Full opinion text
MEMORANDUM OPINION PAYNE, District Judge. This matter is before the Court on the record of a State due process hearing and evidence taken ore terms in the action filed by JP, a twelve year old autistic boy, and his parents (collectively “the parents”) seeking, under 20 U.S.C. § 1415(i)(2)(a) of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., to overturn the October 14, 2005 decision of a State Hearing Officer. In that decision, the State Hearing Officer held that the individual education plan (“IEP”) provided for JP for the 2005-2006 school year by Hanover County Public Schools (“HOPS”) satisfied the requirements of the IDEA and governing decisional law. The IDEA The purpose of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living.” § 1400(d)(1)(A). To achieve this purpose, the IDEA extends federal funding to the States to provide disabled schoolchildren with a “free appropriate public education” (“FAPE”). § 1412(a)(1)(A). A FAPE is provided by school districts in public schools in the so-called “least restrictive environment” — i.e. the educational environment suitable for the disabled student that is most similar to the public school environment in which non-disabled children are educated. § 1412(a)(5); Schl. Bd. of Prince William County v. Malone, 762 F.2d 1210, 1213 (4th Cir.1985). However, where the public school district is unable to provide a FAPE in the public schools, the IDEA requires that the school districts shall assume the cost of educating the child in a private school that méets the child’s educational and social services needs. § 1412(a)(10)(B). A FAPE “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.” Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 188-89, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (internal quotation marks omitted). A FAPE is implemented through an IEP, which is designed by an IEP team, consisting of school district educators and administrators, education experts, and, of vital importance, the child’s parents. IEPs “must contain statements concerning a disabled child’s level of functioning, set forth measurable annual achievement goals, describe the services to be provided, and establish objective criteria for evaluating the child’s progress.” MM ex rel. DM v. Schl. Dist of Greenville County, 303 F.3d 523, 527 (4th Cir.2002); see § 1414(d)(1)(A). The IDEA establishes detailed procedures for IEP development and review. If a dispute arises over the sufficiency of an IEP, the statute requires the parents to notify the school district of their complaints, enter into mediation, and, if that is not successful, allows the parents to bring a due process action before an impartial state or local administrative hearing officer. §§ 1415(a), (b)(7), (e), (f). A party aggrieved by the decision of the hearing officer may file a civil action in a state or federal district court. § 1415(i)(2). To provide an “appropriate” education within the meaning of the IDEA, the school district does not have to provide the child with the best possible education. And, once a FAPE is offered, the school district need not offer additional educational services. That is, while a state must provide specialized instruction and related services sufficient to confer some educational benefit upon the handicapped child, the Act does not require the furnishing of every special service necessary to maximize each handicapped child’s potential. MM, 303 F.3d at 526-27 (citations and internal quotation marks omitted). However, “Congress did not intend that a school system could discharge its duty under the [Act] by providing a program that produces some minimal academic advancement, no matter how trivial.” Hall ex rel. Hall v. Vance County Bd. of Educ., 774 F.2d 629, 636 (4th Cir.1985). Setting the substantive standard, the Supreme Court has stated that an IEP is sufficient if it is “reasonably calculated to enable the child to receive educational benefits.” Rowley, 458 U.S. at 207, 102 S.Ct. 3034. In this action, the Court must assess, based on the applicable standard of review, whether the June 2005 IEP was “reasonably calculated to enable [JP] to receive educational benefits." See Rowley, 458 U.S. at 207, 102 S.Ct. 3034. STATEMENT OF FACTS The findings of fact found herein come from three sources: testimony received by the State Hearing Officer in the summer of 2005, testimony received during an “additional evidence” hearing held before this Court on July 20, 2006, and the record compiled during these hearings. JP, who was born on January 4, 1994, resides with his parents, KP and LP, in Hanover County, Virginia. At age 18 months, JP was diagnosed with autism, a condition recognized as a disability under the IDEA. “The main characteristics that differentiate autism from other developmental disorders include ‘behavioral deficits in eye contact, orienting to one’s name, joint attention behaviors (e.g., pointing, showing), pretend play, imitation, nonverbal communication, and language development.’ ” Amanda J. ex rel. Annette J. v. Clark County Sch. Dist., 267 F.3d 877, 883 (9th Cir.2001) (citing National Research Council, Educating Children With Autism 20, Catherine Lord & James P. McGee, eds., National Academy Press 2001). Autistic children may often seem to be lost in their own worlds, impervious to stimuli to which typical children react. Due to this behavior and their deficits in imitation, attention, and language skills, autistic children often must be taught how to learn in the manner that typical students learn. JP’s family moved to Virginia in late 2000, and JP began as a first grader at Battlefield Park Elementary School in Hanover County in January 2001. JP stayed in HCPS’s special education program from January 2001 until May 7, 2003. During this time, he repeated first grade. In May 2003, the parents removed JP from HCPS and placed him at the Spiritos School (“Spiritos”), a private specialty school for children with autism, because the parents were concerned that JP was not making adequate progress in the special education program at Battlefield Park. To teach autistic students, Spiritos uses a technique called applied behavior analysis (“ABA”). Using intensive one-on-one instruction, ABA seeks to teach autistic children the basic learning skills needed to learn academic subjects. Testing by Dr. Micheál Hayes, a clinical psychiatrist, revealed that JP made significant gains in all areas tested using the Woodcock Johnson III (“WJ-III”), Verbal Motor Integration (“VMI”), and Peabody Picture Vocabulary Test III (“PPVT-III”) tests. See App. C (charting JP’s scores on those tests from 2003 through 2005). Nonetheless, the parents wanted to return JP to the HCPS system. JP’s older brother, who is not autistic, attended HCPS, and the parents testified that they were pleased with the brother’s education and wanted JP to succeed in the public school system, just as they were desirous for HCPS to succeed with JP. Therefore, as provided by the IDEA, an IEP team, including the parents, convened in the summer of 2004 to design an appropriate IEP for JP. The product of these meetings was an IEP signed August 17, 2004 (“2004 IEP”), which placed JP in a special education program at Rural Point Elementary School (“Rural Point”). The parents testified that, because they had felt HCPS had not provided JP with an adequate education at Battlefield Park, and having experienced