Jaynes Ex Rel. Jaynes v. Newport News School Board , 13 F. App'x 166 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
STEFAN JAYNES, a minor, by and 
through his parents, Brian D. Jaynes
and Juliana F. Jaynes, and on their
own behalf,
Plaintiff-Appellee,  No. 00-2312
v.
NEWPORT NEWS SCHOOL BOARD,
Defendant-Appellant.

STEFAN JAYNES, a minor, by and 
through his parents, Brian D. Jaynes
and Juliana F. Jaynes, and on their
own behalf,
Plaintiff-Appellee,  No. 00-2575
v.
NEWPORT NEWS SCHOOL BOARD,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Newport News.
Henry C. Morgan, Jr., District Judge.
(CA-99-146-4)
Argued: June 7, 2001
Decided: July 10, 2001
Before NIEMEYER and TRAXLER, Circuit Judges, and
Robert R. BEEZER, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
2 JAYNES v. NEWPORT NEWS SCHOOL BOARD
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Kathleen Shepherd Mehfoud, REED, SMITH, HAZEL &
THOMAS, Richmond, Virginia, for Appellant. Peter W.D. Wright,
Deltaville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
This case addresses whether a reimbursement award for educa-
tional expenses was proper under the Individuals with Disabilities
Education Act ("IDEA"), 20 U.S.C. § 1400.1Stefan Jaynes was diagnosed with autism at age two. Following the
advice of a pediatric neurologist, Dr. L. Matthew Frank, Brian and
Juliana Jaynes (collectively, "Parents") contacted Paces, a program
specifically designed for autistic children. Paces informed the Parents
that Stefan needed a referral from the local public school system. On
October 8, 1993, the Parents requested a referral for special education
1
IDEA requires states that receive federal funding for the education of
the handicapped to provide such children with a free appropriate public
education. 28 U.S.C. § 1412(1). A free appropriate public education is
provided to a child through the development of an individualized educa-
tional program ("IEP"). Id. § 1414. IDEA guarantees parents the opportu-
nity to contest any matter relating to the child’s IEP, including the right
to due process hearings, state-level appeals, civil actions and attorneys’s
fees. Public schools must also provide particular and timely notification
of and procedural instruction regarding such rights. Id. § 1415.
JAYNES v. NEWPORT NEWS SCHOOL BOARD 3
services from Newport News Public Schools ("Newport"), which
began the assessment process on December 15, 1993. At that time,
Mrs. Jaynes signed a "consent to testing" form but was not advised
of her parental rights.
On February 18, 1994, Newport school officials held a meeting at
which they deemed Stefan eligible for special services and developed
an individualized educational program ("February IEP"). The Parents
received notice of this meeting but did not attend. Although Newport
was aware of Dr. Frank’s recommendation that Stefan be enrolled in
Paces, the February IEP provided for Stefan’s placement into the Pro-
gram for Educating Exceptional Preschoolers ("PEEP").2
Newport neither inquired as to the Parents’ absence nor briefed
them on the February meeting. Rather, the Parents received a notice
of Stefan’s IEP eligibility in the mail. Although the Parents eventually
signed the IEP, thereby attesting to their receipt of an Advisement of
Parental Rights form, both contend that they never received such a
form and were never otherwise informed of their right to a due pro-
cess hearing.
Newport neglected to carry out the February IEP until the end of
May 1994, when there were only two weeks left in the school year.
During this interim, the Parents repeatedly contacted Newport to
request that the February IEP be carried out and that Stefan receive
occupational therapy and extended school year services. Newport
either ignored or denied their requests. In October 1995, Newport
held a second IEP meeting, which Mrs. Jaynes attended. Although
Newport had never introduced many of the objectives listed on the
February IEP, Newport formulated a new IEP ("October IEP") that,
without explanation, reduced the services available to Stefan.
Although Mrs. Jaynes signed the October IEP, Newport later altered
it without her knowledge.
