Maureen Deal Phillip Deal, Parents, on Behalf of Zachary Deal v. Hamilton County Board of Education

OPINION

This case arises under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (“IDEA”), and corresponding Tennessee laws and rules. Plaintiffs-Appellants, Maureen and Phillip Deal (the “Deals”), bring this action for and on behalf of their autistic son, Zachary. Defendant-Appellee is the Board of Education of Hamilton County, Tennessee (the “School System”). Plaintiffs-Appellants appeal the decision of the district court reversing in part and affirming in part the decision of the administrative law judge (“ALJ”) who presided over the administrative hearing. Plaintiffs-Appellants assert that the School System failed to provide Zachary with a “free and appropriate public education” (“FAPE”) in Zachary’s “least restrictive environment” (“LRE”) and that they therefore are entitled to reimbursement from the School System for the education that they provided Zachary at their own expense. The ALJ found several procedural and substantive violations of the IDEA and ordered the School System to pay some of the reimbursement sought by the Deals. The district court, found no IDEA violations and reversed the reimbursement ordered by the ALJ. Based on the following analysis, the Court AFFIRMS in part and REVERSES in part.

I. BACKGROUND

A. Factual Background

In 1997, when Zachary was three years old, the School System and the Deals developed Zachary’s first “individualized education program” (“IEP”). 1 Pursuant to the terms of the IEP, Zachary attended a preschool ' comprehensive development class (“CDC”) at Ooltewah Elementary School. While Zachary was assigned to Ooltewah, his parents, in September 1997, began to teach Zachary outside of school using a program developed by the Center for Autism and Related Disorders (“CARD”). According to the ALJ, this program is patterned after a methodology for treating autistic children developed by Dr. Ivar Lovaas at the University of California at Los Angeles. 2 The CARD program consists of one-on-one applied behavioral analysis (“ABA”) that relies heavily *846 on extremely structured teaching and comprehensive data collection and analysis.

On May 11, 1998, an IEP team met to consider extended school year (“ESY”) services for Zachary. The Deals, convinced that Zachary was making exceptional progress because of the one-on-one ABA program they were funding in their home, requested that the School System fund a 40-hour per week home based ABA program for the summer, as well as provide for year-round speech therapy. The School System refused to fund the parents’ program and likewise refused to provide the Deals with data regarding the efficacy of the School System’s approach to teaching autistic children. Instead, the agreed upon IEP provided for ESY services consisting of three 45 minute speech therapy sessions per week.

On October 9,1998, an IEP meeting was held to develop Zachary’s 1998-1999 IEP. The 95-page IEP, dated October 15, 1998, provided, among other things, for 35 hours per week of special education instruction, with many explicit goals. 3 Zachary also was to receive related services, including physical therapy and speech therapy. The Deals filed a “minority report” requesting that the School System fund their private ABA program in the home. The School System convened additional IEP meetings that were attended by the Deals in November 1998, December 1998, February 1999, and March 1999 to discuss Zachary’s progress and the Deals’ concerns. During the 1998-1999 school year, Zachary attended the School System’s program only 16% of the time.

At a May 24, 1999, IEP meeting, the Deals requested an ESY program of 43 hours per week of one-on-one ABA therapy and 5 hours per week of speech therapy. The IEP team determined that it could not document any regression Zachary would suffer without ESY services due to his lack of attendance at the School System’s program, so the School System declined to offer any ESY services.

On August 20 and again on August 25, 1999, an IEP team met to develop an IEP for Zachary for the 1999-2000 school year. The School System proposed that Zachary would, in addition to his CDC classes, attend a regular kindergarten classroom three times per week for 15 minutes each. He would also have lunch with a regular kindergarten class. The time spent with the regular class would increase as Zachary was able to tolerate it. Zachary would have with him a classroom assistant familiar with and trained to meet his needs. The proposal included specific goals and objectives. Teaching methods would include one-on-one discrete trial teaching; the use of picture cues; incidental teaching to provide an opportunity for carry over and application of learned skills; continual use of functional communication techniques; activity-based instruction; the use of music, story telling, and reading; and other techniques. The proposal also provided for speech and language therapy for 30 minutes five times per week, occupational therapy two times per month, and physical therapy for 30 minutes once a week.

