                                            Filed:    January 8, 2010

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                           No. 01-2116
                          (CA-00-1898)


K.J., a minor by her Parents and
Next Friends, B.J. and L.J.,

               Plaintiffs - Appellants,

          v.

Fairfax County School Board,

               Defendant - Appellee.




                               O R D E R


     Upon consideration of the pleadings filed relative to the

motion to amend/correct opinion, the Court grants the motion.

The opinion filed July 16, 2002, is modified by replacing the

names of the appellants with their initials.

                                      For the Court


                                           /s/ Patricia S. Connor

                                                  Clerk
                                    UNPUBLISHED

                      UNITED STATES COURT OF APPEALS

                            FOR THE FOURTH CIRCUIT

════════════════════════════════════════════════╗
K.J., a minor by her
Parents and Next Friends,
B.J. and L.J.,
       Plaintiffs-Appellants, No. 01-2116

      v.

FAIRFAX COUNTY SCHOOL BOARD,
     Defendant-Appellee.
════════════════════════════════════════════════╝

                     Appeal from the United States District Court
                   for the Eastern District of Virginia, at Alexandria.
                           Gerald Bruce Lee, District Judge.
                                    (CA-00-1898)

                                 Argued: June 3, 2002

                                Decided: July 16, 2002

                    Before MOTZ and KING, Circuit Judges, and
                  Robert R. BEEZER, Senior Circuit Judge of the
                 United States Court of Appeals for the Ninth Circuit,
                               sitting by designation.

____________________________________________________________

Affirmed by unpublished per curiam opinion.

____________________________________________________________

                                       COUNSEL

ARGUED: William Bernard Reichhardt, WILLIAM B. REICH-
HARDT & ASSOCIATES, Fairfax, Virginia, for Appellants. John
Francis Cafferky, BLANKINGSHIP & KEITH, P.C., Fairfax, Vir-
ginia, for Appellee. ON BRIEF: Colleen C. Sweeney, WILLIAM B.
REICHHARDT & ASSOCIATES, Fairfax, Virginia; John P. McGee-
han, MCGEEHAN & ASSOCIATES, P.L.C., Fairfax, Virginia, for
Appellants. Jennifer L. Redmond, BLANKINGSHIP & KEITH, P.C.,
Fairfax, Virginia; Thomas J. Cawley, HUNTON & WILLIAMS,
McLean, Virginia, for Appellee.

____________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

____________________________________________________________

                                         OPINION

PER CURIAM:

    K.J., a minor, by and through her parents B.J. and L.J.
(collectively, "the parents"), appeals from the district
court's grant of summary judgment in favor of the Fairfax County
School Board on her claims for reimbursement pursuant to the Indi-
viduals with Disabilities Education Act (IDEA), 20 U.S.C.A. ' 1400
et seq. (West 2000). The parents seek reimbursement for the non-
educational costs of K.J.'s five-month stay at a private psychiat-
ric facility and three years' tuition at a private boarding school. See
20 U.S.C.A. ' 1412(a)(10)(C)(ii). We affirm.

                                             I.

    On January 14, 1997, a school counselor for the Fairfax County
Public Schools (FCPS) referred K.J., then a tenth grader at an
FCPS high school, for evaluation to determine whether she qualified
for special education services pursuant to the IDEA. J.A. 177. K.J.
had been previously diagnosed with emotional disabilities,
including obsessive-compulsive disorder, bipolar disorder, and severe
attention deficit hyperactivity disorder. Prior to tenth grade, FCPS
personnel, noting that K.J. nonetheless had earned high grades,
concluded that her disabilities did not impair her school performance.
J.A. 153-56, 163.

                                             2
   At the time of the 1997 referral, however, K.J.'s academic per-
formance was deteriorating substantially, and she began demonstrat-
ing more serious behavioral problems. J.A. 198, 220, 262-65, 267. On
April 2, 1997, subsequent to evaluation, FCPS informed K.J.'s
parents that she was now eligible for special education services. J.A.
199-200. As a result, FCPS planned a meeting between the parents
and a team of school personnel, including an administrator, special
education teacher, and school psychologist, to develop an Individual-
ized Education Program (IEP). The IDEA requires that an IEP team
develop, for each student with a qualifying disability, a written IEP
that includes a statement of the student's current levels of educational
performance, a summary of special education and related services to
be offered, and measurable annual goals and short-term objectives. 20
U.S.C.A. ' 1414(d).

