Sumter County School District 17 v. Heffernan Ex Rel. TH

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SUMTER COUNTY SCHOOL DISTRICT 

17,

Plaintiff-Appellant,

v.

 No. 09-1921

JOSEPH HEFFERNAN, on behalf of

his son TH; MAY BAIRD, on behalf

of her son TH,

Defendants-Appellees.



Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Joseph F. Anderson, Jr., District Judge.

(3:07-cv-01357-JFA)

Argued: December 8, 2010

Decided: April 27, 2011

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.

2 SUMTER COUNTY SCHOOL DIST. 17 v. HEFFERNAN

COUNSEL

ARGUED: David Thomas Duff, DUFF, WHITE & TUR-

NER, 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, NEL-

SON MULLINS RILEY & SCARBOROUGH, LLP, Colum-

bia, South Carolina, for Appellees.

OPINION

TRAXLER, Chief Judge:

In this action under the Individuals with Disabilities Educa-

tion 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 indi-

vidual education plan ("IEP") for the 2005-06 school year cal-

led 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

SUMTER COUNTY SCHOOL DIST. 17 v. HEFFERNAN 3

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 class-

room 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 sub-

side. 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 terminol-

ogy, of the techniques that are used in applied behavior ther-

apy." 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 infor-

mation 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 prob-

lems 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.

4 SUMTER COUNTY SCHOOL DIST. 17 v. HEFFERNAN

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 supervi-

sion 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 sub-

stantiate 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.

SUMTER COUNTY SCHOOL DIST. 17 v. HEFFERNAN 5

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 hear-

ing, 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 par-

ents 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 deter-

mined 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 edu-

cational 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 compen-

satory 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

6 SUMTER COUNTY SCHOOL DIST. 17 v. HEFFERNAN

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 appro-

priate. 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 con-

cedes 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 there-

fore concedes only that it denied T.H. a FAPE from the begin-

ning 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 pro-

vide a FAPE. It contends that the district court erred by con-

cluding 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 hours of ABA therapy

required by the IEP, the District insists that it delivered signif-

icant portions of the services required by the IEP that pro-

SUMTER COUNTY SCHOOL DIST. 17 v. HEFFERNAN 7

vided some educational benefit to T.H., which is sufficient

under the IDEA.

The IDEA requires states receiving federal funds for educa-

tion to provide disabled schoolchildren with a "free appropri-

ate public education." 20 U.S.C.A. § 1412(a)(1)(A) (West

2010). 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. Row-

ley, 458 U.S. 176, 188-89 (1982) (internal quotation marks

omitted).1 Although the IDEA requires an appropriate educa-

tion, it "does not require a perfect education." M.S. ex rel.

Simchick v. Fairfax Cnty. Sch. Bd., 553 F.3d 315, 328 (4th

Cir. 2009). Instead, "a FAPE must be reasonably calculated to

confer some educational benefit on a disabled child." M. ex

rel. DM v. School Dist. of Greenville Cnty., 303 F.3d 523, 526

(4th Cir. 2002) (emphasis added).

Given the relatively limited scope of a state’s obligations

under the IDEA, we agree with the District that the failure to

perfectly execute an IEP does not necessarily amount to the

denial of a free, appropriate public education. However, as

other courts have recognized, the failure to implement a mate-

rial or significant portion of the IEP can amount to a denial

of FAPE. See Van Duyn ex rel. Van Duyn v. Baker Sch. Dist.

5J, 502 F.3d 811, 822 (9th Cir. 2007) ("[A] material failure

to implement an IEP violates the IDEA."); Neosho R-V Sch.

Dist. v. Clark, 315 F.3d 1022, 1027 n.3 (8th Cir. 2003) ("[W]e

cannot conclude that an IEP is reasonably calculated to pro-

vide a free appropriate public education if there is evidence

that the school actually failed to implement an essential ele-

ment of the IEP that was necessary for the child to receive an

1

The statute under consideration in Rowley was the "Education of the

Handicapped Act," see Board of Educ. v. Rowley, 458 U.S. 176, 179

(1982), which was amended in 1990 and retitled as the IDEA, see Gadsby

ex rel. Gadsby v. Grasmick, 109 F.3d 940, 942 n.1 (4th Cir. 1997).

