Bd of Education v. Brett Y ( 1998 )

Filed: July 14, 1998
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-1936
(CA-97-364)
Board of Education of Montgomery County,
Plaintiff - Appellee,
versus
Brett Y, etc.,
Defendant - Appellant.
O R D E R
The court amends its opinion filed June 26, 1998, as follows:
On page 3, footnote 2, line 2 -- "Pub.L. No." is corrected to
read "Pub. L. No."
On page 8, footnote 9, line 2 -- the word "servies" is cor-
rected to read "services."
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BOARD OF EDUCATION OF
MONTGOMERY COUNTY,
Plaintiff-Appellee,
v.
No. 97-1936
BRETT Y, a minor, by his parents
and next friends, Mark and
Wendy Y,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CA-97-364)
Argued: January 27, 1998
Decided: June 26, 1998
Before HAMILTON and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished opinion. Judge Williams wrote the majority
opinion, in which Senior Judge Phillips joined. Judge Hamilton wrote
a dissenting opinion.
_________________________________________________________________
COUNSEL
ARGUED: Michael Jeffrey Eig, BOGIN & EIG, Washington, D.C.,
for Appellant. Janet E. Pitterle Holt, HOGAN & HARTSON, Wash-
ington, D.C., for Appellee. ON BRIEF: Matthew B. Bogin, Helen
Goff Foster, BOGIN & EIG, Washington, D.C., for Appellant.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
WILLIAMS, Circuit Judge:
Brett Yader,1 a minor, by his parents and next friends Mark and
Wendy Yader, appeals from the district court's decision denying the
Yaders' reimbursement for the costs of unilaterally placing Brett at
the Grove School (Grove), a private institution in Madison, Connecti-
cut. A state administrative law judge (ALJ) concluded that Brett
Yader was denied a free appropriate public education pursuant to the
Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A.
§ 1400 et seq. (West 1990 & Supp. 1997), and granted the Yaders'
request for reimbursement of the cost of Brett's residential placement
at Grove for the 1996-1997 school year. The Board of Education of
Montgomery County (the Board), filed suit against the Yaders in the
United States District Court for the District of Maryland challenging
the ALJ's decision, and the district court reversed.
We agree with the district court that the Montgomery County Pub-
lic School System (the school system) adequately complied with the
procedural requirements of the IDEA and that it provided Brett Yader
with an appropriate placement pursuant to the IDEA. We also con-
clude that the district court did not err in applying this Circuit's stan-
dard of review of state administrative decisions under the IDEA.
Thus, we affirm the district court's decision.
_________________________________________________________________
1 The caption for the case in federal district court was originally styled
Board of Educ. of Montgomery County v. Brett Y., to protect the identity
of the minor. The parties stated at oral argument, however, that they had
no objection to the use of Brett's full name.
2
I.
The IDEA is a complex statute designed to provide free appropriate
educational services to the more than eight million children with dis-
abilities in the United States. See 20 U.S.C.A. § 1400 (West Supp.
1997). The IDEA amended the Education of the Handicapped Act, 20
U.S.C.A. § 1401 et seq. (West 1990), which provided federal funds
to state and local agencies to assist in the education of handicapped
children, conditioning such funding upon the states' compliance with
mandated goals and procedures.2
The IDEA, like its predecessor, requires that all children with dis-
abilities be provided with a "free appropriate public education"
(FAPE). 20 U.S.C.A. § 1400(c) (West Supp. 1997). FAPE is defined
as special education and related services that: (1) are provided under
public supervision and at public expense without cost to parents; (2)
meet the standards of the state educational agency; (3) include an
appropriate preschool, elementary, or secondary school education;
and (4) are provided in conformity with the individualized education
program required by § 1414(a)(5) of the Act. See 20 U.S.C.A.
§ 1401(a)(18) (West 1990).
To receive funds from a state educational agency, local educational
agencies and intermediate educational units must provide assurance
that they will develop an "individualized education program" (IEP)
for each child with a disability at the beginning of each school year
and will review and, if appropriate, revise, the IEP's provisions peri-
odically, but not less than annually. See 20 U.S.C.A. §§ 1401(a)(20),
1414(a)(5) (West Supp. 1997). The IEP is a written statement devel-
oped through a meeting of a representative of the local educational
agency, the child's teacher, the child's parent or guardian, and, when
appropriate, the child. See 20 U.S.C.A.§ 1401(a)(20) (West Supp.
_________________________________________________________________
2 The 1990 amendments substituted"Individuals with Disabilities Edu-
cation Act" for "Education of the Handicapped Act." See Pub. L. No.
101-476, § 901(a)(1), 104 Stat. 1103, 1141-42 (1990), codified at 20
U.S.C.A. § 1400(a) (West Supp. 1997). For ease of reference, we refer
only to the IDEA, even when discussing cases interpreting the Act prior
to the 1990 amendments. See Gadsby v. Grasmick , 109 F.3d 940, 942 n.1
(4th Cir. 1997).
3
1997). The IEP must include: (1) a statement of the child's present
levels of educational performance; (2) a statement of annual goals,
including short-term objectives; (3) a statement of the specific educa-
tional services to be provided to the child and the extent to which the
child will participate in regular educational programs; (4) a statement
of the needed transition services for students beginning no later than
age 16 and annually thereafter; (5) the date for the initiation and dura-
tion of the educational services; and (6) objective criteria and evalua-
tion procedures and schedules for determining, at least annually,
whether the instructional objectives are being achieved. See id.The IDEA also requires that prior written notice be given to the
parents of a child whenever a local education agency or intermediate
educational unit proposes to initiate or change the identification, eval-
uation, or educational placement of the child, or the provision of a
FAPE to the child. See 20 U.S.C.A. § 1415(b)(1)(C) (West 1990). If
a complaint is made regarding any of these matters, the parents must
be provided an impartial due process hearing conducted by the state
educational agency, local educational agency, or intermediate educa-
tional unit, as determined by state law. See 20 U.S.C.A. § 1415(b)(2)
(West 1990).3
Maryland law requires that a parent's request for a due process
hearing be made through the Office of Administrative Hearings. See
Md. Code Ann., Educ. § 8-413(c) (Michie 1997). The Office of
Administrative Hearings will then appoint an impartial ALJ to review
the child's education placement. See id. Within 180 days of the hear-
ing decision, any party may appeal to the United States District Court
for the District of Maryland or to the circuit court for the county in
which the student resides. See id. at § 8-413(h).
_________________________________________________________________
3 The federal regulations implementing the IDEA similarly provide that
a parent or a public educational agency may initiate an impartial due pro-
cess hearing on any matters relating to the initiation or change in the
identification, evaluation, or educational placement of a child, or the pro-
vision of a FAPE to a child, or the refusal to initiate or change the identi-
fication, evaluation, or educational placement of a child, or the provision
of a FAPE to a child. See 34 C.F.R. §§ 300.504(a)(1) & (2), 300.506
(1997).
4
The IDEA requires that state educational agencies establish and
maintain procedures to ensure that children with disabilities and their
parents are guaranteed procedural safeguards in the state agencies'
provision of a FAPE. See 20 U.S.C.A. § 1415 (West Supp. 1997). In
keeping with this requirement, Maryland has promulgated regulations
implementing its Education Article, Title 8, Subtitles 3 and 4, which
guarantee a FAPE for all students with disabilities. See Md. Regs.
Code tit. 13A, § 05.01 (1989).
Maryland's implementing regulations require that an IEP must be
approved by an Admission, Review, and Dismissal Committee (ARD
Committee). See Md. Regs. Code tit. 13A, § 05.01.08 (1991). The
ARD Committee is to be composed of a chairman designated by the
local superintendent, individuals who are familiar with the student's
functioning (including a special educator and interdisciplinary person-
nel from the public agency and the local health department), and other
appropriate persons, such as those expected to become deliverers of
direct service to the student. See Md. Regs. Code tit. 13A,
§ 05.01.08(A) (1991). An ARD Committee meeting must be open to
the child's parents, who shall be notified of the meeting at least 10
days in advance. See Md. Code Ann., Educ. § 8-405 (Michie 1997).
II.
Brett Yader is a severely emotionally disturbed high school stu-
dent. He has been diagnosed with oppositional defiant disorder, anxi-
ety disorder, and attention deficit hyperactivity disorder (ADHD).
Although Brett has experienced emotional problems for which he has
received therapy intermittently since the age of five, none of his emo-
tional problems affected his education until he reached the eighth
grade.
Brett attended the Montgomery County Public Schools in Mont-
gomery County, Maryland, during the 1994-95 and 1995-96 school
years. In May of 1995, while attending Takoma Park Middle School,
Brett was diagnosed with ADHD. In response, the school prepared an
accommodation plan for Brett.
