J.S. et al v. The New York City Department of Education et al

Filing 34

OPINION AND ORDER.......For the reasons stated above, none of the IDEA violations alleged by the Parents resulted in the denial of a FAPE to John. Having found that the Department offered John a FAPE for 2013-2014, the Court need not consider the ot her prongs of the IDEA analysis, namely, whether Seton was an appropriate private placement or whether the equities favor the Parents. See M.H., 685 F.3d at 258. For the same reason, the Parents request for remand to a new IHO is denied, and the de cision of the SRO is affirmed. The Departments June 24, 2016 motion for summary judgment is granted, and the Parents May 27, 2016 motion for summary judgment is denied. The Clerk of Court shall enter judgment for the defendant and close the case. (Signed by Judge Denise L. Cote on 2/24/2017) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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J.S. and R.S., individually and on
:
behalf of JOHN S., a minor,
:
:
Plaintiffs,
:
:
-v:
:
THE NEW YORK CITY DEPARTMENT OF
:
EDUCATION,
:
:
Defendant.
:
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15cv355 (DLC)
OPINION AND ORDER

APPEARANCES:
For the plaintiffs:
Lawrence D. Weinberg
162 Williamson Avenue
Bloomfield, NJ 07003
For the defendant:
Justin Killian
Lesley Berson Mbaye
Son K. Le
New York City Law Department
100 Church Street
New York, NY 10007
DENISE COTE, District Judge:
J.S. and R.S. (collectively, the “Parents”) appeal from the
decision of the State Review Officer (“SRO”) denying
reimbursement for tuition under the Individuals with
Disabilities Education Act (“IDEA”) for their son, John S.

The

Parents principally raise one procedural deficiency and three
substantive deficiencies in the individualized education program
(“IEP”) prepared for John by the New York City Department of

Education (the “Department”) for the 2013-2014 school year.

For

the reasons that follow, the decision of the SRO is affirmed,
and the Department’s motion for summary judgment is granted.
Background
The following facts are taken from the administrative
record or are undisputed by the parties.
I.

John’s Background
John is a six-year-old student with autism.

Under the

IDEA, John is entitled to receive a free appropriate public
education (“FAPE”) from the Department.

Alternatively, if the

Department fails to provide a FAPE, the Parents may enroll John
in a private school and obtain reimbursement for the Department,
subject to certain restrictions.

The instant appeal concerns

the IEP for the 2013-2014 school year.

In the previous year,

2012-2013, John attended the Seton Foundation for Learning
(“Seton”).
II.

The Individualized Education Program
On April 26, 2013, a Committee on Special Education (“CSE”)

met and developed the IEP for the 2013-2014 school year.
Present at the meeting were (1) John’s mother, R.S.; (2) the
Department’s representative and school psychologist, Edward
O’Connor; (3) the Department’s special education teacher,
Theresa Biancoviso; (4) a parent representative, Tom Feola; and
(5) John’s classroom teacher from Seton, Jon Paul Pablo.
2

According to the IEP, John was performing at a kindergarten or
first-grade level with developmental delays in speech, motor
skills, and self-regulation.
The IEP recommended placement in a 6:1:1 special education
classroom 1 in a specialized school with the following related
services: adapted physical education, counseling, occupational
therapy, parent counseling and training, physical therapy, and
speech-language therapy.

The Department proposed placing John

at a school on Staten Island identified as P373R @ P40 (“P373”)
for the 2013-2014 school year.

On June 26, 2013, the Parents

enrolled John at Seton and notified the Department that they
were rejecting the 2013-2014 IEP and placement.
III. The IHO Hearing & Decision
On August 26, 2013, the Parents requested a hearing before
an impartial hearing officer (the “IHO”) and sought
reimbursement for the 2013-2014 school year, arguing that the
IEP denied John a FAPE.

On March 6, 2014, an IHO was assigned

to the matter and scheduled a hearing for April 11.

By order

dated March 24, the IHO set a schedule for pre-hearing
submissions and directed the parties to file their direct
testimony by affidavit in advance of the hearing.

If either

A 6:1:1 ratio indicates a classroom of six students, one
teacher, and one paraprofessional. Paraprofessionals are
teaching assistants who provide instructional services to
students under the general supervision of a certified teacher.
1

3

party desired to present live testimony, they were directed to
submit a request to that effect.
In response to the IHO’s March 24 order, counsel for the
Parents requested an adjournment of the hearing and the recusal
of the IHO on the basis that counsel had a surgical procedure
that conflicted with the hearing date.
requests.

