                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-1485


RICHARD SHAW; CAROL SHOEMAKER;      E.   S.,   a   minor,   by   her
parents and next friends,

                Plaintiffs - Appellants,

           v.

JERRY D. WEAST, Officially as Superintendent of Montgomery
County Public Schools; MONTGOMERY COUNTY BOARD OF EDUCATION,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:06-cv-02838-PJM)


Argued:   October 29, 2009                 Decided:   January 26, 2010


Before MOTZ and KING, Circuit Judges, and Anthony J. TRENGA,
United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Michael Eig, MICHAEL J. EIG & ASSOCIATES, PC, Chevy
Chase, Maryland, for Appellants.  Jeffrey A. Krew, JEFFREY A.
KREW, LLC, Ellicott City, Maryland, for Appellees.  ON BRIEF:
Paula A. Rosenstock, MICHAEL J. EIG & ASSOCIATES, PC, Chevy
Chase, Maryland, for Appellants.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      In January 2006, following the refusal of the Montgomery

County Board of Education to authorize the placement of their

then minor child, E.S., into a residential school based on her

disabilities,       appellants       Richard      Shaw       and     Carol         Shoemaker

(together with E.S., the “Shaws”), unilaterally enrolled E.S. in

a residential treatment facility in Massachusetts.                                 They then

filed   an     action      under     the       Individuals         with    Disabilities

Education Act (the “IDEA”), 20 U.S.C. § 1400 et seq., against

Jerry   Weast,      Superintendent     of       the    Montgomery         County      Public

Schools,      and    the     Montgomery         County       Board        of       Education

(collectively referred to as “MCPS”), seeking reimbursement for

the cost of that facility, claiming that MCPS violated the IDEA

by denying E.S. a free appropriate public education.                               The Shaws

appeal the district court’s order granting summary judgment in

favor of MCPS.       For the reasons below, we affirm.



                                           I.

                                           A.

     Pursuant to the IDEA, a child with disabilities is entitled

to a “free appropriate public education” (“FAPE”) designed by

the child’s school district to meet his or her particular needs.

20   U.S.C.    §    1400(d)(1)(A).          The       FAPE   must     be       “reasonably

calculated     to   confer    some    educational        benefit      on       a    disabled

                                           2
child.”       MM v. Sch. Dist. of Greenville County, 303 F.3d 523,

526 (4th Cir. 2002) (citing Bd. of Educ. v. Rowley, 458 U.S.

176,    207    (1982)).        The    FAPE       must    also    provide        the    least

restrictive environment that is appropriate for the child.                                  20

U.S.C. § 1412(a)(5)(A).               The IDEA does not require a school

district to provide a child with the best possible education.

Rowley,    458   U.S.     at   192.     In       other    words,     though      a    school

district      must   offer     each   student      a     FAPE,   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)

(quoting Rowley, 458 U.S. at 199-200).

       The IDEA requires that an “IEP Team,” consisting of the

student’s      parents,      the   student’s       teacher,      a     school     district

representative, and, where appropriate, the student, develop an

Individualized       Educational       Program         (“IEP”)     for    the    student,

setting forth details on the implementation of the student’s

FAPE.     20 U.S.C. § 1414(d)(1)(B).                The IEP contains statements

about   the    child’s     functioning       levels,       goals,      services       to    be

provided, and criteria for future evaluations of the child’s

progress.      Id. at § 1414(d)(1)(A).              It is against this backdrop

that the Shaws claim that the IEP that MCPS developed failed to

provide E.S. with a FAPE.



                                             3
                                          B.

     E.S. was born in the Philippines in 1985, and was severely

malnourished as a young child.             She came to live in an orphanage

there and, at the age of four, was adopted by Richard Shaw and

Carol Shoemaker who brought E.S. to live in Maryland.

     E.S. has struggled with severe disabilities throughout her

academic      life,      including       emotional         disturbance,        hearing

impairment,        speech     and     language     impairment,       and      learning

disabilities.          E.S.    has     also     been   diagnosed     with      bipolar

disorder,     clinical        depression,        and     post    traumatic      stress

disorder, stemming from an alleged unwanted sexual encounter.

