B.P. et al v. New York City Department of Education
Filing
28
ORDER AND OPINION re: 13 MOTION for Summary Judgment . filed by B.P., S.H., 18 CROSS MOTION for Summary Judgment . filed by New York City Department of Education. For the foregoing reasons herein, Plaintiffs' motion for summary judgment is DENIED, and Defendant's cross-motion for summary judgment is GRANTED. The Clerk of Court is directed to close the motions at Docket Nos. 13 and 18. (Signed by Judge Lorna G. Schofield on 12/3/2014) (kgo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
:
B.P. and S.H.,
:
Plaintiff,
:
:
-against:
:
NEW YORK CITY DEPARTMENT OF
:
EDUCATION
Defendant. :
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12/3/14
14 Civ. 1822 (LGS)
ORDER AND OPINION
Plaintiffs B.P. and S.H., on behalf of their child, S.H., bring this action against the New
York City Department of Education (“DOE”) pursuant to the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. Plaintiffs seek review of the December 19,
2013, decision of the New York State Review Officer (“SRO Decision”) upholding the
September 5, 2013, decision of the Impartial Hearing Officer (“IHO Decision”), which found
that the DOE had provided a free and appropriate education (“FAPE”) to S.H. during the 20122013 school year. The parties have cross-moved for summary judgment. Because the SRO
Decision is sufficiently supported by the record, Plaintiffs’ motion is denied and the DOE’s
motion is granted.
I.
STATUTORY FRAMEWORK
The IDEA mandates that states receiving federal special education funding provide
disabled children with a FAPE. 20 U.S.C. § 1412(a)(1)(A); M.W. ex rel. S.W. v. New York City
Dep’t of Educ., 725 F.3d 131, 135 (2d Cir. 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. New York City Dep't of Educ., 694 F.3d 167, 175 (2d Cir. 2012). 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).
New York delegates the development of an IEP to a local Committee on Special
Education (“CSE”). See N.Y. Educ. Law § 4402(1)(b)(1) (McKinney). At a minimum, the CSE
is composed of the student’s parent(s), a special education teacher, a regular education teacher if
the student participates in a regular education program, 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 Educ.
§ 4402(1)(b)(1)(a). “The CSE must examine the student’s level of achievement and specific
needs and determine an appropriate educational program.” R.E., 694 F.3d at 175.
If a parent believes that the DOE has failed to provide a FAPE to his or her child, 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 Florence Cnty. Sch. Dist. Four v. Carter,
510 U.S. 7, 9-10, 16 (1993)). To seek reimbursement, the parent must first file a due process
complaint with the DOE, which triggers 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); Educ. § 4404(1)). The IHO hearing is governed by the three-part
Burlington/Carter test, as construed by New York Education Law § 4404(1)(c): “(1) the DOE
must establish that the student’s IEP 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.” M.W., 725 F.3d at 135 (footnote
omitted).
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The IHO’s decision may be appealed to a State Review Officer (“SRO”). See Educ.
§ 4404(2); 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)). The SRO’s decision is the
final administrative decision. An aggrieved party, however, may seek review of the SRO’s
decision by commencing an action in federal district court. See 20 U.S.C. § 1415(i)(2)(A);
M.W., 725 F.3d at 135-36.
II.
BACKGROUND
A.
S.H.’s Educational History
S.H. is an 11 year-old boy with autism spectrum disorder, attention deficit hyperactive
disorder, a sensory integration disorder, obsessive compulsive disorder and Tourette’s syndrome.
S.H. exhibits deficits in cognition, academics, communication skills, sensory integration and
regulation, including food sensitivity, social interaction and emotional regulation. S.H. displays
tantrum behaviors when dysregulated, including screaming or crying, as well as self-injurious
behaviors, such as head banging and hitting himself on the head, when frustrated or
overwhelmed and when in a large crowd or noisy environment.
For the four years prior to the school year in question (2012-2013), S.H. attended the
Rebecca School in a classroom with seven students, one teacher and three paraprofessionals (a
“7:1+3 class”) and received speech-language therapy, occupational therapy (“OT”) and
counseling services.
B.