2
PEEP is a Newport-owned program designed for children with vari-
ous disabilities. Paces is a regional public school consortium specifically
designed to educate children with autism; because the Paces program is
not owned or operated by Newport, Newport would have to pay Stefan’s
tuition to Paces.
4 JAYNES v. NEWPORT NEWS SCHOOL BOARD
On January 17, 1995, after realizing that Stefan was making no
progress in PEEP, the Parents unilaterally removed Stefan from the
public school program and placed him in a private Lovaas Applied
Behavioral Analysis program ("Lovaas").3 In late 1996, the Parents
learned that they had the right to contest the IEPs in a due process
hearing. On January 14, 1997, they requested such a hearing, alleging
that Newport committed procedural and substantive violations of
IDEA.
The local hearing officer ("LHO") found that Newport failed to
notify the Parents of their right to a hearing and, based on that find-
ing, tolled the applicable one year statute of limitations. Because
Newport engaged in a pattern and practice of failing to follow the pro-
cedures set forth in IDEA, the LHO ordered Newport to indemnify
the Parents in the amount of $117,979.78 for educational expenses.
Newport appealed to the state review officer ("SRO"). The SRO
affirmed the LHO’s decision but reduced the award based on his con-
clusion that the statute of limitations prevented the Parents from
recovering any expenses prior to January 14, 1997, the day the Par-
ents requested a due process hearing.
The Parents sought reinstatement of the full amount in district
court. The court held that the only causes of action available to the
Parents are those that accrued after July 1, 1995.4 Finding that New-
port’s violations of IDEA kept the Parents ignorant of their hearing
rights until sometime in 1996, the court allowed the Parents to be
reimbursed for educational expenses incurred on or after July 1, 1995.
Newport appeals the court’s summary judgment in favor of the Par-
ents.
3
Applied Behavioral Analysis Therapy, a form of treatment for autistic
preschoolers developed by Dr. Ivar Lovaas, consists of breaking down
activities into discrete tasks and rewarding the child’s accomplishments.
See Bd. of Educ. of the County of Kanawha v. Michael M., 95 F. Supp.
2d 600, 602 (S.D. W. Va. 2000).
4
Effective July 1, 1995, the Virginia statute of limitations for personal
injury actions was extended from one year to two years, applicable to
causes of action accruing on or after that date. See Va. Code § 8.01-248.
JAYNES v. NEWPORT NEWS SCHOOL BOARD 5
We have jurisdiction, 28 U.S.C. § 1291, and we affirm.
I
Newport first contends that the district court misapplied the statute
of limitations. We review this legal question de novo. Singer v. Dun-
gan, 45 F.3d 823, 827 (4th Cir. 1995).
The appropriate period of limitations for actions brought under
IDEA is one year for claims that accrued before July 1, 1995, and two
years for claims that accrued on or after that date. Manning v. Fairfax
County Sch. Bd., 176 F.3d 235, 239 n.2 (4th Cir. 1999).
The district court held that although claims that accrued prior to
July 1, 1995, were barred, any claims arising after that date were
actionable because they fell within the two year limitations period.
The court then analyzed the Parents’ claims to determine whether any
accrued after July 1, 1995.
The court determined that the claim alleging failure to give notice
of the right to and procedures for requesting a hearing fell within the
two year statute of limitations. The court found that the moment the
Parents received such notice—sometime in 1996—is the moment that
the action accrued. Because any date in 1996 would fall within the
two year limitations period, the court concluded that this claim was
actionable.
Newport argues that the limitations period on the Parents’ due pro-
cess request started to run on October 10, 1994 (the date of the second
IEP meeting) or at the latest, on January 17, 1995 (the date the Par-
ents removed Stefan from the PEEP program). Newport contends that
as of these dates, the Parents knew of the events that formed the bases
of their claims and that the fact that they did not learn until much later
that their injuries were actionable is irrelevant. See Richards v. Fair-
fax County Sch. Bd., 798 F. Supp. 338, 341 (E.D. Va. 1992), aff’d,
7 F.3d 225 (4th Cir. 1993) (holding that IDEA claims accrue when
the parents know of the injury or the event that is the basis for their
claim, regardless of whether they know that the injury is actionable).
