UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1486

SE.H., individually and by and through his parents and next 

friends, J.H. and S.H.; J.H.; S.H.,

Plaintiffs - Appellants,

v.

BOARD OF EDUCATION OF ANNE ARUNDEL COUNTY PUBLIC SCHOOLS; 

MAMIE PERKINS, Interim Superintendent; MARY TILLAR, Director 

of Special Education; PATRICIA DEWITT, Coordinator of 

Special Services; WENDY CHERMAK, Section 504 Resource Pupil 

Personnel Worker,

Defendants - Appellees.

-------------------------

COUNCIL OF PARENT ATTORNEYS AND ADVOCATES,

Amicus Supporting Appellants.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. J. Frederick Motz, Senior District 

Judge. (1:14-cv-00558-JFM)

Argued: March 21, 2016 Decided: May 2, 2016

Before AGEE and THACKER, Circuit Judges, and Henry E. HUDSON, 

United States District Judge for the Eastern District of 

Virginia, sitting by designation.
2

Affirmed in part and remanded by unpublished per curiam opinion. 

ARGUED: Selene Almazan-Altobelli, SELENE ALMAZAN LAW, LLC, 

Silver Spring, Maryland, for Appellants. Manisha Sharad Kavadi, 

CARNEY, KELEHAN, BRESLER, BENNETT & SCHERR, LLP, Columbia, 

Maryland, for Appellees. ON BRIEF: Mark B. Martin, LAW OFFICES 

OF MARK B. MARTIN, P.A., Baltimore, Maryland, for Amicus Curiae.

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

Se.H., individually and by and through his parents and 

next friends S.H. and J.H. (collectively, “Appellants”),1 appeals 

the district court’s grant of summary judgment in favor of the 

Board of Education of Anne Arundel County Public Schools and 

four employees of the public school system (collectively, 

“AACPS” or “Appellees”). 

An Administrative Law Judge (“ALJ”) ruled the 

Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et 

seq. (“IDEA”), does not entitle Se.H., who was a first grader 

during the 2013-14 school year, to an individual trained in 

Cardiopulmonary Resuscitation (“CPR”) and the Heimlich maneuver 

to accompany him throughout the school day. The district court 

upheld this decision. Appellants contend the district court 

erroneously deferred to the ALJ’s IDEA decision, and also failed 

to address their claims under Section 504 of the Rehabilitation 

Act, 29 U.S.C. § 794(a) (“Section 504”), and Title II of the 

Americans with Disabilities Act, 42 U.S.C. § 12132 (“ADA”). 

We hold that the district court properly granted 

summary judgment in favor of Appellees on Appellants’ IDEA 

 1 To protect the identity of the child, this opinion refers 

to him and to his parents by their initials only. See MM ex 

rel. DM v. Sch. Dist. of Greenville Cty., 303 F.3d 523, 526 (4th 

Cir. 2002).
4

claims. However, the district court’s reasons for disposing of 

the Section 504 and ADA claims are unclear. Therefore, we 

remand to allow the district court to clarify the reasoning 

underlying its disposition of these claims.

I.

A.

The ALJ for the Maryland Office of Administrative 

Hearings (“OAH”) found the following facts, which are undisputed 

on appeal. Se.H. has been diagnosed with several medical 

conditions, including cerebral palsy; severe food allergies to 

wheat/gluten, barley, peanuts, and buckwheat; allergies to dust, 

pollen, mold, and smoke; asthma, including Baker’s Asthma (an 

allergic disease caused mainly by inhalation of flour); oral 

dysphasia (a swallowing disorder) and feeding difficulties; 

dysarthria (a weakening of speech-producing muscles); seizure 

disorder; postural kyphosis (an abnormal curve of the spine); 

and vision problems. At all relevant times, Se.H. was enrolled 

in Rippling Woods Elementary School (“Rippling Woods”), which is 

part of the AACPS System. 