The IHO denied both

On March 27, counsel for the Parents renewed the

request, and the IHO again denied it.
At the April 11 hearing, the Parents were represented by an
attorney affiliated with the same firm as their original
counsel.

When the counsel attempted to record the hearing,

which was already being recorded, the IHO ordered the him to
turn off his device.

When he refused to do so, the IHO ended

the hearing and dismissed the case.

Three days later, the IHO

reconsidered her decision, reinstituted the case, and set it for
hearing on April 29.
In emails dated April 18 and 23, the Parents requested that
direct testimony be presented live, rather than by affidavit,
and again requested the IHO’s recusal.

The requests were

denied.
On the morning of the April 29 hearing, the Parents’
counsel again requested an adjournment.

The IHO denied this

request but granted an alternative request to begin the hearing
earlier in the day.

Despite the Parents’ late request for live
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testimony, the IHO permitted R.S. to testify.

In a decision of

May 15, 2014, the IHO rejected the Parents’ challenges to the
IEP and denied their request for tuition reimbursement.
IV.

The State Review Officer Appeal
The Parents appealed the IHO’s decision to an SRO, arguing

that the IHO acted improperly and erred in finding the 2013-2014
IEP adequate.

The SRO affirmed the IHO’s decision.

It held,

inter alia, that the IHO’s conduct was not improper and that the
2013-2014 IEP offered John a FAPE.
V.

Procedural History
The Parents filed their complaint in federal court on

January 16, 2015, appealing the SRO’s decision and seeking
remand for a new hearing before a different IHO.
filed its answer on March 23, 2015. 2

The Department

On May 27, 2016, the

Parents moved for summary judgment on their claims.
the Department cross-moved for summary judgment.
motions were fully submitted as of August 18.

On June 24,

The two

On November 22,

the case was reassigned to this Court.

The parties also litigated whether the New York State Education
Department (the “NYSED”) was a proper defendant. Ultimately,
the NYSED was dismissed from the case.
2

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Discussion
I.

Legal Standard
Although the parties style the instant motion as one for

summary judgment, the “procedure is in substance an appeal from
an administrative determination.”

T.K. v. N.Y.C. Dep’t of

Educ., 810 F.3d 869, 874 n.2 (2d Cir. 2016) (citation omitted).
In reviewing a state administrative proceeding under the IDEA,
the Court must “engage in an independent, but circumscribed,
review, more critical than clear-error review but well short of
complete de novo review.”

Id. at 875 (citation omitted).

In

deciding factual issues, a district court must decide based on
the preponderance of the evidence.

T.P. ex rel. S.P. v.

Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir.
2009) (per curiam); see also 20 U.S.C. § 1415(i)(2)(C)(iii).
Due weight must be given to the state proceedings, with
particular deference afforded where “the state hearing officers’
review has been thorough and careful.”

T.K., 810 F.3d at 875

(citation omitted); see also R.E. v. N.Y.C. Dep’t of Educ., 694
F.3d 167, 189 (2d Cir. 2012).

The Second Circuit has cautioned

that “federal courts lack the specialized knowledge and
experience necessary to resolve persistent and difficult
questions of education policy.”

T.K., 810 F.3d at 875 (citation

omitted).

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II.

The Individuals with Disabilities Education Act
Congress enacted the IDEA “to ensure that all children with

disabilities have available to them a free appropriate public
education that emphasizes special education and related services
designed to meet their unique needs and prepare them for further
education, employment, and independent living.”
§ 1400(d)(1)(A).

20 U.S.C.

Under the IDEA, states have “an affirmative

obligation to provide a basic floor of opportunity for all
children with disabilities,” meaning “an education likely to
produce progress, not regression, and one that affords the
student with an opportunity greater than mere trivial
advancement.”

T.K., 810 F.3d at 875 (citation omitted).

The principal method for states to achieve the mandate of
the IDEA is the IEP, a written statement which by statute must
contain, among other things, the child’s present level of
performance, goals for improvement, and a plan about how to
achieve that improvement.

Id. (citing 20 U.S.C. § 1414(d)).

If

an IEP is substantively deficient, parents may reject the plan
and seek reimbursement from the state for private school
tuition, subject to certain conditions.

Id. (citing 20 U.S.C.

§ 1412(a)(10)(C)(ii)).
Parents may also seek reimbursement where an IEP is
procedurally deficient, but only if the procedural deficiencies
“significantly impede the parents’ participation rights, impede
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the child’s right to a FAPE, or cause a deprivation of
educational benefits.”