S.H.’s Individualized Education Program for 2012-2013
On March 1, 2012, the DOE convened a meeting of the CSE to develop S.H.’s IEP for
the 2012-2013 school year. The CSE consisted of S.H’s parents, a school psychologist who also
served as the District’s representative, a social worker from the Rebecca School and S.H.’s
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teacher, who participated by telephone. To develop the IEP, the CSE used several pre-existing
reports, including a Rebecca School progress report, dated December 2011; S.H.’s July 9, 2011,
physical therapy evaluation; his November 2, 2010, classroom evaluation; his April 20, 2011,
psycho-educational report; his April 20, 2011, vocational interview and his social history update.
The CSE relied primarily on the December 2011, Rebecca School progress report, which
included information from an occupational therapist, a counselor, a speech therapist and S.H.’s
teachers at the Rebecca School. Dr. Czarnecki, the district psychologist, testified that the CSE
also relied on verbal input from meeting participants and that the goals included in the IEP were
read aloud and reviewed one by one with S.H.’s parents.
The IEP addressed different aspects of S.H.’s performance, including academic
achievement, functional performance, learning characteristics, social and physical development
and management needs. Regarding S.H.’s academic performance, the IEP recorded that S.H.
should “learn his phone number . . . improve his skill at answering ‘when’ and ‘why’
questions . . . [and] make money combinations with coins.” As to his social development, the
IEP recommended that S.H. “be able to tolerate frustration when upset by a peer’s behavior or by
a change in his schedule . . . [and] remain in a continuous flow of interaction for more than 30
circles when challenged.” In regards to his physical development, the IEP recommended that
S.H. “increase his flexibility and low frustration tolerance toward anticipation of failure when
performing a novel activity . . . [and] improve handwriting for letter formation, sizing, spacing
and alignment.”
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The IEP listed 16 annual goals for S.H. to attain during the 2012-2013 school year. For
each annual goal, the IEP provided short-term objectives and/or benchmarks to evaluate S.H.’s
progress in attaining the annual goal over the course of the year.
The IEP concluded with a recommendation that S.H. be placed in a 6:1+1 class in a
specialized school with a 12-month program, and provided with related services including
speech-language therapy (individual service) twice a week for 30 minutes; speech-language
therapy (group of 2) once a week for 30 minutes; OT (individual service) 4 times a week for 30
minutes; OT (group of 2) once a week for 30 minutes; counseling services (individual service)
once a week for 30 minutes; and counseling services (group of 2) once a week for 30 minutes.
Each of these services was to take place at a location outside of the classroom.
C.
Rejection of the Recommended School Replacement
In May 2012, S.H.’s parents signed an enrollment contract with the Rebecca School and
an addendum with a schedule of payments for the 2012-2013 school year. On June 11, 2012, the
district notified the parents that S.H. had been assigned to P369K@P005, a public school located
in Brooklyn, New York. By letter dated June 18, 2013, the parents informed the district that they
intended to visit P369K@P005 to determine whether it was an appropriate placement. In the
letter, the parents indicated that, if they found that the placement at P369K@P005 fell short of
S.H.’s needs, S.H. would attend the Rebecca School and the parents would request district
funding.
By letter dated July 9, 2012 (“July 9 letter”), the parents notified the district that they had
visited P369K@P005 and they believed that the school would not meet their son’s needs. The
parents noted certain failings of the school including: lack of an occupational therapist on staff;
lack of a sensory gym; lack of a separate speech-language therapy room; that the speech and OT
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sessions would be push-in service (i.e., in the classroom); and that they were told by a social
worker at P369K@P005 that the school was inappropriate for S.H.
In a letter dated August 17, 2012, the parents notified the district that S.H. would be
attending the Rebecca School and they would seek tuition reimbursement from the district. S.H.
attended the Rebecca School for the entirety of the 2012-2013 school year.
D.
Due Process Complaint and Impartial Hearing
On December 19, 2012, the parents filed a due process complaint and requested an
impartial hearing. The complaint alleged that the district failed to offer S.H. a FAPE for the
2012-2013 school year for the following reasons: (1) the parents never received a copy of S.H.’s
IEP; (2) the details regarding the annual goals in the IEP were not discussed at the CSE meeting;
(3) the IEP did not accurately reflect S.H.’s then-present levels of performance and individual
needs; (4) the goals in the IEP did not include measurement criteria; (5) the short-term objectives
in the IEP relating to visual spatial skills and OT were “unrealistic”; (6) the speech-language
short-term objectives in the IEP failed to take into account S.H.’s “spatial issues”; (7) the IEP
failed to include parent counseling and training; (8) the related services listed on the IEP could
not be implemented at P369K@P005; (9) P369K@P005 lacked a sensory gym; and (10) bus
transportation to and from P369K@P005 would not be appropriate for S.H. The parents asserted
that their placement of S.H. at the Rebecca School was appropriate and that equitable
considerations favored their request for tuition reimbursement.