8 SUMTER COUNTY SCHOOL DIST. 17 v. HEFFERNAN

educational benefit."); Houston Indep. Sch. Dist. v. Bobby R.,

200 F.3d 341, 349 (5th Cir. 2000) ("[A] party challenging the

implementation of an IEP must show more than a de minimis

failure to implement all elements of that IEP, and, instead,

must demonstrate that the school board or other authorities

failed to implement substantial or significant provisions of the

IEP."). Accordingly, we conclude that a material failure to

implement an IEP, or, put another way, a failure to implement

a material portion of an IEP, violates the IDEA.

The District contends that its failure to completely imple-

ment the 2005-06 IEP was not material because, as deter-

mined by the LHO, T.H. in fact received some educational

benefit during that school year. According to the District, the

district court erred by failing to give proper deference to the

LHO’s factual findings on this point. We disagree.

Preliminarily, we note that it is not entirely clear whether

the LHO concluded that the District failed to provide a FAPE

for the 2005-06 school year. Portions of the LHO’s opinion

seem to indicate that it found a denial of FAPE — the LHO

stated that the District "den[ied] T.H. a FAPE for the approxi-

mately 5.0 to 7.5 hours each week he was to be provided

ABA therapy and didn’t receive it in the [f]all of 2005," J.A.

778, and that the District’s "violations of T.H.’s IEPs did

interfere somewhat with T.H.’s access to a FAPE," J.A. 780.

However, the LHO also stated that T.H. had made progress

and that T.H. received more than minimal educational benefit

during the 2005-06 and 2006-07 school years, see J.A. 781,

statements that, when considered in light of the scope of a

state’s obligation under the IDEA, suggest the District’s fail-

ings did not deny T.H. a FAPE. See, e.g., MM ex rel. DM, 303

F.3d at 526. There is, however, no need for us to decide

whether the LHO determined that the District did not deny

T.H. a FAPE, as the District argues, or that the District did

deny T.H. a FAPE, as the parents argue, because the district

court gave sufficient deference to the LHO’s decision.

SUMTER COUNTY SCHOOL DIST. 17 v. HEFFERNAN 9

A district court considering a challenge to a state adminis-

trative decision in an IDEA case makes an independent deci-

sion based on its view of the preponderance of the evidence.

See 20 U.S.C.A. § 1415(i)(2)(C)(iii) (West 2010). The district

court must give "due weight" to the administrative proceed-

ings, but the findings of fact and ultimate decision as to

whether the state has complied with the IDEA are made by

the district court. Doyle v. Arlington Cnty. Sch. Bd., 953 F.2d

100, 103 (4th Cir. 1991). "Due weight" means that adminis-

trative findings "are entitled to be considered prima facie cor-

rect, akin to the traditional sense of permitting a result to be

based on such fact-finding, but not requiring it." Id. at 105.

In this case, the district court explicitly recognized that the

LHO’s factual findings were "regularly made" and thus did

not fall within the exception to the due-weight requirement

articulated in Doyle. See id. at 104, 105 (explaining that if an

administrative officer departs "so far from the accepted norm

of a fact-finding process designed to discover truth" — for

example, by rejecting credibility determinations made by the

hearing officer — the findings cannot be considered "regu-

larly made" and those findings are entitled to no weight); see

also J.P. ex rel. Peterson v. County Sch. Bd. of Hanover

Cnty., Va., 516 F.3d 254, 259 (4th Cir. 2008) ("When deter-

mining whether a hearing officer’s findings were regularly

made, our cases have typically focused on the process through

which the findings were made."). The district court acknowl-

edged and accepted the LHO’s factual findings, but the court

believed that the evidence considered as a whole pointed to a

different legal conclusion than that reached by the LHO. This

was entirely appropriate and consistent with the district

court’s obligation to make its own independent determination

of whether the District had provided T.H. with a FAPE.

