Scott v. New York City Department of Education

Filing 26

OPINION AND ORDER. Plaintiff has succeeded on all three prongs of the Burlington/Carter test. Therefore, Plaintiff's motion for summary judgment is GRANTED, and the DOE's motion is DENIED. The Court notes, however, that it does not disturb the portions of the SRO's decision that direct the DOE to reevaluate C.S. By April 7, 2014, the parties shall submit a proposed judgment ordering the DOE to pay CCA the $46,500 tuition for the 2010-2011 school year. The Clerk of Court is di rected to terminate the motions at ECF Nos. 8 and 13 and to close the case. Re: 13 MOTION for Summary Judgment filed by New York City Department of Education, 8 MOTION for Summary Judgment filed by Linda Scott. (Signed by Judge Analisa Torres on 3/25/2014) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LINDA SCOTT, on behalf of and as parent and guardian
of C.S., a student with a disability,

3/25/14

Plaintiff,
-against-

12 Civ. 3558 (AT)

NEW YORK CITY DEPARTMENT OF EDUCATION,

OPINION
AND ORDER

Defendant.
ANALISA TORRES, District Judge:
Plaintiff, Linda Scott, individually and on behalf of her child, C.S., brings this action
against the New York City Department of Education (the “DOE”) pursuant to the Individuals
with Disabilities Education Act (the “IDEA”), 20 U.S.C. § 1400 et seq. Plaintiff seeks review of
the January 5, 2012 decision (the “SRO Op.”) of New York State Review Officer Justyn P. Bates
annulling the August 23, 2011 decision (the “IHO Op.”) of Impartial Hearing Officer James P.
Walsh, which found the DOE’s placement of C.S. substantively inappropriate and directed the
DOE to pay for C.S.’s private school tuition. The parties have cross-moved for summary
judgment. For the reasons stated below, Plaintiff’s motion is GRANTED, and the DOE’s motion
is DENIED.
STATUTORY FRAMEWORK
“The IDEA requires New York state to ‘provide disabled children with a free and
appropriate public education (‘FAPE’).’” M.W. ex rel. S.W. v. New York City Dep’t of Educ.,
725 F.3d 131, 135 (2d Cir. 2013) (quoting R.E. ex rel. J.E. v. New York City Dep’t of Educ., 694
F.3d 167, 174-75 (2d Cir. 2012)). “To ensure that qualifying children receive a FAPE, [the
DOE] must create an individualized education program (‘IEP’) for each such child.” R.E., 694
F.3d at 175. An IEP is a written statement that “‘describes the specially designed instruction and

services that will enable the child to meet’ stated educational objectives and is reasonably
calculated to give educational benefits to the child.” M.W., 725 F.3d at 135 (quoting R.E., 694
F.3d at 175); see 20 U.S.C. § 1414(d) (2012).
The DOE creates an IEP through a local Committee on Special Education (the “CSE”).
See N.Y. Educ. Law § 4402(1)(b)(1) (2013). At a minimum, the CSE is composed of the
student’s parent(s), a regular or special education teacher, a school psychologist, a school district
representative, an individual who can interpret the instructional implications of evaluation
results, a school physician and a parent of another student with a disability. See N.Y. Educ. Law
§ 4402(1)(b)(1)(a). Together, the members of “[t]he CSE must examine the student’s level of
achievement and specific needs and determine an appropriate educational program.” R.E., 695
F.3d at 175 (citing Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-08 (2d Cir. 2007)).
The CSE does not select the specific school where the student will be placed;
accordingly, the IEP does not specify a particular school site. See T.Y. v. New York City Dep’t of
Educ., 584 F.3d 412, 420 (2d Cir. 2009). “The [DOE’s] practice is to provide general placement
information in the IEP, such as the staffing ratio and related services, and then convey to the
parents a final notice of recommendation, or FNR[,] identifying a specific school at a later date.”
R.E., 694 F.3d at 191. Although a parent may visit the placement listed in the FNR before
deciding whether to accept it, “[t]he [DOE] may select the specific school without the advice of
the parent[] so long as it conforms to the program offered in the IEP.” Id. at 191-92 (citing T.Y.,
584 F.3d at 420).
If a parent believes that the DOE has breached its obligations under the IDEA “by failing
to provide their disabled child a FAPE, the parent may unilaterally place their child in a private
school at their own financial risk and seek tuition reimbursement.” M.W., 725 F.3d at 135 (citing
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Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 9-10, 16 (1993)). If the parent lacks the
financial resources necessary to front the costs of private school tuition, the parent may request
direct retroactive payment to the private school. See Mr. & Mrs. A. ex rel. D.A. v. New York City
Dep’t of Educ., 769 F. Supp. 2d 403, 427-29 (S.D.N.Y. 2011).
The process for seeking tuition reimbursement begins when a parent files a due process
complaint with the DOE. The due process complaint initiates administrative proceedings
involving an impartial due process hearing before an Impartial Hearing Officer (“IHO”). See
M.W., 725 F.3d at 135 (citing 20 U.S.C. §§ 1415(b)(6), (f); N.Y. Educ. Law § 4404(1)).
The three-pronged Burlington/Carter test, as construed by New York Education
Law § 4404(1)(c), governs that hearing: (1) the DOE must establish that the
student’s IEP [and identified class placement, if at issue,] actually provided a
FAPE; should the DOE fail to meet that burden, the parents are entitled to
reimbursement if (2) they establish that their unilateral placement was appropriate
and (3) the equities favor them.
Id. (citations and footnote omitted). “An IHO’s decision may, in turn, be appealed to a State
Review Officer (“SRO”), who is an officer of the State’s Department of Education.” M.H. v.
New York City Dep’t of Educ., 685 F.3d 217, 225 (2d Cir. 2012) (citing Grim v. Rhinebeck Cent.
Sch. Dist., 346 F.3d 377, 379-80 (2d Cir. 2003)); see N.Y. Educ. Law § 4404(2). Any party
aggrieved by the SRO’s final administrative decision has the right to seek review of it by
bringing a civil action in federal court. See M.W., 725 F.3d at 135-36; 20 U.S.C. §
1415(i)(2)(A).
BACKGROUND
I.

C.S.’s 2010-2011 IEP and Identified Class Placement
In kindergarten, Plaintiff’s son C.S. was diagnosed with autism. From that point until

C.S. completed junior high school, the DOE provided him with special education services. Pl.’s
56.1 Statement of Material Facts (“Pl.’s 56.1”) ¶¶ 4, 8. In September 2008, Plaintiff enrolled
3

C.S. at the Cooke Center Academy (“CCA”), a private special education high school in
Manhattan. Id. ¶ 9. The DOE paid C.S.’s tuition at CCA for the 2008-2009 and 2009-2010
school years. Id. ¶ 10.
On March 4, 2010, the CSE convened to conduct C.S.’s annual review and develop his
IEP for the upcoming 2010-2011 school year. Id. ¶ 33; Transcript of Proceedings before
Impartial Hearing Officer (“Tr.”) 262. The following individuals attended the meeting: Plaintiff;
Jacqueline Giurato, a special education teacher and district representative; Nancy Levine, a
school psychologist and Gloria Gonzalves, the parent member. Pl.’s 56.1 ¶ 34. The following
CCA staff participated in the meeting by telephone: Francis Tabone, the assistant head of CCA;
Leonard Plaia, C.S.’s math teacher; Chaya Gray, C.S.’s English language arts teacher and
Virginia Trainor, C.S.’s speech-language pathologist. Id.
In developing the IEP, the CSE relied on a sixteen-page report from CCA dated
November 2009, which identified C.S.’s progress and needs in various areas, R. Ex. 5, Giurato’s
November 17, 2009 classroom observation report, prepared after she observed C.S.’s
performance during a math lesson at CCA, R. Ex. 6, and the verbal input of Plaintiff and C.S.’s
then-current teachers at CCA. Tr. 278. The CSE did not consider C.S.’s last triennial evaluation
report, dated January 15, 2008, or his last speech-language evaluation from 2005. Tr. 308-11,
330; R. Ex. 7.
As a result of its March 4, 2010 meeting, the CSE issued an IEP designating C.S., who
was sixteen years old, as an eleventh grader for the 2010-2011 school year. R. Ex. 3. The IEP
recommended his placement in a 12:1:1 (student : teacher : paraprofessional) ratio, twelve-month
special class in a specialized school and found him eligible to receive the related services of
counseling, three times weekly for forty-five minutes in a group of three, and speech therapy,
4

also three times weekly for forty-five minutes in a group of three. R. Ex. 3 at 1, 13. In addition,
the IEP set forth C.S.’s annual goals and short-term objectives and provided for post-educational
transition services. R. Ex. 3.
On June 14, 2010, the DOE sent a final notice of recommendation (“FNR”) to Plaintiff,
which designated P373K @ Brooklyn Transition Center (“P373K”) as C.S.’s public school
placement for the 2010-2011 school year. R. Ex. 8. Although C.S.’s IEP recommended a
twelve-month class, the DOE allows parents to accept or decline summer services. Pl.’s 56.1 ¶
45; Def.’s Resp. to Pl.’s 56.1 Statement of Material Facts (“Def.’s Resp. 56.1”) ¶ 45. Plaintiff
had previously notified the CSE of her family’s summer vacation plans at the March 4, 2010
meeting, and Plaintiff declined summer services for C.S in a letter to the CSE, dated June 25,
2010. IHO Op. at 12; Tr. 515; R. Ex. V.
II.