In the fall of 1995, Brett began ninth grade at Richard Montgomery
High School. In October, Brett's accommodation plan was routinely
5
reviewed, and he was performing well academically. Brett's atten-
dance during the fall of 1995 declined, however. As a result, the
school system began a screening process on December 6, 1995, which
eventually led to an evaluation by the ARD Committee.
On January 17, 1996, the ARD Committee met to evaluate Brett.
The Committee determined that Brett was disabled and eligible for
special education services. The Yaders attended this meeting. The
ARD Committee developed an IEP for the remainder of the 1995-96
school year. At the request of the Yaders, the IEP stated that Brett
was "other health impaired" rather than "seriously emotionally
disturbed."4 (J.A. at 178.) The ARD Committee determined that Brett
would receive Intensity II5 special education services during the
remainder of the 1995-96 school year at the Richard Montgomery
High School.
_________________________________________________________________
4 The federal regulations implementing the IDEA state that "other
health impairment" means "having limited strength, vitality or alertness,
due to chronic or acute health problems such as a heart condition, tuber-
culosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemo-
philia, epilepsy, lead poisoning, leukemia, or diabetes that adversely
affects a child's educational performance." 34 C.F.R. § 300.7(b)(8)
(1997).
According to the regulations, "serious emotional disturbance" is
defined as:
a condition exhibiting one or more of the following characteris-
tics over a long period of time and to a marked degree that
adversely affects a child's educational performance-- (A) An
inability to learn that cannot be explained by intellectual, sen-
sory, or health factors; (B) An inability to build or maintain satis-
factory interpersonal relationships with peers and teachers; (C)
Inappropriate types of behavior or feelings under normal circum-
stances; (D) A general pervasive mood of unhappiness or depres-
sion; or (E) A tendency to develop physical symptoms or fears
associated with personal or school problems.
34 C.F.R. § 300.7(b)(9) (1997).
5 The Maryland regulations provide in part that Intensity II services
"may be considered appropriate for the student who may be appropri-
ately served by receiving service through the special education program,
not to exceed an average of 1 hour per school day." Md. Regs. Code tit.
13A, § 05.01.10(E)(3) (1991).
6
The IEP was reviewed after sixty days. The March 6, 1996, review
indicated that Brett's attendance at school had "greatly improved,"
and that he was performing well academically. Comments made by
Brett's family, however, indicated that Brett "was going into crisis at
home," (J.A. at 174), and that he possibly needed hospitalization.
(J.A. at 175.) Although he was attending school regularly, Brett's
behavior at home was characterized by his parents as"angry, border-
ing on violen[t]." (J.A. at 290.)
On April 17, 1996, an ARD Committee meeting was held to con-
duct a review of Brett's IEP. The ARD Committee concluded that
Brett's academic performance had continued to improve in Intensity
II placement. Brett attended Richard Montgomery High School for
the remainder of the 1995-96 school year. Brett's school attendance
rapidly declined, however, near the end of the school year. On or
about June 10, 1996, Brett stopped attending school altogether. He
slept all day, stayed up all night, and refused to leave his home or his
bed. In response to this crisis, Brett's parents had him evaluated at the
Sheppard Pratt Psychiatric Hospital, but had to request police inter-
vention to get Brett to attend the evaluation. Although after his evalu-
ation Brett was admitted to the American Day Treatment Center in
Chevy Chase, Maryland, for the most part he refused to attend the
program.
On June 19, 1996, another ARD Committee meeting was con-
vened. The IEP developed at this ARD meeting stated for the first
time that Brett was "seriously emotionally disturbed." (J.A. at 177.)
The ARD Committee determined that Brett's needs could not be met
in a general education program and recommended a therapeutic day
school.
Brett's folder was forwarded to the Montgomery County Public
Schools' central office for consideration of whether his special educa-
tion services should be increased to Intensity V or VI,6 and, if so, for
_________________________________________________________________
6 The Maryland regulations define Intensity V services in part as "ap-
propriate for the student who requires a more intensive special education
program than Intensities I-IV." Md. Regs. Code tit. 13A,
§ 05.01.10(E)(6) (1991). The regulations define Intensity VI services in
7
a determination of an appropriate placement for Brett.7 David Cross,
a placement specialist with the Montgomery County Public Schools,
received Brett's file on approximately July 12, 1996.8 Mr. Cross testi-
fied that he reviewed Brett's file the next day and determined that it
needed to be supplemented with an updated psychological evaluation.
He requested an evaluation from the school psychologist, Dr. Rene
Johnson. Dr. Johnson made two attempts to obtain a psychological
evaluation of Brett but was unable to do so because Brett would not
cooperate. Mr. Cross then requested that a psychologist from the
school system's "Rapid Response Team" attempt to perform a psy-
chological evaluation. That psychologist was also unsuccessful in
obtaining an updated evaluation of Brett because Brett would not
leave the house. After these unsuccessful attempts to obtain a further
psychological evaluation of Brett, Mr. Cross scheduled a CARD
Committee meeting9 for August 26, 1996.
_________________________________________________________________
part as "appropriate for the student who requires special education pro-
gramming and related services in a residential setting. This includes 24-
hour special education and related services if determined by the Admis-
sion, Review, and Dismissal Committee to be necessary to implement the
student's individualized education program." Md. Regs. Code tit. 13A,
§ 05.01.10(E)(7) (1991).
7 In the Montgomery County Public School System, if a student's spe-
cial education needs cannot be met within his current school setting, the
child's file is referred to the central office for consideration whether the
child needs Intensity V or VI services. The file must be reviewed by a
placement specialist to determine whether it requires any additional
information. Next, a Central Admission, Review, and Dismissal (CARD)
Committee meeting must be scheduled for an evaluation of the student
and recommendation for appropriate services. As with an ARD Commit-
tee meeting, the CARD Committee meeting must be open to the child's
parents, who shall be notified of the meeting at least 10 days in advance.
8 The ALJ found that "[t]here is no dispute that the file was sent to the
central offices on or before June 30, 1996 although no one was able to
document the exact date." (J.A. at 315.) There is no explanation why Mr.
Cross, the placement specialist, did not receive the file until approxi-
mately July 12.
9 In the Montgomery County Public School System, if a student
requires Intensity V or VI services and his needs cannot be met within his
current school setting, a Central Admission, Review, and Dismissal
(CARD) Committee meeting must be scheduled to evaluate the student
and recommend appropriate services. See discussion ante, n.7.
8
Meanwhile, Mrs. Yader visited the educational and treatment facil-
ities at both the Regional Institute for Children and Adolescents
(RICA) and Grove during the summer of 1996. On July 15, 1996, the
Yaders, through counsel, requested a due process hearing to review
the school system's identification, evaluation, or placement for spe-
cial education services for Brett. Although Brett was accepted at
Grove on or about July 17, 1996, the Yaders did not withdraw their
due process hearing request.
Due to other student meetings, both counsel for the Yaders and Mr.
Cross were unavailable on August 26, 1996, so the CARD Committee
meeting was convened instead on August 30, 1996. At that meeting,
Brett's IEP was modified to recommend that Brett be offered Inten-
sity V services with a possible residential placement to address his
non-educational needs. Brett was given an interim placement at Rich-
ard Montgomery High School with Intensity III services.10 The
CARD Committee referred Brett for an interview at RICA in Rock-
ville, Maryland, and told the Yaders that a place was being held for
Brett at RICA for the 1996-97 school year.11 The Yaders' counsel
made clear that Brett would not attend RICA even if he were accepted
after the interview because the Yaders had already made plans for
Brett to attend Grove. Nevertheless, Brett interviewed at RICA on
September 4, 1996, and was accepted into the residential program.
The Montgomery County Public School System's school year
began on September 3, 1996. Counsel for the Yaders was notified of
Brett's acceptance at RICA in writing by a letter dated September 10,
1996. The Yaders were notified in writing by a letter dated September
12, 1996, that Brett had been accepted at RICA for Intensity V special
_________________________________________________________________
10 The Maryland regulations provide that Intensity III services "may be
considered appropriate for the student who may be appropriately served
by receiving special educational services not to exceed an average of 3
hours per school day." Md. Regs. Code tit. 13A,§ 05.01.10(E)(4) (1991).
11 RICA is jointly funded and operated by the State of Maryland's
Department of Health and Mental Hygiene and the Montgomery County
Public Schools. The Montgomery County Public School System, how-
ever, cannot make a placement at RICA, but can only refer a child to
RICA for an interview. RICA then determines whether the child is an
appropriate candidate and should be admitted to its program.
