Steven W. White& Janet WhitevSB of Henrico

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Humphreys
Argued at Richmond, Virginia

STEVEN W. WHITE AND JANET A. WHITE,
PARENTS AND NEXT OF FRIEND OF MICHAEL GLENN WHITE, AND
MICHAEL GLENN WHITE
OPINION BY
v. Record No. 1995-00-2 JUDGE ROSEMARIE ANNUNZIATA
JULY 10, 2001
SCHOOL BOARD OF HENRICO COUNTY

FROM THE CIRCUIT COURT OF HENRICO COUNTY
L.A. Harris, Jr., Judge

Darrel Tillar Mason (Carpenter & Mason,
P.L.C., on briefs), for appellants.

Kathleen S. Mehfoud (Reed, Smith, Hazel &
Thomas, L.L.P., on brief), for appellee.

This case arises under the Individuals with Disabilities

Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., and Virginia

Code §§ 22.1-213 to 22.1-221. The appellants, Steven W. White

and Janet A. White, parents and next of friend of Michael Glenn

White, and Michael Glenn White ("Glenn") appeal a decision by

the Circuit Court of Henrico County denying a request for

tuition reimbursement by the appellee, the County of Henrico,

for Glenn's education at The New Community School (TNCS), a

private school.

Appellants contend the trial court erred: (1) in failing

to accept the findings of the state level review officer as

prima facie correct; (2) in failing to explain its reasons for
rejecting the findings; (3) in failing to find that the

procedures used by Henrico in developing and implementing

Glenn's IEPs were so flawed as to ipso facto constitute a denial

of a free appropriate public education; (4) in finding that the

IEPs developed for Glenn provided him with an appropriate

education, which offered meaningful educational benefit; and

(5) erred in denying the parents' tuition reimbursement request.

For the following reasons, we conclude the decision of the

circuit court was not plainly wrong and we affirm the judgment.

I.

BACKGROUND

The Individuals with Disabilities Education Act (IDEA), 20

U.S.C. §§ 1400 et seq., provides federal funds to assist state

and local agencies in educating disabled children. The IDEA

conditions the receipt of such funds upon a state's compliance

with certain goals and procedures. The Virginia General

Assembly has enacted a number of statutes to ensure compliance

with the IDEA requirements. See Code §§ 22.1-213 to 22.1-221.

In addition, the Virginia Board of Education has developed

regulations for implementing the statutory scheme. See 8 VAC

20-80-10 et seq.

Both the IDEA and the Virginia Code require schools to make

available to disabled children "a free appropriate education."

20 U.S.C. § 1412(a)(1)(A); Code §§ 22.1-214(A) and 22.1–215.

Local agencies provide an appropriate education to each disabled

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child by means of an "individualized educational program (IEP)."

20 U.S.C. § 1414(d); 8 VAC 20-80-10, 20-80-62. The IEP is a

written document developed after a meeting attended by the

disabled child's parents, his or her teacher, and local school

division representatives. 20 U.S.C. § 1414(d); 8 VAC 20-80-62.

The IEP contains, inter alia, a description of the specific

educational services to be provided the child, annual goals, and

objective criteria for evaluating progress. 20 U.S.C.

§ 1414(d); 8 VAC 20-80-62. The IDEA favors mainstreaming

children by requiring that disabled children be taught with

non-disabled children, to the maximum extent possible, and by

requiring that the disabled child be placed in the least

restrictive environment, consistent with the child's needs. 20

U.S.C. §§ 1412(a)(5)(A) and 1414(d)(A); 8 VAC 20-80-64. The

local agency must review each child's IEP at least annually. 20

U.S.C. §§ 1414(d)(4)(A)(i); 8 VAC 20-80-62.

The local agency is required to include the parents in the

development of the child's IEP. 20 U.S.C. § 1414(f); 8 VAC

20-80-62(C). Parents have the right to an impartial due process

hearing through which to bring complaints regarding proposed

services and must be given a right to appeal to the state

educational agency. 20 U.S.C. § 1415; 8 VAC 20-80-70.

