                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 08a0011n.06
                                 Filed: January 7, 2008

                                         No. 06-6123/6214

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


MAUREEN DEAL; PHILLIP DEAL, Parents, On                  )
Behalf of Zachary Deal,                                  )
                                                         )
       Plaintiffs-Appellants Cross-Appellees,            )
                                                         )    ON APPEAL FROM THE UNITED
v.                                                       )    STATES DISTRICT COURT FOR
                                                         )    THE EASTERN DISTRICT OF
                                                         )    TENNESSEE
HAMILTON COUNTY DEPARTMENT OF                            )
EDUCATION,                                               )

       Defendant-Appellee Cross-Appellant.


Before: MARTIN, SILER, and ROGERS, Circuit Judges.

       PER CURIAM. This case arises under the Individuals with Disabilities Education Act

(“IDEA”). Maureen and Phillip Deal (the “Deals”) brought this action against the Hamilton County

Department of Education (the “School System”) on behalf of their son, Zachary, who has been

diagnosed with autism. A different panel of this court previously held that the School System

committed procedural violations under the IDEA and thereby deprived Zachary of a “free and

appropriate public education” (“FAPE”). Deal v. Hamilton County Bd. of Educ., 392 F.3d 840 (6th

Cir. 2004) [hereinafter Deal II]. In Deal II, our court remanded to the district court to determine the

appropriate level of reimbursement for the Deals and whether the School System also committed

substantive violations of the IDEA. The Deals argue that the district court committed the following

errors on remand: (1) finding the School System’s proposed educational plans were substantively
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Deal v. Hamilton County Dep’t of Educ.

appropriate for Zachary; (2) denying the Deals full reimbursement for the home-based services they

provided; (3) reducing the award of attorneys’ fees to the Deals; and (4) refusing to award the Deals

certain litigation expenses, particularly expenses for electronic legal research. The School System

cross-appeals and argues that the Deals were entitled, at most, to nominal reimbursement. We

AFFIRM the decision of the district court.

                                         BACKGROUND

       The factual background of this case is detailed in the previous opinion from this court and

will not be repeated here. Id. at 845-47. That opinion also describes the administrative proceedings

and initial district court decision. Id. at 847-49. The Deal II court held that the School System

committed procedural violations of the IDEA, that these violations denied Zachary a FAPE, and that

the Deals were entitled to reimbursement. Id. at 859, 866. In Deal II, the court further ruled that in

deciding whether the School System’s proposed educational programs were adequate, the district

court must evaluate Zachary’s individual abilities and give “due deference to the ALJ’s findings.”

Id. at 865. The Deal II court remanded and instructed the district court to determine the appropriate

level of reimbursement for the Deals; it also authorized the district court to consider whether the

School System committed a substantive IDEA violation. Id. at 866.

                                   STANDARD OF REVIEW

       In determining whether IDEA violations have been committed, a district court applies a

“modified de novo” standard of review. Under this standard, “a district court is required to make

findings of fact based on a preponderance of the evidence contained in the complete record, while

giving some deference to the fact findings of the administrative proceedings.” Knable ex rel. Knable

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v. Bexley City Sch. Dist., 238 F.3d 755, 764 (6th Cir. 2001). We review the district court’s findings

of fact under a clearly erroneous standard, and we review its conclusions of law de novo. Deal II,

392 F.3d at 850 (citing Knable, 238 F.3d at 764). “Mixed questions of law and fact, including the

question of whether a child was denied a FAPE, are reviewed de novo.” Id.

        The district court’s determination of an appropriate amount of reimbursement is reviewed

for an abuse of discretion. See Ms. M. ex rel. K.M. v. Portland Sch. Comm., 360 F.3d 267, 273 (1st

Cir. 2004). The award of attorneys’ fees is also reviewed under an abuse of discretion standard.

Phelan v. Bell, 8 F.3d 369, 373 (6th Cir. 1993).