 At Rippling Woods, Se.H. is assigned to a one-on-one 

aide (the “Aide”). He has an extensive Individualized Education 

Program (“IEP”) that provides for “instructional supports, 

physical and environmental supports, adult assistance or 

monitoring at all times, assistive technology, speech-language 
5

pathology services, physical therapy services, occupational 

therapy services, and vision services.” J.A. 58.2 Rippling 

Woods has implemented the IEP by carrying out the following 

measures, inter alia:

• To decrease the possibility of exposure to 

food allergens, at lunch time, Se.H. sits 

at the end of a table with other 

classmates, and his lunch area is marked 

off by a yellow stripe about two and onehalf feet from the end of the table. The

other pupils are not allowed to cross into 

Se.H.’s lunch area;

• To avoid exposing Se.H. to potential 

allergens, students in his class eat 

breakfast in the cafeteria rather than the 

classroom;

• The Aide assists Se.H. during lunch, and 

the speech-language pathologist developed 

a feeding protocol for use at mealtimes, 

with the goal that Se.H. will self-feed at 

a modified independent level;

• If anaphylaxis occurs, the first line of 

defense is an injection with an 

epinephrine auto-injector (“Epi-Pen”), 

which is kept in a pack on the back of 

Se.H.’s wheelchair, and all Rippling Woods

staff members have been trained to use the 

Epi-Pen;

• If Se.H. were to choke on food or a 

foreign object, the emergency plan is to 

call 911 and have trained staff perform 

the Heimlich maneuver; 

 2 Citations to the “J.A.” refer to the Joint Appendix 

filed by the parties in this appeal.
6

• If Se.H. goes into respiratory arrest and 

becomes unconscious, the emergency plan is 

to call 911 and have trained staff 

administer CPR;

• Rippling Woods has a four-page form that 

guides personnel through Se.H.’s abilities 

and needs while on field trips. It 

requires that Se.H. have adult supervision 

and assistance on such trips, but it does 

not require that the accompanying adult be 

trained in CPR and the Heimlich maneuver;

• Se.H. has a walkie-talkie attached to the 

back of his wheelchair that can 

communicate with other walkie-talkies 

located in the nursing office, principal’s 

office, and with the general and special 

education teachers;

• Rippling Woods has staff trained in both 

CPR and the Heimlich maneuver, including 

the school nurse (who is at the school 

half-time), the Licensed Practical Nurse

health assistant (who is at the school 

full-time), the physical education 

teacher, and the school-based speech 

pathologist. Three cafeteria workers also 

have training in the Heimlich maneuver. 

Nursing staff can reach the cafeteria in 

four seconds and Se.H.’s classroom in 18 

seconds. 

Se.H.’s parents are dissatisfied with the IEP, however, because 

it does not require that an individual trained in Heimlich and 

CPR is by Se.H.’s side at all times throughout the day.3

 3 Se.H. attended kindergarten at Rippling Woods during the 

2012-13 school year, and during that year, as well as 2013-14, 

he had no episodes of choking or anaphylaxis, did not require 

administration of the Heimlich maneuver or CPR, and had no 

episodes requiring a 911 call. Se.H. had not attended any field 

trips at the time of the ALJ’s hearing. 
7

To prepare for the 2013-14 school year, Se.H.’s IEP 

team held a meeting on March 4, 2013. It was at this meeting 

that his parents first expressed concern that a staff member 

trained in CPR and the Heimlich maneuver was not with Se.H. at 

all times. The team then held nine meetings between April 17 

and August 28, 2013, and his parents “continued to bring this 

issue up for discussion.” J.A. 62. AACPS rejected this request 

at every turn, explaining that they were only required to have 

trained personnel in the building, which they did. Even when 

the Anne Arundel County Health Department offered to train 

Se.H.’s Aide in CPR and Heimlich maneuver, Appellee Patricia 

DeWitt, AACPS Coordinator of Special Services, would not allow 

her to be trained because “[i]t would set a precedent and [the 

Aide] already ha[d] too much on her plate.” Id. at 73-74. 

DeWitt explained at the ALJ hearing that training the Aide would 

“[not be] an appropriate use of staff.” Id. at 74. 

