                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 14-1994


O.S., by and through his Parents; MICHAEL S. and AMY S., of
Fairfax County, VA,

                Plaintiffs - Appellants,

           v.

FAIRFAX COUNTY SCHOOL BOARD, of Fairfax County, VA,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   T. S. Ellis, III, Senior
District Judge. (1:13-cv-01580-TSE-IDD)


Argued:   September 16, 2015                 Decided:   October 19, 2015


Before MOTZ and WYNN, Circuit Judges, and DAVIS, Senior Circuit
Judge.


Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Wynn and Senior Judge Davis joined.


ARGUED: Dennis Craig McAndrews, MCANDREWS LAW OFFICES, Berwyn,
Pennsylvania,   for   Appellants.     John   Francis   Cafferky,
BLANKINGSHIP & KEITH, P.C., Fairfax, Virginia, for Appellee. ON
BRIEF: Michael Edward Gehring, Caitlin Elizabeth McAndrews,
MCANDREWS LAW OFFICES, Berwyn, Pennsylvania, for Appellants.
Patricia A. Minson, BLANKINGSHIP & KEITH, P.C., Fairfax,
Virginia, for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:

       This case poses the question of whether the standard for a

free   appropriate    public    education     under   the   Individuals      with

Disabilities Education Act has changed since Board of Education

v. Rowley, 458 U.S. 176 (1982).              We hold that it has not and

affirm   the   judgment    of   the    district   court     that   the    Fairfax

County School Board did not violate that standard in this case.



                                        I.

                                        A.

       The   Individuals   with   Disabilities        Education     Act    (IDEA)

creates a federal grant program to assist states in educating

children with disabilities.           See 20 U.S.C. § 1411 (2012).             To

receive federal funding, states must provide each student with a

disability a “free appropriate public education” (FAPE).                      Id.

§ 1412(a)(1).        States,    through      local    educational     agencies,

achieve this by developing an “individualized education program”

(IEP) for each child who has a disability.                  Id. § 1412(a)(4).

The IEP documents the student’s current level of achievement,

sets annual goals, states how to measure progress, and specifies

special education services.           See id. § 1414(d)(1)(A).        Educators

work with the student’s parents as part of an “IEP team” to

develop the IEP.        Id. § 1414(d)(1)(B), (d)(3)(A).                  At least



                                        2
annually,     that    team    must       review    the     IEP   and       revise    it   as

appropriate.        Id. § 1414(d)(4).

      Additionally,         the   IDEA     establishes        procedural      safeguards

for students and their parents.                  Id. § 1415.         These include the

right    to   an     impartial       due    process        hearing     if     the    local

educational agency and parents disagree on the appropriate IEP.

Id.      § 1415(b)(6), (f).              After the hearing officer makes a

decision,     any    unsatisfied      party       may    bring   a   civil     action     in

federal court.        Id.     § 1415(i)(2).             The court then reviews the

record, hears additional evidence if requested by either party,

and makes a decision as to the appropriateness of the IEP based

on the preponderance of the evidence.                   Id.   § 1415(i)(2)(C).

                                            B.

      Appellant O.S. attended public school in Fairfax County for

kindergarten and first grade.               He has several medical disorders:

Doose Syndrome (a seizure disorder), Atrial Septal Defect (a

small hole in his heart), and ankyloglossia (a disorder commonly

referred to as tongue-tie).                 Those disorders qualify him for

special education under the other health impairment category.

For kindergarten and first grade, O.S.’s school developed and

revised IEPs for him with his parents’ approval.

      Under his initial kindergarten IEP, O.S. received special

education services during fifteen of the thirty hours in his

school    week.        He    received       those       services      in    his     general

                                            3
education       classroom       with     a     special        education         teacher     or

instructional         assistant      working        with    him    on     his    IEP   goals.

Additionally, O.S. received two hours each month of occupational

therapy in a special education classroom.                         Later that year, the

IEP     team    added     two    hours       each     month       of    adapted     physical

education.       After a speech evaluation, it also added four hours

of speech and language therapy each month, which later increased

to six hours each month.

       For first grade, the team revised O.S.’s IEP to meet his

goals      in         communication,           reading            readiness,           reading

comprehension,           writing,        writing            readiness,          mathematics

readiness,      attending       skills,      and     adapted       physical       education.

O.S.    continued       receiving      six    hours    each       month    of    speech    and

language       therapy    and     two    hours       each     month      of     occupational

therapy, but his adapted physical education increased to four

hours each month.          The team gradually shifted O.S.’s hours away

from the general education classroom until ten of his fifteen

hours were in the special education classroom.