Furthermore, "[a]ny party aggrieved by the findings and

decision" at the state administrative hearing has "the right to

bring a civil action with respect to the complaint . . . in any

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State court of competent jurisdiction or in a district court of

the United States without regard to the amount in controversy."

20 U.S.C. § 1415(i)(2); see also Code § 22.1-214(D) (giving

parties the right to "bring a civil action in the circuit court

for the jurisdiction in which the school division is located.");

8 VAC 20-80-76(O)(1). When the public school cannot provide a

disabled child with an appropriate education, the school must

"pay to, or on behalf of, the parent or guardian of such child

the reasonable tuition cost" of an appropriate private

education. 20 U.S.C. § 1412(a)(10)(C)(ii); Code § 22.1-218(A).

Glenn is learning disabled in the areas of reading, written

language and spelling. Glenn attended Henrico County Public

Schools ("Henrico") through fifth grade and was provided with

special education services for the duration of his enrollment

there, beginning in preschool. While Glenn was a student in

Henrico, his parents ("the Whites") each year participated in

and gave permission for the implementation of an IEP, which

delineated the special education services that Glenn was to

receive.

Glenn's 1995-96 IEP, the IEP for his fifth grade year at

Tuckahoe Elementary School, provided him with special education

services for two hours per day and speech services for one-half

hour per week. Because Glenn's disability did not prevent him

from participating in some grade-level activities and he was

able to benefit from the instruction given in grade-level

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subjects, with accommodations made for his reading disability,

the remainder of his day was spent in regular education classes.

The Whites agreed to this IEP on June 5, 1995.

From September until October 2, 1995, Henrico used a

collaborative teaching method to deliver Glenn's special

education services, consisting of two hours of special education

services each day, as specified by his 1995-96 IEP. The

collaborative teaching approach allowed Glenn to receive his IEP

services in a regular class, co-taught by a regular education

teacher and a special education teacher.

On October 2, 1995, shortly after school began in September

1995, Henrico reverted to employing the "pull-out" teaching

method to provide special education services to Glenn. The

"pull-out" method entailed removing Glenn from his regular

classes and teaching him in a special education setting for

disabled students only. Services were provided in a "pull-out"

model form for two hours daily and in a collaborative model form

for thirty minutes daily for the remainder of the school year.

In February 1996, Glenn's IEP was amended to include an

additional one-half hour per day of special education services.

The increase in services was designed to prepare him for middle

school and to improve his skills. At the beginning of Glenn's

fifth grade year, his reading level was at the beginning of

second grade level. At the end of his fifth grade year, Glenn's

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reading level was at the end of second grade/beginning of third

grade.

Glenn was scheduled to attend Tuckahoe Middle School as a

sixth grade student during the 1996-97 school year. In the

spring of 1996, the Whites informed Henrico that Glenn would be

attending TNCS for the 1996-97 school year. On June 6, 1996,

Henrico held a meeting to develop Glenn's IEP for the 1996-97

school year. Glenn's mother was unable to attend the meeting

but gave Henrico permission to hold the meeting in her absence.

On June 10, 1996, after reviewing the content of the proposed

IEP with Cecelia Batalo, Glenn's fifth grade special education

teacher, Mrs. White signed and gave permission for the

implementation of the IEP developed by Henrico.

The proposed IEP for the 1996-97 school year provided Glenn

with one period of instruction in each of the following areas in

the special education program: English, reading, math and

science. The IEP also offered Glenn the opportunity to interact

with regular education students in those classes in which he did

not require special education assistance, including his elective

and physical education classes and his lunch period. The IEP

classified Glenn as "self-contained" because he was scheduled to

spend more than one-half his school day supported by special

education services. The IEP provided for extensive

modifications in Glenn's regular education classes, which

included untimed tests, small group instruction, oral

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administration of tests, and acceptance of short answers rather

than lengthy responses to test questions.

Despite giving their permission to implement the IEP

proposed by Henrico, the Whites unilaterally removed Glenn from

Henrico in September 1996 and placed him in TNCS, a private

school that serves only disabled students. On May 30, 1997, the

Whites initiated a due process hearing seeking reimbursement for

the cost of Glenn's private special education at TNCS. Upon

receipt of the hearing request, Henrico initiated a full

evaluation of Glenn, which consisted of a psychological

evaluation and a social history.