C.S.’s Identified Placement Class and Plaintiff’s Unilateral Placement at CCA
In the June 25, 2010 letter, Plaintiff expressed concern about the appropriateness of

P373K following her visit to the school on June 18, 2010. R. Ex. V. She had met with the
school’s guidance counselor, Sharon Williams, but Plaintiff was neither shown any classes nor
given specific information about the type of class C.S. would attend and the related services he
would receive. Tr. 489-90; R. Ex. V. Because the DOE would automatically enroll C.S. in the
recommended placement unless it received a timely response to the FNR, Plaintiff explained in
the letter that she would reserve her decision to challenge the placement until after her second
visit to the school on July 13, 2010, “the earliest date [she] could get for the appointment.” R.
Ex. V.
On July 13, 2010, Plaintiff returned to P373K and again met with Sharon Williams. Tr.
491. Williams showed Plaintiff a 3:1:3 class for autistic students, informing her that no other
5

class was available for viewing. Tr. 492; R. Ex. W. According to Plaintiff, a paraprofessional
told her that most students at P373K were not receiving their required services. Tr. 495. By
letter to the CSE dated July 20, 2010, Plaintiff reiterated her concerns about P373K, noting that
the class she was shown had an inappropriate staffing ratio and the students she had seen were
significantly more autistic than C.S. R. Ex. W. Plaintiff’s letter also indicated that she had
spoken with the assistant principal of P373K, Linda Lublin-Brookoff, on July 16, 2010, and that
Lublin-Brookoff stated that she would be unable to provide Plaintiff with information about
C.S.’s specific class until the second week of August. R. Ex. W. Plaintiff’s letter stated that
“before [making] a final decision” to challenge the DOE’s placement, she needed to obtain
adequate information about P373K. R. Ex. W. When Plaintiff called Lublin-Brookoff on
August 9, 2010, Lublin-Brookoff said she could not provide Plaintiff with information until
September. Tr. 496-98; R. Ex. Z. The CSE did not respond to Plaintiff’s letters.
Following Plaintiff’s repeated, unsuccessful attempts to contact the CSE and the DOE,
including an August 12, 2010 call to the placement representative listed on the FNR, Plaintiff’s
attorney informed the DOE, by letter dated August 24, 2010, that Plaintiff would reenroll C.S. in
CCA for the 2010-2011 school year and seek an order directing that the DOE pay C.S.’s tuition.
R. Ex. Y. The letter also alleged inadequacies in the preparation of C.S.’s IEP and the
inappropriateness of P373K.
Prior to these events, Plaintiff had already signed an enrollment contract with CCA for
the 2010-2011 school year on April 23, 2010. R. Ex. K. Section 9(c) of the contract obligated
Plaintiff to pay tuition in the amount of $46,500 even if Plaintiff were to fail to obtain tuition
funding from the DOE. Section 10(b), however, released Plaintiff from the contract if she were
to accept the DOE’s placement and withdraw C.S. from CCA by October 31, 2010. R. Ex. K.
6

Persisting in her effort to gain further information about C.S.’s proposed class at P373K,
Plaintiff phoned Lublin-Brookoff on September 7, 2010. R. Ex. Z. Lublin-Brookoff returned
the call on September 14, and they scheduled a visit for September 17, 2010. On that day,
Plaintiff “had a very short meeting” with Lublin-Brookoff, and an administrative assistant then
showed Plaintiff a 6:1:1 class. Lublin-Brookoff, the class teacher and the administrative
assistant identified the 6:1:1 class as the one where C.S. would be placed. Tr. 501. The teacher
also told Plaintiff that two of the students were nonverbal and that one student was asleep and
another almost asleep due to medication. The students appeared to Plaintiff to be functioning at
significantly lower academic and social levels compared to C.S. Tr. 502-04; R. Ex. Z. Plaintiff
told the teacher that C.S. required a 12:1:1 class and, upon leaving the school, asked the
administrative assistant to convey to Lublin-Brookoff that the proposed class would be
inappropriate. Tr. 505. Plaintiff was not shown a 12:1:1 class at P373K where C.S. could be
placed. Tr. 521-24. By letter to the CSE dated September 23, 2010, Plaintiff recounted her
multiple attempts to gain information about C.S.’s proposed class and her final conclusion that
P373K would be inappropriate for C.S. R. Ex. Z.
III.

Plaintiff’s Due Process Complaint and the IHO Hearing
On April 12, 2011, Plaintiff filed a due process complaint with the DOE seeking direct

payment of C.S’s tuition for the 2010-2011 school year at CCA. R. Ex. 1. The complaint
alleged that “the DOE denied C.S. a FAPE because it failed to adequately evaluate C.S., failed to
prepare an appropriate IEP for him, and failed to offer him an appropriate public school
placement.” Pl.’s 56.1 ¶ 106.
IHO James P. Walsh held a hearing over three nonconsecutive days from June 14 to July
12, 2011. The DOE presented the testimony of four witnesses: Mark Horosky, a P373K special
7

education teacher; Linda Lublin-Brookoff, an assistant principal at P373K; Jaqueline Giurato, a
CSE special education teacher and Joyce Pariser, a CCA employee. Id. ¶ 111. Plaintiff testified
on her own behalf and called seven witnesses from CCA. Id. ¶ 112.
A portion of the testimony of Horosky and Lublin-Brookoff touched on the critical
question of which classroom C.S. would have been assigned to had he enrolled in P373K.
A. Horosky’s Testimony
Mark Horosky stated that he is a certified special education teacher and has worked at
P373K for six years. Tr. 36-37. During the twelve-month 2010-2011 school year (July through
June), he taught a class with a 12:1:1 (student : teacher : paraprofessional) ratio. Tr. 40-41.
Horosky observed that “summer school is a different program from September,” Tr. 127,
because “[i]t’s looser,” Tr. 96, and “more relaxed,” Tr. 127, “[with] a shorter school day . . .
[and] more social [and] physical activities.” Tr. 128. Horosky noted that some parents elect not
to enroll their child for the summer session. Tr. 44. He also explained that students entering
P373K in July 2010 were assigned to classrooms according to age, not grade, but that during the
school year, students are assigned by grade. Tr. 94-96. It was not Horosky’s job, however, to
determine where to place students. Tr. 91.
According to Horosky, by the first week of July, Horosky’s class had reached full
capacity with twelve students ranging in age from fifteen to seventeen years old. Tr. 45, 127.
Based on Horosky’s assessment of C.S.’s academic skills using C.S.’s IEP, Horosky surmised at
the hearing that had C.S. enrolled in Horosky’s class in July, “[C.S.] would have fit in my
classroom,” and “[h]e would have been on top . . . [i]n both reading and math.” Tr. 74. By
September, Horosky’s class was composed of ninth and tenth graders exclusively and had a full
complement of twelve students. Tr. 96, 101. Because Horosky’s 2010-2011 school year class
8

was composed exclusively of ninth and tenth graders and because students were assigned
according to grade by September, Horosky agreed that C.S., as an eleventh grader, would not
have been placed in Horosky’s class in September 2010. Tr. 105-06.
B. Lublin-Brookoff’s Testimony
Linda Lublin-Brookoff stated that she had served as assistant principal of P373K for six
years and that she holds early childhood and special education licenses and certificates. Tr. 44142. She testified that in her capacity as assistant principal, she was responsible for placing
students and that placements were determined on an ungraded basis during the summer. Tr. 442,
445. Lublin-Brookoff stated that she would have assigned C.S. to Horosky’s 12:1:1 class and
that C.S. would have remained there for the 2010-2011 school year “unless there was some issue
for any other reason during the summer that [she] could not predict.” Tr. 447. Lublin-Brookoff
was not asked and did not say what C.S.’s class assignment would have been had he arrived in
September. On cross-examination, Lublin-Brookoff disclosed that she made the determination
of C.S.’s class placement retrospectively, after October 2010, “[w]hen it was brought to [her]
attention . . . that there was a case.” Tr. 452. When asked whether Lublin-Brookoff made C.S.’s
placement determination “for the purpose of this litigation,” she responded, “[c]orrect.” Tr. 452.
Lublin-Brookoff also noted that “if a student doesn’t show up . . . I don’t have the student’s IEP,
I could not tell you at that moment in July, you know. He would have had to come here. And at
that time, when I would have seen it, I would have made the determination at that time.” Tr.
452-53.
IV.

IHO Decision
The IHO issued his decision on August 23, 2011. First, he determined that the CSE had

adequate evaluative data to prepare C.S.’s IEP. IHO Op. at 10. Specifically, the IHO found that
9

the information provided in the sixteen-page CCA progress report and the verbal input of
Plaintiff and C.S.’s then-current CCA teachers at the March 4, 2010 CSE meeting was sufficient
to develop the IEP. Id. at 9-10. Although the IHO observed that C.S.’s January 2008
evaluations were “less than satisfactory,” the IHO found that the CSE did not rely on those
evaluations. Second, the IHO determined that C.S.’s IEP was appropriate. Id. at 11. The IHO
also concluded that the IEP’s recommendation of speech therapy three times weekly for fortyfive minutes in a group of three, despite failing to conform to state regulatory requirements,
constituted only a procedural violation that did not rise to the level of denying C.S. a FAPE. Id.
at 10-11.
The IHO held, however, that the DOE failed to offer C.S. an appropriate placement at
P373K. Id. at 13. In arriving at this determination, the IHO cited Plaintiff’s unrebutted account
of events. In particular, the IHO noted that Plaintiff had notified the CSE that C.S. would not
attend the summer session, Tr. 515; R. Ex. V; IHO Op. at 12, and when Plaintiff visited the
school on September 17, 2010, school staff identified a 6:1:1 class as the class where C.S. would
be placed. Tr. 501, 521-24; IHO Op. at 11. The IHO stated that based on C.S.’s IEP and
testimony by Jacqueline Giurato, the special education teacher and district representative, this
6:1:1 class would have been inappropriate for C.S. The IHO also found that C.S. would not have
been placed in Horosky’s 12:1:1 class. IHO Op. at 12. The IHO relied on Horosky’s testimony
that C.S. would not have been assigned to his 12:1:1 class in September because C.S. had been
designated as an eleventh grader in his IEP and, as of September, Horosky’s class was full and
composed of ninth and tenth graders exclusively. Because Plaintiff had informed the CSE that
C.S. would not attend the summer session, the IHO held that “the issue of whether [C.S.’s]
program could have been effectively implemented by Teacher Horosky during the months of
10