       Over the course of first grade, O.S. missed over thirty

full school days, and part of almost twenty additional days.

Toward the end of that year, a committee designated by Fairfax

County    reviewed       psychological,           sociocultural,          and   educational

evaluations      of     O.S.    to   determine        if    he    still       qualified    for

special education.          It also reviewed testing results that O.S.’s

                                              4
parents submitted from the Kennedy Krieger Institute, a private

institution.        The committee included representatives from the

Fairfax County School Board (School Board), as well as O.S.’s

mother and a family friend.                 It again found O.S. eligible for

special education under the other health impairment category.

       For   second    grade,       the    IEP    team     proposed      new     goals    in

writing       and      written         language,          reading,            mathematics,

communications,       and    behavior       improvements.           In    the    proposed

plan, O.S. would continue to receive two hours each month of

occupational       therapy    and    six    hours       each   month     of    speech    and

language therapy, both in a special education setting.                           He would

also    continue      to     receive       fifteen      hours    of      other    special

education services, but with more of those hours in his general

education     classroom.            This     time,       however,      O.S.’s     parents

rejected     the    school’s    proposed         IEP.      The   team     attempted       to

address some of their concerns by adding and modifying goals in

writing, reading, math, organization, and behavior.                            But O.S.’s

parents also requested a one-on-one aide, extended school year

services, and that FCPS assign a full-time nurse to the school.

The team did not adopt those requests, and the parents did not

agree to the new IEP.

                                            C.

       Instead, O.S.’s parents, on his behalf, requested a due

process hearing to determine whether the School Board provided

                                             5
him a FAPE.        They challenged the adequacy of his education on

six grounds:        (1) inadequate instruction in reading, math, and

writing;    (2)    inadequate     occupational         therapy    and    speech      and

language services; (3) lack of extended school year services;

(4) lack of a one-on-one aide; (5) failure to program for his

safety (lack of a full-time nurse); and (6) failure to develop

an appropriate IEP for second grade.                  As evidence that O.S. had

not progressed, he pointed to results from the Woodcock-Johnson-

Third    Edition;    the     Kaufman    Test     of    Educational      Achievement,

Second Edition; and the School Board’s sociocultural evaluation.

Based on those evaluations, O.S. argued that he had actually

regressed academically.

       After conducting a three-day hearing, in which the hearing

officer    heard    from     fourteen    witnesses      and    received       over    200

exhibits, the officer issued a detailed written opinion.                              In

that opinion, the officer first recognized that the IEP team had

complied with the IDEA’s procedural requirements in developing

O.S.’s IEPs, and then evaluated the implementation of the IEPs.

The     officer     considered     O.S.’s       IEPs     and     progress      reports

particularly       important     exhibits       and    noted   that     all    of    the

testifying witnesses were “open and honest.”

        The officer then credited ten witnesses in particular, who

were     O.S.’s    teachers     and     other    educational       experts.          All

testified    to     O.S.’s     progress    during       kindergarten      and       first

                                          6
grade, and explained why each additional accommodation that his

parents    requested       was    unnecessary         for    second    grade.           While

acknowledging that the IDEA does not require parents to present

expert testimony, the officer noted that, in contrast to the

School Board’s showing, O.S.’s parents “offer[ed] virtually no

witnesses, other than the parent,” to support their position.

The hearing officer concluded that the School Board had provided

O.S. a FAPE.

        O.S. filed a complaint in federal court challenging the

decision.     Both parties moved for judgment on the administrative

record.      The    district      court   held    that       the    hearing       officer’s

findings     were     regularly      made,      and     thus       “entitled      to    some

deference.”        The court then rejected each of O.S.’s challenges,

concluding     that    the       School   Board        did     provide      a    FAPE      and

affirming    the     hearing      officer’s      decision.           O.S.       noted     this

timely appeal.



                                          II.

     Initially and principally, O.S. argues that the district

court    applied     the    wrong    standard         in     evaluating         whether    he

received a FAPE.        Specifically, he maintains that in the current

version of the IDEA, a FAPE requires “meaningful” rather than

“some” educational benefit.               Our analysis of the statute is a



                                           7
question of law that we review de novo.        See WLR Foods, Inc. v.

Tyson Foods, Inc., 65 F.3d 1172, 1178 (4th Cir. 1995).

     Congress first required a FAPE as part of the Education for

All Handicapped Children Act of 1975 (EHA).          See Education for

All Handicapped Children Act of 1975, Pub. L. No. 94-142, sec.

