Sumter County Sch. Dist. 17 v. Heffernan

• Decision Date: 27 April 2011
• Docket Number: No. 09–1921.,09–1921.
• Citation: 268 Ed. Law Rep. 668,642 F.3d 478
• Parties: SUMTER COUNTY SCHOOL DISTRICT 17, Plaintiff–Appellant,v.Joseph HEFFERNAN, on behalf of his son TH; May Baird, on behalf of her son TH, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

642 F.3d 478

268 Ed. Law Rep. 668

SUMTER COUNTY SCHOOL DISTRICT 17, Plaintiff–Appellant,

v.Joseph HEFFERNAN, on behalf of his son TH; May Baird, on behalf of her son TH, Defendants–Appellees.

No. 09–1921.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 8, 2010.Decided: April 27, 2011.

ARGUED: David Thomas Duff, Duff, White & Turner, LLC, Columbia, South Carolina, for Appellant. Erik T. Norton, Nelson Mullins Riley & Scarborough, LLP, Columbia, South Carolina, for Appellees. ON BRIEF: Meredith L. Seibert, Duff, White & Turner, LLC, Columbia, South Carolina, for Appellant. Matt Bogan, Nelson Mullins Riley & Scarborough, LLP, Columbia, South Carolina, for Appellees.

Before TRAXLER, Chief Judge, WYNN, Circuit Judge, and DAVID A. FABER, Senior United States District Judge for the Southern District of West Virginia, sitting by designation.

Affirmed by published opinion. Chief Judge TRAXLER wrote the majority opinion, in which Senior Judge FABER joined. Judge WYNN wrote an opinion concurring in part and dissenting in part.

OPINION

TRAXLER, Chief Judge:

In this action under the Individuals with Disabilities Education Act (the “IDEA”), Sumter County School District # 17 (the “District”) appeals from the district court's order finding that the District had failed to provide a free and appropriate public education to T.H. and that the program established by T.H.'s parents to educate him at home was appropriate. For the reasons set forth below, we affirm.

I.

T.H. falls on the moderate-to-severe end of the autism spectrum. He is functionally non-verbal, in that he does not often use language spontaneously, and he is very sensitive to noise. When this action was commenced, T.H. attended Bates Middle School in Sumter County, South Carolina. His individual education plan (“IEP”) for the 2005–06 school year called for 15 hours per week of applied behavioral analysis (“ABA”) therapy; the IEP for the 2006–07 school year called for 27.5 hours per week of ABA therapy.

In the fall of 2005, the District was providing T.H. with approximately 7.5–10 hours per week of ABA therapy instead of the 15 hours required by the IEP. T.H. did not do well that fall, and he began exhibiting problematic “self-stimulating” behavior, such as biting himself (or others) and wiping his nose and face so much that his nose bled and his skin chafed. T.H. also began to wet his pants several times a day while at school.

The parents removed T.H. from school in December 2005 for a medical treatment. By the time he returned to school in January 2006, the District had hired Cassandra Painter, a board-certified ABA therapist, to work in the autism classroom along with the lead teacher and the other aides. Painter immediately made some changes in the District's approach to teaching T.H., and the problematic behaviors began to subside. The lead teacher resigned in March 2006, and Painter became the lead teacher of the autism classroom.

Painter testified at the due process hearing that she believed T.H.'s problems during the 2005–06 school year were largely caused by improper teaching techniques that had been used before she arrived. She testified that the lead teacher and the aides “didn't have a very good understanding of the terminology, of the techniques that are used in applied behavior therapy.” J.A. 364. Painter testified that when she arrived, T.H. “was very aversive to the teaching situation. He would not sit for more than a second or two without someone physically prompting him to ... be there. He was not able to retain information that we had taught him.” J.A. 366. Painter believed that if proper ABA techniques had been used in the fall of 2005, T.H. would have “been able to sit and work. It would have, should have been a situation where he was a willing learner.” J.A. 367. She testified that she spent a considerable portion of her time in the spring of 2006 correcting the problems that had been caused by improper teaching techniques. See J.A. 367. With Painter's efforts, T.H. by July 2006 had progressed to the point where he would sit and work with Painter for 20 minutes at a time.