July and August 2010 was moot.” Id. The IHO concluded, therefore, that the DOE failed to
offer C.S. an appropriate placement at P373K, thereby denying C.S. a FAPE for the 2010-2011
school year. IHO Op. at 13.
In explaining his reliance on Horosky’s testimony, the IHO explicitly “discredit[ed] the
contrary testimony provided by Witness Lublin-Brookoff (T.R. 452).” IHO Op. at 12. The IHO
did not elaborate further on the basis for his rejection of her testimony beyond citing page 452 of
the hearing transcript where Lublin-Brookoff stated that she had determined C.S.’s placement
when she was first shown his IEP “in October 2010, or later” and that she made the
determination “for the purpose of this litigation.” Tr. 452 (emphasis added).
Having found that the DOE denied C.S. a FAPE, the IHO held that CCA was an
appropriate placement for C.S. and that equitable considerations favored an award of a direct
tuition payment to CCA. IHO Op. at 14, 16. Regarding equitable considerations, the IHO
rejected the DOE’s contention that Plaintiff’s enrollment of C.S. in private school in April 2010
established her lack of good faith in working with the CSE because CCA’s contract relieved
Plaintiff of any financial obligation if she were to accept the DOE placement by October 31,
2010. IHO Op. at 15. The IHO also rejected the “negative connotation[]” that the DOE
attributed to Plaintiff’s August 24, 2010 written notice of her intent to unilaterally place C.S.
because federal law required Plaintiff to reject the DOE’s proposed placement “no less than ten
days prior to the commencement of the school year.” IHO Op. at 15. The IHO then found that
Plaintiff lacked the financial resources to pay CCA tuition upfront and that Plaintiff, therefore,
qualified for a direct retroactive payment to CCA. IHO Op. at 16. Accordingly, the IHO granted
Plaintiff’s due process complaint and directed the DOE to pay CCA $46,500. Id.

11

V.

SRO Decision
On September 27, 2011, the DOE appealed the IHO’s decision to the SRO on the

following grounds: (1) the DOE offered C.S. a FAPE for the 2010-2011 school year; (2)
equitable considerations did not support an award of tuition repayment; and (3) an award of
tuition repayment was inappropriate because Plaintiff was not actually liable to CCA for the cost
of tuition. Pl.’s 56.1 ¶ 138. The DOE did not appeal the issue of whether CCA was an
appropriate placement for C.S. Pl.’s 56.1 ¶ 139; Def.’s Resp. 56.1 ¶ 139.
On October 28, 2011, Plaintiff sought dismissal of the DOE’s appeal and cross-appealed
portions of the IHO’s findings on the grounds that: (1) the DOE denied C.S. a FAPE for the
2010-2011 school year by failing to adequately evaluate him and prepare an appropriate IEP; (2)
the IHO did not determine whether P373K was a placement reasonably calculated to address
C.S.’s speech-language needs; (3) the IHO incorrectly allocated the burden of proof on Plaintiff
when considering the equities; and (4) the IHO incorrectly made a statement that CCA was the
only interested party in the outcome of the hearing. Pl.’s 56.1 ¶¶ 140-42.
SRO Justyn P. Bates issued his decision on January 5, 2012. The SRO agreed with the
IHO’s finding that, in light of the CSE’s use of the CCA progress report and the verbal input
from Plaintiff and CCA teachers at the March 4, 2010 meeting, the CSE had sufficient evaluative
data to develop C.S.’s IEP. SRO Op. at 10. The procedural errors involved in evaluating C.S.,
therefore, did not rise to the level of denying C.S. a FAPE. SRO Op. at 12-16. The SRO
declined to address the CSE’s failure to consider C.S.’s January 2008 evaluations because the
issue fell outside the scope of Plaintiff’s due process complaint and was not addressed below by
the IHO. SRO Op. at 12-13. The SRO also agreed with the IHO’s finding that the IEP’s failure

12

to recommend speech therapy services conformant to state regulatory requirements was a
procedural error but did not constitute the denial of a FAPE. SRO Op. at 14-15.
The SRO, however, reversed the IHO’s holding that the DOE failed to offer C.S. an
appropriate public school placement at P373K. SRO Op. at 17. The SRO relied on LublinBrookoff’s testimony that had C.S. attended the summer session at P373K, he would have
continued in Horosky’s 12:1:1 class in September 2010. SRO Op. at 18-20; Tr. 444-47. The
SRO held that “the weight of the evidence” supported Lublin-Brookoff because her testimony on
the issue of C.S.’s September placement “evidenced no equivocation whatsoever,” while
Horosky’s testimony was “at best, equivocal.” SRO Op. at 19. The SRO credited LublinBrookoff because “she had the direct responsibility for placing incoming students into
classrooms—not [Horosky],” and because “the hearing record does not contain any evidence that
would call into question [Lublin-Brookoff’s] testimony.” Id. The SRO also found that the IHO
had discredited Lublin-Brookoff’s testimony “[w]ithout any explanation.” Id. The SRO noted
further that P373K’s placement of students on an ungraded basis complied with state regulations.
Id.; see N.Y. Comp. Codes. R. & Regs. tit. 8, § 200.6(h)(5). Additionally, the SRO held that the
DOE “was no longer obligated to maintain an opening in the 12:1[:]1 class” for C.S. once
Plaintiff had enrolled him in CCA and notified the DOE of her tuition claim in her August 24,
2010 letter. SRO Op. at 19.
Although the SRO acknowledged that Plaintiff had visited the school in June, July and
September, the SRO did not mention Plaintiff’s testimony that on September 17, 2010, Plaintiff
was shown a 6:1:1 class and was told by Lublin-Brookoff, the administrative assistant and the
6:1:1 class teacher that this was the class where C.S. would be placed. The SRO held that
although Plaintiff’s September visit “exhibits a spirit of continued cooperation and collaboration
13

that may be relevant to the analysis of equitable considerations, it is not relevant to whether the
district’s recommended 2010-11 IEP offered the student a FAPE.” SRO Op. at 19 n.19.
The SRO sustained the DOE’s appeal, dismissed Plaintiff’s cross-appeal and annulled the
IHO’s decision. Id. at 22. Having concluded that the DOE met its obligation to offer C.S. a
FAPE, the SRO did not consider whether CCA was an appropriate placement for C.S., whether
equitable considerations favored Plaintiff’s tuition claim, or whether Plaintiff qualified for a
direct retroactive payment to CCA. Id.
DISCUSSION
I.

Standard of Review
Although the parties have sought relief from the Court by motions for summary

judgment, “the procedure is in substance an appeal from an administrative determination, not a
summary judgment.” Lillbask ex rel. Mauclaire v. Conn. Dep’t of Educ., 397 F.3d 77, 83 n.3 (2d
Cir. 2005) (citing Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 892 (9th Cir.
1995)); see also M.W., 725 F.3d at 138 (“Summary judgment in the IDEA context, therefore, is
only a ‘pragmatic procedural mechanism for reviewing administrative decisions’”) (quoting T.P.
ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir. 2009) (per
curiam)). “An IDEA action, however, differs from an ordinary summary judgment motion
because the existence of a disputed issue of material fact will not defeat the motion.” J.R. v. Bd.
of Educ. of Rye Sch. Dist., 345 F. Supp. 2d 386, 394 (S.D.N.Y. 2004) (citing Antonaccio v. Bd. of
Educ. of Arlington Cent. Sch. Dist., 281 F. Supp. 2d 710, 714 (S.D.N.Y. 2003)). Accordingly, “a
motion for summary judgment in an IDEA case often triggers more than an inquiry into possible
disputed issues of fact.” Lillbask, 397 F.3d at 88 n.3. Rather, “[t]he Court in such cases
conducts an ‘independent judicial review,’” A.M. ex rel. Y.N. v. New York City Dep’t of Educ.,
14

12 Civ. 5573, 2013 WL 4056216, at *4 (S.D.N.Y. Aug. 9, 2013) (quoting Walczak v. Fla. Union
Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998)), and “base[s] [its] decision[] on ‘the
preponderance of the evidence,’” Grim, 346 F.3d at 380 (citing 20 U.S.C. § 1415(i)(2)(B)).
Although the Court is not required to base its decision on more than the preponderance of
the evidence, “it must give due weight to the administrative proceedings [of the IHO and SRO],
mindful that the judiciary generally lacks the specialized knowledge and experience necessary to
resolve persistent and difficult questions of educational policy.” T.P., 554 F.3d at 252 (quoting
Gagliardo, 489 F.3d at 113) (internal quotation marks omitted). “Thus, [the Court] may not
‘substitute [its] own notions of sound educational policy for those of the school authorities [it]
review[s].’” A.C. ex rel. M.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165,
171 (2d Cir. 2009) (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458
U.S. 176, 206 (1982)). The Court is “not to make subjective credibility assessments[] and cannot
choose between the views of conflicting experts on controversial issues of educational policy in
direct contradiction of the opinions of state administrative officers who [have] heard the same
evidence.” M.H., 685 F.3d at 240 (quoting Grim, 346 F.3d at 383) (internal quotation marks
omitted). In this way, “the role of the federal courts in reviewing state educational decisions
under the IDEA is circumscribed.” Id. (quoting Gagliardo, 489 F.3d at 112) (internal quotation
marks omitted); see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 191 (2d Cir. 2005)
(“In reviewing the administrative proceedings, it is critical to recall that IDEA’s statutory scheme
requires substantial deference to state administrative bodies on matters of educational policy.”).
When, as here, the IHO and SRO reach conflicting conclusions, “reviewing courts are not
entitled to adopt the conclusions of either state reviewer according to their own policy