9
education and enrollment in the residential program to address Brett's
non-educational needs. As stated earlier, however, Brett previously
had been enrolled at Grove and attended Grove for the entire duration
of the 1996-97 school year.
Because the Yaders had requested a due process hearing on July
15, 1996, the ALJ held hearings on October 1, 1996, and November
1, 1996, to review Brett's placement. The ALJ issued a decision on
December 16, 1996, finding that the school system had committed
serious procedural violations of the IDEA, denying Brett a FAPE. The
Board appealed the ALJ's decision, and, after a bench trial, the dis-
trict court reversed. The Yaders now appeal, arguing that the district
court failed to apply the proper standard of review, that the school
system did not comply with the procedural requirements of the IDEA
in the development of Brett's IEP, and that the school system's ulti-
mate placement did not meet Brett's special education needs.
III.
To determine whether the Yaders are entitled to reimbursement for
placing Brett at Grove during the 1996-97 school year, we must deter-
mine whether the August 30, 1996, IEP proposed by the CARD Com-
mittee was appropriate. In determining whether an IEP is appropriate
and whether the school system has fulfilled its obligations to provide
a student with a FAPE, the proper inquiry is twofold. See Board of
Educ. v. Rowley, 458 U.S. 176, 206 (1982). We must decide: (1)
whether the State has complied with the IDEA's procedural require-
ments in developing and implementing the IEP and (2) whether the
IEP is "reasonably calculated" to enable the child to receive educa-
tional benefits. See id. at 206-07. The failure to meet the procedural
requirements of the Act itself is an "adequate groun[d] . . . for holding
that a school failed to provide . . . a FAPE." Hall v. Vance County Bd.
of Educ., 774 F.2d 629, 635 (4th Cir. 1985).
Courts reviewing state administrative decisions in IDEA cases
must make "independent decision[s] based on a preponderance of the
evidence." Rowley, 458 U.S. at 205 (internal quotation omitted) (alter-
ation in original). It is implicit in the IDEA, however, that the review-
ing court should give due weight to administrative findings. See id.
at 206. This Circuit further refined the standard of review in Doyle v.
10
Arlington County Sch. Bd., 953 F.2d 100 (4th Cir. 1992), holding that
findings of fact by administrative law judges and hearing officers in
IDEA cases "are entitled to be considered prima facie correct, akin to
the traditional sense of permitting a result to be based on such fact-
finding, but not requiring it." Id. at 105. Furthermore, we noted that
"when fact-findings are regularly made and entitled to prima facie
correctness, the district court, if it is not going to follow them, is
required to explain why it does not." Id.In reviewing the findings of the ALJ and the district court with
regard to Brett's need for a residential placement, we are bound by
the same standard of review set forth by the Supreme Court in Rowley
and later refined by this Circuit in Doyle. We must "make an indepen-
dent decision based on a preponderance of the evidence, while giving
due weight to state administrative proceedings." Id. at 103 (citing
Rowley, 458 U.S. at 206).
The Yaders argue that the district court failed to give due deference
to the ALJ's findings of fact, as required by this Court's mandate in
Doyle, resulting in reversible error. We disagree. We conclude that,
while the district court did reject several of the ALJ's findings of fact,
the district court adhered to the appropriate standard of review by pro-
viding well reasoned explanations for rejecting the ALJ's findings.12
A. Procedural Requirements
The ALJ determined that the school system committed two serious
procedural violations that caused Brett to lose educational opportu-
nity. First, the ALJ concluded that the school system's extensive
delay in convening the CARD Committee meeting and its resulting
_________________________________________________________________
12 The district court never specifically cited Doyle. The district court
did, however, cite a district court case which articulated the Doyle stan-
dard. See Board of Educ. of Montgomery County v. Brett Y., No. 97-364,
at 8-9 (D. Md. July 9, 1997) (citing Sanger v. Montgomery County Bd.
of Educ., 916 F. Supp. 518, 521 (D. Md. 1996)). While it would have
been preferable for the district court to rely on this Court's precedent, the
district court did not apply the incorrect standard of review merely
because it relied upon a district court case stating the same legal stan-
dard.
11
failure to develop and implement the IEP in a timely fashion caused
Brett to lose educational opportunity. Second, the ALJ concluded that
deficiencies in the IEP caused Brett to lose educational opportunity.13
In considering whether the district court was correct in rejecting the
ALJ's findings, we keep in mind that the deferential standard
announced in Doyle also extends to the ALJ's findings regarding the
Board's compliance vel non with the procedural requirements of the
IDEA. See Doyle, 953 F.2d at 106 n.6. We agree with the district
court that any delay by the school system in convening a CARD
Committee meeting and any deficiencies in the IEP did not deny Brett
educational opportunity.
1.
First, the ALJ found that the delay in convening the CARD Com-
mittee meeting -- from June 19, 1996 to August 30, 1996 -- caused
Brett to lose educational opportunity. The ALJ also found that "there
was no IEP in effect at the start of the school year." (J.A. at 315.)
The ALJ stated, "[w]hat is most troubling about the procedural his-
tory in this case is the extended delay between the June 19, 1996
ARD meeting and the CARD meeting held on August 30, 1996."
(J.A. at 315.) The district court agreed that "it would have been pref-
erable for [the school system] to act more expeditiously to finalize
Brett's IEP and make a placement decision." (J.A. at 463.) The dis-
trict court concluded, however, that the timing of events was not so
egregious as to constitute a violation by the school system of Brett's
procedural rights provided under the IDEA.
In keeping with the deferential standard of review announced in
Doyle, the district court gave reasons for rejecting the ALJ's finding.
The district court noted that after the June 19, 1996, ARD meeting,
Brett's file was sent to the central placement office, where it arrived
on approximately July 12, 1996. Mr. Cross testified at the bench trial
_________________________________________________________________
13 While the ALJ characterized these deficiencies as procedural, the dis-
trict court characterized them as substantive. Whether the alleged defi-
ciencies in the IEP are characterized as procedural or substantive,
however, does not change our conclusion that Brett was not denied a
FAPE.
12
that it normally took a month to schedule a CARD Committee meet-
ing from the time the central placement office received the file, but,
in this case, the first open date was approximately six weeks from the
date Brett's file was received, on August 26, 1996.14
The ALJ stated, "I see nothing in either the federal or State regula-
tions that entitles a public agency to do nothing because it's summer
_________________________________________________________________
14 There is some confusion in the record and in the district court's opin-
ion about the school system's usual length of time for scheduling a
CARD Committee meeting. We must only determine, however, whether
the district court properly held that the school system complied with the
requirements of the IDEA. The IDEA requires that the IEP must be
established or revised "at the beginning of each school year and [then
reviewed] and, if appropriate, [revised], .. . periodically, but not less
than annually." 20 U.S.C.A. § 1414(a)(5) (West Supp. 1997); see also
Gadsby v. Grasmick, 109 F.3d 940, 950 (4th Cir. 1997) (noting that fail-
ure to develop an IEP prior to the beginning of the school year violates
IDEA); Combs v. Rockingham County Sch. Bd., 15 F.3d 357, 358 (4th
Cir. 1994) (noting IDEA requires that schools establish IEP, review it
annually, and revise it when appropriate). Furthermore, in conjunction
with the federal regulations, the Secretary of Education noted that "the
timing of meetings to develop, review, and revise IEPs is left to the dis-
cretion of each agency" and "[m]eetings may be held any time through-
out the year, as long as IEPs are in effect at the beginning of each school
year." 34 C.F.R. § 300.343 note (1997). Brett's IEP, which was origi-
nally established on January 17, 1996, was reviewed after sixty days on
March 6, 1996; reviewed again on April 17, 1996; reviewed and revised
on June 19, 1996, after Brett's behavior and performance had declined;
and reviewed again on August 30, 1996, at the CARD Committee meet-
ing. Thus, Brett's IEP was reviewed four times within the year it was ini-
tially developed and prior to the beginning of the school year. We
conclude this was sufficient to meet the requirements of the IDEA.
We note that the Yaders requested at the June 19, 1996, ARD Commit-
tee meeting that a CARD Committee meeting be convened as quickly as
possible. We acknowledge that the IDEA emphasizes parental involve-
ment and that the school system could have acted more quickly to honor
the Yaders' request to have Brett's case expedited. Although the school
system's handling of Brett's case was not a model of efficiency, the
school system has to deal with many cases. In short, although the school
system could have acted more quickly, it did not violate the statute's
requirements.
13
time." (J.A. at 318.). Contrary to the ALJ's assertion, the district court
correctly noted that the Secretary of Education's interpretive guide-
lines do recognize that time constraints may be relaxed during the
summer or a vacation period. The interpretive guidelines provide that
an IEP must be implemented as soon as possible, except when the
meetings occur during the summer or a vacation period. See 34 C.F.R.
