the Third Circuit has suggested that a district court "should accord somewhat less consideration" to the panel's ruling. Scott P., 62 F.3d at 529 n. 4.
The following facts are generally undisputed. Eric is a nine year old resident of the District who, during the 2001-2002 school year, attended second grade at Audubon Elementary School. The District has identified Eric as a student with a disability who is eligible for special education services under the IDEA because he is what has been denominated as "other health impaired." In June 1994, Eric was diagnosed with acute lymphoblastic leukemia. Following chemotherapy treatment and a bone marrow transplant, he developed "graft vs. host" disease. This disease required high-dose immunosuppressant therapy so that his body would not continue to reject the bone marrow transplant. As a result, he contracted bronchiolitis obliterans organizing pneumonia, a form of bronchitis that has narrowed the air passageways in his lungs, making it difficult for him to breathe. The treatment used to control his bronchitis has further suppressed his already fragile immune system. Because his immune system has been significantly compromised, Eric has received no vaccinations.
On doctor's recommendations, Eric must miss school when the risk of infection to him is high. Since he reached school age, he has missed all of kindergarten, a significant amount of first grade, and forty-six days of second grade.*fn2 Given the nature of his illness, it is difficult to predict with certainty how many school days Eric will miss during each school year.
In December 2000, Eric's parents first requested that the District evaluate him to determine his need for special education services. In July 2001, the District offered and his parents accepted an IEP for Eric that provided for, among other things, homebound instruction for one hour per day after he had missed three days of school in a row.*fn3 Only if he missed more than twenty school days in a row would his IEP team reconvene to determine a need for more extensive instruction in the home.
Because Eric has missed a significant number of school days, his social progress and maturity has lagged behind that of his peers. In response, the IEP identified a variety of goals designed to address his social and behavioral needs. These needs are at the heart of this dispute. Like the Hearing Officer, the Appeals Panel specifically noted that "[Eric's] needs are in the area of socialization, organization, appropriate classroom behavior, and interpersonal relationships." Special Education Opinion Number 1252 (June 13, 2002) at 1. Accordingly, Eric's July 2001 IEP established goals concerning his knowledge of school rules, his sensitivity toward the feelings of peers and his understanding of the strengths and limitations of others.
While the parties generally agree on Eric's need for social and behavioral improvement, they disagree on how to accomplish the objectives set forth in his IEP during the times when he is physically unable to attend school. The District contends that his needs can be met through face to face contact with a homebound instructor or through instruction in the home. The District has acknowledged, however, that some of his social and behavioral objectives cannot be implemented during periods of homebound instruction and would therefore be eliminated.*fn4 The plaintiffs contend that the key to Eric's social progress is a consistent exposure to a classroom setting. Homebound instruction by itself, they argue, cannot supply this consistency. They have therefore asked the District to make available to them the use of video teleconferencing equipment so that Eric can participate "virtually" in the classroom even when he cannot physically be present.
Eric's parents first requested the use of VTC equipment in December 2000. Although the parties discussed including VTC in the July 2001 IEP, the District ultimately refused because it believed a free appropriate public education could be provided without it. On September 25, 2001, the parents and the District nevertheless reached an agreement on the use of VTC for the 2001-02 academic year.*fn5 At no point, however, did the use of VTC become a part of Eric's 2001-02 IEP. Pursuant to the agreement, no other person is allowed in Eric's room when the VTC is in use.
Eric's use of VTC began in December 2001 for absences of two hours or longer. The administrative record reflects that VTC provides him with important opportunities for peer interaction and cooperative learning. He is able to participate in classroom activities and routines, interact with his teacher, and enjoy recess with other students. Furthermore, with the help of VTC, he has made friendships and maintained them better than he has in the past.
The use of VTC, however, has not been without problems for Eric, his classmates and his teacher. Some of his targeted social and behavioral conduct become worse when he is on VTC. He acts as if he is "on stage," gets off-task, breaks rules and engages in attention-seeking behaviors. This inappropriate demeanor interferes with Eric's peer relationships. Moreover, his teacher's ability to correct him through non-verbal cueing and other methods, has had only short term benefit. According to the testimony of Eric's teacher, who had first-hand knowledge of the effect of VTC on Eric and his classmates, VTC is disruptive to other students and the class. The hearing officer accepted this testimony.
In March 2002, the District conducted a Functional Behavioral Assessment ("FBA") of Eric. The FBA raised numerous social and behavioral concerns, including "focusing on tasks, following instructions, anger, rudeness to peers and adults, inappropriate peer interaction and attention seeking behavior." Decision of Special Education Hearing Officer (April 30, 2002) at 5. Many of these concerns are reflected in Eric's revised April 5, 2002 IEP, which has increased his social and behavioral objectives.*fn6 For example, the April IEP has identified the following behavioral needs: "socialization . . . inappropriate attention seeking, off-task behavior . . ., age appropriate socialization skills in interactive play, rudeness to others . . ., cooperative play, understanding feelings of others and respecting others space." Id. The IEP does not, however, provide for VTC.
