1939, 76 L. Ed. 2d 40 (1983); Jodlowski v. Valley

View Community Unit Sch. Dist. # 365-U, 109 F.3d 1250, 1253 n.2

(7th Cir. 1997); Urban v. Jefferson County Sch. Dist. R-1, 89 F.3d

720, 729 (10th Cir. 1996); Aby-Sahyun v. Palo Alto Unified Sch.

Dist., 843 F.2d 1250, 1252 (9th Cir. 1988).  The district court

denied the application for fees, finding that appellants were not

prevailing parties because:  (1) They did not receive "the

principal relief they requested, that is, reimbursement of the LPS

tuition" and (2) the changes made in the IEPs either "simply gave

a more accurate account of the services Daniel had actually

received" or reflected minor and technical changes.  We review the

district court's denial of attorneys' fees for abuse of discretion. 

See Williams v. Hanover Hous. Auth., 113 F.3d 1294, 1301 (1st Cir.

1997) (denial of attorneys' fees under 42 U.S.C.  1988). 

     To qualify as a prevailing party, a litigant must

demonstrate that:  (1) He obtained relief on a significant claim in

the litigation; (2) such relief effected a material alteration in

his legal relationship with the defendant; and (3) the alteration

is not merely technical or de minimis in nature.  See  Texas State

Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-93,

109 S. Ct. 1486, 103 L. Ed. 2d 866 (1989); Farrar v. Hobby, 506

U.S. 103, 111-12, 113 S. Ct. 566, 573, 121 L. Ed. 2d 494 (1992) ("a

plaintiff 'prevails' when actual relief on the merits of his claim

materially alters the legal relationship between the parties by

modifying the defendant's behavior in a way that directly benefits

the plaintiff"); see also Hensley, 461 U.S. at 433 (litigant is a

prevailing party "if [he] succeed[s] on any significant issue in

litigation which achieves some of the benefit the parties sought in

bringing the suit").  A party may demonstrate the changed legal

relationship in one of two ways:  "The party either must enjoy

bottom-line success in the litigation or act as a catalyst in

causing the desired alteration."  Paris v. U.S. Dept. of Hous. &

Urban Dev., 988 F.2d 236, 238 (1st Cir. 1993); see also Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978). 

     Appellants contend that they were prevailing parties

because they succeeded on several significant issues.  They contend

that their overall goal was to increase the special education

services provided to their son, "not to obtain reimbursement of the

private school tuition."  The record belies that contention.  The

specific relief appellants sought in their complaint was a

determination that LPS was appropriate for Daniel and that they

were entitled to reimbursement for the expenses of LPS.  The

hearing officer denied this relief.  We agree with the district

court's finding (which appellants do not dispute) that the only

relief they received from the BSEA decision was in the form of some

modifications to the 1993-94 and the 1994-95 IEPs.  "[T]he

plaintiff cannot qualify as a 'prevailing party' if his 'success on

a legal claim can be characterized as purely technical or de

minimis. . . .'"  Kerry B. v. Union 53 Pub. Sch., 882 F. Supp. 184,

187 (D. Mass. 1995) (quoting Texas State Teachers Ass'n, 489 U.S.

at 792).  Even if the BSEA decision were seen as resulting in some

improvements in Daniel's program, it was not an abuse of discretion

for the district court to deny attorneys' fees where the changes

ordered are de minimis "in the context of the Parents' broader

goals in this case."  Monticello Sch. Dist. No. 25 v. George L.,

102 F.3d 895, 908 (7th Cir. 1996) (affirming denial of attorneys'

fees despite changes to IEP ordered by hearing officer).  

     Nor can appellants prevail under a catalyst theory.  To

qualify, appellants must show "'(1) a causal connection between the

litigation and the relief obtained, and (2) that the fee-target did

not act gratuitously.'"  Williams, 113 F.3d at 1299 (quoting

Guglietti v. Secretary of Health & Human Servs., 900 F.2d 397, 401

(1st Cir. 1990)); see also Payne v. Board of Educ., Cleveland City

Sch., 88 F.3d 392, 398 (6th Cir. 1996).  Appellants argue that

their pursuit of their legal remedies caused Mansfield to provide

additional educational services under the 1995-96 IEP (changes

which the district court found to be minor and mostly technical in

nature).  There is no indication, however, that Mansfield would 

have failed to include a 502.4 prototype and additional special

education services in Daniel's 1995-96 IEP but for the

administrative hearing.  See Payne, 88 F.3d at 400 ("Even where a

defendant makes some changes following administrative proceedings

that comport with a plaintiff's demands, if the actions are taken

unilaterally by the defendant and there is no indication that they

would not have transpired had the plaintiff not pursued the

administrative process, the plaintiff cannot qualify as a

'prevailing party' for fee-shifting purposes.") (citing Combs v. School Bd. of Rockingham County, 15 F.3d 357, 362 (4th Cir. 1994)). 

The hearing officer made no recommendations for future IEPs or

suggestions that Daniel should be placed in a more restrictive

learning environment.  Rather, the hearing officer found that

"[Mansfield's] personnel has [sic] always had Daniel's educational

best interest at heart," and "[t]he amount of progress achieved by

[Daniel] is the result of the concerted actions of a truly

committed school, the great support of his parents and Daniel

himself, all working together as they should."  Mansfield held

multidisciplinary team meetings and developed IEPs in accordance

with the IDEA before the request for a hearing was made and

continued to comply with the IDEA without regard to that request. 

See Payne, 88 F.3d at 400; Salley v. St. Tammany Parish Sch. Bd.,

57 F.3d 458, 468 (5th Cir. 1995) (denying "prevailing party" status

where the plaintiff was well aware that a beneficial result might

have been obtained at any time without regard to the existence of

due process hearings); Wheeler v. Towanda Area Sch. Dist., 950 F.2d

128, 132 (3d Cir. 1991) ("Neither the hearing officer nor the

Secretary ordered the School District to do anything that they were

not already doing.").  Appellants not having met the first prong of

the catalyst test, it is unnecessary to consider the second.  

     Because we agree that appellants did not obtain significant

relief as a result of the litigation, we hold that the district

court did not abuse its discretion in denying their application for

fees.

     The judgment is AFFIRMED.