UNITED
STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
STEFAN JAYNES, A MINOR, BY
AND THROUGH HIS PARENTS, BRIAN D. JAYNES AND JULIANA F.
JAYNES, AND ON THEIR OWN BEHALF,
PLAINTIFF-APPELLEE,
v.
NEWPORT
NEWS SCHOOL BOARD,
DEFENDANT-APPELLANT.
No.
00-2312, No. 00-2575
Appeals
from the United States District Court for the Eastern District of
Virginia, at Newport News. Henry C. Morgan, Jr., District Judge. (CA-99-146-4)
Counsel
Argued: Kathleen Shepherd Mehfoud, Reed, Smith, Hazel & Thomas,
Richmond, Virginia, for Appellant. Peter W.D. Wright, Deltaville,
Virginia, for Appellee.
Before
Niemeyer and Traxler, Circuit Judges, and Robert R. Beezer, Senior
Circuit Judge of the United States Court of Appeals for the Ninth
Circuit, sitting by designation.
The
opinion of the court was delivered by: Per Curiam
Argued:
June 7, 2001
Decided: July 10, 2001
UNPUBLISHED
Affirmed by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
This
case addresses whether a reimbursement award for educational expenses
was proper under the Individuals with Disabilities Education Act ("IDEA"),
20 U.S.C. § 1400.1
Stefan
Jaynes was diagnosed with autism at age two. Following the advice
of a pediatric neurologist, Dr. L. Matthew Frank, Brian and Juliana
Jaynes (collectively, "Parents") contacted Paces, a program
specifically designed for autistic children. Paces informed the Parents
that Stefan needed a referral from the local public school system.
On October 8, 1993, the Parents requested a referral for special education
services from Newport News Public Schools ("Newport"), which
began the assessment process on December 15, 1993. At that time, Mrs.
Jaynes signed a "consent to testing" form but was not advised
of her parental rights.
On
February 18, 1994, Newport school officials held a meeting at which
they deemed Stefan eligible for special services and developed an
individualized educational program ("February IEP"). The
Parents received notice of this meeting but did not attend. Although
Newport was aware of Dr. Frank's recommendation that Stefan be enrolled
in Paces, the February IEP provided for Stefan's placement into the
Program for Educating Exceptional Preschoolers ("PEEP").2
Newport
neither inquired as to the Parents' absence nor briefed them on the
February meeting. Rather, the Parents received a notice of Stefan's
IEP eligibility in the mail. Although the Parents eventually signed
the IEP, thereby attesting to their receipt of an Advisement of Parental
Rights form, both contend that they never received such a form and
were never otherwise informed of their right to a due process hearing.
Newport
neglected to carry out the February IEP until the end of May 1994,
when there were only two weeks left in the school year. During this
interim, the Parents repeatedly contacted Newport to request that
the February IEP be carried out and that Stefan receive occupational
therapy and extended school year services. Newport either ignored
or denied their requests. In October 1995, Newport held a second IEP
meeting, which Mrs. Jaynes attended. Although Newport had never introduced
many of the objectives listed on the February IEP, Newport formulated
a new IEP ("October IEP") that, without explanation, reduced
the services available to Stefan. Although Mrs. Jaynes signed the
October IEP, Newport later altered it without her knowledge. On January
17, 1995, after realizing that Stefan was making no progress in PEEP,
the Parents unilaterally removed Stefan from the public school program
and placed him in a private Lovaas Applied Behavioral Analysis program
("Lovaas").*fn3 In late 1996, the Parents learned that they
had the right to contest the IEPs in a due process hearing. On January
14, 1997, they requested such a hearing, alleging that Newport committed
procedural and substantive violations of IDEA.
The
local hearing officer ("LHO") found that Newport failed
to notify the Parents of their right to a hearing and, based on that
finding, tolled the applicable one year statute of limitations. Because
Newport engaged in a pattern and practice of failing to follow the
procedures set forth in IDEA, the LHO ordered Newport to indemnify
the Parents in the amount of $117,979.78 for educational expenses.
Newport
appealed to the state review officer ("SRO"). The SRO affirmed
the LHO's decision but reduced the award based on his conclusion that
the statute of limitations prevented the Parents from recovering any
expenses prior to January 14, 1997, the day the Parents requested
a due process hearing.
The
Parents sought reinstatement of the full amount in district court.
The court held that the only causes of action available to the Parents
are those that accrued after July 1, 1995.4 Finding that Newport's
violations of IDEA kept the Parents ignorant of their hearing rights
until sometime in 1996, the court allowed the Parents to be reimbursed
for educational expenses incurred on or after July 1, 1995. Newport
appeals the court's summary judgment in favor of the Parents. We have
jurisdiction, 28 U.S.C. § 1291, and we affirm.
