S v. New York City Department Of Education,

Filing 31

OPINION & ORDER re: 22 MOTION for Summary Judgment . filed by New York City Department Of Education, 20 FIRST MOTION for Summary Judgment on behalf of Plaintiff. filed by A S, G S. For the reasons stated above, the Paren ts' challenges to the IEP and Placement fail and the Court defers to the SRO's conclusion that the DOE offered K.S. a FAPE for the 2012-2013 school year. It is therefore unnecessary to reach the second and third prongs of the Burlington/ Carter test. The DOE's motion for summary judgment is thus granted, and the Parents' motion is denied. The Clerk of Court is respectfully requested to enter judgment in favor of Defendant and close the case. (As further set forth in this Order.) (Signed by Judge Ronnie Abrams on 9/19/2016) (cf)

USDC-SDNY
DOCUMENT
ELECTRO NI CALLY FILED
DOC#:
DATE FILED: 9/19/2016

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

G.S. and A.S., individually and on behalf of
K.S.,
Plaintiffs,

No. 15-CV-5187 (RA)

v.

OPINION & ORDER

NEW YORK CITY DEPARTMENT OF
EDUCATION,
Defendant.

RONNIE ABRAMS, United States District Judge:
Plaintiffs G.S. and A.S., (the "Parents") individually and on behalf of their minor child
K.S. (the "Student"), bring this action against Defendant the New York City Department of
Education (the "DOE") under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C.
§ 1400 et seq. After concluding that the DOE's proposed education plan and school placement

would not provide their daughter, a child with autism, with a free appropriate public education
("F APE"), the Parents placed her in the Rebecca School, a private school for children with
disabilities, for the 2012-2013 academic year. On July 2, 2012, the Parents filed a due process
complaint seeking tuition reimbursement.

On March 6, 2013, an Impartial Hearing Officer

("IHO") issued a decision granting the Parents' request for reimbursement. On March 5, 2015, a
State Review Officer ("SRO") reversed the IHO's decision. The Parents filed this action on July
2, 2015. Both parties now move for summary judgment. For the following reasons, the DOE's
motion for summary judgment is granted, and the Parents' motion is denied.

LEGAL STANDARD
"The IDEA requires 'a state receiving federal funds under the IDEA to provide disabled
children with a FAPE.'" L.O. v. N Y.C. Dep 't ofEduc., 822 F.3d 95, 102 (2d Cir. 2016) (alterations
omitted) (quotingR.E. v. NYC. Dep'tofEduc., 694F.3d 167, 174-75 (2dCir. 2012)). "In order
to ensure that disabled children receive a free appropriate public education, school districts must
create individual education programs ('IEP') for such children." CF. ex rel. R.F. v. NY. C. Dep 't
of Educ., 746 F.3d 68, 72 (2d Cir. 2014). An 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." R.E., 694 F.3d at 175 (quoting D.D. ex rel. VD. v. NY. C. Ed.
of Educ., 465 F.3d 503, 507-08 (2d Cir. 2006)).

In New York, Committees on Special Education ("CSEs") convened by the local school
district are responsible for developing IEPs. N.Y. Educ. Law§ 4402(1)(b)(l). "In developing a
particular child's IEP, a CSE is required to consider four factors: (1) academic achievement and
learning characteristics, (2) social development, (3) physical development, and (4) managerial
behavior and needs." Gagliardo v. Arlington Central Sch. Dist., 489 F.3d 105, 107-08 (2d Cir.
2007) (citing N.Y. Comp. Codes R. & Regs. tit. 8 § 200.l(ww)(3)(i) (hereinafter "NYCRR")).
The CSE must also "ensure that the parents of each child with a disability are members of any
t,rroup that makes decisions on the educational placement of their child." 20 U.S.C. § 1414(e); see
also 34 C.F.R. § 300.501(c)(l).
"If a state fails in its obligation to provide a free appropriate public education to a

handicapped child, the parents may enroll the child in a private school and seek retroactive
reimbursement for the cost of the private school from the state." Frank G. v. Ed. of Educ. ofHyde

2

Park, 459 F.3d 356, 363 (2d Cir. 2006). "The Supreme Court has established the three-pronged
Burlington/Carter Test to determine eligibility for reimbursement, which looks to (1) whether the

school district's proposed plan will provide the child with a free appropriate public education; (2)
whether the parents' private placement is appropriate to the child's needs; and (3) a consideration
of the equities." CF., 746 F.3d at 73. "Under New York's Education Law§ 4404(l)(c), the local
school board bears the initial burden of establishing the validity of its plan at a due process
hearing." MO. v. NYC. Dep 't ofEduc., 793 F.3d 236, 243 (2d Cir. 2015)(quotingR.E., 694 F.3d
at 184). "If the board fails to carry [its burden of establishing the validity of an IEP], the parents
bear the burden of establishing the appropriateness of their private placement and that the equities
favor them." Id.
If a disabled student's parents believe that an IEP does not comply with the IDEA, they

may file a due process complaint with the appropriate state agency. 20 U.S.C. § 1415(b)(6).
Parents may then challenge their child's IEP in an "impartial due process hearing," 20 U.S.C. §
1415(±), before an IHO appointed by the local board of education. See N.Y. Educ. Law§ 4404(1).
Either the DOE or the student's parents may subsequently challenge the IHO's decision to the
Office of State Review where it will be reviewed by an SRO. See id. § 4404(2); see also 20 U.S.C.
§ 1415(g). Finally, the SRO's decision may be challenged in state or federal court. 20 U.S.C. §
1415(i)(2)(A).

BACKGROUND
I.

Factual Background
A. The May 2012 CSE and IEP

On May 24, 2012, the local school district in which the Parents live (the "District")
convened a CSE to develop an IEP for K.S., a child with autism who was then nine years old and

3

had been attending the Rebecca School every year since she was five. See Jan. 23 Tr. 507. The
CSE consisted of (i) Dr. Craig Czarnecki, a school psychologist and the District representative;
(ii) the Parents; (iii) Ms. Dakin, a special education teacher; (iv) Ms. Gufarotti, K.S.'s then-current
teacher at the Rebecca School; (v) Mr. Noble, the Student's Rebecca School social worker; and
(vi) a parent representative from the community. See May IEP at 16.
To create K.S.'s IEP, the CSE reviewed K.S.'s Rebecca School progress report from
December 2011, DOE Ex. 5 (the "Progress Report"), her psychoeducational evaluation conducted
on December 28, 2011, DOE Ex. 4 (the "Psychoeducational Evaluation"), and Dr. Czarnecki's
January 30, 2012 classroom observation, DOE Ex. 3 (the "Classroom Observation"). See Nov. 8
Tr. 129, 138. 1 As reflected in the meeting minutes taken by Dr. Czarnecki, see DOE Ex. 9 (the
"CSE Minutes"), the CSE spent "a large amount of time" going through the Rebecca School
Progress Report and reviewed its goals "line by line" with the Student's Rebecca School teacher,
Nov. 18 Tr. 138-14; Jan. 23 Tr. 562. They "reviewed the goals that [K.S.] was working on in
school at that time, and had a discussion about what goals would be appropriate for her to continue
to work on ... in the future." Id. at 152-53.
Based on these discussions, the CSE developed an IEP for the 2012-2013 school year. See
DOE Ex. 6 (hereinafter the "May IEP" or "IEP"). The CSE first determined, and the IEP reflected,
that K.S. was "has very limited skills in academics as well as daily living and socialization[,] ...
has very short attention span with hyperactivity and constant echolalia and perseveration[,] ... has
very limited self-awareness and ability to interact with others[,] ... [and] is currently functioning
below the kindergarten level in all areas except reading decoding." May IEP at 1; Nov. 8 Tr. 18385. It thus recommended a classroom with six students, one teacher, and one aide, known as a

1
Citations to the IHO hearing transcript are identified by the date of the testimony (July 16, September 20,
November 8, November 19, January 14, or January 23) and page number thereof.