An impartial hearing took place over four non-consecutive days, beginning on April 15,
2013, and concluding on July 22, 2013. Seven witnesses testified, including individuals who
served on the CSE. The witnesses included Christine Quintana, a social worker from
P369K@P005; Dr. Craig Czarnecki, the school psychologist for the district; Tina McCourt, the
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Program Director at the Rebecca School; Rebecca Lubin, S.H.’s teacher at the Rebecca School;
Liza Bernabeo, a speech language pathologist at the Rebecca School; Toni Sheridan, the
supervisor of OT at the Rebecca School; and Bridget Petrie, S.H.’s mother.
E.
The IHO Decision
On September 5, 2013, the IHO issued a 26-page decision with multiple findings of fact
and conclusions of law. In respect of the first prong of the Burlington/Carter test, requiring the
district to establish that it provided the student a FAPE, the IHO found that a FAPE was offered
to S.H. In support of this conclusion, the IHO found, based on the record, that (1) the parents
were provided with a meaningful opportunity to participate in the CSE meeting, (2) the CSE had
available to it evaluations specifying S.H.’s then-present levels of performance, (3) S.H. was
properly classified with a speech or language impairment, (4) the recommendation for a 6:1+1
special class with related services of speech-language therapy, OT and counseling was an
appropriate placement, and (5) the district made a timely and appropriate site offer at
P369K@P005. Having found that the DOE offered S.H. a FAPE for the 2012-2013 school year,
the IHO did not undertake any analysis pursuant to prongs 2 and 3 of the Burlington/Carter test
regarding the appropriateness of the parents’ unilateral placement and equitable considerations.
F.
The SRO Appeal and Decision
The parents appealed the IHO Decision in a petition dated October 8, 2013 (the
“Petition”). The Petition sought a reversal of the IHO’s determination that S.H. was provided a
FAPE for the 2012-2013 school year, a determination that the parents’ unilateral placement of
S.H. at the Rebecca School was appropriate and a determination that equitable considerations
favored the parents. The parents argued that (1) the district significantly impeded the parents’
opportunity to participate in the decision-making process regarding the provision of a FAPE to
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S.H. because by the time they received the IEP in June 2012, two weeks before the school year
began, it was too late to reconvene the CSE; (2) their participation was also impeded because
there was no discussion at the CSE of the goals that were included in the IEP; (3) the IEP’s
description of S.H.’s levels of educational performance was inaccurate because it did not fully
repeat the description provided by the Rebecca School progress report; (4) the goals in the IEP
were unmeasurable because they did not make distinctions between annual goals and short-term
objectives; (5) the IEP should have included more goals to address S.H.’s spatial deficits and one
of the two goals addressing S.H.’s spatial issues contained no measurable criteria; (6) some of
the goals in the IEP would be met before the start of the 2012-13 school year and the goals were
drafted to be implemented in a 8:3+1 class; (7) the IEP failed to include parent counseling and
training; (8) the IEP should have reflected S.H.’s need for a sensory gym and S.H.’s diagnosis of
Tourette’s syndrome; (9) the 6:1+1 placement was inappropriate; and (10) P369K@P005 was
not appropriate for S.H. due to the presence of general education students, the method of food
preparation and the lack of a feeding group.
On December 19, 2013, the SRO issued the SRO Decision, which affirmed the findings
of the IHO Decision. The SRO Decision declined to consider three of the claims asserted by the
parents (numbered 6, 9 and 10 above), on grounds that they did not appear in the parents’ due
process complaint notice. The SRO found that none of the actions or omissions of the district
denied S.H. a FAPE. Regarding the parents’ participation in the development of the IEP, the
SRO concluded that the evidence showed that the parents had an opportunity to discuss the goals
in the IEP and that nothing in the record indicated that the parents’ opportunity to participate was
impeded. The SRO also found that the parents’ receipt of the IEP two weeks before the school
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year began did not significantly impede the parents’ opportunity to participate in the decisionmaking process.
