D.A.B. et al v. New York City Department of Education
Filing
24
OPINION AND ORDER re: 14 CROSS MOTION for Summary Judgment and In Opposition to Plaintiff's Motion for Summary Judgment. filed by New York City Department of Education, 12 MOTION for Summary Judgment. filed by D.A.B., M.B. The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, they are either moot or without merit. For the reasons explained above, the defendants motion for summary judgment on the IDEA claim is granted. The plaintiffs motion for summary judgment on the IDEA claim is denied. The Clerk is directed to close docket nos. 12 and 14. (Signed by Judge John G. Koeltl on 9/14/2013) (djc) Modified on 9/16/2013 (djc).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
D.A.B. AND M.B., INDIVIDUALLY AND ON
BEHALF OF D.B.,
12 Civ. 4325 (JGK)
Plaintiffs,
OPINION AND ORDER
- against NEW YORK CITY DEPARTMENT OF
EDUCATION,
Defendant.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The plaintiffs, D.A.B. and M.B., bring this action on
behalf of their son, D.B., pursuant to the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.,
Section 504 of the Rehabilitation Act of 1973 (“Section 504”),
29 U.S.C. § 794 et seq., and New York Education Law § 4400 et
seq., against the New York City Department of Education (“the
Department”).
The plaintiffs challenge the decision of the
State Review Officer (“SRO”) denying their claim for payment of
D.B.’s tuition for the McCarton Center, a private center at
which D.B. was unilaterally placed for the 2010-2011 school
year.
The SRO’s decision reversed the decision of an Impartial
Hearing Officer (“IHO”).
The parties have cross-moved for
1
summary judgment on the plaintiffs’ IDEA claim.1
The Court has
subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 20
U.S.C. §§ 1415(i)(2)(A) and (3)(A).
For the reasons explained below, the plaintiffs’ motion for
summary judgment on the IDEA claim is denied and the defendant’s
motion for summary judgment on the IDEA claim is granted.
I.
“Under the IDEA, states receiving federal funds are
required to provide ‘all children with disabilities’ a ‘free
appropriate public education.’”
Gagliardo v. Arlington Cent.
Sch. Dist. (“Gagliardo II”), 489 F.3d 105, 107 (2d Cir. 2007)
(quoting 20 U.S.C. § 1412(a)(1)(A)); see also Walczak v. Fla.
Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998).
A free
appropriate public education (“FAPE”) must provide “special
education and related services tailored to meet the unique needs
of a particular child, and be ‘reasonably calculated to enable
the child to receive educational benefits.’”
Walczak, 142 F.3d
at 122 (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)
(citation and internal quotation marks omitted)).
1
Because the
While all parties sought summary judgment on all claims, the
parties only addressed the standards to be applied to a claim
under IDEA, and therefore summary judgment could not be granted
with respect to the remaining claims at this time.
2
IDEA expresses a “strong preference for children with
disabilities to be educated, ‘to the maximum extent
appropriate,’ together with their non-disabled peers, special
education and related services must be provided in the least
restrictive setting consistent with a child’s needs.”
Id.
(internal citation omitted); see also D.C. ex rel. E.B. v.
N.Y.C. Dep’t of Educ., No. 12 Civ. 1394, 2013 WL 1234864, at *1
(S.D.N.Y. March 26, 2013).
“To ensure that qualifying children receive a FAPE, a
school district must create an individualized education program
(‘IEP’) for each such child.”
R.E. v. N.Y.C. Dep’t of Educ.,
694 F.3d 167, 175 (2d Cir. 2012) (citing 20 U.S.C. § 1414(d);
Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195,
197 (2d Cir. 2002) (describing the IEP as the “centerpiece” of
the IDEA system)), cert. denied, No. 12-1210, 2013 WL 1418840,
at *1 (June 10, 2013).
The IDEA requires that an IEP be
“reasonably calculated to enable the child to receive
educational benefits.”
Rowley, 458 U.S. at 207.
In New York,
the responsibility for developing an appropriate IEP for a child
is assigned to a local Committee on Special Education (“CSE”).
Walczak, 142 F.3d at 123.
“CSEs are comprised of members
appointed by the local school district’s board of education, and
must include the student’s parent(s), a regular or special
3
education teacher, a school board representative, a parent
representative, and others.”
R.E., 694 F.3d at 175 (citing N.Y.
Educ. Law § 4402(1)(b)(1)(a)).
“The CSE must examine the
student’s level of achievement and specific needs and determine
an appropriate educational program.”
Id. (citing Gagliardo II,
489 F.3d at 107–08).
Parents in New York who wish to challenge their child’s IEP
as insufficient under the IDEA may request an impartial due
process hearing before an IHO appointed by the local board of
education. Walczak, 142 F.3d at 123 (citing 20 U.S.C. § 1415(f);
N.Y. Educ. Law § 4404(1)).
A party may appeal the decision of
the IHO to an SRO, and the SRO’s decision may be challenged in
either state or federal court.
Id. (citing 20 U.S.C. § 1415(g),
1415(i)(2)(A) and N.Y. Educ. Law § 4404(2)).
In addition, if a
school district fails to provide a FAPE to a child with
disabilities, the child’s parents may, at their own financial
risk, remove the child from the improper placement, enroll the
child in an appropriate private school, and retroactively seek
reimbursement for the cost of private school from the state.
See Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359,
370 (1985); see also D.C., 2013 WL 1234864, at *2.
Under the IDEA, a district court must conduct an
independent review of the administrative record, along with any
4
additional evidence presented by the parties, and must determine
by a preponderance of the evidence whether the IDEA’s provisions
have been met.2
Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d
377, 380-81 (2d Cir. 2003); see also Gagliardo II, 489 F.3d at
112.
This independent review, however, is “by no means an
invitation to the courts to substitute their own notions of
sound educational policy for those of the school authorities
which they review.”
Rowley, 458 U.S. at 206.
The Second Circuit Court of Appeals has explained that “the
standard for reviewing administrative determinations ‘requires a
more critical appraisal of the agency determination than clearerror review . . . but . . . nevertheless[] falls well short of
complete de novo review. . . . [I]n the course of th[is]
oversight, the persuasiveness of a particular administrative
finding, or the lack thereof, is likely to tell the tale.’”
M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 244 (2d Cir. 2012)
2
The Second Circuit Court of Appeals has noted that, “Summary
judgment in the IDEA context . . . is only a pragmatic
procedural mechanism for reviewing administrative decisions.”