Moreover, when arguing that the court failed to give proper

deference to the LHO’s findings, the District largely ignores

the significance of the SRO’s findings. Like the district court,

the SRO was obligated under the IDEA to review the record

10 SUMTER COUNTY SCHOOL DIST. 17 v. HEFFERNAN

and make an independent decision based on his view of the

preponderance of the evidence. The SRO weighed the evi-

dence differently than did the LHO and drew different conclu-

sions from the evidence, but the SRO did not improperly

reject credibility findings made by the LHO or otherwise

depart from the accepted norm of fact-finding. Because the

SRO’s findings were regularly made, they, too, were entitled

to due weight by the district court. See Doyle, 953 F.2d at 105

("When a state administrative appeals authority has departed

from the fact-finding norm to such an extent as here, we think

the facts so found as a result of that departure are entitled to

no weight. . . ."); Burke County Bd. of Educ. v. Denton, 895

F.2d 973, 981 (4th Cir. 1990) (rejecting as "simply incorrect"

the parents’ claim that "deference was due only to the review

officer’s conclusion" (emphasis added)).

The question, then, is whether the district court committed

clear error when making its independent determination that

the District’s failure to implement the 2005-06 IEP consti-

tuted a denial of FAPE. See County Sch. Bd. of Henrico Cnty.

v. Z.P., 399 F.3d 298, 309 (4th Cir. 2005) (whether a school

has satisfied its obligations under the IDEA is a factual issue

reviewed for clear error). We believe that question must be

answered in the negative. The evidence in the record shows

that the 2005-06 school year was an extraordinarily difficult

one for T.H. In the fall of 2005, he was "very aversive to the

teaching situation," would not sit still "for more than a second

or two," J.A. 366, and was engaging in harmful behaviors like

biting himself and wiping his face until it bled. Painter, the

board-certified ABA therapist who worked in the classroom

in 2005-06, testified that T.H.’s problems were caused by the

failure of the lead teacher and the classroom aides to properly

understand and implement ABA techniques, and that it took

her until July 2006 to bring T.H. back to the point where he

previously should have and would have been if the teachers

had understood and properly implemented the ABA method-

ology.

SUMTER COUNTY SCHOOL DIST. 17 v. HEFFERNAN 11

While there is evidence showing that T.H. made some

gains in certain skill areas tested in the spring of 2006, these

gains were not so significant as to require a conclusion that

T.H. received some non-trivial educational benefit from the

2005-06 IEP as implemented by the District. When the evi-

dence of T.H.’s small improvements in a few tested areas is

considered against the District’s conceded failure to provide

the 15 hours of ABA therapy required by the IEP, the evi-

dence that the lead teacher and aides (other than Painter) did

not understand or use proper ABA techniques, and the evi-

dence that it took Painter months of working with T.H. to cor-

rect the problems caused by the improper implementation of

ABA techniques, we cannot say that the district court erred,

much less clearly erred, by concluding that the District’s fail-

ure to properly implement material portions of the IEP denied

T.H. a FAPE for the 2005-06 school year. Cf. Hall ex rel.

Hall v. Vance Cnty. Bd. of Educ., 774 F.2d 629, 636 (4th Cir.

1985) ("Congress did not intend that a school system could

discharge its duty . . . by providing a program that produces

some minimal academic advancement, no matter how triv-

ial.").

B.

Although the District now concedes that it did not provide

a FAPE for the first part of the 2006 school year, it contends

that as of the date of the due process hearing (December 6,

2006), it had remedied the problems with its autism program.

The District thus argues that the district court should have

held that the District was capable of providing a FAPE as of

December 6, 2006. The District contends that such a conclu-

sion is relevant to the determination of the scope and extent

of the remedy to be imposed for the District’s failure to pro-

vide a FAPE.

We agree as a general matter that post-removal changes or

improvements to a school’s educational program can be rele-

vant in the remedial context, cf. M.S. ex rel. Simchick, 553

12 SUMTER COUNTY SCHOOL DIST. 17 v. HEFFERNAN

F.3d at 325 (noting that when determining whether reimburse-

ment is appropriate, the district court may consider, among

other things, "the existence of other, perhaps more appropri-

ate, substitute placements"), and we will assume that the Dis-

trict’s post-removal capability to properly implement an IEP

would be relevant to the remedial question in this case. Even

with that assumption, however, we cannot conclude that the

district court erred by not finding that the District was capable

of providing a FAPE at the time of the due process hearing.

