I.B. et al v. New York City Department Of Education,
Filing
25
OPINION AND ORDER re: 17 CROSS MOTION for Summary Judgment, filed by New York City Department Of Education 13 MOTION for Summary Judgment, filed by I.B. The Parents' motion for summary judgment is granted, and the S RO's decision is reversed. The Parents' request for reimbursement for SEIT and related special education expenses from the DOE for the 12-month 2012-2013 year is granted. The DOE's motion for summary judgment dismissing the Complaint i s denied. The Parents' request for attorney's fees and costs is granted. The Parents are directed to file, within 30 days of this Opinion, a motion pursuant to Federal Rule of Civil Procedure 54(d)(2), accompanied by evidence identifying an d documenting the reasonable attorney's fees and costs they have incurred in connection with this action and the administrative proceedings below. Any opposition to the fee request must be filed within 14 days thereafter, and any reply papers mu st be filed within 7 days after the opposition papers are filed. The Clerk of Court is directed to enter judgment in favor of the Parents and close the case. This Opinion and Order resolves docket entry numbers 13 and 17. (As further set forth in this Order.) (Signed by Judge Laura Taylor Swain on 3/17/2016) (spo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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I.B. and Z.B., individually and on behalf of B.B.,
Plaintiffs,
-v-
No.15-CV-01309-LTS
THE NEW YORK CITY DEPARTMENT OF
EDUCATION,
Defendant.
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OPINION AND ORDER
APPEARANCES:
SKYER, CASTRO, FOLEY & GERSTEN
By: Gregory Cangiano
276 5th Avenue
New York, NY 10001
NEW YORK CITY LAW DEPARTMENT
By: William Beecher Soville, Jr.
100 Church Street
New York, NY 10007
Attorneys for Plaintiffs
Attorneys for Defendant
LAURA TAYLOR SWAIN, United States District Judge
Plaintiff B.B. is the minor child of I.B. and Z.B. (the “Parents”), and has been
classified by the Defendant New York Department of Education (“Defendant” or the “DOE”) as
a child with a disability under the Individuals with Disabilities Education Act (“IDEA”), 20
U.S.C. § 1400 et seq., and corresponding New York law. On February 24, 2015, the Parents
filed suit in this Court, seeking review and reversal of a determination by a State Review Officer
that the individualized education program created for B.B. by the DOE for the year 2012 to 2013
provided a free appropriate public education, as required by the IDEA. The Parents seek
reimbursement of B.B.’s expenses for special education and related services for the year 2012 to
2013, during which period the Parents unilaterally placed B.B. in a general education program in
a private school.1
Before the Court now are the parties’ cross-motions for summary judgment.2 The
Court has jurisdiction of the action under 18 U.S.C. §§ 1331 and 1367.
The Court has carefully considered the submissions of both parties, along with the
underlying administrative record. For the following reasons, the Parents’ motion for summary
judgment is granted and the Defendant’s motion for summary judgment is denied.
1
2
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The Parents do not seek reimbursement of tuition for the general education
component of the private school program. (See SRO Decision at 1; Pl. Br. at 5
n.4; DOE Br. at 3-4.)
“Though the parties in an IDEA action may call the procedure ‘a motion for
summary judgment,’ the procedure is in substance an appeal from an
administrative determination, not a summary judgment [motion].” M.H. v. New
York City Dep’t of Educ., 685 F.3d 217, 226 (2d Cir. 2012) (internal quotation
marks and citation omitted, alterations in original).
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A.
BACKGROUND
I.
IDEA Statutory Framework
A state receiving federal funds under the IDEA must provide disabled children
with a free appropriate public education (“FAPE”). Cerra v. Pawling Cent. Sch. Dist., 427 F.3d
186, 192 (2d Cir. 2005) (citing 20 U.S.C. § 1412(a)(i)(A)). 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) (citing
20 U.S.C. § 1414(d)). The IEP is “a written statement that sets out the child’s present
educational performance, establishes annual and short-term objectives for improvements in that
performance, and describes the specially designed instruction and services that will enable the
child to meet those objectives.” Id. (internal quotation marks and citation omitted). The IDEA
requires that an IEP be “reasonably calculated to enable the child to receive educational
benefits.” Id.
Because New York receives federal funds under the IDEA, it must comply with
the requirements of the statute. Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 123 (2d
Cir. 1998). New York has assigned responsibility for developing IEPs to local Committees on
Special Education (“CSEs”). R.E., 694 F.3d at 175 (citations omitted). 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 education teacher, a school board representative, a parent
representative, and others. (Id. (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. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-108 (2d Cir.
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2007). New York state regulations require a school district to conduct a functional behavioral
assessment (“FBA”) for a student who exhibits behavior that impedes learning, and to develop a
behavioral intervention plan (“BIP”) to address that behavior. T.M. ex rel. A.M. v. Cornwall
Cent. Sch. Dist., 752 F.3d 145, 152 (2d Cir. 2014) (citing 8 NYCRR §§ 200.4(b)(1)(v),
200.22(b)).
If a parent believes that his child’s IEP does not comply with the IDEA, the
parent may file an administrative challenge, known as a “due process complaint,” with the
appropriate state agency. See 20 U.S.C. § 1415(b)(6). In such cases, the IDEA mandates that
states provide “impartial due process hearings” before “impartial hearing officers” (“IHOs”). Id.
§1415(f); see also N.Y. Educ. Law § 4404(1). Either party may appeal the IHO’s decision to the
state review officer (“SRO”), who may affirm or modify the IHO’s order. N.Y. Educ. Law §
4404(2). Either party may then bring a civil action in state or federal court to review the SRO’s
decision. 20 U.S.C. § 1415(i)(2)(A). On appeal from an SRO determination, Plaintiffs have the
burden of demonstrating that the SRO erred. See M.H., 685 F.3d at 225 n.3.3 “[B]asing its
decision on the preponderance of the evidence,” the district court “shall grant such relief as [it]
determines is appropriate.” T.M. ex rel. A.M., 752 F.3d at 152 (citing 20 U.S.C. §
1415(i)(2)(C)(iii)).
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As the Second Circuit has noted, the Supreme Court has concluded that the IDEA
placed the burden of challenging an IEP on the party bringing the challenge but
has left unanswered the question of whether states could “override the default rule
and put the burden always on the school district,” as New York has done. See
M.H., 685 F.3d at 225 n.3 (citing Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49,
57-78 (2005)). However, here, as in M.H., the Court need not resolve this issue,
because the SRO concluded that the IEP was proper and “the burden of
demonstrating that the respective Review Officers erred is properly understood to
fall on the plaintiffs.” Id.
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While the review process is pending, parents may unilaterally place their child in
a private school and then seek retroactive tuition reimbursement from the local school district.
20 U.S.C. § 1412(a)(10)(C). Under the three-part Burlington/Carter test,4 the parents will be
entitled to reimbursement if (1) the school district’s proposed placement violated the IDEA, (2)
the parent’s alternative private placement was appropriate, and (3) equitable considerations favor
reimbursement. T.M. ex rel. A.M., 752 F.3d at 152 (citation omitted). Under New York’s
Education Law Section 4404(1)(c), the local school board bears the initial burden of establishing
the validity of its plan at the due process hearing. R.E., 694 F.3d at 184. If the board fails to
carry this burden, the parents bear the burden of demonstrating that their alternative private
placement was appropriate, i.e., that it was “reasonably calculated to enable the child to receive
educational benefits.” S.B. v. New York City Dep’t of Educ., No. 14 CV 0349, 2015 WL
3919116, at *2 (S.D.N.Y. 2015) (citations omitted). Finally, the parents are also required to
show that the equities favor reimbursement, an analysis that focuses on whether the parents
obstructed or were uncooperative in the school district’s efforts to meet its IDEA obligations.
See R.E., 694 F.3d at 184.
Factual Background5
II.
B.B. was born in 2004, and is now about 12 years old. (Ex. 1 at 1.) B.B. began
receiving special education services beginning at 19 months of age. (Tr. 295.) According to his
4
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See Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993) (parents entitled
to reimbursement only if federal court concludes public placement violated IDEA
and private placement was proper; court is to consider all factors in fashioning
equitable relief); Sch. Comm. of Town of Burlington v. Dep’t of Educ., 471 U.S.
349 (1985) (parents may be reimbursed for private special education if court
ultimately determines private placement was proper).
The facts are drawn from and the citations are to the administrative record.