4

6: 1: 1 class, for a twelve month school year, see Nov. 8 Tr. 15 5-57, and a one to one (or 1: 1) crisis
management paraprofessional assigned solely to K.S. because, according to the IEP, K.S. "likes to
climb" and "is not aware of safety issues," May IEP at 2. The IEP also recommended the following
related services: (1) speech and language therapy for thirty minutes individually four times per
week, and thirty minutes in a group one time per week; (2) physical therapy ("PT") for thirty
minutes individually two times per week; (3) occupational therapy ("OT") for thirty minutes
individually four times per week and thirty minutes in a group one time per week; and (4)
counseling services for thirty minutes individually one time per week. See May IEP at 9-1 O; see

also Nov. 8 Tr. 157-58. Although the IEP did not call for music therapy-a related service in
which K.S. was enrolled at the Rebecca School-it directed that music be integrated "throughout
the school day," and noted that K.S. "really enjoys sound," that "[m]usic engages [her] across a
variety of environments," and that music "helps to regulate [her] and to express herself." May IEP
at 1.

B. The Placement and the Due Process Complaint
On June 7, 2012, the DOE offered K.S. a placement for the 2012-2013 school year at P.S.
75 in Queens, New York ("the Placement School" or "School"). See DOE Ex. 10. On June 15,
2012, the Parents visited the Placement School with K.S.'s then-current Rebecca School teacher.

See Jan 23 Tr. 525. There, they met a Placement School guidance counselor, Mr. Rose, and
received a tour during which they saw several classrooms, the related services room containing
sensory equipment, and various other school facilities. See Jan 23 Tr. 525-26; see also Pls.' Mem.
at 5.
K.S. 's parent, A.S., would later testify that Mr. Rose stated that although the Placement
School would "try to" provide the services called for in the IEP outside of the classroom-as the

5

IEP requires-the school "like[ s] to have the children assigned to classrooms as much as possible"
in light of space constraints. Jan. 23 Tr. 532. A.S. further testified that she learned that, when
students would leave the classroom for related services, the instructors would "just pick a room,
whatever is available." Id. at 531. A.S. also relayed that she observed no sensory equipment in
the classrooms and only limited sensory equipment in the related services room. See id. at 52930.
Following their visit, the Parents determined that the Placement School was not appropriate
for K.S. and they filed a due process complaint against the DOE on July 2, 2012 requesting an
impartial hearing and seeking "[t]uition reimbursement for unilateral placement at the Rebecca
School for the 2012-2013 school year." IHO Ex. A. 2

C. The Administrative Hearing and Decision
Starting July 16, 2012, and continuing for seven non-consecutive days ending January 23,
2013, IHO Israel Wahrman held an impartial hearing on the Parents' claim for reimbursement.

See IHO Op. at 1, 4. He heard testimony from (i) A.S., K.S.'s parent; (ii) Dr. Czarnecki; (iii) Tina
McCout, the Director of the Rebecca School; (iv) Kenji Takeda, the Rebecca School music
therapist working with K.S.; (v) Leslie Grubler, a speech therapist hired by the Parents to work
with K.S.; (vi) Amanda Friedman, an education consultant who runs a program attended by K.S.;
and (vii) Natalie Brandefine, K.S.'s Rebecca School teacher at the time of the hearing. See id. at
1-2. A.S. and Dr. Czarnecki were the only witnesses who had attended the CSE.
On March 6, 2013, the IHO released his decision. In an eight page written opinion, the
IHO stated that while "there do not appear to have been any procedural inadequacies that would

2
After filing the due process complaint, the Parents visited the school again, but did not alter their view about
its appropriateness for K.S. See Jan 23 Tr. 540-41.

6

rise to the level of denial of FAPE," the IEP was substantively inadequate, and the proposed
Placement School was inappropriate. Id. at 9. He reasoned that
there are serious questions raised by the parents with regard to
whether an IEP with goals that appear to be lifted from Rebecca
School goals, and an IEP that appears somewhat out of date and to
make significant changes [sic], such as substituting counseling for
music therapy for a student whose communication appears to be
primarily through music, is in fact an appropriate IEP. Further, it is
uncontested that the IEP did not provide counseling and training for
the parents of this child with autism. And the parents ... raised
serious questions with regard to whether the public school at which
KS was to be placed was in fact capable of providing an appropriate
education following the IEP.

Id. at 9-10. He also found the Rebecca School would "meet[] the unique education needs of KS,"
that the Parents "cooperated with the school district," and that therefore "the parents here should
be reimbursed for their costs in funding KS' s attendance at the Rebecca School" of $97, 700. Id.
at 10-11.
D. The State Review Officer's Decision

On April I 0, 2013, the District appealed the IHO's decision to the Office of State Review
and, on March 5, 2015, SRO Carol H. Hauge released a thirty-four page opinion that overturned
the IHO and found that K.S. was not denied a FAPE. She concluded that the IEP was procedurally
and substantively adequate, and the Parents did not raise a non-speculative challenge to the DOE's
choice of Placement School. See SRO Op. at 33-34.
In so doing, the SRO considered the Parents' arguments and explained why each alleged
shortcoming did not amount to a denial of FAPE-either individually or when combined.
Specifically, she found: (i) that the CSE possessed sufficient information to create the IEP, see
SRO Op. at 9-15; (ii) that, while the IEP's present level of performance section did not conform
to state regulations, its goals section "contained sufficient information to provide the student with

7

educational benefits," id. at 15-19; (iii) that there was nothing improper about basing the IEP's
annual and short term goals on the Progress Report and that inclusion of methodologically specific
"jargon" in the goals did not necessitate that the placement school implement the IEP using any
particular teaching methodology, id. at 20-23; (iv) that the failure to timely perform mandatory
behavior evaluations did not deny the child a FAPE, id. at 23-27; (v) that the recommended 6: 1: 1
class size and 1: 1 paraprofessional were appropriate for K.S., see id. at 27-29; (vi) that the failure
to provide for parental counseling did not deny K.S. a FAPE, see id. at 29-30; (vii) that the CSE
appropriately declined to recommend a teaching methodology because "the hearing record does
not contain sufficient evidence upon which to conclude that the student could only make progress"
with any one methodology, id. at 31; and (viii) that the Parents' challenges to the Placement School
were speculative, see id. at 31-33.
II.

Procedural History
On July 2, 2105, the Parents filed suit in this Court alleging that the SRO erred in reversing

the decision of the IHO. The parties made cross motions for summary judgment based on the
administrative record thereafter.
STANDARD OF REVIEW

"Summary judgment in [the IDEA] context involves more than looking into disputed issues
of fact; rather, it a 'pragmatic procedural mechanism' for reviewing administrative decisions."
L.O. 822 F.3d at 108 (quoting R.E., 694 F.3d at 184). "In considering an IDEA claim, a district

court 'must engage in an independent review of the administrative record and make a
determination based on the preponderance of the evidence.'" C.L. v. Scarsdale Union Free Sch.
Dist., 744 F.3d 826, 837-38 (2d Cir. 2014) (quoting Gagliardo, 489 F.3d at 112). However, "[t]he
role of the federal courts in reviewing state educational decisions under the IDEA is

8

circumscribed." Gagliardo, 489 F.3d at 112 (internal quotation marks and citation omitted).
"[T]he Supreme Court has cautioned that such review 'is by no means an invitation of the courts
to substitute their own notions of sound educational policy for those of the school authority which
they review."' Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005) (quoting Bd.
of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 206

(1982)). "This review requires a more critical appraisal of the agency determination than clearerror review but falls well short of complete de novo review." L.O., 822 F.3d at 108 (internal
quotation marks omitted) (quoting MW ex rel. S. W v. NY.C Dep't of Educ., 725 F.3d 131, 138
(2d Cir. 2013)).
The district court "must give due weight to the administrative proceedings, mindful that
the judiciary generally lacks the specialized knowledge and experience necessary to resolve
persistent and difficult questions of educational policy." MO., 793 F.3d at 243 (quoting A.C ex
rel. MC v. Bd. of Educ., 553 F.3d 165, 171 (2d Cir. 2009)).