    Four or five days later, the parents admitted K.J. to the Gray-
don Manor Psychiatric Hospital in Leesburg, Virginia, because K.J.
had an "emotional breakdown." J.A. 8, 16, 390. While K.J.
remained hospitalized at Graydon Manor, an IEP team convened on
April 27, 1997; at the parents' request, the IEP meeting continued on
June 12, 1997. The IEP team and the parents ultimately concluded
that they would wait until K.J.'s discharge from Graydon Manor
to determine an appropriate placement. J.A. 83, 207-18. The school
system also agreed to, and later did, pay for the educational compo-
nents of K.J.'s care at Graydon Manor. J.A. 8-9, 64, 391.

    In September 1997, the parents removed K.J. from Graydon
Manor and enrolled her in the Hyde School, a private boarding school
located in Bath, Maine. J.A. 10. Although geared in many ways
toward students with behavior problems, the Hyde School offered no
special education program, no on-site clinical personnel, and no certi-
fied special education instructors.

    The parties dispute when the parents notified FCPS of the transfer,
but in any event the parents did not request reimbursement from
FCPS of the approximately $25,000 annual tuition for the Hyde
School until November 1997. J.A. 10-11, 84. In response to this
request, FCPS scheduled another IEP team meeting with the parents
for mid-December.

                                            3
    Prior to the meeting, on December 11, 1997, an FCPS psychologist
traveled to the Hyde School to reevaluate K.J.'s "current levels
of functioning" given her intervening hospitalization. J.A. 300-01,
306-10. The record reveals that at the time of the psychologist's visit,
K.J. continued to have many of the same academic and behav-
ioral difficulties that she had demonstrated the prior year at her FCPS
high school. J.A. 307; see also J.A. 335, 388-89.

    The IEP team, the parents, and the Hyde School's Director of
Studies (who participated via speakerphone) then convened on
December 18, 1997. The team developed an IEP proposing a local
private day school, rather than the Hyde School, as the appropriate
placement for K.J. J.A. 312-23. The school board maintains, and
the parents do not dispute, that "private day school" denotes a school
setting offering a full-day, non-residential educational program, smal-
ler class sizes, and on-site clinical personnel. J.A. 77-88.

    The IEP did not identify a particular school. J.A. 11, 18, 72-73. The
parents contend that the IEP team members recommended conflicting
placements for K.J. and that the IEP case manager improperly
and inaccurately amended the IEP after the meeting to reflect a con-
sensus on a private day setting as the recommended placement. J.A.
48. Contrary to the parents' assertion, however, the evidence demon-
strates that the team did reach a consensus as to a private day place-
ment during the course of the IEP meeting. See J.A. 72-74, 84-85,
101, and 312.

    K.J.'s father signed the IEP form at the meeting, indicating
that he did "NOT AGREE with the contents and recommendations of
the proposed IEP," and thus rejected the proposed placement. J.A.
312. Nonetheless, subsequent to this meeting, K.J.'s mother vis-
ited the private day schools identified orally by the IEP team as likely
placements. She concluded that the schools did not offer the same
opportunities for college-track classes and interscholastic sports that
K.J. had in the regular education public high school and that K.J.'s
classes would be comprised almost entirely, if not exclu-
sively, of special education students. The parents apparently
disapproved of the suggested private day schools on this basis. J.A.
10. The parents therefore continued to enroll K.J. at the Hyde

                                             4
School, although K.J. lived at home for summers and holidays.
J.A. 10-11, 18, 1408.

    More than one year later, on January 29, 1999, the parents initiated
an administrative appeal requesting reimbursement from FCPS of the
non-educational costs of Graydon Manor and tuition for the Hyde
School for both the 1997-98 and 1998-99 school years, as well as
attorneys' fees. J.A. 968-69. In support of their request for reimburse-
ment, the parents alleged that FCPS violated its duties under the
IDEA and associated state regulations with respect to K.J.. Id.

