R.B. et al v. New York City Department Of Education

Filing 33

OPINION AND ORDER....The Court has considered the plaintiffs remaining arguments and finds no grounds for reversal. The decision of the SRO is affirmed. The Departments February 5, 2016 motion for summary judgment is granted. The Parents December 23, 2015 motion for summary judgment is denied. The Clerk of Court shall enter judgment for the defendant and close the case. (Signed by Judge Denise L. Cote on 5/19/2016) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
R.B. and M.L.B., individually, and :
on behalf of D.B.,
:
:
Plaintiffs,
:
:
-v:
:
NEW YORK CITY DEPARTMENT OF
:
EDUCATION,
:
:
Defendant.
:
:
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APPEARANCES:

15cv6331 (DLC)
OPINION AND ORDER

For the plaintiffs:
Gary S. Mayerson
Mayerson and Associates
330 West 38 Street, Suite 600
New York, NY 10018
For
Son
New
100
New

the defendant:
K. Le
York City Law Department
Church Street
York, NY 10007

DENISE COTE, District Judge:
R.B. and M.L.B. (collectively, the “Parents”) appeal from
the decision of the State Review Officer (“SRO”) denying
reimbursement for tuition under the Individuals with
Disabilities Education Act (“IDEA”) for their son, D.B.

The

Parents principally raise four procedural deficiencies and three
substantive deficiencies in the individualized education
programs (“IEP”) prepared for D.B. by the New York City

Department of Education (the “Department”) for the 2013-2014 and
2014-2015 school years.

The procedural deficiencies are that

(1) the IEPs did not include required vocation and transition
planning, (2) the IEPs did not include appropriate and
objectively-measurable annual goals and short-term objectives,
(3) the IEPs were impermissibly predetermined, and (4) the
Department did not give the Parents prior written notice for the
2013-2014 school year.

The substantive deficiencies are that

(1) the student-to-faculty ratio proposed in both IEPs provided
inadequate support to D.B., (2) the school sites recommended for
D.B. were inadequate, and (3) the teaching methodology that
would be used in the recommended classrooms would be
inappropriate for D.B.

For the reasons that follow, the

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

D.B.’s Background
D.B. is a seventeen-year-old boy who is diagnosed on the
autism spectrum and has significant developmental delays.

Under

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

2

Alternatively, if the

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

D.B. has never attended public

He has attended the Rebecca School since the 2009-2010

school year.

The Parents have sought reimbursement from the

Department for every school year since 2009-2010, but have never
prevailed.

Notably, the Parents were unsuccessful in obtaining

reimbursement for the 2011-2012 school year after both the
administrative officers, the District Court, and the Second
Circuit Court of Appeals found no denial of a FAPE.

See R.B. v.

New York City Dep’t of Educ., 15 F. Supp. 3d 421 (S.D.N.Y.
2014), aff’d, 603 F. App’x 36 (2d Cir. 2015).

The instant

appeal concerns challenges to the IEPs for the 2013-2014 and
2014-2015 school years.
II.

The Individualized Education Programs
On May 9, 2013, the Committee on Special Education (“CSE”)
met for approximately two hours and drafted the IEP for the
2013-2014 school year.

Present at this meeting were (1) D.B.’s

mother, M.L.B., (2) the Department’s psychologist, Rose Fochetta
(“Ms. Fochetta”), (3) D.B.’s teacher from the Rebecca School,
Andrea Gutzeit, (4) the Department’s special education teacher,
Feng Ye, (5) a representative for the Parents, Sandra Morabito,
and (6) the Rebecca School Transitions Program Supervisor,
Marguerite Cohen.

According to the IEP, although D.B. had low
3

scores on a psychoeducational evaluation, he had a desire to
communicate and interact with adults and to participate in class
activities.

D.B. generally understands what is expected of him

in school but often becomes distracted by his environment or his
own actions.

The IEP recommended the following occupational

therapy (“OT”) interventions: sensory and movement breaks
throughout the day, visual supports, verbal prompts, multimodal
learning, small group instruction, language broken down into
manageable chunks, use of high interest activities, use of a
calm affect when D.B. is upset, use of graphic organizers, and
additional time for D.B. to process information.
The IEP contained a section entitled “measurable
postsecondary goals” which stated that the Parents wanted D.B.
eventually to live and work independently, and that D.B.’s
course of study would focus on his transition needs.

The IEP

also contained eighteen measurable annual goals, ten of which
had accompanying short-term instructional objectives and/or
benchmarks.

A class with a ratio of 6:1:1 was recommended.1

The

school recommended for D.B. for the 2013-2014 school year was
P.S. 138, which is located at 225 E. 23rd Street.

The Parents

enrolled D.B. at the Rebecca School for the 2013-2014 school

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

4

year on May 6, 2013 and notified the Department of their
rejection of the 2013-2014 IEP on June 17, 2013.
For the following school year, the CSE met for
approximately two hours on January 17, 2014, and drafted the IEP
for the 2014-2015 school year.

Present at that meeting were (1)

D.B.’s mother, M.L.B., (2) the Department’s psychologist, Ms.
Fochetta, (3) the Department’s special education teacher, Feng
Ye, (4) D.B.’s teacher from the Rebecca School, Andrea Gutzeit,
and (5) a social worker from the Rebecca School, Joshua Noble.
This IEP contained four measurable postsecondary goals and
twelve annual goals, ten of which had accompanying short-term
instructional objectives and/or benchmarks.