Se.H.’s IEP for the 2013-14 school year was finalized 

on August 28, 2013, but his parents were not satisfied. They 

filed a due process complaint (the “Administrative Complaint”) 

with the OAH on September 10, 2013, claiming that AACPS failed 

to provide Se.H. with a free appropriate public education

(“FAPE”) as required by the IDEA. 
8

B.

In the Administrative Complaint, Appellants sought 

relief not only under the IDEA, but also under Section 504 and 

the ADA. Appellants requested the following relief: “CPR and 

Heimlich maneuver training for adult staff, including but not 

limited to [Se.H.’s] adult assistant and any other adults who 

work directly with [Se.H.] and are present throughout the day 

when exposure to known allergens or potential aspiration and 

asphyxiation are possible,” and also CPR and Heimlich maneuver 

training for those “who work directly with [Se.H.] and are 

available to attend field trips with [Se.H.].” J.A. 71.

On October 23, 2013, the ALJ determined that the 

Section 504 issues (and presumably, the ADA issues) raised in 

the Administrative Complaint should be dismissed for lack of 

jurisdiction. This determination was based on AACPS’s October 

15, 2013 letter to the OAH explaining that it no longer 

possessed the authority to hold Section 504 hearings. 

Therefore, the ALJ only considered whether AACPS “failed to 

provide [Se.H.] a [FAPE] in the least restrictive environment 

for the 2013-2014 school year” under the IDEA. J.A. 52.4

 4 The ALJ also addressed whether AACPS committed an IDEA

procedural violation by failing to explain in writing why AACPS 

declined to train the Aide. See 20 U.S.C. § 1415(b)(3). The ALJ

ultimately found no violation, and Appellants do not challenge 

this determination on appeal.
9

The ALJ held the IDEA administrative hearing on four 

separate days, stretching from late October to early December 

2013. Appellants presented seven witnesses, and AACPS presented 

four witnesses, three of which were also called by Appellants. 

The parties filed over 50 exhibits.

The ALJ rendered a decision on the IDEA claim on 

December 18, 2013, ultimately determining that the procedures in 

place at Rippling Woods satisfied the IDEA standards. 

Meanwhile, the parties engaged in protracted communications in 

an attempt to meet for an administrative hearing pursuant to 

Section 504, to no avail. 

Appellants filed the instant action in the District of 

Maryland on February 25, 2014. Counts I and II challenge the 

ALJ’s IDEA decision, alleging substantive and procedural IDEA 

violations.5 Counts III, IV, V, and IX allege Section 504 

violations only: intentional discrimination (III),

discrimination in AACPS’s policies and practices (IV), denial of 

reasonable accommodation (V), and failure to provide a FAPE

(IX). Counts VI and VII allege claims under both the ADA and 

Section 504: failure of AACPS to act against certain employees 

 5 Pursuant to the IDEA, “[a] party aggrieved by the decision 

of the state agency may bring a civil action in state or federal 

court.” E.L. ex rel. Lorsson v. Chapel Hill-Carrboro Bd. of 

Educ., 773 F.3d 509, 513 (4th Cir. 2014) (citing 20 U.S.C. 

§ 1415(i)(2)).
10

for discriminatory actions (VI), and retaliation (VII).6 And 

Count VIII alleges Appellees violated Title II of the ADA by 

excluding Se.H. from programs, services, and benefits by reason 

of his disabilities. 

Apart from attorney’s fees and costs, Appellants seek 

only the following equitable relief: an order requiring the Aide 

to be trained in Heimlich and CPR, and a declaratory judgment 

stating that AACPS’s Section 504 practices violate Section 504 

as applied to Se.H.7

Appellants filed a motion for partial summary judgment 

on only the IDEA claims and Section 504 discrimination claims. 

Appellees filed a cross motion for summary judgment on all 

counts. The district court granted Appellees’ motion and denied 

Appellants’ motion, explaining:

It is true that because of Se.H.’s physical 

condition, there is a greater risk he will 

need CPR or the administration of the 

Heimlich maneuver than other students. 

