JH v. Henrico County School Board

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JH, a minor, by and through his 

parents and next friends, JD and

SS; SS; JD,

Plaintiffs-Appellants,

 No. 04-1454

v.

HENRICO COUNTY SCHOOL BOARD,

Defendant-Appellee.



Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Richard L. Williams, Senior District Judge.

(CA-01-519-3)

Argued: October 28, 2004

Decided: January 20, 2005

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.

COUNSEL

William Henry Hurd, TROUTMAN SANDERS, L.L.P., Richmond,

Virginia, for Appellants. Joseph Thomas Tokarz, II, COUNTY

ATTORNEY’S OFFICE, Richmond, Virginia, for Appellee.

2 JH v. HENRICO COUNTY SCHOOL BOARD

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 dis-

pute regarding who should bear the expense of $1,875 in

speech/language and occupational therapy services received by JH1

during the summer of 2001, i.e., the summer between JH’s kindergar-

ten and first grade school years.2 JH suffers from a high functioning

form of autism which is often referred to as Asperger’s Disorder.

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 reimburse-

ment from the County in this action. The Plaintiffs also seek attor-

ney’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.

1

We refer to the child and the child’s parents by their initials in order

to protect the identity of the child.

2

Specifically, JH received two hours of private speech/language ther-

apy and two hours of occupational therapy each week during the summer

of 2001.

JH v. HENRICO COUNTY SCHOOL BOARD 3

I

Before setting forth the relevant facts and lengthy procedural his-

tory of this case, an exposition of some pertinent statutory and regula-

tory 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 inde-

pendent 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 repre-

sentative 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

4 JH v. HENRICO COUNTY SCHOOL BOARD

skills. Individuals suffering from autism experience, inter

alia, preoccupation with inner thoughts, daydreams, and fan-

tasies, and they have difficulty communicating.

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

Despite suffering from autism, JH attended kindergarten in a regu-

lar 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 min-

utes 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 Ever-

ett), 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 speci-

fied in the Kindergarten IEP and made progress in all but two of the

others. Nonetheless, although JH had improved his skills with respect

3

One-on-one therapy is where the therapist works directly with the stu-

dent by him or herself, while integrated therapy is where the therapist

works directly with the student in a small group of usually no more than

three. It appears undisputed that both one-on-one therapy and integrated

therapy are generally considered "direct" therapy services.

JH v. HENRICO COUNTY SCHOOL BOARD 5

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 handwrit-

ing skills.

Although children attending school in the County do not normally

attend school during the summer, on June 11, 2001, the County mem-

bers of JH’s IEP team issued a final proposed IEP for JH for the sum-

mer 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 sum-

mer 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 con-

sultation between the special education teacher and the regular class-

room 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 educa-

tion from August 21 through September 1, 2001; (6) integrated

speech therapy conducted in four thirty-minute sessions over the

course of the summer (for a total of two hours); (7) direct occupa-

tional 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 therapy4; 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 per-

form this activity best while in the classroom setting and not while

4

In a consultative therapy session, the respective therapist consults

with either the disabled child’s special education teacher, his regular

classroom teacher, his parents, or his instructional assistant.

6 JH v. HENRICO COUNTY SCHOOL BOARD

under individual scrutiny"; (3) JH "needs to be with typically devel-

oping 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 thera-

pist 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 kin-

dergarten school year, both believed that JH had difficulty generaliz-

ing 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 dur-

ing the summer of 2001, SLP Smith and OT Stone believed that JH

would best be served by receiving ESY Services focused on improv-

ing his peer communication skills.

When the County refused to amend the Summer 2001 IEP in

response to their objection, the Plaintiffs made up the difference in

speech/language and occupational therapy services at their own

expense. Meanwhile, the Plaintiffs pursued their administrative reme-

dies before a state administrative hearing officer (the Hearing Offi-

cer), inter alia, to obtain reimbursement from the County for the

privately paid therapy services.

JH attended summer school at Dumbarton during the summer of

2001 with nine other non-disabled, rising first graders. Patricia King

(Summer Teacher King) taught the summer school class in a general

education classroom setting.

