S.B. v. New York City Department of Education et al

Filing 35

MEMORANDUM AND ORDER granting 15 plaintiff's motion for summary judgment and denying 14 defendants' cross-motion for summary judgment. The decisions of the Impartial Hearing Officer and State Review Officer are reversed. Defendants ar e ordered to reimburse plaintiffs for C.B.s tuition at the JCSE for the 2012-2013 school year, minus any costs that have already been paid pursuant to 20 U.C.S. § 1415(j). Plaintiffs may submit their request for attorneys fees to the Court with proper documentation. Ordered by Judge I. Leo Glasser on 9/28/2017. (Kessler, Stanley)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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S.B. and S.B., Individually and on Behalf of C.B.
Plaintiffs,

MEMORANDUM AND ORDER
15-CV-1869

- against -

New York City Dep’t of Educ. et al.,
Defendants.
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GLASSER, Senior United States District Judge:

Plaintiffs S.B. and S.B. (individually, the “Mother” and “Father” and together, the
“Parents”) are the parents of C.B., an elementary school student with a speech and language
disability. They bring this action against the New York City Department of Education (“DOE”)
for violations of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et
seq., Section 504 of the Rehabilitation Act, and New York law, 8 N.Y. Comp. Codes R. & Regs.
(“NYCRR”) §§ 200.1 et seq. The Parents allege that the DOE failed to offer C.B. a free and
appropriate public education, and seek tuition reimbursement for her attendance in private school
for the 2012-2013 school year during which she was eight years old and in second grade. The
arents exhausted their administrative remedies before two separate administrative hearing
officers, both of whom held in favor of the DOE. Before the Court are the parties’ cross-motions
for summary judgment.

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GLOSSARY
12:1:1

A special education classroom with 12 students, one teacher and one
paraprofessional

C.B.

The student at issue in this case

CSE

Committee on Special Education

DOE

New York City Department of Education

FAPE

Free and appropriate public education

IDEA

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

IHO

Impartial Hearing Officer

IEP

Individual Education Program

JCSE

Jewish Center for Special Education

S.B. & S.B.

Plaintiffs and the parents of C.B.

SRO

State Review Officer
STATUTORY FRAMEWORK
The IDEA establishes a comprehensive program for providing federal funds to assist the

states in educating disabled children. In exchange for that federal assistance, the recipient state
is required to ensure that disabled students receive a “free appropriate public education that
emphasizes special education and related services designed to meet their unique needs.” 20
U.S.C. §§ 1400(d)(1)(A); 1412(a). A “free appropriate public education” (commonly referred to
as a “FAPE”) is defined as special education and related services that are “reasonably calculated
to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F.
ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017). Critically, the
special education program must be “tailored to meet the unique needs of a particular child.”
Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) citing Hendrick
Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 207 (1982).

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The law requires that at least annually, the needs and services of a disabled child be
described in an Individual Education Program (“IEP”). 20 U.S.C. § 1414(d). As the
“centerpiece” of the IDEA, “the IEP sets out the child's present educational performance,
establishes annual and short-term objectives for improvements in that performance, and
describes the specially designed instruction and services that will enable the child to meet those
objectives.” Honig v. Doe, 484 U.S. 305, 311 (1988); see also R.E. v. New York City Dept. of
Educ., 694 F.3d 167, 175 (2d Cir. 2012). In New York, IEPs are created by local Committees on
Special Education (“CSEs”). N.Y. Educ. Law § 4402(1)(b)(1). Each child’s CSE team must
conduct an IEP meeting at least annually to review the child’s progress and needs and to create a
new IEP for the upcoming year. 20 U.S.C. § 1414(d)(2)(A).
If dissatisfied with the IEP or the proposed placement, as here, a parent may choose to
enroll their child in a private school at their own financial risk, and later seek tuition
reimbursement from the DOE. To obtain reimbursement, the parent initiates an administrative
due process proceeding by filing a complaint setting forth all of their challenges to the IEP. 20
U.S.C. § 1415(b)(6). The parents may challenge “any matter relating to the identification,
evaluation, or educational placement of the child, or the provision of a free appropriate public
education.” Id. Such challenges are addressed in a due process hearing before an Impartial
Hearing Officer (“IHO”) at which the DOE has the burden of proof and persuasion. N.Y. Educ.
Law § 4404(1)(c); M.W. ex rel. S.W. v. N.Y. City Dep't of Educ., 725 F.3d 131, 135 (2d Cir.
2013). Either party may appeal the IHO’s decision to a State Review Officer (“SRO”), 20
U.S.C. § 1415(g)(1); see also N.Y. Educ. Law § 4404, and either party may then appeal the
SRO’s decision by initiating an action in state or federal court. 20 U.S.C. § 1415(i)(2)(A).

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FACTUAL BACKGROUND
The following facts are drawn from the administrative record and the parties’ Local Rule
56.1 Statements of Undisputed Facts. They are undisputed unless otherwise noted.
C.B.’s General Background
C.B. was born on July 11, 2004 and is currently thirteen years old. ECF 15-1, Plaintiff’s
Rule 56.1 Statement (“Pl. 56.1 St.”), at ¶ 1 n.2. At issue in this case is the 2012-2013 school
year, during which C.B. was eight years old and a second grade student. Id. at ¶ 2. C.B. has
been classified by the DOE as a student with a speech or language impairment who is eligible to
receive special education services under the IDEA. Id.; ECF 14-1, Defendants’ Rule 56.1
Statement (“Def. 56.1 St.”), at ¶ 3. From age four to six, she attended general education
programs in private schools and received supplemental services from the DOE, including
occupational therapy, speech and language therapy and a Special Education teacher. Pl. 56.1 St.
at ¶ 5.
The 2011-2012 IEP and School Year
The Student’s CSE team met on March 31, 2011. The DOE had failed to conduct an IEP
meeting for C.B. the prior two years and notified the Parents of the meeting the day before it
took place. Ex. B at pp. 3-4. 1 After finalizing the IEP, the DOE offered C.B. a placement in a
public school for the 2011-2012 school year, during which she was seven years old and in first
grade. Id. The Parents rejected the school placement for reasons that are disputed and irrelevant
to this case. Instead, they enrolled C.B. at the Jewish Center for Special Education (“JCSE”) for
the 2011-2012 school year, and initiated a due process proceeding challenging the IEP, and

1

Citations to exhibits (“Ex.”) and the transcript (“Tr.”) refer to the administrative record.
4

seeking reimbursement for the JCSE tuition. Pl. 56.1 St. at ¶ 8. While that proceeding was
pending, C.B. completed the 2011-2012 school year at the JCSE. 2
The 2012 Evaluations and Progress Reports
The CSE was due to re-convene for C.B.’s 2012 annual IEP meeting regarding the
upcoming 2012-2013 school year in March 2012. In anticipation of that meeting, the DOE sent
the Parents a notice on January 9, 2012 stating that the “student’s educational or related services
needs warrant a reevaluation (this includes improved academic achievement and functional
performance),” and that it needed “updated clinical informations [sic] for the annual review.”
Ex. 1. It also requested reports from C.B.’s current school that would provide “a summary of the
student’s present levels of performance in both Academic and Social/Behavioral areas.” Id.
There are five reports in the record regarding C.B. that pre-date the 2012 IEP meeting.
The JCSE created three progress reports (hereinafter, the “Progress Reports”): (1) an Academic
Progress Report dated February 9, 2012; (2) a Speech Progress Report dated February 2012; and
(3) an Occupational Therapy Update dated March 2011. 3 Def. 56.1 St. at ¶ 7; Exhs. 4, 5, 6. A
representative from the DOE, Melody Fuchs, conducted a one hour classroom observation of
C.B. at the JCSE on March 6, 2012 and summarized her findings in a classroom observation
report. Ex. 3; Pl. 56.1 St. at ¶¶ 12, 13. Finally, there was a psychoeducational report of C.B.

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The IHO issued a decision regarding the 2011-2012 school year on November 12, 2012. Ex. B.
The IHO held that the DOE’s failure to present a case in chief, and its failure to defend the IEP
and proposed school placement, constituted a “concession” that it had not offered C.B. a FAPE
for that school year. Id. at p. 11-12. The DOE was ordered to (1) reimburse the Parents for the
JCSE tuition for the 2011-2012 school year, (2) “immediately conduct a speech and language
evaluation and an occupational therapy evaluation of the student” and (3) “reconvene the CSE to
consider the results of those evaluations and any other relevant evaluations and/or information
received and produce a new IEP for the student.” Id. at p. 14.
3
The Occupational Therapy Update is dated March 2011, however Plaintiffs indicate that that
date is likely a typographical error and should actually be March 2012. Pl. 56.1 St. at ¶ 18 n. 4.
5

completed by a school psychologist dated March 6, 2011 (the “Psychoeducational Report”). Ex.
9. A brief summary of each report follows.
i.