However, [AACPS] has in place reasonable 

procedures to assure that if Se.H. does need 

assistance, there are persons available who 

 6 Appellants also grounded these causes of action in 42 

U.S.C. § 1983, but they do not raise any issues with respect to 

§ 1983 in this appeal.

7 Appellants also seek “a declaratory judgment” stating the 

ALJ’s decision contained “mistakes of law that were flawed and 

were clearly erroneous.” J.A. 26. Because the possibility of 

this type of relief is inherent in the review process set forth 

in the IDEA, we decline to consider it a separate remedy.
11

will be able to help him. One certainly is 

sympathetic to Se.H. and his parents. 

However, reasonableness is something less 

than perfection, and, as found by the [ALJ], 

the measures that defendant has put in place 

provide adequate protection of Se.H.

J.A. 46-47. The district court mentioned Section 504 and the 

ADA8 only in the opening sentence of the memorandum, and in a 

footnote observed, “[T]he emergency plan that defendant has in 

place for Se.H. complies with applicable law.” J.A. 47 n.1 

(emphasis supplied). Appellants filed a timely notice of 

appeal.

II.

The IDEA Decision

We first address whether the district court erred in 

granting summary judgment to Appellees on Appellants’ IDEA 

claims.

A.

The IDEA requires that states receiving federal 

education funds provide a FAPE to all children with 

disabilities. See E.L. ex rel. Lorsson v. Chapel Hill-Carrboro 

Bd. of Educ., 773 F.3d 509, 513 (4th Cir. 2014) (citing 20 

U.S.C. § 1400(d)(1)(A)). Where an ALJ decides that a student’s 

IEP provides a FAPE, the party challenging the IEP “properly 

 8 The district court actually stated the action was brought 

under the “ADEA,” but we construe this as a typo. 
12

bears the burden of proof in showing that the [ALJ]’s decision 

was erroneous.” Barnett by Barnett v. Fairfax Cty. Sch. Bd., 

927 F.2d 146, 152 (4th Cir. 1991). 

A reviewing court “is obliged to conduct a modified de 

novo review” of the ALJ’s IDEA decision, “giving ‘due weight’ to 

the underlying administrative proceedings.” MM ex rel. DM v. 

Sch. Dist. of Greenville Cty., 303 F.3d 523, 530-31 (4th Cir. 

2002) (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. 

Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 206 (1982)). 

In this situation, “findings of fact made in administrative 

proceedings are considered to be prima facie correct, and if a 

reviewing court fails to adhere to them, it is obliged to 

explain why.” Id. at 531; see also J.P. ex rel. Peterson v. 

Cty. Sch. Bd. of Hanover Cty., Va., 516 F.3d 254, 259 (4th Cir. 

2008); Doyle v. Arlington Cty. Sch. Bd., 953 F.2d 100, 105 (4th 

Cir. 1991). Furthermore,

[w]hether a district court has accorded the 

proper “due weight” to the administrative 

proceedings is a question of law -- or at 

least a mixed question of law and fact -- to 

be reviewed de novo by an appellate court. 

In our review, we need not defer to factual 

recitations made by a district court from 

the administrative record, because that 

court stands in no better position than do 

we in reviewing the record. 

MM, 303 F.3d at 531.
13

If the administrative findings of fact are not 

“regularly made,” however, they are not entitled to deference. 

J.P., 516 F.3d at 259; see also Cty. Sch. Bd. of Henrico Cty., 

Va. v. Z.P., 399 F.3d 298, 305 (4th Cir. 2005) (“[F]actual 

findings made during the state administrative proceeding are 

entitled to a presumption of correctness, so long as the 

findings were regularly made.” (internal quotation marks 

omitted)). 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.” J.P., 516 F.3d at 259 (internal 

quotation marks omitted); see also Doyle, 953 F.2d at 105 (“[I]n 

deciding what is the due weight to be given an administrative 

decision under Rowley, we think a reviewing court should examine 

the way in which the state administrative authorities have 

arrived at their administrative decision and the methods 

employed.”). 

B.