On September 2, 1999, Zachary began attending a private preschool, the Primrose School, at which his parents had enrolled him. Zachary attended a regular pre-K class at the Primrose School for 3 hours per day, 2 days per week, with a personal aide paid for by the Deals. On September 7, 1999, the Deals informed the School System of their rejection of the IEP in favor of the private program. The Deals’ disagreement with the IEP *847 stemmed from their belief that Zachary should spend more time in a regular education classroom, as well as their desire to have the School System pay for the CAED program or offer similar ABA therapy. On September 16, 1999, the Deals requested a due process hearing under the provisions of the IDEA. Zachary did not attend public school at all during the 1999-2000 school year.

On August 11, 2000, an IEP meeting was held to develop an IEP for Zachary for the 2000-2001 school year. The proposed IEP called for Zachary to be placed primarily in a regular education kindergarten class at Westview Elementary School. The IEP included specific goals and objectives and provided for various support services, including pre-teaching and re-teaching sessions. The full school day and week program included related services of speech therapy and occupational therapy. The Deals rejected the IEP and continued to insist that the School System pay for their private ABA program for Zachary. Zachary did attend Westview that year, but only part time.

B. Procedural History

The administrative hearing requested by the Deals on September 16,1999, began on March 15, 2000, and concluded on February 13, 2001. The hearing encompassed 27 full days of testimony from 20 fact and expert witnesses. The ALJ also reviewed tens of thousands of pages of exhibits, viewed several video tapes, and personally observed Zachary in a number of settings.

In an opinion and order dated August 20, 2001, the ALJ made explicit credibility findings as to all 20 witnesses and provided 191 findings of fact. He also announced the following legal conclusions:

(1) The School System violated the procedural requirements of the IDEA by predetermining, pursuant to an unofficial policy of refusing to consider “Lo-vaas style ABA,” that the School System’s extant program was appropriate for Zachary. 4

(2) The School System’s failure to have regular education teachers attend the IEP team meetings also constituted a procedural violation.

(3) These procedural violations themselves amounted to denial of a FAPE.

(4) The School System had substantively violated the IDEA by failing to provide a proven or even describable methodology for educating autistic children. 5

*848 (5) Axi additional substantive violation resulted from the School System’s failure to provide Zachary with 30 hours per week of the intensive Lovaas style ABA that had been proven to be effective for him. 6

(6) The School System also substantively violated the IDEA by failing to provide Zachary with ESY services in 1999.

(7) The Deals were not entitled to reimbursement for private evaluations of Zachary.

(8) The Deals were entitled to reimbursement for up to 30 hours per week of the home based ABA services they had provided to Zachary, and the School System was to continue to reimburse the Deals for such services until a properly constituted IEP team, which must include at least one expert in and advocate for Lovaas style ABA, had developed an IEP for Zachary that included at least 30 hours per week of Lovaas style ABA.

(9) The School System did not sufficiently consider the LRE requirement of the IDEA in developing Zachary’s 1999-2000 IEP, but the Deals nonetheless were not entitled to reimbursement for Zachary’s tuition at the Primrose School because they failed to provide the School System with the required statutory notice.

(10) The School System had mishandled its obligation to provide the related services of physical therapy, occupational therapy, and speech therapy to Zachary and therefore was required to reimburse the Deals for any out of pocket costs they had incurred in providing such related services to Zachary.

(11) The Deals have no right to veto competent providers of services called for in a properly constituted IEP.

(12) Zachary Deal was the prevailing party.

On October 1, 2001, the Deals initiated review of portions of the ALJ’s decision in the district court. They sought reimbursement of certain expenses that the ALJ had declined to award, as well as attorney’s fees for the administrative hearing. The School System filed a counterclaim seeking reversal of the ALJ’s determinations that the failure to offer Zachary a “Lovaas style” program violated Zachary’s right to a FAPE and that the Deals were entitled to reimbursement for privately obtained related services.