M.W. ex rel. S.W. v. New York City Dep’t of Educ., -- F. 3d --,
2013 WL 3868594, at *4 (2d Cir. 2013) (internal citation and
quotation marks omitted). But “[t]he inquiry . . . is not
directed to discerning whether there are disputed issues of
fact, but rather, whether the administrative record, together
with any additional evidence, establishes that there has been
compliance with IDEA’s processes and that the child’s
educational needs have been appropriately addressed.” Wall v.
Mattituck–Cutchogue Sch. Dist., 945 F. Supp. 501, 508 (E.D.N.Y.
1996); see also D.C., 2013 WL 1234864, at *2 n.2.
5
(quoting Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086-87
(1st Cir. 1993)).
“[T]he district court’s analysis 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.
But the district
court’s determination of the persuasiveness of an administrative
finding must also be colored by an accute [sic] awareness of
institutional competence and role.”
Id.; see M.W., 2013 WL
3868594, at *4.
The Court of Appeals has also explained that “federal
courts reviewing administrative decisions must give ‘due weight’
to these proceedings, mindful that the judiciary generally
‘lack[s] the specialized knowledge and experience necessary to
resolve persistent and difficult questions of educational
policy.’”
Gagliardo II, 489 F.3d at 113 (quoting Rowley, 458
U.S. at 206, 208); see also Cerra v. Pawling Cent. Sch. Dist.,
427 F.3d 186, 191 (2d Cir. 2005).
Deference to the decision in
the administrative record is particularly appropriate when an
administrative officer’s review has been thorough and careful,
and when the court’s decision is based solely on the
administrative record.
See Walczak, 142 F.3d at 129; Frank G.
6
v. Bd. of Educ., 459 F.3d 356, 367 (2d Cir. 2006).
When, as in
this case, “an IHO and SRO reach conflicting conclusions, we
defer to the final decision of the state authorities, that is,
the SRO’s decision.”
M.W., 2013 WL 3868594, at *4 (internal
citation and quotation marks omitted).
However, the amount of
deference to an SRO’s determination “depends on the quality of
that opinion.”
Id. (internal citation and quotation marks
omitted).
II.
The following facts and procedural background are taken
from the administrative record and the submissions of the
parties.
The facts are undisputed unless otherwise noted.
A. IEP AND PLACEMENT
D.A.B. and M.B. are the parents of D.B., a child classified
with autism who has also been diagnosed with apraxia of speech.3
(SRO Op. at 2; Tr. 780.)
3
D.B. was born in July 2004, and was
Apraxia of speech is a disorder characterized by severe motor
planning difficulties, by which a person has trouble speaking
correctly. (Tr. 360, 485, 508-09.) “Tr.” refers to the
transcript of the hearing before the IHO.
7
approximately six years old at the time of the 2010-2011 school
year at issue in this case.
(IHO Op. at 4; Ex. 1 (“IEP”) at 1.)4
Prior to the 2009-2010 school year, D.B. received early
intervention services through the Department of Health and
preschool special education services under the auspices of the
Department of Education’s Committee on Preschool Education
(“CPSE”).
(IHO Op. at 4.)
These services included twenty-five
hours of individual instruction from a special education
itinerant teacher and daily speech and language services.
Op. at 4.)
During the 2009-2010 school year, D.B. attended the
McCarton Center, a non-public center in New York City.
at 3.)
(IHO
(SRO Op.
At the McCarton Center, D.B. received individual speech
and language therapy six times per week for forty-five minutes
per session, individual occupational therapy five times per week
for forty-five minutes per session, and twenty hours per week of
individual ABA5 therapy.
(IHO Op. at 5-6; Ex. 13 at 1.)
The Department convened a CSE meeting to develop an IEP for
D.B. for the 2010-2011 school year over two days, May 4-5, 2010.
4
Exhibits with numbers refer to the defendant’s exhibit appendix
and exhibits with letters refer to the plaintiffs’ exhibit
appendix each of which was submitted to the Office of State
Review. Exhibits with roman numerals refer to the IHO’s exhibits
that were submitted to the Office of State Review. Neither
party challenges the exhibits.
5
“ABA,” short for the Applied Behavior Analysis method, uses
rewards and punishments to encourage and discourage certain
behaviors. See D.C., 2013 WL 1234864, at *6 n.15.
8
(IHO Op. at 4.)
Present at the May 4 meeting were D.B.’s
mother, D.A.B.; Maria Visco, D.B.’s teacher and the Director of
ABA services at McCarton; Jamie Aranoff, D.B.’s speech and
language pathologist from the McCarton Center; Maria Bizzarro,
D.B.’s occupational therapist from the McCarton Center; Carol
Schaechter, a special education teacher; Kathy Kaufman, a school
psychologist and the district representative; and a parent
representative.
(IEP at 2.)
Aranoff, Visco, Bizzaro, and
D.A.B. were present by telephone.
(IEP at 2.)
Present at the
May 5 meeting were D.B.’s mother, Kathy Kaufman, Carol
Schaechter, Maria Visco, and a parent representative.
3.)
Ms. Visco and D.A.B. were present by telephone.
(IEP at
(IEP at
3.)
The CSE was provided with several sources of information
with which to formulate D.B.’s IEP.
Two of the sources, a
psychological evaluation by Dr. David Salsberg (Ex. 4), and an
educational progress report (Ex. 12), were from February 2009
and March 2009 respectively, more than a year before the CSE
meeting.
9
The Salsberg evaluation explained that D.B. required a
structured and small learning environment:
It is imperative that [D.B.] be placed immediately in
a small, structured ABA classroom setting, as part of
a small, therapeutic school, that will provide him
with 1:1 attention to ensure his attention and
participation. . . . He requires a highly specialized
1:1 ABA program for children on the autistic spectrum.
[D.B.]requires 1:1 attention within his class by a
special educator throughout the day to ensure his
attention and participation. . . . [D.B.]needs intense
1:1
support
with
language/communication
skill
development . . . . [D.B.]needs one-to-one support by
someone experienced in ABA, as part of a special
education team emphasizing functional communication
and behavioral interventions.
(Ex. 4.)
The 2009 educational progress report similarly
recommended “an intensive one to one ABA center based program.”
(Ex. 12.)6
In addition to the reports from 2009, the staff at the
McCarton Center submitted several reports from March and April
2010 based on D.B.’s performance during the 2009-2010 school
year: a comprehensive speech and language evaluation by Jamie
Aranoff and Meredith Weprin, D.B.’s speech and language
pathologists (Ex. 13); an ABA programming and progress report by
Maria Visco (Ex. D); and an occupational therapy progress note
by Maria Bizzarro (Ex. 10).