Although the Whites communicated their intent to keep Glenn

at TNCS for the 1997-98 school year, Henrico held a meeting on

September 18, 1997, to develop an IEP for the 1997-98 school

year. The Whites participated in the 1997-98 IEP development

meeting, but they did not sign the IEP giving permission for its

implementation. Numerous professionals from Tuckahoe Middle

School participated in the development of the 1997-98 IEP,

including Cecilia Batalo, Glenn's fifth grade special education

teacher, John Markey, a psychologist who had recently evaluated

Glenn, Judy McCallum, a Henrico special education teacher with

twenty years experience, and Jan Parrish, who had conducted a

social evaluation of Glenn just prior to the meeting. Although

no one from TNCS attended the meeting, the IEP committee had

available to it information from TNCS, including the IEP

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developed by TNCS for the 1996-97 school year, Glenn's progress

reports from TNCS and information that the Whites presented

regarding Glenn's progress at TNCS. The Henrico IEP committee

also had access to the results of the re-evaluation conducted by

Henrico immediately prior to the IEP meeting, which indicated

Glenn had not made educational progress while being educated at

TNCS and had, in fact, regressed in the areas of reading,

written language and math during his year at TNCS. 1

The local hearing officer at the first tier of the

administrative proceedings heard testimony from twelve witnesses

over three days in the fall of 1997. The local hearing officer

concluded, on April 15, 1998, that Henrico had made a free

appropriate public education available to Glenn under the IDEA

and denied the Whites' reimbursement request. In making that

decision, the local hearing officer "particularly and

significantly [gave] considerable weight to both the quantity

and quality of the evidence through the testimony of [eight

Henrico witnesses]." He went on to state that, "beyond any

required burden of proof the County's evidence demonstrates

clearly and convincingly that the County has met and is able to

meet all of the requirements of the special education offering

1
Glenn's standardized test scores in the area of reading
regressed from a standard score of 70 in 1996 to a standard score
of 60 at the end of his first year at TNCS. His scores in math
regressed from a standard score of 95 to a standard score of 79
at TNCS. The written language score decreased from 61 while in
Henrico to 41 after a year of educational services at TNCS.

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of service to this STUDENT." In denying the Whites' tuition

reimbursement, the local hearing officer stated, "[m]y reasons

described above and now in summary are that Henrico has and by

its IEP's proposed to provide the STUDENT with a free

appropriate public education." The hearing officer also

determined that the failure of Henrico to include a teacher from

the private school at the IEP meeting in September 1997, while a

violation of state regulations, did not invalidate the IEP

because the committee had information from TNCS available for

its consideration.

The Whites appealed the decision of the local hearing

officer to a state level review officer on May 12, 1998. The

state level review officer heard only limited additional

evidence. He reversed the local hearing officer's decision,

finding the alleged procedural violations invalidated the

proposed IEPs for Glenn's sixth and seventh grade years and that

the education offered by Henrico was inappropriate. The state

level review officer awarded the Whites tuition reimbursement

for the 1996-97 and 1997-98 school years, as well as prospective

relief.

On August 11, 1998, Henrico filed a civil action in the

Circuit Court of Henrico County, pursuant to Code § 22.1-214(D).

The trial court ruled in favor of Henrico on July 21, 2000,

finding Henrico had made available to Glenn a free appropriate

public education in accordance with the IDEA and that the

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procedures used by Henrico did not prevent Glenn "from receiving

appropriate educational benefits." Accordingly, the circuit

court denied the Whites' request for tuition reimbursement. The

Whites appealed the circuit court decision to this Court on

August 16, 2000. For the reasons that follow, we affirm.

II.

ANALYSIS

A.

Standard of Review

The Whites contend the circuit court failed to apply the

applicable standard of review because it did not find the state

level review officer's factual findings to be prima facie

correct, and failed to explicitly state in writing its reasons

for reversing the state level review officer's decision. We

disagree with the Whites' claim of error.