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mother, once play group teachers observed that he would wander off, “tantrum” and easily
become frustrated in a group setting, B.B. started receiving Special Education Itinerant Teacher
(“SEIT”) services, where a SEIT works with a child with special needs in a one-on-one capacity,
under the auspices of the DOE Committee on Preschool Special Education. (See id. 296.) B.B.
initially started with a couple of hours of SEIT services per week. (Id.) The services were later
increased to ten weekly hours, and then in 2008, to thirty weekly hours. (Id.) Around 2008,
B.B. was diagnosed with Pervasive Developmental Disorder - No Origin Specified (“PDDNOS”) and, around 2009, he was diagnosed with Attention Deficit Disorder (“ADD”). (Id. 284.)
He also suffers from involuntary ticks or facial and/or hand movements. (Id. 284, 344.) By the
2011-2012 school year, B.B. was receiving 25 hours of SEIT services per week, which is the
level that he currently receives. (Id. 18, 297.) It appears that an August 2008 IEP calling for this
level of SEIT services and certain related services was the last one on which the DOE and the
Parents agreed. (Id. 19.) A impartial hearing process resulted in an order in July 2010 that
mandated the 25 hours of SEIT services and related services; certain of the related services were
undisputed. (Id. 16.) At B.B.’s current school, Mirrer Yeshiva, in Brooklyn, he receives three
SEIT service components—for Hebrew classes, general education classes and at home. (Id. 115,
213, 215.)
An IEP dated June 17, 2011, classified B.B. as autistic and recommended a 12month first grade program in a specialized DOE school with related services and a student-toteacher-to-paraprofessional ratio of 6:1:1. (Ex. 2 at 2.) It appears that there was no agreement
on the suitability of this IEP, and B.B. spent his first grade year at Mirrer Yeshiva in a 27-student
general education classroom, receiving 25 hours of SEIT services along with the related
occupational, physical and language therapy services for a 12-month school year program,
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apparently based on the August 28, 2008, IEP and the 2010 order. (See Ex. A at 1-2; Ex. 3; Tr.
14, 100-101, 104.)
2012-2013 CSE Meeting and IEP
B.B. was seven years old, and completing the first grade at Mirrer Yeshiva, at the
time of the March 23, 2012, annual IEP review meeting of the CSE, which was convened by the
DOE and developed the disputed 2012-2013 IEP. (Ex. 1 at 1, 16.) The meeting attendees were
Ben Shu (special education teacher and district representative), Chaya Karpensprung (B.B.’s
general education teacher at Mirrer Yeshiva), I.B. (B.B.’s mother), Debra Greif (parent
member), Brocha Epstein (B.B.’s SEIT at Mirrer Yeshiva), Junithe Lanie (a DOE school
psychologist), and Baila Steinman (B.B.’s occupational therapist). The documents reviewed at
the meeting included a March 5, 2012, psycho-educational evaluation report written by Ms.
Lanie (Ex. 2), a progress reports written by speech therapist Yehuda Fommell, dated February
23, 2012 (Ex. J), a progress report written by Ms. Epstein, dated February 28, 2012 (Ex. H), a
progress report written by Baila Steinman, dated February 24, 2012 (Ex. I), a progress report
written by Ms. Karpensprung (Ex. G), and a March 14, 2012, classroom observation report
written by Mr. Shu (Ex. 3). The psycho-educational evaluation report stated that an IEP dated
June 17, 2011, recommended a 12-month special class in a specialized school with related
services, and that previously a staff of ratio of 6:1:1 was recommended and a classification of
autism was given. (Ex. 2 at 2.) The report noted, inter alia, that in 2004, a pediatric neurologist
reported that B.B. demonstrated speech, social and behavioral difficulties associated with some
PDD-NOS features. (Ex. 2 at 5.) The report further noted that in 2008, a prescription note
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written by a doctor indicated that B.B. presented with symptoms of PDD,6 and that B.B.’s
mother indicated that B.B. had been seen by a neurologist in the past, who had “informally
mentioned” that he may be autistic. (Id.) The report noted that B.B.’s mother indicated that
B.B. takes focalin, an ADHD medication. (Id.)
The report also documented the results of a Gilliam Autism Rating Scale (GARS)
evaluation that Ms. Laine conducted, which were “reflective of a student very likely to be
autistic.” (Id.) According to the report, GARS is an instrument that is used to “help identify
children with autism from children with other severe behavioral problems.” (Id.) B.B. received
a score of 19, which corresponds to an autism score of 76; scores between 70 and 84 indicate
that a child “may possibly have Autism.” (Id.) The report’s summary section includes
observations that B.B. “has difficulties with paying attention in class and following instructions.
He made some progress however, he continues to struggle academically. [B.B.] does not keep
pace with instruction. There are some social emotional issues that need to be address [sic] in
school. He is not able to follow directions and complete work within a given amount of time
without adult supervision. He has trouble completing assignments.” (Id. at 5-6.)
The classroom observation report, which was also considered by the CSE, noted
that B.B. related appropriately to the teachers, and was respectful and compliant. (Ex. 3.) It
stated that “[f]rom time to time during their independent work on reading and math worksheets,
Ms. Epstein gave him prompts and directions.” (Id.) The report noted that B.B. readily followed
corrections by his teachers, his attention was “average” and that he did not have interactions with
his classmates. (Id.)
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Ms. Laine had the doctor’s note at the time she prepared the psycho-educational
evaluation report. (Tr. 55.)
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The resulting IEP for 2012-2013 incorporates many of the same conclusions,
describing B.B.’s “levels of performance and individual needs” as follows:
[B.B.] has difficulties with paying attention in the class and following
instructions. He has made some progress however, he continues to struggle
academically. [B.B.] does not keep pace with instruction. There are some social
emotional issues that need to be address [sic] in school. He is not able to follow
directions and complete work within a given period of time without adult
supervision. He has trouble completing his assignments. According to teacher’s
school progress report “With loads of one on one help [B.B.] was finally able to
understand the concept of addition and subtraction. He can add and subtract
using fingers and prompts. He has trouble counting past 20. His reading level is
good. [B.B.] is currently decoding at grade level. His comprehension skills needs
improvement. [sic] At times he demonstrates understanding when he is focused
and prompted. [B.B.] gets frustrated easily. With the help of his SEIT provider
he is working at persevering at task.” [sic] On the Wechsler Intelligence Scale for
Children - fourth Edition (WISC IV) [B.B.] earned a Full Scale Index of 70 which
places him in Borderline range of overall cognitive functioning, respectively, and
is ranked at the 2nd percentile. On the Verbal Comprehension Index he yielded a
Composite score of 81 which places him in the Low Average range and is ranked
at the 10th percentile. The Perceptual Reasoning Index yielded a score of 67
Extremely Low range; 1st percentile. On Working Memory Index [B.B.] yielded
a Composite score of 88 which places him in the Average range; 21st percentile.
The Processing Speed Index yielded a score of 68 which places his in the
Extremely Low range; 2nd percentile. On the reading composite [B.B.] yielded
Standard Scores within the below average range. His overall reading skills are
approximately at a kindergarten-first grade level. The Word Reading subtest
(SS=83) he was able to read words such as in, to, my, they and when. [B.B.] was
unable to read don’t, shop, him, and stone. His phonemic awareness skills are his
strength. His overall math skills are approximately a pre-kindergartenkindergarten grade level. His is able to identify groups of numbers and the
number. He is not able to recognize add nor subtract and identify ordering
numerals. [B.B.] is weak is adding and subtracting objects, completing number
patterns and interpreting graphs.
(Ex. 1 at 1.) The IEP classified B.B. as having a “speech or language impairment” and
recommended him for a special education classroom of no more than twelve students with one
special education teacher and one paraprofessional teaching assistant in a DOE public school
that enrolls both disabled and non-disabled children, a setting also known as 12:1:1 special class
in a community school. (Id. at 1, 9, 12.) The program further recommended related services of
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four one-on-one speech/language therapy sessions per week, three one-on-one occupational
therapy sessions per week, a single one-on-one physical therapy session per week, and a single
one-on-one session and a single group session of counseling per week. (Id. at 9.) The annual
goals set forth in the IEP included “[c]ounseling: Within one year, [B.B.] will follow a
classroom routine with minumal [sic] verbal promtps [sic].” (Id. at 4.) Finally, the program was
recommended to be implemented over a 10-month (September to June) school year. (Ex. 1 at
10.)
IHO Hearing
According to the Parents, they repeatedly requested information as to the specific
school to which B.B. would be assigned but did not receive such information prior to the end of
the first grade school year and therefore were unable to visit and assess the proposed school
while it was in regular operation. (See Tr. 399-401; Ex. F.) On July 9, 2012, the Parents reenrolled B.B. at Mirrer Yeshiva and filed a due process complaint for an impartial hearing before
an IHO. (Ex. A.) On July 10, 2012, the DOE sent the Parents a final notice of recommendation
proposing PS-199 in Brooklyn as the school that would implement B.B.’s program. (Ex. 4.) In
their due process complaint, the Parents principally contended that the DOE had failed to offer a
FAPE to B.B. because he was inappropriately given a classification of speech and language
impairment, rather than autism, and that he continued to require a 12-month school term and 25
hours per week of one-on-one SEIT services in a general education classroom, rather than
placement in a specialized classroom with a 12:1:1 staffing ratio. (Id.)
