Reversed and remanded by published opinion. Judge WILLIAMS wrote the opinion, in which Judge LUTTIG and Judge MICHAEL joined.
OPINION
G, a child with autism in the Fort Bragg Dependent Schools (FBDS), appeals from a district court’s
I.
A.
A brief overview of the relevant law and administrative processes will put the subsequent discussion of the issues in this appeal in context. Under the IDEA, states that receive federal funds for education must provide to all students with disabilities a “free appropriate public education.” As defined in the IDEA, a “free appropriate public education” (FAPE) includes both instruction designed to suit the needs of the disabled child and “related services,” 20 U.S.C.A. § 1401(a)(18), which include “such developmental, corrective, and other supportive services ... as may be required to assist a child with a disability to benefit from special education,” § 1401(a)(17).
The primary vehicle for delivery of a FAPE to students with disabilities is the IEP. School districts are required under the IDEA to create an IEP for each student with a disability. IEPs are to be developed for all students with disabilities through cooperation between parents and school officials. 20 U.S.C.A. § 1414(a)(5). The IEP must state, inter alia, the student’s current educational status, annual goals for the student’s education, the special education services and other supplementary aids and services to be provided to the student, and the extent to which the student will be participating in mainstream classes. § 1401(a)(20).
The IDEA establishes a series of procedural safeguards “designed to ensure that the parents or guardian of a child with a disability are both notified of decisions affecting their child and given an opportunity to object to those decisions.” MM ex rel. DM v. Sch. Dist. of Greenville County,
G is a student in FBDS, a school system operаted by the United States Department of Defense. Supervision of Department of Defense schools is conducted by school boards elected by parents of students attending the schools, and ultimately by the Secretary of Defense. See 10 U.S.C.A. § 2164(d)(1) (providing that the Secretary of Defense “shall provide for the establishment of a school board for Department of Defense elementary and secondary schools established at each military installation under this section”); § 2164(d)(4)(A) (providing that “[a] school board elected for a school under this subsection may participate in the development and oversight of fiscal, personnel, and educational policies, procedures, and programs for the school, except that the Secretary may issue any directive that the Secretary considers necessary for the effective operation of the school or the entire school system”). Due proсess hearings and appeals are conducted for children in these schools by independent hearing officers (IHOs) appointed by the Director of the Directorate for the Defense Office of Hearings and Appeals (DOHA), and by the DOHA Appeal Board (the Appeal Board), respectively. 32 C.F.R. Pt. 80, App. C, ¶¶ B, D, F.
B.
G is the son of a Sergeant in the United States Air Force, stationed at Pope Air Force Base in Fayetteville, North Carolina. Born in April 1992, G began receiving special education in FBDS schools when he was approximately 2 1/2 years old. Because G is a child with autism and thus considered disabled under the IDEA, an IEP was developed for G when he first was enrolled at FBDS for the 1994-1995 school year,
Around the end of the 1995-1996 school yeаr, concerned that G did not appear to be progressing in the development of appropriate behaviors and skills, G’s mother attended a conference on the “Lovaas”
In May of 1996, FBDS proposed an IEP for G for the 1996-1997 school year closely resembling that in effect during the 1995-1996 school year. The proposed IEP did not include any Lovaas techniques or methods, and G’s mother rejected it. Instead, beginning in the summer of 1996, G’s parents took steps to have the Lovaas method provided for G in their home by private consultants certified in its implementation.
G’s parents kept him home from school at the beginning of the 1996-1997 school year, providing the complete Lovaas therapy at home. Because of his continued absence, FBDS administratively withdrew G from its student roster in October 1996. In November 1996, G’s parents wrote a letter to the school requesting that the school provide funding for G to continue receiving the complete Lovaas therapy at home at a cost of roughly $19,000 per year.
With no affirmative response forthcoming from FBDS, G’s parents continued to fund the complete Lovaas therapy in their home from private sources. Four-year-old G made significant progress in several areas, including verbally imitating some sounds, using eating utensils, and dressing himself. The district court found that “by the time [the IHO] made his ruling [in December 1997], G had progressed to the point where he should be gradually transitioning to a school classroom in the near future.” (J.A. at 163.) The record thus suggests that G’s educational progress from 1996 to 1998 was significant.
