                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-1031


S.T.; S.J.P.T.; I.T.,

                Plaintiffs – Appellants,

           v.

HOWARD COUNTY PUBLIC SCHOOL SYSTEM; RENEE A. FOOSE, officially,

                Defendants – Appellees.

---------------------------

COUNCIL OF PARENT ATTORNEYS AND ADVOCATES,

                Amicus Supporting Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, Senior District
Judge. (1:14-cv-00701-JFM; 1:15-cv-00100-JFM)


Argued:   December 8, 2015                  Decided:   January 5, 2016


Before TRAXLER, Chief Judge, SHEDD, Circuit Judge, and Elizabeth
K. DILLON, United States District Judge for the Western District
of Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED:   Wayne  D.  Steedman,   CALLEGARY   &  STEEDMAN,  P.A.,
Baltimore, Maryland, for Appellants.    Jeffrey A. Krew, JEFFREY
A. KREW, LLC, Ellicott City, Maryland, for Appellees. ON BRIEF:
James F. Silver, CALLEGARY & STEEDMAN, P.A., Baltimore,
Maryland, for Appellants.    Caroline Heller, GREENBERG TRAURIG,
LLP, New York, New York, for Amicus Curiae.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     S.T.,    through   his   parents,      appeals    the    district   court’s

grant    of   summary   judgment   for      Howard    County    Public   School

System. We affirm.

     S.T. is a nine year old boy in the Howard County Public

School   System.   Diagnosed    with    autism   spectrum       disorder,   S.T.

qualifies as disabled under the Individuals with Disabilities in

Education Act (“IDEA”). He receives special-education services

through an Individualized Educational Program (“IEP”) developed

by an IEP team which includes both school system personnel and

S.T.’s parents.

     On October 21, 2013, the school system conducted an annual

review of S.T.’s IEP. At this meeting, the IEP team developed a

new IEP which included a new placement, transferring S.T. from

The Trellis School, a private institution, to the Cornerstone

Program at Cedar Lane, a school in the Howard County Public

School   System.   S.T.’s     parents    filed   a    Due    Process   Complaint

challenging the new placement. After a five-day hearing, the

administrative law judge found that the IEP provides S.T. a free

appropriate education (“FAPE”) as required by the law. S.T.’s

parents appealed to the district court, which granted summary

judgment for the school system. The district court found that

the ALJ used the correct methodology to reach a decision and



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that her factual findings indicate that administering the IEP at

the Cornerstone Program will provide S.T. with a FAPE.

      We review a district court’s grant of summary judgment de

novo. Lee Graham Shopping Ctr., LLC v. Estate of Kirsch, 777

F.3d 678, 681 (4th Cir. 2015). On a motion for summary judgment,

we view “all facts and reasonable inferences in the light most

favorable to the non-moving party.” Dulaney v. Packaging Corp.

of America, 673 F.3d 323, 330 (4th Cir. 2012). Whether an IEP is

sufficient to provide a FAPE is a question of fact that we

review for clear error. County School Bd. of Henrico County, Va.

v. Z.P. ex rel. R.P., 399 F.3d 298, 309 (4th Cir. 2005).

      On appeal, S.T.’s parents argue that the IEP utilizing the

Cornerstone Program did not offer S.T. a FAPE at the time it was

developed    and    that   the   ALJ   and   the   district    court    erred   in

relying on “retrospective evidence” to show that the Cornerstone

Program     meets    the   IEP    requirements.       They    argue    that     the

Cornerstone Program was a 36-week program at the time the IEP

was created, not a 46-week program as required by the IEP. Since

the   evidence      that   the    program     could    meet    the     durational

requirements of the IEP was offered for the first time at the

ALJ hearing (rather than at the IEP meeting), they argue, it was

improper retrospective evidence.

      The district court held that the ALJ’s determination that

the Cornerstone Program can meet the requirements of S.T.’s IEP

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is supported by the testimony of Howard County Public School

System       employees,      autism     specialist        Shannon    Majoros    and

instructional facilitator Janet Zimmerman. Testimony before the

ALJ indicated that bridge services are available to lengthen the

program to 46 weeks. The court held, therefore, that the ALJ did

not err when she determined that the Cornerstone Program can

meet any IEP requirement for 46 weeks of services.

       The      district     court    further      held     that    Mojoros’    and

Zimmerman’s testimony about the current duration of available

services at the Cornerstone Program was not improper evidence

because the dispute here is not over the services required to be

provided to S.T., but the ability of the school placement to

provide those services. Further, the court noted that even if

offering new testimony about the duration of the Cornerstone

Program were a procedural violation of the IDEA, it is subject

to a harmlessness analysis and there is no evidence of actual

harm to S.T.’s education because he will receive all necessary

services under his IEP at the Cornerstone Program. See MM ex

rel. DM v. School Dist. of Greenville County, 303 F.3d 523, 534

(4th     Cir.     2002)(a    school     district     fulfills       its   statutory

obligation       where   a   disabled   child   received      or    was   offered   a

FAPE, even if there was a technical violation of the IDEA).




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     Having   reviewed   the   record   and   the   applicable   law,   and

having had the benefit of oral argument, we affirm the judgment

based substantially on the reasoning of the district court.



                                                                 AFFIRMED




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