The IHO conducted the impartial hearing on various dates between August 8,
2012, and March 17, 2013. (IHO Decision at 3-4.) On August 31, 2012, the IHO issued an
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interim order, ordering the DOE to continue funding the prior SEIT and various therapy services
for B.B. during the pendency of the dispute, including: 25 hours weekly of SEIT services, oneon-one occupational therapy twice per month, one-on-one speech and language therapy four
times a month, and physical therapy once a month. (Order on Pendency, Aug. 31, 2012.) The
DOE continues to fund these services pursuant to the pendency order.
At the impartial hearing, the DOE presented two witnesses: Ms. Laine, the school
psychologist who had prepared the psycho-educational evaluation report, and Christina Kushner,
Special Education Teacher for the DOE-designated school, PS-199. Ms. Laine is employed with
the DOE’s Committee on Special Education Region 7. (Tr. 31.) One of her responsibilities in
that position is to administer psycho-educational examinations for a child who may be or is
special needs. (Id. 31-32.) Ms. Laine was questioned regarding her psycho-educational report
on B.B. and the classification change. With respect to the dispute regarding classification, Ms.
Laine testified that she recalled that, at the CSE meeting, B.B.’s mother had stated that she was
not sure if B.B. was autistic. (Id. 39.) When asked whether her psycho-educational evaluation
assessed for autism, Ms. Laine responded that she had administered the GARS, which she
explained was “an instrument that pretty much identifies children with autism or other severe
behavioral programs, but it is not something that you could diagnose a child with.” (See id. 40.)
When asked by DOE counsel whether the data revealed by the GARS was “statistically
significant to classify [B.B.] with autism,” Ms. Laine responded “[n]o, not to my knowledge.”
(Id. 40.) Ms. Laine, however, later admitted that the result of the GARS indicated that B.B. is
very likely to be autistic. (Id. 54 (Q: And doesn’t [the psycho-educational evaluation] indicate
that the results of the GARS was reflective of the student is very likely to be autistic? A: That’s
right.”).)
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Ms. Laine also admitted that she had a record of a prescription for PDD-NOS
while she developed her psycho-educational report. (Id. 55.) Ms. Laine observed, however, that
the prescription was three years old at the time of her evaluation, that she believed young
children make developmental progress over such a period of time, and that her report indicated
that B.B. had “made progress throughout the years.” (Id. 70-71.) Ms. Laine further testified that
her findings of speech and language impairment were supported by her testing results on verbal
comprehension cognitive testing, which were indicative of language processing issues, and low
reading comprehension scores. (Id. 40-42.) As to her assessment of B.B.’s social and emotional
functioning, Ms. Laine testified:
Well, I see [B.B.], when I had evaluated him, he lacked focusing and sustained
attention. He was unable to sustain attention. I had to redirect him. I also
referred to his inability to understand directions, was also a problem along with
poor fine motor skills. So there were many tasks I wasn’t able to complete . . . .
he just has a lot -- he had speech difficulties, demonstrating difficulty in areas of
behavior.
(Id. Tr. 43.) Ms. Laine also testified that B.B. was respectful, amicable, loving and friendly
during her evaluation of him, and that she would not use those words to describe an autistic
child. (Id. 44.)
Ms. Laine was also asked about the provision of one-to-one SEIT services:
Q:
A:
A:
What is your opinion on [B.B.] receiving SEIT services as a child in the
first grade?
Well, in my opinion, what do I believe about a SEIT in the first grade?
[Objection]
...
Very restrictive. He was in a classroom, I believe it was a big classroom.
Socially and emotionally it doesn’t fare [sic] with him because he’s been
isolated. When you’re talking about the least restrictive environment, he’s
extremely restricted from participating in the classroom. And he really
doesn’t - - I don’t think he really needs it.
With respect to the appropriate length of the school year, Ms. Laine
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acknowledged that B.B.’s SEIT, general education teacher and parent had indicated at the CSE
meeting that he required a 12-month school year in order to make progress. (Id. 61.)7 Ms. Laine
testified that one-on-one support for B.B. was not considered at the meeting. (Id. 64.) Although
Ms. Laine testified that she recalled a discussion of “other programs” (id. 69), she acknowledged
that the space on the IEP form for specification of other programs that had been considered by
the CSE had been left blank (id. 59). Ms. Laine testified that she believed the IEP could provide
B.B. with a free appropriate education for the 2012-2013 school year. (Id. 47.)
The DOE’s other witness, Ms. Kushner, Special Education Teacher at PS-199,
testified that B.B. would have attended a 12:1:1 class, and that the classification of the students
in that class would have been learning disability and speech and language impairment, with
functional reading and math levels ranging from kindergarten to Grade 3. (Id. 77, 85.) She
testified that no one in the class into which B.B. would have been placed at PS-199 is classified
with autism. (Id. 87.) She also testified that she reviewed B.B.’s IEP, that B.B.’s IEP is similar
to the IEPs of other children in the 12:1:1 class, and that the teacher would have been able to
meet the goals stated in the IEP. (Id. 80, 84.) Ms. Kushner admitted, however, that she did not
know B.B., and she did not explain the specific means by which the PS-199 12:1:1 setting would
have achieved B.B.’s specific goals. (Id. 87; see generally id. 75-92.)
The Parents presented several witnesses, including B.B.’s general education
teacher, SEIT, occupational therapist, and B.B.’s mother. B.B.’s general education teacher at his
current school Mirrer Yeshiva, Ms. Karpensprung, testified as to B.B.’s existing education
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Q: Isn’t it true that [B.B.]’s SEIT and Parent and teacher indicated that he
required a 12-month program in order to make progress? A: I don’t recall them
stating otherwise.
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conditions and the role his SEIT plays in the classroom. She testified that she believed that it
was appropriate for B.B. to receive SEIT services in her classroom over the 2011-2012 school
year, and that “I thought that [B.B.] did beautifully, could not have done it without her [the
SEIT]. At the beginning of the year before [the SEIT] had started, I could not fathom – I could
not understand how I’m going to get through the year with him. That was before she started. At
the end of the year, he was one of the guys.” (Id. 104; see also id. 133.) Ms. Karpensprung
testified that, although B.B. did not have any wild behavioral outbursts in class, he got frustrated
very easily and had attentional issues. (Id. 121, 123, 133.) She testified that Ms. Epstein, B.B.’s
SEIT in the classroom, worked with B.B. three hours every day, four days a week, for a total of
12 hours per week. (Id. 115.) Ms. Epstein would, for instance, prompt B.B. to handle reading
one line at a time when he got frustrated, and sometimes would take him out of the classroom to
a private setting. (Id. 124.) Ms. Karpensprung testified that she would “be afraid to let him go
without the SEIT” because B.B. would still get frustrated and nervous about certain new
concepts. (See id. 134.) In addition, Ms. Karpensprung testified that the mainstream
environment was “wonderful” for B.B. because, for example, he would watch everyone else
doing a lengthy math worksheet, realize it was the norm and “work[] with it.” (Id. 105.) Ms.
Karpensprung testified that, at B.B.’s IEP meeting, she had stated that he should continue with
the services he had been receiving. (Id. 107.)
Brocha Epstein had been working with B.B. for approximately two years as his
SEIT in the general classroom. (Id. 202.) She has bachelor’s and master’s degrees in Special
Education and is finishing a master’s degree in School Administration. (Id. 144-45.) She is
trained in Applied Behavior Analysis (“ABA”) therapy, and has advanced training in reading
remedies and behavior skills. (Id.) Ms. Epstein testified in detail, inter alia, as to B.B.’s
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educational difficulties, the way in which SEIT services helped support B.B. in those difficulties,
and B.B.’s risk of regression. Ms. Epstein testified that B.B. has trouble in all areas and the
speech and language impairment classification was too “narrow”:
He needs help following the class routines, understanding what’s been taught,
adhering to the routines. He needs help with behavioral needs, with social skills.
He needs help in comprehension. He needs help transitioning. He needs help
with his expressive language skills, his receptive language. He needs redirection
to attend to what’s being taught and – to continue to complete his work.
(Id. 149-50; see also id. 333-43.)