In April of 1997, in consultation with G’s mother, FBDS again proposed an IEP for G, this time for the 1997-1998 school year. G’s mother rejected the IEP because, although on paper it contained the elements — that is, the instructional methods and activities — of the complete Lovaas
C.
G’s parents first requested a due process hearing in a letter dated May 16, 1997.
After the due process hearing, the IHO concluded that during the 1994-1995, 1995-1996, and 1996-1997 school years, FBDS had failed to provide G a FAPE under the IDEA. Based on this finding, it ordered FBDS to reimburse G’s parents for the costs they had incurred since initiating funding of the complete Lovaas therapy in their home in the summer of 1996 (costs that the IHO determined to be slightly more than $30,000) and to fund the complete Lovaas therapy as it was being provided to G in his home through July 1999.
FBDS appealed to the Appeal Board, which found that the IHO had erred in granting relief relating to the 1994-1995 and 1995-1996 school years because G’s parents had not properly raised claims for relief relating to those years.
G’s parents then filed a civil action in the United States District Court for the Eastern District of North Carolina pursuant to 20 U.S.C.A. § 1415(e), arguing that the Appeal Board had erred in reducing the reimbursement award and eliminating the prospective Lovaas therapy required by the IHO’s order. They also added
II.
G argues on appeal that the district court erred in finding that the April 1997 IEP offered a FAPE; that the district court erred in denying him relief in the form of a prospective “compensatory education” award — including funding of the complete Lovaas therapy, involving a Lo-vaas-certified consultant — for FBDS’s failure to provide a FAPE during the 1994-1995 and 1995-1996 school years; that the district court erred in denying him an award of attorneys’ fees; and that the district court erred in denying prejudgment interest on the reimbursement award it granted him for the 1996-1997 school year.
Before turning to G’s particular arguments, a brief overview of our review standards in the IDEA context is warranted. In an action under the IDEA, “a reviewing court is obliged to conduct a modified de novo review, giving ‘due weight’ to the underlying administrative proceedings.” MM,
Where the administrative proceedings are two-tiered and “the Hearing Officer and Reviewing Officer have reached the same conclusion, a reviewing court is obliged to accord greater deference to their findings.” Id. (citing Combs v. Sch. Bd. of Rockingham County,
A. The April 1997 IEP
G first contends that the district court erred in finding that the April 1997
After reviewing the April 1997 IEP’s terms, the district court concluded that “[t]he school cured its deficiencies [in the May 1996 IEP] at the April 1997 IEP meeting and [in the] subsequently-issued plan ...,” and thus offered G a FAPE. (J.A. at 188.) In reaching this conclusion, the district court noted that the April 1997 IEP “reflected significant modifications and changes made to address concerns expressed by [G’s] mother after submission of the November 18, 1996 letter.” (J.A. at 183 (quoting Appeals Board opinion).) G asserts that the district court erred in employing the federal FAPE standard rather than the more stringent state standard, and further, assuming the district court applied the correct law, that it erred in finding the April 1997 IEP sufficient under the federal standard because FBDS did not have personnel with the training or experience necessary to implement the IEP.
1. Inapplicability of the North Carolina Standard
Under § 1401(a)(18)(B) a FAPE is defined as including “special education and related serviсes that ... meet the standards of the State educational agency....” 20 U.S.C.A. § 1401(a)(18)(B). The Supreme Court held in Rowley that
a court’s inquiry in suits brought under [§ 1414(e)(2) ] is twofold. First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits? If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more.