JP’s success at Spiritos, they sought to obtain an educational program at Rural Point that would use many of the same methods used at Spiritos. The IEP, therefore, incorporates part of an agreement reached between HCPS and the parents that resulted in the settlement of a due process challenge by the parents wherein the parents claimed that HCPS had denied JP a FAPE during his year at Battlefield Park and thus sought reimbursement for the costs of his year at Spiritos. The claim was settled before the due process hearing on that dispute was held, and the settlement included a monetary award as well as settlement terms. The terms of the settlement agreement became significant parts of the IEP and a considerable part of the parents’ case focuses on the terms of the agreement. (See HCPS-B, p. 29b, 29c.) Under the August 2004 IEP, JP attended a regular 4th grade classroom for home room, recess, lunch, music, and art. A special education teacher taught JP reading, writing, and math in a so-called “self-contained” classroom that was especially designed for the instruction of autistic children. As. set forth in the settlement agreement incorporated into the IEP, .JP’s classroom included small, partitioned learning areas, special sensory tools that aid in keeping autistic children focused, dimmed lighting, and a special swing and oversized ball that many autistic children use to reduce anxiety and overstimulation. Also, as set forth in the agreement, JP was to have a one-on-one teacher’s aide who would be trained in the use of . the discrete trial method and who would provide assistance in all of JP’s activities, including reading, writing, mathematics, and daily living/social skills. In addition, JP received speech therapy five times per week, including once in a group session, for thirty minutes each and thirty minutes of occupational therapy per month. As proposed, the August 2004 IEP had 18 goals. At the August 17, 2004 IEP meeting, three of the goals were deleted at the parent’s request (goals 11, 13 and 14). At an October 20, 2004 meeting, a new goal 12 was inserted, and goal 13, dealing with writing motor skills, and which seemingly had. previously been deleted, was added back. The 2004 IEP described JP’s present level of performance, and it included several accommodations that were to be made for JP. These accommodations read as follows:. • direct one on one instruction to include opportunities for discrete trials where appropriate. • structured environment with visual schedule • short clear directions and wait time provided • Teacher/aid to maintain attention to task, model, modify, and reinforce • Therapeutic Listening • Sensory Diet (to be developed, revised, and monitored by the OT who will consult with the SPED teacher and 1:1 aide.) Consult with OT. • Trained instructional assistant* * to support J[P]’s program. Training will entail methods such as repetition, data collection, step by step methods, that is proven to work with children with autism. HCPS will arrange for the aide to receive training from a Certified Behavior Analyst from a program such as Faison School or a comparable program in Fredericksburg with which HCPS is already conducting similar training sessions. • * * The aide will be supervised by the Special Education teacher and will provid [sic] instruction to James at the teacher’s, the occupational therapist’s and/or the speech therapists direction. (2004 IEP, p. 24.) The nine provisions that were part of the settlement were added as an addendum to the August 2004 IEP. (See 2004 IEP, p. 29b,c.) Included among the provisions are: 2. J[P] will receive support from a one-to-one instructional aide who receives training in methods that are proven to work with children with autism. HCPS will arrange for the aide to receive training from a Certified Behavior Analyst from a program such as the Faison School or a comparable program in Fredericksburg with which Hanover County Public Schools is already conducting similar training sessions. 3. The one-to-one aide will serve James at all times that he is involved in school work or activities. The aide will be supervised by the special education teacher, and will provide instruction to James at the teacher’s, the occupational therapist’s, and/or the speech therapist’s direction. 4.J[P] will receive academic instruction in a self-contained setting. The setting will include will include opportunities for J[P] to receive discrete trials when and where the instructional personnel deem appropriate all, of course, designed to meet J[P]’s individual educational needs[.] ?}i ❖ * 7. Hanover School Board policy invites and encourages parents to be involved closely with their students’ education, including making visits to classrooms to view the academic environment. HCPS appreciates the P[... ]s’ willingness to coordinate their visits through J[P]s’ special education teacher and/or through the school administration to limit any disruptions to J[P]’ and other students’ learning. (Id.) The parents signed the August 2004 IEP as well as the October 20, 2004 additional goals. JP began at Rural Point in September 2004, with his curriculum based upon the IEP. Later in September 2004, the IEP team agreed to conduct additional evaluations, which led to the addition of the sensory-motor skills goal (goal 13), and, on October 4, 2004 a so-called “sensory diet” was added. On October 20, 2004, the IEP team, including the parents, met to discuss JP’s adjustment to Rural Point, to assess behavioral problems he was having, and to adjust his goals accordingly. As a result of this meeting, a Functional Behavioral Assessment (HCPS-38) was ordered; and, it was completed November 22, 2004. On November 22, 2004, HCPS psychologist Michael Warner completed a psychological evaluation (HCPS-30) in which he recommended numerous strategies to reduce JP’s agitation, negative behaviors, and frustration. Also, on November 22, JP’s speech therapists at HCPS completed an Oral Motor Assessment (HCPS-37) that the parents had requested in September. On December 1, the IEP team added an IEP addendum to implement a Behavior Intervention Plan/Positive Behavior Support Plan (HCPS-39). Additional IEP meetings were held on December 9 and January 1,2005. On February 8, 2005, unsatisfied with JP’s progress at Rural Point, the parents filed a complaint with HCPS requesting the credentials of all HCPS personal working with JP. Several IEP team meetings were held thereafter. On April 25, the parents requested a Speech and Language Evaluation, which was completed by HCPS on May 12 (HCPS-83). On June 16, the IEP team added an IEP addendum to implement mouth exercises for JP recommended in the Oral Motor Assessment completed the previous fall. At some point in the 2004-2005 school year, the parents requested that HCPS conduct the Assessment of Basic Language and Learning Skills (“ABLLS”) test on JP. ABLLS is designed to be a comprehensive test that assesses a child’s pre-academic and social developmental strengths and weaknesses. It tests skills such as reading, language, and calculations as well as the ability to imitate, pay attention, and interact socially. Several of the parents’ experts testified before the hearing officer and this Court that ABLLS is the only test that comprehensively assesses basic learner skills. Testimony explained that until a child shows that he or she is sufficiently competent