Id.

Even when a denial of a FAPE is

found, parents will only be reimbursed for tuition if the
alternative school chosen by the parents “is appropriate to the
child’s needs” and equitable considerations favor reimbursement.
Id.
The burden of establishing the validity of the IEP is on
the Department.

Id.

Thus, in reviewing an IDEA decision, the

court must determine (1) whether the state complied with the
procedures of the act, (2) whether the IEP is reasonably
calculated to enable the child to receive education benefits,
and (3) whether the private schooling obtained by the parents is
appropriate for the child’s needs, taking into consideration the
relevant equities.
245 (2d Cir. 2012).

M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217,
See generally Sch. Comm. of the Town of

Burlington v. Dep’t of Educ., 471 U.S. 359 (1985).
III. Procedural Adequacy of the IEP
The Parents claim that the IEP was impermissibly
predetermined in advance of the CSE meeting.

In particular,

they take issue the fact that the IEP was drafted before the
meeting, as well as the Department’s consistent recommendation
of a 6:1:1 classroom at P373 three or four years in a row.
Neither of these assertions suggests impermissible
predetermination.

Although the IEP was drafted before the
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meeting, the Parents concede that they were provided with that
draft, and the final IEP reflects comments and concerns
expressed by R.S. at the CSE meeting.
253.

See T.P., 554 F.3d at

That the Department’s placement recommendation was

consistent across school years is not objectionable, especially
where the IEP reflects the CSE’s consideration of alternative
placements, as it does here.

Parents are entitled to provide

input in the IEP process, but they do not have the right to veto
decisions with which they disagree.

T.Y. ex rel. T.Y. v. N.Y.C.

Dep’t of Educ., 584 F.3d 412, 420 (2d Cir. 2009).
IV.

Substantive Adequacy of the IEP
A.

Scope of Review

In their petition to the SRO seeking reversal of the IHO’s
decision, the Parents appealed the IHO’s findings (or failure to
make findings) with respect to classroom ratio, applied behavior
analysis (“ABA”), and the ability of P373 to implement the IEP. 3
The Parents also asserted, in general terms, that the IHO had
failed to address their other challenges.
The SRO addressed some of the issues identified with
specificity in the petition but determined that the Parents’

The Parents also identified the IHO’s failure to make a finding
with respect to John’s sensory skills. This challenge was not
raised with this Court until the Parents’ reply brief, however,
and it is therefore waived. Simpson v. City of New York, 793
F.3d 259, 264 (2d Cir. 2015).
3

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failure to advance specific arguments in support of their
conclusory challenge constituted waiver of those issues.

In

reaching this conclusion, the SRO did not err.
New York regulations require parents to “clearly specify
the reasons for challenging the [IHO]’s decision” and to
“identify . . . the failure or refusal to make a finding and
. . . what relief should be granted by the [SRO].”
Codes R. & Regs. tit. 8, § 279.4(a).

N.Y. Comp.

The petition must “set

forth . . . a clear and concise statement of the issues
presented for review and the grounds for reversal or
modification to be advanced, with each issue numbered and set
forth separately.”

Id. § 279.8(c)(2).

“Any issue not

identified in a party’s request for review . . . shall be deemed
abandoned and will not be addressed by [the SRO].”

Id.

§ 279.8(c)(4).
The SRO correctly applied these regulations to the Parents’
general assertion that the IHO had overlooked some of their
challenges to the IEP.

Because the Parents failed to identify

the miscellaneous challenges on appeal to the SRO, they have not
exhausted their administrative remedies with respect to those
claims.
2002).

See Polera v. Bd. of Educ., 288 F.3d 478, 487 (2d Cir.
A court is without jurisdiction to address claims other

than those properly exhausted.

Id. at 483.

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B.

Classroom Ratio

In their appeal from the SRO’s decision, the Parents
address only in passing the SRO’s rejection of their challenge
to the 6:1:1 classroom ratio.

The SRO conducted a detailed

examination of the evidence in the record and concluded that a
6:1:1 ratio was adequate.

Presented with no developed argument

challenging this analysis, the thorough and well-reasoned
opinion of the SRO is affirmed.
C.

Applied Behavior Analysis

The Parents claim that the Department denied John a FAPE by
not including in his IEP a requirement that he receive applied
behavior analysis (“ABA”).

There was no evidence before the

IHO, however, that a provision for ABA was necessary.