The evidence of the District’s improved capabilities was far

from concrete. The evidence established that the District had

entered into a contract with MaySouth, Inc., to provide ABA

consultation services, technical assistance, and training as

needed by the District. As of the time of the hearing, however,

a MaySouth consultant had observed the autism classroom,

but there had been no ABA training or supervision, nor had

MaySouth and the District even yet settled on a schedule for

visits by a consultant. (A MaySouth consultant testified that

he expected a consultant would probably visit the school

about once a week, but certainly no less than once every two

weeks.) The District had also engaged the services of Dr. Eric

Drasko, a professor from the University of South Carolina and

an acknowledged expert in the field, but again, the evidence

of the services he was to provide was far from certain or specific.2

This evidence certainly shows that the District was taking

seriously the need to improve its program for educating autis-

tic students. We cannot say, however, that the District’s evi-

dence so compellingly established the District’s capability at

the time of the due process hearing that the district court com-

mitted clear error by not finding the District capable of pro-

viding a FAPE to T.H.

2

Dr. Shawn Hagerty, the District’s special education coordinator, testi-

fied that Drasko was "looking at the big picture. . . . , seeing what indepen-

dent functional skills the kids need in order to generalize, maintain, and

to expand across all the environments," J.A. 646, and that Drasko was oth-

erwise "always available" by email, J.A. 646, and would be available for

meetings once a month.

SUMTER COUNTY SCHOOL DIST. 17 v. HEFFERNAN 13

III.

We turn now to the District’s challenge to the determina-

tion that the home placement was appropriate and therefore

would serve as the "stay put" placement until the District

established an adequate program.3 According to the District,

the home placement is not appropriate because it is too

restrictive and because the parents failed to present sufficient

evidence that the home placement was reasonably calculated

to provide an educational benefit to T.H.

The IDEA requires states seeking education funding to

ensure that

[t]o the maximum extent appropriate, children with

disabilities, including children in public or private

institutions or other care facilities, are educated with

children who are not disabled, and special classes,

separate schooling, or other removal of children with

disabilities from the regular educational environment

occurs only when the nature or severity of the dis-

ability of a child is such that education in regular

classes with the use of supplementary aids and ser-

vices cannot be achieved satisfactorily.

20 U.S.C.A. § 1412(a)(5)(A) (West 2010). The LHO applied

this statutory preference for "mainstreaming" to T.H.’s home

placement, concluding that the home placement was not the

3

Under the "stay put" provision of the IDEA, "during the pendency of

any proceedings conducted pursuant to this section, . . . the child shall

remain in the then-current educational placement of the child" absent the

consent of the parents and school officials. 20 U.S.C.A. § 1415(j) (West

2010). We further note that while the question of remedy is not at issue

in this appeal, the appropriateness of a home placement also affects par-

ents’ eligibility for reimbursement of the costs associated with the home

placement. See M.S. ex rel. Simchick v. Fairfax Cnty. Sch. Bd., 553 F.3d

315, 324 (4th Cir. 2009).

14 SUMTER COUNTY SCHOOL DIST. 17 v. HEFFERNAN

least restrictive environment and therefore was not appropri-

ate.

As the district court noted, however, this circuit has "never

held that parental placements must meet the least restrictive

environment requirement." M.S. ex rel. Simchick, 553 F.3d at

327. As we have explained,

mainstreaming is a policy to be pursued so long as

it is consistent with the Act’s primary goal of provid-

ing disabled students with an appropriate education.

Where necessary for educational reasons, main-

streaming assumes a subordinate role in formulating

an educational program. In any event, the Act’s pref-

erence for mainstreaming was aimed at preventing

schools from segregating handicapped students from

the general student body; the school district has pre-

sented no evidence that the policy was meant to

restrict parental options when the public schools fail

to comply with the requirements of the Act.

Carter ex rel. Carter v. Florence Cnty. Sch. Dist. Four, 950

F.2d 156, 160 (4th Cir. 1991), aff’d, 510 U.S. 7 (1993). Thus,

while a parental placement is not inappropriate simply

because it does not meet the least-restrictive-environment

requirement, it is nonetheless proper for a court to consider

the restrictiveness of the private placement as a factor when

determining the appropriateness of the placement. See M.S. ex

rel. Simchick, 553 F.3d at 327 ("[T]he district court’s consid-

eration of [the private placement’s] restrictive nature was

proper because it considered the restrictive nature only as a

factor in determining whether the placement was appropriate

under the IDEA, not as a dispositive requirement.").