On May 30, 2002, the School System requested that the district court hear additional evidence pursuant to the IDEA’S “additional evidence” provision, 20 U.S.C. § 1415(i)(2)(B)(ii). By opinion and order dated August 16, 2002, the district court granted the School System’s request to discovery and/or submit testimony from 11 witnesses, including 4 expert witnesses who had not testified before the ALJ and who had had no dealings with the School System or Zachary until after the ALJ rendered his decision. The district court permitted discovery of the testimony of four additional witnesses who were able to provide knowledge of Zachary gained subsequent to the administrative hearing and three witnesses who had testified before *849 the ALJ, though it cautioned the School System that it would only hear evidence limited to the issue before the court-whether the IEP proposed for the 1999-2000 school year was reasonably calculated to lead to educational benefits. The School System also received permission to submit Zachary’s complete educational records as well as the complete records of Dr. Susan Speraw, the Deals’ expert.

After a series of nationwide depositions and substantial additional document discovery conducted by the School System, the “additional evidence” trial was held on January 23 and 24, 2003. The district court heard testimony from two School System lay witnesses and four expert witnesses and received 24 exhibits into evidence. The Deals did not offer any additional evidence, despite the district court having indicated that they would be permitted to do so.

In an opinion and order dated March 4, 2003, the district court reversed in part and affirmed in part the ALJ’s decision. The court ruled that there had been no procedural or substantive violations of the IDEA and that the Deals were not entitled to any reimbursement relief. The district court held that the ALJ had erred in exalting the Deals’ preferred educational methodology above other appropriate methods. This appeal followed. Plaintiffs-Appellants argue that the district court erred by (1) allowing and relying upon Defendant-Appellee’s additional evidence; (2) failing to take judicial notice of federal court filings challenging the credibility of one of Defendant-Appellee’s experts; (3) reversing those aspects of the ALJ’s decision that found violations of the IDEA and granted reimbursement to Plaintiffs-Appellants; and (4) awarding costs to Defendant-Appellee.

II. STANDARD OF REVIEW

In an IDEA action, the district court “(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(B). The Supreme Court has construed this provision to mean that an initial reviewing court should make an independent decision based on the preponderance of the evidence but also should give “due weight” to the determinations made during the state administrative process. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). Although reviewing courts must not “simply adopt the state administrative findings without an independent re-examination of the evidence,” Doe ex rel. Doe v. Metropolitan Nashville Public Schools, 133 F.3d 384, 387 (6th Cir.1998), neither may they “substitute their own notions of sound educational policy for those of the school authorities which they review,” Thomas v. Cincinnati Board of Education, 918 F.2d 618, 624 (6th Cir.1990) (quoting Rowley,. 458 U.S. at 206, 102 S.Ct. 3034). The amount, of weight due to administrative findings depends on whether the finding is based on educational expertise. McLaughlin v. Holt Pub. Sch. Bd. of Educ., 320 F.3d 663, 669 (6th Cir.2003). “Less weight is due to an agency’s determinations on matters for which educational expertise is not relevant because a federal court is just as well suited to evaluate the situation.” Id. “More weight, however, is due to an agency’s determinations on matters for which educational expertise is relevant.” Id.

According to this “modified- de novo” standard of review, “a district court *850 is required to make findings of fact based on a preponderance of the evidence contained in the complete record, while giving some deference to the fact findings of the administrative proceedings.” Knable ex rel. Enable v. Bexley City Sch. Dist., 238 F.3d 755, 764 (6th Cir.2001). This Court, in turn, applies a clearly erroneous standard of review to the district court’s findings of fact and a de novo standard of review to its conclusions of law. Id. Mixed questions of law and fact, including the question of whether a child was denied a FAPE, are reviewed de novo. Id. at 766 (citing Tucker v. Calloway County Bd. of Educ., 136 F.3d 495, 503 (6th Cir.1998), and W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 28, 960 F.2d 1479, 1484 (9th Cir.1992)). This Court also must accord due deference to the state administrative hearing officer’s decision. McLaughlin, 320 F.3d at 669.