at the basic learner skills, that child is not yet ready to move on to a curriculum based on the state standards of learning used by the public schools. During the 2004-2005 school year, HCPS decided that ABLLS testing was not needed because, in the view of HCPS, it had sufficient data on JP from other non-comprehensive tests. However, after repeated demands for ABLLS testing by the parents and educational experts, HCPS reluctantly agreed to test JP using ABLLS in July of 2005. However, the results of those tests were not used by HCPS, perhaps because the results were not yet available, to propose the June 2005 IEP that is here at issue. Because JP’s progress during the 2004-2005 school year is central to the issue of whether the June 2005 IEP was sufficient under the IDEA and governing decisional law, the facts pertaining to JP’s progress will be discussed in full in Part III of this Memorandum Opinion. At this point, it is sufficient to say that, throughout the 2004-2005 school year, the parents remained concerned that JP was not making progress toward the goals set in the 2004 IEP and, due to repeated but unanswered requests for objective data demonstrating JP’s progress, they remained dissatisfied with HCPS’s unsupported assertions that JP was in fact making progress. Between the middle and end of the school year, the parents came to the view that JP was actually regressing rather than progressing and so informed HCPS. In contrast, the HCPS members of JP’s IEP team expressed the view that JP was making sufficient progress. HCPS contends that its belief was based on observations of JP, assessments of his classroom work, progress journals kept by the speech therapists, and anecdotal evidence. On April 25, the IEP team agreed upon an IEP for the extended school year (“ESY”) term that was to run from July 7, 2005 until August 11, 2005. Despite this ESY IEP, the parents took JP on a vacation during July and August of 2005, and so he only ended up having seven days of ESY. However, six of those days were taken up by the ABLLS testing. By June 2005, the parents and HOPS had vastly different views on whether the 2004 IEP had provided JP with educational benefit. Both the parents and HOPS based their judgments on their respective views of the progress, or lack thereof, JP had made under during the 2004-2005 school year. On June 16, 2005, the IEP team met to discuss a new IEP for the 2005-2006 year. The parents were of the view that JP needed a more intense, one-on-one curriculum like that provided at Spiritos, and that HOPS had not fulfilled the terms of the settlement agreement that were incorporated to that end in the 2004 IEP. HOPS felt that JP had made progress at Rural Point, did not need ABA-based instruction, and could continue to make progress at Rural Point during the coming 2005-2006 year. The IEP proposed at the June 16, 2005 meeting is somewhat in the nature of a draft IEP. That is, the June 2005 IEP consists of the 2004 IEP as it stood in June 2005 (i.e. less the goals that had been deleted, plus the goals that had been amended or added), plus a statement of JP’s current level of performance as of June 15, 2005, plus three goals proposed on June 15, 2005 dealing with language, behavioral self-regulation, and oral motor skills. Having already removed JP from HOPS to place him at Spiritos for the 2003-2004 school year, having observed JP’s significant progress at Spiritos, and having observed that JP had either regressed in certain areas or made no meaningful progress in other areas at Rural Point during the 2004-2005 school year, the parents, at the June meeting, requested HOPS to provide JP with a private placement at public expense at a local specialty school such as Spiritos. HOPS refused this request. Thereupon, the parties reached an impasse, and the parents rejected the proposed IEP for the 2005-2006 year. On June 28, 2005, the parents filed their request with the State for a due process hearing. The due process hearing was held on July 25, September 29 and 30, 2004. The delay between the sessions resulted because the parents changed counsel after the July 25 session. In a written decision dated October 14, 2005, the State Hearing Officer held that JP had made more than minimal progress during the 2004-2005 year, and that both the 2004 and 2005 IEPs were appropriate under the IDEA and governing law. Meanwhile, the parents had enrolled JP at the Dominion School, a small speciality school for autistic children that first opened on September 12, 2005 with a total enrollment of three students, including JP. By the time of the September due process hearings, JP had attended Dominion for two weeks. Dominion uses the ABA method of instruction, and students attend school for 6 hours per day. Dominion administered several tests to JP when he first arrived to determine his present level of performance. At the “additional evidence” hearing held before this Court on July 20, 2006, Mr. P. testified that JP had done extremely well at Dominion and Kristin Mapp, one of JP’s Dominion instructors, credibly testified that JP had made significant progress during his year at Dominion. On January 11, 2005, the parents filed a seven, count Complaint in this Court. In Count I, the parents allege that the State Hearing Officer violated their due process rights by failing to adequately consider the opinions of the parents’ witnesses, and by refusing to consider the parents post-hearing points of authority while, at the same time, considering the points of authority provided by HOPS. In Count II, the parents allege that HCPS used the wrong assessment tools (ie. education tests) to assess JP and therefore his IEP was improperly designed and inappropriate. In Count III, the parents allege that HCPS failed to implement material components of the 2004 IEP, and such a failure constituted denial of a FAPE. In Count IV, the parents allege that goals three and four of the 2004 IEP were inappropriate. In Count V, the parents allege that JP’s condition and social development made socialization and mainstreaming an inappropriate goal that will not provide JP with educational benefit. In Count VI, the parents allege that HCPS denied the parents a meaningful opportunity to participate in JP’s education when HCPS barred the parents from coming on Rural Point’s campus except at authorized times. In Count VII, the parents allege that the Dominion School was an appropriate private placement for JP during the 2005-2006 school year. However, at the hearing before this Court, the parents agreed that each of the counts alleged in the complaint go to the question of whether the June 2005 IEP satisfies the standard set by the IDEA and relevant decisional law, and whether they are entitled to reimbursement for the cost of educating JP at the Dominion School during the 2005-2006 school year. They stated they are not pursuing relief for any other claim. Thus, the enumerated counts are really evidentiary points all going toward proving that the 2005 IEP was inappropriate and that the private placement at Dominion School was appropriate. Accordingly, the parents asked this Court to find that JP did not make progress at Rural Point during the 2004-2005 year, that the June 2005 IEP was inappropriate, and that the Dominion School was an appropriate placement for JP during the 2005-2006 school year. With these initial findings of fact in mind, the