In support of their argument, the Whites cite several

federal court cases from the Fourth Circuit which state that the

opinion of a state level review officer is to be considered

prima facie correct and that the district court is required to

explain, in writing, why it does not adopt those findings.

Federal case law regarding the standard of review to be applied

by federal district courts is not binding on this Court. The

Virginia Supreme Court has established the appropriate standard

of review to be applied in IDEA cases appealed to the circuit

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court in School Bd. of Campbell County v. Beasley, 238 Va. 44,

380 S.E.2d 884 (1989):

Review of an administrative decision by
officers appointed under authority of the
Board of Education concerning a special
education program for a handicapped child is
not subject to the Administrative Process
Act (APA), but to the provisions of
§ 22.1-214(D). . . . [T]he statute permits
the court to hear additional evidence, to
weigh the evidence as a whole, and to base
its decision on a preponderance of the
evidence. The trial court is not limited in
determining, as under the APA, whether there
is "substantial evidence in the agency
record" to support the administrative
findings of fact.

* * * * * * *

Therefore, the proper standard to be
employed by the circuit court is "to
determine, based on a preponderance of the
evidence, whether the substance of the
proposed individualized educational program
is reasonably calculated to enable the child
to receive educational benefits."

Id. at 50, 380 S.E.2d at 888 (citations omitted).

The Supreme Court further held that, although "[d]ue weight

must be given by the trial court to the administrative

proceedings," id. at 51, 380 S.E.2d at 888, the trial court is

charged with making "an 'independent decision' based on the

preponderance of the evidence." Id. at 50, 380 S.E.2d at 888

(citation omitted); see also Hendrick Hudson Dist. Bd. of Ed. v.

Rowley, 458 U.S. 176, 205 (1982); Code § 22.1-214(D).

Further, under Virginia law, the circuit court is not

required to state in writing its reasons for rejecting the

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findings of fact made by the state level review officer.

Therefore, the circuit court in this case was not required to

find the state level review officer's findings to be prima facie

correct nor did it have to state, in writing, its reasons for

not adopting the factual findings made by the state level

officer.

Additionally, the standard of review that governs an appeal

to this Court requires that we view the evidence in the light

most favorable to Henrico, the party prevailing below. Beasley,

238 Va. at 51, 380 S.E.2d at 889. We will not set aside the

circuit court's decision "unless it appears from the evidence

that such judgment is plainly wrong or without evidence to

support it." Id. (citations omitted). We are "not permitted to

reweigh the evidence or to substitute [our] judgment for that of

the circuit court." Id.

B.

Free, Appropriate Education

The United States Supreme Court, in Rowley, 458 U.S. 176,

established a two-part test for determining whether a school has

complied with the requirements of the IDEA in providing a

student with a free appropriate education: (1) whether the

school complied with the procedural requirements of the Act; and

(2) whether the IEP developed by the school was reasonably

calculated to enable the child to receive educational benefits.

Id. at 206-07.

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 The Whites contend that Henrico not only failed to comply

with the procedural requirements of the IDEA but also that the

IEP developed by Henrico was not reasonably calculated to enable

Glenn to receive educational benefits.

1. Procedural Violations

The Whites contend Henrico committed several procedural

violations in conjunction with its development of the IEP and

that these violations effectively deprived Glenn of a free

appropriate education. While we acknowledge that procedural

violations, alone, may constitute a failure to provide an

appropriate education under certain circumstances, Rowley, at

206-07, each case must be reviewed in the context of the

particular facts presented. An IEP will not be set aside absent

"some rational basis to believe that procedural inadequacies

compromised the pupil's right to an appropriate education,

seriously hampered the parents' opportunity to participate in

the formulation process, or caused a deprivation of educational

benefits." Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994

(1st Cir. 1990) (finding procedural violations insufficient to

render the IEP inadequate); see also Burke County Bd. of Educ.

v. Denton, 895 F.2d 973, 982 (4th Cir. 1990) (finding the

Board's procedural violation did not deprive the child of

educational benefits or opportunity); cf. Hall v. Vance County

Bd. of Educ., 774 F.2d 629, 635 (4th Cir. 1985) (court found

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consistent failure to comply with IDEA requirements constituted

failure to provide child with free appropriate education).