15

preferences or views of the evidence; courts must defer to the reasoned conclusions of the SRO
as the final state administrative determination.” M.H., 685 F.3d at 246. However,
[T]he deference owed to an SRO’s decision depends on the quality of that opinion.
Reviewing courts must look to the factors 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.”
R.E., 694 F.3d at 189 (quoting M.H., 685 F.3d at 244). “But the district court’s determination of
the persuasiveness of an administrative finding must also be colored by an acute awareness of
institutional competence and role.” M.H., 685 F.3d at 244. The court should, therefore, afford
more deference to administrative findings that an IEP is substantively adequate, id. (citing Cerra,
427 F.3d at 195), and to findings “grounded in thorough and logical reasoning,” id. (citing
Walczak, 142 F.3d at 129), than to determinations about whether procedure has been properly
complied with. Id. Additionally, the court should show greater deference when, as here, “its
review is based entirely on the same evidence as that before the SRO.” Id. That said, if the court
“appropriately concludes that the SRO’s determinations are insufficiently reasoned to merit that
deference, and in particular where the SRO rejects a more thorough and carefully considered
decision of an IHO, it is entirely appropriate for the court” to defer to the IHO’s analysis. Id. at
246; accord R.E., 694 F.3d at 189.
II.

Issues for Review
The three-pronged Burlington/Carter test governs petitions for tuition reimbursement

under the IDEA. See Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 242-43 (2009); see also
A.C., 553 F.3d at 171. Under the first prong, where “the educational authority bears the burden
of proving that its IEP and recommended placement were adequate and appropriate,” C.F. ex rel.
R.F. v. New York City Dep’t of Educ., 11 Civ. 00157, 2011 WL 5130101, at *7 (S.D.N.Y. Oct.
16

28, 2011) at *7 (citing N.Y. Educ. Law § 4404(1)(c)), vacated and remanded, 11-5003, 2014
WL 814884 (2d Cir. Mar. 4, 2014), “the [C]ourt conducts a review of both the procedural and
substantive adequacy of the underlying decision.” A.M., 2013 WL 4056216, at *5 (quoting B.O.
v. Cold Spring Harbor Cent. Sch. Dist., 807 F. Supp. 2d 130, 134 (E.D.N.Y. 2011)). “At the first
step, courts examine whether . . . the state has complied with the procedures set forth in the
IDEA.” R.E., 694 F.3d at 190 (quoting Cerra, 427 F.3d at 192) (internal quotation marks
omitted). At the second step, courts examine whether the state’s decision “was substantively
adequate, namely, whether it was ‘reasonably calculated to enable the child to receive
educational benefits.’” Id. (quoting Rowley, 458 U.S. at 206-07).
“The initial procedural inquiry in an IDEA case ‘is no mere formality,’ as ‘adequate
compliance with the procedures prescribed would in most cases assure much if not all of what
Congress wished in the way of substantive content in an IEP.” A.C., 553 F.3d at 172 (quoting
Walczak, 142 F.3d at 129). “[H]owever, it does not follow that every procedural error in the
development of an IEP renders that IEP legally inadequate under the IDEA.” Grim, 346 F.3d at
381. A procedural violation renders an IEP inadequate only when the violation “‘impeded the
child’s right to a FAPE,’ ‘significantly impeded the parents’ opportunity to participate in the
decision-making process,’ or ‘caused a deprivation of educational benefits.’” M.W., 725 F.3d at
139 (quoting R.E., 694 F.3d at 190); see 20 U.S.C. § 1415(f)(3)(E)(ii)). “Multiple procedural
violations may cumulatively result in the denial of a FAPE even if the violations considered
individually do not.” R.E., 694 F.3d at 190 (citing Werner v. Clarkstown Cent. Sch. Dist., 363 F.
Supp. 2d 656, 659 (S.D.N.Y. 2005)).
“‘A school district fulfills its substantive obligations under the IDEA if it provides an
IEP that is likely to produce progress, not regression, and if the IEP affords the student with an
17

opportunity greater than mere trivial advancement.’” A.C., 553 F.3d at 173 (quoting Cerra, 427
F.3d at 195). But a school district is not required to furnish “every special service necessary to
maximize each handicapped child’s potential,” Rowley, 458 U.S. at 199, or “everything that
might be thought desirable by loving parents.” Walczak, 142 F.3d at 132 (citation and internal
quotation marks omitted). Nonetheless, “‘the door of public education must be opened in a
meaningful way.’” M.W., 725 F.3d at 143 (quoting P. ex rel. Mr. & Mrs. P. v. Newington Bd. of
Educ., 546 F.3d 111, 119 (2d Cir. 2008)). Like an IEP, a recommended placement may be
substantively inappropriate. See M.H. v. New York City Dep’t of Educ., 712 F. Supp. 2d 125,
161-63 (S.D.N.Y. 2010) (holding that the student’s proposed classroom was substantively
inappropriate), aff’d, 685 F.3d 217 (2d Cir. 2012). “Substantive inadequacy automatically
entitles the parents to reimbursement.” M.W., 725 F.3d at 143 (quoting R.E., 694 F.3d at 190).
III.

First Prong of Burlington/Carter: Procedural and Substantive Adequacy
A. Procedural Adequacy
Plaintiff alleges the following procedural violations: (1) the DOE’s failure to conduct an

adequate triennial evaluation, a timely speech-language reevaluation and a transitional or
vocational assessment; (2) the CSE’s failure to consider C.S.’s January 15, 2008 triennial
evaluation report during its March 4, 2010 meeting; (3) the IEP’s failure to mandate speechlanguage instruction compliant with then-current state regulations; and (4) the substantive denial
of a FAPE arising from the cumulative impact of the foregoing procedural violations. Pl.’s
Mem. 19-22.
1. DOE’s Alleged Failure to Conduct Adequate Evaluations
Plaintiff alleges numerous procedural violations concerning the adequacy of C.S.’s
evaluations. First, Plaintiff argues that C.S.’s January 2008 evaluations were not “sufficiently
18

comprehensive to identify all of [C.S.’s] special education and related services needs,” as
required by 34 C.F.R. § 300.304(c)(6). Pl.’s Mem. 19-20. The IHO and SRO agreed that the
January 2008 evaluations “‘were less than satisfactory’” and would have ultimately provided the
CSE with “‘little meaningful information’” about C.S. They also found that the CSE did not
actually rely on the January 2008 evaluations in developing the IEP. SRO Op. at 11 (quoting
IHO Op. at 9). Their findings are supported by the record. Tr. 311, 330. Accordingly, the Court
agrees with the IHO’s and SRO’s conclusion that the adequacy of the January 2008 evaluations
is irrelevant in determining whether the IEP was legally adequate.
Second, Plaintiff argues that the DOE’s failure to conduct an updated speech-language
evaluation deprived the CSE of information necessary to adequately develop the IEP. See Pl.’s
Mem. 21. At the time of the CSE meeting, C.S.’s last speech-language evaluation was
approximately five years old, having been conducted in 2005. The DOE, however, must
reevaluate a student every three years. See 34 C.F.R. § 300.303(b)(2); see N.Y. Comp. Codes. R.
& Regs. tit. 8, § 200.4(b)(4). Plaintiff contends, therefore, that the IEP was legally inadequate.
Plaintiff is incorrect. Given the information provided by C.S.’s CCA speech-language
pathologist, Virginia Trainor, at the March 4, 2010 meeting, the CSE had sufficient evaluative
data to develop the IEP. SRO Op. at 13-14; IHO Op. at 9-10. Therefore, the Court agrees with
the IHO’s and SRO’s finding that the DOE’s failure to timely reevaluate C.S. in the area of
speech-language amounted to a procedural violation which did not render the IEP legally
inadequate. Cf. A.M., 2013 WL 4056216, at *6-8 (affirming an SRO’s decision that sufficient
information was available to the CSE to develop the IEP despite procedural violations).
Third, Plaintiff argues that the DOE’s failure to conduct a transitional or vocational
assessment of C.S. resulted in an IEP that failed to establish adequate post-educational transition
19

goals and strategies as required by N.Y. Comp. Codes. R. & Regs. tit. 8, § 200.4(d)(2)(ix). Pl.’s
Mem. 20-21. The IHO and SRO agreed that the CSE’s reliance on the CCA progress report and
input from C.S.’s then-current CCA providers overcomes this procedural deficiency. SRO Op.
at 16; IHO Op. at 10. Their finding is supported by the record, as the IEP included annual goals,
short-term objectives and recommended transition services. R. Ex. 3.
“[W]hether a procedural or a substantive issue[,] the sufficiency of goals and strategies in
an IEP is precisely the type of issue upon which the IDEA requires deference to the expertise of
the administrative officers.” Grim, 346 F.3d at 382. Granting the appropriate deference to the
IHO and SRO, the Court rejects Plaintiff’s arguments and finds that the DOE’s failure to conduct
a transitional or vocational assessment did not render the IEP legally inadequate. Cf. M.W., 725
F.3d at 140 (holding that a “[f]ailure to conduct a [functional behavioral assessment] . . . does not
render an IEP legally inadequate under the IDEA so long as the IEP adequately identifies a
student’s behavioral impediments and implements strategies to address that behavior.”).
2. CSE’s Failure to Consider C.S.’s January 2008 Evaluations
Plaintiff asserts that the CSE’s failure to consider C.S.’s January 2008 evaluations at the
CSE meeting despite the CSE’s obligation to “consider . . . [the] results of the initial or most
recent evaluation of the child” pursuant to 34 C.F.R. § 300.324(a)(1)(iii) renders the IEP legally
inadequate. Pl.’s Mem. 20-21. The IHO, however, did not reach this issue, and the SRO
properly declined to review it because Plaintiff did not raise it in her initial due process
complaint. SRO Op. at 12.
The IDEA provides that the party requesting a due process hearing “shall not be allowed
to raise issues at the . . . hearing that were not raised in the notice . . . unless the [opposing] party
agrees otherwise.” 20 U.S.C. § 1415(f)(3)(B); see also B.P. v. New York City Dep’t of Educ.,
20