Court now turns to an assessment of the parents’ claims. DISCUSSION I. The IDEA And Applicable Standard Of Review A. Applicable Version Of The Statute In 2005, Congress amended the IDEA by passing the Individuals with Disabilities Education Improvement Act (“ID-EIA”), P.L. 108-446, which became effective July 1, 2005. In their filings, the parties dispute which version of the IDEA applies to this case. The parents rejected the June 15, 2005 IEP on June 15, 2005, filed their due process hearing complaint before July 1, 2005, and filed this action on January 11, 2006. When assessing whether HCPS complied with the statute in implementing the 2004 IEP during the 2004-2005 school year and whether the June 16, 2005 proposed IEP complied with the statute, the IDEA, rather than the IDEIA, applies because the events at issue all occurred prior to the effective date of the IDEIA. B. Standard Of Review Of Administrative Decision Civil actions, like this one, brought under 20 U.S.C. § 1415(i)(2) of the IDEA “are procedurally unique in that they are independent civil actions in which the district court considers the record of the state administrative hearing, as well as any new evidence offered by a party, and makes its own findings based on the preponderance of the evidence.” County Schl. Bd. of Henrico County v. Z.P., 399 F.3d 298, 304 (4th Cir.2005). “Although the federal action is an independent civil action and not an appeal of the state administrative proceeding, the Supreme Court has made it clear that the district court must give ‘due weight’ to the state administrative proceeding.” Id. (citing Rowley, 458 U.S. at 206, 102 S.Ct. 3034; Doyle v. Arlington County Sch. Bd., 953 F.2d 100, 103 (4th Cir.1991). The Fourth Circuit has explained that the “due weight” to be given to the state administrative decisions requires that: findings of fact by the hearing officers in [IDEA] cases ... be considered prima facie correct, akin to the traditional sense of permitting a result to be based on such fact-finding, but not requiring it. We are further of the opinion that when fact-findings are regularly made and entitled to prima facie correctness, the district court, if it is not going to follow them, is required to explain why it [is] not .... After giving the administrative fact-findings such due weight, if any, the district court then is free to decide the ease on the preponderance of the evidence, as required by the statute. Doyle, 953 F.2d at 105 (citations omitted). Whether an IEP is appropriate is a question of fact, and a district court is to independently make factual findings as to an IEP’s appropriateness. Z.P., 399 F.3d at 298. The Fourth Circuit has stated that: Doyle makes it clear that factual findings made during the state administrative proceeding are entitled to a presumption of correctness, so long as the findings were “regularly made.” Factual findings are not regularly made if they are reached through a process that is “far from the accepted norm of a fact-finding process.” Z.P., 399 F.3d at 305. The Fourth Circuit has “held that credibility determinations implicit in a hearing officer’s decision are as entitled to deference under Doyle as explicit findings.” Z.P., 399 F.3d at 307 (emphasis added). C. Weight Due To The State Hearing Officer’s Decision The decision of the State Hearing Officer in this matter is so inadequate as to be of little use. The opinion selectively quotes some statements of IDEA law by the Fourth Circuit and Supreme Court and then purports to recount the testimony of each witness, but does so in terse, conclu-sory terms and, in most cases, this results in a distorted recitation of what the witnesses actually said. The opinion also is virtually useless in assessing the credibility of the witnesses because, according to the State Hearing Officer, “I found all the witnesses credible, and all the experts qualified to testify within their fields.” (State Hearing Officer’s Op. at 20.) After stating that the parents’ experts testified that an ABA-based curriculum was appropriate and superior to the curriculum preferred by HCPS, the State Hearing Officer decided that “[n]o comparative weighing of their testimony is appropriate because (1) each witness is entitled to her opinion and (2) there is no real conflict on relevant facts.” (Id. at 21.) Under Doyle, a hearing officer’s credibility determinations are to be given due weight where they are normally made. However, because the State Hearing Officer here made no credibility determinations except with respect to Mrs. P., obviously no weight can be given to the State Hearing Officer’s absent credibility determination. This is particularly problematic given that the State Hearing Officer is patently wrong: as will be discussed below, there is significant conflict on the relevant facts; the greatest of which is whether the June 16, 2005 IEP was appropriate for JP. See Z.P., 399 F.3d at 298 (appropriateness of an IEP is a question of fact). Where, as here, the testimony of the witnesses, factual and expert, are at odds over important points, often significantly so, a finding that all witnesses are credible means that disparate, sometimes dramatically opposed, recitations of fact are accepted as true. That is neither possible nor helpful, and it certainly makes it impossible to give any weight to the State Hearing Officer’s factual findings. Of equal importance in an IDEA case, the failure to recite, much less differentiate and evaluate, the opinions of experts makes it impossible to identify the hearing officer’s views on the expert evidence. That, of course, makes it necessary for the Court to assess the expert evidence on its own. The State Hearing Officer did find that Mrs. P. has extensive self-education, including from attendance at several seminars, in autism and education for autistic children. While Mrs. P. does not possess a college degree, and is not trained as a educator or a medical expert, the record bears out that, through considerable self-education, Mrs. P. has developed a commendable understanding of child autism and education for autistic children. The record demonstrates- that Mrs. P. has been intensively involved in JP’s life and education and as JP’s mother, she has an unrivaled understanding of JP. This, of course, does not make her opinions eon-■ogress dew of lony is jy the trolling as to JP’s educational progress and needs. Yet, an independent review of the record shows that Mr. P’s testimony is quite credible and is supported by the record, notwithstanding her inherent maternal bias. Having reviewed the evidence, the State Hearing Officer concluded, ‘While the parents felt [JP’s] IEP as amended did not provide him with educational benefit, none of their expect [sic] witnesses said so; they simply said that an ABA school would give him greater benefits.” (SHO Op. at 21.) However, that statement is incorrect. As will be discussed below, many of the parents’ witnesses testified not only that an ABA school was better for JP than his placement at Rural Point but also that the August 2004 and June 2005 IEPs at Rural Point were inappropriate for JP. The State Hearing Officer only made two findings of fact that were not uncontested facts. He found that “During the 2004-2005 school year, [JP] made progress in speech and language, behavior, and academics. {See id. at pp. 14, 17-19 and Hanover Ex.3.)” and “[t]his progress was not