The Academic Progress Report (created by the JCSE)

The Academic Progress Report describes C.B. as “sweet,” “well-behaved” and “wellliked,” but with “delays in her expressive and receptive language skills.” Ex. 4. It states that
C.B. has trouble following directions, completes tasks slowly and “struggles to retrieve words,
which impedes her ability to express her thoughts” coherently. Id. The report states that C.B.
identifies “several letters of the alphabet” and can write some letters properly. She can answer
“oral comprehension questions after listening to stories with 80% accuracy,” and can work
independently for 15 minutes. Id. She needs to develop phonological awareness, such as
rhyming and blending syllables. Id. In math, C.B. can complete two-digit addition problems,
simple subtraction problems and can count by fives and tens through one hundred. Id. at pp. 1-2.
The report notes a number of modifications and management tools that the teacher uses,
including (1) repetition, (2) multi-sensory techniques, such as hands-on activities and games, (3)
small group instruction, (4) motivational activities, (5) visual aids, and (6) presenting
information in “small chunks.” Id.
ii.

The Speech Progress Report (created by the JCSE)

According to the Speech Progress Report, C.B. has language delays “in the areas of
comprehension, use of age-appropriate vocabulary, and auditory processing of complex
directions and sentence structure.” Ex. 6. C.B. has difficulty following even simple directions,
particularly those with spatial terms, and struggles to express herself saliently. Id. She also
“demonstrates difficulty with pragmatic skills,” including a “lack of awareness and repair skills
when there is a communication breakdown,” in which case she “sits passively and does not

6

indicate lack of comprehension.” Id. This report emphasizes the following management
techniques: (1) sequencing cards and pictures, (2) direct instruction, (3) verbal cueing, and (4)
opportunities to practice various skills. Id.
iii.

The Occupational Therapy Update (created by the JCSE)

The Occupational Therapy Update explains that C.B. has “low postural tone,” “decreased
muscle strength” and “low endurance level,” which results in “difficulty performing fine motor,
prewriting and graphomotor skills.” Ex. 5. It describes her as a “sweet and friendly” child who
has “good attention span,” but has “difficulty following simple directions and processing
auditory information” and “poor problem solving skills.” Id. The report describes the dexterity
of her fingers, hands and arms to perform certain tasks, concluding that “[t]his is all indicative of
a weak upper body.” Id. Her writing is “slow and laborious,” she has difficulty writing letters,
tracing and imitating patterns, cutting shapes and completing puzzles. Id. C.B.’s “decreased self
and spatial awareness [] interferes with visual motor and perceptual skills.” Id.
iv.

The Classroom Evaluation Report (created by the DOE)

The classroom evaluation was conducted by Melody Fuchs, who was also a member of
C.B.’s CSE team and testified before the IHO on behalf of the DOE. See infra. She was
unfamiliar with C.B except for the classroom observation and IEP reviews. Tr. 247. She
evaluated C.B. in her classroom at the JCSE in which there were six students, one teacher and
one assistant. Ex. 3. Ms. Fuchs observed an art/writing activity during which the students wrote
about and illustrated what they had seen during a recent field trip. Id. In an attempt to write the
word “supermarket,” C.B. wrote “SPMKT,” reversing the letter “P.” Id. She also wrote “I S
IKM” for “I saw ice cream.” Id. During recess time, the class voted on whether they would stay
inside or go outside. C.B. “did not participate in this count, but just sat quietly at her desk.” Id.

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In conclusion, Ms. Fuchs wrote, “[t]eacher related that [C.B.] knows only half of the alphabet
letters and/or sounds at this time. [C.B.] is not being taught to write words, but only the sounds
that she hears within the words.” Id.
v.

The Psychoeducational Report

The Psychoeducational Report notes that C.B. “did not appear to understand directions
and benefited from constant and consistent repetition.” Ex. 9 at pp. 1, 4. C.B. was “fidgety,”
“easily distracted,” and she had “difficulty sustaining attention, understanding and following
directions . . .” Id. at p. 1. C.B. has a borderline I.Q. score of 75, which is in the 5th percentile
for children her age. Id. In particular, the evaluator noted that she was in the “extremely low
range” for working memory, which is the “ability to temporarily retain information in memory,
perform some operation or manipulation with it, and produce a result,” such as the “ability to
attend to a simple math question and retrieve information from memory to answer it.” Id. at p. 2.
In all areas, C.B. (who was six at the time of the test) tested at a “below kindergarten” level. Id.
at p. 3. The evaluator offered a number of instructional modifications for C.B., including (1)
preparing C.B. before she is called upon to answer a question, (2) establishing eye contact prior
to giving instructions or introducing new material, (3) allowing additional processing or
rehearsal time, (4) using manipulative, charts and diagrams, (5) introducing new concepts in a
variety of ways—oral, written, graphic and pictorial, and (6) restatement by the student of
directions. Id. at p. 4. The report concludes as follows:
In sum, [C.B.]’s overall level of cognitive functioning appears within the Borderline
range with relative weaknesses in her working memory skills and her ability to define
words. Academic skills appear to be below grade level. She presents as a charming child
who is motivated to learn and to please. Id.

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The 2012 IEP Meeting
The IEP meeting took place on April 26, 2012. Pl. 56.1 St. at ¶ 10. The following
members of the CSE team were present at the meeting: (1) Melody Fuchs, as DOE special
education teacher and District Representative, (2) the Mother, (3) Elisheva Weiss, the DOE
school psychologist, (4) Sharon Granger, parent member, (5) Raizy Link, C.B.’s classroom
teacher at the JCSE (by telephone), and (6) Chavi Rabinowitz, principal at JCSE. Id. at ¶ 11.
The main dispute regarding that meeting centers on the Psychoeducational Report and the
three Progress Reports. The DOE claims that those four reports were discussed during the
meeting and later considered when creating C.B.’s IEP. Def. 56.1 St. at ¶¶ 7-11. The Parents
maintain that those reports were not discussed during the meeting. Pl. 56.1 St. at ¶ 20; Tr. 273,
307-10. It is undisputed that Ms. Fuchs’ classroom evaluation report was reviewed at the
meeting.
At the end of the meeting, the DOE offered, and the Parents agreed, to a Notice of
Deferred Placement which allowed C.B. to complete the 2011-2012 school year at JCSE. Ex. 7.
That notice stated that the Parents would receive a final notice of C.B.’s school placement for the
2012-2013 school year by August 15, 2012. Id.; see also Pl. 56.1 St. at ¶ 59.
The 2012-2013 IEP
Following the meeting, C.B.’s IEP for the 2012-2013 school year was finalized. Ex. 2
(hereinafter, the “IEP”). The IEP is divided into a number of sections, as follows in relevant
part:
i.

Present Levels of Performance and Individual Needs

This section provides written summaries of C.B. in various categories: (1) Evaluation
Results, (2) Academic Achievement, Functional Performance and Learning Characteristics, (3)

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Social Development, (4) Physical Development, (5) Management Needs, and (6) Effect of
Student Needs on Involvement and Progress in the General Education Curriculum. Id. at pp. 1-2.
Under each subsection, the IEP asks for a (a) summary of the student’s abilities and development
in that area, (b) the student’s strengths in that area, and (c) the needs of the student in that area,
including areas of concern for the parents. Id.
Under the first subsection, Evaluation Results, the IEP describes C.B.’s school history,
and notes that the curriculums at the private schools she had attended in previous years
“emphasize[d] Judaic Studies, math and science.” Id. at p. 1. Because “students are primarily
taught in Hebrew and Yiddish . . . it should be noted that this is [C.B’s] first in school exposure
to reading and writing in English.” Id. 4
The next three subsections are copied directly from the Progress Reports. Compare IEP
at pp. 1-2 to Exhs. 4, 5, 6. Under “Academic Achievement, Functional Performance and
Learning Characteristics,” the summary is taken virtually verbatim from the Academic Progress
Report and, in smaller part, from the Speech Progress Report. Compare IEP at pp. 1-2 to Exhs.
4, 6. The next subsection, “Social Development,” is copied directly from the Academic Progress
Report. Compare IEP at p. 2 to Ex. 4. It adds that C.B. is motivated to learn and please others,
persists in the face of challenging tasks, and benefits from “modeling, praise and
encouragement.” IEP at p. 2. It lists “counseling” as C.B.’s need in this category, without
further explanation. Id. The next subsection, “Physical Development,” tracks the Occupational
Therapy Update verbatim. Compare IEP at p. 2 to Ex. 5. It states that C.B. has trouble

4

The Parents argue that this statement is inaccurate, and that C.B. had previously received
instruction in English. In light of our other holdings, infra, the Court need not address that
argument.
10

following simple directions and processing auditory information, and presents with decreased
muscle strength and low endurance, which interferes with her progress. IEP at p. 2.
The final two subsections divert from the Progress Reports. Under Management Needs,
the IEP offers no summary or overview of C.B.’s strengths, and as for her needs it reads “none
needed.” Id. Under “Effect of Student Needs on Involvement and Progress in the General
Education Curriculum,” it states that C.B. “can participate in all appropriate areas in the general
education environment with needed academic supports, counseling, speech/language therapy and
occupational therapy.” Id.
ii.