841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012) (“The scope of the inquiry of the IHO, and therefore
the SRO and this Court, is limited to matters either raised in the [p]laintiffs’ impartial hearing
request or agreed to by [d]efendant.”). The Second Circuit has explained the importance of this
requirement, noting that the IDEA affords a school district thirty days to remedy the alleged
deficiencies in a party’s due process complaint without penalty in order to ensure fairness for
both the parents and the school district. See R.E., 694 F.3d at 187-88 (citing 20 U.S.C. §
1415(f)(1)(B)). If a complainant were not obligated to outline all issues in the initial due process
complaint, this statutorily-established thirty day “resolution period” could not function. See id.
at 187 n.4. The complainant would be permitted “to add a new claim after the resolution period
has expired . . . [and could thereby] sandbag the school district.” Id. More importantly, this
Court’s jurisdiction is statutorily limited to hearing only civil actions “with respect to the [due
process] complaint presented.” 20 U.S.C. § 1415(i)(2)(A). The Second Circuit, therefore, has
held that “[f]ailure to exhaust the [administrative] remedies provided in [the IDEA’s] review
process . . . deprives a federal court of subject-matter jurisdiction to consider the claim on appeal
from the SRO.” A.M., 2013 WL 4056216, at *10 (citing Cave v. E. Meadow Union Free Sch.
Dist., 514 F.3d 240, 243 (2d Cir. 2008)).
Moreover, Plaintiff’s broad allegation in the due process complaint that the IEP was “not
based upon adequate evaluations” is not sufficient to raise the subsidiary issue of the CSE’s
failure to consider the January 2008 evaluations. Because this argument invites undermining of
the “resolution period” and unfair sandbagging of the DOE, the Court rejects it.
Relying upon M.H. v. New York City Department of Education, Plaintiff attempts to
circumvent the failure to address the issue in the initial due process complaint by arguing that the
DOE “opened the door” to the issue at the hearing. Pl.’s Opp’n 19 (citing M.H., 685 F.3d at
21

250). But the principles of M.H. cannot reasonably be extended to this case. In M.H., the DOE
raised the disputed issue “first in its opening statement, and then in the questioning of its first
witness,” and “much of the testimony presented by both parties to the IHO related to the [issue].”
M.H., 685 F.3d at 250. Here, the DOE only briefly addressed the issue in its redirect
examination of its witness following Plaintiff’s raising the issue on cross-examination. Tr. 311,
330-32. The Court holds, therefore, that the DOE did not agree to the expansion of the due
process complaint. Accordingly, the Court lacks subject matter jurisdiction to review whether
the DOE’s failure to consider C.S.’s January 2008 evaluations rendered his IEP legally
inadequate. E.g., A.M., 2013 WL 4056216, at *10 (declining to extend M.H. for similar reasons).
3. Noncompliance with Regulatory Requirements for Speech-Instruction Services
Plaintiff argues that the CSE’s failure to recommend speech-instruction services in the
frequency and amount required by state regulations renders the IEP legally inadequate. Pl.’s
Mem. 17. At the time the IEP was prepared, New York regulations required that “[i]nstructional
services . . . be provided to meet the individual language needs of a student with autism for a
minimum of 30 minutes daily in groups not to exceed two, or 60 minutes daily in groups not to
exceed six.” N.Y. Comp. Codes R. & Regs, tit. 8, § 200.13(a)(4) (amended 2010); see also P.K.
ex rel. S.K. v. New York City Dep’t of Educ., 819 F. Supp. 2d 90, 109 n.9 (E.D.N.Y. 2011)
(quoting pre-2010 regulation). C.S.’s IEP, however, recommended speech therapy three times
weekly for 45 minutes in a group of three. R. Ex. 3 at 13.
Plaintiff cites the Second Circuit’s opinion in T.Y. v. New York City Department of
Education for the proposition that an IEP that does not contain the specific frequency and ratio
requirements set forth in section 200.13(a)(4) is per se legally inadequate. 584 F.3d 412.
Plaintiff is incorrect. In T.Y., the Second Circuit agreed with the IHO’s conclusion that
22

additional speech and language services were warranted because the record showed that the “IEP
did not effectively meet T.Y.’s speech and language needs,” not because the IEP did not comply
with the regulations. T.Y., 584 F.3d at 417. In fact, the IHO in T.Y. stated, “I find that the level
of speech and language services, although they may meet the requirements of section
200.13(a)(4), do not meet the child’s needs.” IHO Diane Cohen Op. at 12, T.Y., 584 F.3d 412.
In this case, although the IHO and SRO agreed that the IEP failed to comply with the regulation,
both found that the noncompliance constituted only a procedural violation that did not rise to the
level of denying C.S. a FAPE. SRO Op. at 14-15; IHO Op. at 10-11. Because the record reflects
that the speech-instruction services recommended in the IEP, its noncompliance notwithstanding,
were determined with the use of the CCA progress report and the input of individuals familiar
with C.S.’s needs, including then-current CCA providers and Plaintiff, the Court defers to the
IHO’s and SRO’s expertise and holdings on this issue. See SRO Op. at 15; IHO Op. at 11; Tr.
299, 517-19.
4. The Cumulative Impact of Procedural Violations
Plaintiff alleges that the foregoing procedural violations cumulatively denied C.S. a
FAPE even if they individually did not. Pl.’s Mem. 22. The IHO and SRO erred in neglecting to
address this issue. E.g., R.K. v. New York City Dep’t of Educ., 09 Civ. 4478, 2011 WL 1131492,
at *25 (E.D.N.Y. Jan. 21, 2011) (noting that the SRO improperly failed to consider the
cumulative effect of procedural violations), adopted, 09 Civ. 4478, 2011 WL 1131522 (E.D.N.Y.
Mar. 28, 2011), aff’d, R.E., 694 F.3d 167 (2d Cir. 2012). In laying out the applicable legal
standards, each administrative officer’s decision neglected to recognize that a substantive denial
of a FAPE may arise from the combination of individually innocuous procedural violations.

23

Their lack of direct consideration notwithstanding, the Court still finds guidance on this
issue in their decisions. The IHO and SRO agreed that these procedural violations did not render
C.S.’s IEP legally inadequate for the same reason: the CSE’s reliance on the CCA progress
report and the input from C.S.’s then-current CCA providers resulted in an adequate IEP. SRO
Op. at 15; IHO Op. at 10. In this instance, that rationale applies equally to the whole as it does to
the parts. The Court, therefore, holds that the DOE’s procedural violations did not cumulatively
deny C.S. a FAPE.
B. Substantive Adequacy
Although the Court agrees with the SRO that C.S. received a procedurally adequate
FAPE, it disagrees that C.S. received a substantively adequate one. Plaintiff alleges that the
DOE’s failure to offer C.S. an adequate placement in a 12:1:1 class and P373K’s inability to
provide C.S. with adequate speech-instruction services constitute substantive violations and a
denial of a FAPE. The IHO concluded that the DOE did not establish that it had offered C.S. an
adequate placement and therefore denied C.S. a FAPE, but the SRO reversed. For the reasons
stated below, the Court concurs with the IHO and as a result, Plaintiff satisfies the first prong
under Burlington/Carter.
Plaintiff’s chief substantive objection is that the DOE offered C.S. a placement class with
a 6:1:1 (student : teacher : paraprofessional) ratio instead of a 12:1:1 ratio as required by C.S.’s
IEP. “[A] parent may challenge the adequacy of a placement classroom—even if the child never
enrolled in the school—if the alleged defects were reasonably apparent to either the parent or the
school district when the parent rejected the placement.” E.A.M. v. New York City Dep’t of Educ.,
11 Civ. 3730, 2012 WL 4571794, at *11 (S.D.N.Y. Sept. 29, 2012). After Lublin-Brookoff, the
assistant principal, and two other staff members indicated to Plaintiff on September 17, 2010
24