The SRO concluded that S.H.’s IEP was adequate based on a number of findings. First,
the SRO found that the IEP accurately reflected S.H.’s then-present levels of academic
achievement and functional performance. Second, the SRO found that the objectives in the IEP
appropriately addressed S.H.’s needs and were not “unrealistic.” The SRO observed that there
were two annual goals and six corresponding short-term objectives that related to S.H.’s spatial
issues. The SRO found that the majority of the short-term objectives “contain[ed] sufficiently
detailed information regarding the conditions under which each objective was to be performed
and the frequency, duration, and percentage of accuracy required for measurement of progress.”
Third, the SRO found that the failure to recommend parent counseling and training in S.H.’s IEP
did not amount to a FAPE denial because “[t]he hearing record d[id] not indicate that the parents
had significant need for parent counseling and training at the time of the CSE meeting.”
The SRO declined to rule on the merits of the parents’ claim that P369K@P005 was
inappropriate for S.H., reasoning that any inquiry into the appropriateness of the school was
improper since “[c]hallenges to an assigned public school site are generally relevant to whether
the district properly implemented the student’s IEP, which is speculative when the student never
attended the recommended placement.” Notwithstanding this conclusion, the SRO determined
that, “assuming for the sake of argument that the student had attended the district’s
recommended program at the assigned public school site,” the designated school site would not
have deviated from S.H.’s IEP in a material way that would have resulted in a failure to offer
S.H. a FAPE.
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III.
LEGAL STANDARD
A motion for summary judgment in the IDEA context 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) (citation omitted); accord M.W., 725 F.3d at
138 (“Summary judgment in the IDEA context . . . is only a pragmatic procedural mechanism for
reviewing administrative decisions.”) (internal quotation marks and citations omitted). The task
of a district court reviewing an SRO decision is to determine whether the SRO’s decision is
supported by “the preponderance of the evidence, taking into account not only the record from
the administrative proceedings, but also any further evidence presented before the District Court
by the parties.” Grim, 346 F.3d at 380 (internal quotation marks omitted). In evaluating the
sufficiency of an IEP, neither the administrative officers nor the courts may rely on
“retrospective testimony that the school district would have provided additional services beyond
those listed in the IEP . . . .” R.E., 694 F.3d at 186.
A district court “must give due weight to [the administrative] proceedings, mindful that
the judiciary generally lack[s] the specialized knowledge and experience necessary to resolve
persistent and difficult questions of educational policy.” T.P. ex rel. S.P. v. Mamaroneck Union
Free Sch. Dist., 554 F.3d 247, 252 (2d Cir. 2009) (per curiam) (alterations in original) (internal
quotation marks and citation omitted). Accordingly, a federal court may not “substitute [its] own
notions of sound educational policy for those of the school authorities.” M.W., 725 F.3d at 139
(internal quotation marks 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.
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A district court “‘must defer to the reasoned conclusions of the SRO as the final state
administration determination.’” R.E., 694 F.3d at 189 (quoting M.H., 685 F.3d at 246). “The
deference owed depends on both the quality of the opinion and the court’s institutional
competence.” C.F. ex rel. R.F. v. New York City Dep’t of Educ., 746 F.3d 68, 77 (2d Cir. 2014).
A reviewing court may take into account “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 (internal quotation marks and citation omitted).
To determine whether an IEP complies with the IDEA, “courts make a two-part inquiry
that is, first, procedural, and second, substantive.” Id. at 189-90. The procedural inquiry
requires courts to examine “whether there were procedural violations of the IDEA, namely,
whether the state has complied with the procedures set forth in the IDEA.” Id. at 190 (internal
quotation marks and citation omitted). Procedural violations warrant reimbursement only where
the violations individually or cumulatively “‘impeded the child’s right to a [FAPE],’
‘significantly impeded the parents’ opportunity to participate in the decision[-]making process,’
or ‘caused deprivation of educational benefits.’” Id. (first alteration in original) (quoting 20
U.S.C. § 20 U.S.C. 1415(f)(3)(E)(ii)).
The substantive inquiry requires courts to “examine whether the IEP was substantively
adequate, namely, whether it was reasonably calculated to enable the child to receive educational
benefits.” Id. (internal quotation marks, citation and alteration omitted). The IDEA does not
“guarantee any particular level of education,” or “require that a child be provided with the
optimal programmatic alternative.” C.F. ex rel. R.F., 746 F.3d at 72 (internal quotation marks
and citation omitted). Instead, it requires “selection of a program that provides a ‘basic floor of
opportunity,’” and that is “likely to produce progress, not regression.” Id. (internal quotation
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marks and citation omitted). Unlike procedural inadequacy, “[s]ubstantive inadequacy
automatically entitles the parents to reimbursement.” R.E., 694 F.3d at 190.