As with the prior

year, a classroom with a 6:1:1 ratio was recommended for D.B.
The school recommended for D.B. for the 2014-2015 school year
was P.S. M226, which is located at 345 E. 15th Street.

In May

2014, the Parents rejected the 2014-2015 IEP and enrolled D.B.
at the Rebecca School for that school year.

After rejecting the

IEP, on June 20, the Parents visited the assigned school site.
III.

The IHO Hearing & Decision
On July 21, 2014, the Parents requested a hearing before an
impartial hearing officer (“IHO”) and sought reimbursement for
the 2013-2014 and 2014-2015 school years, arguing that both IEPs
denied a FAPE to D.B.

The Parents raised 148 purported

deficiencies in the two IEPs, twelve of which they termed “core
5

claims” in their closing brief.

After holding hearings from

October 15 to November 19,2 the IHO found that both IEPs were
procedurally and substantively inadequate, causing a deprivation
of educational benefits and rising to the level of a denial of a
FAPE.

Specifically, the IHO held: (1) the vocational and

transition recommendations for both school years were deficient,
(2) the annual goals and short-term objectives for both school
years were deficient and insufficiently measurable, (3) the IEPs
for both school years were impermissibly predetermined, (4) the
Department failed to give the Parents prior written notice for
the 2013-2014 school year, (5) the recommended 6:1:1 classroom
would be unduly restrictive and not likely to result in D.B.’s
progress in social interactions, (6) the teaching methodology
typically used in the recommended 6:1:1 classroom would not be
effective for D.B., and (7) the recommended school sites for
both years were not equipped to carry out the IEPs.
The IHO also found that the Rebecca School was an
appropriate placement for D.B. and that the relevant equitable
considerations favored reimbursement.

Accordingly, the

Department was ordered to reimburse the Parents for the cost of
tuition at the Rebecca School for the 2013-2014 and 2014-2015
school years.

The IHO held hearings on six days during this time period:
October 15 and 29, and November 6, 7, 14, and 19.
2

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IV.

The State Review Officer Appeal
The Department appealed the decision of the IHO to an SRO.
The Parents cross-appealed, arguing that the IHO should have
addressed additional bases on which they claimed D.B. was denied
a FAPE.

The SRO reversed the decision of the IHO, and dismissed

the plaintiffs’ cross-appeal, finding that the IEPs for the
2013-2014 and 2014-2015 school years did not deny a FAPE to D.B.
Specifically, the SRO held: (1) neither of the IEPs were
impermissibly predetermined, (2) the failure to provide prior
written notice for the 2013-2014 school year was a procedural
violation but did not deny a FAPE to D.B., (3) the annual goals
and short-term objectives for both school years were adequate,
(4) the recommendation of a 6:1:1 classroom was reasonably
calculated to meet D.B.’s education needs, (5) the failure to
conduct a formal vocation assessment of D.B. was a procedural
deficiency but did not deny a FAPE to D.B., (6) the Department
was not required to specify a particular teaching methodology,
and moreover, there no showing that D.B. required any particular
teaching methodology, and (7) the Parents’ objections to the
recommended schools sites could not be considered because they
were based on retrospective observations of the schools.
V.

Procedural History
The Parents filed their complaint in federal court on
August 11, 2015, appealing the decision of the SRO, and seeking
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a declaration that (1) the Department failed to offer D.B. a
FAPE for the 2013-2014 and 2014-2015 schools years, (2) that
D.B.’s placement at the Rebecca School for the 2013-2014 and
2014-2015 schools years was reasonably calculated to provide
D.B. with meaningful education benefits, and (3) that the
equities favor plaintiffs’ reimbursement.

The Parents sought

tuition reimbursement for the 2013-2014 and 2014-2015 school
years as well as leave to submit a fee application for the
purposes of attorney’s fees and other costs.

The Department

filed its answer on October 16.
On December 23, the Parents filed a motion for summary
judgment on all their claims.
Court on January 14, 2016.

This case was reassigned to this

On February 5, the Department filed

a cross-motion for summary judgment, seeking affirmance of the
SRO’s decision and dismissal of the Parents’ complaint in its
entirety.
8.

The Parents’ motion became fully submitted on March

The Department’s motion became fully submitted on April 4.
The Parents’ papers address many facts and issues, and some

issues are addressed in multiple sections.

The organizational

structure of the Parents's brief thus makes it difficult to
discern their lines of argument with precision.

These papers

appear to raise seven separate arguments, and the discussion
that follows is organized accordingly.

8

Discussion
I.

Legal Standard
Although the parties style the instant motion as one for
summary judgment, the “procedure is in substance an appeal from
an administrative determination.”

T.K. v. New York City Dep’t

of Educ., 810 F.3d 869, 874 n.2 (2d Cir. 2016) (citation
omitted).

“In reviewing a state administrative proceeding under

the IDEA, the Court must engage in an independent, but
circumscribed, review, more critical than clear-error review but
well short of complete de novo review.”
omitted).

Id. at 875 (citation

In deciding factual issues, a district court must

decide based on the preponderance of the evidence.