                                            DISCUSSION

                                  A. Substantive IDEA Violations

        The Deal II opinion stated the general rule that “a school district is only required to provide

educational programming that is reasonably calculated to enable the child to derive more than de

minimis educational benefit.” Deal II, 392 F.3d at 861. The Deal II court then noted that, “[T]here

is a point at which the difference in outcomes between two methods can be so great that provision

of the lesser program could amount to denial of a FAPE.” Id. at 862. The court went on to adopt

the view that “the IDEA requires an IEP to confer a ‘meaningful educational benefit’ gauged in

relation to the potential of the child at issue.” Id.

        Having been instructed to carefully consider Zachary’s individual abilities, the district court

appropriately began its analysis on remand with an examination of Zachary’s potential. Deal v.

Hamilton County Dep’t Educ., No. 1:01-cv-295, slip op. at 3-9 (E.D. Tenn. Apr. 3, 2006)

(Memorandum Decision) [hereinafter Deal III]. As mentioned previously, the district court must

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accord due deference to the administrative findings; however, “[t]he more that the district court relies

on new evidence, . . . the less it should defer to the administrative decision.” Alex R., ex rel. Beth

R. v. Forrestville Valley Cmty. Unit Sch. Dist. #221, 375 F.3d 603, 612 (7th Cir. 2004); see also

Oberti v. Bd. of Educ. of the Borough of the Clementon Sch. Dist., 995 F.2d 1204, 1220 (3d Cir.

1993) (noting that where the district court hears additional evidence it is “free to accept or reject the

agency findings depending on whether those findings are supported by the new, expanded record”).

        The district court was entitled to rely on the additional expert testimony that contradicted the

ALJ’s findings and much of the testimony before the ALJ. As a result, the district court’s findings

regarding Zachary’s skills and potential are not clearly erroneous. See Deal III, slip op. at 3-9.

Additionally, the district court noted that Zachary’s home program was not identical to the treatment

received by children in the Lovaas study, and it therefore cannot be expected to produce the same

results. Id. at 19. Based on the district court’s findings, we cannot say the home program was so

superior to the School System’s program that refusal to fund the home program constituted denial

of a FAPE.

        As for whether the substantive program offered by the School System would have provided

Zachary with a FAPE, different methodologies may be appropriate for treating autism and provide

a FAPE as long as the student’s individual needs are considered and the program is reasonably

calculated to provide educational benefit. See Dong ex rel. Dong v. Bd. of Educ. of Rochester Cmty.

Sch., 197 F.3d 793, 803-04 (6th Cir. 1999). In light of the additional testimony heard by the district

court, we agree that the preponderance of the evidence supports the district court’s determination that



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the School System’s IEPs were reasonably calculated to offer Zachary a meaningful educational

benefit.

                                          B. Reimbursement

         In Deal II, our court held that the Deals were entitled to reimbursement for the home-based,

ABA services they provided to Zachary and instructed the district court to “weigh the equities and

determine the appropriate level of reimbursement.” Deal II, 392 F.3d at 866. The Deals argue they

are entitled to full reimbursement based on this court’s decision in Deal II and the purposes of the

IDEA. On the other hand, the School System asserts the Deals should receive only a nominal

amount in light of the ruling that it offered Zachary a substantively appropriate program. The district

court found that the Deals’ reasonable expenditures on ABA services were $50,409.95. Deal v.

Hamilton County Dep’t of Educ., No. 1:01-cv-295, 2006 WL 2854463, at *4 (E.D. Tenn. Aug. 1,

2006). The district court considered the substantive appropriateness of the School System’s program

as an equitable factor and ultimately awarded the Deals half of their reasonable expenditures, or

$25,204.98. Id. at *5. It did not abuse its discretion in setting the amount of the reimbursement

award.

                                C. Attorneys’ Fees & Litigation Costs

         The district court discussed in great detail the appropriate rates and number of hours for each

of the three law firms that represented the Deals, as well as analyzing the Deals’ degree of success

at each stage of the litigation. Id. at *9-20. The district court did not abuse its discretion in

determining the appropriate amount of attorneys’ fees in this case, nor did it abuse its discretion in



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denying the Deals’ request for certain litigation expenses, including electronic legal research, travel

expenses, and overtime meals.

       AFFIRMED.




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