A district court’s decision regarding additional evidence in an IDEA case will be reviewed for abuse of discretion. Kn able, 238 F.3d at 772 (citing Metro. Gov’t v. Cook, 915 F.2d 232, 234 (6th Cir.1990)). A district court’s refusal to take judicial notice likewise will be reviewed for abuse of discretion. Toth v. Grand Trunk R.R., 306 F.3d 335, 349 (6th Cir.2002). An award of costs to a prevailing party also is considered under an abuse of discretion standard. Jefferson v. Jefferson County Pub. Sch. Sys., 360 F.3d 583, 591 (6th Cir.2004).

III. DISCUSSION

A. Additional Evidence

This Court has taken an expansive view of the scope of additional evidence that may supplement the administrative record. See, e.g., Metro. Bd. of Pub. Educ., Metro. Gov’t v. Guest ex rel. Guest, 193 F.3d 457, 463 (6th Cir.1999); Cook, 915 F.2d at 234. This Court has declined to adopt the narrow position of other circuits “that additional evidence is admissible only in limited circumstances, such as to supplement or fill in the gaps in the evidence previously introduced.” Cook, 915 F.2d at 234 (rejecting central holding of Town of Burlington v. Dep’t of Educ., 736 F.2d 773 (1st Cir.1984), aff'd on other grounds, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985)). Rather, “ ‘[additional,’ in its ordinary usage, implies something that is added, or something that exists by way of addition. To ‘add’ means to join or unite; the limitation on what can be joined inherent in the term ‘supplement’ is not present in the term ‘add.’ ” Id. While the determination of which additional evidence to allow rests within the sound discretion of the district court, Enable, 238 F.3d at 772, the court should take care to limit additional evidence to what is necessary for consideration of whether the original IEP was reasonably calculated to afford some educational benefit. Guest, 193 F.3d at 463 (finding that the district court exceeded its jurisdiction to the extent it used additional evidence to rule upon issues beyond those presented to the ALJ).

Here, Plaintiffs-Appellants have not given this Court any basis for concluding that the district court abused its discretion in permitting (1) the testimony of four additional expert witnesses who addressed the Lovaas study and accepted principles for educating autistic students; (2) the testimony of two additional fact witnesses who had worked with Zachary in the 2001-2002 school year, limited in scope to the extent to which their observations were relevant to the challenged decisions for the 1999-2000 school year; or (3) the introduction of new documentary evidence, consisting of the curricula vitae of the expert witnesses who testified, records regarding Zachary’s educational progress, and the results of psychological evaluations conducted by certain experts. There is no *851 evidence, for example, that the district court used the additional evidence to go beyond the scope of the matters before the ALJ; indeed, the district court took great care to limit testimony to matters relevant to the 1999-2000 IEP.

Plaintiffs’ main argument seems to be that, under the Burlington factors, the allowance of so much additional evidence was simply unfair. This Court, however, has rejected the narrowness of the Burlington analysis, choosing instead to give great latitude to district courts, and has recognized that additional expert testimony, in particular, might be especially helpful to district courts. 7 Cook, 915 F.2d at 234. There is no prohibition, in either the statute or the case law of this Circuit, against the district court allowing even a large amount of additional evidence if it will add something to the administrative record or assist the court in deciding the issues before it. 8 See 20 U.S.C. § 1415(i)(2)(B) (stating that the district court “shall hear additional evidence at the request of a party”). This Court therefore AFFIRMS the district court’s allowance of additional evidence.

Plaintiffs-Appellants also contend that the district court failed to exercise its “gatekeeper” function under Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), by allowing allegedly unreliable expert testimony. In particular, Plaintiffs-Appellants attack the district court’s failure to exclude the “plainly erroneous” testimony of Dr. David Rostetter and the “after-the-fact” testimony of Dr. B.J. Freeman. Plaintiffs-Appellants provide no legal arguments, however, and instead argue facts going to the witnesses’ credibility: they contend that the district court gave undue weight to the testimony of Dr. Rostetter and, to a lesser extent, Dr. Freeman. But see Daubert, 509 U.S. at 596, 113 S.Ct. 2786 (“Vigorous cross-examination [and] presentation of contrary evidence ... are the traditional and appropriate means of attacking shaky but admissible evidence.”).