This case has been before the Hearing Officer twice. The first

Hearing (Hearing I) was held on July 30, 2001 and concluded on

August 6, 2001.

A. Hearing I

Before the Hearing Officer in Hearing I, both sides offered several

live witnesses and written evidence in support of their respective posi-

JH v. HENRICO COUNTY SCHOOL BOARD 7

tions. The Plaintiffs offered the live expert testimony of Dr. Ronald

David, M.D. (Dr. David, M.D. or Dr. David), Dr. Donald Oswald,

Ph.D. (Dr. Oswald, Ph.D. or Dr. Oswald), and occupational therapist

Gerri Allen (OT Allen). The County offered the live expert testimony

of SLP Smith and OT Stone. JH’s parents, Instr. Asst. Phillips, and

Summer Teacher King also testified.

1. Dr. David, M.D.

Dr. David, M.D., an associate clinical professor of pediatrics at the

Medical College of Virginia, is an expert in pediatric neurology and

autism. He testified before the Hearing Officer and submitted a writ-

ten report. Prior to preparing his report and/or testifying, Dr. David

conducted an in-depth and lengthy interview of JH’s mother regard-

ing JH, personally examined JH for an hour and a half, reviewed JH’s

medical history, reviewed what appears to be all pertinent evalua-

tions/reports prepared by County personnel regarding JH,5 reviewed

JH’s IEPs through the Summer 2001 IEP, and reviewed the private

evaluations/reports of JH prepared by JH’s private therapists.

Dr. David testified that autism is a social learning disability.

According to Dr. David, children with autism, "may have the words,

they may have the lexicon, the internal dictionary, to be able to talk,

but they can’t, basically, put their thoughts into what we call prag-

matic terms, that is, they cannot initiate or respond to who, why,

when, how, where questions." (J.A. 106). Notably, Dr. David testified

that children with autism have a profound ability to regress, and that

if JH did not participate in "an intensive program" during the summer

of 2001, "[h]e’s going to regress," such that "you have to go back and

reinvent the wheel, not completely, not from the ground up, but you

are going to have to go back and basically retool." (J.A. 116). From

the context of Dr. David’s full testimony, it is clear that he is referring

to an intensive program regarding pragmatic language skills. For Dr.

David, the four hours per day, four hours per week of summer school

provided in the Summer 2001 IEP would not be appropriate for JH

unless a speech/language pathologist was in the classroom as a moni-

tor.

5

The County has not identified any document in JH’s school file which

it contends Dr. David should have reviewed but did not.

8 JH v. HENRICO COUNTY SCHOOL BOARD

Dr. David also testified that children have a great window of

opportunity for language learning that begins to close by age eight or

nine, and thus, "if you mark time with a child who has autism, you

lose. If you decelerate services, you lose. And that if you’re going to

make an impact, the only way to make an impact is to continually

accelerate services within the child’s limit of tolerance." Id.

2. Dr. Oswald, Ph.D.

Dr. Oswald, Ph.D., a licensed clinical psychologist who works

exclusively with autistic children and adults at the Medical College

of Virginia, is an expert in autism. He testified before the Hearing

Officer and submitted a report.

Dr. Oswald had evaluated JH over the course of one year prior to

the time the present dispute arose regarding the Summer 2001 IEP.

In his report, Dr. Oswald opined that "[r]educing the frequency of

related services represents a significant change and a threat to the

progress that [JH] and his teachers have worked so hard to achieve."

(J.A. 834). Similarly, Dr. Oswald testified that without receiving two

hours of direct speech/language therapy and two hours of direct occu-

pational therapy per week during the summer of 2001, JH "would not

continue to develop and would likely experience regression . . . ."

(J.A. 296). Notably, in his report, Dr. Oswald disagreed with the peer

modeling approach recommended by SLP Smith and OT Stone as an

appropriate approach for JH to learn pragmatic language skills. Dr.