We find that because any procedural inadequacies in this

case did not hamper the Whites' opportunity to participate in

the development of Glenn's IEP and did not result in a loss of

an educational opportunity or benefit for Glenn, the violations

did not invalidate the IEP. We will address each alleged

violation.

a. For a period of one month at the beginning of Glenn's fifth

grade year, Henrico provided special education services to Glenn

through a collaborative, rather than a "pull-out" teaching

method. The Whites contend that changing the teaching method

without amending the IEP constitutes a procedural violation that

invalidates the IEP. Henrico counters that because the IEP did

not specify the method of services, it was not required to amend

the IEP.

Parents must be given written notice prior to a change in

"the identification, evaluation, or educational placement of the

child." 20 U.S.C. § 1415(b)(3); 8 VAC 20-80-70(C). Glenn's

1995-96 IEP did not specify a particular method for implementing

his special education services but, rather, provided that he

would receive two hours of special education services per day.

Substituting the "pull-out" teaching method for the

collaborative method did not constitute a change in the services

he was receiving, nor did it involve a change in his

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identification, evaluation or placement. See, e.g., Erickson v.

Albuquerque Public Schools, 199 F.3d 1116, 1120, 1122 (10th Cir.

1999) (finding that a change in the type of occupational therapy

provided the child "was merely a change in methodology of

services, not a change in educational placement" or "delivery of

services"); see also Rowley, 458 U.S. at 207 ("questions of

methodology" are left to the states); Barnett v. Fairfax County

School Board, 927 F.2d 146, 152 (4th Cir. 1991) (selection of

educational policy and method is within authority of state and

local officials). Therefore, Henrico did not commit a

procedural violation by failing to inform the Whites of the

change or in not amending Glenn's IEP.

Furthermore, the Whites limited their request for tuition

reimbursement to Glenn's sixth and seventh grade years and did

not request tuition reimbursement for his fifth grade year. The

Whites cite no legal basis for or any authority in support of

their contention that an IEP for a given year may be invalidated

because of procedural violations occurring in a prior year, nor

could we find any.

b. Although Glenn's mother gave permission for Henrico to

conduct the IEP development meeting for Glenn's sixth grade IEP

in her absence and later reviewed and signed the IEP, the Whites

contend that her absence at that meeting constitutes a

procedural violation that invalidates the IEP.

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 The IDEA requires that parents be offered the opportunity

to participate in IEP development meetings. 20 U.S.C.

§ 1414(f); 8 VAC-20-80-62(D). Henrico informed Mrs. White of

the scheduled meeting and received her permission to proceed in

her absence. In addition, after the meeting, Cecilia Batalo,

Glenn's fifth grade special education teacher, reviewed the

proposed IEP with Mrs. White, who signed the IEP, giving her

consent for its implementation. Although the parents had

informed Henrico they were enrolling Glenn in TNCS for the

1996-97 school year, the parents did not subsequently voice any

complaints or objections to Henrico regarding the services

proposed in the June 1996 IEP. Likewise, the Whites did not ask

Henrico to make any changes to the proposed program.

We find the record supports a finding that Henrico provided

Mrs. White with the requisite opportunity to participate in the

development of the IEP. Any failure to participate is

attributable to the Whites' decision not to do so and does not

constitute a procedural violation by Henrico. In addition, Mrs.

White's signature on the form evidences her consent to the IEP,

and any objection to its implementation one year later was

untimely. See Warren G. v. Cumberland County Sch. Dist., 190

F.3d 80, 84 (3rd Cir. 1999) (parents cannot recover "tuition

reimbursement for the period preceding the parents' request for

a due process hearing"); Bernardsville Bd. of Educ. v. J.H., 42

F.3d 149, 158 (3rd Cir. 1994) ("[M]ere notice of parental

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'dissatisfaction' does not alone put the Board on reasonable

notice. . . . [T]he right of review contains a corresponding

parental duty to unequivocally place in issue the

appropriateness of an IEP.").

c. Henrico did not develop an IEP for Glenn's seventh grade

year until two weeks after the school year at Henrico had begun.