minimal or trivial.” (SHO Op. at 26, Findings of Fact 11 and 12.) These findings were made without any written analysis, and without weighing or discussing the over 1,200 pages of evidence and testimony taken in the administrative hearings. Based on these conclusory findings of fact, the State Hearing Officer concluded that the parents had not met their burden to show by a preponderance of the evidence that HOPS did not provide JP a FAPE in the 2004-2005 school year, and did not offer him a FAPE in the June 2005 IEP. Due to the complete lack of written analysis in the State Hearing Officer’s opinion, the Court has no way to judge whether the findings of fact therein were regularly made. Findings of fact 11 and 12 are entirely eonclusory, being unsupported by any underlying findings of fact; and, as stated above, the State Hearing Officer was wrong in his observation that the parents’ witnesses failed to testify to the inappropriateness of the 2005 IEP for JP at Rural Point. For the foregoing reasons, the Court cannot find that the findings of fact were regularly made; and, therefore, accords no weight to the State Hearing Officer’s findings of fact and conclusions of law. Having considered the findings of the State Hearing Officer, and granted them no weight, this “court then is free to decide the case on the preponderance of the evidence, as is required by statute.” Z.P., 399 F.3d at 304. The foregoing conclusion respecting the State Hearing Officer’s opinion disposes of the related issue raised by the parents that the State Hearing Officer’s opinion violates the parents due process rights because of its failure to address the parents’ witnesses testimony and failure to consider the parents’ post-administrative hearing points of authority. Because the Court accords no weight to the State Hearing Officer’s decision, and has afforded the parents ample and numerous opportunities to brief the Court on the numerous issues presented in this case, the parents’ arguments as to the deprivation of their due process rights need not be considered further. II. Failure To Implement The 2004 IEP In Count III of the Complaint, and again in post-hearing briefing, the parents argue that certain accommodations and services contained in the 2004 IEP were not properly implemented or not implemented at all; and, this failure amounts to no implementation whatsoever, and is a denial of a FAPE. As discussed above, the parents are not seeking relief for the 2004-2005 school year when JP was in public school. They are seeking monetary relief for the cost of educating JP at Dominion for the 2005-2006 year. Thus, the so-called “failure to implement” allegations go toward proving that the 2005 IEP was inappropriate. If HCPS did fail to implement material provisions of the 2004 IEP during the 2004-2005 school year, that failure would be probative of whether the 2005 IEP was reasonably calculated to provide educational benefits to JP because the 2005 IEP was essentially the same as the 2004 IEP. With no new proposed accommodations or demonstration by HCPS that the IEP would be implemented better during the 2005-2006 school year, the parents reasonably could expect another year of failed implementation. Therefore, the Court must assess the parents’ failure to implement claims. A. Applicable Law The IDEA requires IEPs to include “a statement of the special education and related services and supplementary aids and services to be provided the child.” § 1414(d)(l)(A)(iii). Regulations promulgated under this accommodations and services clause state that “each public agency must-(l) provide special education and related services to a child with a disability in accordance with the child’s IEP.” 34 C.F.R. § 300.500 (emphasis added). The Secretary of Education has interpreted these regulations to require that “[t]he public agency must ensure that all services set forth in the child’s IEP are provided, consistent with the child’s needs as identified in the IEP.” Notice of Interpretation, 34 C.F.R. Pt. 300, App. A. Question 31, 66 Fed.Reg. 347666 (emphasis added). The Fourth Circuit has not had occasion to examine the issue whether the failure to implement some or all of an IEP constitutes denial of a FAPE. However, the Fifth Circuit, in Houston Independent School District v. Bobby R., 200 F.3d 341 (5th Cir.2000) cert. denied, 531 U.S. 817, 121 S.Ct. 55, 148 L.Ed.2d 23 (2000), addressed this question, and developed a legal standard by which to assess the failure to implement claims. See also Manalansan v. Bd. of Educ. of Baltimore City, 2001 WL 939699, 2001 U.S. Dist. LEXIS 12608 (D.Md.2001) (finding denial of a FAPE based on the standard articulated in Bobby R.). In Bobby R., the Fifth Circuit wrote: to prevail on a claim under the IDEA, a party challenging the implementation of an IEP must show more than a de min-imis failure to implement all elements of that IEP, and, instead, must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP. This approach affords local agencies some flexibility in implementing IEP’s, but it still holds those agencies accountable for material failures and for providing the disabled child a meaningful educational benefit. Bobby R., 200 F.3d at 349 (emphasis added). Several other courts of appeals and district courts have adopted this standard and it is a sensible and sound approach to the issue. E.g. Melissa S. v. Sch. Dist. of Pittsburgh, 2006 WL 1558900, *2 (3d Cir.2006) (adopting Bobby R. standard); Neosho R-V School Dist. v. Clark, 315 F.3d 1022, 1027 (8th Cir.2003) (citing Bobby R. with approval); Schoenbach v. District of Columbia, 309 F.Supp.2d 71, 83 n. 10 (D.D.C.2004) (citing Bobby R. standard as basis for stating that a failure to implement is not a per se violation of the IDEA). The Bobby R. standard makes clear that merely failing to implement some de minimis component or components of an IEP does not constitute the denial of a FAPE. Rather, for a failure to be legally significant (ie. material), the parents must show “the school board or other authorities failed to implement substantial or significant provisions of the IEP.” Bobby R., 200 F.3d at 349. However, the Fifth Circuit qualified its standard by stating in a footnote that the inquiry into what constitutes a “substantial or significant provision” requires both looking ex ante and ex post to determine whether, notwithstanding the alleged failures to implement the IEP, the child nevertheless received educational benefit. Id. “Thus, one factor to consider under an ex post analysis would be whether the IEP services that were provided actually conferred an educational benefit.” Id. at n. 2 (emphasis added). In Bobby R., the LEA failed to provide the student with a speech therapist for a substantial portion of the 1994-1995 school year, and failed to provide him with a special pedagogic method for dyslexic students including highlighted and modified texts, taped, lectures, and an alphabetic phonics program for two months of the 1995-1996 school year, all things that had been promised in the student’s IEPs. However, the court found that “the significant provisions of [the student’s] IEP were implemented, and, as a result, he received an educational benefit.” Id. at 349. In Manalansan, the IEPs of the student required that he be supervised at all times because his disabilities (cerebral palsy, hydrocephalus, and a seizure disorder) affected his balance, mobility and motor skills. 