Student Needs Relating to Special Factors

This section lists 15 annual goals for C.B in the areas of speech, reading, phonetic
awareness, math, counseling, social skills and occupational therapy. IEP at pp. 3-6; see also Tr.
74-76, 363-66. Progress under each of the goals is to be measured once a month. IEP at pp. 3-6.
iii.

Recommended Special Education Programs and Services

This section of the IEP recommends a special education program for C.B. IEP at pp. 6-7.
It recommends that for all academic subjects she be placed in a special class in a community
school 5 that has not more than 12 students, one teacher and one paraprofessional in the
classroom, commonly called a 12:1:1. Id. It recommends that she receive three related services:
speech/language therapy, occupational therapy and counseling. Id. It also requires C.B. to
participate in the same district-wide assessments administered to general education students with

5

A “special class” is “one that includes only students with disabilities, and is intended for
students whose needs cannot be met within the general education class.” Def. 56.1 St. at ¶ 16
n. 3. Community schools have a “mixed population of disabled and non-disabled students.” Id.
at ¶ 16 n. 4.
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certain modifications, which include extended time, that the directions and questions be read
aloud and that she be tested in a room with no more than seven other students. Id. at p. 8.
iv.

Summary

This section states that C.B.’s instructional/functional levels in reading and math are at a
kindergarten and first grade level, respectively. Id. at p. 9. It classifies her disability as a Speech
or Language Impairment. Id. Under a subsection titled “Promotion Criteria,” it requires that
C.B. meets 35% of the second grade English standards and 40% of the second grade math
standards in order to be promoted to the next grade. Id. at p. 10.
This section also notes whether and which other special education programs were
considered for C.B. Id. It states that the CSE also considered, and rejected, an IESP with
SETSS. 6 Id.; see also Def. 56.1 St. at ¶ 16. A special class in a special school was deemed too
restrictive for C.B. IEP at p. 10. 7 It also reads that the Mother “stated that she would like an IEP
to explore programs that would be appropriate for her daughters’ academic needs and intends to
seek tuition reimbursement . . . parent stated that she would like an IEP at this time.” Id.
Public School Placement for the 2012-2013 School Year
By August 17, 2012, the Parents had not received a final notice from the DOE with
C.B.’s school placement for the upcoming year, and the Mother contacted the DOE to inquire.
Pl. 56.1 St. at ¶ 60. On August 21, 2012, the Parents received a notice advising that C.B. had
been placed in P.S. 91-The Albany School (“P.S. 91”) in a special class with a 12:1:1 ratio. 8 Pl.

6

Under this program, C.B. would remain in private school and pay her own private school
tuition, but the DOE would provide supplemental services or teachers for support. Def. 56.1 St.
at ¶ 16 n. 5, 6; ECF 14-2, Def. Memo. of Law, p. 10 n. 5, 7.
7
A “special school” is a school with only special education students. The IDEA requires that a
student be placed in the “least restrictive environment” possible. 20 U.S.C. § 1412(a)(5)(A).
8
The Notice is dated July 25, 2012. The family moved residences and provided the DOE with
their new address, but the Notice was sent to their former address and never received. Tr. 277.
12

56.1 St. at ¶ 61; Ex. 8. The notice did not specify the classroom in which C.B. was placed. Id.
The Mother immediately attempted to visit P.S. 91 but was told that she could not visit until the
school re-opened in the fall. Pl. 56.1 St. at ¶ 62; Tr. 276.
On August 22, 2012, the Mother wrote to the DOE to notify them of her inability to visit
P.S. 91. Ex. L. She stated her intention to visit as soon as possible and requested information
“about the recommended program such as a class profile and program description.” Id.; see also
Pl. 56.1 St. at ¶ 63; Tr. 276-77. She never received a response. Pl. 56.1 St. at ¶ 64. In the
meantime, the Parents re-enrolled C.B. at the JCSE for the 2012-2013 school year. Exhs. E, F.
In early September 2012, the Mother toured P.S. 91 with Carol Hoyte, the Special
Education Coordinator at that school. Pl. 56.1 St. at ¶ 65. She observed a classroom that was
not the class into which C.B. was to be placed. Tr. 299-300. On September 28, 2012, the
Mother wrote to the CSE regarding her concerns about the IEP, the 12:1:1 class recommendation
and the school placement. Ex. D; see also Pl. 56.1 St. at ¶ 75. The letter asks the DOE to “let
me know if anything I have indicated in this letter about the CSE meeting or recommended
placement is inaccurate.” Ex. D at p. 2. The letter notifies the DOE that the Parents rejected the
placement at P.S. 91, had enrolled C.B. at the JCSE for the 2012-2013 school year, and planned
to seek reimbursement through an impartial hearing. Id. The DOE never responded to that
letter. Pl. 56.1 St. at ¶ 76. C.B. remained at the JCSE for the duration of the 2012-2013 school
year, the tuition for which totaled $53,900. Id. at ¶¶ 77, 88.

The Due Process Complaint and the Remaining 2012-2013 School Year
On November 12, 2012, the IHO issued its decision regarding the 2011-2012 school year.
See supra note 2. Days later, on November 21, 2012, the Parents timely filed a due process

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complaint challenging the 2012-2013 IEP and proposed placement, and seeking reimbursement
for tuition at JCSE for that school year. Ex. A; Pl. 56.1 St. at ¶ 87. The Due Process Complaint
seeks reimbursement for C.B.’s tuition at the JCSE and alleges violations of the IDEA related to
(1) the evaluations of C.B. that were conducted and considered in creating the IEP; (2) the 12:1:1
class size recommendation; (3) the IEP’s present levels of performance and goals sections; (4)
the CSE’s failure to properly notify and include the parents in various aspects of the IEP’s
creation, and (5) the placement of C.B. in P.S. 91. Ex A.
After the Due Process Complaint was filed, the IHO issued a notice of pendency pursuant
to 20 U.S.C. § 1415(j), which requires the student’s placement remain “as is” during the
pendency of an administrative review. See Interim Order on Pendency, dated January 3, 2013.
C.B.’s placement at the JCSE for the 2011-2012 school year, pursuant to the IHO’s November
12, 2012 decision, constituted the status quo while the proceedings were pending. Id. As such,
the DOE paid the remaining JCSE tuition for the 2012-2013 school year for the period between
November 21, 2012 and June 2013. Pl. 56.1 St. at ¶ 90.
IHO Hearing and Decision Regarding the 2012-2013 School Year
A hearing before a new IHO regarding the 2012-2013 school year was held over five
non-contiguous days between December 2012 and April 2013. Ms. Fuchs was the DOE’s first
witness, and testified regarding the classroom evaluation she conducted at the JCSE, the IEP
meeting, the creation of the IEP and the placement of C.B. at P.S. 91. At various points in her
testimony, which took place via telephone, the IHO reprimanded her for reading directly from
the IEP, or other exhibits, when it was clear that she was inappropriately doing so in response to
a question. Tr. 50-51, 72-73.

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The DOE’s second and final witness was Ms. Hoyte, the special education coordinator at
P.S. 91. Ms. Hoyte had never met C.B., and she testified about C.B.’s skills and needs based
solely on her reading of the IEP. Tr. 151. She also testified about the services available at P.S.
91. Tr. 146-50. During her testimony, the Parents learned for the first time that if C.B. had
attended P.S. 91, she would have been placed in a fourth grade class. Tr. 151.
Three witnesses testified for the Parents. The first was Chana Bailey Rosen, C.B.’s
teacher at JCSE for the 2012-2013 school year. Ms. Rosen testified to C.B.’s present levels of
performance, her progress throughout that school year, the educational setting at the JCSE and
the various modifications and tools that the teachers used to address C.B.’s needs. The Mother
testified second regarding the IEP meeting and creation of the IEP, her impressions of P.S. 91
and C.B.’s progress at the JCSE. Finally, Chavie Rabinowitz, the principal at the JCSE, testified
regarding the JCSE and the adequacy of the IEP in relation to her understanding of C.B.’s
functioning and deficiencies. She testified to knowing C.B. well, seeing her every day and being
in regular contact with her teachers and therapists. Tr. 333, 339-41.
On June 25, 2013, the IHO issued a decision holding that 1.) the DOE provided C.B. a
FAPE for the 2012-13 school year, 2.) the JCSE provided C.B. an appropriate education for the
2012-13 school year, and 3.) had the DOE failed to provide C.B. a FAPE, equities favored
tuition reimbursement. See IHO’s Findings of Fact and Decision, dated June 25, 2013
(hereinafter “IHO Dec.”). Because the DOE had offered C.B. a FAPE, the Parents were not
entitled to tuition reimbursement for their unilateral placement of C.B. at the JCSE. Id. at p. 14.
The SRO’s Decision and Subsequent Events
On July 30, 2013, the Parents appealed that part of the IHO’s decision holding that the
DOE had provided C.B. a FAPE. The DOE cross-appealed that part of the IHO’s decision