She testified that the receipt of SEIT services was the option that “gives [B.B.] the
support he needs in order to be a student.” (Id. 189.) She testified that B.B. has difficulty
following directions (id. 336) and that, when B.B. gets frustrated, his first instinct is to shut
down (id. 190-91.) As a SEIT, Ms. Epstein uses prompts and positive reinforcement, which has
helped B.B. progress with dealing with his frustration. (See id.) She testified that she redirects
B.B. using verbal cues, token incentives, or tapping on the desk, gradually decreasing the
number of prompts as B.B. progresses, and has seen tremendous progress utilizing this method.
(See id. 154-56.) She testified that at B.B.’s CSE meeting, she had recommended that the SEIT
services for B.B. continue. (Id. 193-94.) According to Ms. Epstein, the IEP’s recommendation
of a classroom with 12 students, one teacher, and one paraprofessional would not be sufficient to
maintain an educational benefit for B.B. because “a teacher’s attention is divided up into so
many bits, it’s highly unlikely that the support that the - - that he or she would be able to give
B.B. the support that he needs.” (Id. 366, 340.) Ms. Epstein further explained that, without oneon-one support, B.B. demonstrates “spinning behaviors” for instance, and involuntary ticks. (Id.
344.)
She testified that she disagreed with the IEP recommendations for the 2012-2013
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school year, and that she had recommended that B.B. continue receiving SEIT services. (Id.
359.) Ms. Epstein further testified that B.B. responds well to a mainstream environment, with
the support of a SEIT, because he is motivated by seeing everyone else working and wants to do
what everyone else is doing. (Id. 168, 192, 335.) She testified that, “once [B.B.’s] peers are
focused on the teacher or the work they’re doing, it’s not a distraction because I find that he
responds well and he’s usually willing to work harder when he’s in the classroom and he’s doing
work like everybody else.” (Id. 168). She also testified that B.B. “answers questions in class.
He plays with the other boys at recess, and they’ve even asked him if, you know, he wants to
play . . . . Because he’s where he is, that’s a big motivator for him.” (Id. 169.) Ms. Epstein
testified that she did not believe a 12:1:1 class would be an appropriate setting for B.B. because
he would be placed in a class with students with different kinds of issues and would not be
motivated to adhere. (See id. 169, 193-94.)
Ms. Epstein also testified to B.B.’s issues with retention. She explained that she
works together with B.B.’s mother, and his other SEITs and service providers to reinforce and
follow through at school and at home what is being taught because he has difficulties retaining
and attending to the work. (Id. 163.) She sends target examples of math problems for his
mother and SEITs to work on at home because he needs the reinforcement. (Id. 185.) She
testified that, in her progress report (Ex. H), she made the recommendation for 12-month service
to prevent regression because she has seen that, when B.B. has a break from school, he
experiences regression. (Tr. 196). She stated that his regression over a week-long break or a
few days would not be that severe but, if the break were over the span of a summer, the
regression would be greater. (Id.) In her written progress report to the CSE, Ms. Epstein had
stated: “[t]welve month services are recommended to prevent regression. [B.B.] can learn with
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help but each achievement is like conquering Everest. It would impede [B.B.’s] progress if he
would have to start from scratch in September.” (Ex. H.)
B.B.’s mother, I.B., also testified as to B.B.’s need for one-on-one support and his
risk of regression. She testified that, in addition to speech and language issues, B.B. has
attention and focusing issues, as well as difficulty with social behavior. (Id. 376-77.) She
testified that she, and all of B.B.’s therapists, disagreed with the classification of speech and
language impairment because it was too narrow given B.B.’s issues. (Id. 392.)
I.B. testified that she believed that B.B.’s goals need to be consistently sustained
across school, home and different environments. (Id. 372.) She stated that B.B. needs to have
structure to his day, very clear directions with clear consequences and that, without structured
engagement, B.B. is not productive and does not do what he is supposed to. (Id. 373-74.)
According to I.B., B.B. needs carryover from school to home in order to succeed, including the
support of a SEIT after school to enable him to do his homework. (Id.) She testified that he has
made tremendous progress since the beginning of the 2012-2013 school year. (Id. 382.) She
characterized his attentional skills as much better than they were, but stated that it is still a
struggle for him to stay on task; when he is engaged properly, and he has the right structure, he is
able to complete tasks. (Id. 291-92.) She testified that, without the structure that a SEIT can
provide, there is a “tremendous possibility” that there will be regression. (See id. 373.)
I.B. also testified that a mainstream classroom is appropriate for B.B. because he
is socially motivated to please based on what everyone else is doing around him, and he needs
typically developing children around him to be able to act appropriately. (Id. 384.) She testified
that she felt that the 12:1:1 special class would not be an environment in which he could succeed
because it would be too restrictive, since he would be in a self-contained class without any
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opportunities to be with other children who are developing typically. (Id. 396.) She testified
that modeling is very important for him, and that he keeps himself in check in a general
education setting with typically developing children. (Id. 304.)
Regarding the length of the school term, I.B. testified that there was significant
discussion at the CSE meeting regarding a 10-month versus 12-month program and that B.B.’s
SEITs and therapists had verbally disagreed with the 10-month program and had provided
examples of the consequences of a lengthy hiatus. (Id. 398.) She testified that the DOE
representatives did not provide a justification for why the 10-month program would be
appropriate, but instead simply said that she should believe in her child and that he did not
necessarily need all of the support. (Id.) She stated that, when B.B. does not have a SEIT over
the weekend, there is regression. (Id. 373.)
Ms. Baila Steinman, B.B.’s occupational therapist, also testified. Ms. Steinman
discussed the propriety of SEIT services and his risk of regression. She testified that B.B.
“needs help staying focused. That’s number one. He definitely needs help with a novel type of
worksheet . . . he needs probably repeated directions with those things.” (Id. 259.) She testified
that the SEIT gave him direction and orientation since B.B. has issues with focusing and tracking
things on a page. (Id. 309.) According to Ms. Steinman, prompting from the SEIT, and looking
at what the rest of the class doing, helps B.B. stay focused. (See id.) She also testified that the
SEIT facilitates improvement in B.B.’s social skills through role play and assisting with
comprehension of games. (Id. 312.) She testified that the after-school component of the SEIT
services allows for drilling and repetition, without which they cannot continue to build the
foundation that B.B. needs. (Id. 314.)
With respect to the appropriate duration of the program, Ms. Steinman testified
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that B.B. “has to have” a 12-month program because:
[M]emory seems to be a big thing with him. So, if I would know over the
summer that he is going to forget all the math he ever learned, because we worked
so hard on it, then I would say we’ll be setting him back a year. Secondly, it’s
hard to work on certain skills, let’s say social skills . . . in a classroom setting . . .
in the summer they are more relaxed and it is easier for them to learn new
skills . . . a child like this can’t be let go for – he can be – he can’t be on his own
for two months without input.
(Id. 276-77.)
IHO Decision
On March 28, 2013, the IHO issued her findings of fact and decision in favor of
the DOE, finding that the recommended program was “reasonably calculated to enable the
student to receive educational benefits.” (IHO Decision at 12.) The IHO, without citing any
specific part of the record, concluded that the change in classification from autism to speech and
language impairment was supported by the record, and that the 12:1:1 special class “would have
provided the personalized instruction and support services that student required to benefit
educationally from that instruction.” (Id. at 10.) The IHO pointed out that the parent and
providers had been given a full opportunity to participate in the meeting and to express their
opinions (id. at 11-12), but she did not address the objections that those individuals had made to
the components of the IEP (see id. at 12.) The IHO also found, without articulating any specific
analysis of the testimony or other record evidence pertaining to B.B., that the IEP was
reasonably calculated to enable B.B. to receive educational benefits. (Id. at 11-12.) The IHO
concluded that:
The record establishes that a validly constituted IEP team considered recent
testing, evaluations and teacher and provider input before making
recommendations for the student. The recommendation for a change in
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classification from autism to speech and language impairment was supported by
the results of the evaluations and the entire record before me. The team
considered the information provided by the student’s parent, teacher and
providers and determined, based on all of the testing, observations, reports and
discussion, that speech and language impairment was the appropriate
classification. They then determined that a 12:1:1 class with related services was
a program reasonably calculated to meet the student’s needs in the least restrictive
environment. I concur.
(Id. at 11-12.)
SRO Decision
The Parents appealed the IHO Decision to the Office of State Review of the New
York State Education Department, arguing that the IEP was both procedurally and substantively
deficient. On October 28, 2014, the SRO issued her decision, finding that the program
recommended for B.B. was appropriate and that the DOE therefore had offered B.B. a FAPE,
and dismissed the Parents’ appeal. (SRO Decision at 14.) With respect to the Parents’
procedural challenge that the March 2012 CSE failed to conduct a FBA of B.B., an objection
that was not addressed by the IHO Decision, the SRO found that the evidence in the hearing
record did not support a finding that the student’s attention needs and behavior impeded his
learning or that of others such that a FBA was required. (SRO Decision at 12.) In support of
that conclusion, the SRO cited, inter alia, the school psychologist’s testimony that B.B. did not
exhibit any overt behaviors that would interfere with his ability to receive an educational benefit
(Tr. 69-70), and other parts of the record which reflected that, although B.B. became frustrated
with new concepts, he was calm and happy when his daily routine was consistent and that
“praise, encouragement, refocusing, redirection, and being given tasks in increments” addressed
B.B.’s problems with attention and frustration. (Id.)