6
The parent has not challenged the failure of the IEP to specify
the use of the ABA methodology.
10
The 2010 reports from the staff at the McCarton Center each
indicated that D.B. had made progress over the 2009-2010 school
year.
Ms. Visco’s April 2010 progress report concluded that
D.B. had made progress but still required a small and structured
environment:
[D.B.] does very well in highly structured situations.
He still needs many practice trials to acquire new
skills, but has been able to sit and attend to his
instructor at the table for longer periods as the year
has progressed.
He has acquired skills across
domains, but continues to have language deficits and
problem behavior.
He needs a program that will
provide structure and repetition, that will address
his social and language deficits intensively, and that
will consistently intervene on problem behavior.
(Ex. D at 3.)
Ms. Bizzarro’s occupational therapy progress note
concluded that D.B. “has made improvements in all areas” but
“continue[s] to demonstrate significant deficits” and therefore
sensory gym based occupational therapy “continues to be
indicated five times weekly for 45 minutes . . . .”
5.)
(Ex. 10 at
Ms. Aranoff’s speech and language evaluation explained that
D.B. continued to make progress but still required
individualized speech and language support.
Aranoff recommended
that D.B. receive individualized speech and language therapy six
times per week for forty-five minutes.
7
(Ex. 13 at 6.)7
The report also recommended that D.B. focus on using a high
tech augmentative communication device twice a week for fortyfive minutes. However, the parent has not challenged the
11
In addition, Kathy Kaufman, a school psychologist, observed
D.B. for approximately an hour and submitted her report on her
observation to the CSE.
(Ex. 9.)
The report made no
recommendation.
The resulting IEP classified D.B. as autistic and
recommended a twelve-month school year.
(IEP at 1.)
Because a
twelve-month school year begins over the summer, the IEP called
for D.B. to begin his new program on July 1, 2010.
(IEP at 3.)
The CSE concluded that D.B. should be placed in a specialized
class in a specialized school with a student/teacher/
paraprofessional ratio of 6:1:1.
(IEP at 1-2.)
The IEP also
recommended that because of D.B.’s behavioral issues, D.B.
should be provided with a full time 1:1 behavior management
paraprofessional (“BMP”).
(IEP at 2, 7, 8, 9.)
The CSE
considered and rejected programs with ratios of 12:1:1 and 6:1:1
without a BMP because it believed they were insufficiently
supportive and that D.B. would benefit from a BMP.
(IEP at 8.)
The IEP provided that D.B. had many academic management
needs, among them a “highly structured, predictable learning
environment,” and a “consistent positive reinforcement
schedule.”
(IEP at 3.)
In the “Social/Emotional Performance”
failure of the IEP or the placement to include this provision,
and therefore it will not be addressed further. (Ex. 13 at 6.)
12
category, the IEP noted that according to D.B.’s teacher, D.B.
“had improved a great deal since he began at the McCarton
Center” but that his “attention continue[s] to be variable and
this interferes with his ability to follow directions.”
4.)
(IEP at
The IEP concludes that D.B.’s “[b]ehavior seriously
interfere[s] with instruction and require[s] additional adult
supervision.”
(IEP at 4.)
In the “Health and Physical
Development” category, the IEP noted that according to his
occupational therapist, although when D.B. had begun the 20092010 school year he “presented with severe dyspraxia” and “was
unable to run, play catch, imitate writing straight lines,
attend to scribbling, or hold a pencil or crayon with a tripod
grasp,” he had made “tremendous progress.”
(IEP at 5.)
After
chronicling the many facets of his progress, the section
concluded that “[o]verall, [D.B.] has an increased understanding
of what is expected of him and he has an increased interest in
the activities presented.”
(IEP at 4.)
The IEP also contained 17 annual goals and 96 short-term
objectives for a number of academic and non-academic focus
areas.8
(SRO Op. at 9.)
In general, the annual goals were
broadly worded, such as “[D.B.] will improve reading skills,” or
8
The IEP contains 16 pages identifying annual goals; however,
the parties agree that there were in fact 17 annual goals
because one page of the IEP included two such goals.
13
“[D.B.] will improve math skills.”
(IEP at 6.1-6.2.)
Beneath
each annual goal there were corresponding short-term objectives
that were more detailed.
Illustratively, one of six short-term
objectives for D.B.’s reading skills provided that “[D.B.] will
match at least 25 words to the co[r]responding pic[t]ures
and
vice versa with 80% accuracy,” and one of two short-term
objectives for D.B.’s math skills provided that “[D.B.] will
match numbers to quantity and quantity to number for #1 to #10
with 80% accuracy.”
(IEP at 6.1-6.2.)
The IEP provided that
for each set of annual goals and short-term objectives there
would be three progress reports per year using a coding system
included on each page.
(IEP at 6.1-6.16.)
Although the coding
system was included on each page, the grid to fill the coding
system into the IEP was left blank.
(IEP at 6.1-6.16.)
The IEP also included recommendations for all of the
related services suggested by D.B.’s teachers at the McCarton
Center.
The IEP recommended that D.B. be provided 1:1
occupational therapy five times per week for forty-five minutes
(IEP at 9.2).
The IEP recommended that D.B. receive 1:1 speech
therapy five times per week for forty-five minutes and once a
week for thirty minutes, as well as 2:1 speech therapy once a
week for thirty minutes.
(IEP at 9.1).
The IEP also
recommended that D.B. receive 1:1 counseling twice each week for
14
thirty minutes and physical therapy twice each week for thirty
minutes.
(IEP at 9.1-9.2.)
Because of D.B.’s behavioral issues, the IEP included a
Behavior Intervention Plan (“BIP”).
The BIP explained that D.B.
engaged in scratching, biting, and other obstructive behaviors
and described strategies for attempting to change those
behaviors.
(IEP at 10.)9
As support to change these behaviors,
the IEP recommended a small class setting, collaboration between
the home and the school, related services, and assigned a 1:1
full time BMP to help D.B.
(IEP at 10.)
On June 15, 2010, D.B.’s parents notified the CSE of their
intention to place D.B. unilaterally at the McCarton Center.
(Ex. C.)10
On June 16, 2010, the Department mailed D.B.’s
parents a final notice of recommendation (“FNR”) offering D.B. a
classroom placement at P811M @ P149M (“P811M”) that allegedly
provided the services listed in the IEP.
(Ex. 3.)