     In the middle of seventh grade, E.S. experienced increased

social and emotional issues, including suicidal tendencies and

clinical depression.          E.S.’s IEP Team determined that the least

restrictive environment for E.S. was a full-time, non-public,

special education day school.             Accordingly, at the start of her

eighth     grade     year,     E.S.     began     at     the    Foundation      School

(“Foundation”), a private special education day school.

     During her first few years at Foundation, E.S. was able to

complete over twenty credits.             During the 2003-2004 school year,

however,    E.S.      began    to    struggle     with    a     number   of    issues,

including depression and loss, and was hospitalized for a period

of time during the school year for suicidal ideations.                        On April

30, 2004, E.S.’s IEP Team met to develop an IEP for the 2004-

                                          4
2005 academic year, taking into account E.S.’s recent problems.

The    IEP      Team   identified       a    number     of     objectives          for    E.S.     to

address her audiological, emotional, academic, and other needs,

and the IEP Team agreed that the least restrictive environment

where      E.S.’s      IEP   could     be    implemented        remained       at    a        private

separate day school.                 Accordingly, they determined that E.S.

would continue at Foundation for the 2004-2005 academic year.

       E.S.’s condition deteriorated during the 2004-2005 school

year.        During an especially troubling incident in mid-October,

E.S. became agitated and began to engage in self-mutilating acts

while at school and had to be physically restrained.                                            As a

result       of   that       incident,       a   functional           behavior       assessment

(“FBA”) was conducted.                 The FBA results showed that E.S. had

become        “increasingly          oppositional             with        staff”     and        more

disrespectful,          and    that     she      continued           to    engage        in     self-

mutilation at school.                JA 1099.          The FBA also indicated that

E.S. “had difficulty remaining physically safe in situations at

school and at home.”             Id.        On November 5, 2004, E.S.’s IEP Team

met to address the issues identified in the FBA and developed a

plan       to     address       some        of       E.S.’s     behavioral           problems. 1

Notwithstanding the implementation of the plan, by December of

       1
       The plan also addressed E.S.’s hearing issues, but E.S.
did not consistently use the resources provided to her, nor did
she consistently wear hearing aids or replace the batteries in
her hearing aids while at Foundation.


                                                 5
that year, E.S.’s interim progress report showed that she was in

danger of failing four classes, two of which were graduation

requirements.

         In April 2005, E.S. was hospitalized.                     She was released

from the hospital on April 30, 2005, but did not return to

Foundation for the remainder of the school year.                                After her

April hospitalization, E.S.’s IEP Team met a number of times to

determine     the    proper         placement     for    E.S.    for     the    2005-2006

academic year.         During one of those meetings, E.S. expressed a

desire not to return to Foundation.                     By September 2005, E.S.’s

psychiatrist, Dr. Michal Potash, recommended that E.S. be placed

in   a    twenty-four        hour    care     facility.         E.S.’s       parents    also

submitted     a     recommendation           by   Dr.   William        Stixrud,    Ph.D.,

another psychologist, stating that E.S. might be able to benefit

from placement in a residential facility.

         On September 13, 2005, E.S.’s IEP Team again convened to

discuss      whether        E.S.    required      placement       at     a     residential

facility or whether a private separate day school would satisfy

the IDEA.      The MCPS staff contended at that meeting that E.S.

could     continue     at    a     private    separate    day     school,       since    her

issues      were     mainly         mental-health       related,         improvable      by

medication.        The IEP Team agreed at that meeting that Foundation

would continue as E.S.’s interim placement.                       Shortly after this

meeting, an MCPS School Psychologist, Marcia Gustafson, M.Ed.,

                                              6
conducted a review of Dr. Stixrud’s assessment of E.S.                              Based on

her review, Dr. Gustafson concluded that E.S. should be placed

in    a   therapeutic        school       setting       for    students      with    serious

emotional issues.            Dr. Gustafson also concluded, however, that a

residential      placement          was    not        necessary      to   further      E.S.’s

education, though it might be necessary to address E.S.’s mental

health issues.