15

holding that the equities favored the Parents. On December 10, 2014, the SRO issued a decision
affirming the IHO. See State Review Officer Decision, dated December 10, 2014 (hereinafter
“SRO Dec.”).
In lieu of a fact or background section, the SRO presumed the “parties’ familiarity with
the detailed facts and procedural history of the case and the IHO’s decision” and offered only a
brief procedural history. Id. at p. 2. After rehearsing pages of law (id. at pp. 3-5), the decision
affirmed the IHO’s holding that the DOE offered C.B. a FAPE. Id. at 5-6. The SRO held that
the IHO accurately recounted the facts, properly evaluated the necessary evidence, and came to
the correct conclusion. Id. at p. 6. The SRO then addressed each of the Parent’s challenges to
the IEP and placement. Id. at pp. 6-9. Because it concluded that the DOE had offered a FAPE,
the SRO did not address whether the JCSE was an appropriate placement for C.B. or whether
equitable factors favored the Parents. Id. at pp. 9-10.
Having exhausted their administrative remedies, the Parents initiated this case, seeking
declaratory judgments that the DOE failed to provide C.B. a FAPE for the 2012-13 school year
and that equitable factors weigh in C.B.’s favor, and a judgment ordering the DOE to reimburse
the Parents for the 2012-2013 JCSE tuition, along with costs and attorney’s fees. ECF 1. The
parties filed cross-motions for summary judgment which are now before the Court. ECF 14, 15.
LEGAL STANDARDS AND DEFERENCE
In an IDEA case, a summary judgment motion “is a pragmatic procedural mechanism”
for reviewing administrative decisions that functions more like an appeal than a traditional
summary judgment motion. T.P. ex rel S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d
247, 252 (2d Cir. 2009).

16

This Court exercises a circumscribed de novo review which falls somewhere between
clear-error and complete de novo. M.W., 725 F.3d at 138; M.H. v. New York City Dept. of
Educ., 685 F.3d 217, 244 (2d Cir. 2012). Under that standard, “[w]e seek only to verify whether
a preponderance of the evidence supports the administrative decisions based on our independent
examination of the record.” J.D. v. N.Y. City Dep't of Educ., 677 F. App'x 709, 711 (2d Cir.
2017) (summary order) citing M.H., 685 F.3d at 226. While the court should not simply “rubber
stamp” the administrative decision, it must remain “mindful that the judiciary generally lacks the
specialized knowledge and experience necessary to resolve persistent and difficult questions of
educational policy.” Walczak, 142 F.3d at 129 (internal citations omitted). Thus, the Court may
not substitute its own “notions of sound educational policy for those of the school authorities
which they review.” Rowley, 458 U.S. at 206.
However, the level of deference owed to an administrative decision “depends on the
quality of that opinion.” R.E., 694 F.3d at 189. Its persuasiveness “will hinge on the kinds of
considerations that normally determine whether any particular judgment is persuasive, for
example, whether the decision being reviewed is well-reasoned, and whether it was based on
substantially greater familiarity with the evidence and the witnesses than the reviewing court.”
M.H., 685 F.3d at 244.
In this case, the DOE urges the Court to accord particular deference to the administrative
decisions because they are “in agreement and are based on the same record as that before the
district court.” ECF 29, Def. Reply, at p. 3, citing B.K. v. N.Y.C. Dep’t of Educ., 12 F. Supp. 3d
343, 360 (E.D.N.Y. 2014). However, the Second Circuit has never instructed that increased
deference is warranted simply because the IHO and SRO came to the same ultimate conclusion.
To the contrary, the Court need not uphold consistent decisions by the IHO and SRO when they

17

are both “poorly reasoned and unsupported by the record.” J.D., 677 F. App'x at 711-12
(reversing the IHO and SRO’s decisions uniformly holding in favor of the DOE); see also L.O.
v. New York City Dep't of Educ., 822 F.3d 95 (2d Cir. 2016) (same); A.M. v. New York City
Dep't of Educ., 845 F.3d 523 (2d Cir. 2017) (same).
With these standards in mind, it must first be noted that neither the SRO nor IHO’s
decision indicates a “genuine engagement with the Parents’ claim” to warrant deference. FB v.
N.Y. City Dep't of Educ., 132 F. Supp. 3d 522, 550 (S.D.N.Y. 2015). Instead, they are both
conclusory, generic, lacking “thorough and careful” analysis, Walczak, 142 F.3d at 129, and are
“tellingly, silent about [] contrary testimony” on most disputed issues. F.B., 132 F.Supp.3d at
550; see also B.R. ex rel. K.O. v. N.Y. City Dep't of Educ., 910 F. Supp. 2d 670, 678 (S.D.N.Y.
2012). The Court remains “acute[ly] aware[] of institutional competence and role” in IDEA
cases, M.H., 685 F.3d at 244, however the analysis in both decisions is so wanting that one can
only speculate as to how, and in many instances whether, the hearing officers actually weighed
and considered the evidence before them. 9 For those reasons generally, and as reflected more
specifically herein, both decisions are entitled to diminished deference, at best.

9

The SRO’s decision, to which the court is to defer primarily, is particularly vague. At no point
does it note any detail about the contents of the IEP, the reports that were available to the CSE,
or specific testimony. Its discussion section spans just four single-spaced pages, the vast
majority of which is boilerplate recitation of law and citations. SRO Dec. at pp. 6-9. On a
number of points, the SRO makes a conclusion without addressing the Parents’ argument at all.
The IHO’s decision follows a similar formula, conclusorily stating that there was no denial of a
FAPE on each issue, without further explanation. IHO Dec. at pp. 9-11. The section discussing
whether the DOE offered C.B. a FAPE spans three double-spaced pages, one of which is a
boilerplate recitation of the applicable law. Id. To its credit, the IHO decision offers six doublespaced pages summarizing the parties’ respective arguments and the testimony from the IHO
hearing. Id. at pp. 3-9. However, it does not substantively describe the IEP or the reports that
were available to the CSE, nor does it weigh contradictory testimony or evidence to support its
conclusions.
18

DISCUSSION
To determine whether the Parents are entitled to reimbursement, the Court applies the
three-part Burlington/Carter test. Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993);
Sch. Comm. of Town of Burlington v. Dep't of Educ., 471 U.S. 359 (1985). Under the first
prong, the Court determines whether the DOE denied the student a FAPE. This involves a “twopart inquiry that is, first, procedural, and second, substantive.” R.E., 694 F.3d at 189-90. If the
DOE deprived the student of a FAPE, under the second prong, the Court considers whether the
Parents’ unilateral private school placement was appropriate for the student. If it was, under the
third prong, the court determines whether the balance of equitable factors weigh in the parents’
favor. M.H., 685 F.3d at 245.
I.

Prong One, Part One: Procedural Compliance

The Parents argue that the DOE violated the IDEA on both procedural and substantive
grounds, thereby depriving C.B. of a FAPE. The IDEA’s procedural requirements are intended
to “guarantee parents [] an opportunity for meaningful input into all decisions affecting their
child's education,” Honig, 484 U.S. at 311, and to “safeguard against arbitrary or erroneous
decisionmaking.” M.H., 685 F.3d at 245 (internal quotations omitted); see generally 20 U.S.C.
§ 1415. New York regulations amplify the IDEA’s procedural requirements. See 8 NYCRR
§ 200.1 et seq. “[T]he importance Congress attached to these procedural safeguards cannot be
gainsaid.” Rowley, 458 U.S. at 205. If there is a procedural violation, Parents are entitled to
reimbursement only if the violation “i.) impeded the child's right to a [FAPE]; (ii) significantly
impeded the parents' opportunity to participate in the decisionmaking process regarding the
provision of [a FAPE] to the parents' child; or (iii) caused a deprivation of educational benefits.”
20 U.S.C. § 1415(f)(3)(E)(ii).