G argues that the North Carolina standard governs the services FBDS must pro
For a federal installation to be subject to state laws, there must be a "clear, unequivocal, federal statutory requirement" that the entity be so subject. Hancock v. Train,
As we haije noted, the definition of a FAPE under the IDEA requires that educational services "meet the standards of the State educational agency." 20 U.S.C.A. § 1401(a)(18)(B). A school run by a state or pоlitical subdivision of a state, then, must meet the standards established by the governing state educational agency, which in turn must meet or exceed the IDEA's minimum requirement. The statement that a FAPE consists of education and related services that meet the state agency's standard, however, does not explicitly address the situation here-a federal entity operating a school within the borders of a state. Under the IDEA, a state educational agency is the agency "primarily responsible for State supervision of public elementary and secondary schools. . . ." 20 U.S.C.A. § 1401(a)(17). But in the case of FBDS, there is no state agency responsible for "state supervision" of the schOols. Thus, G's central argument on this issue fails.
Moreover, the federal statutes relating to rights of children in Department of Defense schools, 10 U.S.C.A. § 2164(f)
We find that § 241(a)’s requirement of “comparability” to the maximum extent practicable and its reference to the rights of children with disabilities does not amount to the clear and unequivocal federal statutory requirement necessary to incorporate the FAPE standard of the state in which a Department of Defense school is located. Section 241(a) refers only to qualitative standards of schools in comparable communities, such as the “compensation, tenure, leave, hours of work, and other incidents of employment” of personnel hired to operate those schools, as areas in which Department of Defense schools should be comparable. It is thus a reasonable conclusion that § 241(a) was meant to compare schools operated by the Department of Defense to schools in comparable communities only in more general terms such as the conditions under which school personnel are employed to provide education to all, rather than only disabled, students. Section 2164(f)(2)’s reference to the rights of children with disabilities under § 241(a) may reasonably be read as indicating that § 2164(f)(1), in requiring that the IDEA’S protections be extended to children with disabilities in schools operated by the Department of Defense, does
In sum, G has not identified, nor have we found, any clear expression of congressional intent to subject federal entities to state FAPE standards in providing education under the IDEA. Statutory references to “substantive rights and procedural safeguards under the IDEA” do not unequivocally refer to FAPE standards enacted by the states, because as the Supreme Court made clear in Rowley, the IDEA itself contains a substantive FAPE standard. We conclude that the federal standard embodied in the IDEA, then, rather than North Carolina’s “full potential” standard, governs G’s IEPs.
2. Whether the April 1997 IEP Proposed a FAPE Under the IDEA Standard
Having determined that the federal standard applies, we must next address the question of whether G’s April 1997 IEP was “reasonably calculated” to provide G meaningful educational benefit. The parties agree that “on paper” — that is, in the instructional methods and activities proposed — the April 1997 IEP is reasonably calculated tо provide G educational benefit, but dispute whether FBDS is able to implement the IEP.
As we have noted, G asserts that FBDS is unable, without the involvement of a Lovaas-certified consultant, to implement the April 1997 IEP in a way that would provide him educational benefit. G contends that the April 1997 IEP is deficient because it does not propose that the necessary role of the Lovaas consultant will be filled by anyone with comparable training or experience. In support of this argument, G relies primarily on the finding of the IHO that “[t]he Lovaas Consultant is the heart of the Lovaas program.” (Appellant’s Br. at 29 (citing IHO decision, J.A. at 93).) In response, FBDS casts the substantive dispute with respect to the April 1997 IEP — whether or not a Lovaas-certified сonsultant was necessary to provide G a FAPE — as a dispute over the choice of educational methodology included in the IEP, an area ill-suited to judicial second-guessing.
After an extensive hearing, the IHO found that the April 1997 IEP was insufficient because “[njeither G’s current thera
the Lovaas consultant is the heart of the Lovaas program. “Lovaas” is not simply a methodology that any educator may employ with success, but rather, the experience, insight, and adaptability that the consultant brings “to the chair” are what is essential.
(J.A. at 93.)
The IHO’s decision was reversed by the Appeal Board, which found that the April 1997 IEP had proposed a FAPE. The Appeal Board reasoned that the IHO had given insufficient deference to the educational professionals who created the IEP, that the IHO “erred by comparing the April 1997 IEP to the Lovaas program,” and that the April 1997 IEP “was not merely a repetition of the May 1996 IEP,” which the IHO had already found inadequate. (J.A. at 126-27.) The district court affirmed the Appeal Board’s decision, finding that the April 1997 IEP proposed a FAPE because it “reflected significant modifications and changes made to express concerns expressed by [G’s] mother,” including an increase in the number of Pre-Academic Skills Goals listed. (J.A. at 182-83.) Neither the Appeal Board nor the district court considered evidence apart from that assessed in the first instance by the IHO.