during her third visit to the school that a 6:1:1 class would be C.S.’s placement class and after the
DOE had otherwise failed to respond to Plaintiff’s repeated overtures to discuss her concerns,
Plaintiff, by letter dated September 23, 2010, advised the DOE of her final decision not to enroll
C.S. in P373K. R. Ex. Z. The IHO, crediting Plaintiff’s account of the events and Horosky’s
testimony that his 12:1:1 class was full and comprised of only ninth and tenth grade students in
September, found that the DOE failed to offer C.S. a FAPE. IHO Op. at 11-13. Upon
administrative appeal, the SRO reversed the IHO, relying on the testimony of Lublin-Brookoff—
testimony that had been rejected by the IHO as not credible—and held that C.S. would have been
placed in Horosky’s 12:1:1 class. SRO Op. at 18-19. The SRO also found that the DOE was not
obligated to maintain an opening in the 12:1:1 class because Plaintiff had already enrolled C.S.
in CCA and notified the DOE of her tuition claim. Id. at 19. For the reasons stated below, the
Court declines to defer to the SRO’s decision and adopts the IHO’s well-reasoned findings on
this dispositive issue.
1. The SRO’s Conclusions Are Not Supported by the Record
As a preliminary matter, the SRO’s decision is in large part “thorough and careful.”
Walczak, 142 F.3d at 129 (noting the appropriateness of deference when a state officer’s review
has been thorough and careful). However, in situations when an SRO reverses the finding of an
IHO, “the court should give substantial deference to the SRO’s views of educational policy, but
less to the SRO’s factual findings or to its reasoning in general.” B.R. ex rel. K.O. v. New York
City Dep’t of Educ., 910 F. Supp. 2d 670, 675 (S.D.N.Y. 2012) (citing M.H., 685 F.3d at 241);
see also R.E., 694 F.3d at 189 (“a court must defer to the SRO’s decision on matters requiring
educational expertise unless it concludes that the decision was inadequately reasoned, in which
case a better-reasoned IHO opinion may be considered instead.”). In this case, the SRO’s
25

decision is inadequately reasoned and does not merit deference because the SRO: (1) failed to
carefully consider significant evidence; (2) failed to address obvious weaknesses and gaps in the
evidence; (3) mischaracterized the testimony of two critical witnesses; and (4) made an
impermissible credibility assessment.
a) Failure to Consider Significant Evidence
Conspicuously absent from the SRO’s decision is any mention of a factual allegation
critical to Plaintiff’s case: when Plaintiff visited P373K on September 17, 2010, three staff
members, including the assistant principal in charge of placement, told her that C.S. would be
assigned to the 6:1:1 class she observed that day. Tr. 454, 501-03, 523-24. The SRO
acknowledged the visit in a footnote, but held that it was “not relevant to whether the district[] . .
. offered the student a FAPE.” SRO Op. at 19 n.19. However, the information Plaintiff learned
during her visits is highly relevant in determining whether the proposed placement was
appropriate. See D.C. ex rel. E.B. v. New York City Dep’t of Educ., 950 F. Supp. 2d 494, 510
(S.D.N.Y. 2013) (“Prior to making a placement decision, a parent must have sufficient
information about the proposed placement school’s ability to implement the IEP to make an
informed decision as to the school’s adequacy.”). Indeed, on Plaintiff’s three separate visits to
the school, she was never shown a 12:1:1 classroom where C.S. would be assigned. Tr. 488-92,
501, 521-24. The DOE did not adduce any evidence to rebut Plaintiff’s testimony. See Def.’s
Resp. 56.1 ¶¶ 52, 58-59, 68-73. The IHO carefully considered Plaintiff’s account of her
September 2010 visit and all of the other evidence in the record and concluded that the DOE
failed to establish that it offered C.S. an appropriate placement. IHO Op. at 13. The SRO, on
the other hand, did not consider all of the evidence. The SRO referred generally to Plaintiff’s
September 2010 visit, improperly discounting it as irrelevant. SRO Op. at 19 n.19. The SRO
26

also improperly omitted and neglected to consider Plaintiff’s specific testimony that on
September 17, 2010, the 6:1:1 class was identified as C.S.’s placement class. The SRO’s
conclusion that C.S. would have been offered an adequate placement, based solely on LublinBrookoff’s testimony and made without consideration of Plaintiff’s highly significant testimony,
is “precisely the type of determination to which courts need not defer, particularly when the
evidence has been carefully considered and found persuasive by an IHO.” See M.H., 685 F.3d at
252.
b) Failure to Address Obvious Weaknesses and Gaps in the Evidence
In relying exclusively on Lublin-Brookoff, the SRO not only failed to consider crucial
evidence offered by Plaintiff but also failed to recognize a critical weakness in LublinBrookoff’s testimony and failed to thoroughly address Horosky’s testimony. The core issue to
be resolved at the hearing was whether P373K could provide an appropriate placement class
when C.S. arrived in September 2010. The only witness who was asked where C.S. would be
placed in the fall was Horosky. Horosky testified that by the beginning of the regular school
year he had a full complement of twelve students (comprised only of ninth and tenth graders,
none of whom were autistic) and that had C.S. enrolled in September, he would not have been
placed in Horosky’s class. Tr. 96, 101, 105-06. Lublin-Brookoff was not asked where C.S.
would have been assigned had he arrived in the fall. Lublin-Brookoff was asked, “where would
[C.S.] have been sitting as of September,” whereupon Lublin-Brookoff, assuming that C.S.
would have arrived in July, answered that C.S. “would have continued with [Horosky].” Tr.
447. The SRO adopted Lublin-Brookoff’s testimony and rejected Horosky’s, explaining that
Lublin-Brookoff “had the direct responsibility for placing incoming students into classrooms—
not [Horosky].” SRO Op. at 19. Lublin-Brookoff’s job responsibilities, however, could not
27

justify the SRO’s exclusive reliance on her because she offered no testimony on where C.S.
would have been placed had he enrolled in September. And, even if Lublin-Brookoff had
directly contradicted Horosky, it would have been incumbent upon the SRO to address
Horosky’s stated reasons. Under the circumstances, although Lublin-Brookoff’s testimony
would be entitled to be accorded the requisite weight given her responsibility for placement,
Horosky’s testimony would also have merited close examination because he taught the proposed
class and offered details as to its size and composition as of September. The SRO’s failure to
acknowledge the obvious weakness of Lublin-Brookoff’s testimony coupled with his failure to
squarely address and distinguish Horosky’s stated rationale compel the conclusion that the
SRO’s decision was not thorough and careful.
c) Mischaracterization of Testimony
The SRO’s opinion on this issue is not entitled to deference because the testimony of two
crucial witnesses was mischaracterized. First, the SRO incorrectly described Lublin-Brookoff’s
testimony as “evidenc[ing] no equivocation whatsoever” on the issue of C.S.’s September
placement. SRO Op. at 19. Because Lublin-Brookoff was not asked where C.S. would have
been placed had he arrived in September, her testimony could not “evidence[] no equivocation
whatsoever” on an issue about which she was never asked. Lublin-Brookoff was only asked
where C.S. would have been assigned had he arrived in July, but even during this line of
questioning, Lublin-Brookoff’s testimony contained several inconsistencies. At the beginning of
the hearing, Lublin-Brookoff stated that C.S. “would have been placed into Mr. Horosk[y]’s
class, because he was the teacher of students of that age,” and that “[C.S.] would have continued
with that teacher unless there was some issue for any other reason during the summer that I could
not predict.” Tr. 447. Moments later, Lublin-Brookoff admitted that “if a student doesn’t show
28

up . . . I could not tell you at that moment in July, you know. He would have had to come here.
And at that time, when I would have seen [the IEP], I would have made the determination at that
time.” Tr. 452-53. These inconsistent statements call into question the reliability of LublinBrookoff’s testimony. Although on direct examination she stated unequivocally that C.S. would
have been assigned to Horosky’s class, on cross examination she conceded that she could not
have made a placement determination unless she saw C.S. and his IEP, thereby undermining her
previous assertion that he would been placed in Horosky’s class.
Moreover, Lublin-Brookoff’s admission that the determination was made after October
2010 “for the purpose of this litigation” reveals that the testimony is retrospective and, therefore,
prohibited. See B.R., 910 F. Supp. 2d at 676-78 (holding that the Second Circuit’s ban in R.E. on
retrospective testimony prohibited the IHO and SRO from relying on services that “were not
raised until the impartial hearing was held”). The SRO was required to evaluate C.S.’s proposed
class assignment prospectively—as of September 2010—the date when C.S. would have been
placed. Instead, the SRO relied on Lublin-Brookoff’s testimony despite the fact that LublinBrookoff admitted that she made the placement determination “in October, 2010 or later,” after
Plaintiff initiated this lawsuit. Tr. 452.
Other courts have recently rejected the use of this type of testimony to defend proposed
school placements. For example, in D.C. ex rel. E.B. v. New York City Department of Education,
the IEP required that the student attend a seafood-free school due to his severe seafood allergy.
950 F. Supp. 2d at 500. When the parent visited the proposed school, however, she was told that
the school was not seafood free and learned about various ways in which her child might be
exposed to seafood. Id. at 501-02. The school did not attempt to explain or correct these
representations made to the parent after her visit. Id. However, at the impartial hearing, school
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officials testified to a number of measures that they would have taken to prevent seafood
exposure. Id. at 504-05. Although the IHO and SRO both credited the school officials’
testimony, the district court reversed, explaining:
This testimony was too little, too late. It was too little because the school was not a
seafood free environment at the time of D.C.’s visit, and it was too late because the
proposed methods to control the environment were only explained at the IHO
hearing, almost a year after D.C. had to make the placement choice for her son.
This information was never provided to D.C. and there is no evidence that, at the
time D.C. had to make her placement decision, she had any knowledge of the
procedures that P188 could have undertaken.
Id. at 512. In this case, Plaintiff was neither shown a 12:1:1 class at P373K where C.S. could be
placed nor informed that C.S. would be in a 12:1:1 class, let alone Horosky’s class. Moreover,
on September 17, 2010, Lublin-Brookoff, the individual in charge of placement, and two
additional staff members affirmatively informed Plaintiff that C.S. would be placed in a 6:1:1
class. Lublin-Brookoff’s after-the-fact testimony is “too little, too late.”
The SRO also incorrectly described Horosky’s testimony as “at best, equivocal,” SRO
Op. at 19, but failed to offer even one example of Horosky’s alleged equivocation. Horosky
unequivocally stated that by the first week of July and in September, his class had a full
complement of twelve students. Tr. 101, 127. Horosky also said that although students enrolling
in P373K during its summer session entered on an ungraded basis, his class for the regular
school year commencing in September was composed of only ninth and tenth graders. Tr. 96,
105-06. The IHO found Horosky’s testimony to be credible and concluded that C.S. would not
have been placed in Horosky’s class. IHO Op. at 12. Because the SRO provided no basis for
characterizing Horosky’s testimony as “equivocal,” the Court holds that this finding is
inadequately reasoned and does not merit deference.