§ 300.342(b) note (1997).15 Furthermore, as the district court found,
the school system was not "doing nothing." It was attempting to
obtain a psychological evaluation and then was moving forward to
schedule the CARD Committee meeting. While we agree with the
district court that in hindsight it would have been ideal if the school
system had treated this case as an emergency and acted immediately,
the statute and regulations do not require the school system to act
more expeditiously than it did.
The district court also rejected the ALJ's finding that there was no
IEP in effect at the start of the school year. In accordance with Doyle,
the district court explained its rationale for finding that Brett's IEP
_________________________________________________________________
15 The Secretary of Education has authority to issue rules and regula-
tions to carry out the provisions of the IDEA. See 20 U.S.C.A. § 1417(b)
(West 1990).
The Secretary's interpretive guidelines, like the EEOC's guidelines
interpreting Title VII and the ADA, are "not controlling upon the courts
by reason of their authority." Meritor Sav. Bank, FSB v. Vinson, 477 U.S.
57, 65 (1986). When consistent with the statute, they do "constitute a
body of experience and informed judgment to which courts and litigants
may properly resort for guidance." Id. (internal quotation marks and cita-
tion omitted); see also Halperin v. Abacus Technology Corp., 128 F.3d
191, 199 n.12 (4th Cir. 1997).
We believe that the interpretive guideline's exception for summer or
vacation periods is consistent with the federal regulation's requirement
that an IEP be implemented "as soon as possible following the meetings
under § 300.343," see 34 C.F.R. § 300.342 (1997), because the school
system is likely not to be offering educational services during those peri-
ods and, therefore, could not practically implement the IEP. We do not
reach the question, however, of whether the interpretive guideline would
remain consistent with the regulation in a situation where the school sys-
tem is offering special education services during a summer school ses-
sion.
14
was "in effect" following the August 30, 1996, CARD Committee
meeting and that the IEP was timely implemented. While we adopt
a slightly different rationale from the district court, we agree that the
IEP was developed and implemented at the beginning of the school
year in accordance with the requirements of the IDEA.
To determine what the IDEA requires for an IEP to be developed
in a timely fashion, we begin by examining the language used in the
statute. See Shafer v. Preston Memorial Hosp. Corp., 107 F.3d 274,
277 (4th Cir. 1997). "When Congress does not expressly define a stat-
utory term or phrase, a court should normally construe it in accord
with its ordinary or natural meaning." Id. (internal quotation marks
omitted). "In most cases, if the statutory language is plain and admits
of no more than one meaning, the duty of interpretation does not
arise, and . . . the sole function of the courts is to enforce [the statute]
according to its terms." Id. (internal quotation marks omitted) (alter-
ation in original).
With these principles of statutory interpretation in mind, we con-
sider the relevant statutory language. The IDEA conditions the receipt
of federal funds upon the requirement that local educational agencies
and intermediate educational agencies submit an application to the
state educational agency. According to the IDEA,"[s]uch application
shall . . . provide assurances that the local educational agency or inter-
mediate educational unit will establish or revise, whichever is appro-
priate, an individualized education program for each child with a
disability . . . at the beginning of each school year and will then
review and, if appropriate, revise, its provisions periodically, but not
less than annually." 20 U.S.C.A. § 1414(a)(5) (West Supp. 1997). The
Montgomery County school year began on September 3, 1996. There-
fore, according to the plain meaning of the statute, Brett's IEP was
timely if "established or revised" prior to September 3, 1996. Because
Brett's IEP, which was originally established on January 17, 1996,
was revised at the CARD Committee meeting on August 30, 1996, we
conclude that it was developed in a timely fashion.
The ALJ concluded that Brett's IEP was not in effect at the start
of the school year because Brett had only been provided the opportu-
nity to interview at RICA and had not yet been formally accepted into
RICA's residential program. The statute merely requires, however,
15
that an IEP contain "a statement of the specific educational services
to be provided to [the] child." 20 U.S.C.A. § 1401(a)(20) (West Supp.
1997). The IEP stated that Brett would receive Intensity V special
education services, with an interagency option for residential place-
ment. Thus, it did contain a statement of the services to be provided.
Because we conclude that this description of services met Brett's edu-
cational needs,16 we conclude that, contrary to the ALJ's assertion, the
IEP was properly in effect. Furthermore, Maryland's regulations
allow thirty days for implementation of the IEP.17 See Md. Regs.
Code tit. 13A, § 05.01.09(C) (1991). Thus, the school system had a
short period of time to implement the IEP, and RICA did accept Brett
into the residential program within thirty days.18
In concluding that Brett's IEP was timely, the district court relied
upon both the Secretary of Education's federal regulations and inter-
pretive guidelines. The federal regulations provide:
(a) At the beginning of each school year, each public
agency shall have in effect an IEP for every child with a dis-
ability who is receiving special education from that agency.
(b) An IEP must--
(1) Be in effect before special education and
related services are provided to a child; and
_________________________________________________________________
16 See discussion post , at 20-24.
17 See discussion post , at 17-19.
18 As we noted ante, n. 11, RICA is jointly funded and operated by the
State of Maryland's Department of Health and Mental Hygiene and the
Montgomery County Public Schools. The Montgomery County Public
School System cannot make a residential placement at RICA, but can
only refer a child to RICA for an interview. RICA then determines
whether the child is an appropriate candidate and should be admitted to
its program. As counsel for the Board noted during oral argument, the
school system ultimately provided Brett with a placement that would
allow therapeutic treatment during the day at RICA for Brett's educa-
tional needs and a residential placement for Brett's non-educational
needs.
16
(2) Be implemented as soon as possible follow-
ing the meetings under § 300.343.
34 C.F.R. § 300.342 (1997) (emphasis added). In addition, the Secre-
tary's interpretive guidelines provide that an IEP is considered "in
effect" when the IEP (1) has been developed properly (at meetings
involving all of the participants specified in the statute); (2) is
regarded by both the parents and agency as appropriate with respect
to the child's needs, goals and objectives, and services to be provided;
and (3) will be implemented as written. See 34 C.F.R. pt. 300 app. C
(question 3) (1997).
The district court, finding that all three requirements in appendix
C, question 3, were met, concluded that the IEP was "in effect" as of
August 30, 1996. First, the district court found that the IEP was devel-
oped properly at a meeting involving all of the participants specified
in the statute, noting that Brett's parents attended the August 30,
1996, CARD Committee meeting. Second, the district court con-
cluded that Brett's parents regarded the IEP as appropriate with
regard to Brett's needs, goals and objectives, and services to be pro-
vided. Finally, the district court concluded that the school system
sought to implement the IEP as written by arranging an interview for
Brett at RICA. As the district court noted, the school system and the
Yaders knew that a place was being held for Brett at RICA. Finding
that all three requirements were met, the district court concluded that
the IEP was "in effect" prior to the beginning of the school year.
We question the district court's conclusion that the Yaders agreed
that the IEP was appropriate. First, the district court erred in finding
that the IEP was signed by Brett's parents.19 The ALJ correctly found
that neither the Yaders nor the CARD Committee chairman signed the
IEP. Second, the Yaders' disagreement with the IEP and Brett's
placement is the fundamental dispute underlying this action.
_________________________________________________________________
19 While the district court erred in finding that the IEP was signed by
Brett's parents, the fact that the Yaders did not sign the IEP does not nec-
essarily prevent the IEP from being "in effect" pursuant to the interpre-
tive guidelines. The interpretive guidelines themselves state that parents
are not required to sign IEPs. See 34 C.F.R. pt. 300 app. C (question 29)
(1997).
17
We need not dwell on whether the parents signed the IEP, whether
they agreed that it was appropriate, or whether the school system
complied with the interpretive guideline because we believe that the
second element of the interpretive guideline is inconsistent with the
statute. The second element of the guideline requires that, to be "in
effect," the IEP must be "regarded by both the parents and agency as
appropriate with respect to the child's needs, goals and objectives,
and services to be provided." See 34 C.F.R. pt. 300 app. C (question
3) (1997). In some cases, the parents, although involved in the process
of developing the IEP, will ultimately disagree with the substantive
content of the IEP. In such cases, the recourse available to parents is
to request a due process hearing, see 20 U.S.C.A. § 1415(b)(2) (West
1990), and, if necessary, to unilaterally withdraw their child and place
the child in a different educational setting pending the resolution of
their claim, see Burlington School Committee v. Department of Educ.,
471 U.S. 359, 369-70 (1985). See also Florence County Sch. Dist. v.
Carter, 510 U.S. 7 (1993) (holding parents may be reimbursed for
unilateral placement even if private school did not meet requirements
of IDEA or state standards). If, as the interpretive guideline suggests,
parents could simply refuse to agree with an IEP and thereby prevent
the IEP from being properly "in effect," school boards could never
fully comply with the IDEA's procedural requirements.20 We believe
this is not the practical effect the statute and regulations were
designed to create.21 We agree with the district court that Brett's IEP
was properly in place at the beginning of the school year in compli-
ance with the IDEA. Because the Secretary's interpretive guideline is
inconsistent with the statute, however, we rely, as we must, upon the
statute's plain meaning. See Kmart Corp. v. Cartier, Inc., 486 U.S.