    On July 30, 1999, a state hearing officer determined that a consen-
sus of the IEP team at the December 1997 IEP meeting was "that
[K.J.] should be placed in a local private day placement" and that
this placement met the requirements of the IDEA. J.A. 1125-26.
Nonetheless, the hearing officer concluded that FCPS should reim-
burse the parents in an amount equal to the cost of a "suitable local
private day program." J.A. 1126. Then, although K.J. should
have graduated the prior month, the IEP team learned that K.J.
had not satisfied her high school graduation requirements because she
had not completed her senior English class. J.A. 1133-34.

    Accordingly, on August 27, 1999, the IEP team convened again,
over the parents' objection. This meeting resulted in a recommenda-
tion to place K.J. at the Woodson Center, a program facility
located adjacent to and as part of a local FCPS high school. J.A.
1133-34, 1147-50, 1408. A representative of the Woodson Center par-
ticipated in the IEP team meeting. J.A. 1136. The Woodson Center
provided college-track Advanced Placement classes at the high school
co-facility, a special education program for students with disabilities,
and clinical personnel; the IEP team also felt it would provide an
appropriate transition from the residential school to a larger college
setting. The parents again rejected the IEP and continued K.J. at
the Hyde School for a third year. J.A. 1135.

    In the meantime, both the parents and FCPS appealed the hearing
officer's July 30, 1999, decision. In their appeal, the parents sought
reimbursement for the Hyde School tuition for the 1999-2000 school
year, which they incurred subsequent to the hearing officer's decision,
in addition to the relief previously requested. J.A. 1406. The review-

                                            5
ing officer agreed with the hearing officer that FCPS had recom-
mended an appropriate placement for K.J. However, the
reviewing officer reversed the hearing officer's directive that FCPS
reimburse the parents because the reviewing officer found that the
parents did not provide proper notice to the school before placing K.J.
at the Hyde School or before continuing her there for the 1998-
99 school year. J.A. 1406-12.

                                             II.

    In November 2000, the parents filed suit against the Fairfax County
School Board in Virginia state court, appealing the reviewing offi-
cer's decision pursuant to the IDEA and its state corollary, Va. Code
Ann. ' 22.1-214 (Michie 2000). The school board removed the case
to federal district court.

   On cross-motions for summary judgment, the district court granted
summary judgment to the school board. K.J. v. Fairfax County
Sch. Bd., No. 00-1898 (E.D. Va. Aug. 14, 2001). The district court
noted at the outset that while it was required to "make an independent
decision based on the preponderance of the evidence," it also was
required to "give due weight to the state administrative findings" and
consider such findings "prima facie correct." Id. at 8 (citing Sch.
Comm. of Town of Burlington v. Dep't of Educ. of Massachusetts, 471
U.S. 359, 369 (1985); Kirkpatrick v. Lenoir County Bd. of Educ., 216
F.3d 380, 385 (4th Cir. 2000); Doyle v. Arlington County Sch. Bd.,
953 F.2d 100, 105 (4th Cir. 1992)).

    The district court then proceeded to consider whether FCPS com-
mitted any procedural or substantive violation of the IDEA that enti-
tled the parents to reimbursement. The district court first held that any
procedural violations committed by FCPS, including its failure to
offer a specific placement in writing at the December 1997 IEP meet-
ing or to have a school representative from the proposed placement
present at the IEP meeting, were not actionable because they did not
result in a loss of an educational opportunity to K.J. or infringe
on the parents' right to participate in the IEP process. Id. at 10-17.
The court noted that FCPS, with the parents' participation, properly
decided to wait until K.J. was stabilized and discharged from
Graydon Manor before making a placement decision and that FCPS

                                             6
adequately identified a school placement for K.J. when it pro-
posed in writing a "private day school" at the December 1997 IEP
meeting. Id.