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d) Impermissible Credibility Determinations
The SRO based his opinion upon an impermissible credibility assessment. The IHO was
present during the questioning of Lublin-Brookoff and was best situated to make a credibility
determination. Although the IHO explicitly “discredit[ed] the . . . testimony provided by
Witness Lublin-Brookoff,” the SRO chose to jettison that assessment and credit LublinBrookoff, stating that “the hearing record does not contain any evidence that would call into
question [Lublin-Brookoff’s] testimony.” SRO Op. at 19 (emphasis added). The hearing record
does not support the SRO’s finding. The IHO, having conducted the hearing and relying on his
educational expertise, rejected Lublin-Brookoff’s testimony as not credible given her admission
regarding the timing of her placement decision. See M.H., 685 F.3d at 258 (“The IHO’s
determination was based on his assessment of the credibility of the witnesses testifying before
him . . . . It was entitled to deference on that basis.”). The SRO should not have substituted his
own credibility assessment for that of the IHO. See, e.g., Amanda J. ex rel. Annette J. v. Clark
Cnty. Sch. Dist., 267 F.3d 877, 888 (9th Cir. 2001) (“We also agree with our colleagues in the
Second, Third, Fourth, and Tenth Circuits that when an SRO overturns the credibility
determinations of an HO, due weight to the decision of the SRO is not warranted.”); M.V. v.
Shenendehowa Cent. Sch. Dist., 06 Civ. 0571, 2008 WL 53181, at *4-5 (N.D.N.Y. Jan. 2, 2008)
(disapproving an SRO’s rejection of an IHO’s credibility assessment).
The DOE contends that the IHO’s use of the word “discredit” was just “inartful [sic]
phrasing,” that the IHO did not actually make a credibility assessment, and, therefore, the SRO
only reconsidered the weight of the evidence regarding a matter of educational policy to which
this Court should defer. Def.’s Mem. 11. The Court accords this argument no merit, and the
cases cited by the DOE, J.A. v. New York City Department of Education, 10 Civ. 9056, 2012 WL
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1075843 (S.D.N.Y. Mar. 28, 2012), and S.F. v. New York City Department of Education, 11 Civ.
870, 2011 WL 5419847 (S.D.N.Y. Nov. 9, 2011), are inapposite. In J.A., the court refused to
find that the SRO had made an impermissible credibility assessment when both the SRO and the
IHO credited the witnesses in question and only reconsidered the weight of the evidence
differently between them. 2012 WL 1075843, at *9-10. In S.F., the court likewise refused to
find that the SRO had made an impermissible credibility assessment because it found that neither
the IHO nor the SRO had made any credibility determinations. 2011 WL 5419847, at *15.
Here, however, the IHO explicitly discredited Lublin-Brookoff’s testimony, which the SRO then
improperly relied upon.
In sum, the SRO’s opinion on this issue is insufficiently reasoned, and the Court,
therefore, defers to the well-reasoned IHO opinion.
2. Plaintiff’s Claim is Prospective, Not Speculative
“The Court of course must determine the appropriateness of a placement prospectively,
without the benefit of a school year’s worth of hindsight. This, after all, is the issue the [p]arents
faced when they received the proposed IEP.” W.T. & K.T. ex rel. J.T. v. Bd. of Educ. of Sch.
Dist. of New York City, 716 F. Supp. 2d 270, 292 n.17 (S.D.N.Y. 2010) (citation omitted). Thus,
Plaintiff may challenge C.S.’s placement as inappropriate “if the alleged defects were reasonably
apparent to either the parent or the school district when the parent rejected the placement,”
regardless of whether Plaintiff ever actually enrolled C.S. at P373K. E.A.M., 2012 WL 4571794,
at *11 (citing W.T., 716 F. Supp. 2d at 292 n.17); see also S.F., 2011 WL 5419847, at *14-18
(considering plaintiffs’ prospective arguments about the appropriateness of a particular class
placement despite student’s not having attended the school).

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The DOE’s contention that Plaintiff is engaged in a “strategic attempt to game the system
by garnering speculation about what might have happened had [C.S.] attended public school” is
without merit. Def.’s Reply 1. The IDEA contemplates prospective relief. See, e.g., Forest
Grove Sch. Dist., 557 U.S. at 238 (“Congress could not have intended to require parents to . . .
accept an inadequate public-school education pending adjudication of their claim”). The proper
inquiry for the Court, therefore, is whether the alleged defects of the placement were reasonably
apparent to Plaintiff or the DOE when Plaintiff rejected P373K. The record supports the
inference that the alleged defects were reasonably apparent to both parties at that time. The DOE
staff was supplied with C.S.’s IEP stating that he required a 12:1:1 class, including LublinBrookoff who was the individual in charge of placing students within P373K, and the DOE staff
were made aware by Plaintiff that C.S. required a 12:1:1 classroom during her visits to P373K.
Additionally, Plaintiff claims that she was told by DOE staff during her September visit that C.S.
would be placed in a 6:1:1 class. Plaintiff also claims that she repeatedly attempted to contact
the CSE regarding the inappropriate placement. Tr. 521-24. Under the circumstances of this
case, the Court holds that Plaintiff’s claim that C.S.’s placement class was substantively
inappropriate is sufficiently prospective. See J.F. v. New York City Dep’t of Educ., 12 Civ. 2184,
2013 WL 1803983, at *2 (holding that parents’ challenge to placement classroom was not overly
speculative in light of R.E.); Cf. E.A.M., 2012 WL 4571794, at *11.
3. The DOE Remained Obligated to Offer C.S. an Appropriate Placement
The DOE, adopting the SRO’s finding on this issue, asserts that it was not obligated to
maintain an appropriate placement for C.S. once Plaintiff enrolled him in CCA and notified the
DOE of her intention to unilaterally place him. See Def.’s Mem. 9-11. In particular, the SRO
determined:
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[T]he impartial hearing officer ignored the fact that the parent—as of April, 2010,
had executed a reenrollment contract with CCA for the student’s attendance during
the 2010-2011 school year—and as of August 24, 2010, had rejected both the
student’s IEP and the assigned school, and notified the district of her intention to
unilaterally place the student at CCA for the 2010-2011 school year and to seek
public funding for the tuition costs. Therefore, since neither the IDEA nor State
regulations require a district to maintain a particular classroom opening for a
student while the student is enrolled elsewhere in a private school, the district was
no longer obligated to maintain an opening in the 12:1[:]1 special class
recommended in the student’s IEP.
SRO Op. at 19. This assertion is unsupported by law or fact.
First, the Court holds that Plaintiff’s declining summer services recommended in C.S.’s
IEP and her signing an enrollment contract with CCA on April 23, 2010 did not release the DOE
from its obligation to provide C.S. a FAPE. The parties have already agreed that Plaintiff was
not required to accept summer services as a condition for C.S.’s eligibility to receive a FAPE.
Pl.’s 56.1 ¶ 45; Def.’s Resp. 56.1 ¶ 45. And, whereas this Court may be willing to find that the
DOE would be released from its obligation for the school year once a parent had firmly
established a placement in private school for his or her child, Plaintiff here only secured the
possibility of placing C.S. in a private school—she reserved a spot—by signing a contract with a
release provision. R. Ex. J.
In support of his conclusions, the SRO cites two of his own decisions which are
inapposite. In Application of the Department of Education, Appeal No. 11-015 (Mar. 31, 2011),
the parents claimed that there was no space available for their child in the proposed classroom,
but they did not provide any evidence to rebut the DOE’s testimony to the contrary. Id. at 16. In
this case, the DOE’s own witness testified to a lack of space in the proposed class, and the DOE
otherwise failed to establish that it could provide C.S. with an appropriate placement. IHO Op.
at 12. In Application of a Student with a Disability, Appeal No. 11-008 (Mar. 7, 2011), the class
profiles, not the ratios, were modified after the start of classes, and the decision did not suggest
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that a student could be placed in a classroom with a different student/teacher ratio altogether. Id.
at 19. Thus, the SRO failed to adequately support his conclusion that the DOE was released
from its obligation to provide C.S. a FAPE because Plaintiff secured a potential private
placement, and the Court holds that this obligation remained. See Frank G. v. Bd. of Educ. of
Hyde Park, 459 F.3d 356, 372 (2d Cir. 2006) (stating that “a ‘first bite’ at failure is not required
by the IDEA” and that parents of a child in a private school placement were not required to
accept an inappropriate public placement prior to petitioning for reimbursement); J.S. v.
Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 667-68 (S.D.N.Y. 2011) (analyzing
school district’s obligations to provide a FAPE to a private school student under New York law
and concluding that the district had such a responsibility).
In reaching his decision on this issue, the SRO again overlooked the evidence in the
record that explains why Plaintiff provided notice on August 24, 2010 that she would seek an
impartial hearing and why the DOE’s obligations were not relieved. Although the SRO and
DOE are correct that a failure to allow a parent to visit the particular placement classroom is not
itself a violation, a parent’s assessment of the proposed classroom remains relevant to the
substantive evaluation of a FAPE. See S.F., 2011 WL 5419847, at *13 (stating that although an
“inability to visit the classroom to form an opinion as to its appropriateness is not itself a
procedural defect,” a parent may “challenge whether the DOE denied the Student a FAPE as a
substantive matter if the Placement Classroom cannot deliver the services determined in the
IEP”). During her visits in June and July, Plaintiff was never offered the opportunity to see an
appropriate classroom in order to make an assessment despite her repeated attempts to cooperate
with the school district, a fact the DOE has not rebutted. Pl’s 56.1 ¶ 80; Def.’s Resp. 56.1 ¶ 80.
Because of these delays, Plaintiff’s August 24, 2010 letter should be construed as an effort to
35