19

The Parents allege that the DOE failed to reevaluate C.B. within the statutorily mandated
three year time period. ECF 15-2, Pl. Memo. of Law, at pp. 15-20. They also claim that the
Psychoeducational Report and the Progress Reports were not discussed during the IEP meeting
or provided to them. Id. They contend that these constituted procedural violations of the IDEA
that denied C.B. a FAPE and impeded their opportunity to participate in C.B.’s education. 10 The
primary thrust of their argument, however, is that these procedural violations compounded to
create a substantively inadequate IEP that deprived C.B. of a FAPE. Id. at pp. 21-22.
The Parents first argue that the DOE failed to conduct three reevaluations of C.B., in
speech/language, occupational therapy and social history. ECF 15-2, Pl. Memo. of Law, at pp.
17-18. The law requires that a student be evaluated by the DOE prior to her initial IEP and then
at least every three years thereafter. 20 U.S.C. § 1414(a)(2)(A); 8 NYCRR § 200.4(b)(4). These
evaluations and reevaluations must assess a child “in all areas of suspected disability,” and
utilize “assessment tools and strategies that provide relevant information that directly assists
persons in determining the educational needs of the child.” 20 U.S.C. § 1414(b)(3)(B-C); see
also 8 NYCRR § 200.4(b)(1). It is the school district’s responsibility to assure that the reports
and assessments on which it relies are sufficiently accurate and complete to create an appropriate
IEP. 20 U.S.C. § 1414(b)(2)(A); 8 NYCRR § 200.4(b)(5)(iii).
The SRO did not address the DOE’s alleged failure to reevaluate C.B. in advance of the
IEP meeting. See SRO Dec. at pp. 6-7. The IHO recognized that the DOE did not perform a
speech or occupational therapy reevalution, but did not state whether that constituted a

10

The Parents argue that the CSE did not allow them to meaningfully participate in the process,
primarily because the CSE had predetermined a recommended class placement for C.B. in a
12:1:1 class. ECF 30, Pl. Reply, at pp. 10-14. The Court addresses this class placement issue as
part of the discussion of the IEP’s substantive adequacy, infra, and need not address that issue as
a separate procedural violation in light of our remaining holdings.
20

procedural violation. Instead, the IHO simply concluded that “there are no procedural errors
tantamount to a denial of a FAPE for the student,” and that “the IEP specifically noted the
student’s deficits in these areas and provided services to address the deficits.” IHO Dec. at p. 10.
The Mother testified that C.B. was initially evaluated when she was three, almost four,
years old for occupational therapy, physical therapy, speech and by a psychologist, but that the
DOE had not reevaluted her since. Tr. 305-06. C.B. was three, almost four, in the first half of
2008, four years before the 2012 IEP meeting. Ms. Fuchs testified that she did not know when
C.B. last received a social history evaluation, did not know whether a speech and language
evaluation had ever been completed, and did not know when C.B. was first classified as having a
speech and language impairment. Tr. 86-87, 90. The DOE acknowledged that C.B. was due to
be reevaluted prior to the 2012 IEP meeting. See Ex. 1. It is clear, however, that the DOE did
not reevaluate C.B. in those areas within the mandated three years. The failure to conduct
triennial evaluations of C.B. in her areas of need is a clear violation of the IDEA and state
regulations.
Additionally, “[i]n developing each child's IEP, the IEP Team must consider ... [t]he
results of the initial or most recent evaluation of the child.” 34 C.F.R. § 300.324(a)(1)(iii). The
DOE bears the burden of demonstrating which evaluative materials were reviewed by the CSE to
create the IEP to ensure that the CSE “provides the student with services narrowly tailored to his
or her particular educational needs based on actual and recent evaluative data from the student’s
education providers.” L.O., 822 F.3d at 110. There was no speech/language, occupational
therapy or social history evaluation considered at the IEP meeting, and the CSE did not consider
C.B.’s initial evaluations, about which the Mother testified, at the IEP meeting or when creating
the IEP. Tr. 90. This constitutes a second procedural violation. See L.O., 822 F.3d at 110-11.

21

The Parents next argue that the CSE failed to review the Psychoeducational Report and
the three Progress Reports at the IEP meeting. During the IEP meeting, the CSE must “review
existing evaluation data on the child, including—(i) evaluations and information provided by the
parents of the child; (ii) current classroom-based, local, or State assessments, and classroombased observations; and (iii) observations by teachers and related services providers.” 20 U.S.C.
§ 1414(c)(1)(A). The DOE must provide a copy of any evaluation, report or documentation to
the parents. 20 U.S.C. § 1414(b)(4)(B).
The only evidence on this issue is conflicting testimony from the Mother and Ms. Fuchs.
The Mother testified that the CSE did not review the Progress Reports and Psychoeducational
Report at the meeting or provide them to her. Tr. 273. Ms. Fuchs claims the opposite. Tr. 60,
62, 93. The IHO credited Ms. Fuchs’ testimony, holding that “all of the reports were discussed
during the IEP meeting.” IHO Dec. at p. 10 (the SRO did not address this issue). The objective
evidence indicates that the three Progress Reports were considered. The IEP quotes them
verbatim and two JCSE teachers were present at the IEP meeting: Ms. Link who authored the
Academic Progress Report, and Ms. Rabinowitz, the principal, who communicated regularly
with the therapists who authored the Speech Progress and Occupational Therapy reports. IEP at
pp. 1-2; Exhs. 4, 5, 6.
Regarding the Psychoeducational Report, there is no evidence that it was discussed at the
meeting aside from Ms. Fuchs’ testimony. Although the IHO apparently ignored the Mother’s
conflicting testimony (IHO Dec. at p. 10), this Court must defer to the IHO who was best
positioned to assess the witnesses’ credibility. B.P. v. New York City Dep't of Educ., 634 F.
App'x 845, 849 (2d Cir. 2015) (summary order); M.H., 685 F.3d at 258. For that reason, the
Court holds that the Psychoeducational Report was reviewed at the IEP meeting.

22

The DOE contends that any procedural violations were inconsequential because the
evaluations available at the time of the CSE meeting were sufficient to craft an adequate IEP.
ECF 14-2, Def. Memo. of Law, at p. 16-17. This position is aligned with the SRO and IHO’s
unreasoned conclusions that “the evaluative information . . . was sufficient to develop an
appropriate IEP.” SRO Dec. at p. 6; IHO Dec. at p. 10. Indeed, courts have held that “the
absence of one single measure should not itself render an IEP invalid, so long as the CSE team
otherwise has sufficient information about the student to determine the student's educational
needs.” P.L. v. N.Y. Dep't of Educ., 56 F. Supp. 3d 147, 160 (E.D.N.Y. 2014); see also M.W.,
725 F.3d at 140.
Here, however, it was not “one single measure” that was omitted; rather the DOE failed
to conduct and consider at least three (re)evaluations of C.B. This constitutes a serious
procedural violation. Moreover, the Second Circuit has expressed reservations with applying the
retrospective analysis urged by the DOE, because
. . . courts are left to speculate many months, or as in this case, many years, later as to
how the CSE reached the terms of the child’s IEP (i.e., which, if any, evaluative materials
the CSE actually considered). The resulting implication of this procedural violation is
that it provides the reviewing authority with almost unfettered discretion, as it combs
through the evaluative materials generated at the time the IEP was formulated, to match
terms of the IEP to any assertion contained in any existing document, irrespective of
whether it was actually viewed and considered by the CSE or even in possession of the
CSE at the time of the meeting . . .
L.O., 822 F.3d at 110. To the contrary, the IDEA “requires that a CSE actually review
evaluative data and base the terms of the student’s IEP on that information,” and it does not
“permit[] the reviewing body to offer post hoc rationalizations for how the CSE reached its
conclusions.” Id. at 110-111.
Additionally, neither the SRO nor IHO substantively addressed the evaluative materials
and IEP in a manner sufficient to warrant deference. Each dedicated well under a page to this
23

issue, and did not engage in a careful comparison, endorsed in this circuit, of the IEP and the
available reports to ensure that they were truly consistent. Compare SRO Dec. at pp. 6-7; IHO
Dec. at p. 10 to L.O., 822 F.3d at 110 (deferring to the SRO who “devote[d] nearly thirteen full
single-spaced pages to its comparison of the terms of each IEP with the evaluative materials in
existence at the time the IEP was developed”); C.M. v. New York City Dep't of Educ., No. 15CV-6275, 2017 WL 607579, at *16 (S.D.N.Y. Feb. 14, 2017) (the SRO “thoroughly analyzed the
hearing record, providing a detailed description of the information that each individual report and
evaluation contained.”).
This Court lacks the expertise to competently undertake such an analysis, and hesitates to
do so in light of L.O. The Court holds only that there were two procedural violations: the DOE
failed to timely reevaluate C.B. in her areas of need, and the CSE did not review her most recent
evaluations during the IEP meeting. Rather than consider these violations in isolation, the Court
turns to the alleged substantive inadequacies, which analysis is informed by these procedural
violations. A.C. ex rel. M.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165,
172 (2d Cir. 2009) (“[A]dequate compliance with the [IDEA] procedures prescribed would in
most cases assure much if not all of what Congress wished in the way of substantive content in
an IEP.”).
II.