      On October 17, 2005, E.S.’s IEP Team met once again to

review E.S.’s IEP and placement.                      The Team revised E.S.’s IEP to

include a number of new accommodations and objectives.                              None of

these goals and objectives required implementation beyond the

school    day   and    the     MCPS       IEP    team    members     determined        that   a

private     separate     day    school          was    still   the    least     restrictive

environment      where       E.S.     could      receive       a   FAPE.        During    the

meeting, the IEP Team also discussed the Shaws’ request for a

residential placement for E.S.                   While the MCPS team members did

not    agree    that     a    residential            placement     was     necessary,     all

parties agreed that there would be a change in E.S.’s school

placement, to address E.S.’s request that she no longer attend

Foundation.      MCPS identified three alternative private separate

day   schools    for    E.S.:       the    Lodge       School,     Oakmont      School,   and

Pathways School.

      On October 19, 2005, MCPS personnel corresponded with the

three     potential    schools        regarding         whether      or   not   they     could

                                                 7
implement E.S.’s IEP.              On October 20, 2005, E.S. returned to

Foundation.       Approximately a week later, the Pathways School and

Lodge School informed the Shaws that they could not implement

E.S.’s IEP.          During the first week of November, Oakmont School

informed the Shaws that it could implement E.S.’s IEP. 2

       On   November      4,    2005,    the       Shaws   notified    MCPS    that   E.S.

would not attend a day school and requested that MCPS provide a

residential placement.            Around the same time, E.S. again began

to    engage    in    self-mutilation           and    tried    to    kill    herself   by

walking in front of traffic.                   Shortly thereafter, E.S. stopped

attending Foundation.             E.S.’s parents requested that the IEP

Team re-convene, but MCPS would not comply, citing a lack of any

new   information       from     the    Shaws        since   the     October   IEP    Team

meeting a month earlier.               In December, E.S. again tried to kill

herself, this time by cutting herself, and was hospitalized for

psychiatric treatment.

       On   December      29,    2005,     at       E.S.’s   parents’     request,      Dr.

Vincent        Cullotta        conducted        a     private        neuropsychological

consultation, and recommended, based on his consultation, that

E.S. be placed in a therapeutic residential environment, which

would lessen the risk for E.S. to harm herself or others and


       2
       The Shaws learned some time in the beginning of 2006 that
Oakmont School would close in March of that year.



                                               8
also allow E.S.’s medication usage to be monitored 24 hours a

day.

       On January 3, 2006, E.S.’s parents enrolled E.S. at F.L.

Chamberlain       School    (“Chamberlain”),         a     residential         treatment

facility in Massachusetts.               At Chamberlain, E.S. continued to

attend classes and received clinical therapy during the school

day, as well as additional support outside of the school day.

The additional support included waking E.S. up and getting her

to class, ensuring that E.S. ate proper meals, and ensuring that

E.S. maintained proper hygiene.

       On March 13, 2006, exercising their right under 20 U.S.C. §

1415(f),    the     Shaws    requested         mediation    and    a     due     process

hearing, seeking reimbursement for the cost of sending E.S. to

Chamberlain.       After an unsuccessful session on March 24, 2006,

MCPS transmitted the request for a mediation and hearing to the

Office     of     Administrative         Hearings.          On    May     18,     2006,

Administrative Law Judge Jerome Woods, II (the “ALJ”), presided

over a hearing between the parties in Rockville, Maryland.                          The

hearing took place over five days, ending on June 20, 2006.

       On July 18, 2006, the ALJ concluded that the Shaws failed

to establish that E.S.’s placement at Foundation did not provide

a FAPE in the least restrictive environment and that they failed

to   establish     that    E.S.    did   not     receive    educational         benefits

during   her     placement    at    Foundation.          The     Shaws    filed    this

                                           9
lawsuit, appealing the ALJ’s decision. 3                         On March 31, 2008, the

district court granted summary judgment for MCPS.



                                                II.

                                                A.

       This Court’s standard of review in an IDEA case such as

this       varies    somewhat           from    the       de    novo    review        generally

applicable to an award of summary judgment.                                  The standard of

review in an IDEA case is a “modified” de novo review, where

“due       weight”        is    given      to       the      underlying       administrative

proceedings.         MM, 303 F.3d at 530-531; Doyle v. Arlington County

Sch. Bd., 953 F.2d 100, 103 (4th Cir. 1991).                           In connection with

that       review,    the       findings       of     fact     from    the    administrative

hearing are considered to be prima facie correct; and if the

reviewing court does not adhere to those findings of fact, “it

is obliged to explain why.”                    MM, 303 F.3d at 531.            Nevertheless,

the    reviewing      court       should       not    substitute       its     own    knowledge

about       education          policy     for       the    school      district’s.          Id.