"The deference owed depends on

both the quality of the opinion and the court's institutional competence." CF., 746 F.3d at 77
(citing MH v. N Y.C Dep 't of Educ., 685 F.3d 217, 244 (2d Cir. 2012)). "[D]eterminations
regarding the substantive adequacy of an IEP should be afforded more weight than determinations
concerning whether the IEP was developed according to the proper procedures." Id. at 77 n.7
(quoting MH, 685 F.3d at 244). "Where the IHO and SRO disagree, [the court should] defer to
the reasoned conclusions of the SRO as the final state administrative determination. However,
where the SRO's determinations are insufficiently reasoned to merit deference, the courts should
defer to the IHO's analysis." Id. at 77 (quoting MH, 685 F.3d at 246, 252) (internal citations,
quotations, and alterations omitted); see also R.E., 694 F.3d at 189.

9

DISCUSSION

The Parents argue that, in light of procedural and substantive errors in the IEP together
with an inappropriate placement, this Court should reverse the SRO and find, under the
Burlington/Carter test, that the DOE failed to provide K.S. with a FAPE, that the Rebecca School
is an appropriate placement, and that the equities favor the Parents. The DOE counters that the
Court should defer to the SRO's opinion, and find that the IEP provided K.S. with a FAPE.
"In determining whether an IEP complies with the IDEA, courts make a two-part inquiry,
that is, first, procedural, and second, substantive." MW, 725 F.3d at 139 (quoting R.E., 694 F.3d
at 189-90). For procedural violations, courts "examine[] the procedural adequacy of [an] IEP
asking 'whether the state has complied with the procedures set forth in the IDEA."' L. 0., 822 F .3d
at 109 (quoting TM ex rel. A.M v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 160 (2d Cir. 2014))
(alteration in original). "Under this framework, procedural violations will entitle parents to relief
only if they impeded the child's right to a FAPE, significantly impeded the parents' opportunity
to participate in the decisionmaking process regarding the provision of a FAPE to the parents'
child, or caused a deprivation of educational benefits." Id. (internal citations and alterations
omitted). "That is, parents must articulate how a procedural violation resulted in [an] IEP's
substantive inadequacy or affected the decision-making process." Id. (quoting MW, 725 F.3d at
139). "[A] school district fulfills its substantive obligation under [the] IDEA if it provides an IEP
that is likely to produce progress, not regression, and if [it] affords the student with an opportunity
greater than mere trivial advancement." TP. ex rel. SP. v. Mamaroneck Union Free Sch. Dist.,
554 F.3d 247, 254 (2d Cir. 2009) (quotations omitted); see also M.O., 793 F.3d at 239. In other
words, school districts must provide students with a program that provides a "basic floor of
opportunity." TK. v. NYC Dep't of Educ., 810 F.3d 869, 875 (2d Cir. 2016).

10

As explained below, the SRO's determinations on the Parents' procedural and substantive
challenges to the IEP and DOE's placement are well-reasoned and supported by the record. The
Court thus finds that, under the first Burlington/Carter prong, the DOE offered K.S. a FAPE. It
therefore need not reach whether the Rebecca School was an appropriate alternative, nor whether
the equities favor either party.
I.

Procedural Challenges
The Court will first address the Parents' procedural challenges. They assert that K.S. was

denied a FAPE because (i) the CSE considered insufficient evaluative information; (ii) the IEP's
present level of performance section was inadequate; (iii) the CSE failed to timely consider K.S.' s
Functional Behavior Assessment ("FBA") and Behavior Intervention Plan ("BIP"); and (iv) the
IEP did not provide for parental training. 3 After examining these procedural challenges, the SRO
and IHO both concluded that to the extent that procedural deficiencies occurred, they did not deny
K.S. a FAPE. See IHO Op. at 9; SRO Op. at 33. The Court agrees.

A. Insufficient Evaluative Information
In conducting an evaluation under IDEA, the CSE is required to "review existing
evaluation data on the child, including ... evaluations and information provided by the parents of
the child; . . . current classroom-based, local, or State assessments, and classroom-based
observations; and ... observations by teachers and related services providers." 20 U.S.C. §
1414( c)(1 ). The CSE is further obliged to "identify what additional data, if any, are needed to
determine ... the present levels of academic achievement and related developmental needs of the

3

The Parents also assert in conclusory fashion that K.S. was denied a FAPE because the IEP's annual goals
were "unquestionably not measurable," Pls.' Mem. at 17. The Parents do not, however, contest the specificity and
measurability of the short-term goals. The Second Circuit rejected a similar challenge in D.A.B. v. New York City
Department of Education, 630 F. App'x 73 (2d Cir. 2015), noting that "although plaintiffs complain that the annual
goals fail to identify how and when the annual goals will be met, it is clear that progress towards the annual goals
reasonably would have been measured by the extent to which [a student] had achieved the short-term goals. This is
consistent with the requirement for three progress reports during the year on each annual goal." Id. at 77.

11

child ... [and] whether any additions or modifications to the special education and related services
are needed to enable the child to meet the measurable annual goals set out in the individualized
education program of the child." Id.
There is considerable evidence in the record supporting the SRO's conclusion that the CSE
complied with these statutory requirements. In creating K.S.'s IEP, the CSE considered the
Psychoeducational Evaluation, the Progress Report, and the Classroom Observation. See SRO Op.
at 10. The SRO further observed that "[i]n addition to the foregoing, [Dr. Czarnecki] testified that
the CSE also considered information provided to the CSE by the student's then-current teacher at
the Rebecca School ... and [a] Rebecca School social worker because they presented 'current and
accurate descriptors of [K.S.'s] performance."' Id. The Second Circuit has held that a CSE's
review of similar evaluative information was sufficient. In R.B. v. New York City Department of
Education, 589 F. App'x 572 (2d Cir. 2014), for example, the court "defer[ red] to the SRO, which
found that the documents the IEP team reviewed-including [the most recent] evaluation of [the
student] from the Rebecca School, [the student's prior] IEP, and a ... classroom observation of
[the student] conducted by the DOE-constituted sufficient evaluative data with which to
formulate [the IEP]." Id. at 575. Here, the SRO similarly determined that a Rebecca School
Progress Report and Classroom Observation when considered in conjunction with the
Psychoeducational Evaluation (which was not available in R.B.) constituted "sufficient evaluative
information upon which to develop the student's 2012-13 IEP." SRO Op. at 15. The Court thus
defers to the SRO's well-reasoned conclusion.
The Parents nonetheless argue that, for a number of reasons, the information before the
CSE was insufficient.

First, the Parents assert that the Psychoeducational Evaluation was

inadequate because it "failed to pinpoint K.S.'s academic functioning to a range ofless than three

12

years." Pls.' Mem. at 11. That document indicates that K.S. was operating at a pre-kindergarten
level in most areas, but above the second grade level in "Letter-Word Recognition."
Psychoeducational Evaluation at 4. The Parents do not dispute that K.S. is more advanced in letterword recognition, but claim that the mere failure to identify a single grade level for K.S.-as
opposed different grade levels for different areas of academic performance-taints the evaluation
itself. Without additional information explaining how the evaluator's determination constitutes
error, the Court concludes that the Psychoeducational Evaluation was sufficiently specific.
Second, they assert that the IEP's "lack[ of] any specificity in describing K.S.'s sensory
needs [was] presumably a result of the lack of an evaluation to assess and determine these needs."
Pls.' Mem. At 11. This supposition is belied by the record. The Progress Report described K.S. 's
"mixed sensory system" at length. Progress Report at 11. It reflects, in a section on her progress
in OT, that K.S. "is hyper-responsive in the integration of visual, auditory, and tactile input, and
also becomes dysregulated evidenced by crying and retreating to the comer of the room if her
environment is too loud. She is especially dysregulated by her peers crying ... is hypo-responsive
in the integration of vestibular and proprioceptive input, and seeks intense rotary input and likes
to jump on the trampoline." Id.