    As to the failure to include a representative from a proposed private
day school at the December 1997 IEP meeting, the district court
observed that one of the primary purposes of including such a repre-
sentative is "to ensure that the proposed placement is tailored to meet
the child's needs." Id. at 14. In K.J.'s case this failure did not
result in loss of an educational opportunity because "sufficient and
varied personnel" were present at the meeting, including an FCPS
representative "knowledgeable about the various private day schools'
resources" and whose duties included negotiating placements, and
because the parents rejected the proposed placement, rendering any
tailoring to the individual private day school unnecessary. Id. at 14-
15. The court also observed that "the [parents], and their attorney,
fully participated in the meetings where the IEP team developed an
educational plan." Id. at 13.

    The district court further determined that each of the placements
proposed by FCPS met the IDEA's substantive requirements for a
"free and appropriate education," defined by the Supreme Court as
"educational instruction designed to meet the unique needs of the
[student with a disability], supported by such services as are neces-
sary to permit the child `to benefit' from the instruction." Id. at 17
(quoting Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S.
176, 187-89 (1982)). The district court explained that the private day
schools offered "small classes, extensive individual attention, struc-
ture and clinical support, experienced staff trained in special educa-
tion and emotional disabilities, and many advanced level
mathematics, science and foreign language courses." Id. at 18. Simi-
larly, the Woodson Center offered "clinical support, advanced level
college preparatory classes, the opportunity for a smooth transition
from a small residential setting to a larger college setting, and a spe-
cial education program designed for students with emotional disabili-
ties." Id.

   The court therefore denied all requests for additional reimburse-
ment. The court concluded that the parents were not entitled to further
reimbursement for the cost of K.J.'s hospitalization at Graydon

                                             7
Manor because the IDEA requires only reimbursement for appropriate
educational services and because "[i]t is undisputed that FCPS reim-
bursed the [parents] with $8,440 for the educational services [K.J.]
received from Graydon Manor. The [parents] point to no
evidence which indicates that Graydon Manor provided [K.J.]
with education services which exceeded this amount." Id. at 19 (citing
20 U.S.C. ' 1412(a)(10)(c)).

    The court then held that the parents were not entitled to reimburse-
ment for the tuition of the Hyde School because a court, in its discre-
tion, can award reimbursement only if the school district has denied
the student a "free and appropriate education" and the parents' chosen
placement is otherwise appropriate. Id. at 18-22 (citing 20 U.S.C.
' 1412(a)(10)(C); Florence County Sch. Dist. v. Carter, 510 U.S. 7,
15 (1993)). Because each of the placements proposed by FCPS
offered a "free and appropriate education" for K.J., the court con-
cluded that the first of those prerequisites had not been met, without
reaching the second. Moreover, even as to the period preceding
FCPS's proposed placement at a private day school, a court may deny
"reimbursement to parents who unilaterally place their child in private
programs" if the parents fail to give notice of "`their intent to enroll
their child in a private school at public expense.'" Id. at 19-20 (quot-
ing 20 U.S.C. ' 1412(a)(1)(C)(iii)(I)). Because it found that the par-
ents failed to provide such notice, the court denied reimbursement of
these expenses as well. Id.

                                            III.

    The parents contend that the district court erred in granting sum-
mary judgment against them to the school board. They argue that
FCPS's procedural violations in failing to propose in writing place-
ment at a specific private day school and to include a representative
of that school in the December 1997 meeting resulted in a denial of
a "free and appropriate education." They further challenge the district
court's determination that FCPS's proposed placements and the ser-
vices delineated in the IEP satisfied the IDEA's substantive require-
ments.

   After careful review of the record, the parties' written and oral
arguments, and the governing legal principles, we conclude that the

                                             8
parents cannot overcome their burden of showing that the state hear-
ing officer's factual findings were erroneous, see Barnett v. Fairfax
County Sch. Bd., 927 F.2d 146, 152 (4th Cir. 1991), and that the dis-
trict court correctly decided the legal issues before it. Accordingly, we
affirm on the reasoning of the district court.

                                                                            AFFIRMED

                                             9