The evidence established that the parents were well aware

of the need for T.H. to interact with non-disabled children. To

meet this need, the line therapist who provided ABA therapy

to T.H. regularly took T.H. to parks and into the community

SUMTER COUNTY SCHOOL DIST. 17 v. HEFFERNAN 15

for social interactions, and T.H.’s father likewise took T.H.

into the community on a daily basis. The district court prop-

erly considered this evidence and the restrictiveness of the

home placement as a factor, but not the dispositive factor, in

its determination of the appropriateness of the home place-

ment.

While more detailed evidence of the nature of the commu-

nity outings and the manner in which the parents were using

the outings to improve T.H.’s social skills would have been

preferable, we cannot say that the evidence was so thin that

the district court clearly erred by considering it. The District’s

claim that the more restrictive nature of the home placement

and its more limited opportunities for social interaction makes

the home placement inappropriate is in reality a complaint

about the weight the district court gave this factor when deter-

mining the appropriateness of the placement. We see no basis

in the record, however, for concluding that the district court’s

determination about the relative weight to be given to this fac-

tor amounted to clear error.

And on the broader question of whether the parents’ evi-

dence was sufficient to support the district court’s conclusion

that the home placement was appropriate, we again find no

clear error. A parental placement is appropriate if the place-

ment is "reasonably calculated to enable the child to receive

educational benefits," M.S. ex rel. Simchick, 553 F.3d at 325

(internal quotation marks omitted), or stated somewhat differ-

ently, if "the private education services obtained by the par-

ents were appropriate to the child’s needs," A.K. ex rel. J.K.

v. Alexandria City Sch. Bd., 484 F.3d 672, 679-80 (4th Cir.

2007). T.H.’s mother, herself board-certified in ABA therapy,

testified that T.H. was receiving approximately 30 hours per

week of ABA services provided by an experienced ABA line

therapist; that the parents and the ABA therapist made sure

T.H. had sufficient opportunities to interact with other chil-

dren; and that T.H. was progressing both educationally and

behaviorally under the home program, in that he was happier,

16 SUMTER COUNTY SCHOOL DIST. 17 v. HEFFERNAN

learning more, and was no longer engaging in the problematic

behaviors like wiping his face until it bled.

The SRO, applying the correct legal standard, considered

the parents’ evidence and concluded that the home placement

was appropriate, and the district court properly gave weight

to the SRO’s analysis.4 And after considering all of the evi-

dence and the SRO’s views, the district court likewise deter-

mined that the home placement was appropriate.

The parents’ evidence about the home placement was not

very extensive, and it was short on details and specifics.

Nonetheless, the evidence established that T.H. was receiving

intensive ABA therapy, the kind of therapy that the District

through its IEPs had concluded was necessary to provide T.H.

with an appropriate education, and that T.H. was responding

well to the program. Under these circumstances, we believe

the evidence was sufficient, if barely, to support the district

court’s conclusion. We therefore cannot conclude that the dis-

trict court clearly erred by determining that the home place-

ment was reasonably calculated to enable T.H. to receive

educational benefits.

IV.

Accordingly, for the foregoing reasons, we hereby affirm

the decision of the district court.

AFFIRMED

4

The LHO’s conclusion that the home placement was not appropriate

was premised on the fact that the home placement was not the least restric-

tive environment. As the finding was based on an incorrect understanding

of the law, the LHO’s finding was not entitled to deference by the SRO

or the district court. See A.K. ex rel. J.K. v. Alexandria City Sch. Bd., 484

F.3d 672, 679-80 (4th Cir. 2007) ("[A] finding is not entitled to deference

to the extent that it is based upon application of an incorrect legal stan-

dard.").