Oswald clearly stated in his report that "[c]hildren with Asperger’s

Disorder do not learn pragmatic language skills by exposure to typical

peers or by participation in classroom group activities; they learn

these skills by intensive individual instruction and by rehearsal,

prompting, and reinforcement in individual and small group settings."

(J.A. 835).

While Dr. Oswald did not observe JH in the school setting in for-

mulating his conclusions, Dr. Oswald did perform clinical interviews

of JH in his office on three occasions over the course of a year for

a total of five hours. He also reviewed a battery of diagnos-

tic/evaluative tests that had been administered to JH, as well as the

other relevant information reviewed by Dr. David.

JH v. HENRICO COUNTY SCHOOL BOARD 9

3. OT Allen

OT Allen, a licensed occupational therapist with twenty-six years’

experience, served as JH’s private occupational therapist beginning in

1999. In her testimony before the Hearing Officer, she recommended

that JH continue to receive one-hour of direct occupational therapy

two times per week for eleven weeks during the summer of 2001 so

as not to regress. Besides observing JH in one-on-one occupational

therapy sessions, OT Allen observed JH in two occupational group

therapy camps in the summer of 2000. She reported that he did well

in the camp with only five other children, but had much difficulty

being in the camp with twelve other children. According to OT Allen,

in the larger group, JH "became highly aroused, started a lot of behav-

iors of facial grimacing, anxious pacing, [and] pointing his finger at

kids." (J.A. 156). Because JH could not satisfactorily function in the

larger camp, OT Allen created and placed him in a three-child therapy

group, supervised by two occupational therapists.

OT Allen also strongly disagreed with the peer modeling approach

recommended by SLP Smith and OT Stone in the Summer 2001 IEP

as the appropriate approach for JH to work on fine motor skills asso-

ciated with occupational therapy for children such as handwriting and

self-care. OT Allen based her disagreement on her professional opin-

ion that JH is easily over stimulated in any setting other than one-on-

one or small group, and he has no way to control his environment in

the peer modeling approach espoused by SLP Smith and OT Stone.

In OT Allen’s view, the over stimulation significantly interferes with

JH’s ability to work on assigned tasks.

4. Instr. Asst. Phillips

The County assigned Instr. Asst. Phillips to JH six hours per school

day during his regular kindergarten school year. Instr. Asst. Phillips

testified before the Hearing Officer that after an interruption in JH’s

educational program such as Thanksgiving break, Christmas break,

and illnesses, he suffered a "major loss" in his ability to perform. (J.A.

493). In regard to how long JH took to recoup from such a major loss,

she testified that "[i]t varied. After Christmas break, it was about two

months before his behavior started to get under control again." Id.

10 JH v. HENRICO COUNTY SCHOOL BOARD

Regarding what type of adverse behavior he had for two months, she

testified:

Screaming, throwing things, hitting me, kicking at me,

ripping up paper, getting up and running out of — away

from me at different points in time. Pretty much everything

you can imagine, short of — he never bit. He’s not a biter.

But he would sometimes be aggressive towards me. He

would often be self-aggressive, scratching himself, hitting

himself, banging his head against the wall, poking at his

eyes. And, at times, it got so bad that I took him out of the

classroom and did all of his work in the room that we

worked in the afternoon. So there were times where he

wasn’t in the classroom pretty much the entire day.

(J.A. 493-94).

Inst. Asst. Phillips also reported that, based upon her observations,

JH’s behavior is generally better in a one-on-one session than in a

group. She explained what often happened with JH in group sessions

with the County’s therapists:

Often times in groups, [JH] would get very agitated. He

would use inappropriate language. He would do this little

hand thrust thing that he does when he’s very angry. Several

times he would have to be asked to sit down, away from the

table, away from the group, because he couldn’t participate

in the activities.

(J.A. 485).

At the time of her testimony, Instr. Asst. Phillips was employed at

the Virginia Autism Center. She holds a bachelor of science degree

from William and Mary, where she graduated cum laude. Prior to

being assigned to JH, she had worked with other autistic children in

Massachusetts as well as Richmond, Virginia.