2001 WL 939699 at *1. However, no aide was provided for the first five days of the school year; and, by February 15th, the aide had been absent for 15 school days, late for 35 days, and frequently left early. Id. at *2. At one point, the student was knocked over in the hall by a group of boys, necessitating surgery, and even then no aide was provided when he returned. The court found that the presence of the aide was a substantial and material provision in the IEP because “the aide provides assistance for all classroom activities and makes it possible for him to be maintained in the general educational setting.” Id. at *11-12. In this matter, the parents allege that HOPS failed to implement the 2004 IEP in three respects: (1) while the 2004 IEP included a referral for an Oral Motor Assessment, that assessment was not timely done, and the recommendations made in the assessment were never implemented; (2) while the use of the discrete trial method was promised in the accommodations section of the 2004 IEP (as part of the settlement agreement), the discrete trial method was inadequately implemented by an undertrained education aide; and (3) although the 2004 IEP and HOPS policy encouraged parental involvement in their child’s education, including visiting the classroom, HOPS deprived the parents of this ability when HOPS prevented the parents from video taping JP’s speech therapy class and, after catching Mrs. P. video taping JP on the Rural Point playground without the permission of HOPS, partially banned the parents from coming on Rural Point’s campus without permission. As discussed below, HOPS argues that HOPS either properly implemented the provisions as they were stated in the IEP, or the failure to do so was either justified or immaterial to JP’s progress. B. Oral Motor Skills Assessment Before the 2004-2005 school year, the parents wanted HOPS to conduct an oral motor skills assessment on JP. In a document entitled “Prior Written Notice” in the August 2004 IEP, under the category labeled “Description of any other factors that are relevant to HCPS’s proposal or refusal,” the document states “[rjefer [JP] for further testing to assess oral motor and ability to participate in PE.” HOPS did not make the agreed upon referral. On October 5, 2004, Mrs. P. wrote Martha Thompson, the head of special education for several HOPS schools including Rural Point, to convey Mrs. P.’s concerns that JP was demonstrating much more aggressive, disruptive behavior in school, had regressed behaviorally, and wanted some behavioral testing done so an intervention plan could be implemented. The email also states that Mrs. P. hoped that the speech therapists were moving ahead with oral motor skills testing. The IEP team met on October 14, 2004 to discuss JP’s behavioral situation and to work on an intervention plan. At that time, they briefly discussed the oral motor skills issues. Lori Levy, one of JP’s two speech therapist at Rural Point, testified that an oral motor assessment assesses one’s physical capacity to articulate words. Levy stated that because, at the beginning of the school year, JP was still adjusting to the new school environment and because Rural Point’s goal was to increase his speech output, the speech therapist, Levy and Debbie Augustine, agreed that an oral motor assessment would not provide much useful information at that point in the year. Notes taken by Debbie Augustine from the October 14 meeting show that the IEP team had decided that an “oral motor assessment was not necessary @ this time as the focus is on speech/lang output.” (HCPS-12) On October 20, 2004 the team held another IEP meeting. The team did not discuss the oral motor skills testing apparently because, as Levy testified, HOPS personnel believed the issue had been resolved. However, afterwards, the parents once again requested in writing that the motor skills testing be conducted. Only after the parents submitted the report of JP’s private speech therapist, who recommended that JP’s oral motor skills be assessed, did HOPS initiate the assessment. Thus, on October 28, 2004, three months after stating that JP would be referred, HOPS finally referred JP for that assessment. Augustine and Levy conducted the test over eight sessions on November 4, 8, 9, 10, 15, 16, 19, and 20, 2004. They concluded that JP’s oral skills were basically normal except that he had some weakness in his tongue and jaw instability. (See HCPS-37, p. 2.) Although they recommended exercises for these impairments, they also concluded that exercises to enhance oral motor skills would have minimal impact on improving his speech and language because JP lacked the ability to self-monitor. Testimony demonstrated that self-monitoring is the ability to hear one’s self mispronouncing words and make appropriate corrections. Many autistic children initially lack this ability. Augustine and Levy recommended that JP’s classroom teachers implement the exercises later in the year. The record contains only an undated copy of the Oral Motor Assessment, and so it is unclear when it was completed. However, the parents did not receive it until early March 2005. On March 9, 2005, the IEP team agreed that the IEP would be amended to implement the exercises. However, although the IEP team met once again before the June 16, 2005 meeting, the exercises were • never implemented in the IEP or JP’s curricm lum. The failure to implement these exercises does not alone constitute a failure to implement a substantial or significant provision of the IEP. The August 2004 IEP only included a promise to refer JP for oral motor assessment. That assessment began in early November 2004, only two months after JP commenced at Rural Point, and evaluation was completed on November 22, 2005. While this delay is de minimis, Rural Point’s failure to provide the parents with the assessment until March 2005 is of greater concern. However, although HOPS never followed through with its March 9, 2005 proposal to implement accommodations and objectives related to the oral motor skills assessment into JP’s IEP (HCPS-66), the mouth exercises were nót a substantial provision of the IEP because JP was found to have basically normal oral motor skills, and bfecause the Rural Point speech pathologists believed that JP would derive little benefit from the exercises until he learned to self-monitor. Given the deference that must be accorded to the reasoned opinions of professional educators, M.M., 303 F.3d at 533 (quoting Springer v. Fairfax Cty. Schl. Bd., 134 F.3d 659, 663 (4th Cir.1998)), the Court finds that the delay in the assessment of JP’s oral motor skills and its failure to implement the mouth exercises was not material. C. Discrete Trial Method The parents also allege that HOPS promised but failed properly to implement the use of the discrete trial method. The record demonstrates that discrete trial method is central to the ABA instructional method and tracks a child’s progress by recording data that chronicles a student’s performance on each discrete component of the task. One discrete trial consists of posing the task to the child, providing prompting and fading if needed, and reinforcing the child if the child succeeds. The nature of the child’s response- — correct, incorrect, prompted — is recorded on data sheets, which are kept routinely and in standardized form. Even the type of prompt used — full physical, part physical, point, gestural, verbal — is recorded. (See HCPS2-4 for examples of the discrete trial data sheets.) After a certain time period, the instructor graphs the data to assess the child’s progress towards a particular goal. The use of standardized data collection methods enables graphing, whereas non-standardized data cannot be graphed. Janet Lachow-sky, the parents’ expert in ABA therapy, testified that “if you don’t graph, you’re not doing ABA.” (9/29TR.