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The SRO also cited record evidence that B.B. had poor verbal skills to
demonstrate that the IHO was correct in finding that the CSE’s decision to change B.B.’s
eligibility classification from autism to speech or language impairment was supported by the
results of the evaluations and the entire hearing record. (Id. at 8.)
With respect to the recommended 10-month program, the SRO noted that the
Parents and the SEIT had testified that, at the March 2012 CSE meeting, B.B.’s service providers
disagreed with the 10-month program and provided “some real examples as to what would
happen if [B.B.] [did not] remain in a 12-month program and how difficult it would be for [B.B]
to start the school year.” (Id. at 13 (citing Tr. 397-98).) The SRO also noted that the Parents
testified that a 12-month school year was recommended by all of the student’s therapists (id.
(citing Tr. 398)) and that B.B.’s occupational therapist testified that B.B. “ha[d] to have a 12
month program.” (Id. (citing Tr. 276.)) However, the SRO pointed out that the SEIT could not
recall whether she had provided her recommendations for a 12-month school year program to the
March 2012 CSE and that the occupational therapist could not recall whether a 12-month
program was discussed at the March 2012 CSE meeting. (Id.) The SRO also observed that,
contrary to the Parents’ assertions, it was only the SEIT’s February 2012 progress report, and not
all of the progress reports, that made a 12-month school year recommendation. (Id.) The SRO
further stated that, although the February 2012 progress report asserted that a 12-month school
year was required in order to “prevent regression” and that the student’s progress would be
“impede[d]” if he had to “start from scratch in September,” the progress report did not provide
any further explanation to support those statements. (Id. (citing Ex. H at 2).) The SRO
concluded that, “[w]ithout additional evidence, the SEIT’s recommendation in the February
2012 progress report is not sufficient to establish that the student required a 12-month school
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year program to prevent substantial regression. Therefore, the hearing record demonstrates that
the March 2012 CSE’s failure to recommend a 12-month school year program did not result in a
failure to offer the student a FAPE for the 2012-13 school year.” (Id. at 13-14.)
On February 24, 2015, the Parents filed a Complaint in this Court against the
DOE, asserting three claims: denial of a FAPE in violation of the IDEA; denial of rights under
Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and denial of rights under New York
State law. Both parties have moved for summary judgment: the Parents seek educational
funding for the SEIT and related services for the 2012-2013 school year and reimbursement of
the attorney’s fees and costs that have incurred from the impartial hearing forward;8 the DOE
seeks denial of the Parents’ motion and dismissal of the Complaint.
B.
DISCUSSION
I.
Standard of Review
The IDEA’s purpose is “to ensure that all children with disabilities have available
to them a free appropriate public education.” T.K. v. N.Y.C. Dep’t of Educ., No. 14 CV 3078,
slip. op. at 10 (2d Cir. Jan. 20, 2016) (citing 20 U.S.C. § 1400(d)(1)(A)). The Second Circuit
recently held that, “[i]n practice, this means that States have an affirmative obligation to provide
a basic floor of opportunity for all children with disabilities, or as we recently described it, an
8
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Although the DOE has paid for the services pursuant to the Order on Pendency,
resolution of the question of the provision of a FAPE and the propriety of the
services that have been continued is necessary, as the interim order requires the
DOE to continue to fund the services until the parties’ dispute relating to the
2012-2013 school year is resolved. (See DOE Br. at 4.)
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22
education likely to produce progress, not regression, and one that affords the student with an
opportunity greater than mere trivial advancement.” Id. (internal quotation marks and citation
omitted). A FAPE “must include 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.” Frank G. v. Bd. of Educ. of Hyde Park., 459 F.3d 356, 363 (2d Cir. 2006)
(internal quotation marks and citations omitted).
It is well established that “the role of the federal courts in reviewing state
educational decisions under the IDEA is circumscribed.” Gagliardo, 489 F.3d at 112 (internal
quotation marks omitted). Courts “must engage in an independent review of the administrative
record and make a determination based on a ‘preponderance of the evidence,’” id. (citation
omitted); but such review “is by no means an invitation to the courts to substitute their own
notions of sound educational policy for those of the school authorities they review,” R.C. ex rel.
M.C. v. Byram Hills Sch. Dist., 906 F. Supp. 2d 256, 267 (S.D.N.Y. 2012) (citation omitted).
Rather, a court must give “due weight” to the administrative proceedings. Gagliardo, 489 F.3d
at 113 (internal quotation marks omitted). Administrative determinations based on
“substantially greater familiarity with the evidence and the witnesses,” or regarding substantive
adequacy and “an appropriate educational methodology” should be afforded more weight than
determinations regarding whether the IEP was developed according to the proper procedure. See
M.H., 685 F.3d at 244. Similarly, “[d]ecisions involving a dispute over an appropriate
educational methodology should be afforded more deference than determinations concerning
whether there have been objective indications of progress.” Id. (citations omitted). Of course,
however, if the conclusions of the hearing and review officers are unsupported by the record as a
whole, are incorrect as a matter of law, or fail to take into account important information, the
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Court need not afford deference. See Mr. X v. New York State Educ. Dep’t, 975 F. Supp. 546,
558 (S.D.N.Y. 1997); see also R.E., 649 F.3d at 189; M.H., 685 F.3d at 244. In other words, the
deference owed to an SRO’s decision depends on the quality of that opinion. R.E., 694 F.3d at
189. Reviewing courts must look to factors that “normally determine whether any particular
judgment is persuasive, for example, whether the decision being reviewed is well-reasoned, and
whether it was based on substantially greater familiarity with the evidence and the witnesses
than the reviewing court.” M.H., 685 F.3d at 244. “Determinations grounded in thorough and
logical reasoning should be provided more deference than decisions that are not.” Id. The
reviewing Court may consider evidence developed during the administrative proceedings, along
with any additional evidence presented by the parties. 20 U.S.C. § 1415(i)(2)(C); J.W. v. New
York City Dep’t of Educ., 95 F. Supp. 3d 592, 600 (S.D.N.Y. 2015) (“[U]nder the IDEA, a
district court must conduct an independent review of the administrative records, along with
additional evidence presented by the parties, and must determine by a preponderance of the
evidence whether the IDEA’s provisions have been met.”) (internal quotation marks and
citations omitted).
As explained above, parents challenging the adequacy of an IEP may seek
retroactive tuition reimbursement from the local school district pending resolution of the dispute.
20 U.S.C. § 1412(a)(10)(C). Under the three-part Burlington/Carter test, the parents will be
entitled to reimbursement if (1) the school district’s proposed placement violated the IDEA, (2)
the parent’s alternative private placement was appropriate, and (3) equitable considerations favor
reimbursement. T.M. ex rel. A.M., 752 F.3d at 152 (citation omitted). Subject to limited
exceptions, the same considerations and criteria that apply in determining whether a school
district’s placement is appropriate should be considered in determining the appropriateness of
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the parents’ placement. See Frank G., 459 F.3d at 364.9
The “IDEA established a two-part inquiry for courts reviewing [state]
administrative determinations” regarding the provision of a FAPE. See R.C., 906 F. Supp. 2d at
267-68 (citation omitted). First, the court examines whether “the State complied with the
procedures set forth in the Act,” and second, the court determines whether the IEP “developed
through the Act’s procedures [is] reasonably calculated to enable the child to receive educational
benefits.” Id. A finding of substantive inadequacy automatically entitles the parents to
reimbursement. R.E., 694 F.3d at 190. A procedural error will only render an IEP legally
inadequate if the alleged inadequacies “(i) impeded the child’s right to a [FAPE]; (ii)
significantly impeded the parents’ opportunity to participate in the decision making process
regarding the provision of a [FAPE] to the parents’ child; or (iii) caused a deprivation of
benefits.” R.C., 906 F. Supp. 2d at 268 (quoting 20 U.S.C. § 1415(f)(3)(E)(ii)).
II.
Adequacy of the IEP
a.
Procedural Issues
The Parents argue that the failure of the CSE to conduct an FBA, and the failure
to develop a BIP, were procedural errors that deprived B.B. of a FAPE.
