County Sch. Bd. of Henrico v. Z.P. ex rel. R.P.

• Decision Date: 11 February 2005
• Docket Number: No. 03-2338.,03-2338.
• Citation: 399 F.3d 298
• Parties: COUNTY SCHOOL BOARD OF HENRICO COUNTY, VIRGINIA, Plaintiff-Appellee, v. Z.P., a minor by and through his parents and next friends; R.P.; N.M.P., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 298

399 F.3d 298

COUNTY SCHOOL BOARD OF HENRICO COUNTY, VIRGINIA, Plaintiff-Appellee, v. Z.P., a minor by and through his parents and next friends; R.P.; N.M.P., Defendants-Appellants.

No. 03-2338.

United States Court of Appeals, Fourth Circuit.

Argued: September 29, 2004.

Decided: February 11, 2005.

ARGUED:

Cassie R. Craze, Natasha Umbertis, University of Richmond, School of Law, Disability Law Clinic, Children's Law Center, Richmond, Virginia, for Appellants. Joseph Thomas Tokarz, II, Assistant County Attorney, County of Henrico, Richmond, Virginia, for Appellee.

ON BRIEF:

Adrienne E. Volenik, Director, Disability Law Clinic, Joanne V. Stanley, Third Year Law Student, University of Richmond, School of Law, Children's Law Center, Richmond, Virginia, for Appellants. Joseph P. Rapisarda, Jr., County Attorney, County of Henrico, Richmond, Virginia, for Appellee.

Before WIDENER, TRAXLER, and GREGORY, Circuit Judges.

Reversed and remanded with instructions by published opinion. Judge TRAXLER wrote the majority opinion, in which Judge WIDENER joined. Judge GREGORY wrote a dissenting opinion.

OPINION

TRAXLER, Circuit Judge:

Z.P. is a young boy with autism. Pursuant to its responsibilities under the Individuals with Disabilities Education Act ("IDEA"), the County School Board of Henrico County, Virginia, formulated an individualized education plan for Z.P. for the 2002-03 school year. Z.P.'s parents believed the plan to be inadequate and they rejected it, choosing instead to leave Z.P. in private school. The parents initiated a state administrative action seeking to require the School Board to pay the costs of Z.P.'s private placement. The state hearing officer ruled in favor of the parents, and the School Board challenged that decision in federal district court. The district court rejected the analysis of the hearing officer, granting summary judgment in favor of the School Board. The parents appeal. We reverse and remand with instructions that the district court reconsider the question of the appropriateness of the individualized education plan proposed for Z.P.

I.

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.A. § 1400(d)(1)(A) (West 2000). Accordingly, the IDEA requires all states receiving federal funds for education to provide disabled schoolchildren with a "free appropriate public education" ("FAPE"). 20 U.S.C.A. § 1412(a)(1)(A) (West 2000).

A FAPE "consists of educational instruction specially designed to meet the unique needs of the handicapped child, ... supported by such services as are necessary to permit the child to benefit from the instruction." Board of Educ. v. Rowley, 458 U.S. 176, 188-89, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (internal quotation marks omitted).¹ The appropriate education required, by the IDEA, however, should not be confused

with the best possible education.... [O]nce a FAPE is offered, the school district need not offer additional educational services. That is, while a state must provide specialized instruction and related services sufficient to confer some educational benefit upon the handicapped child, the Act does not require the furnishing of every special service necessary to maximize each handicapped child's potential.

MM ex rel. DM v. School Dist., 303 F.3d 523, 526-27 (4th Cir.2002) (citations, internal quotation marks, and alterations omitted). Although the IDEA does not require that a state provide the best education possible, "Congress did not intend that a school system could discharge its duty under the [Act] by providing a program that produces some minimal academic advancement, no matter how trivial." Hall ex rel. Hall v. Vance County Bd. of Educ., 774 F.2d 629, 636 (4th Cir.1985).

A school provides a FAPE by developing an "Individual Educational Program" ("IEP") for each disabled child. IEPs "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." MM, 303 F.3d at 527; see 20 U.S.C.A. § 1414(d)(1)(A). An IEP is sufficient if it is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207, 102 S.Ct. 3034.

B.