"Since September," it reports, "[K.S.] demonstrates better

tolerance for multisensory input, and with this growth has come enhanced emotional regulation."

Id. The Court thus finds the CSE had access to sufficient information to evaluate and assess K.S.'s
sensory needs.
Finally, the Parents assert that "Czarnecki was unaware of when the last OT evaluation was
conducted." Pls.' Mem. at 11. The Parents do not, however, argue that the CSE did not have
before it recent information on K.S.'s progress in OT, nor could they. As the SRO found, "given
the amount of information about the student's related services needs in the December 2011

13

Rebecca School [P]rogress [R]eport-and in particular, speech-language therapy and OT-even
if the May 2012 CSE's failure to conduct updated evaluations of the student in these two areas
constituted a procedural violation, the evidence in the hearing record did not provide any basis
upon which to conclude that this procedural violation resulted in a failure to offer the student a
FAPE for the 2012-13 school year." SRO Op. at 14. The Court defers to the SRO's conclusion,
as the record reflects that the CSE reviewed detailed descriptions of K.S.'s OT progress in the
Progress Report.
B. Inadequate Present Performance Section of IEP

The Parents next argue that inadequacies in the IEP's "Present Level of Performance and
Individual Needs" section ("PLP") amounted to denial of a FAPE. They assert that the SRO agreed
"that the present levels of performance provide very limited descriptions of the student's [activities
of daily living (' ADL')] skills, intellectual functioning, and expected rate of progress, and the
present levels of performance did not establish a 'baseline' for the annual goals in the IEP" as
required by New York state guidance. SRO Op. at 18-19. Even accepting, however, as the SRO
did, that the inadequacies in the IEP's PLP constituted a procedural violation, the Court concurs
with the SRO that the violation did not deny K.S. access to a FAPE because it neither (1) altered
the development of the IEP; nor (2) would affect its future implementation.
First, it did not alter the development of the IEP because, while the CSE may not have
adequately memorialized its findings, it nonetheless carefully considered K.S.'s present level of
academic performance when developing the IEP. The SRO found "evidence of what appeared to
be a thorough discussion of the student's needs at the May 2012 CSE." SRO Op. at 18. For
example, Dr. Czarnecki testified that the CSE conferred with Ms. Gothrati, K.S. 's then-current
Rebecca School teacher, about "whether or not she felt that at the time [the Progress Report] was

14

still an accurate reflection of [K.S.]'s functioning, and she had reported to [the CSE] that yes, she
did feel that it was an accurate reflection." Aug. 8 Tr. 138-39. The CSE also "review[ed] the
specific goals that were written in the [Progress R]eport and talk[ ed] about asking the
teacher[ s] ... their estimation of whether or not they felt that the goal was appropriate, if [K. S.]
was still working on the goal, if she had met it, ... [or] if the feeling was that she would meet it in
the near future." Aug. 8 Tr. 140-41. The CSE Minutes further reflect that the CSE discussed
K.S. 's academic strengths and weaknesses, causes of her dysregulation, challenges in
communications with others, and lack of sense of safety. CSE Minutes at 1-3. Based on this
evidence, the Court will defer to the SRO's determination that the CSE adequately and accurately
identified and considered K.S.'s present level of performance, even if it did not properly
memorialize its findings in accordance with state guidance.
The Parents do not appear to contest that the CSE was able to accurately determine K.S. 's
level of performance; instead they argue only that K.S. was denied FAPE because "none of these
discussions were transposed to the IEP" and "it is the IEP that is the centerpiece of the IDEA's
education delivery system." Pls.' Mem. at 13 (internal citation and quotation marks omitted). The
IEP did, however, accurately note that K.S. "has very limited skills in academics as well as daily
living and socialization[,] . . . has very short attention span with hyperactivity and constant
echolalia and perseveration[,] ... has very limited self-awareness and ability to interact with
others[,] ... [and] is currently functioning below the kindergarten level in all areas except reading
decoding." May IEP at 1. And, to the extent that some of K.S.'s present levels of performance
were not memorialized in the IEP, this Court cannot find that such an omission denied K.S. a
FAPE in light of the fulsome discussion of her capacities during the CSE. To do so would "exalt
form over substance." MH v. NYC. Dep't ofEduc., No. 10-CV-1042 (RJH), 2011WL609880,

15

at *11 (S.D.N.Y. Feb. 16, 2011) ("[I]t would exalt form over substance to hold that the IEP was
inappropriate simply because a recommendation, omitted from the IEP because of a clerical
error-but which appeared in the CSE meeting minutes, and was reflected in the conduct of the
parties-failed to appear within the four comers of the IEP." (internal citation and quotation marks
omitted)).
The Parents also argue that the procedural inadequacies of the PLP in the IEP denied K.S.
a FAPE because her teachers would "have an inaccurate understanding of her baseline
functioning" due to the inadequacies of the PLP. See Pls.' Reply Mem. at 3. The SRO rejected
this argument, finding that "the annual goals and short-term objectives include more specific
information about the student's present levels of performance and sufficiently describe the
student's baseline skills in order to guide instruction." SRO Op. at 19.
Whether or not K. S.' s present level of performance is discemable from the goals, the Court
agrees that the specificity of the goals ensures that the PLP procedural violation did not deny K.S.
a FAPE. In this regard, P.G. v. New York City Department of Education, 959 F. Supp. 2d 499
(S.D.N.Y. 2013) is instructive. In P.G., the court considered a similar contention that an IEP "was
inadequate because it did not accurately describe [the child's] then-present levels of performance
and needs." Id. at 511. That court rejected the argument, reasoning that
the IEP, though not specifically identifying certain of J.G.'s issues,
detailed a program that was designed to address precisely those
issues. This Court agrees with the analysis of the SRO, and defers
to the SRO's educational expertise on this matter. In short, the
[c]ourt sees no legal reason why the IEP's failure to specifically state
J.G.'s "anxiety" or his ability to "self-monitor attention, and follow
multi-step directions" renders the IEP substantively unreasonable in
light of the measures outlined in the IEP that the SRO held were
specifically designed to address those issues.

16

Id. at 512. Here, as noted by the SRO, the IEP contained not only academic goals, but also

"included annual goals that targeted the student's ADL skills, including feeding skills, safety
awareness[,] ... quality of movement, and efficient organization of self for effective participation
in school and home activities." SRO Op. at 19. As also described by the SRO, these goals were
detailed and measurable, see id., requiring, for example, that K.S. will "follow novel 1-step
directives across multiple communicative environments in 8 out of 10 opportunities," IEP at 7. It
is this specificity and measurabilitythat would have allowed teachers to facilitate the child's efforts
to meet these goals, even if the PLP was lacking. This Court thus finds that, like in P. G., because
the CSE accurateIy determined K. S.' s present level of performance and developed specific goals
to enable K.S. to advance beyond those present levels, she was not denied a FAPE.
To the extent the Parents assert that the PLP is not merely inadequate but also misleading
to a teacher, see Pls.' Mem. at 14-15, the argument is not supported by the record. The SRO took
issue only with the detail in the PLP but not its accuracy. See SRO Op. at 19. It found, and this
Court agrees, that "the information in the present levels of performance and individual needs
section of the May 2012 IEP is accurate." SRO Op. at 19. The Parents' argument that the PLP is
inaccurate because it states that K.S. 's "current function is below the kindergarten level in all areas
except reading decoding" in one section of the IEP, but in a later section lists "kindergarten" as
K. S.' s level for math and reading skills does not convince the Court otherwise. Compare IEP at 1
with IEP at 14.