T.P. ex rel

S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d
Cir. 2009); see also 20 U.S.C. § 1415(i)(2)(C)(iii).

Due weight

must be given to the state proceedings, with particular
deference afforded where “the state hearing officers’ review has
been thorough and careful.”
omitted).

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

The Second Circuit has cautioned that “federal courts

lack the specialized knowledge and experience necessary to
resolve persistent and difficult questions of educational
policy.”

Id. (citation omitted).

When the conclusions of an

IHO and SRO differ, the Court must accept the determination of
the SRO as the decision entitled to deference “unless it
concludes that the [SRO] decision was inadequately reasoned.”
9

R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189 (2d Cir.
2012).

The SRO’s decision is entitled to deference because it

is thorough and well-reasoned, addressing each of the claims and
supporting its holdings with citations to the administrative
record.
II.

The Individuals with Disabilities Education Act
Congress enacted the IDEA “to ensure that all children with
disabilities have available to them a free appropriate public
education that emphasizes special education and related services
designed to meet their unique needs and prepare them for further
education, employment, and independent living.”
§ 1400(d)(1)(A).

20 U.S.C.

Under the IDEA, states have “an affirmative

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

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

The principal method for states to achieve the mandate of
the IDEA is the IEP, a written statement which by statute must
contain, inter alia, the child’s present level of performance,
goals for improvement, and a plan about how to achieve that
improvement.
§ 1414(d).

T.K., 810 F.3d at 875; see also 20 U.S.C.
If an IEP is substantively deficient, parents may

reject the plan and seek reimbursement from the state for
10

private school tuition, subject to certain conditions.

T.K.,

810 F.3d at 875; see also 20 U.S.C. § 1412(a)(10)(C)(ii).
Parents may also seek reimbursement where an IEP is
procedurally deficient, but only if the procedural deficiencies
“significantly impede the parents’ participation rights, impede
the child’s right to a FAPE, or cause a deprivation of
educational benefits.”

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

Even when a

denial of a FAPE is found, parents will only be reimbursed for
tuition if the alternative school chosen by the parents “is
appropriate to the child’s needs” and equitable considerations
favor reimbursement.

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

The burden of establishing the validity of the IEP is on
the Department.

Id.

Thus, in reviewing an IDEA determination,

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

M.H. v. New York City Dep’t of Educ., 685

F.3d 217, 245 (2d Cir. 2012); see also Sch. Comm. of Town of
Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359, 370
(1985).

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III.

Procedural Adequacy of the IEPs
A. Vocational Assessment and Transition Planning
The Parents contend that both the 2013-2014 and 2014-2015
IEPs were deficient because the Department failed to identify
measurable postsecondary goals based upon age-appropriate
transition assessments and failed to conduct a functional
vocational assessment of D.B.

Specifically, the Parents assert

(1) that the Department never assessed D.B., although he is
verbal and relatively conversational, (2) that D.B.’s interests
were not taken into account, and (3) interviewing only D.B.’s
mother was insufficient to constitute a functional vocational
assessment.
Once a child attains the age of sixteen (fifteen under New
York regulations),3 the IEP must include “appropriate measurable
postsecondary goals based upon age appropriate transition
assessments related to training, education, employment, and,
where appropriate, independent living skills [and] the
transition services (including courses of study) needed to
assist the child in reaching those goals.”
§ 1414(d)(1)(A).

20 U.S.C.

Transition services refers to “a coordinated

The IDEA incorporates some, but not all, state regulations when
they exceed the floor set by federal law. See D.D. ex rel. V.D.
v. New York City Bd. of Educ., 480 F.3d 138, 139 (2d Cir. 2007).
The parties do not dispute that the Department had to begin
vocational assessments when D.B. turned fifteen.
3

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set of activities for a child with a disability that . . . is
designed to be within a results-oriented process, that is
focused on improving the academic and functional achievement of
the child with a disability to facilitate the child’s movement
from school to post-school activities.”

20 U.S.C. § 1401(34).

Transition services must be “based on the individual child’s
needs, taking into account the child’s strengths, preferences,
and interests.”

Id.

The Department did not conduct a formal vocational
assessment of D.B. prior to creating the 2013-2014 IEP.

As the

SRO found, however, the CSE had sufficient information to
develop appropriate transition services for D.B and included
vocational goals in the IEP.

The Department invited D.B. to be

present at the 2013 CSE, but the Parents declined to bring him
because they believed he could not sit through a two-hour
meeting.

The school psychologist, Ms. Fochetta, testified that

she asked questions of the Parents that mirrored a formal
vocational assessment.

The Department and the Parent also

discussed post-secondary goals during the 2013 CSE, including
(1) the necessary skills to target as well as the Parents’
ultimate goals for D.B., (2) D.B.’s post-secondary goals, (3)
D.B.’s long-term goals for possibly living independently, (4)
the importance of job training and the possibility of D.B.
attending college, and (5) the Parents’ desire that D.B. do
13

things he enjoyed.

Moreover, the 2013-2014 IEP addressed D.B.’s

post-secondary goals and transition needs, including that (1)
the Parents considered job training to be important and had not
ruled out college as an option for D.B., (2) the Parents wanted
D.B. to find a job he cares about, (3) the Parents would like
for D.B. to live and travel independently, (4) D.B. needed to
continue focusing on his course of study in order to meet his
transition goals, and (5) D.B. had been participating in an
internship at a radio station.