-29.) The accommodations section of JP’s IEP includes “direct one-on-one instruction to include opportunities for the discrete trials where appropriate.” (HCPS-3, p. 24.) It goes on to state that JP will have a “[t]rained instructional assistant to support J[P]’ programs. Training will entail methods such as repetition, data collection, step by step methods that is [sic] proven to work with children with autism. HCPS will arrange for the aide to receive training from a Certified Behavior Analyst from a program such as the Faison School or a comparable program....” (Id.) Clarifications attached to the IEP state that: 1. [JP] will receive support from a one-to-one instructional aid who receives training in methods to work with children with autism. HCPS will arrange for the aide to receive training from- a Certified Behavior Analyst from a program such as the Faison School or a- comparable program in Fredericks-burg with which Hanover County Public Schools is already conducting similar training sessions. 4. [JP] will receive academic instruction-in a self-contained setting. The setting will include opportunities for [JP] to receive discrete trials when and where the instructional personnel deem appropriate all, of course, designed to meet [JP’s] individual educational needs' .... (HCPS-3, p. 29b.) These clarifications were part of the settlement agreement that became part of the 2004 IEP. From the parties filings and the parents’ testimony, it is clear that the parties have very different views of what these provisions promised JP. HCPS states that only the opportunity for discrete trials, to be implemented at the discretion of JP’s instructors, was to be provided to JP. HCPS focuses on the “where and when the instructional personnel deem appropriate” language in the provisions and insists that HCPS retained discretion on when and where to implement discrete trial technique. The parents argue that these provisions directed HCPS to provide JP with ABA style data collection. Discrete trial method is a key component of ABA therapy, but it is not the only key component of ABA therapy. However, the record demonstrates that discrete trial method is primarily used in ABA therapy. Certainly, the fact that the provisions state that the aide will be trained by, a Certified Behavior Analyst from a program such as the Faison School, which is a speciality school for children with autism that uses ABA therapy, confirms that the purpose of the discrete trials would be to track JP’s progress in the same manner as used in ABA therapy. While at Spiritos, JP had received ABA therapy with much success. When the parents agreed to return JP to HCPS, they wanted HCPS to provide JP with a program that would best duplicate the Spiritos program’s success. Thus, clearly the intent of the parents in drafting the clarifications was to provide JP with discrete trial method, as used in ABA therapy. Considering the facts leading to the discrete trial method provision and the record as a whole, the Court finds that it was the obligation of HCPS to provide an aide trained in that method and to make informed, good faith assessments as to when the method was to be used. Further, considering JP’s success at Spiritos using ABA and the parents decision to return JP to HCPS on the condition that HCPS make efforts to emulate the methods used there, the Court finds that the discrete trial method provision was a significant provision in the 2004 IEP. Mr. P. testified that the parents requested at least ten times to see the discrete trial data, but that HCPS never provided it. Mr. P. testified that he wanted to see the data to be able to assess the progress, or lack thereof, his son was actually making at Rural Point under the 2004 IEP. Finally, after months of frustrated requests, the parents received the data in June 2005, after they had filed their due process complaint. Had discrete trial data been recorded properly and consistently in accordance with proper ABA standards, the data would have been very helpful in tracking JP’s educational progress. The record permits the reasonable inference that more specific and accurate data on JP’s educational development would have enabled more specific and accurate tailoring of JP’s curriculum and goals, which likely would have led to greater educational gains by JP. Thus, if discrete trials had been implemented for each, or at least most, of JP’s goals, the discrete trial technique would certainly have been a substantial and significant component of JP’s IEP. The discrete trial provision clearly grants significant leeway to HCPS to implement “discrete trials when and where the instructional personnel deem appropriate.” (Id.) But, that leeway does not afford HCPS the discretion not to employ the discrete trial method at all, or to do so ineffectively when it was employed. With this in mind, it must be determined if HCPS lived up to its promises. Consistent with the IEP, HCPS provided JP with a one-on-one instructional aide and had the aide attend a few training sessions at the Faison School in discrete trial technique. However, the aide only received six days of training which, according to all witnesses who were knowledgeable on the subject, was insufficient to be able to competently implement the discrete trial method. No witness for HCPS testified to the contrary. The record shows that HCPS attempted to implement the discrete trial method. That, of course, shows that HCPS decided it was appropriate to do so. However, a comparison of the discrete trial data sheets with the testimony about how they are to be prepared demonstrates that they are woefully inadequate. Janet Lachowsky, the parents’ ABA expert, testified that the data that was collected by HCPS was incorrectly done under ABA standards, and that it was useless in assessing JP’s progress. The data, as presented in HCPS’s exhibit, was taken sporadically as opposed to regularly, and the tasks that were given to JP are not recorded on the sheets. Consequently, there is no way to compare over time JP’s progress on any one task. (See HCPS2-4.) On the record as a whole, the Court finds that HCPS did not satisfy its obligation under the IEP’s discrete trial method provision. Qualitatively, its efforts were of no value because the data generated from the discrete trials that were done is sporadic, not properly recorded, not graphed, and HCPS appears not to have used the data in educating JP. Indeed, it appears to only have used the data as an exhibit supporting its case in the due process hearing. As previously explained, the discrete trial method provision of the 2004 IEP was a significant one and the breach of its terms was a substantial and material failure to implement the IEP because it deprived HCPS of the ability to use the method in assessing JP’s performance under the IEP and in revisiting JP’s curriculum consistent with the results of his efforts and progress. D. Parental