Because the Parents did not request a due process hearing within one
6 JAYNES v. NEWPORT NEWS SCHOOL BOARD
year of either of these dates, Newport contends, their claim for reim-
bursement is barred.
The district court correctly applied the statute of limitations. In
general, knowledge that an injury is actionable is irrelevant to the
determination of when the injury arose. Here, however, Newport’s
failure to notify the Parents of their parental rights, in violation of
statutory mandates, is the alleged injury. The Parents complain that
because Newport neglected to inform them of their right to a due pro-
cess hearing, they were deprived of the opportunity to seek recourse
through such a hearing. It follows that the moment they learned they
had a right to a hearing was the moment they learned Newport had
a duty to inform them of such a right.
II
Newport next challenges the court’s application of the standard of
review, an issue which we review de novo. See Myles Lumber Co. v.
CNA Financial Corp., 233 F.3d 821, 823 (4th Cir. 2000).
Courts reviewing administrative decisions in IDEA cases "are
required to make an independent decision based on a preponderance
of the evidence, while giving due weight to state administrative pro-
ceedings." Doyle v. Arlington County Sch. Bd., 953 F.2d 100, 103
(4th Cir. 1992). Due weight review requires that the court afford fac-
tual findings a presumption of prima facie correctness. Id. If the
reviewing court decides to depart from the administrative findings, it
must explain its reasons for doing so. Id. After giving the factual find-
ings due weight, the court is free to decide the case based on the pre-
ponderance of the evidence. Id.; see also 20 U.S.C. § 1415(i)(2)(B).
Newport argues that the court should have afforded less deference
to the LHO’s findings because the LHO adopted many of the Parents’
proposed findings of fact and conclusions of law and failed to exer-
cise independent judgment. In particular, Newport attacks the district
court’s decision to accept the LHO’s finding that the Parents did not
receive notice of their rights until 1996, contrary to the SRO’s finding
that the Parents did receive such notice. The district court, however,
correctly applied the Doyle standard. When findings by the LHO and
SRO conflict, due weight is generally given to the LHO’s decision,
JAYNES v. NEWPORT NEWS SCHOOL BOARD 7
particularly if, as here, that decision turns on witness credibility. See
Doyle, 953 F.2d at 105; Springer v. Fairfax County Sch. Bd., 134 F.3d
659, 663 n.* (4th Cir. 1998). The court independently reviewed the
evidence underlying the LHO’s factual findings and properly deter-
mined that those findings were supported by the record.
III
Newport also contends that the district court erred when it deter-
mined that reimbursement for Stefan’s participation in the Lovaas
program was appropriate.
We review de novo a grant of summary judgment. Gadsby v.
Grasmick, 109 F.3d 940, 949 (4th Cir. 1997). Although we review the
district court’s legal conclusions de novo, we accept its finding of
facts in the absence of clear error. Mentavlos v. Anderson, 249 F.3d
301, 307 (4th Cir. 2001).
Reimbursement of special education expenses under IDEA is
appropriate when the reviewing court finds that: (1) the public
school’s placement was not providing the child with a free appropri-
ate public education; and (2) the parents’ alternative placement was
proper under IDEA. Sch. Comm. of Town of Burlington, Mass. v.