Accordingly, although the

failure to conduct a formal vocational assessment was a
procedural violation, it did not impede D.B.’s right to a FAPE,
significantly impede the Parents’ opportunity to participate in
the decision-making process, or cause a deprivation of
educational benefits.
The Department also failed to conduct an in-person
assessment of D.B. prior to creating the 2014-2015 IEP.

The

Department invited D.B. to be present for the CSE meeting but
the Parents again decided not to bring him because he would have
trouble sitting through a two-hour meeting.

The school

psychologist was present at the CSE meeting and testified that
she asked M.L.B. several questions in order to determine D.B.’s
interests, likes, and strengths, and that the CSE used that data
in developing post-secondary goals for D.B.

The Department’s

minutes for that meeting indicate that D.B. has an interest in
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music, food, ceiling fans, and people.

The CSE notes also

indicate D.B.’s strengths, interests, and the skills D.B. would
need to pursue to reach his goals.

Consistent with these notes,

the 2014-2015 IEP, under the heading of “Measurable
Postsecondary Goals,” provides that D.B. has interests including
music, ceiling fans, food, and people.

The IEP also stated that

D.B. would participate in an internship to determine an
appropriate area of employment for him.
To facilitate D.B.’s transition from school to postsecondary activities, the school was to arrange for the
following activities for D.B.: (1) go out into the community to
purchase items independently and obtain the correct change, (2)
learn appropriate telephone and workplace etiquette, (3) learn
to travel within the community independently, (4) learn to make
a budget and shop for his own food, and (5) correctly identify
emergency situations and the appropriate response.

The record

shows that the CSE had adequate information to develop a
vocational plan for D.B. and that the IEP included adequate
vocation and transitional goals.

Accordingly, the failure to

conduct an in-person vocational assessment did not deny a FAPE
to D.B.
The Parents’ argument to the contrary fails.

The Parents

argue that the IDEA permits, but does not require, that D.B.
attend the CSE meeting.

They further argue that the Department
15

had a duty to assess D.B. and could have done so prior to the
CSE meeting.

See 34 C.F.R. § 300.324 (listing factors the CSE

must consider).

Neither the regulation nor the case law,

however, impose the duty on the Department to conduct an inperson interview of a child.

The duty is to obtain and consider

relevant information prior to drafting the IEP.

The record

shows that even without interviewing D.B. in person, the CSE had
sufficient information to develop vocational goals for the IEP
after the school psychologist spoke to D.B.’s mother about
D.B.’s vocation needs.

Accordingly, the Department’s failure to

assess D.B. personally prior to the CSE meetings, and its
decision to instead interview D.B.’s mother, did not result in a
denial of a FAPE.
B. Annual Goals & Short-Term Objectives
The Parents argue that both the 2013-2014 and 2014-2015
IEPs failed to include appropriate and objectively-measurable
goals.

Specifically, they contend that the 2013-2014 goals are

vague and non-measurable and that six of the goals do not have
short-term objectives.

They also contend that the 2014-2015

goals did not address D.B.’s decoding and comprehension skills,
that the one math goal included was vague and unmeasurable, and
that the short-term goals were actually annual goals and did not
contain intermediate steps.
With respect to annual goals and short-term objectives, an
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IEP must include “a statement of measurable annual goals,
including academic and functional goals.”
§ 1414(d)(1)(A).

20 U.S.C.

For students with a disability, “the IEP shall

include a description of the short-term instructional objectives
and/or benchmarks that are the measurable intermediate steps
between the student’s present level of performance and the
measurable annual goal.”

8 NYCRR 200.4(d)(2)(iv).

The Second

Circuit has held that “the sufficiency of goals and strategies
in an IEP is precisely the type of issue upon which the IDEA
requires deference to the expertise of the administrative
officers.”

Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377,

382 (2d Cir. 2003).
The 2013-2014 IEP contained eighteen annual goals: (1)
recognize and label feelings in self and others by making
inferences from the situation and non-verbal cues, (2) use
appropriate comments to initiate and terminate a conversation
with an adult, (3) participate appropriately with a peer in a
game or activity, (4) follow four 1-step directions with no more
than two verbal/physical cues and attend to a task for at least
five minutes, (5) copy a paragraph and five math problems with
proper word spacing and appropriate letter size, (6) tolerate a
“sensory motor processing” diet, (7) given visual/verbal cues,
develop comprehension by demonstrating the ability to answer
various types of questions, (8) given visual/verbal cues,
17

develop comprehension by demonstrating the ability to recall and
retell details from a story, (9) develop decoding skills by
demonstrating the ability to identify and decode “vowel teams”
when given texts in the late second to early third grade range,
(10) develop functional math and money skills relating to real
world situations, (11) develop writing skills, (12) develop hand
writing skills, (13) improve social skills through the
engagement of certain tasks, (14) improve pragmatic language
skills, (15) improve receptive language skills, (16) improve
expressive language skills, (17) improve sensory processing
skills, and (18) improve motor planning skills.
For each of the goals, the IEP indicates (1) the criteria
for which the goal will be measured (for example, “80% accuracy
over four consecutive therapy sessions”), (2) the method of
measuring progress (for example, “therapist observations and
informal testing”), and (3) the frequency that progress will be
measured (for example, “1 time per quarter”).