The FNR
stated that “[i]f we do not hear from you by June 30, 2010, the
9
The BIP appears immediately after the page 9 recommendations in
the IEP.
10
The letter focused on the fact that in 2009, D.B. had not
attended a proposed placement because he had not received his
required vaccinations. Because D.B. still had not received his
vaccinations in 2010, the letter urged that D.B. would remain at
the McCarton Center. As discussed below, the vaccination issue
is not before the Court.
15
recommended services will be put into effect for the 2010-2011
school year.”
(Ex. 3.)
Notwithstanding the parents’ June 15 letter, after receipt
of the FNR, D.A.B. visited P811M with D.B.’s former speech and
language therapist, Sharna McMicken.
(Tr. 345-50.)
D.A.B.
later testified at the due process hearing that based on her
visit to the school, she believed that P811M was an
inappropriate placement for D.B.
(Tr. 870.)
On June 28, 2010,
D.A.B. wrote a letter to the CSE explaining that she was
rejecting P811M as the placement for her son because he required
one-on-one attention, the “range of functioning was extremely
varied,” and a paraprofessional for behavioral issues was
“indicative that this was not a program for [D.B.].”
(Ex. B.)
The letter also suggested that D.A.B. would consider a different
program that provided what D.B. needed and would visit another
site if one was suggested.
(Ex. B.)11
The mother represents
that the Department did not respond to her letter.
On September 16, 2010, D.A.B. filed a due process complaint
notice requesting an impartial hearing and seeking reimbursement
11
In the letter to the CSE, D.A.B. explained that she was also
told by the principal of P811M that D.B. would require
vaccinations in order to attend the school. (Ex. B.) The
plaintiffs never raised the issue of vaccinations before the SRO
and have not argued that the issue of vaccinations is a basis to
reverse the SRO’s decision. (Ex. B; Hr’g Tr. 21, 23, July 1,
2013.) Therefore, the issue is irrelevant for this opinion.
16
for the student’s tuition at the McCarton Center for the 12month 2010-2011 school year.
(Ex. I at 6.)
The due process complaint alleged several deficiencies with
the IEP: (1) the proposed 6:1:1 program was not reasonably
calculated to benefit D.B. because he required 1:1 instruction;
(2) the CSE did not rely on necessary evaluations to gauge
properly D.B.’s skill levels; (3) the annual goals and shortterm objectives in the IEP were inadequate; (4) the CSE did not
conduct a functional behavioral analysis (“FBA”) before creating
a BIP for D.B.; and (5) the BIP was inadequate.
(Ex. I at 1-6.)
On September 24, 2010, the Department responded to the due
process complaint.
(See Ex. II.)
B. DUE PROCESS HEARINGS
An impartial hearing was convened over seven nonconsecutive
days from March 2011 to August 2011.
(See IHO Op. at 3.)
At
the hearing, there was testimony with respect to, among other
things, the CSE meeting, the 6:1:1 class ratio, and the adequacy
of the annual goals and short-term objectives.
Several of the witnesses who testified at the due process
hearing were also present at the CSE meeting.
Ms. Kaufman, a
school psychologist who worked for the Department and led the
CSE meeting, testified that D.B.’s behavioral issues could be
17
addressed adequately by a 6:1:1 classroom with an additional
dedicated BMP.
(Tr. 274.)
She explained that prior to the CSE
meeting, the CSE read all of the reports provided to it (Tr.
266-67), and that the CSE meeting took two days because the CSE
went through each of the reports submitted and spoke with each
educational provider.
(Tr. 260, 266-67.)
Ms. Kaufman explained that the CSE did not consider a
program more restrictive than a 6:1:1 class with a one-on-one
BMP for D.B. because “[i]t wouldn’t have been appropriate” and
did not consider the McCarton Center because it is a “private
school” and the CSE “didn’t feel that he needed a private
school.
[The CSE] felt that his needs could be met in a public
school.
And [the CSE] felt that recommendation of having six
other students in his class would be beneficial to him.”
306-07.)
(Tr.
Ms. Kaufman indicated that the CSE had decided a 6:1:1
was appropriate for D.B. even though D.B.’s mother, teachers,
and Doctor Salsberg’s report indicated that he required 1:1
support.
(Tr. 306-07.)12
12
As plaintiffs’ counsel acknowledged in a letter to the Court
after oral argument on the present motions, these references in
questions to Ms. Kaufman by the plaintiffs’ counsel are the only
references in the testimony that anyone present at the CSE other
than D.A.B. objected to the 6:1:1 program. (Letter from Jesse
Cole Cutler, July 3, 2013.) The exact testimony was as follows:
18
With respect to the goals in the IEP, Ms. Kaufman explained
that the CSE asked each provider working with the student for
input on the student goals for the 2010-2011 school year.
(Tr. 277.)
She testified that methods of measurement were not
included in the IEP because the CSE doesn’t “dictate
methodology.
The teachers or therapists working with the
students are professionals.
Counsel: Why
restricted?
Ms. Kaufman:
consider it.
didn’t
It
And [the CSE felt] that since they
you
wouldn’t
consider
have
been
anything
more
appropriate
to
Counsel: Even though Dylan’s mother indicated that he
can’t function in a 6:1:1 setting?
Ms. Kaufman: Yes. - - .
Counsel: And even though his teachers indicated that
he cannot function in a 1:1 - - sorry, in a 6:1:1
setting?
Ms. Kaufman: Correct.
Counsel:
Center?
Did
you
consider
recommending
McCarton
Ms. Kaufman: No, I did not.
Counsel: And why was that?
Ms. Kaufman: McCarton is a private school. We didn’t
feel that he needed a private school.
We felt that
his needs could be met in a public school.
And we
felt that recommendation of having six other students
in his class would be beneficial to him.
(Tr. 306-07.)
19
are working on certain skills with the student, it is determined
by them as to how they will measure the student’s ability to
master that skill.”
(Tr. 278.)
Ms. Visco, the Director of ABA services at McCarton,
testified at the due process hearing that she worked with D.B.
twice a week for thirty to forty-five minutes over the 2009-2010
school year.
(Tr. 380-81.)
She testified that D.B. had a 1:1
ratio at the McCarton Center and that she believed that it was
“appropriate” and “necessary” for D.B. “in terms of both skill
acquisition and for problem behavior.”
(Tr. 396.)
She
elaborated that D.B. needed 1:1 because “it’s just a safety
concern with him in terms of . . . keeping himself safe, keeping
the other kids safe, keeping the therapist safe.