IV.
DISCUSSION
Plaintiffs assert that the SRO improperly limited the scope of his review, and erroneously
affirmed the IHO’s decision that the district had not denied S.H. a FAPE on either substantive or
procedural grounds. Plaintiffs have not shown that the SRO Decision is not entitled to
deference. The SRO Decision reflects a comprehensive review of the record and articulates clear
explanations for each conclusion. It examines the parties’ arguments in detail and supports each
finding with multiple citations to the record. Courts generally “‘defer to the final decision of the
[SRO]’”, A.C. ex rel. M.C. v. Bd. of Educ. of The Chappaqua Cent. Sch. Dist., 553 F.3d 165, 171
(citation omitted), especially where the decision is “thorough and careful,” M.H., 685 F.3d at
241. Because the SRO’s findings are well-reasoned and supported by a preponderance of the
evidence, the SRO Decision is affirmed in its entirety.
A.
Scope of Review
Plaintiffs argue that both the IHO and the SRO erred in declining to address certain issues
raised by the parents in their Petition. Because the parents failed to raise these issues in their due
process complaint, the IHO and SRO correctly limited the scope of their review.
Under the IDEA, “[t]he party requesting the due process hearing shall not be allowed to
raise issues at the due process hearing that were not raised in the [due process complaint], unless
the other party agrees otherwise.” 20 U.S.C. § 1415(f)(3)(B). A district court does not have
subject matter jurisdiction over a claim that is not raised in the due process complaint and
exhausted as part of the administrative review process. Cave v. E. Meadow Union Free Sch.
Dist., 514 F .3d 240, 243 (2d Cir. 2008). Accordingly, “a party’s failure to raise an argument
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during administrative proceedings generally results in a waiver of that argument.” R.B. v. Dep’t
of Educ. of N.Y.C., No. 10 Civ. 6684, 2011 WL 4375694, at *6 (S.D.N.Y. Sept. 16, 2011) (citing
E.H. v. Bd. of Educ. of Shenedehowa Cent. Sch. Dist., 361 F. App’x 156, 158 (2d Cir. 2009)).
The Petition raised six claims that were not raised in the due process complaint,
including: (1) some of the goals in the IEP were anticipated to be achieved by S.H. before the
start of the 2012-2013 school year; (2) the goals in the IEP were written to be implemented in a
8:1+3 class; (3) the 6:1+1 placement was inappropriate; (4) the presence of general education
students at the school environment at PS369K would not be appropriate for S.H.; (5) the food
preparation and lack of feeding group at PS369K would not be appropriate for S.H.; and (6) the
parents were told by a school social worker during their visit that PS369K would not be
appropriate for S.H. The SRO correctly determined that these claims were beyond the scope of
his review because they were not raised in the due process complaint. This Court likewise lacks
subject matter jurisdiction to consider these claims.
Plaintiffs argue that they raised five of the six claims in a July 9, 2012, letter to the
district that was referenced in the due process complaint, which sufficiently apprised the district
of the claims and warrants flexible application of the waiver rule. In support of their argument,
Plaintiffs cite two cases where the Second Circuit advised against the waiver rule being
“mechanically applied.” In neither case, however, were the potentially waived claims
completely absent from the due process complaint. P.K. v. N.Y.C. Dep’t of Educ., 526 Fed.
App’x 135, 140 n.6 (2d Cir. 2013) (no waiver where claims were not asserted in given section of
complaint but were included elsewhere in complaint); C.F. v. N.Y.C. Dep’t of Educ., 746 F.3d
68, 78 (2d Cir. 2014) (no waiver where broad phrasing of the claims asserted in the complaint
encompassed more narrowly framed claim subsequently asserted). Here, the due process
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complaint makes no mention of the six claims now asserted by Plaintiffs, and references the July
9 letter only as part of its chronology of events. This was insufficient to put the district on notice
of the additional claims the parents intended to assert and accordingly does not warrant an
exception to the waiver rule.
B.
Procedural Violations
Plaintiffs allege four procedural FAPE violations: (1) failure to provide the parents with
the IEP before the start of the school year; (2) failure to provide the parents with an opportunity
to participate in the IEP development; (3) failure to provide for parent counseling and training;
and (4) failure to provide an accurate description of S.H.’s then present levels of performance.