The Court agrees with the SRO that this would not prevent the proper

implementation of the IEP. See D.B. v. N Y.C. Dep 't ofEduc., 966 F. Supp. 2d 315, 332 (S.D.N.Y.
2013) (deferring to an "SRO Decision reason[ing] that any difference in characterizing the Student
at a pre-Kor kindergarten level on the Student's IEP would not affect the IEP's utility in properly
guiding appropriate instruction for the Student and did not deny the Student a FAPE").

17

The Court thus defers to the SRO' s ultimate conclusion that "based upon a review of the
evidence and upon review of the entire May 2012 IEP, the hearing record does not otherwise
indicate that the limited information in the present levels of performance in the May 2012 IEP
altered the overall accuracy of the IEP which-when read as a whole-contained sufficient
information to provide the student with educational benefits." SRO Op. at 19.

C. FBA and BIP
The Parents also argue K.S. was denied a F APE because the Functional Behavior
Assessment ("FBA") and Behavior Intervention Plan ("BIP") were substantively inadequate and
were not prepared until after the CSE developed the IEP. The SRO did not dispute these facts but
nonetheless concluded that K.S. was not denied a FAPE. See SRO Op. at 26. The Court will defer
to her reasoning.
The IDEA requires a school district to "consider the use of positive behavioral
interventions and supports, and other strategies" to address behavior by a disabled child that
"impedes the child's learning or that of others." 20 U.S.C. § 1414(d)(3)(B)(i). "New York state
regulations go beyond this floor set by the IDEA; they require a school district to conduct a full
FBA for a student who exhibits behavior that impedes learning, and to develop a BIP to address
that behavior." TM, 752 F.3d at 169. The Second Circuit, however, has held that, although the
failure to conduct an adequate FBA is a "serious procedural violation," it "does not rise to the level
of a denial of a FAPE if the IEP adequately identifies the problem behavior and prescribes ways
to manage it." R.E., 694 F.3d at 190. "[W]hether an IEP adequately addresses a disabled student's
behaviors and whether strategies for dealing with those behaviors are appropriate are 'precisely
the type of issue[s] upon which the IDEA requires deference to the expertise of the administrative
officers."' M W, 725 F .3d at 140 (quoting A. C., 553 F .3d at 172).

18

Here, the SRO concluded that K.S. was not denied a FAPE because "notwithstanding the
deficiencies in the FBA and BIP, the May 2012 IEP otherwise addressed the student's behavioral
and sensory needs." SRO Op. at 26. In particular, the SRO explained that the IEP "included an
annual goal to improve the student's sensory processing with short-term objectives that included
the provision of proprioceptive and vestibular input, as well as movement breaks to improve the
student's ability to self-regulate," "addressed increasing the student's ability to maintain sensory
regulation with an annual goal and short-term objective that addressed the student's ability to
request and utilize self-regulation strategies," and "provided the student with both individual and
small group OT services to address the student's sensory regulation needs, as well as the services
of a full-time, 1:1 crisis management paraprofessional." Id. at 26-27.
The SRO's conclusion is consistent with Second Circuit law. In similar circumstances, the
circuit has "concluded that an FBA omission did not deny a PAPE where (1) the CSE reviewed
documents regarding the student's behavior, and (2) the IEP provided strategies to address those
behaviors, 'including the use of a 1: 1 aide to help him focus."' MW, 725 F.3d at 140 (quoting
R.E., 694 F.3d at 193). So too here, the SRO found that the CSE examined K.S.'s behavior and

addressed it through the use of, among other things, a 1: 1 aide. See SRO Op. at 26-27. That
decision is entitled to deference. See R.E., 694 F.3d at 193 (noting that the SRO's reliance on
"specific strategies to address [the student's] behaviors, including the use of a 1: 1 aide to help him
focus ... is entitled to deference").
Because "a review of the evidence in the hearing record supports a determination that,
when read in conjunction, the FBA, BIP and IEP adequately addressed the student's behavioral
needs," SRO Op. at 23, K.S. was not denied a FAPE.

19

D. Parental Training
The Parents next contend that the IEP fails to provide for parental counseling and training.
Pls.' Mem. at 26. They are correct that New York law mandates counseling for parents of students
with autism, such that "failing to include provisions for parent counseling and training [is] a clear
procedural error in the IEP." NS. v. NYC Dep't of Educ., No. 13-CV-7819 (VEC), 2014 WL
2722967, at *9 (S.D.N.Y. June 16, 2014); see also NYCRR tit. 8, § 200.13(d).

The SRO

nevertheless found that the violation did not constitute denial of FAPE, see SRO Op. at 30, and
courts routinely agree, see, e.g., MW, 725 F.3d at 142; R.E., 694 F.3d at 195. As the Second
Circuit recently stated, "because school districts are required ... to provide parent counseling, they
remain accountable for their failure to do so no matter the contents of the IEP,' so this omission,
although a procedural violation, did not deny the student a free appropriate public education." R.B.

ex rel. D.B. v. NYC Dep't of Educ., 603 F. App'x 36, 39 (2d Cir. 2015) (quotingR.E., 694 F.3d
at 191 ). In this case, the failure to provide counseling neither resulted in the denial of a F APE nor
interfered with K.S. 's ability to participate in the decision-making process.

E. Cumulative Effect
The Second Circuit has "held that '[m]ultiple procedural violations may cumulatively
result in the denial of a FAPE even ifthe violations considered individually do not.'" L.O., 822
F.3d at 123 (quoting R.E., 694 F.3d at 190). But even multiple violations will not amount to denial
of a FAPE where "the procedural deficiencies were formalities and the record shows that the
Parents were afforded a full opportunity to participate in the IEP process." R.B. v. New York City

Dep't of Educ., No. 15-CV-6331 (DLC), 2016 WL 2939167, at *9 (S.D.N.Y. May 19, 2016).
Though the IEP contained some procedural errors, the Court will defer to the conclusions of the

20

IHO and SRO, who agreed that these errors neither individually, nor cumulatively, denied K.S. a
FAPE. See JC v. NYC Dep't of Educ., 643 F. App'x 31, 33 (2d Cir. 2016).
II.

Substantive Challenges

The Parents also make several substantive challenges to the IEP. They argue that (i) the
IEP's goals were deficient because K.S. had already met or surpassed the goals set in the IEP by
the end of the 2011-2012 schoolyear; (ii) the IEP, in light of its language, should have
recommended a particular teaching methodology; (iii) the IEP should have required music therapy;
(iv) the recommended 1: 1 paraprofessional was overly restrictive; and (v) the recommendation of
physical therapy was in error.
A.