He really
needs somebody with him constantly.”
She explained
(Tr. 396.)
that at the McCarton Center, D.B. would be in a classroom with
up to four other students; however each student would have their
own one-on-one instruction.
(Tr. 397.)
Ms. Visco also
testified that her contribution to the CSE meeting was to
recount “each of the goals [she] had submitted,” “[D.B.’s] goals
for the previous year and how he had progressed with them,” and
“[D.B.’s] problem behavior and how we were intervening [at
McCarton].”
(Tr. 422.)
She also testified that she was not on
the phone for the full CSE meeting or when the CSE recommended
20
the 6:1:1 program.
(Tr. 420-21.)
Although Ms. Visco testified
that she believed 1:1 instruction was necessary and appropriate
for D.B., she did not testify that she had informed the CSE that
she believed that a 6:1:1 program would be inappropriate for
D.B.
Jamie Aranoff, D.B.’s speech pathologist at the McCarton
Center, testified that her participation in the CSE meeting was
limited to recommending the goals that she had written for D.B.
and submitted to the CSE (Tr. 695.)
Aranoff did not testify
that she believed D.B. required 1:1 instruction or that she had
told the CSE D.B. required such instruction.
Similarly, Maria
Bizzarro, D.B.’s occupational therapist at McCarton, testified
that she had recommended to the CSE that D.B. receive
occupational therapy five times each week for forty-five minutes
(Tr. 735), but did not testify that she told the CSE that D.B.
required full time 1:1 instruction.
Finally, D.B.’s mother testified that she did not believe a
6:1:1 classroom was appropriate for D.B. because “none of the
professionals that [she had] spoken to in the last couple of
years felt that [D.B.] could make it in a 6:1:1 anywhere.”
848.)
(Tr.
Unlike Ms. Visco, Ms. Aranoff, or Ms. Bizzarro, D.B.’s
mother testified that she told the CSE that she did not believe
the 6:1:1 program was appropriate.
21
(Tr. 849, 870, 937-39.)
In addition to those witnesses who had been present at the
CSE, there were several witnesses who testified before the IHO
but did not participate in the CSE and did not submit reports to
the CSE.
Sharna McMicken, D.B.’s speech pathologist from 2007
to 2009, gave her opinion that D.B. could not function in a
6:1:1 classroom environment.
However, she had not taught D.B.
since before the 2009-2010 school year.
(Tr. 343-48.)
Dr.
Oratio, a psychologist who evaluated D.B. in the fall of 2010,
and Dr. Blaustein, D.B.’s speech pathologist as of August 2010,
also testified before the IHO. (Tr. 484, 531, 619.)
Moreover, several exhibits were introduced at the due
process hearing that were not before the CSE because they were
created after the CSE meeting was held: two BIPs from August
2010 and March 2011, an April 2011 Comprehensive Speech and
Language Evaluation, a Progress Report and an Occupational
Therapy Progress Note from May 2011, and a psychological reevaluation by Dr. Oratio and Dr. Salsberg dated October 2010.
These exhibits were never before the CSE and therefore did not
factor into the IEP for D.B.
On December 1, 2011, the IHO issued his Findings of Fact
and Decision.
(See IHO Op.)
The IHO held that the IEP was
inappropriate and that the Department had failed to offer D.B. a
FAPE for the 2010-2011 school year.
22
The IHO held that the annual goals in the IEP were
inappropriate:
I find that the annual goals contained in
the . . . IEP are inappropriate as they failed to
include evaluative criteria, evaluation procedures and
schedules to be used to measure the student’s progress
toward meeting the annual goals in those areas.
The
annual goals are vaguely worded (e.g., the student
“will improve reading skills,” the student “will
improve math skills,” etc.) and fail to identify how
well and over what period of time the student must
perform a skill in order to consider it met[.]
(IHO Op. at 13.)
The IHO held “to the extent that deficits
identified in the IEP goals may be deemed procedural, I find
that these procedural errors impeded the student’s right to a
FAPE, significantly impeded the parent’s opportunity to
participate in the decision making process regarding the
provision of a FAPE to the student, and caused a deprivation of
educational benefits.”
(Tr. 13.)
The IHO also concluded that the 6:1:1 program was not
“reasonably calculated to confer benefit on the student because
it would not have provided the student with sufficient
personalized instruction to permit him to benefit educationally
from that instruction.”
(Tr. 15.)
The IHO’s decision that a
6:1:1 was inappropriate relied upon a few pieces of evidence:
(1) the 2009 report of Dr. Salsberg (Ex. 4); (2) the testimony
by Ms. Visco that the student needed one-to-one to address “both
23
skill acquisition and for problem behavior” (Tr. 396); (3) the
testimony by Dr. Blaustein and Dr. Oratio; and (4) the testimony
by Ms. Aranoff that the one-to-one ratio was appropriate for
D.B.’s speech and language sessions (Tr. 644).
(See IHO Op. at
15.)13
The IHO held that the McCarton Center was an appropriate
placement and that the equities favored reimbursement and
ordered full reimbursement for the tuition and costs associated
with the student’s unilateral placement at the McCarton Center
for the 2010-2011 school year.
(Tr. 16-21.)
The Department appealed the decision of the IHO to the SRO
and argued that the IHO’s decision was incorrect with respect to
both the annual goals and the adequacy of the 6:1:1 program.
The SRO reversed the decision of the IHO.
The SRO held that contrary to the decision of the IHO, the
annual goals and short-term objectives were “detailed,
13
The IHO also rejected two additional arguments that the
parents did not appeal to the SRO and are therefore waived. The
IHO rejected the parents’ argument that the CSE had not
considered all of the evaluations and held that “based on the
credible testimony of Ms. Kathy Kaufman, I find that the CSE
properly relied on the evaluations made available to it in
assessing the student’s then-current skill levels.” (IHO Op. at
12.) The IHO also rejected the parents’ argument that the BIP
was inadequate or that the CSE had committed an error by not
formulating an FBA. (IHO Op. at 14.) Because the plaintiff did
not appeal those findings to the SRO, they were waived and will
not be addressed further. (See SRO Op. at 8.)
24
measurable, and designed to meet the student’s needs.”
at 8.)
(SRO Op.
The SRO explained that although the annual goals were
“vaguely worded,” and “lacked specificity and measurability,”
because all of the annual goals contained “specific short-term
objectives related to the student’s needs from which the
student’s progress could be measured,” the deficiencies in the
annual goals did not rise to the level of a denial of a FAPE
(SRO Op. 9.)