5. SLP Smith

SLP Smith, a speech/language pathologist with twenty-eight years’

experience, provided JH his speech/language therapy at Dumbarton

JH v. HENRICO COUNTY SCHOOL BOARD 11

during his regular kindergarten school year. Thus, during JH’s regular

kindergarten school year, SLP Smith saw JH at least three times per

week and talked regularly with Teacher Everett and Instr. Asst. Phil-

lips.

SLP Smith testified before the Hearing Officer that, in the area of

pragmatic language skills, JH

needs to learn in a small group setting of his peers. His defi-

cit is in social pragmatics, that is, the interaction with other

people. He does — I think he’s been working with adults for

so long, he needs now to learn how to work with his peers.

That’s my area of concern, that he needs to work more with

his peers.

(J.A. 368).

According to SLP Smith, JH needs to interact with his peers "in a

natural setting," because he lacks the ability to generalize, i.e., to take

what he has learned in one-on-one therapy sessions and apply it in

other settings such as the classroom, playground, or cafeteria. (J.A.

340). Notably, SLP Smith testified that it was not her position that JH

learned more or responded better in a group of peers rather than in a

one-on-one session with an adult.

On the issue of actual progress during the summer of 2001, SLP

Smith testified that, as of July 30, 2001, she had witnessed JH

undergo "an amazing growth" in social pragmatics. (J.A. 350). She

based her opinion on three thirty-minute integrated speech/language

sessions that she had with JH in the classroom and an unspecified

amount of time that she spent observing JH in the school cafeteria and

on the playground.

6. OT Stone

OT Stone, an occupational therapist with twenty-six years’ experi-

ence, provided JH his occupational therapy services at Dumbarton

during his regular kindergarten school year. Thus, during JH’s regular

kindergarten school year, OT Stone saw JH at least three times per

12 JH v. HENRICO COUNTY SCHOOL BOARD

week and talked regularly with Teacher Everett and Instr. Asst. Phillips.6

Before the Hearing Officer, OT Stone was qualified as an expert in

occupational therapy in working with autistic children.

OT Stone concurred in the recommendation for peer modeling and

testified that JH works best in the classroom "which is the natural set-

ting for him," that he needs to practice and reinforce what he has been

taught in all settings, and that he does not need an occupational thera-

pist while he does so. (J.A. 418). According to OT Stone, after holi-

day breaks, JH only had a day or two where he had a difficult time

performing to his maximum potential. On the issue of whether JH

made actual progress in his occupational therapy skills during the

summer of 2001, OT Stone testified that she had seen progress in

JH’s handwriting, drawing, and cutting skills.

7. Speech/Language Pathologist Lisa Wright

As part of their case, the Plaintiffs offered a report by Lisa Wright,

JH’s private speech/language pathologist. Lisa Wright (SLP Wright)

based her conclusions on twelve years’ experience as both a clinical

and school-based speech/language pathologist, her experience work-

ing with JH twice a week since March 1998, her testing of JH, and

her review of various documents about JH from the County, including

the separate spring 2001 evaluations of JH conducted by SLP Smith

and OT Stone. According to SLP Wright, "[JH] has shown a marked

tendency to regress during previous breaks in services and, without

an intensive ESY program, he will definitely experience substantial

regression over the summer." (J.A. 730).

SLP Wright regarded the Summer 2001 IEP as inadequate in the

area of speech/language. She recommended that JH receive "not less

than 16 sessions of speech therapy (at least 45 minutes each) over the

11 weeks of summer vacation" (compared to the 2 hours proposed by

the County). Id. Notably, while this was less than the number of hours

sought by the Plaintiffs, SLP Wright premised her lower recommen-

dation on the condition that services from the County would be sup-

plemented by JH’s parents.

6

OT Stone had also provided JH occupational therapy services at Kid-

die Company during the 1999-2000 school year.