3-4, §§ 601-602, 89 Stat. 773, 775.          Since then, Congress has

amended the Act multiple times.         The 1990 amendment renamed the

EHA as the IDEA.      See Individuals with Disabilities Act of 1990,

Pub. L. No. 101-476, 104 Stat. 1103.          The IDEA, as amended in

2004,    remains     in   effect   today.      See   Individuals   with

Disabilities Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647

(codified as amended at 20 U.S.C. § 1400 (2012)).             Both the

original EHA and the current IDEA require the states to provide

a FAPE to students with disabilities.        They define it in almost

identical terms. 1

     In Board of Education v. Rowley, 458 U.S. 176 (1982), the

Supreme Court provided more content to the FAPE requirement.        In


     1 See 20 U.S.C. § 1401(9) (“The term ‘free appropriate
public education’ means special education and related services
that -- (A) have been provided at public expense, under public
supervision and direction, and without charge; (B) meet the
standards of the State educational agency; (C) include an
appropriate preschool, elementary school, or secondary school
education in the State involved; and (D) are provided in
conformity with the individualized education program required
under section 1414(d) of this title.”).         The EHA used
essentially the same definition.     See Pub. L. No. 94-142,
§ 602(18), 89 Stat. 773, 775.


                                    8
that case, a deaf first-grade student challenged her IEP because

her school refused to provide her an interpreter.                         Id. at 184-

85.    Although she performed better than many of her peers, she

understood “considerably less” than she would have without her

disability.       Id. at 185.          She argued that the school did not

provide a FAPE because of the disparity between her potential

and her achievement.            Id. at 185-86, 198.

       The     Supreme    Court     rejected    this     argument,    holding    that

schools need not “maximize each child’s potential.”                       Id. at 198.

The    Court    held     that   a   FAPE   requires      “access”    to   instruction

“individually designed to provide educational benefit.”                        Id. at

201.    Because that access to education must be “meaningful,” id.

at 192, schools have to provide “some educational benefit” to

fulfill Congress’s intent, id. at 200.

       Despite various amendments to the IDEA since 1982, we have

continued to follow the Rowley definition of a FAPE.                       See, e.g.,

E.L. ex rel. Lorsson v. Chapel Hill-Carrboro Bd. of Educ., 773

F.3d    509,    517    (4th     Cir.   2014)    (“some    educational      benefit”);

Sumter Cty. Sch. Dist. 17 v. Heffernan ex rel. T.H., 642 F.3d

478, 484 (4th Cir. 2011) (same); J.H. ex rel. J.D. v. Henrico

Cty. Sch. Bd., 395 F.3d 185, 187 (4th Cir. 2005) (same); A.B. ex

rel. D.B. v. Lawson, 354 F.3d 315, 319 (4th Cir. 2004) (same).

       O.S. asks us to find that, in the 1997 and 2004 amendments

to    the    statute,     Congress     replaced    the     Rowley    standard.     He

                                            9
points to the 2004 congressional findings in the IDEA preamble

as evidence that the law now focuses on results rather than mere

access.    The congressional findings lament “low expectations” of

children with disabilities, and state that educating children

with   disabilities       is    “more   effective”     when    there   are    “high

expectations” of them “to the maximum extent possible.”                      See 20

U.S.C. § 1400(c) (2012).            While the EHA succeeded in providing

access to education and improving educational results, id., O.S.

argues that the IDEA aimed to go further.

       The legislature’s shift from requiring access to requiring

results does not necessarily establish a shift in the meaning of

FAPE   from     providing      “some”   benefit   to   providing     “meaningful”

benefit.        When Congress changes the law on an issue already

decided by the Supreme Court, it typically does so explicitly.

See, e.g., Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No.

111-2,    123    Stat.    5,   5   (expressly     responding    to   the   Supreme

Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., 550

U.S. 618 (2007)); Religious Freedom Restoration Act of 1993,

Pub. L. No. 103-141, 107 Stat. 1488, 1488 (expressly responding

to the Supreme Court’s decision in Employment Division v. Smith,

494 U.S. 872 (1990)); cf. Examining Recommendations to Reform

FISA Authorities: Hearing Before the H. Comm. on the Judiciary,

113th Cong. 107, 113, 128-29, 153, 171, 191 (2014) (expressly

discussing      whether     Congress    should    limit   the   application      of

                                         10
Smith v. Maryland, 442 U.S. 735 (1979), given advancements in

technology).         Congress       did   not   do    that   with    respect      to   the

definition of FAPE.