Goals Already Achieved

The Parents first argue that the goals were inappropriate because "the District was aware
[that] over half of the educational short term educational goals [sic] were going to be mastered by
the end of the 2011-2012 school year, inevitably rendering those goals inappropriate for the 20122013 school year." Pls.' Mem. at 17. The Parents, however, point to only one ADL goal regarding
safety awareness, which the SRO "acknowledged ... had been mastered at the time of the IEP
meeting." Pls.' Mem. at 18 (citing SRO Op. at 20 n.l 0). With respect to the other goals, the SRO
credited the testimony of Dr. Czarnecki, who "testified that the May 2012 CSE reviewed each of
the student's then-current annual goals ... one-by-one" and ultimately included in the IEP only
those "annual goals [that] remained appropriate for the student" after consultation with the
Rebecca School teacher. SRO Op. at 20.
Moreover, K.S. was not denied a FAPE because the safety awareness goal was mastered
prior to the CSE. In JM v. New York City Department of Education, No. 12-CV-8504 (KPF),
2013 WL 5951436 (S.D.N.Y. Nov. 7, 2013), the SRO found that ten IEP goals had been completed

21

before the start of the school year. Id. at *19. The court nonetheless agreed with the SRO that the
student was not denied a FAPE because the goals were created as a result of "collaborative
discussions among the CSE members [including Rebecca School teachers], as to what the
materials [including a Rebecca School progress report] indicated and what the members [of the
CSE] anticipated would be appropriate goals for [the student] throughout the upcoming school
year." Id. Here, the existence of a single previously achieved goal similarly did not deny K.S. a
FAPE because, like in JM, the SRO found that the District developed K.S. 's goals in conjunction
with the Rebecca School staff "regarding whether the student met the annual goal, whether the
annual goal needed to be continued and addressed going forward, or whether the annual goal
should be modified." SRO Op. at 20. Because "[t]he sufficiency of goals and strategies in an IEP
is precisely the type of issue upon which the IDEA requires deference to the expertise of the
administrative officers," L.O., 822 F.3d at 118, the Court will defer to the SRO.
To the extent the Parents are arguing that the IEP's goals were deficient because they were
based on the Progress Report, which contained goals that were designed to be achieved prior to
the start of the next school year, it too is unavailing. Courts in this district have routinely rejected
similar arguments about Rebecca School progress reports because "there was no authority for the
proposition that drawing goals from a teacher's progress report is a violation of the [applicable
law] or regulations." R.B. v. NYC Dep't of Educ., No. 12-CV-3763 (AJN), 2013 WL 5438605,
at *13 (S.D.N.Y. Sept. 27, 2013), aff'd, 589 F. App'x 572 (2d Cir. 2014) (internal quotation marks
omitted); accord A.M ex rel. YN v. NYC Dep 't of Educ., 964 F. Supp. 2d 270, 285 (S.D.N.Y.
2013); CL.K. v. Arlington Sch. Dist., No. 12-CV-7834 (NSR), 2013 WL 6818376, at *13
(S.D.N.Y. Dec. 23, 2013); JM, 2013 WL 5951436, at *19. 4

4

Plaintiffs citation to E.H v. New York City Department of Education, No. 15-CV-3535 (RWS), 2016 WL
631338, at *12 (S.D.N.Y. Feb. 16, 2016), does not persuade the Court otherwise. In that case, the court found there

22

B.

Teaching Methodology

Next, the Parents argue that the IEP was flawed because it failed to recommend the
"Developmental Individual-difference Relationship" ("DIR") teaching methodology to implement
K.S.'s goals, despite the IEP's inclusion of DIR specific terminology such as "circles of
communication." Pls.' Mem. at 18. 5 The SRO concluded that the inclusion of DIR terms did not
necessitate use of the DIR methodology. See SRO Op. at 22. The Court agrees.
Numerous courts have rejected this very argument regarding the inclusion of DIR terms in
an IEP's goals. See, e.g., A.D. v. NYC. Dep 't ofEduc., No. 12-CV-2673 (RA), 2013 WL 1155570,
at *12 (S.D.N.Y. Mar. 19, 2013). In TC v. New York City Department ofEducation, No. 15-CV3477 (VEC), 2016 WL 1261137 (S.D.N.Y. Mar. 30, 2016), for example, the court was not
persuaded by the testimony of the same Rebecca School Director who testified here, Tina
Mccourt, that the IEP could only be implemented using DIR. See id. at *14. It reasoned that
"[a]lthough the goals are generally methodologically neutral, the IEP, at times, slips into DIR
jargon, using the term 'circle of communication,' for example. With all due respect to the
proponents of DIR, one does not have to have been trained in DIR to understand what a 'circle of
communication' is." Id. at* 16 n.21. Here too, the SRO was unconvinced that a particular teaching
methodology was necessary because terms like "circles of communication" have "relatively
common meaning" that would not "prevent a teacher or therapist from implementing the [IEP's]
goals."

SRO Op. at 22.

The Court finds this reasoning persuasive, especially given that

was no effort by the CSE to ensure that the goals, taken from a progress report, were current. Id. at *12 ("[l]t was
clear the CSE failed to take into account [the student's] progress between December 2011 and June 2012, and therefore
developed goals that did not meet his present levels of performance." (internal quotation marks omitted)). Here, by
contrast, the SRO found that the CSE examined each goal with the Rebecca School staff to ensure the current
appropriateness of each for K.S. in the coming school year. See SRO Op. at 20.
5
The Parents define DIR as "a research based developmental model that focuses on the functional emotional
development of students with core neurodevelopmental delays in relating and communicating." Pis.' Mem. at 18.

23

"' [d]ecisions involving a dispute over an appropriate educational methodology' ... are subject to
considerable deference." NS., 2014 WL 2722967, at *6 (quoting CF., 746 F.3d at 77 n.7).
C. Music Therapy

The Parents also make several arguments about music therapy. They maintain that the
SRO erred in overruling the IHO's determination that the CSE denied K.S. a FAPE when it
substituted counseling-specifically, "play" and "talk" therapy-for the music therapy that she
received at the Rebecca School. They argue that, given the testimony that K.S. "would not benefit
from talk therapy or play therapy, but rather, she required music therapy," the CSE should have
recommended music therapy as a methodology or a related service. Pls.' Mem. 19-20, 27-29.
The DOE urges the Court to follow "the SRO's well-reasoned determination [that] is supported by
the record." Def.'s Reply at 6.
Because the SRO's decision on the appropriateness of the IEP's methodology and services
is indeed well reasoned, this Court will defer to her expertise in concluding that the lack of music
therapy in the IEP did not deny K.S. a FAPE. While the IHO found that "music is not simply a
nice feature but is required to have an appropriate program for KS," the SRO disagreed. She
considered the IHO's opinion and nonetheless found, after reviewing the record in detail, that
based on the information available to the May 2012 CSE, the student
demonstrated skills that would have allowed her to participate in
other forms of counseling, such as talk or play therapy, and the May
2012 CSE did not err in substituting the annual goals related to
music therapy for the annual goals related to counseling. . . . Here,
while it appears that the student benefited from ... mental health
services in the form of music therapy, the hearing record does not
contain sufficient evidence upon which to conclude that the student
could only make progress in such an environment.
SRO Op. at 23, 31.

24

This conclusion is supported by the record, and is consistent with the Second Circuit's
instruction that "because of their specialized knowledge and experience, state administrators are
generally superior to federal courts at resolving 'dispute[s] over an appropriate educational
methodology"' where, as here, such "administrators weigh the evidence about proper teaching
methodologies and explain their conclusions." E.H v. N Y.C. Dep 't of Educ., 611 F. App'x 728,
731 (2d Cir. 2015) (quoting MH, 685 F.3d at 244); see also Doe v. E. Lyme Bd. of Educ., 790
F.3d 440, 450 (2d Cir. 2015), cert. denied, 136 S. Ct. 2022 (2016), reh 'g denied, 136 S. Ct. 2546
(2016) ("[The] IEP need not 'furnish every special service necessary to maximize each
handicapped child's potential,' it must be 'likely to produce progress' that is more than 'trivial
advancement.'