_________________________________________________________________
20 The district court alludes to this inconsistency between the interpre-
tive guideline and the statute but never fully discusses it. See Board of
Educ. of Montgomery County v. Brett Y., No. 97 364, at 12 n.2 (D. Md.
July 9, 1997).
21 We do not mean to imply that school systems can exclude parents
from full participation in the development of the IEP. The IDEA requires
parental involvement. See 20 U.S.C.A. § 1401(a)(20) (West Supp. 1997).
We have also noted that the "spirit and intent" of the IEP development
process "emphasizes parental involvement." Spielberg v. Henrico County
Pub. Sch., 853 F.2d 256, 259 (4th Cir. 1988) (holding school system
erred in making placement determination prior to development of IEP).
18
281, 291 (1988) (noting courts do not defer to agency's interpretation
to alter the express intent of Congress).
Because the ALJ found that the IEP was not in effect at the start
of the school year, it follows that she could not have concluded that
the IEP was timely implemented. The district court disagreed. We
also conclude that the district court was correct in its assessment that
Brett's IEP was implemented in a timely fashion. The IDEA does not
address what is required for the timely implementation of an IEP once
it has been developed. It is well-established that when a "statute is
silent or ambiguous with respect to [a] specific issue, the question for
the court is whether the agency's answer is based on a permissible
construction of the statute." Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). The fed-
eral regulations provide that an IEP must "[b]e implemented as soon
as possible following the meetings under § 300.343." 34 C.F.R.
§ 300.342 (1997). The interpretive guidelines state that the special
education services specified in an IEP must be provided "as soon as
possible" following the meeting and that "no delay is permissible."
See 34 C.F.R. Pt. 300 app. C (question 4) (1997). The Maryland regu-
lations specifically provide that the IEP "shall be implemented as
soon as possible and not more than 30 school calendar days following
its development." Md. Regs. Code tit. 13A, § 05.01.09(C) (1991).
We believe that although both phrases are somewhat ambiguous,
the interpretive guideline's statement that "no delay is permissible" is
plainly inconsistent with the federal regulation's statement that the
IEP must be implemented "as soon as possible." Compare 34 C.F.R.
Pt. 300 app. C (question 4) (1997) with 34 C.F.R. § 300.342 (1997).
We believe, however, that Maryland's thirty-day period is well within
the federal regulations' requirement that implementation of the IEP
occur "as soon as possible." Cf. Gadsby v. Grasmick, 109 F.3d 940,
954 n.5 (4th Cir. 1997) (noting parents "failed to show that Mary-
land's interagency review process for out-of-state residential place-
ments under IDEA causes undue delays in the implementation of
proposed IEPs"). We, therefore, conclude that the interpretive guide-
line's provision that "no delay is permissible" in the implementation
of the IEP is inconsistent with the federal regulations. Both the Secre-
tary's federal regulation providing that the IEP must be implemented
"as soon as possible" and the Maryland regulation's requirement that
19
the IEP must be implemented within thirty days, however, are based
upon permissible constructions of the statute.
The IEP was developed on August 30, 1996. The Yaders were
informed that Brett was accepted at RICA on September 12, 1996. As
the district court noted, "Brett's IEP could have been implemented at
RICA by the middle of September, well within the 30 school calendar
days that [the school system] had to implement the IEP without com-
mitting a procedural violation." (J.A. at 461.) Thus, the district court
did not err in rejecting the ALJ's finding of fact that the implementa-
tion of the IEP was untimely.
2.
Second, the ALJ concluded that deficiencies in the IEP caused
Brett to lose educational opportunity. Specifically, the ALJ found that
the school system's failure to include appropriate objective criteria
and evaluation procedures for measuring goals, internal inconsisten-
cies in the IEP, and failure to update the IEP to reflect the extent of
Brett's disability and most recent educational performance were pro-
cedurally deficient under the IDEA.22 Even assuming that these defi-
_________________________________________________________________
22 Although the dissent finds fault with the substantive content of the
IEP, it concedes that the school district complied with the procedural
requirements of the IDEA. See post at 29-30. It is well-settled that "ade-
quate compliance with the procedures prescribed . . . in most cases
assure[s] much if not all of what Congress wished in the way of substan-
tive content in an IEP." See Board of Educ. v. Rowley, 458 U.S. 176, 206
(1982). We believe that this case is no exception.
The dissent apparently believes that the substantive content of the IEP
was inadequate despite the Board's compliance with the Act's procedural
requirements. The dissent cites the IEP's failure to acknowledge that
Brett had gone into a "crisis" and refused to attend class altogether, its
failure to update goals and methods from previous IEPs, and the incon-
sistency in its methods for reaching prescribed goals. When the IEP was
revised in June of 1995, however, Brett's complete refusal to attend class
was just surfacing. Moreover, between June and August, the school sys-
tem could not get Brett to agree to an evaluation, so it had little new
information upon which to rely in revising the IEP.
We agree with the ALJ and the district court that the IEP developed
on August 30, 1996, could have been improved. The school system is not
20
ciencies in the IEP existed, we agree with the district court that none
of the alleged deficiencies relied upon by the ALJ constituted a denial
of a FAPE.
To support a finding that a student has not been provided with a
FAPE, procedural violations must be serious and cause the student to
lose educational opportunity. See Burke County Bd. of Educ. v.
Denton, 895 F.2d 973, 982 (4th Cir. 1990) (finding school board's
violation of state and federal procedural notice requirements did not
cause student to lose educational opportunity). The ALJ's primary
concerns about the procedural deficiencies in the IEP were that one
goal was unchanged from the April 1996 meeting (although the goal
was approved by Brett's parents as part of the IEP at the June 1996
meeting); at least two of the goals and objectives were unchanged
since the June 1996 meeting; Brett's educational performance was not
modified at the June or August meetings; the IEP failed to list the
appropriate accommodations for a student recommended for a Inten-
sity V; and the IEP neglected to list Brett's failure to attend class or
school. While we agree with both the ALJ and the district court that
the IEP developed on August 30, 1996, could have been improved,
none of these alleged procedural violations rises to a level indicating
that Brett lost educational opportunity.
That some goals were unchanged, in and of itself, is not significant.
The ALJ failed to articulate or specify how the goals had become out-
moded. In fact, the first goal listed on the IEP-- demonstrating
acceptance of school routines by attending school on a regular basis
and attending all classes on time -- clearly was a consistent, and
_________________________________________________________________
required, however, to develop a perfect IEP. Instead, the proper standard
is whether the IEP is "reasonably calculated" to confer educational bene-
fit. See id. at 206-07. We agree with the First Circuit when it stated:
The IDEA does not promise perfect solutions to the vexing prob-
lems posed by the existence of learning disabilities in children
and adolescents. The Act sets more modest goals: it emphasizes
an appropriate, rather than an ideal, education; it requires an ade-
quate, rather than an optimal, IEP. Appropriateness and ade-
quacy are terms of moderation.
Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1st Cir. 1993).
21
probably the most important, goal for Brett. Furthermore, without a
further psychological evaluation by the school psychologist, the
school system had little new information on Brett's condition with
which to revise the IEP, except the evaluations of the Sheppard Pratt
Hospital and the American Day Treatment Center, which the CARD
Committee did consider. Because Brett had not been in school since
June 10, he had no new academic evaluations, and thus his educa-
tional performance would not have been modified. In addition, his last
grades for the 1995-96 school year were based only upon the work
he completed, and he received all As and Bs. Cf. John Doe v. Defen-
dant I, 898 F.2d 1186, 1190 (6th Cir. 1990) (noting that student's
most recent grades were known by both his parents and school offi-
cials). The district court concluded that "[a]ny minor deficiencies in
the IEP in terms of describing Brett or setting objective criteria for
goals could have been corrected."23 (J.A. at 473.)
Furthermore, the district court relied upon the Yaders' failure to
challenge any of the alleged deficiencies at the August 30, 1996,
CARD Committee meeting when it concluded that the school system
did not deny Brett a FAPE. The district court noted that "[n]owhere
did the Yaders challenge other aspects of the IEP as being sufficiently
deficient by themselves to constitute a denial of FAPE." (J.A. at 466.)