While we ordinarily would owe deference to FBDS’s simple assertion that it is capable of implementing the April 1997 IEP, see MM ex rel. DM v. School Dist. of Greenville County,
Neither the Appeal Board nor the district court addressed FBDS’s ability to implement the April 1997 IEP as proposed (that is, absent a Lovaas-eertified consultant’s involvement) or provided an independent assessment of the educational benefit G would receive from that IEP. This is thus an unusual case in that, even after the conclusion of the administrative process and a trial of the issues in the district court, none of the decisions below reflect a thorough assessment of the evidence under the proper standard — that is, whether the April 1997 IEP, as proposed, was “reasonably calculated to provide educational benefit” to G. Having examined the record and the parties’ arguments
B. G’s Request for an Award of Compensatory Education
G next asserts that the district court erred in denying his request for an award of compensatory education based on FBDS’s failure to provide him a FAPE during the 1994-1996 school years. We conclude that the district court erred in rejecting G’s claim on the ground that his parents failed to object to his IEPs during 1994-1996, and accordingly reverse its judgment and remand for reconsideration of this issue.
In a section of its opinion entitled “Was a FAPE provided for school years 1994-1996?,” the district court addressed and rejected G’s claim that he was entitled to compensatory education relating to those school years.
Several of our sister circuits have concluded that an award of “compensatory education” — educational services ordered by the court to be provided prospectively to compensate for a past deficient program — may be “appropriate relief” under the IDEA. See, e.g., Ridgewood Bd. of Educ. v. N.E.,
The district court concluded that an award of compensatory education was inappropriate in this case because G’s parents failed to object during the 1994AL996 school years to the IEPs under which G was receiving educational services. As we have noted, the district court cited Combs as authority for this proposition, stating that “the IDEA should cannot be used as a sword to punish school districts unaware of parents’ concerns.” (J.A. at 179 (citing Combs,
We addressed in Combs whether a party “may recover attorneys’ fees as the prevailing party in an action brought under the attorneys’ fees provision of the [IDEA] against the School Board” where “the School Board’s actions were deemed to be in accordance with the [IDEA], but the School Board later made some changes that comported with [the plaintiffs] demands.” Id. at 357-58. Thus, our statement in Combs referred only to liability of the school district where its actions were in compliance with the IDEA, and is inapplicable here. Moreover, other courts have concluded that “failure to object to [a child’s] placement does not deprive him of the right to an appropriate education.” Ridgewood,
C.
G next asserts that the district court erred in determining that he was not a “prevailing party” and thus not entitled to an award of attorneys’ fees under the IDEA’S attorneys’ fees provision, 20 U.S.C.A. § 1415(e)(4)(B). The district court found that because the goal of G’s IDEA action had been to have the complete Lovaas therapy adopted by the school and the court had declined to compel the school to adopt the complete Lovaas therapy, G had not “prevailed” in the
The IDEA states in relevant part that
In any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents of a child with a disability who is the prevailing party.
§ 1415(e)(4)(B). The Supreme Court has noted that even an award of nominal damages makes a party the prevailing party. Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t of Health and Human Resources,
D.
Finally, G argues that the district court erred in refusing to grant him prejudgment interest on the reimbursement award. The district court determined, in ruling on a motion to reconsider its earlier judgment, that prejudgment interest should not be awarded because the plaintiffs were not the prevailing party, and that because the reimbursement award “did not make the plaintiffs whole under their theory of the case,” an award of prejudgment interest would not serve to complete an award that made G “almost whole.” (J.A. at 210.) A district court’s denial of an award of prejudgment interest is reviewed for abuse of discretion. Mary Helen Coal Corp. v. Hudson,
Because the district court’s asserted basis for its denial of prejudgment interest was an erroneous legal conclusion — that G was not a prevailing party— we conclude that the district court abused its discretion in denying the award of prejudgment interest. See United States v. Barile,
It is well established that “the absence of a statute [authorizing prejudgment interest] merely indicates that the question is governed by traditional judge-made principles.” City of Milwaukee v. Cement Division Nat’l Gypsum Co.,
III.