Prong One, Part Two: Substantive Adequacy

The Court next considers the substantive adequacy of the IEP. To satisfy this prong, the
DOE must offer the child special education and related services that are “reasonably calculated
to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F.,
137 S.Ct. at 999. The focus on the individual child is critical. The IEP “is not a form
document,” and must reflect “careful consideration of the child’s present levels of achievement,
disability and potential for growth.” Id. A valid IEP must “set out a plan for pursuing academic
24

and functional advancement,” that is “focused on student progress” and provides opportunities to
“meet challenging objectives.” Id. at 999-1000. The Court is tasked with examining “the record
for any objective evidence indicating whether the child is likely to make progress or regress
under the proposed plan,” such as test scores and similar objective criteria. A.M., 845 F.3d at
541 (internal citations omitted); see also J.D., 677 F. App'x at 712. The DOE bears the burden
to “demonstrate the appropriateness of the IEP.” Id., citing M.H., 685 F.3d at 224-25. A finding
that the IEP was substantively inadequate “automatically entitles parents to reimbursement.”
R.E., 694 F.3d at 190.
The Parents argue that the IEP’s present levels of performance section is deficient, that
the IEP’s goals are unattainable and incomplete, and that the CSE’s 12:1:1 class placement
recommendation was inappropriate for C.B.
A. Present Performance Levels and Goals
The IEP must report on four aspects of the student’s present levels of performance: (1)
academic achievement, functional performance and learning characteristics, (2) social
development, (3) physical development, and (4) managerial or behavioral needs. 8 NYCRR
§ 200.1(ww)(3)(i). This present levels of performance section shall “indicate the individual
needs of the student” in each of those four areas, including “how the student’s disability affects
involvement and progress in the general education curriculum.” Id. at § 200.4(d)(2)(i); see also
20 U.S.C. § 1414(d)(1)(A)(i)(I). The CSE's evaluation of a student's abilities should never rely
on “any single measure or assessment as the sole criterion for determining . . . an appropriate
educational program for the child.” 20 U.S.C. § 1414(b)(2)(B). The IEP must also include “a
statement of measurable annual goals, including academic and functional goals, designed to . . .
enable the child to . . . make progress” and “meet each of the child's other educational needs that

25

result from the child's disability.” 20 U.S.C. § 1414(d)(1)(A)(i)(II); see also 8 NYCRR
§ 200.4(d)(2)(iii)(A); 39 C.F.R. § 300.320(a)(2)(i).
The Parents’ primary challenge relates to the Psychoeducational Report, which they
claim was not incorporated into the IEP. The IEP does not indicate C.B.’s borderline I.Q. score
of 75, and thus, they argue, does not reflect C.B.’s cognitive deficits. ECF 15-2, Pl. Memo. of
Law, at pp. 20, 23. The Parents also contend that C.B.’s social deficits and management needs
are not accurately addressed in the IEP. Id. at pp. 23, 32-33. As a result, they claim that the IEP
fails to include goals to address some of C.B.’s educational needs, and includes goals that are
inappropriately overreaching. Id. at pp. 25-27.
Here again, both the SRO and IHO decisions summarily hold that the IEP is sufficient
and consistent with the evaluative materials without analysis and without acknowledging
conflicting evidence and testimony. Neither decision warrants deference. The SRO held that the
present levels of performance section was sufficient because “a comparison of the evaluative
information with the April 2012 IEP shows that the present levels of performance directly and
accurately reflected the information available to and considered by the April 2012 CSE,” and
that the CSE used input from the parents, JCSE staff and evaluative material to develop that
section. SRO Dec. at p. 7. In support, the SRO string cites to transcript pages from Ms. Fuchs’
testimony, the five reports available to the CSE, and the last page of the IEP which lists the
names of the CSE team participants. Id. Regarding the IEP goals, the SRO cites to the pages of
the IEP on which the goals appear and states, without more, that the “goals indicated in the IEP
are appropriate and specifically address her deficits.” SRO Dec. at 10. 11

11

The IHO similarly held that the “IEP indicated a detailed description of the student’s deficits,
needs and current abilities,” and that despite omitting C.B.’s I.Q. score, the IEP “indicates a
thorough recitation of the students’ language, academic, social and OT deficits.” IHO Dec. at p.
26

Both decisions lack “thorough and careful” analysis to warrant deference on this point,
and they are belied by a preponderance of the objective evidence. Walczak, 142 F.3d at 129; see
also M.H., 685 F.3d at 249 (SRO’s “conclusory statement does not evince thorough and wellreasoned analysis that would require deference”). Neither decision analyzes the IEP’s adequacy
in light of C.B.’s particularized needs. See 8 NYCRR § 200.4(d)(2)(iii)(a); compare to C.R. v.
New York City Dep't of Educ., 211 F. Supp. 3d 583, 611 (S.D.N.Y. 2016). Instead, they could
hold true for countless students. Moreover, while the Court generally defers to the specialized
knowledge and educational expertise of the administrative reviewers on these types of questions,
Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 382 (2d Cir. 2003), there is no indication that
these holdings are grounded in that expertise.
Turning first to the present levels of performance section, the CSE copied the three
Progress Reports almost verbatim: the IEP quotes the Academic Progress Report and
Occupational Therapy Update almost in their entirety, and cherry-picks sentences from the
Speech Progress Report. Compare IEP at pp. 1-2 to Exhs. 4, 5, 6. On its face, the IEP does not
incorporate the Psychoeducational Report, the classroom evaluation report or any additional
input from the CSE team. See generally IEP. 12 As a result, the IEP is consistent with the
Psychoeducational Report only to the extent that the Progress Reports are consistent with the
Psychoeducational Report. However, the Psychoeducational Report identifies a number of
C.B.’s deficits that do not appear in the IEP. In addition to the omission of C.B.’s I.Q. score, the

10. Regarding the IEP goals, the IHO states that they “are appropriate and specifically address
her deficits.” Id. In support of those holdings, the IHO cites only to the IEP itself. Id.
12
Ms. Fuchs testified that the Psychoeducational Report was incorporated in the first subsection
of the IEP, titled “Evaluation Results.” Tr. 92. That section contains an overview of C.B.’s
educational history and past school placements, but does not contain information from the
Psychoeducational Report. See IEP at p. 1.
27

Psychoeducational Report highlights C.B.’s low working memory and inability to define words
as areas of concern. Ex. 9 at pp. 2, 4. The report scores her below age expectancy for perceptual
motor skills, at an “age equivalent of 5.2-5.3 years.” Id. at p. 3. There is no explanation for why
the IEP fails to mention that C.B struggles in these areas.
Similar omissions persist throughout the IEP. For example, the record indicates that
C.B. has significant difficulty with focusing and distractibility: the Psychoeducational Report
explains that C.B. was “easily distracted” and “fidgety,” (Ex. 9 at p. 1), and Ms. Rosen and Ms.
Rabinowitz testified that C.B. had “difficulty focusing,” is “easily distractible,” and requires a
behavior plan for focusing, noting that she works best with a cardboard divider around her desk
to help her focus and “block out other distractions.” Tr. 214, 362-63. Conversely, the IEP states
that C.B. “works independently for roughly 15 minutes,” and that she “demonstrates good
attention span and good activity tolerance.” IEP at pp. 1-2. These statements, taken directly
from the Academic Progress Report and the Occupational Therapy Update, are plainly
inconsistent with Psychoeducational Report and testimony from the JCSE teachers. See Ex. 5 at
p.1; Ex. 4 at p. 1. Nothing in the IEP attempts to reconcile this inconsistency, or even recognize
that it exists.
In terms of social needs, the IEP quotes from the Academic Progress Report to state that
C.B. “initiates and maintains conversation with her peers,” and “generally maintains eye
contact.” Ex. 4 at p. 1; IEP at p. 2. But the Psychoeducational Report reads that “eye contact was
inconsistent,” that C.B. said “she doesn’t have friends in the class,” and recommends
management techniques to encourage C.B. to engage socially with her peers. Ex. 9 at pp. 1, 4.
Additionally, the classroom evaluation report indicates that C.B. did not engage with her peers
when they took a vote to go outside, and Ms. Fuchs testified that C.B. was “quiet,” “withdrawn,”

28

and “didn’t have an opinion.” Ex. 3; Tr. 54. It is clear that when crafting the IEP, the CSE did
not engage in a thoughtful analysis of the evidence before it, or make any attempt to reconcile
inconsistent findings. Instead, they blindly copied the Progress Reports without divergence. As
a result, the IEP omits and potentially misstates a number of C.B.’s educational deficits. 13
In turn, the performance levels section directly informs the IEP’s goals, which are also
deficient. The IEP has fifteen goals related to speech, reading, phonetic awareness, math,
counseling, occupational therapy and social needs. Not surprisingly, the IEP lacks goals to
address those deficits that were omitted from the present levels of performance section: there are
no goals related to memory, perceptual motor skills or encouraging social engagement with
peers, which the record indicates are some of C.B.’s greatest areas of need. Ex. 9 at p. 2; see also
Tr. 363-65. Additionally, there is no goal related “rhyming and discriminating initial sounds,
final sounds, segmenting words and blending words,” even though the IEP and
Psychoeducational Report both indicate C.B. struggles in that area. IEP at p. 1; Ex. 9 at p. 3. 14
Ms. Rabinowitz testified that there were no math goals for place values, money skills or reading,
writing and sequencing numbers, and no adequate goals related to distractibility and focusing.
Tr. 365. The only goal related to social skills requires C.B. to cooperate with teachers and