JH v. HENRICO COUNTY SCHOOL BOARD 13

8. Special Education Teacher Helen McGrath

The plaintiffs also submitted a questionnaire (the ESY Question-

naire), completed by Helen McGrath, entitled "CONSIDERATION

FOR EXTENDED SCHOOL YEAR (ESY) Henrico County Public

Schools." (J.A. 998). As Dumbarton’s special education teacher,

Helen McGrath (SET McGrath) was responsible for completing the

questionnaire. Although SET McGrath did not actually teach JH, per

the Kindergarten IEP, she did provide Teacher Everett and Instr. Asst.

Phillips with one hour each week of special education consulting ser-

vices regarding JH. SET McGrath reported on the ESY Questionnaire

that Teacher Everett and Instr. Asst. Phillips both reported that JH

experienced "loss of social skills as well as performance after

absences." (J.A. 999).

The ESY Questionnaire expressly states:

Extended school year (ESY) is designed to provide a free

appropriate public education to children with disabilities

who experience significant regression of critical life skills

because of an interruption in the instructional program. The

information you provide below will assist in determining

whether the above named student qualifies for ESY.

(J.A. 998). Of relevance to the MM standard for ESY Services, the

questionnaire asks "[w]hat previous interruption in the educational

program has caused a permanent, irreparable or major loss in this stu-

dent’s ability to perform?" (J.A. 999). McGrath answered: "Christmas

- Thanksgiving [-] after illness. [JH] has great difficulty reorienting

to the school environment, structure, and social settings. He seems to

have anxiety, difficulty transitioning, and general performance in

school setting." Id. The questionnaire also asks: "What permanent,

irreparable or major loss of critical life skills will occur as a result of

interruption of this student’s education?" Id. SET McGrath answered:

"Emerging communication, social, behavioral (sensory) skills, cogni-

tive skills[, and] fine motor skills." Id.

9. Summer Teacher King

Summer Teacher King testified before the Hearing Officer that JH

was doing well in the classroom with ten children, but had a hard time

14 JH v. HENRICO COUNTY SCHOOL BOARD

with the larger group of children on the playground. She reported that

she had seen improvement in JH’s social pragmatic and occupational

skills over the time during which she had taught him, which was four

hours per day for twelve days spread over a three week period.

10. Conclusion of Hearing I

Following the contested hearing on the appropriateness of the Sum-

mer 2001 IEP, the Hearing Officer ordered the Summer 2001 IEP

amended to provide JH with two hours of speech/language therapy

per week and two hours of occupational therapy per week. He also

ordered that the stated goal of the Summer 2001 IEP be amended

from "‘maintaining’" to "‘making reasonable progress.’" (J.A. 529).

The Hearing Officer did not actually address the reimbursement issue.

B. Disposition of the District Court The First Time

The case then came before the district court, which overturned the

Hearing Officer’s decision and entered judgment in favor of the

County. The Plaintiffs appealed.

C. Disposition of the Fourth Circuit The First Time

On appeal, we vacated the district court’s judgment in favor of the

County and remanded the case to the district court with instructions

to further remand the case to the Hearing Officer for a finding as to

whether the level of services provided in the Summer 2001 IEP was

adequate to prevent the gains that JH had made in his

speech/language and occupational skills during his regular kindergar-

ten school year from being significantly jeopardized. See JH v. Hen-

rico County Sch. Bd. (JH I), 326 F.3d 560 (4th Cir. 2003). The

remand was necessitated by issuance of our decision in MM, 303 F.3d

at 523, of which neither the Hearing Officer nor the district court had

the benefit at the time of their respective decisions. In MM, the Fourth

Circuit announced, for the first time, a formal standard for determin-

ing when a school district is obligated to provide ESY Services to a

disabled child. Id. at 538.

D. Hearing II

On remand, the Hearing Officer held a hearing in August 2003 in

which he did not hear or consider any new evidence, but did consider

JH v. HENRICO COUNTY SCHOOL BOARD 15

new written and oral arguments. On October 29, 2003, the Hearing

Officer issued his written opinion on remand, again ruling in favor of

the Plaintiffs. The thirteen page opinion first sets forth background

information regarding the case in general and then background infor-

mation specifically regarding JH. The opinion is then broken down

into two separate substantive sections, a conclusion, and a section

entitled "ORDER." (S.J.A. 95).