_________________________________________________________________
23 The dissent, relying upon Spielberg v. Henrico County Pub. Schs.,
853 F.2d 256 (4th Cir. 1988), argues that after-the-fact correction of an
IEP does not conform with the IDEA. The dissent's reliance upon
Spielberg, however, is misplaced. See post at 34-35. In Spielberg, the
placement decision was made before the IEP was developed. In Brett's
case, the IEP was developed at a meeting attended by the Yaders, as
required by 20 U.S.C.A. § 1401(a)(20) (West Supp. 1998). The Yaders
participated in the development of the IEP and had the opportunity to
make objections. Thus, the school system here, unlike the school system
in Spielberg, complied with the procedural requirements of the IDEA.
While we agree with the dissent that modifications may not be made
to an IEP without scheduling a meeting and notifying the parents in com-
pliance with 20 U.S.C.A. § 1401(a)(20), if a school system has met the
procedural requirements of the IDEA, minor deficiencies in the IEP do
not necessarily deny a child a FAPE. As long as the IEP is "reasonably
calculated" to enable the child to receive educational benefit, the child
has not been denied a FAPE. See Board of Educ. v. Rowley, 458 U.S.
176, 179-81 (1982).
22
Instead, the Yaders challenged only the issue of residential placement
and timing of the placement.
Although not cited by the district court, the testimony at the due
process hearing and at the bench trial supports the district court's con-
clusion. David Cross, placement specialist for the Montgomery
County Public Schools, testified at the bench trial that everyone
agreed to the specific goals and objectives discussed at the August 30,
1996, CARD Committee meeting, and that neither the Yaders nor
their counsel suggested that additional, specific goals needed to be
added. When asked whether she or her counsel had criticized the IEP
at the August 30, 1996, meeting, Ms. Yader testified, "I can't honestly
say." (J.A. at 162.) While the district court may have explained more
fully why it rejected the ALJ's findings with respect to deficiencies
in the IEP, we do not believe that the district court committed revers-
ible error under the Doyle standard. In conclusion, none of these
alleged procedural deficiencies rose to the level of denying Brett edu-
cational opportunity.
B. Substance of IEP
Once we have determined that the state has complied with the
IDEA's procedural requirements in developing and implementing the
IEP, we turn to the second prong of the Rowley inquiry: whether the
IEP is "reasonably calculated" to enable the child to receive educa-
tional benefits.24 See Rowley, 458 U.S. at 206-07. The CARD Com-
_________________________________________________________________
24 The dissent is mistaken in its impression that we believe that compli-
ance with the IDEA's procedural requirements "cures" substantive defi-
ciencies in a child's IEP. See post at 30 n.1. We recognize, as our
majority opinion makes clear, that the Supreme Court's test in Rowley is
a two-pronged test. This Circuit has previously indicated, however, that
the second prong of the Rowley inquiry is more difficult to satisfy than
the first. See Tice v. Botetourt County Sch. Bd., 908 F.2d 1200, 1207 (4th
Cir. 1990). As we noted in Tice:
[T]he [Supreme] Court made clear in Rowley [that] once a proce-
durally proper IEP has been formulated, a reviewing court
should be reluctant indeed to second-guess the judgment of edu-
cation professionals. Neither the district court nor this court
should disturb an IEP simply because we disagree with its con-
23
mittee recommended Intensity V special education services, with an
"interagency option for [a] residential[placement]," noting that Brett
was scheduled for an interview at RICA. (J.A. at 275.) In the mean-
time, Brett was given an interim placement of Intensity III services
at Richard Montgomery High School. The interagency option for a
residential placement gave RICA the prerogative to enroll Brett as a
residential student upon its evaluation of Brett's needs.
Parents are entitled to reimbursement for their expenditures on pri-
vate special education services "if the court ultimately determines that
such placement, rather than a proposed IEP, is proper under the Act."
Burlington, 471 U.S. at 369. Parents may place a child in a private
educational institution if they disagree with the child's proposed IEP
without waiving their right to potential reimbursement later, but they
do so at their own financial risk; they will be barred from obtaining
reimbursement "[i]f the courts ultimately determine that the IEP pro-
posed by the school officials was appropriate." Id. at 374. The Yaders
claim that they are entitled to reimbursement for unilaterally placing
Brett at Grove because the CARD Committee's Intensity V placement
at RICA with an interagency option for residential services was inap-
propriate to meet Brett's special education needs.
We have held that a residential placement that is necessary for
"medical, social, or emotional problems that are segregable from the
learning process" need not be funded by the local education agency.
Denton, 895 F.2d at 980. The ALJ made a conclusory determination
that Brett needed a residential placement for educational reasons, not-
ing under the "Findings of Fact" portion of her opinion that "[Brett]
needs a residential placement in order to achieve educational benefit."
(J.A. at 307.) Later, she stated, "It is clear from the record, including
the testimony of Mr. Chorney and Ms. Kelty, as well as the reports
from the American Day Treatment Program and Sheppard Pratt, that
_________________________________________________________________
tent. Rather, we must defer to educators' decisions as long as an
IEP provided the child "the basic floor of opportunity that access
to special education and related services provides."
Id. (internal citation omitted) (quoting Board of Educ. v. Rowley, 458
U.S. 176, 207-08 (1982)). We believe that Brett's IEP provided him with
"the basic floor of opportunity." Id.24
a residential program is necessary for [Brett] to achieve educational
benefit." (J.A. at 322.) The ALJ, however, did not provide well rea-
soned explanations for her determination that Brett needed a residen-
tial placement for educational reasons. Thus, her finding with respect
to Brett's need for residential placement for educational reasons is
entitled to little weight. See Doyle, 953 F.2d at 105 (noting that in
determining what weight to give an administrative decision we should
consider the ALJ's methods in arriving at his decision). For example,
the ALJ relied in part on Ms. Kelty's testimony, but Ms. Kelty, the
principal of RICA, testified that it is "a matter of semantics of
whether it's an educational reason or a clinical reason." (J.A. at 140).
Similarly, although she relied in part on the testimony of Mr.
Chorney, the executive director of the Grove School, the ALJ did not
explain why she drew the conclusion from Mr. Chorney's testimony
that Brett needed a residential placement for educational needs. While
Mr. Chorney testified that Brett "definitely needs a residential pro-
gram," (J.A. at 237), he did not refer to any educational reasons for
a residential placement. Instead, Mr. Chorney discussed the opportu-
nity a residential placement at the Grove School provided for students
to "bond with staff since they spend so much time together." (J.A. at
237.)
The district court rejected the ALJ's finding, concluding that the
CARD Committee's proposed placement was sufficient to meet
Brett's special education needs. The district court found that Brett's
educational needs were segregable from his non-educational needs.
Based upon a preponderance of the evidence, we conclude that the
district court did not err in determining that Brett's educational needs
were segregable from his non-educational needs and that it was his
non-educational needs which necessitated a residential placement.
There was consistent testimony at the administrative due process
hearing indicating that Brett needed a residential placement. The evi-
dence was equivocal, however, as to whether such placement was
necessary for educational or non-educational needs. For example, the
testimony of Mr. George Moore, a placement specialist and CARD
Committee member, was contradictory. Mr. Moore testified that "get-
ting a child to school" was both a "parent need" and "an educational
need." First, Mr. Moore testified that getting a child to school "[is] a
family or parent responsibility." (J.A. at 60.) Upon further question-
25
ing, however, he testified that it was a "special education need"
because regular school attendance was listed as a need on Brett's IEP.
(J.A. at 60.) Mr. David Cross, a placement specialist employed with
the Montgomery County Public School System who attended the
August 30 CARD Committee meeting, testified less equivocally. He
stated that after an "active discussion by the committee members" at
the CARD Committee meeting, they concluded that "intensity five
services were sufficient for school purposes" and "[t]hat the reason
for residential services was for other reasons" including "family con-
cerns [and] concerns with school attendance and other mental health
issues." (J.A. at 88.) Later, Mr. Cross did state that with regard to the
difficulty in getting Brett to school, it was a matter of "interpretation
whether it's educational or family related." (J.A. at 99.)
Many of the witnesses consistently testified, however, that Brett
performed well academically when he was at school and had few
disciplinary problems at school. Mr. Moore testified that when Brett
was at school, "he didn't cause problems," "he did his work," and "he
did fine." (J.A. at 20.) Much of the testimony regarding Brett's need
for a residential placement focused upon his hostile and oppositional
behavior at home and his parents' inability to get him to attend
school. For example, Mrs. Yader testified that in March of 1996
Brett's attendance at school and academic performance were greatly
improved, and yet his behavior at home was angry and bordering on
violent. Mrs. Yader also testified that "[b]ehavorial problems at
school isn't [sic] Brett's problem" and that Brett does not have behav-
ioral problems "with [anyone] else in the whole world" except his
family. (J.A. at 163.)