Accordingly,         in    our     review,       we       examine     the    entire    record,

affording “due weight” to the administrative findings.




       3
       A party aggrieved by the decision and findings of a due
process hearing may bring a civil action in federal court.  20
U.S.C. § 1415(i)(2).



                                                10
                                       B.

     This case presents two issues on appeal: (1) whether E.S.’s

IEP was legally deficient on its face because of its apparent

failure to name a specific permanent placement for E.S. and (2)

whether the ALJ and district court properly concluded that a

private day school provided E.S. with a FAPE and that E.S. did

not require a residential placement under the IDEA.

                                       1.

     The Shaws argue that the IEP developed in October 2005 was

deficient    as   a   matter   of    law    because    it     failed    to   name    a

specific    placement    for   E.S.        This   argument     fails.        The   IEP

unambiguously     states     that    Foundation       would    serve    as    E.S.’s

interim placement while the Shaws explored the three other day

schools    proposed     by   MCPS.      MCPS      provided     these    additional

private day placement options, not because Foundation could not

implement E.S.’s IEP, but as an attempt to accommodate E.S.’s

request to change schools.             At no time during the 2005-2006

academic year was E.S. without an assigned school, such that the

Shaws were required to “fend for themselves.”                    Foundation, the

school indicated in the IEP, provided all the necessary services

listed in E.S.’s IEP.

     For all of these reasons, this case present a situation far

different than that addressed in A.K. v. Alexandria City Sch.

Bd., 484 F.3d 672 (4th Cir. 2007).                In A.K., the student, who

                                       11
suffered         from       a    nonverbal      learning      disability,             as   well       as

Aspergers         Syndrome         and       obsessive       compulsive         disorder,         was

attending         a     residential          program,       pursuant       to     a    settlement

between the student’s parents and the school system.                                          Id. at

675-676.          At       the   close    of    the    school      year,    at    an       IEP   team

meeting about the following academic year, the school system

declared that the student should be removed from his residential

placement and placed in a private day school for the upcoming

school year.               Id. at 676.        No specific school was listed on the

IEP or discussed in detail at the meeting.                                During the summer,

the    school         system     sent    out    applications         to    five       private     day

schools on behalf of the student.                        Two of the schools indicated

that they could not implement the student’s IEP.                                A third school

did not have room for the student.                          Id.     The parents toured and

researched the remaining two schools and concluded that neither

could adequately provide the student with a FAPE.                                Id. at 677.

       We concluded in that case that the student’s IEP failed to

identify a particular school and was therefore not reasonably

calculated            to     enable      the     student      to      receive         educational

benefits.         While the parents agreed that an appropriate private

day school could have provided their child with a FAPE, the IEP

failed      to    present        such    a     placement.         “[T]he    IEP        development

process concluded without any significant discussion of whether

such    a    school          existed,     or     if    it    did,    how    it        would      be    a

                                                  12
satisfactory match for A.K.”               Id. at 681.      Because of this, “the

parents were left to fend for themselves to determine whether

any     private    day    school    in     their    area    .     .   .     would    be    a

satisfactory fit.”         Id.

       Here, MCPS made a referral to three therapeutic day school

programs and while these alternatives were being explored, as

the IEP clearly states, E.S. would continue at Foundation, a

school that MCPS believed could implement E.S.’s IEP, that was

clearly listed in the IEP, and that had been E.S.’s school for

years     and     the    subject      of     multiple       IEP       Team     meetings.

Accordingly,       E.S.’s      parents     were    never    left       to    “fend        for

themselves,”       as    the     parents    in     A.K.    were,      and    the     IEP’s

designation of “Foundation” as E.S.’s placement, even though it

was    listed     as   “interim,”    was    sufficient      to     satisfy     the    IDEA

under the facts of this case.

                                            2.

       We next turn to the merits of the Shaws’ argument that

placement at a private day school could not have provided E.S.

with a FAPE and that a residential placement was necessary for

E.S.     MCPS argues that Foundation provided E.S. with a FAPE and

that a residential school was required only to address E.S.’s

mental and emotional health issues.                 Based on the record before

us, we agree with MCPS.