The first substantive section outlines, in considerable detail, the

evidence before the Hearing Officer on the question of whether the

level of services provided in the Summer 2001 IEP was adequate to

prevent the gains that JH had made in his speech/language and occu-

pational skills during his regular kindergarten school year from being

significantly jeopardized. In the second substantive section, the Hear-

ing Officer, as we instructed in JH I, addressed the "window of

opportunity" evidence presented by the Plaintiffs. The Hearing Offi-

cer explained that in discussing JH’s "window of opportunity" for lan-

guage learning, Dr. David did not engage in "an effort to maximize

the efforts of the school system in providing services." (S.J.A. 94A).

Rather, according to the Hearing Officer, such discussion "is an effort

by the medical field, specializing in the study of the brain, or neurol-

ogy and autism, to explain to the school system when the brain of an

autistic child is most receptive to receive and retain the basic informa-

tion that the school system is providing to the autistic child." Id.

In conclusion, the Hearing Officer declared that the County had the

burden of proof, and that, "[a]fter careful review of all the evidence,

it [was his] judgment that the County has not carried the burden of

proving that the ESY 2001 IEP was appropriate for the needs of this

student to prevent regression during the summer months and to pre-

vent the gains that he made during the regular kindergarten year from

being significantly jeopardized."7 (S.J.A. 95). In the "ORDER" sec-

7

At the time of the Hearing Officer’s second opinion, which party had

the burden of proof in an IDEA case was an open question in our circuit.

Nine months later, we answered that question in Weast v. Schaffer, 377

F.3d 449 (4th Cir. 2004), petition for cert. filed, 73 U.S.L.W. 3338 (U.S.

Nov. 19, 2004) (No. 04-698). In Weast, we held that, under the IDEA,

parents, not the school system, bear the burden of proof in a state admin-

istrative proceeding initiated by the parents to challenge the substantive

adequacy of an IEP. Id. at 455-56.

16 JH v. HENRICO COUNTY SCHOOL BOARD

tion, the Hearing Officer ordered the County to amend the Summer

2001 IEP to provide JH with two hours of speech/language therapy

per week and two hours of occupational therapy per week on the

ground that such services were "necessary to prevent the gains that

J[H] made during the regular kindergarten school year from being sig-

nificantly jeopardized." Id.

E. Disposition of the District Court The Second Time

Following issuance of the Hearing Officer’s opinion on remand,

the Plaintiffs filed the present complaint in the district court for reim-

bursement of the $1,875 they had spent to provide JH private

speech/language and occupational therapy services in the summer of

2001. The complaint also sought attorney’s fees and court costs in the

matter.

The County filed a counterclaim asking the district court to reverse

the Hearing Officer and enter final judgment for the County. The

Plaintiffs moved to dismiss the County’s counterclaim pursuant to

Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.

Alternatively, the Plaintiffs moved for summary judgment on the

counterclaim. The County also filed a motion for summary judgment

on its counterclaim and for final judgment on remand. Neither party

introduced new evidence before the district court.

Ruling from the bench, the district court denied the Plaintiffs’ Rule

12(b)(6) motion and their alternative motion for summary judgment

on the County’s counterclaim and granted the County’s "motion for

final judgment on the remand and for summary judgment." (S.J.A.

187). From the bench, the district court gave the following reasons,

inter alia, for its rulings: (1) the Hearing Officer did not adequately,

if at all, consider the testimony of SLP Smith and OT Stone, who had

worked extensively with JH during the regular kindergarten school

year, including observing and sometimes working with JH in the

classroom setting, and whose opinions as professional educators are

owed deference under the law; (2) the Hearing Officer failed to

expressly recognize that none of the Plaintiffs’ experts had worked

with or observed JH in the classroom setting at Dumbarton; and (3)

the Hearing Officer failed to take into account the effect of the other

ESY Services provided JH in the Summer 2001 IEP.