In August 2006, Painter took a position with a different school, and the District hired Sharon James as lead teacher for the autism class. James was a certified special education teacher and the mother of an autistic child, but she had never been trained in ABA therapy. T.H. did not do well under James. James had limited ability to control T.H.'s behavior—she testified that he was out of his chair and running around the classroom about 50% of the time—and T.H.'s problematic behaviors (wiping his face, wetting his pants) returned.

The District hired ABS, Inc., an educational consulting company, to provide ABA training and continuing supervision for James and the classroom aides. ABS provided a three-day training seminar for James and the classroom aides on September 13–15, 2006, more than a month after the school year had begun. After the training session had been completed, an ABS consultant observing the classroom believed that James was verbally and physically abusing the students and that James was actively resistant to the ABA approach. The consultant reported her observations to her supervisor, who in turn reported the problems to the District. Although the District investigated the matter, it could not substantiate the allegations of abuse and did not fire James. ABS then terminated its contract with the District, concluding that the District had, in essence, determined that its consultant had lied about James.

On September 26, 2006, shortly after ABS terminated its contract with the District, the parents removed T.H. from Bates. The parents then brought in Painter, T.H.'s former teacher, to conduct an assessment. Painter concluded that T.H. had regressed from where he had been in July, when she last worked with him, and she found that he had again become aversive to teaching. For T.H.'s education the parents hired an experienced ABA “line therapist” to provide approximately 30 hours per week of ABA therapy to T.H. in the parents' home.

The parents thereafter initiated due process proceedings, seeking a determination that the District was not providing T.H. with the “free appropriate public education” (“FAPE”) required by the IDEA. After conducting an evidentiary hearing, the first-line local hearing officer (“LHO”) issued an opinion concluding that, in light of the District's failure to provide all of the ABA therapy required by the IEPs, the parents were entitled to some level of compensatory educational services from the District. The LHO, however, determined that the home placement was not appropriate because it did not provide the least restrictive environment for T.H.

The parents appealed to a state review officer (“SRO”). The SRO expressed some uncertainty about whether the LHO had actually concluded that the District denied T.H. a FAPE, but, after reviewing all of the evidence, the SRO ultimately determined that the District had not provided T.H. with a FAPE. As to the appropriateness of the home placement, the SRO explained that the IDEA's least-restrictive-environment requirement does not strictly apply to private placements and that the overriding issue was whether the home placement was “reasonably calculated to enable the child to receive educational benefits.” J.A. 807. The SRO concluded that the home placement was appropriate, given that it provided proper ABA therapy to T.H.; that T.H. had made educational progress in the home placement; and that the parents and the therapist made sure T.H. had regular opportunities to interact with other children. Because it was not entirely clear whether the parents were seeking reimbursement for the expenses associated with the home placement or whether the approval of the home placement would affect the need for any compensatory educational services, the SRO remanded the case to the LHO for additional proceedings related to the remedy.

The District then initiated this action in federal district court challenging the SRO's decision. The district court expressed general agreement with the factual findings of the LHO, but determined that the LHO's legal conclusions “do not logically flow from his factual findings, and therefore are not entitled to deference.” J.A. 39. Agreeing with the SRO's analysis, the district court concluded that the District had denied T.H. a FAPE and that the home placement was appropriate. This appeal followed.

In the proceedings below, the District contended that it had provided T.H. with a FAPE in both the 2005–06 and the 2006–07 school years. On appeal, however, the District now concedes that, in light of the issues that arose after Painter resigned as lead teacher shortly before school started, it did not provide T.H. with a FAPE for part of the 2006–07 school year. The District contends, however, that by the time of the administrative hearing in December 2006, it had remedied all of the problems in the autism classroom. The District therefore concedes only that it denied T.H. a FAPE from the beginning of the 2006 school year through December 6, 2006, the date of the due process hearing. Accordingly, the District in this appeal raises two issues related to its obligation to provide a FAPE. It contends that the district court erred by concluding that the District failed to provide T.H. a FAPE during the 2005–06 school year, and that the district court failed to recognize that the District had remedied all of the problems by the time of the due process hearing and was at that time capable of providing T.H. with a FAPE. The District also argues that the district court erred by concluding that T.H.'s home placement was appropriate.

II.

A.

The District first contends that the district court erred by concluding that it failed to provide T.H. with a FAPE for the 2005–06 school year. Although the District acknowledges that it did not provide T.H. with all of the...