The Whites contend that this procedural violation invalidates

the IEP.

The IDEA requires the school to have an IEP in effect at

the beginning of each school year and that the IEP committee

meet at least once a year to review the IEP and, where

appropriate, revise its provisions. 20 U.S.C. §§ 1414(d)(2)(A),

(d)(4)(A)(i); 8 VAC 20-80-62(B)(1), (B)(6). Because Henrico

last reviewed Glenn's IEP in June 1996, its failure to review

his IEP prior to the beginning of the 1997-98 school year

constitutes a procedural violation of the IDEA. However, we

find the violation did not deprive Glenn of access to a free

appropriate education and, therefore, did not invalidate the

IEP. At the time the IEP was developed, the Whites had already

initiated a hearing seeking tuition reimbursement for the year

in question and had informed Henrico that Glenn would be

returning to TNCS for that school year. Therefore, the

development of the IEP two weeks after the start of Henrico's

school year was not material to the Whites' decision to keep

Glenn at TNCS and did not result in the loss of an educational

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opportunity or benefit for Glenn. See Sanger v. Montgomery

County Bd. of Educ., 916 F. Supp. 518, 526 (D. Md. 1996) (in

considering the same procedural violation under circumstances

similar to this case, the court found "the [parents] never

pressed for a new IEP . . . . More significantly, the [parents]

were wedded to funding at [the private school] and nothing else.

It thus would not have mattered in the least when [the public

school] was written into the IEP because from the outset the

[parents] made it clear that they would not accept it.").

d. Henrico did not invite a representative from TNCS to the

seventh grade IEP development meeting and no one from TNCS

attended. The Whites contend that this procedural violation

invalidates the IEP.

The Virginia Regulations require that when a child is

attending a private school, a representative from that school

must be included in the IEP development meeting. 8 VAC

20-80-66. We reject Henrico's contention that the Virginia

Regulation in effect in 1997, 8 VAC 20-80-60(B)(8)(b), did not

require the attendance of a representative from TNCS. Henrico

argues that the headings used in the regulation indicate that

the presence of a private school teacher at an IEP meeting is

required only when the school places the child in a private

school, but not when the parents place the child in a private

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educational setting. 2 However, the headings used in a regulation

do not dictate the meaning of the regulation's provisions.

Jones v. Division of Child Support Enforcement, 19 Va. App. 184,

188-89, 450 S.E.2d 172, 175 (1994). Rather, we must construe

the body of the statute, which, in this case, clearly states,

"[w]here a child is presently receiving the services of a

private school" a representative from the private school is

required to attend the IEP meetings.

We agree with the Whites that the failure to invite a

teacher from TNCS to the September 1997 IEP meeting constituted

a violation of 8 VAC 20-80-66. However, notwithstanding the

requirement that a teacher from the private school attend the

IEP meeting, we find, in this instance, the procedural violation

is insufficient to invalidate the IEP. Although Henrico did not

invite a representative from TNCS to attend the meeting, the

committee had available to it information concerning Glenn's

year at TNCS in the form of documents from TNCS and had the

benefit of the Whites' observations of Glenn during his year at

TNCS. In addition, Glenn's special education teacher from the

2
The heading for the subsection requiring the attendance of
the private school teacher at the IEP development meeting is
entitled, "Private School Placement," and begins with the
sentence, "Before an LEA (local educational agency) places a
child with a disability in, or refers a child to, a private
school or facility . . . ." The next subsection is entitled
"Children with disabilities in private schools not placed or
referred by public agencies." That section, however, does not
address the procedures for developing an IEP for such children.

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previous year and two individuals that had recently completed

Glenn's psychological and social evaluations participated in the

September 1997 meeting. The individuals present at the meeting

knew Glenn, had recently worked with him, and had direct

knowledge of his needs.

Furthermore, Julia Greenwood, the director of TCNS,

testified at the state level review hearing regarding the

information she would have provided at the September 1997 IEP

meeting had she been invited. The program she described as

being appropriate for Glenn was, with a few minor exceptions,

identical to the program proposed by Henrico. 3 Her testimony

established that the very program elements she believed should

have been included in the IEP developed by Henrico in her

absence, were, in fact, included in Henrico's IEP.