In Daubert, the Supreme Court held that district courts must act as “gatekeepers” to protect juries from misleading or unreliable expert testimony by assessing the reliability of the expert’s principles and methodologies used to reach the expert opinion or conclusion. Daubert, 509 U.S. at 589, 592-93, 113 S.Ct. 2786. Factors to be considered in assessing reliability include whether the expert’s theory may be tested or refuted, the degree of acceptance of the theory or technique within the relevant community, and whether the theory has been a subject of peer review or publication. Id. at 593-94, 113 S.Ct. 2786.

*852 The problems with Plaintiffs-Appellants’ argument are manifold. The “gatekeeper” doctrine was designed to protect juries and is largely irrelevant in the context of a bench trial. Furthermore, this Court is not in the business of dictating to district courts the amount of weight they must give to certain expert opinions. Plaintiffs-Appellants simply have not demonstrated either that the district court abused its discretion by hearing this testimony, General Electric Co. v. Joiner, 522 U.S. 136, 138-39, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997), or that any of the district court’s factual findings based upon these expert opinions were clearly erroneous, Enable, 238 F.3d at 764. 9 Even if this Court were to analyze the admissibility of Dr. Rostetter’s and Dr. Freeman’s testimony under the Daubert factors, the testimony readily would meet the threshold for admissibility. Dr. Rostetter is a nationally recognized expert in the field of IDEA compliance who has published and presented extensively in the field, who assisted in drafting the original IDEA regulations, and who has served as a court appointed and court approved expert in numerous IDEA cases throughout the country. With respect to Dr. Freeman, the mere fact that she was not involved in the case until after the ALJ’s decision was entered is not determinative on the issue of the admissibility of her testimony. See, e.g., Guest, 193 F.3d at 463 (finding after the fact evidence to be admissible in IDEA cases as long as it is helpful in determining the validity of the original IEP). In sum, this Court will not disturb the district court’s decision to admit the testimony of the School System’s experts.

B. Judicial Notice

Plaintiffs-Appellants sought to have the district court take judicial notice, pursuant to Federal Rule of Evidence 201, 10 of declarations filed by Dr. Rostetter in an unrelated California case that allegedly “strongly suggest that the positions Dr. Rostetter advances can turn on which party is paying his bill.” Defendant-Appellee argues that Plaintiffs-Appellants confuse a district court’s determination of a witness’s credibility with judicial notice of adjudicative facts.

In United States v. Bonds, 12 F.3d 540 (6th Cir.1993), this Court refused to take judicial notice of a National Research Committee report:

While defendants’ request that we merely take judicial notice of this report pur *853 suant to Federal Rules of Evidence 201(f) and 104(a) has a certain facial appeal, Federal Rule 201 permits a court to take judicial notice only of facts “not subject to reasonable dispute .... ” Fed.R.Evid. 201(b). There is no dispute that the [report] exists, but there is considerable dispute over the significance of its contents.

Bonds, 12 F.3d at 553 (footnotes omitted); see also United States v. Collier, 68 Fed.App. 676, 2003 U.S.App. LEXIS 13629, at *16 (6th Cir. July 2, 2003) (finding no error in district court’s refusal to take judicial notice of bankruptcy court judgment beyond acknowledgment that proceeding had occurred), cert. denied, 540 U.S. 1126, 124 S.Ct. 1094, 157 L.Ed.2d 927 (2004).

Here, too, there is no dispute that the California proceeding occurred or that the declarations in that case existed. The Deals, however, essentially were attempting to get the district court to take judicial notice of Dr. Rostetter’s lack of credibility, a fact that is very much in dispute. The proper use of the allegedly contradictory declarations was in cross-examination of Dr. Rostetter, and, indeed, Plaintiffs-Appellants did cross-examine Dr. Rostetter about the California litigation. There was no abuse of discretion in the district court’s refusal to take judicial notice of the declarations. That decision therefore is AFFIRMED.