Ten of the goals

are further subdivided into short-term objectives.

For example,

the goal of improving writing skills lists the following shortterm objectives: (1) use a period at the end of a sentence
consistently and independently, (2) use an exclamation/question
mark consistently and independently, (3) write two to three
logically connected sentences on a topic, (4) write five
sentences about personal experiences, and (5) generate two to
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three ideas on a given non-preferred topic.
According to the testimony of the school psychologist, Ms.
Fochetta, the annual goals and short-term objectives were
developed based in part on a speech-language evaluation
conducted with D.B. in January 2013.

The goals were also based

on discussions with the Parents and D.B.’s teacher from the
Rebecca School.

According to Ms. Fochetta, the goals in the

2013-2014 IEP reflected the Parents’ concerns about pronoun use
as well as D.B.’s specific skill levels.

The record indicates

that no one in attendance at the 2013 CSE meeting voiced any
objection to the goals or requested the inclusion of additional
short-term objectives.
The goals and short-term objectives in the 2013-2014 IEP
were sufficiently measureable to satisfy the requirements of 20
U.S.C. § 1414(d)(1)(A).

Although the IEP did not include a goal

for decoding or include short-term objectives for every goal,
the IEP did provide enough detail to identify the relevant
benchmarks and educational objectives and also provided
appropriate bases to measure and track D.B.’s progress towards
those goals.

As the SRO found in its well-reasoned opinion, the

2013-2014 IEP “provided sufficient information to guide a
teacher instructing [D.B.] and measuring his progress.”
Accordingly, the D.B. was not denied a FAPE on this basis.
The 2014-2015 IEP contained twelve goals: (1) develop
19

reading skills, (2) develop functional math skills, (3) develop
writing skills, (4) develop hand writing skills by maintaining
appropriate letter size, spacing within and between words, and
writing on lines, (5) use personal pronouns correctly when
making a request verbally or in writing, (6) improve pragmatic
language skills, (7) improve receptive language skills, (8)
improve expressive language skills, (9) improve sensory
processing skills, (10) improve motor planning skills, (11)
improve social skills, and (12) improve flexibility.

For each

of the goals, the IEP indicates (1) the criteria for which the
goal will be measured (for example, “80% accuracy over 5
consecutive weeks”), (2) the method of measuring progress (for
example, “speech and language pathologist and social education
teacher consulting each other and working together documenting
progress through observations and checklists”), and (3) the
frequency that progress will be measured (for example, “1 time
per week”).
Ten of the goals are further subdivided into short-term
objectives.

For example, the goal of improving pragmatic

language skills lists the following short-term objectives: (1)
remain on topic in a verbal interaction during both nonpreferred and academic topics, (2) maintain appropriate pitch
and volume when engaging with others, (3) use appropriate
comments to initiate and terminate a conversation with another,
20

and (4) identify and label feelings in himself and others
through identifying non-verbal cues and body language when
prompted by an adult.
According to the school psychologist, Ms. Fochetta, the
annual goals in the 2014-2015 IEP were developed based on input
from the Department’s special education teacher, D.B.’s teacher
at the Rebecca School, a social worker from the Rebecca School,
and the Parents.

During the CSE meeting, the participants

discussed D.B.’s reading skills, his attention and organization
skills, his social skills, his management needs, and the
Parents’ concerns.

The record indicates that the goal relating

to pronoun use was added at the request of the Parents.
The goals and short-term objectives in the 2014-2015 IEP
were sufficiently measurable.

Although two of the goals do not

list any short-term objectives, the IEP did provide enough
detail to identify the relevant benchmarks and educational
objectives and also provided appropriate bases to measure and
track D.B.’s progress towards those goals.

As the SRO found,

the 2014-2015 IEP “addressed the needs of the student as
identified in the present levels of performance detailed in the
January 2014 IEP.”

Accordingly, the goals and short-term

objectives in the 2014-2015 IEP were adequate and did not deny
D.B. a FAPE.

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C. Predetermination
The Parents argue that both the 2013-2014 and 2014-2015
IEPs were impermissibly predetermined.

Specifically, they

allege that the Department was close-minded to considering any
other option besides its preferred 6:1:1 program.

The Parents

also argue that they were denied meaningful participation in
developing the IEPs in both years.
Under the IDEA, parents have a right to participate in
meetings with respect to placement of the child and the
provision of a FAPE to the child.

34 C.F.R. § 300.501(b).

Specifically, a parent has a right to be a member of the group
that makes placement decisions, and a school district may not
make placement decisions without the involvement of the parent.
34 C.F.R. § 300.501(c).

Although school districts may not

predetermine the educational program offered in an IEP, they may
engage in “preparatory activities to develop a proposal or
response to a parent proposal that will be discussed at a later
meeting.”

T.P., 554 F.3d at 253 (citation omitted).

An IEP is

not predetermined so long as the district involves the parent in
the development of the IEP with an “open mind.”

Id.

Parents

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

T.Y. v.

New York City Dep’t of Educ., 584 F.3d 412, 420 (2d Cir. 2009).
With respect to the 2013-2014 IEP, D.B.’s mother, M.L.B.,
22

and D.B.’s teacher from the Rebecca School were both present at
the CSE meeting and were given an opportunity to object to the
use of a 6:1:1 ratio.