On this question, substantial deference is owed to the judgments of state

administrative officers." (quoting Cerra, 427 F.3d at 194)). According to the Rebecca School
Progress Report, K.S. "primarily communicates through the use of verbal language," she could
participate in "two-way purposeful emotional interactions," she "shared social problem solving,"
she engaged in "pretend play ... to act out some of the familiar fairy tales read in class," and she
has "an understanding of emotions in herself and others." Progress Report at 1, 2, 5. According
to Dr. Czarnecki, the CSE relied on this evidence in concluding that general counseling was
appropriate to allow K.S. to address her "needs in terms of developing her interpersonal social
emotional skills." Nov. 8 Tr. 159.
The record also reflects that the CSE did not merely dismiss the importance of music but
attempted to incorporate it as suggested by the Parents and K.S.'s teacher at the CSE. A.S., K.S. 's
parent, testified that "[w]hen we talked the music over with the [CSE,] Laura [Gufarotti, K.S.'s
Rebecca School teacher,] made it really, really clear that [K.S.] needs ... to have music as part of
her-as part of the way to reach her. And Dr. [Czarnecki] said, okay, so you think that music

25

should be integrated throughout [K.S.'s] school day and heavily involved in her program, and
Laura said, yes, absolutely, she needs it." Nov. 19 Tr. 522. Ultimately, while it did not require
music therapy as a methodology or service, the IEP did exactly as the Rebecca School teacher
suggested and incorporated references to music throughout the IEP, including that"[ music] should
be integrated throughout the school day for [K.S.]," that she "really enjoys sounds," that "[m]usic
engages her across a variety of environments," and that "it helps to regulate [K.S.] and helps her
to express herself." May IEP at 1.
The Parents nevertheless argue that music therapy was indispensable to K.S. 's progress,
citing to instances during the impartial hearing where Rebecca School personnel testified about
K.S.'s need for music therapy. See Pls.' Mem. at 20-21 (quoting extensively from the testimony
of McCourt and Taketa). The SRO considered that testimony but ultimately concluded that the
lack of music therapy did not render the IEP substantively inadequate. Although courts "routinely
consider the testimony of witnesses who did not attend CSE meetings when determining the
adequacy of an IEP," the Second Circuit has deferred to an SRO's decision where it "explicitly
considered the testimony ... but put more weight on the [the District's] witnesses." JS. v. NYC.
Dep't of Educ., No. 15-1827-CV, 2016 WL 2342490, at *3 (2d Cir. May4, 2016). Because here,

"[t]he SRO's decision addressed all of the arguments presented at the independent hearing and
grappled with conflicting evidence," this Court finds "that the SRO's decision was 'reasoned and
supported by the record,' and [will] defer to its findings that [the District] provided [K.S.] with a
FAPE." Id. (quoting Gagliardo, 489 F.3d at 114).
As another judge on this court stated when faced with a similar challenge, "[a]lthough [the
Student]'s parents might prefer [she] have music therapy, '[t]he IDEA guarantees only that
students with disabilities are provided an appropriate education, not one that provides everything

26

that might be thought desirable by loving parents.'" NK. v. New York City Dep 't ofEduc., 961 F.
Supp. 2d 577, 592-93 (S.D.N.Y. 2013) (quoting Bryant v. NY State Educ. Dep't, 692 F.3d 202,
215 (2d Cir. 2012)).
D. 1:1 Paraprofessional
The Parents next take issue with the SRO's conclusion that the IEP's recommendation of
a 1: 1 paraprofessional was appropriate for K.S. They argue that the recommendation of a 1: 1
paraprofessional denied K.S. a FAPE because "K.S. simply did not require an aide" and thus the
assignment would be "overly restrictive." Pls.' Mem. at 23-24. The SRO concluded, over the
Parents' objection, that the CSE's recommendation was supported by the evidence, noting thatas reflected in the IEP-a paraprofessional was appropriate because K.S. '"required very close
classroom management"' and "because she exhibited 'very poor self-preservation and safety
skills."' SRO Op. at 27-28 (quoting May IEP at 2).
The Second Circuit addressed an identical argument in R.B. ex rel. D.B. v. New York City
Department of Education, 603 F. App'x 36 (2d Cir. 2015), in which the parents attempted to
"attack this placement [with a 1:1 paraprofessional] ... not as insufficiently supportive but as too
supportive, a crutch that vitiates their son's right to be educated in the least restrictive
environment." Id. at 40 (emphasis in original). The court rejected the parents' contention,
reasomng,
The requirement that students be educated in the least restrictive
environment applies to the type of classroom setting, not the level
of additional support a student receives within a placement ....
Here, the parents agreed with their son's recommended placement
in a special class within a special school, and the additional support
provided by the 1: 1 paraprofessional did not deny their son the least
restrictive environment.
Id. As nothing distinguishes this case from R.B., the Court will defer to the SRO.

27

E. Physical Therapy
Next, the Parents assert that the CSE's decision to recommend PT, without setting any PT
related goals, constituted a denial of a FAPE because the District knew that K.S. did not need PT
and "K.S.'s instruction would have been reduced by one hour weekly to accommodate this
inappropriate service." Pls.' Mem. at 25-26. The Parents cite no law to support their argument.
The DOE argues that the Court should defer to the SRO, who "determined that 'the May 2012
CSE continued to recommend[] PT services for the student because PT has previously been
recommended for the student and the May 2012 CSE did not have information before it upon
which to discontinue PT services."' Def.' s Mem. at 25 (quoting SRO Op. at 14-15). This Court
agrees that the CSE's decision to require PT is supported in the record, see Nov. 8 Tr. 193-195,
and that, in any event, K.S.'s attendance at PT for one hour per week would not have prevented
her from receiving the "basic floor of opportunity" that the DOE must provide. T.K., 810 F.3d at
875.
With respect to the lack of PT goals, in L. 0., the Second Circuit rejected a similar claim
about the adequacy of an IEP that required PT, but did not include any related goals. 822 F.3d at
122. It found that "[a]lthough the IEP was wanting of any goals related to [the student's] physical
therapy needs, because he continued to receive weekly and individual physical therapy related
services under the terms of the IEP ... [he] was not deprived of a FAPE as a result of these
procedural errors." Id. Because the CSE's decision to assign PT is supported by the record, the
Court will not disturb the SRO's conclusion that there was no denial of FAPE irrespective of the
absence of any PT goals.

28

III.

Placement

Lastly, the Parents challenge the appropriateness of the Placement School. They argue that
the Placement School could not implement the IEP as written and that the School was unable to
teach the DIR methodology. Both arguments fail under Second Circuit precedent.
A. Implementation of the IEP

In MO. v. New York City Department of Education, the Second Circuit clarified that its
precedent "permit[ ed] challenges to a proposed placement school when based on more than
speculation." B.P. v. NYC Dep't of Educ., 634 F. App'x 845, 847 (2d Cir. 2015) (describing

MO., 793 F.3d at 244). Since M.O., the Second Circuit has distinguished between cognizable
challenges to the school's "ability," "capacity," or "capability" to implement the IEP, in contrast
to mere'" [s]peculation that the school district [would] not [have] adequately adhere[ d] to the IEP"'
despite its ability to do so. JC, 643 F. App'x at 33 (rejecting a challenge where "[t]he school
possessed the capacity to" adhere to the IEP); YF, individually & on behalf of K.H, a minor, v.

NYC Dep'tofEduc., No. 15-2797-CV, 2016 WL4470948, at *3 (2d Cir. Aug. 24, 2016) (quoting
R.E., 694 F .3d at 195) (noting that "a non-speculative challenge" is one "to the ability of a

placement school to implement the IEP"); B.P., 634 F. App'x at 849 ("[T]he designated school
was an appropriate placement given [the student's] needs and the school's capabilities."). Only
where parents offer "non-speculative objections to a proposed school" does "'the school district .
. . ha[ve] the burden to produce evidence demonstrating the placement's adequacy in response to
these arguments."' NM v. NYC Dep't of Educ., No. 15-CV-1781(JMF),2016 WL 796857, at
*1 (S.D.N.Y. Feb. 24, 2016), appeal withdrawn (June 16, 2016) (quoting MO., 793 F.3d at 245). 6

6

While the parties dispute who bears the burden of demonstrating the appropriateness of a placement, the
Second Circuit recently clarified that "[i]t is true that we held in MO. ... that a non-speculative challenge to the
ability of a placement school to implement the IEP can 'trigger a duty on the part of the school district to provide
evidence regarding [the placement school's] adequacy.' But no such duty attaches ifthe challenge is speculative."