C. Violations of the IDEA

1. Standards Under the IDEA

The purpose of the IDEA is to give children with disabilities a free appropriate public education designed to meet their unique needs. 11 Burilovich ex rel. Burilovich v. Bd. of Educ. of the Lincoln Consol. Sch., 208 F.3d 560, 565 (6th Cir.2000) (citing 20 U.S.C. §§ 1401(25), 1412). As part of providing a FAPE, school districts receiving funds under the IDEA are required to establish an IEP for each child with a disability. Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755, 762 (6th Cir.2001) (citing 20 U.S.C. § 1414(a)(5)). The IEP must “contain a specific statement of the child’s current performance levels, the child’s short-term and long-term goals, the educational and other services to be provided, and criteria for evaluating the child’s progress.” Id. at 763 (citing 20 U.S.C. § 1401(a)(20)).

There are two parts to a court’s inquiry in suits brought pursuant to the IDEA. First, the court must determine whether the school system has complied with the procedures set forth in the IDEA. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982); McLaughlin v. Holt Pub. Sch. Bd. of Educ., 320 F.3d 663, 669 (6th Cir.2003). Second, the court must assess whether the IEP developed through those procedures *854 was reasonably calculated to enable the child to receive educational benefits. Rowley, 458 U.S. at 206-07, 102 S.Ct. 3034; McLaughlin, 320 F.3d at 669. “If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more.” Rowley, 458 U.S. at 207, 102 S.Ct. 3034; accord Kings Local Sch. Dist., Bd. of Educ. v. Zelazny, 325 F.3d 724, 729 (6th Cir.2003). Parties challenging an IEP have the burden of proving by a preponderance of the evidence that the IEP devised by the school district is inappropriate. Zelazny, 325 F.3d at 729; Dong ex rel. Dong v. Bd. of Educ. of the Rochester Cmty. Sch., 197 F.3d 793, 799 (6th Cir.1999).

With regard to procedural matters, a court should “strictly review an IEP for procedural compliance,” although technical deviations will not render an IEP invalid. Dong, 197 F.3d at 800; see Cleveland Heights-Univ. Heights City Sch. Dist. v. Boss ex rel. Boss, 144 F.3d 391, 398 (6th Cir.1998) (noting that “minor technical violations may be excused”). A finding of procedural violations does not necessarily entitle appellants to relief. Enable, 238 F.3d at 764. Only if a procedural violation has resulted in substantive harm, and thus constitutes a denial of a FAPE, may relief be granted. Id. The Supreme Court has emphasized the importance Congress attached to the IDEA’S procedural safeguards: Rowley, 458 U.S. at 206, 102 S.Ct. 3034. “If the procedural requirements of the IDEA are met, greater deference is to be afforded to the district’s placement decision.” Dong, 197 F.3d at 800.

[T]he congressional emphasis upon full participation of concerned parties throughout the development of the IEP, as well as the requirements that state and local plans be submitted to the Secretary for approval, demonstrates the legislative conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.

As for substantive compliance, “[t]he ‘preponderance of the evidence’ language in the [IDEA] ‘is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.’ ” Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 624 (6th Cir.1990) (quoting Rowley, 458 U.S. at 206, 102 S.Ct. 3034). The Supreme Court has cautioned,

In assuring that the requirements of the Act have been met, courts must be careful to avoid imposing their view of preferable educational methods upon the States. The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child’s needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child.

Rowley, 458 U.S. at 207, 102 S.Ct. 3034 (footnote omitted). “Indeed, federal courts are generalists with no expertise in the educational needs of handicapped children and will benefit from the factfinding of a state agency, which is presumed to have expertise in the field.” Burilovich, 208 F.3d at 566.

The Supreme Court has spoken on the level of education that the states are required to provide to disabled children:

Implicit in the congressional purpose of providing access to a “free appropriate public education” is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child.... We therefore conclude that the “basic floor of opportunity” pro *855 vided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.

Rowley,