New York state regulations require a school district to conduct an FBA for a
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The Parents argue that their reimbursement request should not be subjected to
scrutiny pursuant to the Burlington/Carter formula because they are not seeking
funding for the general education component of the Yeshiva program but, rather,
seek only funding for special education support services. While the issues to be a
considered in connection with their reimbursement request are arguably narrower
than those arising from a request to fund the entirety of a private-setting academic
program, the question of whether the particular components sought to be funded
are appropriate are fundamentally the same, and the Court finds no reason to
depart from the Burlington/Carter analytical construct.
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student who exhibits behavior that impedes learning, and to develop a BIP to address that
behavior. T.M. ex rel. A.M., 752 F.3d at 169 (citing 8 NYCRR §§ 200.4(b)(1)(v), 200.22(b));
see also C.F. ex rel. R.F. v. New York City Dep’t of Educ., 746 F.3d 68, 80 (2d Cir. 2014)
(“even under New York law, assessments are only required ‘as necessary to ascertain the
physical, mental, behavioral and emotional factors which contribute to the suspected
disabilities”) (quoting 8 NYCRR § 200.4(b)(1)(v)) (emphasis in original)). The Second Circuit
has held that, where such analysis is required, “[t]he failure to conduct an adequate FBA is a
serious procedural violation because it may prevent the CSE from obtaining necessary
information about the student’s behaviors, leading to their being addressed in the IEP
inadequately or not at all.” R.E., 694 F.3d at 190. “[T]he failure to conduct an FBA will not
always rise to a denial of a FAPE,” but it does call for particular care in the determination of
whether the IEP adequately addresses the student’s problem behaviors. Id.
Here, it is undisputed that an FBA was not conducted, but the Court defers to the
SRO’s reasoned conclusion that an FBA was not required. The SRO cited record evidence
demonstrating that B.B. did not exhibit any overt behaviors that interfered with his ability to
receive educational benefit, and that he did not disrupt the learning of others. (See SRO
Decision at 12.) Cf. T.M. ex rel. A.M., 752 F.3d at 169 (SRO’s finding that an FBA was not
required under the circumstances was “precisely the type of issue upon which the IDEA requires
deference to the expertise of administrative officers.”) The record indicates that, while B.B.
certainly experienced frustration in class, he did not express that frustration by acting out to
disturb students around him. (See, e.g., Tr. 121-23.) There is no evidence, other than the
inherent impediments presented by his learning disabilities, to suggest that B.B. displayed any
conduct that would interfere with his ability to receive an educational benefit (when he was
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supported in the appropriate way); the record demonstrates, instead, that he is motivated by the
positive behavior of others. (See, e.g., Ex. 1; Ex. 3; Tr. 44, 123, 384.) Although the evidence
indicated that the SEIT employed Applied Behavioral Analysis instructional methods in
addressing B.B.’s attentional and other difficulties in the classroom setting, the SRO’s informed
assessment that B.B. did not display the type of behaviors that warranted an FBA is entitled to
deference on this record. See, e.g., T.M. ex rel. A.M., 752 F.3d at 169 (finding that
characteristics of “distractibility, inattentiveness and difficult remaining on-task, non-contextual
vocalizations, finger twirling [did not] impede [the student’s] learning or that of others.”); R.E.,
694 F.3d at 183, 195 (finding that a history of biting her hands and hitting herself was “not
severe enough to warrant an FBA.”)
b.
Substantive Issues
The Parents contend that B.B. was denied a FAPE for the 2012-2013 school year
because his classification was improperly changed from autism to speech and language
impairment, and because his IEP did not recommend one-on-one SEIT service in a general
education classroom or a 12-month school year program.
(i)
Classification of Disability
As an initial matter, the Court notes that the issue of whether B.B. was incorrectly
classified as having a speech and language impairment, while relevant, is not dispositive of the
inquiry as to whether a FAPE was provided. See K.H. v. N.Y.C. Dep’t of Educ., No. 12 CV
1680, 2014 U.S. Dist LEXIS 108393, at *65 (E.D.N.Y. Aug. 5, 2014) (“The IDEA mandates
services tailored to a child’s individual needs, not dictated by a particular diagnosis or
classification.”). To the extent, however, that the Parents are arguing that B.B.’s incorrect
classification denied him a FAPE because he would not receive the benefit of classroom
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resources that are mandated for children classified as having autism, the Court will consider the
objection as one directed at the overall suitability of the combination of setting and services
called for by the IEP. (See Pl. Br. at 8; 8 NYCRR § 200.13). For instance, New York
regulations require that any child classified as autistic, if he or she is placed in a program with
students with other disabilities or in a regular classroom, should be provided transitional support
services by a special education teacher with a background in teaching students with autism in
order to assure the student’s special education needs are being met. 8 NYCRR § 200.13(a).
The Court finds that the Parents have not met their burden of demonstrating, by a
preponderance of the evidence, that the SRO’s conclusion that B.B.’s classification as having a
speech or language impairment, rather than as autistic, did not deny him a FAPE was in error.
The Parents object to B.B.’s speech or language impairment classification in and of itself as
erroneous, but do not specifically object to the denial of the underlying services that would be
provided as a result of an autism classification. And while the Parents do present evidence that
the absence of certain other services—such as a one-on-one support or a 12-month school
year—deny B.B. a FAPE, they do not argue or present evidence supporting the conclusion that
the denial of the mandated services for a child with an autism classification denied B.B. a FAPE.
There is no evidence presented that the Parents’ own private placement of B.B. in a general
education classroom, which the Parents argue has resulted in progress for B.B., is tailored for
children for autism or fulfills the requirements laid out by 8 NYCRR § 200.13. While the record
reveals that B.B.’s classification of speech and language impairment may not have captured the
full extent of B.B.’s challenges and individual needs, the Parents have not demonstrated by a
preponderance of the evidence that B.B., who has never been formally diagnosed as autistic, was
denied a FAPE because he was not classified as being autistic and was not offered the services
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New York mandates for autistic children.
The conclusion that a FAPE was not denied because of B.B.’s classification does
not moot the separate question of whether the IEP was tailored to meet B.B.’s unique needs and
was reasonably calculated to enable him to receive an education likely to produce progress, and
not regression. See Frank G., 459 F.3d at 363; see also F.O. v. New York City Dep’t of Educ.,
976 F. Supp. 2d 499, 520 (S.D.N.Y. 2013) (the relevant question is not the “label” of “a
classroom for children with autism,” but rather, whether the IEP proposed an education
appropriate for the individual student). The analysis of whether the IEP was properly tailored to
B.B.’s individualized needs is informed by the entirety of his documented learning difficulties,
behaviors, and responses to educational modalities, not simply by his technical classification.
The Court thus will proceed to examine whether the SRO erred in finding that the IEP’s
recommendation of a 12:1:1 program and a 10-month school year provided B.B. a FAPE.
(ii)
Whether the IEP Offered a FAPE
(A)
12:1:1 Classroom Program
The IEP prescribed a 12:1:1 classroom setting for B.B., where only two
professionals are responsible for support and instruction of 12 special needs students, without the
one-on-one supportive services that B.B. had been receiving consistently since he was a toddler.
Both the SRO and IHO decisions are deficient in substantive analysis as to why such one-on-one
services were not required for B.B., and thus those decisions are entitled to little deference. The
SRO and IHO decisions rely on conclusory assertions that the overall IEP recommendation was
sufficient and neither addresses B.B.’s individual educational needs. There is no explanation of
why one-on-one SEIT services would not be required to enable B.B. to achieve an educational
benefit when he has a documented inability to pay attention and attend to tasks without a set
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structure and individualized adult guidance, and the record demonstrates that B.B. has made
progress in an one-on-one support setting. Rather, the SRO’s decision merely proffers a
conclusory recitation that “[t]he evidence in the hearing record indicates that the individual
student’s needs, as described in the March 2012 IEP, could be met in a 12:1+1 special class
placement at a community school,” along with the related services. (SRO Decision at 9.) Such
conclusory statements are not entitled to deference. See F.O., 976 F. Supp. 2d at 514
(conclusions, without citation to evidence, that student’s needs were addressed by IEP, “utterly
fails to meet the Second Circuit’s standard, and does not require deference”); see also M.H., 685
F.3d at 249 (“the SRO . . . did no more than state summarily that the goals ‘comprehensively
addressed the student’s needs in the areas.’ . . . The SRO failed to point to contrary evidence he
deemed more compelling . . . the SRO’s conclusory statement did not evince thorough and wellreasoned analysis that would require deference.”)