13

The “management needs” section, which simply reads “none needed,” is clearly inadequate.
IEP at p. 2. The Progress Reports and Psychoeducational Report describe numerous
management tools required to help C.B. learn, and Ms. Fuchs testified that C.B.’s related
services (counseling, speech and occupational therapy) should have been listed under that
subsection. Tr. 73-74. However, as the SRO noted (SRO Dec. at p. 7), the other subsections
address those management tools throughout. They note that C.B. needs repetition, multi-sensory
techniques, presentation of material in “small chunks,” visual aids and sequencing cards, direct
instruction, verbal cueing and opportunities to practice. IEP at pp. 1-2. It would exalt form over
substance to invalidate this IEP solely because it fails to list these management techniques under
the management subsection of the IEP.
14
Remarkably, the only goal related to phonetical awareness calls for C.B. to orally “read
passages or stories fluently,” even though C.B. is a nonreader. IEP at p. 4.
29

follow rules, although all the reports indicate that C.B. was sweet, compliant and eager to please.
IEP at p. 6; Exhs. 3, 4, 5, 9.
The Parents challenge the reading goals most forcefully. It is undisputed that C.B. was a
non-reader, who recognized only “several letters of the alphabet.” IEP at p. 1; Ex. 4, Academic
Progress Report, at p. 1; Ex. 9, Psychoeducational Report at p. 3. Ms. Fuchs testified that C.B.
was writing words like a three year old. Tr. 52. Nonetheless, there are no goals related to
learning the alphabet; instead, the goals presume that C.B. is a reader, requiring her to, in part,
“identify[] the main ideas of stories,” analyze the emotions and motivations of characters, and
improve her vocabulary by using “context clues” within sentences and paragraphs to identify
unknown words when reading. IEP at pp. 3-4. Ms. Fuchs testified that these goals were aimed
towards “interpreting the information and she is—she is making—making evaluations of it,
when she critically thinks.” Tr. 75. There is no evidence, however, that interpreting and critical
thinking skills are goals particularized to C.B.’s individual needs and disability. Indeed, Ms.
Rabinowitz testified that these goals were unattainable because C.B. “wasn’t decoding CVC 15
well, so she’s nowhere near being able to do something like that . . . she wasn’t reading
sentences, so she wasn’t ready for that.” Tr. 364.
In fact, the DOE offered no evidence that actually supports the appropriateness of the IEP
goals in light of C.B.’s individual needs. 8 NYCRR § 200.4(d)(2)(iii)(a). Ms. Fuchs’ testimony
is the DOE’s only evidence to support the goals, and consists largely of her listing what type of
goal each was (i.e. “the third goal is a reading goal,” “[t]he next one is a phonetic awareness
goal.”). Tr. 75-76. She did not testify as to how the CSE considered C.B.’s specific educational
needs in developing the goals or how the goals addressed those needs. Conversely, Ms.

15

CVC are three letter words with a consonant-vowel-consonant, such as “cat.” Tr. 235.
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Rabinowitz testified about the substance of many of the goals and in doing so, explained why
they were inappropriate in light of C.B.’s abilities. Tr. 363-66.
The IEP was not designed to enable C.B. to make progress in light of her educational
needs. The CSE did not incorporate all of the evaluative material and evidence before it to
accurately summarize C.B.’s educational needs and deficits, instead it merely copy and pasted
the Progress Reports directly into the IEP. Most obviously, the Psychoeducational Report
(which was the only clinical report available) uncovered deficiencies relevant to C.B.’s
educational needs, but was ignored in drafting the IEP. This resulted in an absence of goals in
numerous areas of need, and facially unattainable reading goals.
Without doubt, these deficiencies are inextricably tied to the procedural violations
discussed supra. P.L., 56 F. Supp. 3d at 163 (the presence “of procedural violations informs [the
Court's] determination of substantive adequacy even when the violations themselves do not deny
a FAPE.”) citing C.F. ex rel. R.F. v. New York City Dep't of Educ., 746 F.3d 68, 81 (2d Cir.
2014). Indeed, those violations cast doubt on whether the IEP’s substantive deficiencies resulted
from “a deliberate decision on the part of the CSE based on its specialized knowledge and
educational expertise” or from the CSE’s failure to reevaluate C.B. and review her existing
evaluations. L.O., 822 F.3d at 111; see also S.Y. v. New York City Dep't of Educ., 210 F. Supp.
3d 556, 576 (S.D.N.Y. 2016). For all the reasons indicated, the Court holds that the IEP’s
present levels of performance and goals were substantively inadequate and C.B. was thus
deprived of a FAPE.
B. 12:1:1 Class Placement
The Parents also challenge the IEP’s class placement recommendation. They claim a
12:1:1 class size was too large to meet C.B.’s needs, and that the DOE failed to consider the

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Mother’s request that C.B. be placed in a smaller classroom, thereby denying them a meaningful
opportunity to participate in the IEP process. ECF 15-2, Pl. Memo of Law, at pp. 24-36. The
DOE argues that the Court should defer to the SRO’s and IHO’s decisions because there is
sufficient evidence that C.B. would make progress in a 12:1:1 class and “issues such as class size
are best left to the district and its educational experts.” ECF 14-2, Def. Memo. of Law, at p. 25.
Indeed, “challenges to class size and student teacher ratios involve questions of
methodology more appropriately answered by the state and district decision-makers than by
federal judges.” C.M., 2017 WL 607579 at *21 (citing cases). However, where it “appears plain
that, contrary to the findings of the SRO,” the placement was “not adequately designed to
address and improve the child's educational needs, the administrative officer's analysis is
deserving of no deference.” A.M., 845 F.3d at 543 (internal citations omitted).
On this issue, the SRO cited 8 NYCRR § 200.6(h)(4)(i), which requires that a child with
management needs that interfere with the instructional process be placed in a classroom with no
more than 12 students, at least one teacher and one paraprofessional. The SRO held that C.B.’s
“learning and management needs were significant enough to interfere with the instructional
process,” and therefore she was appropriately placed in “a 12:1+1 special class placement at a
community school.” SRO Dec. at p. 8. The SRO failed to address the Parents’ challenge that a
12:1:1 classroom was too large for C.B. and that the CSE did not consider a smaller class
placement, and thus its holding does not warrant deference. E.H. v. New York City Dep’t of
Educ., 164 F.Supp. 3d 539, 553 (S.D.N.Y. 2016). The IHO’s decision is deficient for the same
reason, and also not entitled to deference. See e.g. J.C. v. Katonah-Lewisboro Sch. Dist., No. 161838, 2017 WL 1906729, at *1 (2d Cir. May 9, 2017) (summary order) (the hearing officer “was

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not required to automatically accept the [] recommendations as to class size, but he was required
to consider the recommendations and, if he rejected them, to convincingly explain why.”). 16
There is limited evidence in the record as to the appropriateness of a 12:1:1 class size.
Neither the classroom evaluation report, the Psychoeducational Report, nor any of the three
Progress Reports suggests an appropriate class size for C.B. See Exhs. 3, 4, 5, 6, 9. The DOE’s
only evidence supporting a 12:1:1 classroom size was testimony from Ms. Fuchs, who met C.B.
for approximately one hour during the classroom evaluation at the JCSE. She observed that C.B.
was passive, failed to interact with the other students, and needed the teacher’s help to complete
the assignment. Ex. 3. She testified about the recommended class size as follows:
Q: . . . why did the team recommend a [12:1:1] special class for [C.B.]? . . .
A: Okay. Because there is up to 12 children in the class, one teacher, one
paraprofessional. We felt that she would be able to get the—the necessary attention.
You know she would be learning with children that would be – that might be within the
same type of focus, you know, but even though she has her own, you know, Individual
Education Program, we felt that this would be a proper placement for her to – to succeed
in reaching her goals. (Tr. 77) . . .
A: We felt that that would be—that that could appropriately address [C.B.]’s needs. That
we thought that the class, if she was in a Department of Education program, that type of
class could appropriately address her goals, her needs, her related services, and could
help her to achieve academic success. (Tr. 81-82).
Ms. Fuchs later testified that the CSE never considered recommending a class of fewer than 12
students. Tr. 96. This testimony makes no specific reference to C.B.’s particular circumstances

16

The IHO notes that C.B. was making progress in a small setting at the JCSE, but there was
nothing “in the record that specifically indicates that the student could not learn in a classroom
with a slightly larger student to teacher ratio,” and there was “no clinical support for a conclusion
that the size of the recommended placement was inappropriate for the student.” IHO Dec. at p.
11. This holding improperly places the burden on the Parents to show why a placement is
inappropriate, and is inconsistent with the IHO’s simultaneous ruling that the available
evaluative information was sufficient to assure C.B. a FAPE. IHO Dec. at pp. 10-11.
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and needs, and it does not explain how any evaluative information affirmatively shows that a
12:1:1 class placement will allow C.B. to progress. P.L., 56 F. Supp. 3d at 165.
Conversely, the Parents’ three witnesses testified that a 12:1:1 placement would be too
large for C.B. Ms. Rabinowitz testified that a 12:1:1 class would be “very difficult” because of
C.B.’s language and focusing issues, and that C.B. needs a “very small class” with no more than
eight students. Tr. 360-61, 400. The Mother testified that during the IEP meeting she told the
CSE that a 12:1:1 class was “too big.” Tr. at 274, 293. Ms. Rosen testified that that class size
would be “too big, because I think she’s going to be distressed. And I also think that she needs
smaller groups for more direct instruction in reading and math.” Tr. 230.
The private school’s class size does not bind the CSE in formulating the IEP. A.M., 845
F.3d at 545. However, the DOE’s failure to consider a smaller classroom size may deny a
student a FAPE when all witnesses familiar with the student testify that she required a certain
placement, and that testimony is not adequately rebutted by DOE witnesses. See C.F., 746 F.3d
at 81. Indeed, if the “consensus of the evaluative materials and all witnesses familiar with the
child . . . specifically recommend the continued need” for a certain placement, the DOE must
point to evidence sufficient to counter those recommendations in order to appropriately
recommend a different placement for the student. A.M., 845 F.3d at 545; see also J.E. v. New
York City Dep't of Educ., 229 F. Supp. 3d 223 n.4 (S.D.N.Y. 2017) (“Where the parent and the
student's prior teacher advocate for a more restrictive ratio, there is reason to believe that the
IEP's deviation toward a less restrictive classroom environment—without documentation
indicating that such a deviation is appropriate—constitutes a substantive violation of the
IDEA.”).