The SRO concluded that none of the alleged violations deprived the parents of an opportunity to
participate or denied S.H. a FAPE. The SRO’s determinations are supported by a preponderance
of the evidence and are upheld.
i.
Failure to Provide Parents with IEP Before Start of School Year
Plaintiffs assert that S.H. was denied a FAPE because the DOE failed to provide the
parents with S.H.’s IEP before the start of the school year. Because the record establishes that
the parents timely received the IEP, the SRO’s determination is affirmed.
Under state and federal regulations, an IEP must be in effect for the student at the
beginning of the school year. 34 C.F.R. § 300.323(a); 8 N.Y.C.R.R. 200.4(e)(1)(ii). The Second
Circuit has held that as long as the parents are provided with the IEP before the first day of
school, the district has fulfilled its legal obligation under the statute. See Cerra v. Pawling Cent.
Sch. Dist., 427 F.3d 186, 193-94 (2d Cir. 2005) (“Although the [parents] might have preferred to
receive the IEP sooner, and we are sympathetic to the frustration they undoubtedly felt in not
receiving it sooner despite repeated requests, the District fulfilled its legal obligations by
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providing the IEP before the first day of school.”); see also B.P. v. N.Y.C. Dep’t of Educ., 841 F.
Supp. 2d 605, 614 (E.D.N.Y. 2012) (same).
Here, the parents received a copy of the IEP on June 15, 2012, approximately two weeks
before the start of the school year on July 1, 2012. Because the parents received S.H.’s IEP
before the start of the school year, the SRO’s determination that S.H. was not denied a FAPE on
this ground is upheld.
ii.
Participation in the Development of S.H.’s IEP
Plaintiffs argue that S.H. was denied a FAPE because the parents were denied the
opportunity to participate meaningfully in the development of S.H.’s IEP. Because the SRO’s
finding that the parents were afforded the opportunity to participate meaningfully in the
development of S.H.’s IEP is supported by a preponderance of the evidence, the SRO’s
determination is upheld.
The IDEA mandates that a district afford the parents an opportunity “to participate in
meetings with respect to the identification, evaluation, and educational placement of the child.”
20 U.S.C. § 1415(b)(1). “Parental participation requires an opportunity to examine records,
participate in meetings, and to obtain an independent evaluation.” E.F. v. N.Y.C. Dep’t of Educ.,
No. 12 Civ. 2217, 2013 U.S. Dist. LEXIS 117143 (E.D.N.Y. Aug. 19, 2013) (quoting T.L. v.
Dep’t of Educ. of N.Y.C., No. 10 Civ. 3125, 2012 WL 1107652, at *14 (E.D.N.Y. Mar. 30,
2012)). The record indicates that both parents attended the March 2012 CSE meeting, which
lasted between one and two hours. S.H.’s mother testified that annual goals and short-term
objectives were discussed at the CSE meeting. Her testimony was corroborated by S.H.’s
teachers and the district psychologist.
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The parents argue that they were denied an opportunity to participate because the IEP
goals were copied from the Rebecca School progress report instead of being developed as part of
an interactive discussion. The record contradicts this assertion, establishing that the goals were
individually evaluated and discussed. The district psychologist, for example, testified that there
was a “lengthy discussion” about S.H.’s performance at the time and whether the student’s
progress toward the goals identified in the Rebecca School report used by the CSE remained
relevant. S.H.’s teacher also testified that the IEP goals were taken from the December 2011
Rebecca School progress report, but that they also were read aloud at the meeting and that she
remembered a discussion of creating goals for S.H. As discussed above, the testimony of both
the district psychologist and S.H.’s teacher was consistent with the testimony of S.H.’s mother
that annual goals and short-term objectives were discussed at the CSE meeting.
Because a preponderance of the evidence supports the SRO’s determination that the
parents were afforded an opportunity to participate in the development of the IEP, the SRO’s
decision is upheld.
iii.
Parent Counseling and Training
Plaintiffs argue that S.H. was denied a FAPE because the IEP omitted parent counseling
and training. Because an IEP’s lack of parent counseling and training alone does not typically
result in a FAPE denial, and S.H. was not denied a FAPE on other grounds, the SRO’s
determination that the failure to include parent counseling and training did not result in a FAPE
denial is upheld.