I.
Newport
first contends that the district court misapplied the statute of limitations.
We review this legal question de novo. Singer v. Dungan, 45
F.3d 823, 827 (4th Cir. 1995).
The
appropriate period of limitations for actions brought under IDEA is
one year for claims that accrued before July 1, 1995, and two years
for claims that accrued on or after that date. Manning v. Fairfax
County Sch. Bd., 176 F.3d 235, 239 n.2 (4th Cir. 1999).
The
district court held that although claims that accrued prior to July
1, 1995, were barred, any claims arising after that date were actionable
because they fell within the two year limitations period. The court
then analyzed the Parents' claims to determine whether any accrued
after July 1, 1995.
The
court determined that the claim alleging failure to give notice of
the right to and procedures for requesting a hearing fell within the
two year statute of limitations. The court found that the moment the
Parents received such notice--sometime in 1996--is the moment that
the action accrued. Because any date in 1996 would fall within the
two year limitations period, the court concluded that this claim was
actionable.
Newport
argues that the limitations period on the Parents' due process request
started to run on October 10, 1994 (the date of the second IEP meeting)
or at the latest, on January 17, 1995 (the date the Parents removed
Stefan from the PEEP program). Newport contends that as of these dates,
the Parents knew of the events that formed the bases of their claims
and that the fact that they did not learn until much later that their
injuries were actionable is irrelevant. See Richards v. Fairfax
County Sch. Bd., 798 F. Supp. 338, 341 (E.D. Va. 1992), aff'd,
7 F.3d 225 (4th Cir. 1993) (holding that IDEA claims accrue when the
parents know of the injury or the event that is the basis for their
claim, regardless of whether they know that the injury is actionable).
Because the Parents did not request a due process hearing within one
year of either of these dates, Newport contends, their claim for reimbursement
is barred.
The
district court correctly applied the statute of limitations. In general,
knowledge that an injury is actionable is irrelevant to the determination
of when the injury arose. Here, however, Newport's failure to notify
the Parents of their parental rights, in violation of statutory mandates,
is the alleged injury. The Parents complain that because Newport neglected
to inform them of their right to a due process hearing, they were
deprived of the opportunity to seek recourse through such a hearing.
It follows that the moment they learned they had a right to a hearing
was the moment they learned Newport had a duty to inform them of such
a right.
II.
Newport
next challenges the court's application of the standard of review,
an issue which we review de novo. See Myles Lumber Co. v. CNA Financial
Corp., 233 F.3d 821, 823 (4th Cir. 2000).
Courts
reviewing administrative decisions in IDEA cases "are required
to make an independent decision based on a preponderance of the evidence,
while giving due weight to state administrative proceedings."
Doyle v. Arlington County Sch. Bd. , 953 F.2d 100, 103 (4th
Cir. 1992). Due weight review requires that the court afford factual
findings a presumption of prima facie correctness. Id. If the reviewing
court decides to depart from the administrative findings, it must
explain its reasons for doing so. Id. After giving the factual findings
due weight, the court is free to decide the case based on the preponderance
of the evidence. Id.; see also 20 U.S.C. § 1415(i)(2)(B).
Newport
argues that the court should have afforded less deference to the LHO's
findings because the LHO adopted many of the Parents' proposed findings
of fact and conclusions of law and failed to exercise independent
judgment. In particular, Newport attacks the district court's decision
to accept the LHO's finding that the Parents did not receive notice
of their rights until 1996, contrary to the SRO's finding that the
Parents did receive such notice. The district court, however, correctly
applied the Doyle standard. When findings by the LHO and SRO conflict,
due weight is generally given to the LHO's decision, particularly
if, as here, that decision turns on witness credibility. See Doyle,
953 F.2d at 105; Springer v. Fairfax County Sch. Bd., 134 F.3d
659, 663 n.* (4th Cir. 1998). The court independently reviewed the
evidence underlying the LHO's factual findings and properly determined
that those findings were supported by the record.
III.
Newport
also contends that the district court erred when it determined that
reimbursement for Stefan's participation in the Lovaas program was
appropriate.
We
review de novo a grant of summary judgment. Gadsby v. Grasmick,
109 F.3d 940, 949 (4th Cir. 1997). Although we review the district
court's legal conclusions de novo, we accept its finding of facts
in the absence of clear error. Mentavlos v. Anderson, 249 F.3d
301, 307 (4th Cir. 2001).
