Jh ex rel. Jd v. Henrico County School Bd.

Decision Date21 April 2003
Docket NumberNo. 02-1418.,02-1418.
PartiesJH, a minor, by and through his parents and next friends, JD and SS; JD; SS, Plaintiffs-Appellants, v. HENRICO COUNTY SCHOOL BOARD, Defendant-Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: William Henry Hurd, Richmond, Virginia, for Appellants. Joseph Thomas Tokarz, II, Assistant County Attorney, County of Henrico, Richmond, Virginia, for Appellee. ON BRIEF: Edward M. Wayland, Charlottesville, Virginia, for Appellants. Joseph P. Rapisarda, Jr., County Attorney, County of Henrico, Richmond, Virginia, for Appellee.

Before WIDENER and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Vacated and remanded by published opinion. Senior Judge HAMILTON wrote the opinion, in which Judge WIDENER and Judge GREGORY joined.

OPINION

HAMILTON, Senior Circuit Judge:

In this action arising under the Individuals with Disabilities Education Act (the IDEA), 20 U.S.C. §§ 1400 to 1487, JH, a minor child, and his parents, JD and SS,1 seek $1,875 from the Henrico County School Board (the County) as reimbursement for the costs associated with the provision of speech/language and occupational therapy services to JH during the summer of 2001.2 The district court granted summary judgment in favor of the County. JH, JD, and SS (collectively the Plaintiffs) noted this timely appeal.

For reasons that follow, we vacate the judgment entered by the district court in favor of the County and remand the case to the district court with instructions that the district court remand the case to the administrative hearing officer for further proceedings in accordance with this opinion.

I.

In order to put the facts of this case in their proper perspective, we will first set forth the relevant statutory and regulatory background.

In general, the IDEA requires all states which receive federal funds for education to provide each child between the ages of three and twenty-one, who has a disability, with a free appropriate public education (FAPE). 20 U.S.C. § 1412(a)(1)(A). Congress enacted the IDEA, in part, "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living." 20 U.S.C. § 1400(d)(1)(A). Notably, however, although the IDEA requires that "[s]tates must provide specialized instruction and related services sufficient to confer some educational benefit upon the handicapped child," it "does not require the furnishing of every special service necessary to maximize each handicapped child's potential." Hartmann v. Loudoun County Bd. of Educ., 118 F.3d 996, 1001 (4th Cir.1997) (internal quotation marks and citations omitted).

The IDEA requires a school district to provide an appropriate Individual Educational Program (IEP) for each disabled child. MM v. School Dist. of Greenville Co., 303 F.3d 523, 527 (4th Cir.2002). "An appropriate IEP must contain statements concerning a disabled child's level of functioning, set forth measurable annual achievement goals, describe the services to be provided, and establish objective criteria for evaluating the child's progress." Id. Every IEP must be prepared by an IEP team, which consists of a representative of the school district, the child's teacher, the child's parents or guardian and, where appropriate, the child himself. 20 U.S.C. § 1414(d)(1)(B).

With this statutory and regulatory background in mind, we turn to the facts of the present case. There is no dispute that JH, who was born on May 16, 1994, suffers from a high functioning form of autism which qualifies as a disability under the IDEA. At all times relevant to this case, JH attended Dumbarton Elementary School, a school operated by the County.

In May 1998, the County classified JH as eligible for special education services under the IDEA. During the summer of 2000 (i.e., the summer immediately preceding JH starting kindergarten), JH received ESY Services from the County consisting of a total of twelve hours of speech/language therapy and eight hours of occupational therapy.

Beginning in the fall of 2000, JH attended kindergarten with nondisabled children in a regular classroom at Dumbarton Elementary School under an IEP for the 2000-2001 school year (the Kindergarten IEP).3 The Kindergarten IEP set twenty-seven goals for JH to master by the end of his regular kindergarten school year. In order to meet these goals, the Kindergarten IEP provided JH six hours per day of one-on-one service by an instructional assistant in addition to two hours of speech/language therapy per week and two hours of occupational therapy per week.