This testimony, taken together, points to the conclusion that Brett
functioned well when in an academic setting and that his primary con-
flicts arose at home with his parents. Residential care is only required
if the "educational benefits which can be provided through residential
care are essential for the child to make any educational progress at
all." Denton, 895 F.2d at 980. Accordingly, the district court held that
the CARD Committee's placement decision was appropriate, follow-
ing this Circuit's holding that a residential placement that is necessary
for "medical, social, or emotional problems that are segregable from
the learning process" need not be funded by the local education agency.25
See id.
_________________________________________________________________
25 The dissent contends that the most serious flaw with Brett's IEP was
its failure to require a residential placement. See post at 30. We disagree.
26
The Yaders claim that Grove was a more appropriate placement for
Brett than RICA because it offered honors classes, such as advanced
math and chemistry, that RICA did not offer. The IDEA does not
require, however, that a school system fund the best possible place-
ment for a child. "The [IDEA] requires only that the child be able to
benefit from the instruction that [he] receives, not that [he] be able to
maximize [his] potential commensurate with the opportunity provided
nonhandicapped children." Id. We conclude that Brett could have
made educational progress at RICA, in a residential placement for
non-educational reasons.
In making a placement suggestion, the CARD Committee had to
consider its obligation to comply not only with the statutory provi-
sions of the IDEA, but also with those of the Code of Maryland and
Maryland's regulations implementing the IDEA. Although the Mary-
land Code provides that "[a] child who needs special education ser-
vices that are not provided in a public county, regional, or State
program shall be placed in an appropriate nonpublic educational pro-
gram that offers these services," see Md. Code Ann., Educ. § 8-
406(a)(1) (Michie 1997), the Maryland regulations provide, inter alia,
that a student with disabilities may be considered for nonpublic place-
ment only when the local school system or the state and local agen-
cies, or both, cannot offer the appropriate special education and
required related services, see Md. Regs. Code tit. 13A, § 05.01.12(B)
(1991). The CARD Committee, in making a placement determination,
_________________________________________________________________
As the dissent correctly argues, residential care is required if necessary
for the child to make any educational progress at all. See Burke County
Bd. of Educ. v. Denton, 895 F.2d 973, 980 (4th Cir. 1990). A residential
placement that is necessary for medical, social, or emotional problems
segregable from the learning process itself, however, need not be funded
by the local educational agency. See id. The reason for Brett's failure to
attend school was defiance toward his parents. Such oppositional and
defiant behavior is an emotional problem causally unrelated to the learn-
ing process. As we have previously stated, testimony at the due process
hearing indicated that Brett functioned well when at school and per-
formed well academically. Based on this, we agree with the district
court's determination that Brett suffered from an emotional problem that
is segregable from the learning process. Therefore, we conclude that the
school system's placement was proper.
27
must also place a child as geographically close to the child's home as
possible. See 34 C.F.R. § 300.552(a)(3) (1997).
Based upon the preponderance of the evidence, we agree with the
district court that the placement at RICA with an interagency option
for residential services was proper. We have noted that "once a proce-
durally proper IEP has been formulated, a reviewing court should be
reluctant indeed to second-guess the judgment of education profes-
sionals." Tice v. Botetourt County Sch. Bd. , 908 F.2d 1200, 1207 (4th
Cir. 1990) (citing Rowley, 458 U.S. at 207-08). We are required to
defer to educators' decisions as long as the IEP provides "the basic
floor of opportunity that access to special education and related ser-
vices provides." Id.IV.
Mindful of the deference due the ALJ under this Circuit's prece-
dent in Doyle, we nevertheless affirm the district court's rejection of
the ALJ's findings. The district court, while acknowledging the find-
ings of the ALJ, adequately rebutted those findings before determin-
ing that the IEP was developed and implemented in a timely fashion
at the beginning of the school year, that there were no serious proce-
dural deficiencies that resulted in Brett's loss of educational opportu-
nity, and that a residential placement to meet Brett's non-educational
needs was appropriate and complied with the IDEA. Accordingly, the
Yaders are not entitled to reimbursement for unilaterally placing Brett
at Grove during the 1996-97 school year.
AFFIRMED
HAMILTON, Circuit Judge, dissenting:
The fundamental error in the majority's opinion is its holding that
Brett's IEP was substantively sufficient to provide him with a free
appropriate public education for the 1996-97 school year. See supra
at 28. Because the IEP contains serious substantive defects that
denied Brett a free appropriate public education, the Yaders are enti-
tled to reimbursement for enrolling Brett in the Grove School. I,
therefore, respectfully dissent.
28
I
The IDEA defines a "free appropriate public education" as special
education and related services that (1) are provided at public expense,
under public supervision and direction, and without charge; (2) meet
the standards of the State's educational agency; (3) include an appro-
priate preschool, elementary or secondary school education in the
State; and (4) are provided in conformity with the student's IEP. See
20 U.S.C. § 1401(a)(18). The IDEA requires that an IEP include, inter
alia, (1) a statement of the student's present level of educational per-
formance; (2) a statement of annual goals and short-term instructional
objectives; (3) a statement of specific educational services to be pro-
vided to the student; and (4) appropriate objective criteria, evaluation
procedures and schedules for determining whether the instructional
objectives are being achieved. See 20 U.S.C. § 1401(a)(20).
The IEP is intended to be the school district's "blueprint" for pro-
viding a free appropriate public education to a disabled student. See
School Comm. of Burlington, Mass. v. Department of Educ. of Mass.,
471 U.S. 359, 368 (1985). Thus, it is logical to conclude that a pro-
gram constructed on a faulty blueprint will itself be faulty. In other
words, when educational services are provided in conformity with an
IEP that does not accurately reflect the student's circumstances or
needs, those educational services will neither address those circum-
stances nor meet those needs.
We determine whether an IEP is appropriate and whether the
school district has fulfilled its obligations to provide a student with
a free appropriate public education by determining (1) whether the
school district has complied with the IDEA's procedural requirements
when developing and implementing an IEP, and (2) whether the IEP
is "reasonably calculated" to enable the child to receive educational
benefits. See Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v.
Rowley, 458 U.S. 176, 206-07 (1982). While I agree with the majority
that the school district complied with the procedural requirements of
the IDEA, see supra at 12-20, I disagree with the majority's implicit
holding that the IEP accurately reflected Brett's circumstances and
needs, and was, therefore, reasonably calculated to provide him with
educational benefits. My disagreement rests on the IEP's failure to (1)
document the full extent of Brett's disability; (2) require a residential
29
placement for educational purposes; (3) match its goals to its meth-
ods; and (4) reconcile its methods with placement at RICA.1
Of these failures, the most obvious is the IEP's failure to note any-
where that Brett had gone into "crisis" and refused entirely to attend
class. Without this information, the full extent of Brett's disability
could not be considered in developing a program that would provide
him with an adequate education. Furthermore, this omission caused
the IEP to misrepresent Brett's present level of educational perfor-
mance. Since Brett refused to attend school, he was, perforce, making
no educational progress.2
The omission of Brett's full disability at least contributed to--and
perhaps caused--the IEP's most serious flaw, namely that the IEP
fails to require a residential placement so that Brett can make educa-
tional progress. Brett's refusal to attend classes should have been a
significant factor in deciding whether a residential program was edu-
cationally necessary. Since it was clear that a residential program
would be needed to get Brett to attend classes at all, then a fortiori
it should have been clear that a residential program was educationally
necessary. The ALJ understood this, but the district court and major-
ity have failed to grasp or appreciate such logic. In concluding that
Brett needed a residential placement--but for non-educational rea-
sons only--the district court and the majority, see supra at 25-26,
both rely on the testimony of the parties' experts. The testimony both
cited, however, does not support their conclusion. For example, Sherri
Kelty, the principal at RICA and one of the School Board's experts,
testified:
_________________________________________________________________
1 I also disagree with the majority's apparent belief that complying with
the IDEA's procedural requirements somehow cures substantive defi-
ciencies in the IEP. See supra notes 22 and 23 at 20-21, 22. The Supreme
Court's test in Rowley is a two-pronged test that requires courts to scruti-
nize both the procedure and substance of an IEP. See Rowley, 458 U.S.
at 206-07. The majority, however, prunes the second Rowley prong down
to a stub.
2 Brett's current level of educational performance should not be consid-
ered, as the majority indicates, supra at 21, to be his level of performance
when he last attended school. The fact that Brett earned As and Bs when
he last attended school became irrelevant when he stopped attending
school altogether, for his educational performance then dropped to zero.