State regulations require that an IEP include parent counseling and training when
appropriate. See 8 N.Y.C.R.R. 200.4(d)(2)(v)(b)(5) (“The IEP shall indicate . . . the extent to
which the student’s parents will receive parent counseling and training . . . when appropriate.”).
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Failure to provide parent counseling may constitute a procedural violation, but “ordinarily does
not result in a FAPE denial or warrant tuition reimbursement.” M.W., 725 F.3d at 142; accord
T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170 (2d Cir. 2014) (holding that
“parent counseling and training as part of [the student’s] ESY program was not a sufficiently
serious procedural violation to deny [the student] a FAPE.”).
The SRO found that the failure to include parent counseling and training in the IEP
constituted a procedural violation of New York law but did not result in a FAPE denial. The
SRO noted that the district psychologist testified that parent training and counseling was
“programmatic,” such that the parents would have received counseling and training regardless of
its inclusion in the IEP. The SRO also observed that the parents had already received substantial
training during the years S.H. attended the Rebecca School, and accordingly did not require
additional training. The SRO did not cite any precedent for the proposition that a district’s
obligations to provide parent counseling and training are fulfilled so long as the parents received
counseling and training in previous years, and none appears to exist in this Circuit. Accordingly,
the SRO erred in its reliance on the parents’ previous training. The error is not outcome
determinative, however, because the failure to include parent counseling and training is
insufficient, on its own, to amount to a FAPE denial. The SRO’s determination that the failure to
include parent counseling and training on the IEP did not result in a FAPE denial is accordingly
upheld.
iv.
Student’s Present Levels of Performance
Plaintiffs argue that S.H. was denied a FAPE because the IEP “failed to contain an
accurate description of his then present levels of academic achievement at the time of its
development.” Because a preponderance of the evidence supports the SRO’s determination that
17
the IEP accurately described S.H.’s then present levels of performance, the SRO’s determination
is upheld.
In New York, an IEP must “report the present levels of academic achievement and
functional performance and indicate the individual needs of the student.” 8 N.Y.C.R.R.
200.4(d)(2)(i). The SRO determined that the information contained in the present levels of
performance section of the IEP was accurate because it was drafted in accordance with
discussions with S.H.’s parents and teachers from the Rebecca School, and using the Rebecca
School progress report as a guide.
The record fully supports the SRO’s determination. The district psychologist testified
that the IEP’s levels of present performance were based on the Rebecca School report, which
was written by S.H.’s teacher, and that the district psychologist recalled asking and receiving
confirmation from S.H.’s teacher that the report “was an accurate reflection of the child’s
functioning.” The district psychologist also testified that the information about the student’s
present levels of performance was drafted according to a discussion during the CSE meeting in
which S.H.’s parents participated. The SRO’s determination is upheld because a preponderance
of the evidence supports the SRO’s determination that the description of S.H.’s present levels of
performance was accurate and based on a thorough discussion with the individuals most
knowledgeable about his performance—his teacher and his parents.
C.
Substantive Violations
Plaintiffs allege four substantive violations of the IDEA: (1) the goals in the IEP were
inappropriate to fit S.H.’s needs, in particular because one of the goals listed was anticipated to
be met before the start of the 2012-2013 school year and because the goals were “unuseable”
outside of the 8:1+3 class ratio; (2) the IEP failed to contain measurable annual goals and
18
objectives; (3) the IEP failed to include goals adequately addressing S.H.’s visual and spatial
needs; and (4) the IEP inappropriately placed S.H. in a 6:1+1 program. For the reasons
discussed above, the first and fourth alleged violations are beyond the scope of this Court’s
review. The second and third alleged substantive violations are unsupported by the record and
were properly rejected by the SRO.
i.
Claim Two: Measurability of Annual Goals
Plaintiffs assert that the CSE failed to include measurable annual goals on S.H.’s IEP.
S.H.’s IEP contains 16 annual goals, listed in table format. For each goal, there are three indicia
of progress: (1) “measure to determine whether goal has been achieved”; (2) “how progress will
be measured”; and (3) “when progress will be measured.” Plaintiffs take issue with the fact that
for each annual goal, the “measure to determine whether goal has been achieved” consists of a
cross-reference to the short-term objectives. They assert that the district was required to provide
indicia of measurability for attainment of the annual goals independent of the short-term
objectives. The SRO determined that the annual goals “lacked criteria to determine if a goal had
been met” but concluded that the short-term objectives “contained sufficient specificity by which
to evaluate the student’s progress or gauge the need for continuation or revision.” This
determination is supported by a preponderance of the evidence.