Moreover, the SRO held that contrary to the IHO’s
finding that the annual goals were deficient because they lacked
evaluative criteria, evaluation procedures, and schedules to be
used to measure the student’s progress, because D.B.’s teachers
would determine the method of measurement three times per school
year, the failure to specify a specific method of measurement in
the IEP did not deny D.B. a FAPE.
(SRO Op. at 10.)
The SRO also concluded that the 6:1:1 program was an
appropriate placement program for D.B.
The SRO chronicled the
testimony of Ms. Kaufman that a 6:1:1 was appropriate for D.B.,
the other information before the CSE—including the 2009
evaluation, and the additional related services and
accommodation recommendations in the IEP.
(IHO Op. at 10-12.)
The SRO concluded that “the CSE’s recommendation to place the
student in a [6:1:1] special class was tailored to address the
25
student’s education needs and was designed to offer the student
a FAPE for the 2010-2011 school year.
(SRO Op. at 12.)
The SRO explained that the 6:1:1, combined with the 1:1
BPM, was appropriately designed to address D.B.’s academic and
social/emotional needs.
(SRO Op. at 12.)
The SRO relied on Ms.
Kaufman’s testimony that a more restrictive setting than a 6:1:1
classroom would not have been appropriate for D.B.
13.)
(SRO Op. at
The SRO rejected the parents’ position, explaining:
Although the parents maintain that the student
required
intensive
1:1
instruction
to
receive
educational benefits, there is nothing in the hearing
record to suggest that the student would not be
adequately supported by a 1:1 paraprofessional working
under the direction of the special education teacher
to provide support with the student’s behaviors
. . . . [T]he evidence does not support the conclusion
that the student would require more than a 1:1
paraprofessional could provide within a 6:1:1 special
class. Additionally, the May 2010 CSE recommended the
provision of the following supports to address the
student’s
behaviors
and
his
social/emotional
management needs: (1) clear and consistent routines;
(2) positive reinforcement; (3) visual and verbal
supports; (4) redirection; (5) prompting; and (6)
modeling appropriate behavior.
(SRO Op. at 14 (internal citations omitted).)
Having
reversed both findings that favored the parents, the SRO
did not reach the issues of whether the McCarton Center was
an appropriate placement for the student or whether
equitable considerations supported the parents’ claims for
reimbursement.
(SRO Op. at 15.)
26
On June 1, 2012, the plaintiff filed a complaint in
this Court.
The Complaint challenges the decision of the
SRO and alleges violations of the IDEA, Section 504, and
the New York State Education Law.
(See Compl. ¶¶ 72-77.)
The plaintiffs moved for summary judgment on the IDEA claim
and the defendant cross-moved for summary judgment on the
same claim.
III.
The plaintiffs allege that the Department violated the IDEA
and demand reimbursement of D.B.’s tuition to the McCarton
Center for the 2010-2011 school year.
The Supreme Court has
established a two-part test to determine whether a party is
entitled to reimbursement: (1) was the IEP proposed by the
school district inadequate or inappropriate; and (2) was the
private placement appropriate to the child’s needs.
See
Gagliardo II, 489 F.3d at 111–12 (citing Burlington, 471 U.S. at
370).
If the two-part Burlington test is satisfied, the Court
has discretion to consider relevant equitable factors in
fashioning relief.
Id. (citing Florence County Sch. Dist. Four
v. Carter, 510 U.S. 7, 16 (1993)).
“Under New York’s Education
Law § 4404(1)(c), the local school board bears the initial
27
burden of establishing the validity of its plan at a due process
hearing.”
R.E., 694 F.3d at 184.14
Under the first prong of the Burlington test, a court must
determine whether the IEP was inadequate or inappropriate.
In
making this determination, courts engage in a two-part inquiry
“that is, first, procedural, and second, substantive.”
R.E.,
694 F.3d at 190; see also D.C., 2013 WL 1234864, at *11.
The
plaintiffs allege both procedural and substantive violations.
1. Procedural Adequacy of the IEP
“At the first step, courts examine whether there were
procedural violations of the IDEA, namely, whether the state has
complied with the procedures set forth in the IDEA.”
R.E., 694
F.3d at 190 (citation and internal quotation marks omitted).
Procedural violations only entitle a parent to reimbursement “if
they ‘impeded the child’s right to a [FAPE],’ ‘significantly
14
The Supreme Court has left open the question whether the
states could place that burden on the District, even in cases
where a parent challenges the IEP. See M.H., 685 F.3d at 225
n.3. However, when a federal court reviews the administrative
decisions reviewing the IEP, this Court is bound to exhibit
deference to those decisions. Id. Nothing in this case turns
on which party bore the burden of proof in the state
administrative proceeding because that issue would only be
relevant if the evidence were in equipoise. Id. That is not
the case here. See M.W., 2013 WL 3868594, at * 1 n.1 (declining
to determine if parents or Department of Education bears burden
of persuasion on adequacy of IEP because evidence was not in
equipoise).
28
impeded the parents’ opportunity to participate in the
decisionmaking process,’ or ‘caused a deprivation of educational
benefits.’”
Id. (quoting 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.”
Id. (citing Werner v. Clarkstown Cent. Sch. Dist., 363
F. Supp. 2d 656, 659 (S.D.N.Y. 2005)); see also D.C., 2013 WL
1234864, at *11.
The plaintiffs allege that the Department violated the IDEA
because the annual goals were not sufficiently detailed and did
not contain specific evaluative criteria.
“[W]ith respect to
the goals that must be included in any IEP, the IDEA and its
regulations require that the IEP include short-term and longterm academic and non-academic goals for each student, as well
as evaluative procedures for measuring a student’s progress in
achieving the short- and long-term goals contained in the IEP.”
M.H., 685 F.3d at 245 (citing 20 U.S.C. § 1414(d)(1)(A)(i)(III);
34 C.F.R. § 300.320(a)(2)-(3); NYCRR tit. 8, § 200.4(d)(2)(ii)).
“[T]he 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 decisions.”
Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir.
2003).
When an IEP contains a significant number of specific
29
short-term objectives to supplement otherwise broad annual
goals, the vagueness of the annual goals alone will not rise to
the level of the denial of a FAPE.
See, e.g., M.Z. v. N.Y.C.