For the foregoing reasons, the judgment of the district court is reversed and remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED
Notes
. By consent of the parties, the district court referred this case to a magistrate judge to conduct all proceedings pursuant to Federal Rule of Civil Procedure 73 and 28 U.S.C.A. § 636. For clarity, the magistrate judge is referred to throughout this opinion as the district court.
. All of the relevant conduct in. this case took place before the enactment of Congress's amendments to the IDEA in 1997. Accordingly, the pre-amendment version of the IDEA is applicable here. Sellers v. School Bd. of Manassas,
. It is undisputed that G is a "child with a disability” within the meaning of 20 U.S.C.A § 1401(a)(1).
. Under the current version of the IDEA, parents are part of an IEP team which creates the IEP for a student. The IEP team also includes a representative of the school district, the child's teacher, and where appropriate, the child himself. 20 U.S.C.A. § 1414(d)(1)(B) (West 2000).
. The educational plan developed for G covering the 1994-1995 school year was actually an “Individualized Family Service Plan” (IFSP) because he was not yet three years old, the age at which the IDEA calls for lEPs to be developed for students with disabilities. See 20 U.S.C.A. § 1477(a)-(d). An IFSP is a plan of the services to be provided an infant or toddler with a disability and is thus very similar to an IEP. Id. The procedures for development and implementation of an IFSP, as well as the procedural safeguards guaranteeing parents’ rights, are likewise very similar to those relating to an IEP. Accordingly, we will for simplicity’s sakе refer to the 1994-1995 IFSP as an IEP.
. The Lovaas method is a methodology for the education of children with autism developed by Dr. O. Ivar Lovaas at UCLA. The Lovaas method "involves breaking down activities into discrete tasks and rewarding a child’s accomplishments.” MM ex rel. DM v. School District of Greenville County,
G’s mother attended a conference on the Lovaas method at the recommendation of specialists in the "TEACHH” (Treatment and Education of Autistic and Related Communication-handicapped Children) program at the University of North Carolina, who had evaluated G when he was 2 1/2 pursuant to a referral from the Case Study Committee convened by FBDS to review G's educational needs. (J.A. at 83-84.) The TEACHH evaluation was performed at FBDS’s expense.
. The district court found, and the parties do not dispute, that a consultant must have "nine months of full-time internship plus two years of clinical site visits” to receive Lovaas certification. (J.A. at 163.) For ease of reference, the Lovaas program as provided to G in his home by his parents and aides in consultation with a Lovaas-certified consultant will be referred to in this opinion as "the complete Lovaas therapy.”
. While the formal request for a due process hearing was made in May 1997, the IHO, the Appeal Board, and the district court all found that G's parents’ complaints were first raised in their letter of November 1996.
. The Board’s conclusion that G had not raised claims relating to the 1994-1996 school years was apparently the result of its having been provided an incomplete version of G’s original complaint, which did contain claims relating to those years.
. FBDS has not appealеd the district court’s reimbursement award and makes no attempt to challenge the conclusion on which that award was based — to wit, that FBDS failed to provide G a FAPE during the 1996-1997 school year.
. The district court in an action brought under the IDEA "shall hear additional evidence at the request of a party.” 20 U.S.C.A. § 1415(i)(2)(B)(ii). If the district court hears and considers additional evidence, we review its findings of fact for clear error. MM,
. North Carolina General Statutes section 115C-106(a) states that it is
the policy of the State of North Carolina ... to ensure every child a fair and full opportunity to reach his full potential and that no child [with special needs] shall be excluded from service or education for any reason whatsoever.