An IEP must include a description of how the student’s progress toward meeting the
annual goals described in the IEP will be measured and when progress reports will be provided.
20 U.S.C. § 1414(d)(1)(A)(i)(III); see also 8 N.Y.C.R.R. § 200.4(d)(2)(iii)(b) (“Each annual goal
shall include the evaluative criteria, evaluation procedures and schedules to be used to measure
progress toward meeting the annual goal.”); 34 C.F.R. § 300.320(a)(3) (same). “[T]he
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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.
The SRO’s conclusion that the short-term objectives remedied any deficiency in the
measurability of the annual goals is supported by the record. As an initial matter, the district
psychologist testified that the short-term objectives “composed part of the annual goals,”
indicating that it was not unreasonable for the IEP to rely on the short-term objectives as a means
of measuring the attainment of the long-term objectives. Accord A.D. v. N.Y.C. Dep’t of Educ.,
No. 12 Civ. 2673, 2013 WL 1155570, at *11 (S.D.N.Y. Mar. 19, 2013) (upholding SRO’s
determination that “‘the corresponding short-term objectives to [the] annual goals were detailed
and measureable and therefore the structure and content in these short-term objectives
sufficiently cured any deficiencies.’”). Further, the short-term objectives are both detailed and
appear sufficiently tailored to the annual goals, the achievement of which they are intended to
support. For example, an annual goal consisting of “improv[ing] sensory processing and
regulation needed to understand and effectively interact with people and object in the school and
home environment” lists three short-term objectives: (1) when environment “becomes
overwhelming,” taking a break after one verbal cue from an adult in four out of five
opportunities; (2) participating in structured movement activity with peers for 20 minutes “while
maintaining self-regulation and behavioral organization with minimal cueing 90% of the time”;
and (3) tolerating “various types of sensory input during sensorimotor activities . . . as evidenced
by participating without retreating from the task for 10-15 minutes in 3 out of 4 opportunities.”
On the basis of the record, along with the heightened deference owed to the SRO for
determinations relating to the substantive sufficiency of the goals in an IEP, the SRO’s
determination is upheld.
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ii.
Claim Three: Appropriateness of Goals Regarding Spatial and Visual
Deficits
Plaintiffs assert that the IEP failed to include adequate goals regarding S.H.’s spatial and
visual deficits. The SRO rejected this argument, finding that it was contradicted by the record.
The SRO determined that the IEP’s goals relating to S.H.’s spatial and visual needs were both
comprehensive and consistent with the Rebecca School report. The SRO’s determination is
supported by a preponderance of the evidence. The IEP lists both short-term and annual goals
specifically pertaining to S.H.’s spatial and visual needs, ranging from discrete tasks, like
copying a teacher’s design using pattern blocks, to more expansive projects, like making a plan
and mapping out a community outing. Because the SRO’s findings are supported by the record,
and because an SRO’s determination regarding the substantive adequacy of an IEP is entitled to
deference, Grim, 346 F.3d at 382, the SRO’s determination is upheld.
D.
The Assigned Public School Site
Plaintiffs argue that the IHO and SRO erred in declining to consider the appropriateness
of the designated public school site because the evidence the parents sought to present for that
claim was speculative. The SRO properly declined to address the parents’ arguments concerning
the appropriateness of the school site.
Parents may not rely on “[s]peculation that the school district will not adequately adhere
to the IEP” as a basis for unilaterally placing their child in an alternative school. R.E., 694 F.3d
at 195. A “challenge[ ] [to] the DOE’s choice of school, rather than the IEP itself” is appropriate
only in “a later proceeding to show that the child was denied a free and appropriate education
because necessary services included in the IEP were not provided in practice.” F.L. ex rel. F.L.
v. New York City Dep’t of Educ., 553 F. App’x 2, 8 (2d Cir. 2014) (internal quotation marks and
citation omitted).
21
Because the SRO correctly concluded that a challenge to the district’s choice of school is
improper where the student never attended the school, it is unnecessary to reach the merits of the
claim, and the SRO’s ruling that the school placement did not result in a FAPE denial is upheld.
V.
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for summary judgment is DENIED, and
Defendant’s cross-motion for summary judgment is GRANTED.
The Clerk of Court is directed to close the motions at Docket Nos. 13 and 18.
Dated:
December 3, 2014
New York, New York
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