       Rather than articulate a new definition of FAPE, Congress

amended the IDEA in other ways.                      For example, the IDEA now

requires     that      an     IEP     document       “academic      achievement        and

functional        performance,”       rather    than    educational        performance.

Pub. L. No. 108-446, § 614(d)(1)(A)(i)(I), 118 Stat. 2647, 2707

(2004).      Schools        must    include     students     with   disabilities        in

statewide assessments, and now must justify a decision to give a

student      an     alternative        assessment.           Id.     §§     612(a)(16),

614(d)(1)(A)(i)(VI).           Schools must produce progress reports for

children with disabilities with the same frequency as they issue

regular report cards.              Id. § 614(d)(1)(A)(i)(III).             Schools must

now base special education on peer-reviewed research, to the

extent practicable.          Id. § 614(d)(1)(A)(i)(IV).

       These examples suffice to show that Congress implemented

the IDEA’s higher expectations in specific ways, and altering

the standard for providing a FAPE was not one of them.                           In fact,

the IDEA calls for schools to evaluate a child’s “progress,” but

does    so    without       any     quantifier.         See,       e.g.,    20     U.S.C.

§ 1414(d)(1)(A)(i)(II)(aa) (requiring IEP goals that “enable the

child to . . . make progress”).                      Congress could easily have

modified “progress” with “meaningful” if that were its intent.

                                           11
      We note that we have never held “some” educational benefit

means only “some minimal academic advancement, no matter how

trivial.”         Hall ex rel. Hall v. Vance Cty. Bd. of Educ., 774

F.2d 629, 636 (4th Cir. 1985).                 Rather, we have used the word

“meaningful” to describe what a FAPE requires, even before the

2004 amendments.         G. ex rel. R.G. v. Fort Bragg Dependent Schs.,

343 F.3d 295, 306 (4th Cir. 2003).                    But in doing so, we have

cited Rowley’s “educational benefit” requirement.                     Id. at 303.

Using “meaningful,” as the Court also did in Rowley, was simply

another way to characterize the requirement that an IEP must

provide a child with more than minimal, trivial progress.

      O.S.    cites      cases    from   some    of    our   sister   circuits   in

support      of    the    view    that   the     IDEA    requires     “meaningful”

educational benefit as distinct from “some” educational benefit.

Some courts do explicitly hold that the IDEA as amended requires

school districts to meet a heightened standard.                  See, e.g., N.B.

v. Hellgate Elementary Sch. Dist., 541 F.3d 1202, 1212-13 (9th

Cir. 2008).        Others, although using the word “meaningful,” seem

to describe the same standard developed in Rowley.                      See, e.g.,

D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 34 (1st Cir.

2012) (holding that Rowley’s “some educational benefit” requires

“meaningful” as opposed to “trivial” educational benefit).                       For

our   part,        we    are     loath   to     hold,    without      any   express

acknowledgment of its intent to do so, that Congress abrogated

                                         12
Supreme    Court       precedent.             We    note     that   recently         the    Tenth

Circuit also rejected a similar contention that a heightened

“meaningful benefit” standard had replaced the “some benefit”

standard.       Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch.

Dist. RE-1, No. 14-1417, 2015 WL 5011927, at *6-8 (10th Cir.

Aug. 25, 2015).

       In this circuit, the standard remains the same as it has

been for decades:          a school provides a FAPE so long as a child

receives some educational benefit, meaning a benefit that is

more    than    minimal       or    trivial,         from    special       instruction        and

services.



                                              III.

       O.S.    maintains,          in   the        alternative,         that    even    if    the

district       court    applied         the        correct    standard         in    evaluating

whether he received a FAPE, as we have held it did, the court

erred     in   finding     that         he    had     received      a    FAPE       under    that

standard.

       In IDEA cases, a district court conducts “modified de novo

review,    giving      ‘due    weight’         to     the    underlying        administrative

proceedings.”          M.S. ex rel. Simchick v. Fairfax Cty. Sch. Bd.,

553 F.3d 315, 323 (4th Cir. 2009) (quoting Rowley, 458 U.S. at

206).     While the court must make an independent determination on

whether the school complied with the IDEA, the hearing officer’s

                                               13
factual findings are “considered prima facie correct.”                                E.L.,

773 F.3d at 517.            “[W]hether or not a program is appropriate” is

itself a question of fact.                 Doyle v. Arlington Cty. Sch. Bd.,

953    F.2d    100,      105   (4th    Cir.    1991).        At    the   request    of   the

parties,       a    court      shall    also        hear   and     consider    additional

evidence.       E.L., 773 F.3d at 516-17.