Reimbursement
of special education expenses under IDEA is appropriate when the reviewing
court finds that: (1) the public school's placement was not providing
the child with a free appropriate public education; and (2) the parents'
alternative placement was proper under IDEA. Sch. Comm. of Town
of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359,
369-70 (1985). In determining whether the public school has provided
a free appropriate public education, the court conducts a twofold
inquiry: (1) has the State complied with the procedures set forth
in IDEA?; and (2) is the IEP reasonably calculated to enable the child
to receive educational benefits? Bd.
of Educ. of Hendrick Hudson Central Sch. Dist., Weschester County
v. Rowley, 458 U.S. 176, 206-07 (1982). Failure to meet
IDEA's procedural requirements is an adequate ground for holding that
the public school failed to provide a free appropriate public education.
Hall v. Vance County Bd. of Educ., 774 F.2d 629, 635 (4th Cir.
1985) (citing Rowley,
458 U.S. at 206 n.27); accord Bd. of Educ. of the County of Cabell
v. Dienelt, 843 F.2d 813, 815 (4th Cir. 1988).
Because
we agree with the district court's finding that Newport repeatedly
failed to notify the Parents of their right to a due process hearing,
we affirm its holding that these procedural violations constituted
failure of Newport to provide Stefan with a free appropriate public
education. For the reasons we give below, Newport's three arguments
to the contrary are unavailing.
First,
Newport argues that it was entitled to the presumption that it provided
the Parental Rights form as early as December 1993. This contention
is based on (1) the fact that Newport has a practice of providing
this form when a child is brought in to be evaluated and whenever
an IEP is developed; and (2) the fact that the Parents signed Stefan's
IEPs, both of which included language attesting that they had received
the Parental Rights form.
Relying
on the findings of the LHO and an independent review of the record,
the district court correctly found that the Parents were unaware of
their right to a due process hearing until 1996. The record shows
that the Parents testified consistently and persuasively at the administrative
hearing that they had never seen a Parental Rights form and had never
otherwise been informed of their rights. Moreover, at least one Newport
administrator admitted that she had never informed the Parents of
their rights. Newport does not dispute that when it denied the Parents'
requests for extra and extended school year services, and when the
Parents notified Newport of their intention to remove Stefan from
PEEP, it failed to notify them of their rights. See Hall, 774
F.2d at 634-35 (finding failure to notify despite administrator's
testimony that she had explained procedural rights to the parents
at an IEP meeting when school did not contest that it failed to give
notice at similar points in the process). Finally, although the SRO
found that the best evidence--the Parents' signatures on the IEPs--demonstrated
that they had notice of their rights, the district court's decision
to the contrary is based on a preponderance of the evidence and is
not clearly erroneous.5
Second,
Newport devotes much of its attention to its argument that the court
erred when it failed to determine whether or not Newport was providing
an appropriate education for Stefan. This contention is irrelevant
because the district court based its decision that Newport was not
providing a free appropriate education on procedural violations of
IDEA, not on substantive deficiencies in Stefan's program. A determination
of whether the public school's program is "appropriate"
is only necessary when the claim is that the IEP was not reasonably
calculated to enable the child to receive education benefits. Cf.
Dienelt, 843 F.2d at 814-15 (affirming award of reimbursement
based on district court's determinations that procedural violations
constituted a failure to provide the child with a free appropriate
public education and that parents' alternative placement was appropriate).
Newport's
third argument, that the court erred because it failed to determine
that the Parents' placement of Stefan was proper, has some merit.
Reimbursement is proper only upon finding both that Newport failed
to provide a free appropriate education (here, based on procedural
defects) and that the Parents' placement was proper under IDEA. See
Burlington, 471 U.S. at 369-70. Although the district court
did not make the second finding, we affirm the reimbursement award
because the record supports a determination that Stefan's placement
in Lovaas therapy was proper.6 For example, the LHO concluded, based
on extensive briefing, that Lovaas therapy was appropriate and had
benefitted Stefan. The SRO noted that according to Dr. Frank's letter,
Stefan had improved as a result of Lovaas therapy. Dr. Frank's letter
reported that Stefan's "Lovaas training is having a very definite
impact on his growth and development" and detailed specific examples.
Finally, not only did Stefan's speech/language pathologist testify
regarding Stefan's improvements, but Newport's psychologist also reported
"qualitative improvement."7
IV.
Finally,
Newport argues that it did not waive its right to challenge the specific
amount of reimbursement.
In
its order granting the Parents' motion for summary judgment, the district
court directed that in the event that the parties could not agree
upon the amount of damages, the Parents should submit a verified claim
for damages to which Newport could reply. Unable to stipulate to the
amount of damages, both parties submitted briefs, but neither requested
a hearing. In its brief, Newport: (1) argued that expenses for Stefan's
Lovaas training should not be reimbursed because such training does
not qualify as an educational program under IDEA; and (2) challenged
reimbursement for particular expenses not incurred for "special
education and related services" under 20 U.S.C. § 1401(a)(18).