Dep’t of Educ. of Mass., 471 U.S. 359, 369-70 (1985). In determining
whether the public school has provided a free appropriate public edu-
cation, the court conducts a twofold inquiry: (1) has the State com-
plied with the procedures set forth in IDEA?; and (2) is the IEP
reasonably calculated to enable the child to receive educational bene-
fits? Bd. of Educ. of Hendrick Hudson Central Sch. Dist., Weschester
County v. Rowley, 458 U.S. 176, 206-07 (1982). Failure to meet
IDEA’s procedural requirements is an adequate ground for holding
that the public school failed to provide a free appropriate public edu-
cation. Hall v. Vance County Bd. of Educ., 774 F.2d 629, 635 (4th
Cir. 1985) (citing Rowley, 458 U.S. at 206 n.27); accord Bd. of Educ.
of the County of Cabell v. Dienelt, 843 F.2d 813, 815 (4th Cir. 1988).
Because we agree with the district court’s finding that Newport
repeatedly failed to notify the Parents of their right to a due process
hearing, we affirm its holding that these procedural violations consti-
tuted failure of Newport to provide Stefan with a free appropriate
8 JAYNES v. NEWPORT NEWS SCHOOL BOARD
public education. For the reasons we give below, Newport’s three
arguments to the contrary are unavailing.
First, Newport argues that it was entitled to the presumption that
it provided the Parental Rights form as early as December 1993. This
contention is based on (1) the fact that Newport has a practice of pro-
viding this form when a child is brought in to be evaluated and when-
ever an IEP is developed; and (2) the fact that the Parents signed
Stefan’s IEPs, both of which included language attesting that they had
received the Parental Rights form.
Relying on the findings of the LHO and an independent review of
the record, the district court correctly found that the Parents were
unaware of their right to a due process hearing until 1996. The record
shows that the Parents testified consistently and persuasively at the
administrative hearing that they had never seen a Parental Rights form
and had never otherwise been informed of their rights. Moreover, at
least one Newport administrator admitted that she had never informed
the Parents of their rights. Newport does not dispute that when it
denied the Parents’ requests for extra and extended school year ser-
vices, and when the Parents notified Newport of their intention to
remove Stefan from PEEP, it failed to notify them of their rights. See
Hall, 774 F.2d at 634-35 (finding failure to notify despite administra-
tor’s testimony that she had explained procedural rights to the parents
at an IEP meeting when school did not contest that it failed to give
notice at similar points in the process). Finally, although the SRO
found that the best evidence—the Parents’ signatures on the
IEPs—demonstrated that they had notice of their rights, the district
court’s decision to the contrary is based on a preponderance of the
evidence and is not clearly erroneous.5
Second, Newport devotes much of its attention to its argument that
the court erred when it failed to determine whether or not Newport
was providing an appropriate education for Stefan. This contention is
5
Newport asserts that even if it failed to give notice, such failure must
lead to a loss of an "educational opportunity" to have legal significance.
See Burke County Bd. of Educ. v. Denton, 895 F.2d 973, 982 (4th Cir.
1990). The LHO found that Stefan had suffered such a loss, and the
record supports this finding.
JAYNES v. NEWPORT NEWS SCHOOL BOARD 9
irrelevant because the district court based its decision that Newport
was not providing a free appropriate education on procedural viola-
tions of IDEA, not on substantive deficiencies in Stefan’s program.
A determination of whether the public school’s program is "appropri-
ate" is only necessary when the claim is that the IEP was not reason-
ably calculated to enable the child to receive education benefits. Cf.
Dienelt, 843 F.2d at 814-15 (affirming award of reimbursement based
on district court’s determinations that procedural violations consti-
tuted a failure to provide the child with a free appropriate public edu-
cation and that parents’ alternative placement was appropriate).