SUMTER COUNTY SCHOOL DIST. 17 v. HEFFERNAN 17

WYNN, Circuit Judge, concurring in part and dissenting in

part:

I agree with the majority that Sumter County School Dis-

trict 17 ("the School District") failed to provide T.H. with a

free appropriate public education. However, I write separately

to dissent from the majority’s holding that there was sufficient

evidence in the record to show that home-placement was

appropriate. In light of this lack of evidence, I would remand

this matter to the district court for additional fact finding.

I.

As the majority details, the services provided by the School

District were insufficient to provide the educational services

needed to comply with the Individualized Education Plans

("IEPs") developed for T.H., an autistic student. See 20

U.S.C. § 1401(9) (indicating that, to satisfy their obligation to

provide a free appropriate public education, schools must pro-

vide special education and related services "in conformity

with the individualized education program" designed for the

student). Specifically, the School District’s failure to ensure

the effective provision of Applied Behavior Analysis

("ABA") therapy constituted a failure to implement a material

element of each IEP designed to guide T.H.’s education. See

Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 (8th

Cir. 2003) (concluding that the IDEA is violated "if there is

evidence that the school actually failed to implement an

essential element of the IEP that was necessary for the child

to receive an educational benefit"); Houston Indep. Sch. Dist.

v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000) ("[T]o prevail

on a claim under the IDEA, a party challenging the imple-

mentation of an IEP must show more than a de minimis fail-

ure to implement all elements of that IEP, and, instead, must

demonstrate that the school board or other authorities failed

to implement substantial or significant provisions of the

IEP."). Thus, I agree with the majority’s conclusion that the

18 SUMTER COUNTY SCHOOL DIST. 17 v. HEFFERNAN

School District failed to provide T.H. with a free appropriate

public education.

I also agree with the majority’s analysis of the weight that

courts should give to the "least-restrictive environment

requirement" when considering the appropriateness of home-

placement. Though failure to meet this requirement might

establish a school district’s failure to comply with the IDEA,

see 20 U.S.C. § 1412(a)(5)(A), this "requirement" must logi-

cally be relaxed when considering the appropriateness of an

educational program designed for implementation in the rela-

tive isolation of a child’s home. However, as the majority rec-

ognizes, whether the private placement adheres to this relaxed

conception of the restrictiveness requirement is still a factor

to be considered when assessing the overall appropriateness

of private placement.

Still, notwithstanding my substantial agreement with por-

tions of the majority opinion, I cannot agree with the majority

that the home-placement program in place to educate T.H. is

"reasonably calculated to enable the child to receive educa-

tional benefits." See M.S. ex rel. Simchick v. Fairfax Cnty.

Sch. Bd., 553 F.3d 315, 324 (4th Cir. 2009); Carter v. Flor-

ence Cnty. Sch. Dist. Four, 950 F.2d 156, 163 (4th Cir. 1991)

(internal quotation marks omitted).

II.

When assessing the appropriateness of private placement,

subject to limited exceptions,1 we should consider "the same

considerations and criteria that apply in determining whether

the School District’s placement is appropriate[.]" Frank G. v.

1

For instance, the private placement can be deemed appropriate even if

failing to meet the state education standards or requirements. Florence

Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 14 (1993). Also,

as indicated above, parents "may not be subject to the same mainstreaming

requirements as a school board." M.S. ex rel. Simchick, 231 F.3d at 105.

SUMTER COUNTY SCHOOL DIST. 17 v. HEFFERNAN 19

Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).

As such, we must determine whether the proposed placement

provides "educational instruction specially designed to meet

the unique needs of a handicapped child, supported by such

services as are necessary to permit the child to benefit from

instruction." Bd. of Educ. v. Rowley, 458 U.S. 176, 188-89

(1982)(internal quotation marks omitted).

Here, the only evidence provided as to the design of the

educational program provided for T.H. at home was the testi-

mony of his mother, May Baird. Baird testified that she had

hired Laura Walkup, "a young woman who has experience

working in an ABA program," to work with T.H. during the

school week. When pressed on cross-examination, she admit-

ted that she was unsure how many hours Walkup worked with

T.H. during a given week, stating that her husband "would be

a better one to answer that." Indeed, Baird indicated through-

out her testimony that she was "not the best one to answer"

questions regarding the details of the services provided to

T.H. because she is "often not home." However, Baird was

able to approximate that Walkup worked with T.H. for "20 to

30 hours" per week.