Autism is a developmental disorder that affects a child's ability to communicate, use imagination, and establish relationships with others. See Amanda J. ex rel. Annette J. v. Clark County Sch. Dist., 267 F.3d 877, 883 (9th Cir.2001). Children with autism generally have significant deficits in language development, behavior, and social interaction. One of the primary ways that children learn is through imitation of the actions and sounds that they see and hear. Autistic children, however, generally have a greatly reduced ability to imitate. Autistic children also lack normal joint attention skills — the ability to follow another's gaze and share the experience of looking at an object or activity. Because these deficits affect the way autistic children learn and develop,

[e]arly diagnosis is crucial.... [E]ducation (of children as well as of parents and teachers) is the primary form of treatment, and the earlier it starts, the better. Education covers a wide range of skills or knowledge — including not only academic learning, but also socialization, adaptive skills, language and communication, and reduction of behavior problems — to assist a child to develop independence and personal responsibility.

Without early identification and diagnosis, children suffering from autism will not be equipped with the skills necessary to benefit from educational services.

Amanda J., 267 F.3d at 883 (citations and internal quotation marks omitted).

Z.P. was diagnosed as severely autistic when he was two. As the state hearing officer found, Z.P. has significant communication deficits: at 24 months, Z.P. spoke no words and at 31 months he could not follow verbal commands. Z.P. lacks normal joint attention skills and has very little ability to stay "on task." When he was 44 months old, Z.P. could stay on task independently for about five minutes and could quietly wait unattended for approximately 30 seconds. Z.P. is easily frustrated, which can lead to disruptive behaviors such as crying, biting, slapping, kicking, and sweeping items off a table. Z.P. also has deficits in gross motor skills and significant deficits in fine motor skills.

Like many autistic children, Z.P. when given the opportunity will engage in self-stimulatory behavior, often referred to as "stimming." Stimming consists of repetitive patterns of behavior such as flapping of the hands, rocking back and forth, or repeating a word or a sound. Stimming is often "an all-consuming behavior that directly interferes with [an autistic child's] ability to engage in the environment appropriately .... and directly interferes with the child's ability to learn." J.A. 366-67. Self-stimulatory behavior in autistic children is self-reinforcing, such that the more they engage in the behavior, the more they want to engage in the behavior. Absent appropriate supervision or intervention, stimming can become "the dominant behavior for kids with autism." J.A. 367.

Z.P. has several different forms of self-stimulatory behaviors, including humming and wiggling long slender objects between his fingers while staring at them out of the corner of his eye. Without intervention, Z.P. would engage in stimming "all day long." J.A. 429.

After Z.P. was diagnosed, the parents' search for help led them to what is now known as the Faison School. They enrolled him at Faison in April 2001, when he was not quite three years old. The Faison School uses the "applied behavioral analysis" ("ABA") approach to teaching autistic children. ABA is an iteration of the "Lovaas method," which "involves breaking down activities into discrete tasks and rewarding a child's accomplishments.... [The method] has been widely modified over the years ..., [but] common characteristics include intensive training one-on-one, 30-40 hours per week, discrete trial therapy (DTT), and an in-home component (as opposed to therapy in a professional setting)." G ex rel. RG v. Fort Bragg Dependent Schs., 343 F.3d 295, 300 n. 6 (4th Cir.2003) (citations, internal quotation marks, and alterations omitted). At Faison, a team comprised of a teacher and teaching assistants work with the students; the school has four masters-level teachers for each student. One assistant is assigned to each student and is always with that student. The student and his assistant work in a private classroom for much of the day, moving into group sessions for certain activities. Z.P. attends Faison six hours a day, five days a week, thus receiving 30 hours of one-on-one instruction each week. Z.P.'s parents and his older sister have all received training in ABA methods, and they use the ABA methods with Z.P. at home. While at Faison, Z.P. has made real progress in some areas, and little progress in other areas.

C.

In October 2001, the School Board identified Z.P. as eligible for special education and related services. The School Board met with the parents and developed an IEP for the 2001-02 school year. The parents rejected that IEP, leaving Z.P. at Faison for that school year. The adequacy of the 2001-02 IEP is not at issue in this appeal.

In the summer of 2002, the School Board evaluated Z.P. to determine his then-current level of performance, testing Z.P. and observing him at Faison. In the fall of 2002, the School Board and the parents met to develop an IEP for the 2002-03 school year. The IEP called for Z.P. to be placed in the pre-school autism class at Twin Hickory Elementary School.

The Twin Hickory program...