Participation In Count VI of the parents’ Complaint, the parents allege that HCPS denied the parents’ a meaningful opportunity to participate in their son’s education in violation of HCPS policy and § 1400(c)(4)(B) of the IDEA. While the Complaint frames this issue as an actionable violation of the IDEA, later briefing frames the issue as an actionable failure to implement the 2004 IEP. As agreed upon by the parents at oral argument, the Court will treat this issue as part of the parents’ failure to implement claim, which go toward proving their argument that the June 2005 IEP was inappropriate. In December 2004, Mrs. P. sought to video tape JP in his speech therapy sessions so that Mrs. P. could implement the teacher’s techniques at home. HCPS denied the request stating that, although HCPS encouraged parents to observe their children at school and participate in the child’s education, HCPS policy does not “contemplate parents visiting for the purpose of videotaping their child in the school setting.” (HCPS-45.) While HCPS invited Mrs. P. to come in to discuss JP’s instruction, HCPS believed that video taping would be “an unnecessary intrusion for our staff.” (HCPS-45.) However, HCPS presented no evidence showing that there was an antecedent written or oral policy that prohibited video taping educational sessions of HCPS students, disabled or otherwise. Notwithstanding HCPS’s December letter, on May 12, 2005, Mrs. P. stood outside the Rural Point playground and videotaped JP playing on the playground. In response, HCPS wrote a letter to the parents stating that this conduct was in violation of both HCPS policy and the December letter. HCPS prohibited the parents from coming on Rural Point’s campus except if given prior permission, to pick up and drop off JP, for parent-teacher conferences, medical emergencies, or events generally open to the school community. (HCPS-85.) The parents allege that these actions violated their right to have meaningful participation in JP’s education. At the due process hearing, both parents testified that they felt their ability to meaningfully participate in JP’s education had been restricted, and they felt they could not continue an amicable education relationship with Rural Point if the prohibition remained. In their Complaint, the parents cite the IDEA to support their argument that the denial of parental participation in the education of a disabled child can constitute denial of a FAPE. The parents cite § 1400(c)(5)(B) of the IDEA, which is part of the Findings of Congress and states that educational outcomes for disabled students can be improved by ensuring “parents have meaningful opportunity to participate in the education of their children at school and at home.” Id. As a Finding of Congress, this provision does not create a substantive right. Instead, at most, it expresses a purpose of the statute. See Pennhurst v. Halderman, 451 U.S. 1, 19, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981) (finding that a provision in the nature of a congressional “Finding” of the “Developmentally Disabled Assistance and Bill of Rights Act” did not create a substantive right binding on the States). In addition, in support of their argument, the parents cite two cases: Hall v. Vance County Board of Education, 774 F.2d 629, 634 (4th Cir.1985), stating that “Rowley recognizes that parental participation is an important means of ensuring state compliance with the Act”, and CM v. Board of Education, 241 F.3d 374, 380 (4th Cir.2001), stating that “an equally important IDEA policy is to encourage parents to participate in the education of their disabled children and to provide them with the procedural tools to enforce the mandate of the Act.” While parental participation is a required component of the IDEA, the cases cited are discussing the participation that must be afforded parents in the development and review of an IEP. Hall, 774 F.2d at 634; CM, 241 F.3d at 380; see e.g. § 1414 (IEP development); § 1414(d)(1)(B),(3) (opportunity to participate in IEP meetings), § 1415 (procedural safeguards and administrative and judicial review). Nowhere does the IDEA state that parents have a right to videotape their children at school, or even a right to be present in the classroom during instruction. Thus, the IDEA cannot be construed to support the parents’ denial of parental involvement claim. HCPS policy states that HCPS “invites and encourages parents to be involved closely with their students’ education, including making visits to classrooms to view the academic environment .... ” (Pl.’s Brief On The Failure To Implement An IEP As Denial of a FAPE at 4.) This is a discretionary policy that accords a privilege to parents, not a right; and that privilege may be circumscribed in the manner chosen by HCPS so long as HCPS does not violate any other existing right. Given the deference that courts are instructed to extend to public educators as to public education matters, M.M., 303 F.3d at 533, it is not this Court’s place to decide whether denying Mrs. P. the ability to videotape JP in his speech therapy session was permissible. Moreover, the record demonstrates that HCPS invited and permitted the parents to observe JP at least weekly at school, held eleven meetings with the parents over the course of the school year, sent numerous emails, letters, notes, used a communication log to report to the parents on JP’s progress, and held many telephone calls with the parents. This record evidence shows that HCPS afforded the parents ample input and opportunities to participate in JP’s education. Accordingly, the Court finds that HCPS’s actions did not constitute a material failure to implement the IEP nor a denial of a FAPE. III. Did JP Make Progress During The 2004-2005 Year? The parents make a multi-step argument for why the June 2005 IEP was not reasonably calculated to provide JP with educational benefit. As discussed above, they first argue that HCPS failed properly to implement the 2004 IEP. They then argue that JP did not make progress during the 2004-2005 school year at Rural Point under the 2004 IEP. In fact, they state that, at best, JP made no progress and, at worst, he regressed. They then correctly state that the proposed June 2005 IEP was the same as the 2004 IEP, except for the addition of three goals. Because, the parents argue, JP had made no progress under the 2004 IEP, JP could not reasonably be expected to make progress during the 2005-2006 school year under essentially the same program. As a related point, the parents showed that JP had made extensive progress during his year at Spiritos, and that they had bargained for, and received, promises that HCPS would educate JP, in significant part, by emulating the method that had succeeded at Spiritos. And, as discussed above, HCPS failed to implement certain significant provisions in the IEP. HCPS argues that, during the 2004-2005 school year, JP made progress that was sufficient to make the June 2005 IEP reasonably calculated to provide JP with educational benefit. The IDEA and the Rowley standard would be meaningless if, before a court would enforce rights guaranteed by the IDEA, the parents of a child who is regressing or not progressing are required to stand by and watch while a school system implements the same IEP that has provided no educational benefit in the preceding year. Accordingly, the Court believes, and the p