30
[W]e felt that we could service [Brett] much better in resi-
dence, because we had a much higher percentage of a
chance of getting him into school, which is certainly where
you have to implement the IEP goals, and we found him
appropriate for our [residence program].
...
I think that it becomes a matter of semantics of whether it's
an educational reason or a clinical reason [for residential
placement]. The bottom line when we look at a student at
RICA at pre-admission, if we're going to implement the
goals, especially the goals for a student who has serious
emotional disturbance, they have to be [in school]. That's
sort of the basic premise that they are going to be there,
otherwise they can't benefit from the program. .. .
And so basically a student with Brett's kind of profile is a
student we would say would need residence in order for the
RICA program to work, because you can't do therapy if the
student isn't in school either, because we don't do therapy
in the residential piece. So the student has to show up in
school.
(J.A. 127, 140-41) (emphasis added). Richard Chorney, the executive
director of the Grove School, testified that he agreed with Ms. Kelty's
assessment of Brett's needs. In response to the question of whether
Brett required a residential program in order to receive an appropriate
education, Mr. Chorney testified:
Yeah, I agree with the person who spoke from RICA that
[Brett] definitely needs a residential program. . . .
[Regarding] his need for residential placement, the environ-
ment can be carefully managed to encourage his compliance
with treatment or he can simply refuse to attend the school
and his family is in a power struggle on a daily basis. Also
a greater opportunity for students in residential placements
to bond with staff since they spend so much time together.
That's particularly true here. The people that put them to
31
bed at night are the same people that wake them up in the
morning.
(J.A. 237-38) (emphasis added). The district court also quoted from
a report from the Sheppard Pratt Psychiatric Hospital, which had
examined Brett:
Brett's avoidance of stressful experiences, his refusal to
attend outpatient psychotherapy and his noncompliance with
the medication prescribed by previous psychiatrists have
resulted in his failure to attend and learn in his current
school placement.
(J.A. 469) (emphasis added).
It is difficult to see how the majority or district court can read this
testimony and fail to conclude that Brett needs a residential program
in order to receive any educational benefit at all. Contrary to the
majority's characterization, see supra at 25, this evidence can hardly
be viewed as "equivocal." Furthermore, the testimony of George
Moore, another witness quoted by the majority, supra at 25, cannot
be interpreted as "contradictory" merely because he testified that resi-
dential placement is both an educational and non-educational need.
Moore plainly testified--consistently with the testimony quoted
above--that a residential placement was necessary "[b]ecause [for]
the rest of the IEP to be implemented, [Brett] has to be in school."
(J.A. 60).
We have held, as the majority recognizes, see supra at 26, that resi-
dential care is required if it is "essential for the child to make any edu-
cational progress at all." Burke County Bd. of Educ. v. Denton, 895
F.2d 973, 980 (4th Cir. 1990) (emphasis added). It is clear from the
testimony quoted above that a residential placement is essential to
ensure that Brett attends class. Common sense would indicate that
Brett needs to attend class in order to make educational progress.
Ergo, residential placement is essential for Brett to make educational
progress.3
_________________________________________________________________
3 The majority considers such syllogistic reasoning employed by the
ALJ to be "conclusory," "not . . . well reasoned" and, therefore, "entitled
32
The lack of residential placement for educational purposes is,
alone, sufficiently serious to deny Brett a free appropriate public edu-
cation. Unfortunately, there is more. The IEP also contains conflicting
methods for reaching its stated goals. For example, the IEP stated that
Brett should learn how to convey information to an audience and how
to write effectively. It is clear these goals were copied from earlier
versions of Brett's IEP, as evidenced by the dates listed on the IEP's
Goals and Objectives forms. Although the IEP stated that these goals
were to be met, in part, through assistance from the classroom
teacher, the IEP elsewhere stated that Brett would spend his entire
school day with special education teachers, and no time with class-
room teachers. It is reasonably clear, therefore, that the August IEP
merely copied aspects from the earlier IEPs without fully updating the
goals and objectives to reflect Brett's current situation.4
Finally, the IEP does not reconcile differences between its stated
goals and objectives on the one hand, and its recommendation for
placement at RICA on the other. The August IEP states--as did those
from April and June--that several of Brett's goals should be accom-
_________________________________________________________________
to little weight." Supra at 24-25. It is difficult to understand why it is
well reasoned to believe that Brett can make educational progress in a
program he does not attend. Whatever the sources of Brett's emotional
problems and failure to attend school, see supra note 24 at 23-24, he
needed a residential placement "to make any educational progress at all."
Denton, 895 F.2d at 980. Contrary to the majority's assertion, the Yaders
were not seeking to have the school system fund"the best possible place-
ment" for Brett, see supra at 27; they were seeking a placement where
Brett would attend class and therefore be able to make some educational
progress.
In addition, the majority mischaracterizes Denton to require that, in
order to receive reimbursement for residential care, the student's emo-
tional problems must be "causally [ ]related to the learning process." See
supra note 24 at 23-24. Denton only requires that residential placement
be necessary, as is the case here, for the student to make any educational
progress at all. See Denton, 895 F.2d at 980.
4 The point is not, as the majority believes it to be, supra at 21-22, that
the goals and methods were left unchanged in the August IEP. The point
is that the IEP's goals and methods were not updated to reflect changes
in Brett's situation after he went into crisis, and that the IEP called for
wholly inconsistent methods of reaching those goals.
33
plished through Honors level accommodations. However, the IEP rec-
ommends placement at RICA, and RICA does not offer Honors level
classes. Placement at RICA therefore conflicts with the IEP's meth-
ods of attaining its goals.
The majority believes, as did the district court, that these deficien-
cies could have been corrected after-the-fact.5 See supra at 22. How-
ever, such an approach does not conform with the IDEA, its
regulations, or the cases applying them. Educational services are to be
provided "in conformity with the [IEP]," 20 U.S.C. § 1401(a)(18)(D),
and educational placement is to be "based on[the] IEP," 34 C.F.R.
§ 300.552(a)(2). See also Spielberg v. Henrico County Pub. Schs.,
_________________________________________________________________
5 This highlights yet another error in the majority's opinion, namely its
holding that the district court properly reviewed the ALJ's decision under
the standard of review set forth in Rowley, 458 U.S. at 205-06, and Doyle
v. Arlington County Sch. Bd., 953 F.2d 100, 105 (4th Cir. 1991).
District courts reviewing the decisions of state ALJs must make inde-
pendent decisions based upon a preponderance of the evidence, while
giving due weight to the ALJ's findings of fact. See Rowley, 458 U.S. at
205-06. In fact, the ALJ's findings are entitled to be considered prima
facie correct. See Doyle, 953 F.2d at 105. If the district court chooses not
to accept a finding of the ALJ, the district court must carefully explain
why it does not. See id.For the most part, the district court heeded the directives of Rowley
and Doyle. The district court generally accepted the ALJ's findings and,
for most of the findings it rejected, gave reasoned explanations why it
rejected those findings. There were, however, several glaring exceptions.
The district court rejected certain crucial findings about the sufficiency
of Brett's IEP without giving any explanation why it rejected those find-
ings. The ALJ had found that the IEP (1) was internally inconsistent
and/or contradictory; (2) had not been updated to reflect Brett's current
educational and emotional performance; and (3) failed to include appro-
priate criteria and evaluation procedures for measuring the goals con-
tained in the IEP. These facts were significant in the ALJ's conclusion
that the IEP was defective. The district court, however, rejected these
findings, and the sum total of its "analysis" consisted of the following
cursory phrase: "Any minor deficiencies in the IEP in terms of describing
Brett or setting objective criteria for goals could have been corrected."
(J.A. 473). Such action did not accord the ALJ's findings of fact with the
weight they were due, and thus constituted legal error.
34
853 F.2d 256, 259 (4th Cir. 1988) (holding that placement of the stu-
dent, after which an IEP was developed to conform with the place-
ment, was a procedural violation sufficient to deny the student a free
appropriate public education). Put another way, the IEP is to be the
blueprint for an appropriate educational program, not a chronicle of
what services were provided. Furthermore, when an IEP is defective
because it inaccurately describes the student, incorrectly assesses his
situation, and inappropriately proposes certain treatment, then ser-
vices conforming to, and the placement based upon, the implementa-
tion of that IEP will also be defective. See 20 U.S.C.
§ 1401(a)(18)(D); 34 C.F.R. § 300.552(a)(2).
II
In conclusion, the deficiencies in Brett's IEP are serious and, in my
opinion, those deficiencies deprived him of a free appropriate public
education. I would, therefore, grant the Yaders a reimbursement for
the costs of placing Brett in the Grove School for the 1996-97 school
year.
35