JH v. HENRICO COUNTY SCHOOL BOARD 17

In its final comments from the bench, the district court stated that,

for the reasons that it stated from the bench and for the sake of judi-

cial economy, a remand to the Hearing Officer to correct the flaws in

his opinion was inappropriate. On March 17, 2004, the district court

entered a final order memorializing his oral rulings.8 The Plaintiffs

filed a timely notice of appeal.

III

Here, we are called upon to review the propriety of the district

court’s grant of summary judgment in favor of the County. Unlike the

familiar de novo standard of review that we apply in the vast majority

of summary judgment cases, MM teaches that, in reviewing a district

court’s grant of summary judgment in an IDEA case, we are "obliged

to conduct a modified de novo review, giving due weight to the

underlying administrative proceedings." 303 F.3d at 530-31 (internal

citation marks omitted). See also id. at 533 (stating that, in IDEA

cases, "[t]he courts should, to the extent possible, defer to the consid-

ered rulings of the administrative officers . . . ."). This means that we

must consider any findings of fact made by the Hearing Officer to be

prima facie correct. Id. at 531.

"Whether a district court has accorded the proper due weight to the

administrative proceedings is a question of law—or at least a mixed

question of law and fact—to be reviewed de novo by an appellate

court." Id. (internal quotation marks omitted). We review all findings

of fact made by the district court based upon its hearing and consider-

ation of additional evidence for clear error; otherwise, we afford no

deference to factual recitations made by the district court. Id. This is

because the district "court stands in no better position than do we in

reviewing the [administrative] record." Id.

8

Although the district court’s final order does not specifically address

the Plaintiffs’ reimbursement claim, when read in context, it is clear to

us that the district court entered judgment in favor of the County with

respect to that claim as well.

18 JH v. HENRICO COUNTY SCHOOL BOARD

IV

On appeal, the Plaintiffs challenge the district court’s grant of sum-

mary judgment in favor of the County. Unfortunately, the present pos-

ture of this case prevents us from reaching the merits of the Plaintiffs’

challenge. Unbeknownst to the Hearing Officer and the parties at the

time of the administrative hearing on remand, the Hearing Officer

erroneously placed the burden of proof on the County. Under our

recent decision in Weast, issued long after the conclusion of proceed-

ings in this case below, the Hearing Officer should have placed the

burden of proof on the Plaintiffs. 377 F.3d at 455-56. Thus, the Hear-

ing Officer’s opinion on remand does not contain a finding on the

critical issue necessary to resolving this case, that is, with the Plain-

tiffs bearing the burden of proof in support of their position, whether

the level of services provided in the Summer 2001 IEP was adequate

to prevent the gains that JH had made with respect to his

speech/language and occupational skills during his regular kindergar-

ten school year from being significantly jeopardized. Rather, the

Hearing Officer’s opinion on remand only concludes that the County

failed to prove that the level of services provided in the Summer 2001

IEP were adequate to prevent the gains that JH had made during his

regular kindergarten school year from being significantly jeopardized.9

We expressly recognized in MM that "a disabled child’s need for

ESY Services may be established by expert testimony, based on a

professional individual evaluation." 303 F.3d at 538. As we observed

in JH I, "the record [in this case] indeed does contain conflicting evi-

dence regarding whether the level of services provided in the Summer

9

Based upon the law of the case doctrine, the Plaintiffs contend that the

County cannot take advantage of our Weast decision because, in JH I,

this court did not reverse the Hearing Officer’s placement of the burden

of proof on the County during the first hearing. The Plaintiffs’ reliance

on the law of the case doctrine under these circumstances is misplaced.

The law of the case doctrine provides that "when a court decides upon

a rule of law, that decision should continue to govern the same issues in

subsequent stages in the same case." Arizona v. California, 460 U.S. 605,

618 (1983). Significantly, we did not decide in JH I which party, the

Plaintiffs or the County, should bear the burden of proof. Accordingly,

the law of the case doctrine is inapplicable.