29

Under the MO. standard, the Parents' placement challenges are speculative. They assert
that the Placement School was inappropriate because it (i) "is unable to fulfill the related service
mandates of the IEP," (ii) "could not meet K.S.'s sensory needs," and (iii) would not comply with
functional grouping requirements. Pls. Mem. 32-33. Although the Parents attempt to frame their
challenge as based on the Placement School's capacity to comply with the IEP, the substance of
the Parents' argument is that the school is unlikely to abide by the IEP. These are precisely the
types of speculative arguments rejected in MO. See NM, 2016 WL 796857, at *8 ("[A] claim
based on what a school 'would not have' done-as opposed to a claim based on what the school
could not do-is speculative and barred under R.E. and M 0. ").
The Parents first argue that they "were informed that related services, particularly speech
and language therapy, would be pushed into the classroom," and note that "during the 2011-2012
school year, over 50% of students recommended for OT were not receiving it." Pls. Mem. 33. But
neither Mr. Ross's statements nor the statistics about the school's past performance entitle K.S. to
an alternative placement. A.S. 's testimony about Ms. Ross's statements are insufficient because a
parent's "own testimony that [school] officials made comments to her indicating an inability to
effectively serve [the student] do not come close to proving that the school was 'factually
incapable' of implementing the IEP, and [could] thus [be] properly excluded from consideration."
J.D. on behalf ofA.P. v. NYC Dep't ofEduc., No. 14-CV-9424 (ER), 2015 WL 7288647, at *16
(S.D.N.Y. Nov. 17, 2015) (quoting KC. ex rel. C.R. v. NYC Dep'tofEduc., No. 14-CV-836
(RJS), 2015 WL 1808602, at *12 (S.D.N.Y. Apr. 9, 2015)); see also E.B. v. New York City Dep't
of Educ., No. 15-CV-4998 (KBF), 2016 WL 3826284, at *9 (S.D.N.Y. July 12, 2016) ("Because
plaintiffs claims are based on her one-time observations and subjective conclusions, they are not

Y.F., 2016 WL 4470948, at *3 (quoting MO. 793 F.3d at 245). As the Parents raise no non-speculative challenges to
the placement decision, the DOE bears no burden to produce evidence.

30

sufficient to overcome the presumption that the proposed placement was capable of implementing
the IEP.").

The parents' citation to statistics about the school's past performance is also

insufficient. In R.E., for example, the Second Circuit held that a claim that a student's IEP "would
not have been effectively implemented ... because defendant's own internal documents show that
a large percentage of students at [the school] had been and continue to be underserved for related
services," is speculative and "not an appropriate basis for unilateral placement." R.E., 694 F.3d at
195. The same is true here.
Regarding sensory equipment, the Parents argue that the school will be unable to follow
the IEP's call for "sensory support to be engaged in academic tasks" because "the uncontested
testimony is that the placement does not offer any sensory supports within the classroom, limited
sensory equipment in the related services room, ... and there is insufficient sensory equipment to
address the needs of the students who are already attending the program." Pls.' Mem. at 33.
Courts, however, routinely reject such arguments. See, e.g., E.P. ex rel. E.P. v. NYC. Dep 't of
Educ., No. 14-CV-6032 (ARR), 2015 WL4882523, at *7 (E.D.N.Y. Aug. 14, 2015) ("[T]herecord

does not show that the DOE was unwilling or unable to obtain the equipment necessary to satisfy
the IEP, had E.P. actually attended public school."); B.K v. Dep 't of Educ., 12 F. Supp. 3d 343,
372 (E.D.N.Y. 2014) ("Plaintiffs are unable to show that the Department was unwilling or unable
to obtain any equipment necessary for G.K.'s instruction under the IEP, should he have been
enrolled at [the school]."); NK., 961 F. Supp. 2d at 592 ("The fact that Plaintiffs did not observe
any sensory equipment on their site visit is insufficient to demonstrate that [the school] lacked
such equipment or that the school would not obtain the equipment necessary to implement J.K.'s
IEP should J.K. attend the school."). The Court sees no basis to depart from this precedent.

31

Third, the Parents argue, based on testimony about the IBPs of the students in the
prospective class, that the DOE's placement would not have complied with state requirements
regarding functional grouping. See Pls. Mem. 34-35. The Second Circuit, however, rejected a
similar argument, noting that "precedent bars us from considering such retrospective evidence."
JC, 643 F. App'x at 33. The court reasoned that "grouping evidence is not the kind of non-

speculative retrospective evidence that is permissible under M 0. The school possessed the
capacity to provide an appropriate grouping for [the student], and plaintiffs' challenge is best
understood as '[s]peculation that the school district [would] not [have] adequately adhere[d] to the
IBP."' Id. at 33 (quoting R.E., 694 F.3d at 195). 7
As the Parents point to no evidence indicating that the Placement School was unable to
abide by the IBP, their challenges to the Placement fail.
B.

Use of DIR at the Placement School

Finally, the Parents argue that K.S. was denied a FAPE because the Placement School
"does not provide instruction using DIR." Pls.' Mem. at 32. "[A] substantive attack on a child's
IBP that is couched as a challenge to the adequacy of the proposed placement" however, "is also
not a permissible challenge." JM v. NYC Dep't of Educ., No. 15-CV-353 (VEC), 2016 WL
1092688, at *8 (S.D.N.Y. Mar. 21, 2016). In MO. the Second Circuit rejected a similar argument
that a placement school's "language-based program was inappropriate" because the challenge
"relate[d] to the appropriateness of the IBP's substantive recommendation" which "must be
determined by reference to the written IBP itself." 793 F.3d at 245. The Parents' efforts to attack

7

To the extent the Parents contend that the school's failure to return the Parents' letter constituted a
procedural failure, it did not deny K.S. a F APE. As the court held in E.B. v. New York City Department ofEducation,
No. 15-CV-4998 (KBF), 2016 WL 3826284, at *9 (S.D.N.Y. July 12, 2016), while it is "understandably frustrat[ing]"
when the DOE does not respond to a parent's letters and phone calls, it does not rise to a denial of F APE unless it
denies the parent an "opportunity to participate in the decision making process." Id. at *9 (quoting E.P. v. NY. C.
Dep 't ofEduc., No. 15-CV-0606 (RA), 2016 WL 3443647, at *11 (S.D.N.Y. June 10, 2016). Here, where the Parents
twice visited the Placement School, they were not denied such an opportunity.

32

the Placement School on the basis that it did not offer DIR-a methodology not required by the
IEP-is thus foreclosed by M 0. 8
CONCLUSION
For the reasons stated above, the Parents' challenges to the IEP and Placement fail and the
Court defers to the SRO's conclusion that the DOE offered K.S. a FAPE for the 2012-2013
schoolyear.

It is therefore unnecessary to reach the second and third prongs of the

Burlington/Carter test. The DOE' s motion for summary judgment is thus granted, and the Parents'
motion is denied. The Clerk of Court is respectfully requested to enter judgment in favor of
Defendant and close the case.
SO ORDERED.
Dated:

September 19, 2016
New York, New York
Ron i
ams
United States District Judge

8
The Parents' reliance on FB v. New York City Department of Education, 132 F. Supp. 3d 522 (S.D.N.Y.
2015) is misplaced. In that case, the court held that because the IEP implicitly "embraced a particular education
methodology," the student was denied a FAPE when the school could not provide DIR. Id. at 551. But where, as
here, a court finds that the IEP is "methodologically-neutral" and rejects the parents' assertion that the student "would
only progress if taught using DIR methodology," FB is inapposite. TC, 2016 WL 1261137, at *14 & n.22 (rejecting
an argument that the school could not implement DIR terms in an IEP).

33