comply with the law, not a waiver of responsibility for the DOE. 1 It would be entirely contrary
to the broad remedial purpose of the IDEA to deny tuition repayment to a plaintiff merely
because the plaintiff took steps to preserve her rights under the IDEA after the DOE was unable
to establish a proper placement prior to the commencement of the school year. Therefore,
Plaintiff’s provision of written notice to the DOE on August 24, 2010 stating her concerns about
P373K and her intent to seek tuition repayment did not release the DOE of its obligation under
the IDEA to provide C.S. a FAPE. Indeed, the DOE remained obligated. See Forest Grove Sch.
Dist., 557 U.S. at 242 (“[C]lauses (ii) through (iv) [of § 1412(a)(10)(C)] are premised on a
history of cooperation and together encourage school districts and parents to continue to
cooperate in developing and implementing an appropriate IEP before resorting to unilateral
private placement.”)
4. The DOE Failed to Offer C.S. an Appropriate Placement
“[T]here is no requirement in the IDEA that the IEP name a specific school location . . . .
[However,] school districts [do not] have carte blanche to assign a child to a school that cannot
satisfy the IEP’s requirements.” T.Y., 584 F.3d at 420. “The [DOE] may select the specific

1

20 U.S.C. § 1412(a)(10)(C)(iii)(I) provides that a federal court may reduce or deny an
award of tuition repayment if:
(aa) at the most recent IEP meeting that the parents attended prior to
removal of the child from the public school, the parents did not
inform the IEP Team that they were rejecting the placement
proposed by the public agency to provide a free appropriate public
education to their child, including stating their concerns and their
intent to enroll their child in a private school at public expense; or
(bb) 10 business days (including any holidays that occur on a business
day) prior to the removal of the child from the public school, the
parents did not give written notice to the public agency of the
information described in item (aa)[.]
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school without the advice of the parent[] so long as it conforms to the program offered in the
IEP.” R.E., 694 F.3d at 191-92 (citing T.Y., 584 F.3d at 420).
Deferring to the IHO’s decision over the SRO’s, the Court holds that the DOE failed to
offer C.S. an appropriate placement at P373K compliant with his IEP. The record reflects that
although students enrolling in P373K during its summer session enter on an ungraded basis, only
ninth and tenth grade students would have composed Horosky’s 12:1:1 class for the 2010-2011
school year beginning in September. Tr. 96, 105-06. Consequently, as the IHO found, C.S.
would not have been placed in Horosky’s class. IHO Op. at 12. This finding is further
supported by evidence in the record that Horosky’s class, in any case, already had a full
complement of twelve students at the beginning of September. Id.; Tr. 105-06. Moreover, it is
uncontroverted in the record that right after Plaintiff met with Lublin-Brookoff on September 17,
2010, an administrative assistant showed Plaintiff a 6:1:1 class, which Lublin-Brookoff, the
administrative assistant and the class’s teacher all identified as C.S.’s class for the 2010-2011
school year. Tr. 501, 523-24; Cf. C.F. ex rel. R.F. v. New York City Dep’t of Educ., 11-5003,
2014 WL 814884, at *10 (2d Cir. Mar. 4, 2014) (holding that DOE’s offer of a 6:1:1 placement
in the IEP in spite of the “overwhelming testimony” that a 1:1 placement was necessary in part
contributed to the substantive inadequacy of a FAPE). Because the Court agrees with the IHO
that Lublin-Brookoff’s testimony cannot be credited, the DOE provided no evidence to
demonstrate that P373K was an appropriate placement for C.S. Consequently, in light of the
record and in deference to the IHO’s decision, this Court holds that the DOE failed to offer C.S.
a substantively appropriate classroom and thereby denied C.S. a FAPE for the 2010-2011 school
year. Because the Court finds that P373K was a substantively inappropriate placement, the
Court need not reach the issue of whether P373K could have provided substantively adequate
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speech-instruction services. Accordingly, the first prong of the Burlington/Carter test is resolved
for Plaintiff.
IV.

Second Prong of Burlington/Carter: Plaintiff’s Unilateral Placement
The IHO decided and the parties agree that CCA was an appropriate placement for C.S.

Pl.’s 56.1 ¶ 139; Def. 56.1 ¶ 139. The Court has no reason to disturb their agreement.
Accordingly, Plaintiff has met her burden under both the first and second prongs of the
Burlington/Carter test that governs petitions for tuition repayment under the IDEA.
V.

Third Prong of Burlington/Carter: the Equities
Although the SRO did not reach the issue, the IHO found that “equitable considerations

favor an award of . . . direct payment to CCA.” IHO Op. at 16. Plaintiff cooperated with the
CSE and consistently attempted to inform it of her concerns about P373K. She visited the school
three times in order to learn anything she could about the DOE’s proposed placement. She
provided timely, written notice of her intent to place C.S. at CCA and seek tuition repayment.
Although she signed an enrollment contract with CCA on April 23, 2010, Plaintiff did so only
“in order to secure a place at CCA for [C.S.] in the event the [DOE] failed to offer an appropriate
program.” IHO Op. at 15.
On the other hand, “[u]ncontroverted evidence shows that the DOE was less than
forthcoming about the nature of [the student’s] recommended placement.” M.H., 712 F. Supp.
2d at 167. In an effectively identical situation, a district court faced with similar circumstances
found that equitable considerations favored plaintiffs as well:
Upon Plaintiffs’ repeated inquiries, nobody at the DOE informed Plaintiffs prior to
Cruz’s testimony at the Impartial Hearing that there was another classroom
available for P.H. that would have been more appropriate than Washburn’s.
Although a FAPE does not include the right to a particular brick-and-mortar
location, it does not entitle a school district to play fast-and-loose with the disabled
student’s placement. Here, in response to M.H.’s repeated inquiries, the DOE
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identified a particular classroom as being the one in which P.H. would have been
placed. Nobody at the DOE informed Plaintiffs that there existed a classroom more
appropriate than Washburn’s. Only after Plaintiffs filed their impartial hearing
request did the DOE take the position that the classroom it had previously
identified, Washburn’s, would not actually have been P.H.’s classroom. Notably,
no DOE witness testified that the DOE informed M.H. prior to the impartial hearing
request that P.H. would have been placed in Motta’s classroom. Such conduct
weighs equitably in favor of reimbursement because it reflects a disingenuous
attitude toward the DOE’s obligation to provide P.H. with an appropriate education
in the first place.
Id. (internal citations omitted), aff’d, 685 F.3d 217 (2d Cir. 2012). In this case, the DOE
similarly played “fast-and-loose” with C.S.’s proposed placement by failing to present an
appropriate classroom to Plaintiff for four months and then claiming during the impartial hearing
that C.S. would have been placed in a classroom that was full and potentially inappropriate given
his IEP. The requirement that the DOE recommend an appropriate placement school through the
FNR is meaningless if the DOE either never has to demonstrate that the proposed school
contains appropriate classrooms or can determine a proposed placement months after a litigation
has begun. The DOE’s cavalier failure to cooperate with Plaintiff weighs equitably in favor of
tuition repayment here.
The DOE argues that equitable considerations do not favor tuition repayment to Plaintiff
because, much like the IHO’s act of “discrediting” a witness purportedly not being a credibility
assessment, Plaintiff’s “contract” with CCA was not actually a contract. See Def.’s Reply 9-10.
In support of its contention, the DOE cites testimony that the only time CCA dealt with a parent
that had lost a tuition repayment claim, the school allowed the parent to satisfy her debt by
providing Flamenco dancing lessons to CCA students. See Def.’s Mem. 25. There is no
evidence in the record of such a barter arrangement with Plaintiff, who remains legally obligated
to pay CCA $46,500 pursuant to section 9(c) of the enrollment contract. Thus, the Court rejects
this argument as unsupported by the evidence and upholds the IHO’s finding that equitable
39

considerations favor Plaintiff. As such, Plaintiff has borne her burden under the first, second and
third prongs of the Burlington/Carter test.
C. Plaintiff is Entitled to a Direct Retroactive Payment to CCA
The SRO did not reach this issue, but the IHO found that Plaintiff qualified for direct
retroactive tuition repayment to CCA. Because her income amounted to $7,548, Plaintiff lacked
the financial resources necessary to front the $46,500 tuition and then seek reimbursement. See
Mr. & Mrs. A., 769 F. Supp. 2d at 427-29. Accordingly, the Court finds Plaintiff eligible for
tuition repayment in the form of a direct retroactive payment to CCA.
CONCLUSION
Plaintiff has succeeded on all three prongs of the Burlington/Carter test. Therefore,
Plaintiff’s motion for summary judgment is GRANTED, and the DOE’s motion is DENIED.
The Court notes, however, that it does not disturb the portions of the SRO’s decision that direct
the DOE to reevaluate C.S.
By April 7, 2014, the parties shall submit a proposed judgment ordering the DOE to pay
CCA the $46,500 tuition for the 2010-2011 school year. The Clerk of Court is directed to
terminate the motions at ECF Nos. 8 and 13 and to close the case.
SO ORDERED.
Dated: March 25, 2014
New York, New York

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