       A district court determines whether a school provided a

FAPE based on the preponderance of the evidence.                           Id.     It must

“afford        great      deference       to        the     judgment      of     education

professionals in implementing the IDEA,” id. at 517, because the

IDEA    does       not   allow   federal      courts       “to    substitute     their   own

notions of sound educational policy” for those of local school

authorities, A.B., 354 F.3d at 325 (quoting Rowley, 458 U.S. at

207).        Finally, the party seeking relief bears the burden of

proof.        Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 51

(2005).       On appeal, we “apply[] the standard of review utilized

by the district court.”                E.L., 773 F.3d at 517 (quoting M.M. ex

rel. D.M. v. Sch. Dist., 303 F.3d 523, 531 (4th Cir. 2002)). 2

       For     kindergarten       and     first       grade,      O.S.   challenges      the

implementation of his IEP rather than specific aspects of it.

       2This court has sometimes stated that we review the
district court for clear error.     See, e.g., Cty. Sch. Bd. v.
Z.P. ex rel. R.P., 399 F.3d 298, 309 & n.7 (4th Cir. 2005)
(noting tension in the way we describe the standard of review).
We need not resolve that possible tension in this case because
the outcome here is the same under both standards.


                                               14
He argues that he did not make sufficient educational progress,

and as evidence, he relies on a few evaluations to contend he

actually    regressed.         Those     evaluations         do    measure      academic

achievement, but, as the district court noted, they are not the

only evidence in the record as to the sufficiency of O.S.’s

progress.       The hearing officer credited numerous IEP progress

reports and the testimony of O.S.’s teachers and other education

experts that O.S. did progress on many of his individualized

objectives.

     For    example,      experts      in     elementary      education,         physical

education, and speech and language all testified that the IEP

was appropriate and that O.S. had made progress.                       An expert in

special education testified that it was “not surprising” O.S.

progressed at a slower rate than students without disabilities,

but that he was “still making progress.”                      In fact, that same

expert   said      that   at   the     end    of    the   year,     O.S.     “had     made

tremendous    progress.”         O.S.’s       kindergarten        teacher       explained

that O.S. “definitely” made progress towards his IEP goals, and

an expert in occupational therapy noted that O.S. “made very

nice progress” over the course of two years.                      In sum, all of the

educators    who     testified,       many    of   whom   qualified        as    experts,

opined that O.S. made progress under the School Board’s IEP.

Further,    addressing     his    parents’         concern   that    O.S.       at   times

regressed,      an    expert     in    special       education      attributed        the

                                             15
regression in part to O.S.’s extensive absences.                                   Even so, the

expert      did     not        consider           this     occasional         regression          so

significant that O.S. could not catch up.

       In   addition          to    evaluating         O.S.’s     progress,        the     hearing

officer considered whether additional accommodations should have

been included in O.S.’s second grade IEP.                               The hearing officer

credited unrebutted testimony that a one-on-one aide was only

necessary        when    a    student       required       help    with     “even        the   basic

needs of the day.”                 The hearing officer found no evidence that

O.S. needed that sort of support, and that O.S. already had

“teachers and assistan[ts] nearby on a routine basis.”                                     And the

hearing      officer         credited        an     expert       in     school      health      who

testified that “a nurse is not necessary for the child to be

safe in school” because the school already had “protocols in

place”      to    address          O.S.’s    needs       should       he    have     a    seizure.

Further, because O.S. did not show “significant” regression, the

hearing officer found that he did not require extended school

year     services.                 The   officer         noted        evidence       that      O.S.

nevertheless could have attended summer school, but that his

parents decided not to enroll him in it.

       Given      that       the     record       supports        the      hearing       officer’s

findings, we cannot conclude as a matter of law that the School

Board did not provide O.S. with a FAPE.                            To do so would ignore

our    obligation        to    give      due      weight    to    the      hearing       officer’s

                                                  16
findings,      and   to    defer   to    the    judgment   of   professional

educators. 3



                                        IV.

     We hold that, in evaluating whether a school provides a

FAPE, we still look to whether the IEP provides some educational

benefit to the student.        Here, the district court did not err in

finding     that     the    School      Board    met   that     requirement.

Accordingly, the judgment of the district court is

                                                                   AFFIRMED.




     3 Because the School Board did not fail in its obligation
“to provide educational benefit to a disabled student,” we
reject O.S.’s request for an award of compensatory education.
See M.S., 553 F.3d at 325 (discussing compensatory education as
a possible remedy for failure to provide a FAPE).


                                        17