Newport’s third argument, that the court erred because it failed to
determine that the Parents’ placement of Stefan was proper, has some
merit. Reimbursement is proper only upon finding both that Newport
failed to provide a free appropriate education (here, based on proce-
dural defects) and that the Parents’ placement was proper under
IDEA. See Burlington, 471 U.S. at 369-70. Although the district court
did not make the second finding, we affirm the reimbursement award
because the record supports a determination that Stefan’s placement
in Lovaas therapy was proper.6 For example, the LHO concluded,
based on extensive briefing, that Lovaas therapy was appropriate and
had benefitted Stefan. The SRO noted that according to Dr. Frank’s
letter, Stefan had improved as a result of Lovaas therapy. Dr. Frank’s
letter reported that Stefan’s "Lovaas training is having a very definite
impact on his growth and development" and detailed specific exam-
ples. Finally, not only did Stefan’s speech/language pathologist testify
regarding Stefan’s improvements, but Newport’s psychologist also
reported "qualitative improvement."7
6
Cf. Hall, 774, F.2d 629, 636 n.7 (noting that although district court
did not explicitly find parental placement was appropriate, it implicitly
so found when it stated that parents proved that the costs they incurred
were in connection with providing child with appropriate education).
7
Newport takes issue with the Parents’ failure to present expert testi-
mony on Lovaas at the hearing and contends that PEEP was more appro-
priate than home-based Lovaas tutoring because it allowed Stefan to
interact with other students, as favored by IDEA’s "mainstreaming provi-
sion," 20 U.S.C. § 1412(5)(B). These arguments are unavailing. First,
although there was no live expert testimony, the Parents submitted over
20 exhibits regarding the Lovaas method and elicited testimony from
10 JAYNES v. NEWPORT NEWS SCHOOL BOARD
IV
Finally, Newport argues that it did not waive its right to challenge
the specific amount of reimbursement.
In its order granting the Parents’ motion for summary judgment,
the district court directed that in the event that the parties could not
agree upon the amount of damages, the Parents should submit a veri-
fied claim for damages to which Newport could reply. Unable to stip-
ulate to the amount of damages, both parties submitted briefs, but
neither requested a hearing. In its brief, Newport: (1) argued that
expenses for Stefan’s Lovaas training should not be reimbursed
because such training does not qualify as an educational program
under IDEA; and (2) challenged reimbursement for particular
expenses not incurred for "special education and related services"
under 20 U.S.C. § 1401(a)(18).
The district court reinstated the reimbursement award of the LHO,
but reduced the amount by subtracting costs incurred prior to July 1,
1995, as barred by the statute of limitations.8 The court concluded that
because Newport had neglected to challenge the amount of the reim-
bursement award until after summary judgment was entered against
it,9 Newport had waived such arguments.
Stefan’s speech/language pathologist regarding Lovaas in general and its
effect on Stefan. Second, although IDEA prefers mainstreaming handi-
capped students, that provision was meant to prevent schools from segre-
gating handicapped students from the general student population, not to
restrict parental options. Carter v. Florence County Sch. Dist. Four, 950
F.2d 156, 160 (4th Cir. 1991). Moreover, mainstreaming was not neces-
sarily appropriate in this case due to the particularity of Stefan’s disabil-
ity.
8
The Parents do not challenge the district court’s reduction of the reim-
bursement amount on appeal.
9
Both the LHO and SRO concluded that because Newport challenged
only the Parents’ entitlement to the award, and not the amount of the
award, Newport had waived any such specific objections. The district
court relied on those conclusions by the LHO and SRO as well as the fact
that Newport did not initially object to the award amount before the dis-
trict court, but rather had agreed to rest its case on the administrative
record.
JAYNES v. NEWPORT NEWS SCHOOL BOARD 11
We hold that the district court did not abuse its discretion in refus-
ing to consider Newport’s new arguments. Although IDEA permits
the district court to hear new evidence, we have held that such evi-
dence is limited to that which could not have been presented before
the administrative agencies. Springer, 134 F.3d at 666-67 (upholding
district court’s refusal to hear testimony when same testimony could
have been introduced during local and state proceedings, but, for tac-
tical reasons, was not). In this case, the district court faulted Newport
for neglecting to challenge the award amount at any time prior to
entry of summary judgment, and Newport offers no excuse for its reti-
cence. The court correctly found that Newport made a tactical deci-
sion to forego opportunities to contest the award amount and was
estopped from now patching up holes in its administrative case.
The judgment of the district court is hereby affirmed.
AFFIRMED