N.C. Gen.Stat. § 115-106(a) (Lexis 1999) (emphasis added). We have interpreted this section as requiring more than the “free appropriate public education” required under federal law. See In re Conklin,
. Section 2164(f) states as follows:
(1) The Secretary shall provide
(A) In the case of children with disabilities aged 3 to 5, inclusive, all substantive rights, protections, and procedural safeguards (including due process procedures) available to children with disabilities aged 3 to 5, inclusive under [the IDEA]
(C) In the case of all other children with disabilities, all substantive rights, protections, and procedural safeguards (including due process procedures) available to children with disabilities under [the IDEA]. (2) Paragraph (1) may not be construed as diminishing for children with disabilities enrolled in day educational programs provided for under this section the extent of substantive rights, protections, and procedural safeguards that were available under section 6(a) of Public Law 81-874 (20 U.S.C.A. § 241(a)) to children with disabilities as of October 7, 1991.
10 TJ.S.C.A. § 2 164(f).
. As of October 7, 1991, 20 U.S.C.A. § 241(a) stated that where the Department of Defense operates a school, the Secretary of Defense or a designee shall
[t]o the maximum extent practicable ... take such action as may be necessary to ensure that the education provided pursuant to [the arrangement establishing the school] is comparable to free public education provided for children in comparable communities in the State.
20 U.S.C.A. § 241(a) (West 1992) (repealed in 1994). Despite its repeal, this section's exhortation to comparability continues to apply to schools operated by the Department of Defense by virtue of the explicit reference to it in§ 2164(f). See note 15, infra.
. Department of Defense regulation 32 C.F.R. § 80.3(p) defines a FAPE as "special education and related services ... [that] meet the requirements of this part" without any reference to state standards. The omission of any reference to state standards in this regulation is particularly conspicuous because § 80.3(p) otherwise mirrors the FAPE definition found in the IDEA itself; but whereas the IDEA defines a FAPE as special education and related services that meet "the standards of the state educational agency,” 20 U.S.C.A. § 1401(a)(18)(B), § 80.3(p) defines a FAPE as special education and related services that "meet the requirements of this part [32 C.F.R. Part 80],” 32 C.F.R. § 80.3(p) (emphasis added).
While another Department of Defense regulation, 32 C.F.R. § 68.4(e), states that certain standards for Department of Defense schools “must conform to the comparable state's regulatory guidelines” for education of students with disabilities, a regulation cannot itself satisfy a requirement that Congress speak clearly to a given question. See, e.g., EPA v. California ex rel. State Water Resources Control Bd..,
. We note also that § 241(a) refers to schools "in comparable communities in the State,” rather than simply "in the State.” In the case of a locally operated school, however, a FAPE is defined under the IDEA by the standard of the state educational agency — the standard does not vary by “community.” 20 U.S.C.A. § 1401(a)(18) (defining a FAPE as, inter alia, education and related services that "meet the standards of the State educational agency”). Thus § 241(a)'s exhortation to comparability would be an unusual method for Congress to have chosen if it meant to impose on the Department of Defense the obligation of complying with state FAPE standards.
. While the parties agree that the 1997 IEP is appropriate "on paper,” they disagree as to the necessity of a Lovaas-certified consultant's involvement in implementing the IEP. We have described this dispute as one over the "implementation” of the IEP, but it could also be described as a dispute over the IEP’s contents (i.e., the IEP's failure to call for a Lo-vaas-certified consultant’s involvement).
. As we have noted, the Appeal Board did not specifically address G’s arguments related to the 1994-1996 school years. See note 9, supra. The Appeal Board did, however, address the prospective relief ordered by the IHO, finding it insupportable. Specifically, the Appeal Board stated that that the prospective relief ordered by the IHO "usurp[ed] the authority and responsibility of [the IEP team] to periodically develop and review the Child's IEP” and "constituted an impermissible micro management of [FBDS].” (J.A. at 136.) Accordingly, the Board concluded that the IHO had abused his discretion and reversed his order of prospective relief.
. Neither the district court's conclusion nor FBDS’s "waiver” argument on appeal is predicated on a statute of limitations theory. and accordingly we have no occasion to address whether any such limitations period might apply.
. A district court exercising its discretion in awarding attorneys' fees must of course consider the award requested in light of the claims on which the party prevailed and the overall work performed by the attorney. Hensley v. Eckerhart,