Dep’t of Educ., No. 12 Civ. 4111, 2013 WL 1314992, at *10
(S.D.N.Y. Mar. 21, 2013) (deferring to SRO decision that
specific short-term objectives remedied any deficiencies in the
annual goals);
A.D. v. N.Y.C. Dep’t of Educ., No. 12 Civ. 2673,
2013 WL 1155570, at *10-11 (S.D.N.Y. Mar. 19, 2013) (same).
In this case, the SRO held that although the annual goals
were vaguely worded and lacked evaluative criteria, the
specificity and measurability of the 96 short-term objectives in
the IEP ameliorated any procedural violations that could have
flowed from the annual goals.
The SRO’s decision is persuasive
and is entitled to deference.
See Grim, 346 F.3d at 381.
As
the SRO found, the annual goals in the IEP contain specific
short-term objectives with numerical targets for success.
Each
annual goal also indicates that there were would be three
progress reports per year.
(IEP at 6.1-6.14.)
Illustratively,
the annual goal that “[D.B.] will improve his reading skills,”
contains six detailed and measurable short-term objectives,
among them:
D.B. will match at least 25 words to the co[r]responding
pic[t]ures and vice versa with 80 % accuracy
30
D.B. will receptively identify as a listener at least 25
written words, with 80% accuracy
D.B. will match 15 words in different fonts with 90%
accuracy
D.B. will read 10 C-V-C (Consonant-Vowel-Consonant) words,
with 80% accuracy.
(IEP at 6-1.) Similarly, the annual goal that D.B. “will improve
visual perceptual and skills” includes five short-term
objectives, among them:
D.B. will match at least 25 different items/pictures that
are associated with each other with 80% accuracy.
D.B. will sort at least 5 related items/pictures from 10
different categories without a sample with 80% accuracy.
(IEP at 6-3.)
The annual goal that D.B. would “improve language
skills for the classroom” contains thirteen specific measurable
short-term objectives (IEP at 6-4) and the annual goal that D.B.
would “improve play skills,” contains seven specific measurable
short-term objectives (IEP at 6-6).
These are only a few of the
17 annual goals and 96 specific and measurable short-term
objectives in the IEP, but they demonstrate that the broad
annual goals had complementary detailed short-term objectives
with specific numerical targets.
Furthermore, the SRO held correctly that the failure to
designate specific methods of measurement for the annual goals
and short-term objectives in the IEP did not result in the
31
denial of a FAPE.
Many courts in this district have held that
similar omissions on the IEP do not impede the child’s right to
a FAPE, significantly impede the parents’ opportunity to
participate in the decision-making process, or cause a
deprivation of educational benefits.
See, e.g., J.A. v. N.Y.C.
Dep’t of Educ., No. 10 Civ. 9056, 2012 WL 1075843, at *8
(S.D.N.Y. Mar. 28, 2012); W.T. v. Bd. of Educ. of the Sch. Dist.
of N.Y.C, 716 F. Supp. 2d 270, 288-89 (S.D.N.Y. 2010); R.R. ex
rel. M.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d
283, 295 (S.D.N.Y. 2009).
The numerical nature (80% accuracy,
match at least 25 words, etc.) of practically every short-term
objective in the IEP demonstrates that any perceived failure by
the CSE to specify a method of measurement did not deny D.B. a
FAPE.
See W.T., 716 F. Supp. 2d at 289 (affirming SRO finding
that vague annual goals offset by short-term objectives with
evaluative criteria such as “state the correct operation to be
used in each of 7 out of 10 word problems” or “write at least 8
of 10 sentences containing appropriate capitalization and
punctuation.”); cf. M.H., 685 F.3d at 248-49 (upholding district
court decision that lack of specific methods of measurement was
a procedural violation because only fifteen of eighty short-term
objectives contained the measurement statement “teacher
observation” to indicate how an observer would measure progress
32
and none of the academic short-term objectives had any express
evaluation procedure).
Finally, the annual goals and short-term objectives were
all drafted and read out loud at the CSE meeting and there is no
evidence that anyone objected at that time.
(Tr. 277, 304.)
Therefore, any deficiencies in the annual goals did not impede
the child’s right to a FAPE, did not significantly impede the
parents’ opportunity to participate in the decision-making
process, and did not cause a deprivation of educational
benefits.
The decision of the SRO is affirmed.
2. Substantive Adequacy of the IEP
The plaintiff also alleges that contrary to the findings of
SRO, the IEP was substantively deficient because the 6:1:1 ratio
was insufficient to address D.B.’s unique educational needs.
The defendant argues that the IEP was sufficient.
Because the
designation of a 6:1:1 program with a 1:1 BMP was sufficient,
the decision of the SRO is entitled to deference.
After determining whether a proposed IEP is procedurally
adequate, “[c]ourts then examine whether the IEP was
substantively adequate, namely, whether it was reasonably
calculated to enable the child to receive educational benefits.”
R.E., 694 F.3d at 190 (internal citation and quotation marks
33
omitted).
It is clear that 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, but
rather “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
opportunity greater than mere ‘trivial advancement.’”
427 F.3d at 195 (quoting Walczak, 142 F.3d at 130).
Cerra,
Thus, the
education provided must be “sufficient to confer some
educational benefit upon the handicapped child,” Rowley, 458
U.S. at 200, but it need not “provide[ ] everything that might
be thought desirable by loving parents.”
Walczak, 142 F.3d at
132 (quotation omitted).
“[D]eterminations regarding the substantive adequacy of an
IEP should be afforded more weight than determinations
concerning whether the IEP was developed according to the proper
procedures.”
M.H., 685 F.3d at 244.
The reviewing court “must
examine the record for ‘objective evidence’ that indicates
‘whether the child is likely to make progress or regress under
the proposed plan.’”
Gagliardo II, 489 F.3d at 113 (quoting
Walczak, 142 F.3d at 130).
At the outset, some of the material that was relied upon by
the IHO and SRO was impermissible retrospective testimony.
34
In
determining whether the IEP was appropriate, “the IEP must be
evaluated prospectively as of the time of its drafting,” and
“both parties are limited to discussing the placement and
services specified in the written plan and therefore known to
the parties at the time of the placement decision.”
F.3d at 186-87.
R.E., 694
“[A] deficient IEP may not be effectively
rehabilitated or amended after the fact through testimony
regarding services that do not appear in the IEP,” R.E., 694
F.3d at 185.
And the converse is also true; a substantively
appropriate IEP may not be rendered inadequate through testimony
and exhibits that were not before the CSE about subsequent
events and evaluations that seek to alter the information
available to the CSE.
At the due process hearing, Dr. Blaustein, Dr. Oratio, and
Sharna McMicken each testified with respect to the
inappropriateness of the 6:1:1 program for D.B.