JH v. HENRICO COUNTY SCHOOL BOARD 19

2001 IEP was adequate to prevent the gains that JH made during his

regular kindergarten school year from being significantly jeopar-

dized." 326 F.3d at 568. Because resolution of such conflicting evi-

dence, much of which is in the form of expert testimony and reports,

depends greatly upon nuanced credibility determinations, which we

are not at liberty as a federal appellate court to make, no clear out-

come is apparent to us regardless of which party bears the burden of

proof. Accordingly, we have no choice but to remand all the way back

to the Hearing Officer for a reweighing of the evidence under the cor-

rect burden of proof allocation—i.e., the parents bearing the burden

of proof. Cf. Butler v. Secretary of Health and Human Servs., 850

F.2d 425, 426-27 (8th Cir. 1988) (remand to ALJ in social security

case necessary because ALJ, as fact finder, improperly allocated the

burden of proof in case where outcome was not clear regardless of

which party had burden of proof); Otto Gerdau Co. v. Lambert’s

Point Docks, Inc., 733 F.2d 343, 345 (4th Cir. 1984) (judgment fol-

lowing bench trial by district court required to be vacated and the case

remanded for further consideration because district court erroneously

allocated burden of proof).

Having decided to remand this case a second time, we deem it wise

to set forth detailed instructions for the Hearing Officer to follow on

remand, not only to aid the Hearing Officer’s decisional process, but

to aid in any potential appellate review.

First, in crediting the testimony of any witness, the Hearing Officer

must explain why it chose to do so over conflicting testimony by

another witness. In this regard, the Hearing Officer should be espe-

cially concerned with explaining why he may choose to credit the tes-

timony of one of the Plaintiffs’ expert witnesses over SLP Smith or

OT Stone, whose professional opinions as local educators regarding

the adequacy of the Summer 2001 IEP are entitled to deference, MM,

303 F.3d at 532-33. Additionally, if the Hearing Officer chooses to

credit the testimony of any witness who did not actually observe JH

in the school setting, the Hearing Officer needs to expressly acknowl-

edge such fact and explain why he chose to credit that witness’s testi-

mony anyway. The same goes for the crediting of any expert reports.

Second, in making its finding on the ultimate question upon which

we are remanding for a finding, with the Plaintiffs bearing the burden

20 JH v. HENRICO COUNTY SCHOOL BOARD

of proof, we instruct the Hearing Officer to take into account any edu-

cational benefit the record shows that JH would receive in the areas

of speech/language and occupational skills from the ESY Services

provided in the Summer 2001 IEP.

Third, we instruct the Hearing Officer to specify any and all evi-

dence (subjective and/or objective) regarding actual progress made by

JH in his speech/language and occupational skills during the summer

of 2001 and to state whether he gave such evidence any weight in

making his ultimate finding, and if not, why.

Finally, the Hearing Officer, as it did in its October 29, 2003 opin-

ion on remand, should explain the relevancy, if any, of the "window

of opportunity" evidence presented by the Plaintiffs to the question of

whether the Summer 2001 IEP was adequate to prevent the gains that

JH had made in his speech/language and occupational skills from

being significantly jeopardized.

V

We recognize and sincerely regret that our disposition further exac-

erbates an already protracted litigation process. Nevertheless, under

the circumstances, such consequence is unavoidable. Accordingly, we

vacate the judgment entered by the district court in favor of the

County, remand to the district court with instructions to again remand

the case to the Hearing Officer. On remand before the Hearing Offi-

cer, we instruct the Hearing Officer, per our detailed instructions in

part IV, to reweigh the evidence with the burden of proof on the

Plaintiffs and answer the question of whether the level of services

provided in the Summer 2001 IEP was adequate to prevent the gains

that JH had made with respect to his speech/language and occupa-

tional skills during his regular kindergarten school year from being

significantly jeopardized.10

VACATED AND REMANDED

10

To ensure that the Hearing Officer on remand has a complete under-

standing of our remand instructions, we recommend the district court

attach a copy of this opinion to its order remanding the case to the Hear-

ing Officer.