Appellants contend the ALJ’s IDEA decision was not 

“regularly made” for the following reasons: (1) it was “not 

well-reasoned and nor [sic] supported by the record”; (2) it 

“failed to make determinations based upon findings of fact and 

current IDEA statutes and regulations” and instead characterized 

the issues as “policy” disputes; and (3) it erred in its 
14

analysis regarding “training” of school personnel. Appellants’ 

Br. 14-16. 

We first note that although Appellants mention that 

the ALJ’s “findings were not entitled to deference” and that the 

ALJ “failed to make [certain] determinations,” their opening 

brief does not specifically note which findings they challenge

or which “determinations” the ALJ failed to make. Appellants’ 

Br. 14. Therefore, Appellants have waived this particular 

issue. See Fed. R. App. P. 28(a)(8)(B) (“The appellant’s brief 

must contain . . . appellant’s contentions and the reasons for 

them, with citations to the authorities and parts of the record 

on which the appellant relies.”); see also Estate of Armstrong 

ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 898 n.6 

(4th Cir. 2016) (“Failure to present or argue assignments of 

error in opening appellate briefs constitutes a waiver of those 

issues[.]”). 

In any event, the ALJ’s proceedings were not “far from 

the accepted norm.” J.P., 516 F.3d at 259 (internal quotation 

marks omitted). First, the ALJ decision was well-reasoned and 

supported by the record. The ALJ heard testimony from numerous 

witnesses over four days and clearly reviewed meeting reports, 

health reports, educational documents, and IEPs. The ALJ 

credited the testimony of personnel who actually worked with 

Se.H. over Appellants’ expert, which is reasonable and 
15

appropriate. See A.B. ex rel. D.B. v. Lawson, 354 F.3d 315, 328 

(4th Cir. 2004) (“IDEA requires great deference to the views of 

the school system rather than those of even the most wellmeaning parent.”). We see no indication that the ALJ deviated 

from the “normal” process of soliciting evidence and hearing 

testimony. 

Second, Appellants’ reliance on the ALJ’s mention of 

“policy” disputes is a red herring. Appellants maintain that 

the ALJ relied on “policy” rather than “appl[ying] the 

requirements of the IDEA to the facts in their case.” 

Appellants’ Br. 17. In so arguing, Appellants extract isolated 

phrases out of context. 

The ALJ did state, “The dispute in this case is really 

about policy, not facts.” J.A. 71. However, the ALJ then 

expounded on this statement, explaining that according to the 

notes from the March 4, 2013 IEP meeting (when the parents 

raised their concerns for the first time), the parents had been 

in contact with the Maryland State Department of Education. 

Based on a conversation with personnel there, they believed that 

someone trained in the Heimlich maneuver and CPR was required to 

be in the room with Se.H. when he was eating. The ALJ found

that, in that March IEP meeting, the parents were referring to 

Maryland’s Technical Assistance Bulletin 28, which explained, 

“Training of personnel [for safety of students during mealtime] 
16

should include first aid, CPR, Heimlich, signs and symptoms of 

aspiration, and procedures specific to individual 

students/children.” Id. at 72 (emphasis supplied). Therefore, 

the ALJ’s statement about “policy” was merely a recognition that 

the dispute between the parents and AACPS was based in part on

interpretation of a state policy. 

The ALJ then mentioned “policy” again, stating: 

A review of [the evidence] might lead one to 

think that AACPS could have easily complied 

with the Parents’ request to forestall 

disagreement, and ultimately, litigation. 

However, as stated previously, this dispute 

is about policy, not facts. Whether AACPS 

could have provided the training that the 

Parents wanted is immaterial; the issue is 

whether the decision not to do so deprives 

the Student of a FAPE.

J.A. 74 (emphasis supplied). A reasonable reading of this 

passage is that an ALJ should not consider what an educational 

entity could have done; rather, it is required to look at 

whether that entity’s actions were appropriate under the IDEA. 

The ALJ in this case did just that. He applied the information 

from extensive testimony and numerous exhibits to the proper 

IDEA standards in rendering his decision.