The CSE considered several different

ratios for D.B., including 12:1:1 and 8:1:1, and also considered
placement in different types of schools, but ultimately these
alternative options were “ruled out as too large, [and]
insufficiently supportive” because “[D.B.] requires a smaller
student to teacher ratio to meet his specific constellation of
needs.”

According to the record, the CSE meeting lasted for

approximately two hours, and the minutes indicate that several
of the Parents’ concerns were discussed.

The 2013-2014 IEP

itself incorporates several of the Parents’ comments and
concerns, such as (1) that the occupational therapy evaluation
should not be relied upon because the OT only spent less than
ten minutes with D.B., (2) a request that a goal for improving
hand-writing be included in the IEP, (3) that a 1:1
paraprofessional is important for D.B’s social development, (4)
that occupational therapy is needed within the school day, (5)
that D.B. needs sensory support throughout the day, (6) that
D.B. had an internship and needed it for job training, (7) that
some interaction with typical peers is important for D.B., and
(8) that the students in the 6:1:1 classes are “low functioning”
and were presumably not appropriate classmates for D.B.

The IEP

also reflects input from D.B.’s teacher at the Rebecca School
23

concerning D.B.’s development and needs.
The 2013-2014 IEP was not impermissibly predetermined.

The

record establishes that one of the Parents was present at the
CSE meeting and had an opportunity to voice her concerns.

The

IEP reflects several of the Parents’ concerns and also
incorporates the view of D.B.’s teacher at the Rebecca School.
With respect to the 2014 CSE meeting, D.B.’s mother,
M.L.B., was present and voiced her comments and concerns
regarding the IEP.

According to the record, M.L.B. was actively

involved at the meeting, which lasted approximately two hours.
Specifically, the 2014-2015 IEP reflects the Parents’ concerns,
including (1) a request that D.B. have access to appropriate
non-disabled peers, (2) that the functional levels of other
students in a 6:1:1 classroom will not allow D.B. to be
functionally grouped, (3) that occupational therapy would be
needed during the school day rather than after school, (3) that
the TEACCH4 methodology would not be appropriate for D.B., and
(4) that a 2:1 classroom ratio is most appropriate for D.B.

The

IEP also reflects a concern by D.B.’s teacher at the Rebecca
School that D.B. would need more attention than could be
provided in a 6:1:1 setting, and that D.B. would have difficulty

The TEACCH method refers to Treatment and Education of Autistic
and Communication Handicapped Children, a program for
instructing students with autism.
4

24

remaining focused and attentive in such an environment.

The

record indicates that the CSE considered several alternative
classroom ratios, including 8:1:1 and 12:1:1, but rejected them
because it concluded they would be insufficiently supportive to
D.B.’s needs.
For many of the same reasons, the 2014-2015 IEP was not
impermissibly predetermined.

The record establishes that one of

the Parents was present at the CSE meeting and had an
opportunity to voice her concerns.

The IEP reflects several of

the Parents’ concerns and also incorporates the view of D.B.’s
teacher at the Rebecca School.
The Parents’ argument to the contrary is unavailing.

The

parents rely on E.H. v. New York City Dep’t of Educ., 2016 U.S.
Dist. LEXIS 18537 (S.D.N.Y. Feb. 16, 2016), in which an IEP was
found to be predetermined because the CSE failed to consider a
parent’s concern that the 6:1:1 ratio would be inadequate.

E.H.

relied on the Sixth Circuit’s decision in Deal v. Hamilton Cty.
Bd. of Educ., 392 F.3d 840, 858 (6th Cir. 2004), for the
proposition that an IEP can be predetermined even when the
parents are afforded the opportunity to speak at the CSE meeting
if the school district failed to adequately involve the parents
in a collaborative process.
at *24.

E.H., 2016 U.S. Dist. LEXIS 18537

When asked to adopt the reasoning in Deal, the Second

Circuit distinguished Deal as applying where a school district
25

“consistently rejected parent requests” for a particular type of
instruction, such that it did not have an open mind with respect
to drafting the IEP.

T.P., 554 F.3d at 253.

(“Though not bound

by Deal, we find it distinguishable [because in Deal,] the
school district had consistently rejected parent requests for
intensive [Applied Behavioral Analysis] and told the parents
that ‘the powers that be’ were not implementing such programs.”)
The record here does not indicate that the Department
categorically rejected the Parents’ preferred ratio without due
consideration.

The CSE considered several different classroom

options and heard the Parents’ concerns with the 6:1:1 ratio.
While the Parents’ were ultimately unsuccessful in convincing
the CSE to approve their request, the record reflects that the
Department did not approach the drafting of the IEP with a
closed mind.
D. Prior Written Notice
The Parents argue that the Department failed to give them
prior written notice of the 2013-2014 IEP and that this failure
constituted a denial of FAPE.

The Department concedes that it

failed to give prior written notice to the Parents for the 20132014 school year.

Under the IDEA, a district must provide

written notice to the parents of a child, a reasonable time
before (1) initiating or changing the identification,
evaluation, or education placement of the child or the provision
26

of a FAPE to the child, or (2) refusing to initiate or change
the identification, evaluation, or educational placement of the
child or the provision of a FAPE to the child.