We conclude that, because the committee had before it

sufficient current information to develop an appropriate IEP for

Glenn and that it reflected the program elements which the

private school believed were necessary to provide Glenn with

appropriate educational services, any procedural error in not

including a representative from TNCS did not result in a loss of

3
Greenwood testified that Glenn needed one-on-one
assistance in reading, a multi-sensory approach to reading, and
grade level instruction in small classes, taught by teachers who
understood the extent of his disability. Greenwood also
testified that accommodations should be made for Glenn, such as
allowing oral testing or untimed tests. The IEP developed by
Henrico contained all of these elements.

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educational opportunity or benefit for Glenn and, therefore,

does not invalidate the IEP developed by Henrico. See Roland M.

v. Concord Sch. Comm., 910 F.2d 983, 994 (1st Cir. 1990).

e. The Whites also allege that Henrico pre-determined Glenn's

placement prior to the sixth and seventh grade IEP development

meetings by drafting a proposed IEP before the meeting. There

is no evidence in the record to support this contention.

The IDEA requires that placement decisions be based on the

IEP. 34 C.F.R. § 300.552; 8 VAC 20-80-60(B)(7)(a)(2). Deciding

to place a child in a particular school before developing an IEP

"violates the spirit and intent" of the IDEA. Spielberg v.

Henrico County Public Schools, 853 F.2d 256, 259 (4th Cir.

1988). However, the fact that an Henrico representative brought

a draft of a proposed IEP to each of the meetings does not

conclusively establish that Henrico impermissibly determined

Glenn's placement prior to the IEP meeting. The IDEA permits a

school board to bring a draft IEP to meetings for the purposes

of discussion. See Doyle v. Arlington County Sch. Bd., 806 F.

Supp. 1253, 1262 (E.D. Va. 1992), aff'd 39 F.3d 1176 (1994)

("[W]hile a school system must not finalize its placement

decision before an IEP meeting, it can, and should, have given

some thought to that placement."). The draft IEP provided a

starting point for the discussion and nothing more. The Henrico

representatives who participated in the IEP development meetings

testified that they considered all placement options available

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to Glenn, that they were open to suggestions from the Whites

regarding the appropriate placement for Glenn, and that the

draft IEP could and was modified during the IEP meetings.

Furthermore, there is no evidence in the record suggesting that

any IEP placement decisions were finalized in advance of the IEP

meeting. We find the record supports a finding that the

committee did not pre-determine Glenn's placement and that no

procedural violation occurred with regard to this issue.

f. Finally, the Whites contend that the IEP developed by

Henrico for the 1996-97 school year, Glenn's sixth grade year,

did not contain meaningful annual goals, short-term objectives,

or criteria for measuring Glenn's progress. Henrico contends

this issue is barred under Rule 5A:18. We agree with Henrico

that the issue is barred.

The Whites raised the issue for the first time in their

motion requesting the circuit court to reconsider its decision

to deny the Whites' tuition reimbursement. Because the Whites

failed to raise the issue during the administrative proceedings,

this issue was not properly before the trial court. See Hampton

School District v. Dobrowolski, 976 F.2d 48, 53 (1st Cir. 1992)

("Claims of procedural errors not presented to the

administrative hearing officer are not preserved for judicial

review by the trial court."); David D. v. Dartmouth School

Committee, 775 F.2d 411, 424 (1st Cir. 1985) ("[F]or issues to

be preserved for judicial review they must first be presented to

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the administrative hearing officer."). Accordingly, we hold

this issue was not properly preserved and is not properly before

us.

Because we find that any procedural violations committed in

this case did not deprive Glenn of access to an appropriate

education, we proceed to the appropriateness of the substance of

the program offered by Henrico.

2. Substantive Provisions of Henrico's IEP

The Whites contend that, because Glenn could not read at

grade level, Henrico did not and could not provide him with an

appropriate education. However, the evidence shows Glenn

received educational benefits from the Henrico program and that

the proposed IEPs offered by Henrico would have continued to

provide Glenn with educational benefits, in the least

restrictive environment, as required under the IDEA.