In any

event, as the Parents were aware when they rejected the
Department’s proposed placement, P373 used the ABA methodology.
As a result, whether or not ABA was necessary to John’s
education, the Department did not deny him a FAPE in this
regard. 4
D.

P373’s Implementation of the IEP

The Parents argue that P373 would not have been capable of
implementing the 2013-2014 IEP.

In support of this argument,

While the Parents have offered on appeal two affidavits from
specialists regarding the necessity of ABA, they did not present
these to the IHO or SRO.
4

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they have offered no evidence that P373 lacked the ability to
implement the IEP as written.

See M.O. v. N.Y.C. Dep’t of

Educ., 793 F.3d 236, 244-45 (2d Cir. 2015) (per curiam).

For

example, the Parents observe that the IEP required John to
receive adapted physical education but that this service is not
mentioned in the Department’s final notice of recommendation.
The Parents do not, however, present any non-speculative
evidence that P373 was unable to provide adapted physical
education.

See id. at 244 (“[I]t is speculative to conclude

that a school with the capacity to implement a given student’s
IEP will simply fail to adhere to that plan’s mandates
. . . .”).

Accordingly, the Department had no “burden to

produce evidence demonstrating [P373]’s adequacy in response to
these arguments.”
V.

Id. at 245.

Conduct of the IHO
Finally, the Parents challenge the conduct and impartiality

of the IHO and seek remand for a hearing before a different
officer.

The Parents’ complaints against this particular IHO

have already been rejected by the SRO, as well as the NYSED in a
separate disciplinary investigation.

This Court concurs that

none of the Parents’ grounds for challenging the IHO merit
remand.
First, the Parents argue that the IHO’s business dealings
with a Department employee created a conflict of interest that
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jeopardized the IHO’s impartiality.
conflict exists.

No evidence of such a

Although the Department employee in question

was copied on emails related to the Parents’ complaint, as the
SRO concluded, the Parents have pointed to no evidence of that
employee’s substantive involvement in the case nor any
indication that the relationship affected -- or even appeared to
affect -- the IHO’s impartiality.
Second, the Parents take issue with the IHO’s order that
their counsel cease recording the hearing.

As the SRO

explained, the IHO “is charged with the responsibility of
maintaining the order and integrity of the impartial hearing
process.”

Given that the hearing was already being officially

recorded, the IHO’s order was a reasonable exercise of her
authority.

The Parents point to no prejudice suffered as a

result of the order.
Third, the Parents object to the IHO’s order that direct
testimony be taken by affidavits.

As is clear from the IHO’s

pre-hearing order, however, the parties were free to request
that live testimony be taken by timely submitting a list of
witnesses, with justifications for hearing the testimony live.
This approach is specifically contemplated by New York
regulations.

See N.Y. Comp. Codes R. & Regs. tit. 8,

§ 200.5(j)(3)(xii)(f) (“The [IHO] may take direct testimony by
affidavit in lieu of in-hearing testimony, provided that the
13

witness giving such testimony shall be made available for crossexamination.”).

Even though the Parents failed timely to make

their request, the IHO still permitted them to offer live
testimony from R.S.

Thus, the SRO’s conclusion that the IHO’s

order was lawful and resulted in no prejudice to the Parents is
affirmed.
Finally, the Parents challenge the IHO’s denial of their
requests for adjournments of the hearing.

As a result of these

denials, they assert, they were forced to replace their counsel
in the weeks leading up to the hearing.
in accordance with New York regulations.

The IHO’s denials were
See id.

§ 200.5(j)(5)(iii) (requiring, for an adjournment, “a compelling
reason or a specific showing of substantial hardship”).

The

Parents were represented at the hearing by counsel affiliated
with the same law firm.

Accordingly, as the SRO found, the

IHO’s denials were “well within the IHO’s discretion.”
Conclusion
For the reasons stated above, none of the IDEA violations
alleged by the Parents resulted in the denial of a FAPE to John.
Having found that the Department offered John a FAPE for 20132014, the Court need not consider the other prongs of the IDEA
analysis, namely, whether Seton was an appropriate private
placement or whether the equities favor the Parents.
685 F.3d at 258.

See M.H.,

For the same reason, the Parents’ request for
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remand to a new IHO is denied, and the decision of the SRO is
affirmed.

The Department’s June 24, 2016 motion for summary

judgment is granted, and the Parents’ May 27, 2016 motion for
summary judgment is denied.

The Clerk of Court shall enter

judgment for the defendant and close the case.
SO ORDERED.
Dated:

New York, New York
February 24, 2017
________________________________
DENISE COTE
United States District Judge

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