34 C.F.R.

§ 300.503.
Although this failure on the part of the Department was
technically a procedural violation, the record confirms that the
failure to provide prior written notice did not impede the
rights of D.B. or the Parents.

As discussed above, the Parents

were active participants in the 2013 CSE meeting, and their
inputs were incorporated in the 2013-2014 IEP.

The Parents do

not contend that they were denied the opportunity to participate
in the CSE meeting or to provide their comments or concerns
regarding D.B.’s education.

Moreover, there is no genuine

dispute that the Parents received actual notice of the IEP
because the Parents visited the school recommended by the IEP
after notifying the Department that they rejected the proposed
placement.

Because the record indicates that the Parents were

not prejudiced by the lack of prior written notice, the SRO’s
determination that D.B. was not denied a FAPE on this basis must
be affirmed.
E. Cumulative Effect of Procedural Deficiencies
The Parents argue that the multiple procedural violations
throughout the process of developing D.B.’s IEPs collectively
constitute a deprivation of a FAPE.
27

Having determined that none

of the procedural violations identified resulted in the denial
of a FAPE when considered individually, the Court must consider
whether their aggregate effect resulted in the denial of a FAPE.
See R.E., 694 F.3d at 191.

Here, the procedural deficiencies

were formalities and the record shows that the Parents were
afforded a full opportunity to participate in the IEP process.
The SRO’s holding that the procedural violations did not result
in the denial of a FAPE, whether considered individually or
cumulatively, is affirmed.
IV.

Substantive Adequacy of the IEPs
A. Student/Teacher Ratio
The Parents raise several challenges to the classroom ratio
recommended in the IEPs.

First, the Parents argue that the

classroom ratio of 6:1:1, which D.B. was assigned, is
inappropriate for D.B.’s needs.

They claim D.B. requires 1:1

teaching support, in the form of a transition paraprofessional,
but that the IEPs for both school years failed to make that
recommendation.

Second, they argue that D.B. was not assessed

within a 6:1:1 classroom ratio and that there was no
justification to depart from D.B.’s then-existing classroom
ratio of 8:1:3, which was used at the Rebecca School.
they assert that the 6:1:1 classroom ratio would be
inappropriate because D.B. would be placed with lower
functioning peers.
28

Finally,

Under the IDEA, states must ensure that
[t]o the maximum extent appropriate, children with
disabilities . . . are educated with children who are
not disabled, and special classes, separate schooling,
or other removal of children with disabilities from
the regular educational environment occurs only when
the nature or severity of the disability of a child is
such that education in regular classes with the use of
supplementary aids and services cannot be achieved
satisfactorily.
20 U.S.C. § 1412(a)(5).

“This requirement expresses a strong

preference for children with disabilities to be educated, to the
maximum extent appropriate, together with their non-disabled
peers.”

T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752

F.3d 145, 161 (2d Cir. 2014) (citation omitted).
“The implementing regulations require school districts
to ensure that a continuum of alternative placements
is available to meet the needs of children with
disabilities,” including “instruction in regular
classes, special classes, special schools, home
instruction, and instruction in hospitals and
institutions.”
Id. (citation omitted); see also 34 C.F.R. § 300.115(a), (b)(1).
“After considering an appropriate continuum of alternative
placements, the school district must place each disabled child
in the least restrictive educational environment that is
consonant with his or her needs.”

T.M., 752 F.3d at 161.

In reviewing whether an IEP provides the least restrictive
environment (“LRE”), the court engages in a “flexible, factspecific analysis.”

Id.

The Second Circuit has held that the

29

LRE requirement “does not require a school district to place a
student in the single least restrictive environment in which he
is capable of any satisfactory learning,” but rather that “the
presumption in favor of mainstreaming must be weighed against
the importance of providing an appropriate education to
handicapped students.”

Id. (citation omitted).

Schools must

therefore balance the restrictiveness of the student’s
environment with the educational benefits available to the
student in such environment, seeking an optimal accommodation
under the circumstances.

M.W. ex rel. S.W. v. New York City

Dep’t of Educ., 725 F.3d 131, 143 (2d Cir. 2013).
As a threshold matter, the Parents raised similar
objections to the 6:1:1 classroom ratio in D.B.’s 2011-2012 IEP.
In IDEA proceedings, the IHO, SRO, District Court, and Second
Circuit all found that 6:1:1 ratio was sufficiently tailored to
address D.B.’s educational needs.5
aff’d, 603 F. App’x 36.

R.B., 15 F. Supp. 3d at 421,

Similarly, the Court will defer to the

SRO’s determination that the recommendation of a 6:1:1 classroom
was reasonably calculated to enable D.B. to receive a FAPE.
This conclusion is amply supported by the record.

For example,

The Parents argue that this case is distinguishable because the
2011-2012 IEP, unlike those at issue here, recommended a 1:1
paraprofessional in addition to the 6:1:1 classroom. This
distinction is not material because Ms. Fonchetta’s testimony
indicates that D.B. did not require a 1:1 paraprofessional
because he does not exhibit behavioral problems.
5

30

the school psychologist, Ms. Fochetta, testified that:
[D.B.] has significant needs that require, you know a
lot of support, in a very small supportive, language
based classroom setting. And the 6:1:1 can provide
that. It is small. There is only a total of – [D.B.]
and it would be five other peers, with two adults in
the classroom. It is an intensive language based
program, for students with significant needs. . . . We
ruled out larger ratios that include 12 students, one
teacher, and one para[professional], as well as eight
students, one teacher, and one para[professional].
And we also ruled out all of the ten month community
school programs, because of [D.B.’s] significant
needs.
Ms. Fochetta also testified that a 1:1 paraprofessional was not
necessary for D.B. because he did not exhibit any behavioral
concerns that would require constant one-on-one attention.