The record evidence is overwhelming that B.B. required intensive support in
focusing on tasks, understanding instructions and following through with completing tasks and
retention of material. The IEP and the psycho-educational reports relied upon by the DOE in
formulating its recommendation acknowledged B.B.’s problems with attention and inability to
focus on his own, though the IEP does not explain how it proposes to address that problem. (See
Ex. 1 at 1; Ex. 2 at 4-5; Ex. 3.) The IEP acknowledged that “[h]e is not able to follow directions
and complete work within a given period of time without adult supervision.” (Ex. 1 at 1.) The
psycho-educational report drafted by Ms. Laine, the DOE school psychologist, specifically
recognized that “[h]e is not able to follow directions and complete work within a given amount
of time without adult supervision. He has trouble completing assignments.” (Ex. 2 at 5-6.) The
DOE’s classroom observation report noted that B.B. readily followed corrections by his teacher
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and that “[f]rom time to time during their independent work on reading and math worksheets,
Ms. Epstein [B.B.’s SEIT] gave him prompts and direction.” (Ex. 3.)
The testimony of B.B.’s instructors and mother provides powerful evidence of the
need for one-on-one classroom support. B.B.’s general education teacher testified that she could
not imagine having B.B. in the classroom without the support of a SEIT but that, under the
SEIT’s guidance, he progressed significantly and that he could not have done it without the
SEIT. (See Tr. 104.) B.B.’s mother testified that he is unproductive without structured guidance
and regresses without SEIT support. (Id. 291-92, 373-74.) Indeed, all of the individuals and
teaching professionals who had worked with B.B. in an educational setting who testified
affirmed the necessity of one-on-one services for B.B. Ms. Epstein, B.B.’s SEIT in the general
classroom, testified in detail regarding the support given by SEITs when B.B. shuts down from
getting frustrated, including positive reinforcement, prompts, and reinforcement at home. (Id.
190-91.) She testified to her belief that a classroom with 12 special education students and two
teaching professionals would be “highly unlikely” to give B.B. the support he needs to achieve
an educational benefit because the teachers’ attentions would be too divided. (See id. 366.)
This belief is supported by the evidence that all 12 students in such a setting would suffer from
their own learning disabilities requiring attention, and the fact that, as acknowledged by the
special education teacher at PS-199, none of the other students would have been classified as
having autism (Tr. 87), a condition of which B.B. displays some symptoms. There is simply no
evidence in the IEP itself or the record that the 12:1:1 setting would have met B.B.’s need for
one-on-one support, given the varied capabilities and needs of students in a setting with 12
special needs students and only two professionals.
The only record support for the notion that B.B. does not require one-on-one
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support is in the form of testimony by Ms. Laine, the school psychologist, that (1) one-on-one
support would constitute too restrictive an environment because B.B. would be isolated from the
rest of the class (Tr. 68) and that (2) she d not think B.B. “really needs it” (id.) Indeed, Ms.
Laine admitted that she did not ever consider one-on-one services as an option for B.B. in
formulating the IEP. (Id. 64.) Although Ms. Laine did not elaborate on either of these assertions
in her testimony, the DOE argues here that the records supports her conclusions because there
was testimony that the SEIT sat next to B.B. and guided and helped him in class, and B.B.’s
occupational therapist testified that B.B. does not interact well with his peers. (DOE Br. 20.)
The DOE urges the Court to conclude that “the record shows that the CSE team had a proper
basis for omitting the related services of one-on-one instruction by a SEIT from the
recommended program.” (Id.)
The DOE’s attempt to refute the overwhelming record in this case is unavailing,
as there is no evidence that the CSE meeting specifically considered the question of need for
one-on-one services at all. Furthermore, there is no evidence that Ms. Laine’s opinion regarding
the supposedly restrictive impact of one-on-one instruction had any basis in evaluation of B.B.’s
needs or actual experience. Ms. Laine interviewed B.B. outside of a classroom setting and did
not perform any classroom observations herself. Although Benjamin Shu, who performed a oneday classroom observation of B.B., reported that B.B. did not interact directly with other
classmates, he did not attribute the behavior to the presence of the SEIT. Shu also reported that
B.B. engaged in play activities like other children during recesses, and that he had “good eye
contact with his teachers and peers.” (Ex 3.) The classroom observation report thus provides no
support for Ms. Laine’s opinion regarding the social impact of one-on-one classroom support.
By contrast, B.B.’s general educational teacher, his SEIT in his regular classroom, and his
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occupational therapist all testified that the support of a SEIT, who by the nature of individualized
service delivery must be next to B.B. in the classroom, is necessary to enable B.B. to receive an
educational benefit. (See, e.g., Tr. 104, 107, 154-56, 189, 193-94, 259, 309, 314, 340, 359, 366.)
Rather than isolating him, B.B.’s general education teacher testified, the SEIT helped B.B. with
his social skills and, by the end of the school year, B.B. was “one of the guys.” (Tr. 104; see
also Tr. 133, 312.)
The DOE’s argument that B.B.’s. progress in a general classroom setting proves
that he does not require support beyond the 12:1:1 setting has no foundation in the record. As
demonstrated by the record, B.B. received 25 hours of one-on-one SEIT services per week at the
Yeshiva and in a general education setting with normally developing peer models, and the
testimony makes clear that his progress was in large part attributable to the work of his SEITs.
(B)
10-Month Program Year
New York state regulations require the consideration of twelve-month educational
programs as needed “to prevent substantial regression.” 8 NYCRR § 200.6(k)(1). “Substantial
regression” is defined as “a student’s inability to maintain developmental levels due to a loss of
skill or knowledge during the months of July and August of such severity as to require an
inordinate period of review at the beginning of the school year to reestablish and maintain IEP
goals and objectives mastered at the end of the previous school year.” 8 NYCRR § 200.1(aaa).
With respect to the recommended 10-month program, the SRO noted that B.B.’s mother and the
SEIT testified that, at the March 2012 CSE meeting, B.B.’s service providers disagreed with the
10-month program and provided “some real examples as to what would happen if [B.B.] [did
not] remain in a 12-month program and how difficult it would be for [B.B] to start the school
year.” (Id. at 13 (citing Tr. 397-98).) The SRO also noted that the Parents testified that a 12IB.MSJ
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month school year was recommended by all of the student’s therapists and that B.B.’s
occupational therapist had testified that B.B. “ha[d] to have a 12 month program.” (Id. (citing
Tr. 276.)) The SRO further noted that the SEIT’s February 2012 progress report recommended a
12-month school year in order to “prevent regression” and to avoid impeding the student’s
progress if he “had to start from scratch in September.” (Id. (citing Ex. H at 2).)
The SRO stated, however, that the February 2012 progress report was the only
progress report that recommended 12-month services and that the report did not provide any
further explanation to support the 12-month recommendation. (Id. (citing Ex. H at 2).) Noting
that B.B.’s occupational therapist could not recall whether a 12-month school program was
discussed at the March 2012 CSE meeting, the SRO concluded that “[w]ithout additional
evidence, the SEIT’s recommendation in the February 2012 progress report is not sufficient to
establish that the student required a 12-month school year program to prevent substantial
regression. Therefore, the hearing record demonstrates that the March 2012 CSE’s failure to
recommend a 12-month school year program did not result in a failure to offer the student a
FAPE for the 2012-13 school year.” (Id. 13-14.)
The SRO’s narrow focus on her perception of the paucity of the record
established at the CSE meeting is unwarranted, as the question of whether a FAPE has been
provided is determined on the administrative records as a whole. 20 U.S.C. § 1415(i)(2)(C);
J.W., 95 F. Supp. 3d at 600. There is substantial evidence in the record, some of which was
acknowledged by the SRO, demonstrating, by a preponderance of the evidence, that B.B. would
suffer substantial regression if he did not receive programming for a 12-month school year. The
SRO’s decision that a 10-month program is sufficient, which ignored the evidence presented at
the hearing before the IHO, was in error and is not entitled to deference. Even if it were true that
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the February 2012 progress report lacked sufficient evidence to demonstrate the need, the entire
record contains detailed testimony and specific examples, including testimony from the SEIT
who wrote the progress report, explaining why the need for a 12-month program exists.
B.B.’s SEIT, Ms. Epstein, and his occupational therapist, Ms. Steinman, both
attested to B.B’s troubles with memory and retention of information, and the need for a
integrated and repeated approach. (See, e.g., Ex. H; Tr. 163, 185, 196, 276-77.) For instance,
Ms. Epstein testified that B.B. regresses, though not severely, over a week long break or even a
few days, but that the regression would be greater if it were over an entire summer. (See Tr.
196.) In her report, Ms. Epstein puts the point even more finely, stating “[t]welve month
services are recommended to prevent regression. [B.B.] can learn with help but each
achievement is like conquering Everest. It would impede [B.B.]’s progress if he would have to
start from scratch in September.” (Ex. H at 2.) Ms. Steinman testified that memory is a big
issue with B.B. and if he is unsupported over a summer, “we’ll be setting him back a year.” (See
Tr. 276-77.) B.B.’s mother testified that she sees regression in B.B. even over the weekends
when he does not get SEIT support and reinforcement of the concepts he learned in school. (Id.