The IHO found
that the IEP was inadequate, in part because of the testimony of
Dr. Blaustein and Dr. Oratio.
(IHO Op. at 15.)
However, these
witnesses were not at the CSE, did not submit exhibits to the
CSE, did not examine D.B. prior to the CSE hearings, and their
testimony should not be considered as a basis to declare the IEP
35
substantively inadequate.15
It would be inappropriate to allow
the plaintiffs to attack the IEP with retrospective testimony
while prohibiting the Department from retrospective bolstering.16
At oral argument on the present motions, both parties agreed
that the determination in this case should be based solely upon
on testimony of the witnesses and exhibits that were before the
CSE.
(Hr’g Tr. 6, 35-36, July 1, 2013.)
The SRO’s decision that the 6:1:1 ratio was sufficient for
D.B. to make progress is persuasive and entitled to deference.
The SRO relied largely on Ms. Kaufman’s testimony, which the IHO
also found credible.
(See IHO Op. at 12.)
Ms. Kaufman
testified that the May 2010 CSE reviewed all the information
before it and received input from all of the student’s current
educational providers.
(Tr. 260, 266-67.)
Based on the
information before it, the CSE concluded that a 6:1:1 program
with a 1:1 BMP would be “beneficial” for D.B. (Tr. 306-07), and
the CSE rejected a 12:1:1 program and a 6:1:1 without a 1:1 BMP
for D.B. because neither was adequate for D.B.’s needs (IEP at
15
Similarly, although not explicitly listed as a ground for
finding the IEP inadequate, Dr. Oratio’s October 2010
psychological evaluation was not before the CSE and should not
have been considered by the IHO or SRO.
16
This is not to say that witnesses cannot explain the contents
of the IEP, which the Court of Appeals held is permissible. See
R.E., 694 F.3d at 186 (“While testimony that materially alters
the written plan is not permitted, testimony may be received
that explains or justifies the services listed in the IEP.”).
36
8).
Ms. Kaufman testified that it would not have been
appropriate to consider anything more restrictive than 6:1:1.
(Tr. 306.)
The SRO relied on this testimony and that decision
is entitled to deference.
The plaintiffs have been unable to direct the Court to a
single piece of evidence in the materials or testimony before
the CSE which provided that D.B. required full time 1:1
instruction to make progress and could not succeed in a 6:1:1
program with the assistance of a 1:1 BMP.
The testimony and
exhibits before the CSE indicated that D.B. required 1:1 support
for his behavioral problems, occupational therapy, and speech
and language therapy.
However, the IEP provided D.B. with 1:1
assistance to match each of these recommendations.
provided D.B. with a full time BMP.
The IEP
It also provided DB with a
plethora of 1:1 services for speech and language therapy,
occupational therapy, physical therapy, and counseling.
9.1-9.2.)
(IEP at
The plaintiffs argue that D.B. requires 1:1
instruction and that a 1:1 BMP is insufficiently supportive of
his needs.
However, “[t]he adequacy of 1:1 paraprofessional
support as opposed to 1:1 teacher support is precisely the kind
of educational policy judgment to which we owe the state
deference if it is supported by sufficient evidence[.]”
694 F.3d at 192.
R.E.
As the SRO explained, “there is nothing in the
37
hearing record to suggest that the student would not be
adequately supported by a 1:1 paraprofessional working under the
direction of the special education teacher to provide support
with the student’s behaviors . . . .”
(SRO Op. at 14.)
The IHO’s evidence to support his contrary conclusion is
insufficient to overcome the deference owed to the SRO.
The IHO
rested his conclusion that the IEP was substantively
inappropriate on the testimony by Dr. Blaustein and Dr. Oratio,
the testimony by Ms. Aranoff (Tr. 644), the 2009 report of Dr.
Salsberg (Ex. 4), and the testimony by Ms. Visco, (Tr. 396).
(See IHO Op. at 15.)
As explained, the IHO should not have
considered the testimony of Dr. Blaustein or Dr. Oratio because
neither were present at or submitted reports to the CSE, and
neither had examined D.B. before the CSE hearing.
Furthermore,
Ms. Aranoff did not testify that D.B. required full-time 1:1
instruction, but only 1:1 occupational therapy, which the IEP
included.
(Tr. 644.)
The 2009 Salsberg evaluation was over a
year old at the time of the 2010 CSE and the 2010 reports
indicated that D.B. had made substantial progress over the 20092010 school year.
Moreover, although the Salsberg evaluation
concluded that D.B. required a “small, structured ABA classroom
setting” with “1:1 attention,” (Ex. 4 at 4) the evaluation did
not provide that D.B. could not succeed in a 6:1:1 classroom
38
with a 1:1 BMP.
Finally, although Ms. Visco’s testified that
1:1 was “appropriate” and “necessary” for D.B. “in terms of both
skill acquisition and for problem behavior,” she elaborated that
D.B. needed 1:1 because “it’s just a safety concern with him,”
(Tr. 396) and therefore the CSE and the SRO were not wrong to
conclude that a 1:1 BMP combined with a 6:1:1 class would be
substantively adequate for D.B.
The SRO reasonably relied on Ms. Kaufman’s testimony that
based on all the evidence before the CSE, the CSE concluded that
the 6:1:1 with a 1:1 BMP was appropriate, particularly in view
of the additional 1:1 services that were provided to D.B. in the
IEP.
The SRO weighed the evidence and concluded that the 6:1:1
with a 1:1 BMP was substantively adequate.
“Courts are ill-
equipped to choose ‘between the views of conflicting experts on
a controversial issue of education policy[.]’”
Reyes v. N.Y.C
Dep’t of Educ., No. 12 Civ. 2113, 2012 WL 6136493, at *6
(S.D.N.Y. Dec. 11, 2012) (quoting Grim, 346 F.3d at 383).
Accordingly, because the SRO’s determination that the facultystudent ratio in the IEP offered D.B. a FAPE was supported by
the evidence, the conclusion will not be disturbed.
39
CONCLUSION
The Court has considered all of the arguments raised by the
parties.
To the extent not specifically addressed, they are
either moot or without merit.
For the reasons explained above,
the defendant’s motion for summary judgment on the IDEA claim is
granted.
The plaintiffs’ motion for summary judgment on the
IDEA claim is denied.
The Clerk is directed to close docket
nos. 12 and 14.
SO ORDERED.
Dated: New York, New York
September 14, 2013
___________/s/_____________
John G. Koeltl
United States District Judge
40
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