She

also stated that the 6:1:1 classroom would provide “a lot of
individual attention.”

Accordingly, the Court defers to the

well-reasoned decision of the SRO that the 6:1:1 ratio was
reasonably calculated to provide D.B. with a FAPE.
B. Proposed School Placements
The Parents argue that the school placements recommended in
the 2013-2014 and 2014-2015 IEPs were not “viable” selections
for D.B. because the Department has not shown that either school
could timely implement the IEP for that year.

The Parents base

their argument on their observations during visits to the two
assigned schools after the IEPs were issued.
“[T]he IEP must be evaluated prospectively as of the time
of its drafting.”

R.E., 694 F.3d at 186.
31

Substantive attacks

on an IEP cannot be couched as speculative challenges to the
adequacy of a proposed placement.

Id. at 245.

If parents

reject an IEP and send a child to private school, testimony
concerning the adequacy of the public school is not considered
unless it shows that the proposed placement is “facially
deficient” because the “IEP cannot be implemented at a proposed
school.”

M.O. v. New York City Dep’t of Educ., 793 F.3d 236,

244-45 (2d Cir. 2015).

For example, a court may consider

evidence that a school’s cafeteria is not seafood-free if an IEP
called for a seafood-free environment due to a student’s
allergy.

Id. at 244.

The Parents have not shown that either

placement was facially deficient.

Accordingly, the Parents

cannot rely on purported inadequacies of the placements to
challenge the IEPs.

R.E., 694 F.3d at 245.

Moreover, speculation that the recommended school sites
would not have adequately carried out the IEPs are not properly
considered because the Parents rejected the IEPs in favor of
placement in a private school.

Id.

For example, the fact that

some of the students at a recommended school had behavioral
problems does not mean that the school could not have placed
D.B. in a classroom without students with behavioral problems or
taken other steps to ensure D.B. was not exposed to students who
would interfere with his education.

Similarly, the fact that

the Parents believed the sensory equipment was inadequate for
32

D.B. does not mean the school did not possess, or have the
capability to acquire, appropriate equipment to fulfill the
requirements in the IEP.

Accordingly, the Parents’ arguments

concerning school selection do not succeed in undermining the
deference owed to the SRO decision.
C. Teaching Methodology
The Parents argue that the school selected for D.B. would
have utilized the TEACHH methodology, which they claim is
inappropriate for D.B.

Under the IDEA, students enrolled in

special education should receive “specially designed
instruction,” which requires “adapting, as appropriate to the
[student's] needs . . . the content, methodology, or delivery of
instruction.”

34 C.F.R. § 300.39(b)(3).

In reviewing a

decision under the IDEA, the Court may not impose its view on
the proper educational methodology used by the state.

Grim, 346

F.3d at 382; see also Bd. of Educ. of Hendrick Hudson Cent. Sch.
Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 207 (1982).
Neither the 2013-2014 nor the 2014-2015 IEP indicates a
required teaching methodology.

The Parents’ arguments

concerning teaching methodology are based on the fact that the
6:1:1 programs typically use the TEACCH methodology.

As

discussed above, evidence about how the Department would have
carried out the IEPs if D.B. had been placed in public school
should not be considered unless the Parents show that the
33

school’s services were facially deficient and the school could
not have carried out the IEP.

Here, nothing in the record

establishes that the TEACCH method would have necessarily been
used nor that the goals of the IEP could not have been
accomplished using the TEACCH methodology.

For that reason,

these arguments do not require further examination.6

Moreover, even if the Court were to assume that the TEACCH
methodology would have been used, it would defer to the wellreasoned decision of the SRO that “the record does not contain
sufficient evidence upon which to conclude that the student
required a specific educational methodology in order to receive
a FAPE.”
6

34

Conclusion
The Court has considered the plaintiffs’ remaining
arguments and finds no grounds for reversal.7
the SRO is affirmed.

The decision of

The Department’s February 5, 2016 motion

for summary judgment is granted.

The Parent’s December 23, 2015

motion for summary judgment is denied.

The Clerk of Court shall

enter judgment for the defendant and close the case.
Dated:

New York, New York
May 19, 2016
________________________________
DENISE COTE
United States District Judge

In their Opposition & Reply Memorandum of Law, the Parents rely
heavily on E.H. v. New York City Dep’t of Educ., 2016 U.S. Dist.
LEXIS 18537 (S.D.N.Y. Feb. 16, 2016), which awarded tuition
reimbursement to another student at the Rebecca School. With
the exception of the issue of predetermination, which is
addressed in detail above, this case is easily distinguishable
because in E.H. (1) the parents argued that the IEP itself was
untimely, (2) the student required a behavioral intervention
plan due to behavioral problems, and (3) the parents claimed
that the IEP was based on an outdated evaluation of the student
and based on a methodology that was not itself recommended in
the IEP. These issues are not implicated here.
7

35