Notably, Baird failed to elaborate on the details of the edu-

cational services provided by Walkup. Problematically, she

made no mention of the goals of the therapy, indicating

merely that Walkup was "working on specific objectives."

This lack of specificity stands in stark contrast to the IEPs

developed for T.H., which include pages of detailed educa-

tional objectives related to, inter alia, his "socialization

skills," "classroom work skills," "general knowledge and

comprehension skills," "daily living skills," and "functional

communication skills." Moreover, Baird provided no testi-

mony regarding how the program was designed to measure

progress toward the unidentified "specific objectives," or how

much progress was required to demonstrate accomplishment

of said objectives. In short, given that the Court is asked to

consider whether the program designed for T.H. would meet

20 SUMTER COUNTY SCHOOL DIST. 17 v. HEFFERNAN

his "unique needs," without more clarification of the contents

of the program, I cannot answer that question affirmatively.

In addition, Baird made no mention of the services other

than ABA therapy, if any, that were provided for T.H. at home.2

As noted by the School District, there was "no evidence that

speech-language therapy or occupational therapy, two related

services included in the school IEP as supportive services . . .

were provided in the home program." Brief of Appellant at

47. To be sure, given T.H.’s autism, properly administered

ABA therapy was a necessary component of any plan reason-

ably calculated to confer on him an educational benefit. But

the ill-defined nature of that therapy counsels us to remand

this matter to the district court for the fact-finding necessary

to determine whether its provision was sufficient to demon-

strate the appropriateness of home-placement.

That said, the evidence concerning therapy was not the only

evidence offered concerning the program in place to educate

T.H. at home. Baird also testified about opportunities pro-

vided for T.H. to socialize. Presumably, this testimony was

given in an attempt to demonstrate compliance with the least-

restrictive-environment requirement. But, even under an

appropriately relaxed restrictiveness inquiry, there was insuf-

ficient evidence to demonstrate that the home-placement pro-

gram would provide T.H. with adequate opportunities to

interact with children who are not disabled. This point is

acknowledged, in part, by the majority opinion which states

that "more detailed evidence of the nature of the community

outings and the manner in which the parents were using the

outings to improve T.H.’s social skills would have been pref-

erable."

2

As noted by the District, there was "no evidence that speech-language

therapy or occupational therapy, two related services included in the

school IEP as supportive services . . . were provided in the home pro-

gram." Brief of Appellant at 47.

SUMTER COUNTY SCHOOL DIST. 17 v. HEFFERNAN 21

Indeed, scant evidence was provided regarding opportuni-

ties for T.H. to interact with non-disabled children. Baird tes-

tified that the therapist hired to work with T.H. "fairly

regularly" took him "for social opportunities on playgrounds

and stuff around locally." She also indicated that T.H.’s father

took the child into the community "on a daily basis." How-

ever, Baird, who was not present during these outings, was

unable to testify as to their duration. Also, her testimony is

unclear regarding the frequency with which T.H. interacted

with non-disabled children during these trips into the commu-

nity.3 If undefined periods of socialization with other children,

regardless of whether or not they are disabled, are sufficient

to satisfy the "least-restrictive-environment requirement," that

requirement is rendered a nullity.

In sum, where there was insufficient evidence as to how the

plan designed to educate a child at home is calculated to actu-

ally provide an educational benefit, it was error for the district

court to say that the "calculation" was reasonable. Accord-

ingly, this matter should be remanded so that the district court

can further examine the contents and structure of the plan pro-

posed during home-placement. Without more evidence

explaining the contents of the plan, a conclusion regarding its

adequacy cannot be drawn absent considerable speculation.

3

Baird was asked if T.H. had "an opportunity to relate to . . . typically

developing peers, other peers, or other opportunities for social interac-

tion." She replied, "He does out in the community, yes, and with, with

friends, family members of friends." Baird did not clarify whether, in

mentioning these friends or their family members, she was identifying

"typically developing peers" or instead "other peers." Similarly, when

asked on cross-examination about T.H.’s social interactions with "typi-

cally developing peers," Baird mentioned "family friends that have chil-

dren that are [T.H.’s] age that he can interact with," but did not discuss

how often those children were available to interact with T.H.