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It is the DOE’s burden to prove by a preponderance of the evidence that the 12:1:1 class
ratio would have allowed C.B. to progress. Ms. Fuchs’ testimony does not satisfy that burden.
Ms. Fuchs met C.B. one time in a classroom with seven students, and testified in generic
language about the appropriateness of a 12:1:1 classroom. Her anemic testimony is countered by
the testimony of all three witnesses with intimate knowledge of C.B. that she needed a smaller
class size, and the IEP’s acknowledgment that C.B. was making “slow but steady progress” in
her class of seven students at the JCSE. Additionally, Ms. Fuchs testified that the CSE did not
even consider recommending a class size of fewer than 12 students, in clear violation of its
obligation to consider the Mother’s request for a smaller, 7:1:1 classroom. E.H., 164 F.Supp. 3d
at 553 (“CSE was obligated to consider the Parent's point of view that a [12:1:1] placement was
not appropriate for [the student] and [7:1:1] was necessary, particularly in light of the fact that
[the student] was then being educated in a [7:1:1] ratio.”).
Moreover, “the issue of classroom placement ratio cannot be separated from [] the
procedural violations discussed above.” C.F., 746 F.3d at 81. “Indeed, we are left to wonder
whether the DOE would have reached the same conclusions and recommended the same
deficient services in the IEP . . . had the DOE adequately complied with the IDEA's procedures
in the first instance.” A.M., 845 F.3d at 545. The witnesses who recommended a smaller class
size did so out of concerns about C.B.’s language, social and focusing issues, which should have
been assessed by the appropriate reevaluations. The failure to reevaluate resulted in a lack of
information clinically tying C.B.’s deficits to a class size recommendation, which can be decisive
in making an appropriate placement recommendation. See e.g. J.C., 2017 WL 1906729, at *1.
The DOE failed to prove that C.B. could make adequate progress in a 12:1:1 class
placement, and thus deprived her of a FAPE. This conclusion is “inescapable” when combined

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with the CSE’s failure to reevaluate C.B., failure to consider her existing, initial evaluations,
failure to thoroughly and accurately summarize C.B.’s present performance levels, and the
deficiency and lack goals in numerous areas of need. See. e.g. A.M., 845 F.3d at 545; C.F., 746
F.3d at 81. The analysis now turns to the remaining prongs of the Burlington/Carter inquiry to
determine whether the Parents are entitled to reimbursement. 17
III.

Prong Two: Appropriateness of the Parents’ Unilateral Placement at the JCSE

The parents of a student who is denied a FAPE are entitled to reimbursement for the
tuition at their unilateral placement only if that placement is “reasonably calculated to enable the
child to receive educational benefits . . . such that the placement is likely to produce progress, not
regression.” T.K. v. New York City Dep't of Educ., 810 F.3d 869, 877 (2d Cir. 2016) (internal
citations omitted). Here, the IHO held that the JCSE provided an appropriate program for C.B.
IHO Dec. at p. 12. The DOE did not appeal that portion of the IHO’s decision, not does it
dispute that holding now, and the Court need not address this prong of the analysis.
IV.

Prong Three: Equitable Considerations

In the final step of a tuition reimbursement claim, the Court determines whether equitable
considerations favor the parents. M.H., 685 F.3d at 254. The SRO did not reach this issue. SRO
Dec. at pp. 9-10. The IHO held that the equities favored the Parents, because there was “nothing
in the record which sustains a finding that the parents have not cooperated with the CSE.” IHO
Dec. at p. 13. The IHO noted that the Mother attended the IEP meeting, visited P.S. 91 and

17

The Parents also challenge the DOE’s proposed placement of C.B. at P.S. 91. They argue that
the IEP required C.B. to be in second grade for the 2012-2013 school year, but that she would
have been placed in a fourth grade classroom as P.S. 91, had she attended. ECF 15-2, Pl. Memo.
of Law, at pp. 38-39. On this basis, they say that P.S. 91 was unable to implement the IEP and
the DOE failed to offer C.B. a FAPE. In light of our holding as to the IEP’s procedural and
substantive inadequacies, this argument need not be addressed.
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timely notified the DOE that she found the school inappropriate and planned to unilaterally place
C.B. in another school. Id.
There is additional evidence that supports this holding. First, the Mother made numerous
attempts to engage with the DOE regarding the IEP and school placement. After she failed to
receive a school placement by August 15, she proactively contacted the DOE to ask about the
placement notice. Pl. 56.1 St. at ¶ 60. She then immediately called P.S. 91 to schedule a tour
and reached out to the DOE for more information about the placement when she was told she
could not visit until September. Ex. L. After timely visiting the placement, she wrote to the
DOE again to express her concerns and notify them of her intention to unilaterally place C.B. at
a private school. Ex. D. The DOE never responded to those communications which illustrate
the Mother’s good faith attempts to work with the DOE, and the DOE’s unexplained refusal to
communicate openly with the Parents.
Second, it appears that the DOE withheld information from the Parents about the
proposed school placement at P.S. 91, namely that C.B. would have been placed in a fourth
grade classroom. The Mother toured the school in early September, after the school year had
begun, at which point the DOE undoubtedly knew C.B. would be placed in that classroom. Still,
the Mother was not shown the class into which her daughter would be placed and was never told
it was a fourth grade classroom, despite her numerous communications asking for information
about the class profile. The IDEA “does not entitle a school district to play fast-and-loose with
the disabled student's placement” in this manner. M.H. v. New York City Dep't of Educ., 712 F.
Supp. 2d 125, 167 (S.D.N.Y. 2010), aff'd, 685 F.3d 217 (2d Cir. 2012) (equitable considerations
weighed in Parents’ favor when the DOE was “less than forthcoming about the nature of [the
student’s] recommended placement”).

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Third, the DOE was on clear notice of its need to reevaluate C.B., but still failed to do so.
The Parents initiated a due process proceeding related to the 2011-2012 school year well before
the 2012 IEP meeting, primarily challenging the DOE’s failure to reevaluate C.B., but the CSE
did not conduct a single reevaluation for consideration in her 2012 IEP.
The DOE argues that the Parents never intended to accept a public school placement.
They say that the DOE called the Parents three times to reevaluate C.B. in January, March and
April 2012, but that no one picked up until the third call when the Mother stated she was not
interested in a public school placement. ECF 14-2, Def. Memo. of Law, at p. 30. They allege
that at the CSE meeting, the Mother stated her intent to seek reimbursement for C.B.’s placement
at the JCSE. Id. Other evidence in the record weighs against these claims. For example, the IEP
also states that “Parent stated that she would like an IEP to explore programs that would be
appropriate for her daughter’s academic needs,” and that “she would like an IEP at this time.”
IEP at p. 10. Similarly, the Mother testified that she never indicated an intent to be reimbursed
and that she genuinely sought the best placement for her daughter. Tr. 275. She also testified
that the CSE pressured her to accept an “IESP with SETSS” despite her repeated request for an
IEP. Tr. 274, 288-89.
A weighing of the equities tips decidedly in the Parents’ favor. Because they have
satisfied all three prongs of the analysis, the Parents are entitled to reimbursement of C.B.’s
tuition for the 2012-2013 school year.

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CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for summary judgment is granted, and the
Defendants’ cross-motion for summary judgment is denied. The decisions of the Impartial
Hearing Officer and State Review Officer are reversed. Defendants are ordered to reimburse
Plaintiffs for C.B.’s tuition at the JCSE for the 2012-2013 school year, minus any costs that have
already been paid pursuant to 20 U.C.S. § 1415(j). Plaintiffs may submit their request for
attorney’s fees to the Court with proper documentation.
SO ORDERED.
Dated:

Brooklyn, New York
September 28, 2017
/s/
I. Leo Glasser

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