395 F.3d 185 (4th Cir. 2005), 04-1454, JH ex rel. JD v. Henrico County School Bd.

Docket Nº:04-1454.
Citation:395 F.3d 185
Party Name:JH, a minor, by and through his parents and next friends, JD and SS; SS; JD, Plaintiffs-Appellants, v. HENRICO COUNTY SCHOOL BOARD, Defendant-Appellee.
Case Date:January 20, 2005
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 185

395 F.3d 185 (4th Cir. 2005)

JH, a minor, by and through his parents and next friends, JD and SS; SS; JD, Plaintiffs-Appellants,

v.

HENRICO COUNTY SCHOOL BOARD, Defendant-Appellee.

No. 04-1454.

United States Court of Appeals, Fourth Circuit

January 20, 2005

Argued: Oct. 28, 2004

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William Henry Hurd, Troutman Sanders, L.L.P., Richmond, Virginia, for Appellants. Joseph Thomas Tokarz, II, County Attorney's Office, 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:

The present action arising under the Individuals with Disabilities Education Act (the IDEA), 20 U.S.C. §§ 1400 to 1487, involves a dispute regarding who should bear the expense of $1,875 in speech/language and occupational therapy services received by JH 1 during the summer of 2001, i.e., the summer between JH's kindergarten and first grade school years. 2 JH suffers from a high functioning form of autism which is often referred to as Asperger's Disorder.

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JH and his parents, JD and SS, (collectively the Plaintiffs), contend the IDEA statutorily obligates the School Board for Henrico County, Virginia (the County) to bear the expense of these services because they were necessary to prevent the gains that JH had made during his regular kindergarten school year from being significantly jeopardized. The Plaintiffs have already paid for such services and seek reimbursement from the County in this action. The Plaintiffs also seek attorney's fees and costs in the matter.

The County, in contrast, contends that the lesser amount of speech/language and occupational therapy services prescribed in the Individual Educational Program (IEP) that it proposed for JH for the summer of 2001, along with other services prescribed therein, met that goal and, therefore, it bears no reimbursement obligation and no obligation to pay the Plaintiffs' attorney's fees and costs in the matter.

The district court granted summary judgment in favor of the County. We vacate and remand for further proceedings consistent with this opinion.

I

Before setting forth the relevant facts and lengthy procedural history of this case, an exposition of some pertinent statutory and regulatory background is in order. In general, the IDEA requires all states receiving 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 (a 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." Id. § 1400(d) (1) (A). Significantly, however, while the IDEA requires states to "provide specialized instruction and related services sufficient to confer some educational benefit upon the handicapped child," the IDEA "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 mandates that a school district receiving federal funds provide an appropriate IEP for each disabled child. MM v. School Dist. of Greenville County, 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 is required to be prepared by an IEP team, which team consists of at least one 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).

II

There is no dispute that JH suffers from a high functioning form of autism which qualifies him as disabled under the IDEA. As we observed in MM with respect to another child suffering from autism:

Autism adversely impacts the normal development of the brain in the areas of social interaction and communication skills. Individuals suffering from autism experience, inter alia, preoccupation with inner thoughts, daydreams, and

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fantasies, and they have difficulty communicating.

MM, 303 F.3d at 527-28 n. 6.

Despite suffering from autism, JH attended kindergarten in a regular classroom setting during the 2000-2001 school year. He did so at Dumbarton Elementary School (Dumbarton) under an agreed IEP with the County (the Kindergarten IEP). As required by the IDEA, the Kindergarten IEP set forth specific goals for JH to master by the end of his regular kindergarten school year. In order to meet these goals, which numbered twenty-seven, the Kindergarten IEP provided JH six hours per day of one-on-one services by an instructional assistant in addition to two hours of speech/language therapy per week (one hour one-on-one and one hour one-on-one/integrated) 3 and two hours of occupational therapy per week (thirty minutes one-on-one, thirty minutes one-on-one/integrated, and one hour integrated).

Nancy Smith (SLP Smith), a County employee and speech/language pathologist with twenty-eight years' experience, provided JH his speech/language therapy at Dumbarton, while Carolyn Stone (OT Stone), a County employee and occupational therapist with twenty-six years' experience, provided JH his occupational therapy at Dumbarton. During JH's regular kindergarten school year, SLP Smith and OT Stone each saw JH at least three times per week and talked regularly with his classroom teacher, Howard Everett (Teacher Everett), and the instructional assistant the County assigned to JH, Cara Phillips (Instr. Asst. Phillips).

Testing at the end of JH's regular kindergarten school year revealed that he had mastered three of the twenty-seven goals specified in the Kindergarten IEP and made progress in all but two of the others. Nonetheless, 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. JH also remained seriously behind his peers with respect to handwriting skills.

Although children attending school in the County do not normally attend school during the summer, on June 11, 2001, the County members of JH's IEP team issued a final proposed IEP for JH for the summer of 2001 (the Summer 2001 IEP). In IDEA parlance, educational services provided to a disabled child during the summer in a school system where children do not normally attend school during the summer are called extended school year services (ESY Services). 34 C.F.R. § 300.309.

The Summer 2001 IEP provided that, while attending the regular ten week summer school session at Dumbarton, JH would receive: (1) thirty minutes per week for the entire summer school session of consultation between the special education teacher and the regular classroom teacher; (2) assistance from an instructional assistant three hours per day, four days per week from June 18 to June 29, 2001; (3) assistance from an instructional assistant four hours per day, four days per week from July 9 through August 2, 2001; (4) assistance from an instructional assistant three hours per day, five days per week from August 6 to August 18, 2001; (5) ten hours per week of special education from August 21 through September 1, 2001; (6) integrated speech therapy conducted in four thirty-minute sessions over the course

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of the summer (for a total of two hours); (7) direct occupational therapy conducted in five thirty-minute sessions over the course of the summer (for a total of two and one half hours); (8) three thirty-minute sessions of consultative occupational therapy 4; and (9) four thirty-minute sessions of consultative speech therapy. The May 16, 2001, cover letter accompanying the Summer 2001 IEP that SLP Smith and OT Stone sent to the Plaintiffs stated, inter alia: (1) "[s]ocial language skills are best learned in social settings with peers"; (2) "[a]lthough handwriting is an area of weakness he seems to perform this activity best while in the classroom setting and not while under individual scrutiny"; (3) JH "needs to be with typically developing peers to work on social language and fine motor skills"; and (4) "[p]eer modeling with some direction from an instructional assistant under the direction of the speech pathologist and occupational therapist is appropriate to meet [JH's] needs." (J.A. 732).

The Plaintiffs objected to the Summer 2001 IEP on the ground that it provided JH inadequate amounts of direct speech/language and occupational therapy. The Plaintiffs wanted such therapy to continue at the same level as the Kindergarten IEP. In response, the County steadfastly adhered to the Summer 2001 IEP as best for JH. Based on SLP Smith and OT Stone's experience with JH during his regular kindergarten school year, both believed that JH had difficulty generalizing social language skills taught in one-on-one therapy sessions to other real life settings such as the classroom, the playground, and home. Therefore, rather than focusing on direct therapy services during the summer of 2001, SLP Smith and OT Stone believed that JH would best be served by receiving ESY Services focused on improving his peer communication skills.

When the County refused to amend the Summer 2001 IEP in response to...

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