Under the IDEA, "a 'free appropriate education' consists of

educational instruction specially designed to meet the unique

needs of the handicapped child, supported by such services as

are necessary to permit the child 'to benefit' from the

instruction." Rowley, 458 U.S. at 188-89. The education must

"be provided at public expense and under public supervision,

meet the state's educational standards, approximate the grade

levels used in the state's regular education, and comport with

the child's IEP." Id. at 189. States are not required to

"maximize each child's potential 'commensurate with the

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opportunity provided other children.'" Id. at 198. "[I]f

personalized instruction is being provided with sufficient

supportive services to permit the child to benefit from the

instruction and the other items on the definitional checklist

are satisfied, the child is receiving a 'free appropriate public

education' as defined by the Act." Id. at 189; see Beasley, 238

Va. at 50, 380 S.E.2d at 888. We will not reverse the circuit

court's finding that the IEP developed by Henrico was reasonably

calculated to provide Glenn with educational benefits unless

that finding is plainly wrong or without evidence to support it.

Id. at 44, 380 S.E.2d at 884.

Notwithstanding the fact that Glenn failed to progress

during his year at TNCS, the Whites contend that TNCS could

provide Glenn with a more appropriate education. Their argument

is without merit, however, because the availability of a better

private school placement, even if proved, does not establish

that a public school program, which is providing a free

appropriate education, is an improper placement. See Hessler v.

Maryland State Bd. of Educ., 700 F.2d 134, 139 (4th Cir. 1983).

The evidence in this case establishes that Henrico provided

Glenn with a free and appropriate education, consistent with the

requirements of the IDEA.

The IEP developed by Henrico for Glenn's sixth and seventh

grade years provided more extensive services than Glenn had

received during his fifth grade year. The proposed IEP for his

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sixth grade year provided that one period of instruction in each

of the following areas of the special education program be

given: English, reading, math and science. Each subject was to

be taught by teachers who were certified to teach special

education and had expertise in the particular academic subjects

they were assigned. The IEP also provided that Glenn

participate in the regular education program for his elective

class, for health and physical education and that additional

reading time was to be scheduled. The IEP classified Glenn as

"self-contained" because he was to spend more than one-half of

his school day supported by special education services. The IEP

provided for extensive modifications in Glenn's regular

education classes. They included: untimed tests, small group

instruction, oral administration of tests, short answers being

accepted in place of a lengthy essay, organizational

modifications, special equipment and other accommodations. The

IEP prepared for the 1997-98 school year, Glenn's seventh grade

year, proposed a similar program.

Unlike the program at TNCS, the IEP proposed by Henrico

offered Glenn the opportunity to interact with regular education

students. Under the IDEA, schools are required to place

students in the least restrictive environment in which they can

receive an appropriate education. A private program such as

TNCS would be required only if Glenn's disability was one in

which "a [private] setting is the only educational placement

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reasonably calculated to enable [the child] to receive

educational benefits." Martin v. School Bd. of Prince George

County, 3 Va. App. 197, 210, 348 S.E.2d 857, 865 (1986). The

evidence fails to establish that TNCS is the only educational

setting reasonably calculated to enable Glenn to receive

education benefits.

The evidence showed Glenn had made progress during his

fifth grade year at Henrico under an IEP that provided less

individualized instruction than the program proposed in the

sixth and seventh grade IEPs. In fact, he progressed almost a

full grade level in reading in his fifth grade year. Glenn has

a severe learning disability and, although he was not

progressing at the same rate as his peers, his progress was real

and measurable.

We find, in sum, credible evidence to support the trial

court's finding that the IEP proposed by Henrico would have

enabled Glenn to benefit educationally and that Henrico complied

with the requirement that the state provide Glenn with a "free

appropriate public education." Because we conclude the decision

of the trial court is not plainly wrong and that there is ample

evidence to support it, we affirm the judgment. See Beasley,

238 Va. at 51, 380 S.E.2d at 889.

Affirmed.

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