The
district court reinstated the reimbursement award of the LHO, but
reduced the amount by subtracting costs incurred prior to July 1,
1995, as barred by the statute of limitations.8 The court concluded
that because Newport had neglected to challenge the amount of the
reimbursement award until after summary judgment was entered against
it,9 Newport had waived such arguments. We hold that the district
court did not abuse its discretion in refusing to consider Newport's
new arguments. Although IDEA permits the district court to hear new
evidence, we have held that such evidence is limited to that which
could not have been presented before the administrative agencies.
Springer, 134 F.3d at 666-67 (upholding district court's refusal
to hear testimony when same testimony could have been introduced during
local and state proceedings, but, for tactical reasons, was not).
In this case, the district court faulted Newport for neglecting to
challenge the award amount at any time prior to entry of summary judgment,
and Newport offers no excuse for its reticence. The court correctly
found that Newport made a tactical decision to forego opportunities
to contest the award amount and was estopped from now patching up
holes in its administrative case.
The
judgment of the district court is hereby affirmed.
AFFIRMED
Footnotes
1 IDEA requires states that receive federacl funding for the education
of the handicapped to provide such children with a free appropriate
public education. 28 U.S.C. § 1412(1). A free appropriate public
education is provided to a child through the development of an individualized
educational program ("IEP"). Id. § 1414. IDEA guarantees
parents the opportunity to contest any matter relating to the child's
IEP, including the right to due process hearings, state-level appeals,
civil actions and attorneys's fees. Public schools must also provide
particular and timely notification of and procedural instruction regarding
such rights. Id. § 1415.
2
PEEP is a Newport-owned program designed for children with various
disabilities. Paces is a regional public school consortium specifically
designed to educate children with autism; because the Paces program
is not owned or operated by Newport, Newport would have to pay Stefan's
tuition to Paces.
3 Applied Behavioral Analysis Therapy, a form of treatment for autistic
preschoolers developed by Dr. Ivar Lovaas, consists of breaking down
activities into discrete tasks and rewarding the child's accomplishments.
See Bd.
of Educ. of the County of Kanawha v. Michael M., 95 F. Supp. 2d
600, 602 (S.D. W. Va. 2000).
4
Effective July 1, 1995, the Virginia statute of limitations for personal
injury actions was extended from one year to two years, applicable
to causes of action accruing on or after that date. See Va. Code §
8.01-248.
5
Newport asserts that even if it failed to give notice, such failure
must lead to a loss of an "educational opportunity" to have
legal significance. See Burke County Bd. of Educ. v. Denton,
895 F.2d 973, 982 (4th Cir. 1990). The LHO found that Stefan had suffered
such a loss, and the record supports this finding.
6
Cf. Hall, 774, F.2d 629, 636 n.7 (noting that although district
court did not explicitly find parental placement was appropriate,
it implicitly so found when it stated that parents proved that the
costs they incurred were in connection with providing child with appropriate
education).
7
Newport takes issue with the Parents' failure to present expert testimony
on Lovaas at the hearing and contends that PEEP was more appropriate
than home-based Lovaas tutoring because it allowed Stefan to interact
with other students, as favored by IDEA's"mainstreaming provision,"
20 U.S.C. § 1412(5)(B). These arguments are unavailing. First,
although there was no live expert testimony, the Parents submitted
over 20 exhibits regarding the Lovaas method and elicited testimony
from Stefan's speech/language pathologist regarding Lovaas in general
and its effect on Stefan. Second, although IDEA prefers mainstreaming
handicapped students, that provision was meant to prevent schools
from segregating handicapped students from the general student population,
not to restrict parental options. Carter
v. Florence County Sch. Dist. Four, 950 F.2d 156, 160 (4th Cir.
1991). Moreover, mainstreaming was not necessarily appropriate
in this case due to the particularity of Stefan's disability.
8
The Parents do not challenge the district court's reduction of the
reimbursement amount on appeal.
9
Both the LHO and SRO concluded that because Newport challenged only
the Parents' entitlement to the award, and not the amount of the award,
Newport had waived any such specific objections. The district court
relied on those conclusions by the LHO and SRO as well as the fact
that Newport did not initially object to the award amount before the
district court, but rather had agreed to rest its case on the administrative
record.
Links:
Jaynes Case
Anatomy
of a Special Education Case - tells story of case, includes
links to pleadings and decisions.
Complaint
in Jaynes v. Newport News School Bd (2000) - pdf
Jaynes
v. Newport News School Bd. (E.D. VA 2000)