373.) In contrast to the evidence demonstrating the necessity of a 12-month program, the Court
notes that there is no affirmative evidence in the record demonstrating the appropriateness of a
10-month program or indicating that B.B. would not substantially regress. See Antignano v.
Wantagh Union Free Sch. Dist., 2010 WL 55908, at *11 (E.D.N.Y. Jan. 4, 2010) (Services for
the summer months must be provided when they are a necessary element of a FAPE for the
student). It is highly significant that all of B.B.’s service providers, including the individuals
who worked the most closely with him—his general education teacher, SEIT, occupational
therapist, and mother—testified that he has trouble with retention, shows regression even over a
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break of a few days, and that a 12-month school year program was necessary for him to obtain
an educational benefit. (See, e.g., Tr. 196, 276-77, 373.)
The DOE points to Ms. Laine’s unelaborated assertion at the IHO hearing that
there are no circumstances where a child who has made progress in a general education
classroom (i.e. a 10-month classroom) would be recommended for a 12-month school year.
(DOE Br. at 19-20 (citing Tr. 69).) This absolutist position is shockingly suggestive of failure to
consider the needs of the individual child in formulating the IEP. Furthermore, the record is
clear that during the time period of B.B.’s reported progress, he had one-on-one SEIT support for
25 hours per week and over a 12-month school year. (Ex. A at 1-2; Ex. 2; Tr. 16, 18, 397.) The
fact that a student made progress during a 10-month school year with supportive services
obviously provides no indication as to whether that same student would regress over a summer
month without support, much less any proper basis for ruling out the continued provision of
extended services.
(C)
B.B. Was Denied a FAPE
In sum, the Court finds that the Parents have proven, by a preponderance of the
evidence, that the SRO’s conclusion that a 10-month school year and a 12:1:1 classroom were
sufficient to provide a FAPE was erroneous, and that the Parents have sustained their burden of
showing that the SRO erred in finding that the 2012-2013 IEP did not deprive B.B. of a FAPE.10
10
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The Parents also contend that B.B. requires a general education setting because he
is motivated by modeling the behavior of typically developing children. The
Parents have not met their burden of demonstrating that the IEP’s failure to
provide for a general education setting resulted in a deprivation of a FAPE
because the fact that B.B. may receive motivation from emulating the students
around him does not indicate that B.B. would be unable to receive an educational
benefit outside of such a setting. See Grim. v. Rhinebeck Central Sch. Dist., 346
F.3d 377, 397 (2d Cir. 2003) (IEP not required to “furnish[] . . . every special
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III.
The Propriety of B.B.’s Alternative Educational Program and the Balance of
Equities
Having found that the 10-month school year and lack of one-on-one support
services deprived B.B. of a FAPE, the Court will now consider whether the parental decision to
maintain B.B. at Mirrer Yeshiva with SEIT and related services was appropriate, and the balance
of equities to determine whether the Parents are entitled to reimbursement of B.B.’s educational
fees. As explained above, under the Burlington/Carter test, parents seeking retroactive tuition
reimbursement from the local school district bear the burden of demonstrating that their
alternative private placement was appropriate, i.e., that it was “reasonably calculated to enable
the child to receive educational benefits.” S.B., 2015 WL 3919116, at *2 (citations omitted).
The parents are also required to show that the equities favor reimbursement. See id. The
Court’s inquiry in this regard focuses on whether the parents obstructed or were uncooperative in
the school district’s efforts to meet its IDEA obligations. See id.
The DOE does not appear to dispute, in connection with this motion practice, that
the placement of B.B. at Mirrer Yeshiva for 2012-2013, with 25 hours of SEIT and related
services as required by the Order of Pendency, was reasonably calculated to enable receipt of
educational benefits. (See DOE Br., Reply.) The record, in any case, demonstrates amply that
B.B.’s alternative educational program, which included SEIT and related services for a 12-month
school year, was designed to address his individual needs and reasonably calculated to confer an
service necessary to maximize each handicapped child’s potential. Rather, the
IDEA requires that the IEPs provide a ‘basic floor of opportunity’ . . . .”)
(citations omitted).
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educational benefit for the 2012-2013 school year.11 Based on the evidence presented by the
Parents, as well as the July 2010 impartial hearing determination approving the requested
services (Tr. 16-18), the Court finds that the Parents’ alternative placement was appropriate.
A parent’s claim may be denied upon a finding of a failure to cooperate with the
CSE in the development of an IEP, or if the parent’s conduct precluded the CSE’s ability to
develop an appropriate IEP. See R.E., 694 F.3d at 184. In the absence of evidence
demonstrating obstructive conduct on the part of parents, equitable considerations militate in
favor of an award of relief to parents who have been denied their rights under the IDEA. See
C.F. ex rel. R.F. v. Dep’t of Educ., 746 F.3d 68 (2d Cir. 2014). Here, there is no evidence that
the Parents obstructed the DOE’s proceedings, and the DOE has pointed to no inequitable
conduct on the part of the Parents. The Court finds that, under these circumstances, the balance
of equities weighs in favor of the Parents, and that reimbursement of the SEIT and related
services expenses is justified.12
11
12
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The DOE suggests that, because B.B. was in a general education classroom, he
was only receiving a 10-month long school year under the Parent’s alternative
placement. (See DOE Reply at 7.) However, it is undisputed that B.B. was
receiving 12-month services in connection with his education at Mirrer Yeshiva,
(Ex. 2), and had been receiving 12-month special education and related services
for several years. (Tr. 397.) In their initial request for impartial hearing, the
Parents sought to maintain B.B.’s then-existing program for the 2012-2013 school
year (running from July 9, 2012 to June 30, 2013), consisting of 25 hours of SEIT
along with other services, which he receives in conjunction with a mainstream
classroom. (Ex. A at 1-2.) The Parents are not seeking reimbursement as to the
general education portion of B.B.’s schooling. (Id. at n.1.)
In the Parents’ original request for an impartial hearing, dated July 9, 2012 (Ex.
A), the Parents also sought reimbursement for behavioral/educational
consultations through the NYU Child Study Center (id. at 2.) It does not appear
that the Parents are seeking reimbursement for such consultations in the instant
motion practice and the Parents have not presented evidence demonstrating the
nature of such consultations or their relevance to B.B.’s education. Thus, to the
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III.
Attorney’s Fees and Costs
The Parents also seek a declaration that they are the “substantially prevailing
parties,” and leave to submit a fee application for recovery of attorney’s fees and other
recoverable costs incurred in the administrative proceedings and the present action. (Compl.
14.) The IDEA permits a court to award reasonable attorney’s fees and costs to a prevailing
party in any action or proceeding brought under the statute, including administrative
proceedings. See A.R. ex rel. R.V. v. New York City Dep’t of Educ., 407 F.3d 65, 72, 75 (2d
Cir. 2005). Although the Parents did not prevail on every point they argued, they succeeded in
establishing that B.B. was denied a FAPE. The Court finds that the Parents are the substantially
prevailing parties and awards them reasonable attorney’s fees and costs as provided for under the
IDEA. See B.W. ex rel. K.S. v. New York City Dep’t of Educ., 716 F. Supp. 2d 336, 348
(S.D.N.Y. 2010) (“A plaintiff may be considered a prevailing party even though the relief
ultimately obtained is not identical to the relief demanded in the complaint, provided the relief
obtained is of the same general type.” (internal quotation marks and citation omitted)).
CONCLUSION
The Parents’ motion for summary judgment is granted, and the SRO’s decision is
reversed. The Parents’ request for reimbursement for SEIT and related special education
expenses from the DOE for the 12-month 2012-2013 year is granted. The DOE’s motion for
summary judgment dismissing the Complaint is denied.
The Parents’ request for attorney’s fees and costs is granted. The Parents are
extent the Parents are seeking reimbursement for the NYU Child Study Center
consultations, that request is denied as lacking justification in the record.
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directed to file, within 30 days of this Opinion, a motion pursuant to Federal Rule of Civil
Procedure 54(d)(2), accompanied by evidence identifying and documenting the reasonable
attorney’s fees and costs they have incurred in connection with this action and the administrative
proceedings below. Any opposition to the fee request must be filed within 14 days thereafter,
and any reply papers must be filed within 7 days after the opposition papers are filed.
The Clerk of Court is directed to enter judgment in favor of the Parents and close
the case.
This Opinion and Order resolves docket entry numbers 13 and 17.
SO ORDERED.
Dated: New York, New York
March 17, 2016
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge
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