Shortly after the April 2002 IEP was issued, two due process hearing sessions were held to address the issue of whether the District is legally required to provide Eric with VTC equipment as part of his IEP. As noted above, the due process Hearing Officer concluded that the use of VTC was necessary to ensure that Eric was receiving a free appropriate public education in the least restrictive environment. Accordingly, he ordered the District to: (1) include VTC in his IEP; (2) provide for VTC to be used during all periods of absence; and (3) provide training for staff, parents, students in the use of VTC. The Appeals Panel, however, reversed that decision. Among other relief, the parents request an order reinstating the Hearing Officer's decision in its entirety.
We turn first to plaintiffs' claim under the IDEA. The threshold issue is whether Eric's IEP, which does not provide for the use of VTC during his absences from school, is sufficient to ensure that Eric is receiving a free appropriate public education in the least restrictive educational environment. See Oberti, 995 F.2d at 1213-14. The plaintiffs first contend that the District has not demonstrated that Eric's IEP is appropriate because the services that it proposes do not permit Eric to realize fully his extensive social and behavioral objectives. They assert that VTC is necessary to fill this gap. Based on our review of the record in its entirety, giving due weight to the administrative proceedings, we disagree.
As noted above, the obligation to ensure a free appropriate public education to handicapped students requires a school district to provide an educational program that confers on the student a "meaningful" educational benefit. See T.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 577 (3d Cir. 2000) (citations omitted). This does not mean that a school district is required to "maximize the potential of handicapped children." Id. (citing Rowley, 458 U.S. at 197 n. 21). Rather, as the Third Circuit explained in Scott P., an educational program does not fall short of the free appropriate public education requirement simply because a better or optimal program may be available. See Scott P., 62 F.3d at 533-34.
Here, the plaintiffs and the District have agreed on an IEP with homebound instruction that will accrue at a rate of one hour per day beginning with the first day that Eric is absent from school. To the extent that Eric misses or is projected to miss twenty consecutive days, the IEP team is required to reconvene to determine a need for a change in placement or a revision to his IEP. The Hearing Officer determined that this use of homebound instruction "does not permit meaningful progress." Decision of Special Education Hearing Officer at 11. The Appeal's Panel concluded otherwise, holding that Eric can "learn the rules and appropriate behavior during homebound instruction [and] can practice them in a variety of appropriate ways, including with simulations, by role playing, in the classroom, on the playground, etc." Special Education Opinion No. 1252 at 2.
The District has acknowledged that some of the social objectives set forth in Eric's IEP cannot be implemented at all during the periods that he receives homebound instruction. This does not mean, however, that these or any of his goals will be overlooked and go unfulfilled. Although the parties cannot predict the number of days that Eric might miss in any given school year, the administrative record reflects that Eric attended school on seventy-five percent of the school days during second grade. Because most of his social needs implicate his behavior in the classroom and his interaction with his peers and teacher, we believe that he and the District have a significant opportunity to address these needs on the days when he is physically present in classroom. Certainly Eric's presence in school will permit him and the District to work diligently on the following objectives:
employ[ing] the use of a conversational tone without
more than 2 teacher prompts; work[ing] cooperatively
with peers to complete the task as evidenced by use of
appropriate tone . . .; demonstrat[ing] a respect for
classmate's personal space . . . and, when offering
constructive criticism about a peer's project . . .;
and demonstrat[ing] increased sensitivity towards the
feelings of others through the use of courteous
School District Ex. S-39 to the Admin. Record at 7, 9. Whether or not his IEP provides for an "optimum" level of service in all instances is not the issue. Instead, we must focus on whether the administrative record demonstrates by a preponderance of the evidence that the IEP is calculated to confer a meaningful educational benefit on him. We conclude that it is. Quite simply, this is all that the IDEA requires. See Scott P., 62 F.3d at 535. As the Supreme Court has explained, the IEP required under the IDEA is meant to be a "basic floor of opportunity." Rowley, 458 U.S. at 201; Scott P., 62 F.3d at 534 (citations omitted). We therefore agree with the Appeals Panel that Eric's IEP provides him with a free appropriate public education.
The plaintiffs also contend that Eric's IEP is deficient because homebound instruction without VTC is a more restrictive placement than homebound instruction with VTC. Under the IDEA, school districts also must ensure that a handicapped student is educated in the "least restrictive educational environment appropriate to [his or her] needs. . . ." Scott P., 62 F.3d at 534; see Oberti, 995 F.2d at 1213-14. The statute specifically instructs states to assure that:
[t]o the maximum extent appropriate, children with
disabilities . . . are educated with children who are
not disabled, and special classes, separate
schooling, or other removal of children with
disabilities from the regular educational environment
occurs only when the nature or severity of the
disability of a child is such that education in
regular classes with the use of supplementary aids and
services cannot be achieved satisfactorily.