Finally, Appellants’ argument regarding training is 

without merit. Appellants claim that the ALJ’s statement that 

“‘training that a school system decides to use . . . is solely 

within the purview of school officials’” was incorrect and 
17

“subsequently over ruled [sic]” by the enactment of 20 U.S.C. 

§ 1414(d)(1)(A). Appellants’ Br. 16 (quoting J.A. 77); see also

20 U.S.C. § 1414(d)(1)(A)(i)(IV) (An IEP should include “a 

statement of the program modifications or supports for school 

personnel [i.e., special training] that will be provided for the 

child.” (emphasis supplied)). 

But even if § 1414(d)(1)(A) “overruled” the concept 

upon which the ALJ relied, nothing in these provisions 

undermines the ALJ’s ultimate decision. The ALJ still analyzed 

whether AACPS’s decision to forego training Se.H.’s Aide 

deprived him of a FAPE. See J.A. 77-78 (“The evidence that such 

trained personnel would be of benefit to the Student is minimal, 

and [AACPS]’s evidence is convincing that it is not necessary, 

since trained personnel are always in the building and 

immediately available if an emergency occurs.”). As a result, 

any perceived error on the ALJ’s part was not materially 

erroneous. 

For these reasons, the district court was entitled to 

give the administrative decision “due weight.” We reject 

Appellants’ argument to the contrary.9

 9 Appellants fail to set forth a sufficient argument 

challenging the district court’s or ALJ’s determination that 

Se.H.’s IEP provides him with a FAPE. Therefore, they have also 

waived this issue on appeal. See Fed. R. App. Proc. 

28(a)(8)(B); Estate of Armstrong, 810 F.3d at 898 n.6. 
18

III.

Section 504 and ADA Claims

Appellants also contend the district court erred in 

granting summary judgment on their Section 504 and ADA claims. 

They maintain that the district court did not sufficiently 

address these claims and that genuine issues of material fact 

remain.

On March 31, 2015, the district court filed a 

memorandum decision (“Memorandum”), and entered an accompanying 

order (“Order”). At the end of the Memorandum, the district 

court stated, “A separate order is being entered herewith 

affirming the decision of the administrative law judge,” and the 

Order itself only purports to affirm “the order entered by the 

administrative law judge.” Id. at 47-48 (emphasis supplied). 

As explained above, the ALJ only decided the IDEA issue, did not 

address the ADA claims, and did not possess jurisdiction over 

the Section 504 claims. 

Although the Memorandum mentions the ADA and Section 

504, it does so only in the opening sentence, merely

acknowledging that Appellants’ action was “brought under” those 

statutes. J.A. 45. Further, whereas the Memorandum observes

that the IEP “complies with applicable law,” J.A. 47 n.1, this 

court has explained the “IDEA and the Rehabilitation Act are 

different statutes. Whereas IDEA affirmatively requires 
19

participating States to assure disabled children a free 

appropriate public education, [S]ection 504 . . . instead 

prohibits discrimination against disabled individuals,” Sellers 

by Sellers v. Sch. Bd. of City of Mannassas, Va., 141 F.3d 524, 

528 (4th Cir. 1998) (citation omitted)). 

Therefore, the basis for the district court’s decision 

on the ADA and Section 504 claims is not apparent. We believe 

the best course of action is to remand and allow the district 

court to clarify the reasoning underlying its disposition of 

Appellants’ Section 504 and ADA discrimination, reasonable 

accommodation, retaliation, and FAPE claims. See Jones v. 

Plaster, 57 F.3d 417, 421-22 (4th Cir. 1995) (remanding for 

further proceedings “in order for the district court to clarify 

its ruling”); see also Q Int’l Courier, Inc. v. Smoak, 441 F.3d 

214, 220 n.3 (4th Cir. 2006) (“Although we are not precluded 

from addressing [questions the district court did not reach], we 

deem it more appropriate to allow the district court to consider 

them . . . in the first instance on remand.”).

IV.

For the foregoing reasons, we affirm the district 

court with regard to its IDEA decision, and we remand for 

further proceedings consistent with this opinion.

AFFIRMED IN PART 

AND REMANDED