                                            13
       The   state    may   be   required      in   certain       cases   to   fund

residential placements.          “If the educational benefits which can

be provided through residential care are essential for the child

to make any educational progress at all, then residential care

is required under the EHA [the precursor to the IDEA].”                        Burke

County Bd. of Educ. v. Denton, 895 F.2d 973, 980 (4th Cir. 1990)

(emphasis in original).          However, the IDEA “does not authorize

residential care merely to enhance an otherwise sufficient day

program.”      Id. (quoting Abrahamson v. Hershman, 701 F.2d 223,

227 (1st Cir. 1983) (emphasis in original)).                  “If residential

placement      is   necessitated    by    medical,    social,       or    emotional

problems that are segregable from the learning process, then the

local education agency need not fund the residential placement.”

Id. at 980.         See also Clovis Unified Sch. Dist. v. California

Office of Admin. Hearings, 903 F.2d 635 (9th Cir. 1990) (finding

student’s      hospitalization      was       primarily     for     medical     and

psychiatric reasons and the state was therefore not required to

fund it).

       Kruelle v. New Castle County Sch. Dist., 642 F.2d 687 (3d

Cir.   1981)    presents    appropriate       circumstances       under    which   a

residential placement may be necessary.                   Burke County Bd. of

Educ., 895 F.2d at 980 (adopting the standard articulated in

Kruelle).      In Kruelle, a mentally retarded child who was unable

to speak and not toilet trained was found to need extensive

                                         14
around the clock care as part of his FAPE.                       “[T]he concept of

education is necessarily broad with respect to persons such as

Paul.     ‘Where basic self-help and social skills such as toilet

training,      dressing,       feeding    and    communication       are       lacking,

formal education begins at that point.’”                    Id. at 693 (quoting

Battle v. Commonwealth of Pennsylvania, 629 F.2d 269, 275 (3d

Cir. 1980)).      See also Abrahamson, 701 F.2d at 228 (holding that

only    residential     treatment        could   provide     a    FAPE       where   the

student could not eat, dress, go to the bathroom, or care for

himself in any way).

       While Kruelle presents a compelling set of circumstances,

and    residential     placement    may     be   required    where       a    student’s

medical needs and educational needs are less clearly unitary,

this case presents facts near the other end of the spectrum.

The Shaws’ decision to place E.S. in a residential treatment

facility was based on their desire to ensure E.S. did not hurt

herself, that she took her medicine, and that she was in a safe

environment.         The ALJ found based on all of the evidence that

E.S.’s parents’ “demand for residential placement in this case,

is primarily to address the safety needs of the Student as a

result    of   her    mental    health    issues   and     not    her    educational

needs.”     JA 1396.     Based on an independent review of the record,

we agree that the treatment of E.S.’s mental health and safety

issues was distinct and segregable from her educational needs.

                                          15
       We also find that Foundation provided E.S. with a FAPE.

E.S. earned over twenty credits during her time there and, as of

December 2004, was passing Art, Physical Education, and Consumer

Math.    Further, Foundation offered E.S. resources to address her

audiological issues, although E.S. did not always elect to use

those resources.            While E.S.’s educational progress was slowed

during her psychiatric episodes, the record is clear that during

periods when E.S.’s mental health issues were stabilized, her

education progressed.

       Though E.S.’s story is tragic, we must conclude that she

possesses the basic self-help and social skills that the student

in Kruelle lacked and sufficient abilities to proceed in her

studies in the less restrictive environment of a private day

school such as Foundation.            It is undisputed that E.S. did not

want to continue at Foundation and that MCPS hoped to comply

with her wish to attend another school, but the record also

supports the ALJ and district court’s conclusion that Foundation

continued      to    offer    the   services   and   resources   necessary   to

implement E.S.’s IEP and that E.S. received some educational

benefit there.        That E.S.’s emotional and mental needs required

a certain level of care beyond that provided at Foundation does

not necessitate a finding that the state should fund that extra

care    when    it    can    adequately    address   her   educational   needs

separately.

                                          16
                                 III.

     Because   the   IDEA   requires   the   provision     of   “the       least

restrictive    environment”   where    a   student   can   access      a    free

appropriate public education, and because the Court finds that

Foundation offered such an environment, the Court affirms the

district court’s grant of summary judgment for MCPS.

                                                                    AFFIRMED




                                  17