Nancy Smith (Smith), a speech/language pathologist with twenty-eight years experience, provided JH his speech/language therapy, while Carolyn Stone (Stone), an occupational therapist with twenty-six years experience, provided JH his occupational therapy.4 Stone had also provided occupational therapy services to JH during the 1999-2000 school year. During JH's regular kindergarten school year, Smith and Stone each saw JH at least three times per week and talked regularly with his classroom teacher, Howard Everette (Everette), and the instructional assistant assigned to JH.

At the time, Helen McGrath (McGrath) served as Dumbarton Elementary School's special education teacher. Although McGrath did not actually teach JH, per the Kindergarten IEP, she did provide Everette and the instructional assistant assigned to JH with one hour each week of consulting services regarding JH.

Various testing at the end of JH's regular kindergarten school year revealed that he had made substantial progress in some areas, but remained weak in others. In June 2001, JH took the Henrico County Assessment Test, scoring 85% in math, 100% in science, 80% in social studies, and 85% in language arts. Other assessment tests conducted at the end of JH's regular kindergarten school year revealed that he had mastered three of the twenty-seven goals in the Kindergarten IEP, and had made progress on all but two. JH had mastered the goals of (1) discriminating between nasal and non-nasal speech with 80% accuracy, (2) marking final consonants with 75% accuracy in conversation, and (3) using the mouse and keyboard on a computer consistent with the skill level of his classmates. Of specific relevance in the present appeal, although JH had improved his skills with respect to using language appropriately in social situations, referred to as social pragmatics, he remained seriously behind his peers in that area. The two goals upon which JH had made absolutely no progress were (1) using contingent statements "(`I like the beach too. I found shells. We go swimming.')" to maintain conversations for five turns in four out of five opportunities, and (2) maintaining the same topic for five turns with no more than one verbal prompt in four out of five opportunities. (J.A. 707).

Because the Kindergarten IEP did not provide that JH would receive ESY Services during the summer of 2001, JD and SS requested an IEP team meeting in order to request that the County provide JH with such services. The meeting took place on May 14, 2001. JD and SS took the position that not only should the County provide JH with ESY Services for the summer of 2001, but that it should do so at the same level as provided in the Kindergarten IEP. The County agreed that JH needed ESY Services during the summer of 2001, but disagreed with JD and SS regarding the appropriate type and amount of such services. The County endorsed a peer modeling approach suggested by Smith and Stone in which JH would interact with his peers in order to improve his social language and fine motor skills. Based on Smith and Stone's experience with JH during the regular kindergarten school year, they believed that JH had difficulty generalizing social language skills taught in individual therapy sessions to other settings such as the classroom, playground, and home. Therefore, rather than focusing on one-on-one services, Smith and Stone believed that JH would best be served by receiving ESY Services focused on improving JH's peer communication skills.

On June 11, 2001, the County members of the IEP team issued a final proposed IEP for JH for the summer of 2001 (the Summer 2001 IEP). The Summer 2001 IEP provided that while attending the regular ten week summer school session at Dumbarton Elementary School, JH would receive: (1) special education services four hours per day from July 9 through August 2 and ten hours per week from August 21 through September 1; (2) special education consultation for thirty minutes per week for the entire summer; (3) assistance from an instructional assistant twelve hours per week from June 18 through June 29, sixteen hours per week from July 9 through August 2, and fifteen hours per week from August 6 through August 18; (4) individual speech/language therapy conducted in four thirty-minute sessions over the course of the summer; and (5) individual occupational therapy conducted in five thirty-minute sessions over the course of the summer.

JD and SS objected to the Summer 2001 IEP on the ground that it provided JH inadequate amounts of individual speech/language and occupational therapy. JD and SS wanted such therapies to continue at the same level as provided in the Kindergarten IEP. Under the Kindergarten IEP, JH had received two hours of individual speech/language therapy per week and two hours of individual occupational therapy per week.

Following an unsuccessful attempt at mediation, a due process hearing before an administrative hearing officer (the Hearing Officer) was held on July 30, 2001. Meanwhile, at the Plaintiffs' expense, JH received private speech/language and occupational therapy during the Summer of 2001 at the same level as provided in the Kindergarten IEP.

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